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HomeMy WebLinkAboutBATCH - Supplemental - 0054 Central AvenueFILED MAR - 7 2013 STATE OF VERMONT SUPERIOR COURT - ENVIRONMENTAL DIVISION VERMOW SUPERIOR COURT { EN ARONMENTAL DIVISION { Docket No.119-7-10 Vtec In re Berger & Katz { (Appeal from App. #MS-10-04 decision) Expansion Applications { Docket No.141-9-11 Vtec { (Appeal from App. #MS-11-01 decision) { Decision on the Merits Claudia Berger and Sheldon Katz ("Applicants") sought approval from the City of South Burlington Development Review Board ("the DRB") to construct five improvements to their single-family dwelling located at 54 Central Avenue in the City of South Burlington, Vermont ("the City"). As detailed in the procedural overview contained in our May 30, 2012 decision on the then -pending cross motions for summary judgment,' Applicants first sought approval for their proposed improvements in 2010 (Application No. MS-10-04) and, when not satisfied with the DRWs determination, appealed to this Court; this first.appeal was assigned Docket No. 119- 7-10 Vtec. After the Court suggested in its February 4, 2011 decision on pre-trial motions that Applicants may wish to modify their application, Applicants submitted a second application to the DRB, which was docketed by the DRB as Application No. MS-11-01. When Applicants were aggrieved by the DRB's decision on their second application, Applicants filed a second appeal with this Court, which was assigned Docket No.141-9-11 Vtec. Applicants' two applications seek approval for the same five improvements to their principal residence property. The two applications differ only slightly in the relationship of some of the proposed improvements to the property's northern boundary and the setback from that boundary. When Applicants gave notice that they wished to seek approval before this Court for each of their applications as alternative designs, the Court coordinated the matters for trial, pursuant to V.R.E.C.P. 2(b). The Court conducted a two-day trial, commencing on June 12, 2012 and concluding on June 13, 2012. The Court previously completed a site visit with the parties, all of whom were present and assisted at both the site visit and trial by their attorneys: Sheldon Katz, Esq., 1 In re Berger & Katz Application, Nos.119-7-10 Vtec & 141-9-11 Vtec, slip op. at 1-3 (Vt. Super. Ct. Envtl. Div. May 30, 2012) (Durkin, J.). 2 In re Berger & Katz Application, No.119-7-10 Vtec (Vt. Super. Ct. Envtl. Div. Feb. 4, 2011) (Wright, J.). 1 f representing himseV and John H. Klesch, Esq., representing the City. Neighbor Bruce H. Alvarez appears in these proceedings as an interested person, representing himself. Based upon the credible testimony and other evidence presented at trial, including that evidence put into context by the site visit that the Court conducted with the parties, the Court renders the following Findings of Fact, Conclusions of Law, and Judgment Order that accompanies this Merits Decision. Findings of Fact I. Applicants' Property. 1. Applicants occupy as their principal residence the previously -improved property that they own at 54 Central Avenue in the City. Their property is located in the Queen City Park Zoning District ("QCP District"). Immediately north of Applicants' property is the principal residence property of Bruce H. Alvarez ("Neighbor") and his family. Mr. Alvarez participated in the site visit and presented evidence at trial. 2. The existing building on Applicants' property includes a single family residence with a rear deck and a front porch that has recently been used for firewood storage. The rear deck has an approximately eight -foot high privacy wall on its northern edge, facing Neighbor's property. The footprints of the existing building, rear deck, and front porch are depicted on a survey plat admitted at trial as Applicants Exhibit 4. 3. The northwestern comer of Applicants' existing front porch is approximately four feet from their property's northern boundary line. The northeastern corner of their existing rear deck is less than three feet from the northern boundary line. 4. Applicants' lot existed prior to February 28,1974. 5. Applicants seek to complete the following improvements to their property: 1) Enclose or replace an existing front porch with an addition of the exact same dimensions and incorporate the new space into their homes interior living space; 2) Replace a rear deck with an enclosed two-story addition to their homes interior living space; 3) Construct a new front porch, measuring six feet by ten feet, with a roof covering it; 3 Co -Applicant Claudia Berger was not present at the site visit or trial. She was represented in both instances by her Co -Applicant, Sheldon Katz, who is a Vermont -licensed attorney. 2 4) Attach a new screened rear deck with a roof to the southeastern section of the existing residence, with an interior ceiling of not more than nine feet when measured from the interior floor of the residences and 5) Add two dormers on the front and rear sides of the southern portion of the dwelling roof, so as to expand the living area in the adjoining second -floor rooms. 6. Applicants' proposed improvements do not impact upon the existing garage and exterior parking areas on their property, which are sufficient for their use of the property as a single family residence. 7. The proposed expansion of the interior space that will replace the existing rear deck will rise two stories and have a roof that will be pitched in a manner that aligns with the pitched roof of the existing structure. None of the proposed improvements will exceed a height of 25 feet, measured from the midpoint of the pitched portion of any new roof. 8. Applicants' proposed improvements will increase the square footage of the interior space of their home. 9. Applicants' property is less than 5,000 square feet in total surface area. With the proposed structural additions to Applicants' residence, the improved home will not cover more than forty percent of their lot. When the property's parking area is added to the footprint of the improved building, the total impervious surfaces will not exceed sixty percent of total lot coverage. 10. Applicants' proposed improvements will not cause a change in the use of their property as a principal residence. 11. Applicants propose several variations to the exact footprint that their new interior space additions will occupy in replacement of the existing front porch and rear deck. The first proposal in their first application (DRB Application No. MS-10-04) was to have their additions mirror the exact footprint of their existing front porch and rear deck, thereby aligning with the northern exterior wall of their existing dwelling. See Exhibit 7. During the proceedings concerning their first application, Applicants agreed to revise their site plan, as suggested by Town officials, to show that their proposed new structures would respect the five-foot minimum setback from their northern boundary line. 4 Applicants did not provide the specific dimensions for their proposed new rear deck, other than to represent that its exterior limits would align with the southern wall of their existing residence and the eastern wall of their proposed rear addition. 3 12. After the then -presiding judge determined that Applicants could not present their desired site plan to the Court in the appeal docketed as No. 119-7-10 Vtec, since the DRB had not considered that application,5 Applicants consented to the Court placing Docket No. 119-7-10 Vtec on inactive status while they submitted their original site plan to the DRB. When the DRB did not approve their second application as proposed (DRB Application No. MS-11-01), Applicants appealed that second determination to this Court; their second appeal was assigned. Docket No.141-9-11 Vtec. 13. Applicants would prefer to construct the replacement additions for their existing front porch and rear deck so that they align with their existing residential structure, as depicted on Applicants' Exhibit 7. 'As depicted on Exhibit 7, this plan would result in the northeastern corner of the new addition to the rear of Applicants' residence being less than three feet from their northern boundary line; the northwestern corner of the new addition in front of Applicants' residence would be about four feet from their northern boundary line. 14. If their preferred design does not meet with the Court's approval, Applicants offered to revise their design so that no portion of their new additions would encroach more than three feet from their northern boundary line. Their revised plan is depicted on Applicants' Exhibit 5. 15. Applicants also suggested that, should the Court insist as a condition conformance with the Regulations, their additions could be designed so as to respect a five-foot minimum setback from their northern boundary. 16. Applicants chose not to present at trial detailed design plans for their proposed additions, asserting that they did not wish to invest the resources to have detailed designs prepared until after they received word of whether they would be allowed to construct the desired improvements. 17. Applicants proposed at trial that their new additions would have an exterior finish similar to their existing residence: clapboards of a similar color, without any windows or other disruptions on the northern facade. II. Neighborhood Surrounding Appellants' Property. 18. The QCP District is a densely -settled residential area that adjoins a portion of Shelburne Bay area of Lake Champlain. Photos of some of the neighborhood homes were admitted at trial as Exhibit 8, which includes eighteen separate photos. These photos provide an accurate 5 In re Berger & Katz Application, No.119-7-10 Vtec (Vt. Super. Ct. Envtl. Div. Feb. 4, 2011) (Wright, J.). 4 representation of the proximity and relationship between adjoining homes and properties in this area. 19. All lots in the vicinity of Applicants' home are used for residential purposes. Most of the QCP District lots, including those surrounding Applicants' home, are quite small; one explanation provided at trial was that when the area was subdivided for development, the area was designed for small seasonal camp sites, given its proximity to Lake Champlain. 20. Today, many of the properties in Applicants' neighborhood have been improved and added onto so that the homes may be used throughout the year; most of these homes are now used as principal residences. Some of the permitted improvements to area homes have encroached significantly into side yard setbacks. Many neighborhood homes are less than ten feet apart, including homes that sit less than five feet from the common boundary line. Some of these homes do not have windows on the sides that face a closely adjoining home. Where there are windows on the sides of homes that are close to an adjoining home, the view from those windows is limited to that of the adjoining home; only indirect sunlight may reach such windows. 21. Applicants' and Neighbor's homes face west, as do most homes in their immediate vicinity. A frequently used park with swing sets and walking areas is across Central Avenue from their homes. The shores of the Shelburne Bay portion of Lake Champlain are southwest of this park. 22. Views of Shelburne Bay can be had from the front (western facing) windows of Applicants' home, Neighbor's home, and those homes in their immediate vicinity. 23. Because of the close proximity of the homes in this neighborhood to one another, few windows from the homes other than front (western facing) windows have unobstructed views of direct sunlight or any portion of Lake Champlain. III. Impact of Applicants' Proposed Improvements on Neighbors' Property. 24. Neighbor's property, which he uses as his family's principal residence, is immediately adjacent to Applicants' property. Their common boundary is to the south of Neighbor's home. 25. Neighbor takes great pride in his family's home, deservedly so. Neighbor has completed several improvements to his home and maintains it well. - 26. A large maple tree on Neighbor's property, near the parties' common boundary line to the rear of Neighbors home, provides shading and screening for both homes. 5 J 27. Neighbor's property, like Applicants' property, has a small back yard that Iooks onto a wooded area that rises along a hillside to the east. 28. Detailed photos of Neighbors home, including its interior, were offered at trial, including Applicants' Exhibit 13 (containing 22 photos) and the City's Exhibit V, which includes photos labeled as Figures 1 through 6, inclusive. These photos provide an accurate depiction of Neighbor's home, including the views that can be observed through his house windows and how those views are currently obstructed. 29. Two experts credibly testified on the impact of Applicants' additions to views and sunlight enjoyed by Neighbor, especially from inside his home. While each expert offered differing expert opinions on the magnitude of the impact from Applicants' additions, there was little material difference in their estimations of the additional impact to be caused by the proposed improvements. Compare Applicants' Exhibits 19 & 20 with City's Exhibit T. 30. Neighbor's home contains over thirty windows, only four of which face south. Of those four south -facing windows, three have views that are partially or completely obstructed by Applicants' existing home. These south -facing windows are depicted in the City's Exhibit V, at Figures 1 through 6, indusive.6 The only south -facing window in Neighbors home that has a view not currently obstructed by Applicants' home is a window in the rear of Neighbor's home, in his mud room area that serves as a rear entrance and exit area. No credible evidence was provided that convinced the Court that Applicants' proposed improvements would obstruct the views from this south -facing mud room window. Several of Applicants proposed improvements will not interfere with Neighbor's views from inside his home. For example, the two dormers Applicants propose to have installed on the southern portion of their roof will not impact any of Neighbors views. From the evidence presented, we also cannot discern how the new rear screened -in porch will impact on Neighbor's views, even if the existing rear deck were to remain unchanged. 31. Neighbors will be able to view Applicants' proposed new front porch from their most westerly south -facing window, but the proposed porch will only cause minor additional 6 Some of the photos in Figures 1-6 depict multiple windows, some of which are not south -facing and are not obstructed by Applicants' home. For example, see Exhibit V, Figure 3: the window to the right faces southwesterly and does not show any portion of Applicants' existing home or plarmed expansion areas; see also Figure 6: the window on the left faces easterly, towards Neighbors rear yard; that view is mostly obscured by the maple tree in Neighbors rear year, mentioned above in 126. The view from that window also is not obstructed in any way by Applicants' existing home or their planned improvements. 0 obstruction of the total view from that window, particularly in light of Applicants' recent practice of stacking firewood on their existing front porch. The new interior space where Applicants' existing front porch now sits will be visible from the window in the center of the photo at Exhibit V, Figure 3, but not clearly visible from any other interior location. 32. Applicants' proposal for the rear deck is to replace it with a two-story addition to their residence; the addition will occupy the same footprint as the existing deck. In place of the existing deck and the eight -foot tall privacy wall that currently faces Neighbor's property, there will be a two-story wall (approximately sixteen to twenty feet tall), in the same footprint, and topped by a peaked roof that follows the same pitch as the existing peaked roof on Applicants' residence. Some of Neighbor's view will be blocked by this new exterior wall, but most likely only from one of his windows and from that window, only to a partial degree. 33. Neighbor's south -facing windows, even where obstructed by Applicants existing home, receive indirect sunlight, as evidenced by the house plants that Neighbor maintains inside these obstructed windows. See Exhibit V, Figure 4. The additions Applicants propose to their home will not materially diminish Neighbor's access to this indirect sunlight from these already - obstructed south -facing windows. Conclusions of Law These coordinated appeals represent the latest example presented to this Court of the unfortunate but frequently recurring incidents of disputes between neighbors who live within feet of one another in a densely settled area. While the City actively participated at trial and in the post -trial filing process, the City appears motivated not by any animus towards Applicants, but by a goal of assisting in the proper interpretation of the City of South Burlington Land Development Regulations ("Regulations'). The final resolution of these proceedings, whenever that does occur, is unlikely to resolve all disputes between Applicants and Neighbor. We do not have the authority to embark on that challenge; we limit our analysis to the conformance of Applicants' proposed development with the applicable provisions of the Regulations.? 7 At the time of Applicants' 2010 application, the Regulations then in effect were those that had been adopted on May 12, 2003, with amendments effective January 11, 2010. The Regulations have since been amended further, with an effective date of March 15, 2011. None of the March 2011 amendments changed the provisions applicable to either of Applicants' applications, except in the labeling of a subsection of § 4.08: § 4.08(G) in the 2010 version of the Regulations is identical in Ianguage to § 4.08(F) in the 2011 version of the Regulations. Our references throughout this Decision are to the Regulations as amended on March 15, 2011. Copies of the relevant excerpts from the Regulations in effect in 2011 were 7 I. Non -Complying Structures and Expansions to Their Footprint and Square Footage. We begin by analyzing the current development on Applicants' property and how that development may be characterized under the current Regulations. Applicants' property is a small lot of less than 5,000 square feet in size. Like many of their neighbors' properties in the QCP District, Applicants' property hosts a residential building that does not conform to the current dimensional requirements for that District. See Regulations Appendix C, Table C-2 (establishing a minimum side yard setback of five feet in the QCP District). The fact that Applicants existing building does not conform to the current setback requirements is not fatal to their current applications, since non -conforming structures may be maintained and even expanded, subject to certain conditions established in the Regulations. In particular, any non conforming structure in the City "that is devoted to a conforming use may be reconstructed, structurally altered, restored or repaired, in whole or in part, with the provision that the degree of noncompliance shall not be increased." Regulations § 3.11(B)(3). The first condition expressed in § 3.11(B)(3) is that the pre-existing, non conforming structure must be devoted to a permitted use. Applicants' present and planned future use of their property as their residence satisfies this condition, since residential uses are permitted in the QCP District. Regulations § 4.08(C) & Appendix C, Table C-1. The established purpose of the QCP District provides helpful context for the analysis of the pending applications. The Regulations describe the purpose of the QCP District as "to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversion of seasonal homes to year round residences." Regulations § 4.08(A). Perhaps because of this somewhat unique purpose, the Regulations also establish specific criteria for permissible alterations of pre-existing, non -complying structures in the QCP District: F. Non -complying Structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non- complying structures and lots. Non -complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: admitted at -trial as City Exhibit Q copies of the relevant excerpts from the prior Regulations were admitted as City Exhibit R. 0 (a) Exceed in aggregate cost thirty-five percent (35%) for residential properties and twenty-five percent (25%) for nonresidential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer; or (b) Involve an increase to the structure's height or footprint, or otherwise involve an increase to the square footage of the building or structure. (2) The Development Review Board may approve any alteration which exceeds the thirty-five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint or square footage subject to the provisions of Article 14, Conditional Use Review. (3) In addition to the provisions set forth in sub -section G.2 above, the Development Review Board shall determine that the proposed alteration or expansion will not adversely affect: (a) Views of adjoining and/or nearby properties; (b) Access to sunlight of adjoining and/or nearby properties; and (c) Adequate on -site parking. Regulations § 4.08(F). Thus, § 4.08 appears to supersede § 3.11 and place additional conditions upon alterations of non -complying structures that are located in the QCP District. See also Regulations § 3.11(D)(1) (providing that alterations to non -complying structures in the QCP District must also comply with Article 4, § 4.08). We therefore focus our initial analysis of the pending applications on § 4.08. Applicants provided no specific cost estimates of their proposed improvements at trial. In post -trial filings, Applicants assert that the improvements will cost $105,000.00 and that their home is currently "assessed," presumably for real estate taxing purposes, at $323,000.00. Because no foundation or verification for these estimates of costs and value were presented at trial, Applicants failed to convince the Court that their planned improvements will have an aggregate cost of less than thirty-five percent of the current value of Applicants' property. See Regulations § 4.08(F)(1)(a). We need not render a final determination on whether Applicants satisfy the requirements of Regulations § 4.08(F)(1)(a), however, since an applicant must satisfy both subsections (a) and (b) to avoid the trigger for conditional use review found in Regulations § 4.08(F)(2). For the reasons noted below, we conclude that Applicants' proposed improvements do not comply with Regulations § 4.08(F)(1)(b) and must therefore satisfy both G] the conditional use review standards and the additional standards imposed by Regulations § 4.08(F)(3). Applicants represent that their proposed improvements will not exceed the height of their existing residence. We accept and adopt this representation, since we received no credible evidence contesting it. However, as noted in a previous pre-trial. decision, Applicants' proposal to replace their rear deck with a two-story addition to their interior living space, as well as enclosure or replacement of their front porch so as to add to their interior living space, constitute increases in the square footage of Applicants' residence. In re Berger & Katz Application, No.119-7-10 Vtec, slip op. at 6 (Vt. Super. Ct. Envtl. Div. Feb. 4, 2011) (Wright, J.) s We also noted that since Applicants intend to construct a new front porch and new rear screened -in deck, their plans also will cause an increase in their home's footprint. In re Berger & Katz Application, Nos.119-7-10 Vtec & 141-9-11 Vtec, slip op. at 8-9 (Vt. Super. Ct. Envtl. Div. May 30, 2012) (Durkin, J.). There was no credible testimony or other evidence presented at trial to cause us to revisit and change these pre-trial legal determinations. We therefore conclude that Applicants' proposed improvements will cause both an increase in the footprint and square footage of their residence. The consequence of this legal determination is that, as required by Regulations § 4.08(F)(2), Applicants' proposed improvements may only be allowed if the improvements conform to the conditional use standards of Article 14. Section 4.08(F)(3) imposes the additional requirements that the improvements "will not adversely affect: (a) Views of adjoining and/or nearby properties; (b) Access to sunlight of adjoining and/or nearby properties; and (c) Adequate on -site parking." For the reasons detailed below, we conclude that Applicants' proposed improvements, as conditioned below, conform to Regulations §§ 4.08(F)(2) and (3). II. Conformance to Article 14 Conditional Use Standards. Article 14 of the Regulations establishes the criteria for conditional use approval. Specifically, to receive such approval, improvements to a pre-existing development must be both "consistent with the planned character of the area, as defined by the City of South Burlington Comprehensive Plan" and "conform to the stated purpose of the district" in which the use, or as in this case the proposed structural additions, are located. Regulations 8 Judge Wright reviewed Applicants' first application and its conformance to the 2010 Regulations and therefore made reference to Regulations § 4.06(G)(2), which is codified in the 2011 Regulations at § 4.08(F)(2). 10 §§ 14.10(E)(1) & (2). Applicants propose additions to their pre-existing residence, which is a permitted use in the QCP District and conforms to the stated purpose of the QCP District: "to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood." Regulations § 4.08(A). This regulatory purpose is essentially a restatement of the intended development patterns expressed in the Comprehensive Plans objectives and recommendations for this residential quadrant of the City. See City Exhibit P, which is a copy of the relevant portions of the City's Comprehensive Plan. For these reasons, we conclude that Applicants' proposed improvements to their pre-existing residential dwelling conform to Regulations §§ 14.10(E)(1) and (2). Applicants' proposed additions must also satisfy the additional criteria for conditional use approval expressed in Regulations § 14.10(E)(3): The proposed use shall not adversely affect: (a) The capacity of existing or planned municipal or educational facilities. (b) The planned character of the neighborhood or district in which the property is located, or the ability to develop adjacent property for appropriate uses. (c) Traffic on roads and highways in the vicinity. (d) Bylaws in effect. (e) Utilization of renewable energy resources. Applicants' proposed improvements will not change the use of their residence and will not cause or contribute to an expansion of that residential use. While Applicants' proposed improvements will increase their homes footprint and square footage, no evidence was presented that these improvements will increase the bedrooms or bathrooms in Applicants' home. Although the Regulations provide no basis for restricting the number of Applicants' family members that call this property home, we note that no evidence was presented that the number of family members occupying Applicants' home will increase. We therefore conclude that Applicants' proposed improvements will not affect, adversely or otherwise, (a) the capacity of municipal or educational facilities or (c) area traffic. As we noted above, Applicants' proposed improvements are aligned with the planned character of the neighborhood -and the stated purposes of the QCP District, and we received no evidence that the proposed improvements will in any way impede the development on adjacent properties. We therefore conclude that Applicants' proposed improvements conform to subsection (b). 11 We also received no evidence that the proposed improvements will materially increase Applicants' energy needs and therefore conclude that Applicants' plans need not incorporate the additional utilization of renewable energy resources. Lastly, we received no evidence that Applicants' proposed improvements will not conform to other regulatory provisions, save for the issue of side yard setback, which we address in the final section of this Decision. For these and the remaining reasons stated below, we conclude that Applicants' proposed improvements conform to subsections (d) and (e). Having determined that Applicants' proposed improvements satisfy all of the conditional use criteria of Regulations § 14.10(E), we conclude that the improvements to this non -complying residential structure may be allowed, even though they will increase both the footprint and square footage of Applicants' residence. See Regulations § 4.08(F)(2). We therefore now turn to conformance with the final subsection of Regulations § 4.08(F): subsection (3). III. Conformance to Additional Criteria Concerning Views, Sunlight & Parking. When a proposed expansion of a non -complying structure in the QCP District results in an increase of the structure's footprint or square footage, the applicant must also show that the proposed expansion plans "will not adversely affect: (a) Views of adjoining and/or nearby properties; (b) Access to sunlight of adjoining and/or nearby properties, and (c) Adequate on - site parking." Regulations § 4.08(F)(3). There was no evidence presented that Applicants' proposed improvements would render their on -site parking inadequate-9 We therefore focus our analysis on the project's impacts on views and access to sunlight. The parties spent much time at trial debating the impact of Applicants' proposed improvements upon Neighbors views and access to - sunlight, particularly from inside Neighbor's residence. No suggestion was made that the proposed improvements would have an impact upon the views or accesses to sunlight from outside Neighbor's home, in either his front or rear yards. In fact, when standing in front of his home, Neighbor will continue to enjoy a clear view of the adjacent playground and a somewhat obscured view of Shelburne Bay, which is to the southwest of his home. Similarly, Neighbor will continue to be able to enjoy his rear yard, which while shaded by his maple tree, enjoys some direct sunlight during some 9 Applicants do not propose any changes to their driveway, the parking area on the driveway, or their pre-existing garage. 12 portions of the day. The proposed improvements will not materially diminish Neighbor's views or access to sunlight while he is outside his home in his front or rear yard. Next, we note that no evidence was presented that either the proposed dormers or the rear screened deck would interfere with Neighbor's views or access to sunlight. In fact, the DRB concluded that Applicant needed no permit or approval for the dormer additions. Because the dormers constitute improvements to a pre-existing, non -complying structure and are proposed in connection with a combination of improvements that collectively will increase Applicants' home footprint and square footage, we include the dormers in our analysis here. However, since we conclude that neither the dormers nor rear screened deck will cause added obstruction to Neighbor's views or access to sunlight, we conclude that the dormers and rear deck will conform to Regulations § 4.08(F)(3). The remaining question is whether the other proposed improvements will cause an adverse effect on Neighbor's views and access to sunlight. Adverse effect is a term of art often used in municipal land use regulation. Thankfully, our Supreme Court has provided guidance on the proper analysis this term of art requires, concluding that "the adverse effect test [in municipal conditional use criteria] must be applied reasonably to prohibit only substantial and material adverse effects." In re I iller,170 Vt. 64, 69 (1999) (citing In re Walker,156 Vt. 639, 639 (1991) (mem.)) (emphasis added). Given that some of Applicants' improvements will be seen from at least two windows within Neighbor's home, it is beyond dispute that Applicants' improvements will have an impact on Neighbor's views. But we cannot agree that those impacts will be substantial or material and therefore conclude that Applicants' proposed improvements will not "adversely affect" Neighbor's views or access to sunlight, as that term is used in Regulations § 4.08(F)(3) or as interpreted by our Supreme Court. In particular, we note that the credible evidence showed that even the most substantial portions of Applicants' improvements will not be able to be viewed from inside Neighbor's home from the vast majority of windows. Neighbor appeared to conflate the impact Applicants' existing home has on his interior views, which is substantial, with the impact from the additional improvements Applicants propose, which is relatively minimal. When we focus our analysis on just the proposed improvements, which are the only portions of Applicants' home that are subject to our review in these proceedings, we do not regard the added impact upon either Neighbor's views or access to sunlight to be material or substantial. 13 11 The parties provided credible testimony from experts on the improvements' impact on the sunlight reaching Neighbor's home. While these experts offered differing opinion testimony on the materiality of the impact, their evidence appeared to consistently show that the improvements will only have a minimal and short-lived impact upon shading and sunlight. Compare Applicants' Exhibits 19 & 20 with City's Exhibit T. Of additional import is that Neighbor continues to enjoy and maintain a large maple tree in his back yard that obscures much of the sunlight reaching the rear of his home in the spring, summer, and fall. This tree is so well developed that even in the winter, its branches obscure most of the direct sunlight to the rear of Neighbor's home. For all these reasons, we conclude that Applicants' proposed improvements will not adversely affect Neighbor's views or access to sunlight, particularly when compared to his present views and sunlight access. We therefore conclude that Applicants proposed improvements conform to Regulations § 4.08(F)(3). IV. Setback Encroachments. Our remaining challenge is to determine which setback requirement Applicants' improvements must meet. First, in considering an expansion to a pre-existing, nonconforming structure, we note that our Supreme Court has stated that the "ultimate goal" of municipal zoning regulation "is to gradually eliminate nonconforming uses" and because of that goal, "any expansion of that use [must be] carefully limited." In re Smith, 2006 VT 33, 110, 179 Vt. 636 (mem.). The Supreme Court has explained this important goal and purpose of zoning by noting that "the public interest in the regulation and gradual elimination of nonconforming uses is strong." In re Gregoire, 170 Vt. 556, 559 (1999) (citing Hinsdale v. Village of Essex unction 153 Vt. 618, 626 (1990)). With this goal in mind, we consider whether Applicants' proposed improvements would constitute an impermissible expansion of a non -conforming use or structure. The parties agree that the applicable provisions of the Regulations generally call for a five-foot minimum setback from side boundary lines in the QCP District, pursuant to Regulations Appendix C, Table C-2. An applicant may be entitled to a reduction of the side yard setback to a minimum of three feet, pursuant to Regulations § 3.06(J)(3)?0 The parties 10 The § 3.06(n setback exception is available for lots or dwelling units "in existence prior to February 28, 1974," so long as "the existing or proposed principal use on the lot is a single-family dwelling or a two- 14 disagree on whether the facts presented allow Applicants to qualify for a side yard setback reduction. Applicants existing home is entirely within this established setback, by one foot at its northwestern corner and by over two feet at its northeastern corner. Applicants' plan to enclose or replace their front porch and rear deck with new interior structures that would add to their square footage would therefore constitute an expansion of their home's nonconformity, which would be in direct conflict with the Smith and Gregoire precedents, as well as the express restrictions contained in Regulations § 3.11(B)(3) (limiting expansions of non -complying structures to those that do not increase "the degree of noncompliance'). Applicants have repeatedly asserted that constructing their proposed improvements in the same footprint as their existing front porch and rear deck would not increase the degree of their home's non-conformance, but they are mistaken in this regard, as this Court has previously explained. See In re Berger & Katz Application, Nos.119-7-10 Vtec, slip op. at 6 (Vt. Super. Ct. Envtl. Feb. 4, 2011) (Wright, J.). Applicants' proposal to replace their rear deck with a two-story addition to their interior living space, as well as enclosure or replacement of their front porch so as to add to their interior living space, would increase the square footage of Applicants' residence. Id. We received no evidence at trial to contradict the factual foundation for this prior ruling. We therefore conclude that Applicants' proposed enclosure or replacement of their front porch and rear deck would generally result in an impermissible expansion of the pre-existing non -conformity of their home. There is one possible saving mechanism available to Applicants. The Regulations, perhaps in accordance with the purposes expressed for the QCP District of maintaining homes on small lots with reduced setbacks, allow for a further reduction in the side yard setback to no less than three feet. See Regulations § 3.060)(3). To be allowed to reduce the side yard setback minimum to three feet, an applicant must show that his or her project "will not have an undue adverse affect [sic] on: (a) views of adjoining and/or nearby properties; (b) access to sunlight of adjoining and/or nearby properties; (c) adequate on -site parking; and (d) safety of adjoining and/or nearby property." Id. We have previously concluded, in our analysis above on the project's conformance with Regulations § 4.08(F)(3), that the proposed improvements will not family dwelling." Applicants' lot and both their existing and proposed uses of their property meet these requirements. 15 cause an adverse impact upon criteria identical to those in Regulations §§ 3.060)(3)(a), (b), and (c). We further note that there was no evidence provided at trial that Applicants' proposed improvements will raise safety concerns at any adjoining or nearby property. See Regulations § 3.060)(3)(d). We therefore conclude that Applicants' proposed improvements conform to Regulations § 3.06(j)(3) and are entitled to be located as close as three feet from the northern side yard boundary, but no closer. There was some conflicting testimony at trial about the exact location of the common boundary between Applicants' and Neighbor's property. Applicants presented a surveyed plat of their property, although they did not present a plat that specifically depicted the dimensions of their improvements or all the distances of their improvements from the nearest boundary lines. Of those boundary line distances provided, some appear to have been added to the survey after the fact and not by the surveyor who -prepared the plat. Rather than rely upon this deficiency to deny Applicants the approval they seek, we will condition the issuance of a zoning permit for their improvements upon their filing of a proper and complete survey plat. Conclusion For the reasons detailed above, we GRANT approval to Applicants for their improvements as proposed, subject to the following conditions: 1. Prior to the issuance of any zoning permit for the identified improvements, and prior to commencing any construction of such improvements, Applicants shall file with the City of South Burlington Planning Office a revised survey from a licensed land surveyor that accurately depicts their northern boundary and all improvements authorized by this Merits Decision, showing the specific dimensions of each improvement and their distance from the nearest boundary line. 2. Applicants shall also provide the City of South Burlington Planning Office with a description of the materials and colors for the exterior of each improvement. 3. In the event that Applicants fail to provide the survey and information necessary to completely satisfy conditions 1 and 2 within one year of the date this Merits Decision and Judgment Order become final (i.e., thirty days from the date hereof or from whenever any appeal shall become final), then the approvals contained in this Merits Decision and Judgment Order shall become null and void and Applicants shall be required to re -apply for approval of any improvements they seek to complete. These proceedings are remanded to the City of South Burlington Planning Office for the sole purpose of completing the ministerial act of receiving the completed survey and exterior 16 siding information required in conditions 1 and 2, above, and to thereafter issue Applicants a zoning permit for the approved improvements. This completes the current proceedings before this Court in these Dockets. A Judgment Order accompanies this Merits Decision. Done at Berlin, Vermont this 7th day of March, 2013. Thomas S. D kin, Environmental Judge 17 l FILED STATE OF VERMONT - 7 2013 SUPERIOR COURT - ENVIRONMENTAL DIVISION VERMONT. SUPERIOR COURT { EN%,nRONMENTAL DNISION { Docket No.119-7-10 Vtec In re Berger & Katz { (Appeal from App. #MS-10-04 decision) Expansion Applications { Docket No.141-9-11 Vtec { (Appeal from App. #MS-11-01 decision) { Judgment Order For the reasons detailed in the Merits Decision that accompanies this Judgment Order, we GRANT approval to Applicants Claudia Berger and Sheldon Katz for the improvements to their residential property at 54 Central Avenue in the City of South Burlington that are enumerated in the Merits Decision at pages 2-3, Findings of Fact 15, subject to the following conditions: 1. Prior to the issuance of any zoning permit for the identified improvements, and prior to any construction of such improvements commencing, Applicants shall file with the City of South Burlington Planning Office a revised survey from a licensed land surveyor that accurately depicts Applicants' northern boundary line and all improvements authorized by the Merits Decision and this Judgment Order, showing the specific dimensions of each improvement and their distance from the nearest boundary line. 2. Applicants shall also provide the City of South Burlington Planning Office with a description of the materials and colors for the exterior of each improvement. 3. In the event that Applicants fail to provide the survey and information necessary to completely satisfy conditions 1 and 2 within one year of the date that the Merits Decision and this Judgment Order become final (i.e., thirty days from the date hereof or from whenever any appeal shall become final), then the approvals contained in the Merits Decision and Judgment Order shall become null and void and Applicants shall be required to re -apply for approval of any improvements they seek to complete. These proceedings are remanded to the City of South Burlington Planning Office for the sole purpose of completing the ministerial act of receiving the completed survey and exterior siding information required in conditions 1 and 2, above, and to thereafter issue Applicants a zoning permit for the approved improvements. f This completes the current proceedings before this Court in these Dockets. Done at Berlin, Vermont this 7th day of March, 2013. Thomas S. D kin, Environmental judge Paul Conner From: bruceha2000@netscape.net Sent: Wednesday, June 15, 2016 7:29 PM To: ray Cc: Paul Conner Subject: Re: 54 Central construction Following up on my phone call earlier today as yet unanswered. Building is going on at 54 Central. Last week they ripped the second floor off of both the original house and the garage/den/masterbed addition put on by the Andersons nearly 30 years ago. The second floor over the garage was added starting this week. Today they were creating the new north wall for the second floor of the original house. They put 2" rigid foam on the outside overlapping the first floor wall which had been stripped of its siding and I was told they are going to put 2" foam on the outside of that as well. This increases the nonconformity of the house by encroaching even more into the side setback. As it stood prior to today, the NW corner (outside of siding) was 3' 2" from the lot line. The NE corner approximately 2.5', well into the "no build zone" under current regulations. Tony said it was legal but the words he was using sounded like he was talking about lot coverage whereas I was talking about setback. My understanding from the zoning regulations is that under no circumstances will a permit be issued with a setback of less than 3'. 1 see this as a violation of their permit which should be dealt with ASAP as I expect they will be building the east and west walls starting Thursday. I told the construction foreman about the "max 3' setback limit at the outside of the siding" regulation over a week ago so that this would not be an issue. At the time I was talking to him about the planned addition replacing the front porch, not having considered they would be altering the north wall other than extending it -6' in height. They both clearly know that the majority of the original house is within the 3' setback on the north side. Bruce Alvarez CITY OF SOUTH BURLINGTON ZONING PERMIT APPLICATION Applicant: A n -� k p V-1 se, � f9— 1 Application No: Applicant Mailing Address: Sq U,-,+vJ Ave—, 5���� ����� ✓1 A �'on . l Applicant Email: `i 0�'.#%� Q+� �� I C'o ✓Y-\ Property Street Address:`? (.�C�✓�rU� �j �%f�, �l� l�l-f F [office use only) OSYD? J / Daytime phone: I o 1,ray60 603� tAck✓la+D,- VTnSAns Property Owner: YID Dv,)j Parcel Size: Sso S4T Property Owner Mailing Address:,gy ctyJrcJ -Ajf .,SoxA Eak -�vn, 0-Tax Parcel ID No.0330-oto�l% 1. PROPOSED project including building dimensions (describe): fR�O-YIL L4f'e Q 50A6•/� Ske)q /t✓ �'j (Lt' %of +C1 ay1fo0.rA oO -5Ae,-J Coo)" V)11% f�o (�DOf ar, 6e)vtj -g54, At lateV► WJ )q. A s/ -oc7T deL 0Ve,C'X'S�,�✓19 ��a�� pb�C�� f-040' J Jo x 3. s' roof Je.---k o-,/o,c e y 1 s4,',n1 9 o c-( e- ObaF , C)o a r 2. Present U E(S) of the property: Single family home on its own parcel [--]Other (please state the USE per Land Development Regulations- retail, general office, multifamily residential, etc.): 3. List all present structure(s) on property (describe including dimensions or square footage of each): Oi? e- S�eG p 1 ' R awwe a-5�o.fv havne, v-)A 1068.-75 ,sq• 0 44ocn+, 1 06.S S4, 4. fol l 4. Does,tthhroject include a proposed change of USE? W/ No (the property will still be used for the same purpose) QYes (please state proposed changed or added USES per Land Development Regulations- retail, general office, multifamily residential, etc.): 5. ESTIMATED total cost of improvements (materials and labor): $ J o 00c-) 6. Building footprint - i.e. size in sq.ft of main floor of house jand all attached and detached structures including enclosed breezeways, garages, and sheds (describe): Existing: / 068. 75 F1 Proposed: 048.75 8,l Rene J e- /1-MR- -�Ae- - 7. Total square feet of other impervious surfaces on site (i.e. driveways, patios, decks) Existing: % 7J .59. F4. Proposed: 6 1�• 8. ATTACH SKETCH PLAN OR SITE PLAN (not required if project consists ONLY of interior renovations or replacement of existing roof, siding, etc. in the exact same size) 1 9. APPLICANT/OWNER CERTIFICATION The undersigned property owner hereby consents to submit this application and understands that if the application is approved, the Zoning Permit and any attached conditions will be binding on the property. r)A" " A vn�kD\f\v 5e-4i , Property Owner PRINT Date The undersigned applicant hereby affirms that the information presented in this application is true, accurate and complete. "��m JEW A ofhavl. se-'41J 3 9 16 Applicant Signature J PRINTAIAME Date OFFICE USE ONLY — ADMINISTRATIVE OFFICER ACTION — OFFICE USE ONLY DATE Received: Identification of proposed use: PROPOSED USE TYPE: Date of SITE PLAN approval/denial Date of SUBDIVISION approval/ denial FEE Received: $ Date of CONDITIONAL USE approval/ denial Date of appeal VARIANCE approval/ denial Permitted Approval Date Approval Date Approval Date Approval Date Identification of zoning district: Conditional Denial Date Denial Date Denial Date Denial Date Date of MISCELLANEOUS approval/ denial Approval Date Denial Date Provided applicant copy of URBEC or VCBE Standards Handbook or❑Not Applicable APPROVED Approval Date Permit EFFECTIVE date DENIED Denial Date FINAL ADMINISTRATIVE OFFICER ACTION ZONING PERM IT Administrative Officer's Signature Permit EXPIRATION date REASON for DENIAL Notice of Appeal Rights: Any interested person may appeal this decision by filing a written Notice of Appeal with the clerk of the Development Review Board within fifteen [15] days of the date of this decision. The notice of appeal must be accompanied by a filing fee of $223.00. This permit does NOT authorize commencement of any development activity approved by the permit until the permit takes effect as set forth above. Site modifications and improvements made prior to this permit becoming effective may be subject to removal and site restoration if a timely appeal is commenced. NOTE: The applicant or permittee retains the obligation to identify, apply for, and obtain relevant state permits for this project. Call (802) 879-5676 to speak with the regional Permit Specialist. 2 SKETCH VIEWS C 54 CENTRAL AVE FEBRUARY 17, 2016 brown + davis design 11 winding brook road jencho, vermont 05465 info 8028991155 1 m �' info@brownanddavis corn www brownanddavis corn @ 2016 blown + davis design ■ 11111111M low I ray From: ray Sent: Thursday, March 13, 2014 3:38 PM To: Sheldon Katz; Jim Barlow Subject: RE: 54 Central Avenue Improvements Yes, normally one would have to begin a project within that time period, but since you have unique circumstances which we feel comply with the "unless there is a reasonable amount of objective evidence of intent to pursue the project" statement, you would not need to begin until all the legal action has been resolved. Ray Belair Administrative Officer City of So. Burlington 575 Dorset Street So. Burlington, VT 05403 802-846-4106 www.sburl.com www.sbpathtosustainability.com Notice - Under Vermont's Public Records Act, all e-mail, e-mail attachments as well as paper copies of documents received or prepared for use in matters concerning City business, concerning a City official or staff, or containing information relating to City business are likely to be regarded as public records which may be inspected by any person upon request, unless otherwise made confidential by law. If you have received this message in error, please notify us immediately by return email. Thank you for your cooperation. From: Sheldon Katz[mailto:sheldonkatz@comcast.net] Sent: Monday, March 03, 2014 10:41 AM To: ray; Jim Barlow Cc: she[don@vermontlegaIresearch.com Subject: RE: 54 Central Avenue Improvements Thank you Ray, Just to clarify, six months from the date of a zoning permit? Thank you for the clarification. Sheldon M. Katz 54 Central Avenue South Burlington, VT 05403 802-658-3723 sheldonkatz@comcast.net From: ray [mailto:raynsburl.com] Sent: Monday, March 03, 2014 10:28 AM To: Sheldon Katz; Jim Barlow Subject: RE: 54 Central Avenue Improvements Sheldon, I understand your situation and have reviewed the Land Development Regulations (LDRs) to see what is allowed under this circumstance. Pursuant to Section 17.04 (A) of the LDRs, permits expire six (6) months from the date of issue "unless there is a reasonable amount of objective evidence of intent to pursue the project..." Based on the circumstance you have described, we are willing to take the position that you meet this test and therefore your permit will not expire if you start more that the six (6) months from the date of permit issuance. Ray Belair Administrative Officer City of So. Burlington 575 Dorset Street So. Burlington, VT 05403 802-846-4106 www.sburl.com www.sbpathtosustainability.com Notice - Under Vermont's Public Records Act, all e-mail, e-mail attachments as well as paper copies of documents received or prepared for use in matters concerning City business, concerning a City official or staff, or containing information relating to City business are likely to be regarded as public records which may be inspected by any person upon request, unless otherwise made confidential by law. If you have received this message in error, please notify us immediately by return email. Thank you for your cooperation. From: Sheldon Katz [mailto:sheldonkatz@comcast.net] Sent: Friday, February 28, 2014 2:07 PM To: ray; Jim Barlow Cc:'Sheldon Katz' Subject: RE: 54 Central Avenue Improvements Ray, We cannot start yet. In Amy 2013, the Alvarezes sued us in superior court to enjoin us from doing anything that would harm their tree, and according to their expert, the excavation necessary for the approved changes would harm the tree. The court issued a preliminary injunction, so we have been we have been delayed going on a year now. The case is still pending. Therefore, we should have until at least April 2015 or longer to apply for a permit. Sheldon M. Katz 54 Central Avenue South Burlington, VT 05403 802-658-3723 sheldonkatz@comcast.net From: ray [mailto:rayC)sburl.com] Sent: Friday, February 28, 2014 1:26 PM To: Sheldon Katz; Jim Barlow Subject: 54 Central Avenue Improvements Sheldon, Thank you for the revised survey plat you dropped off on 2/26/14. 1 have reviewed it and it appears to comply with the Judgment Order. I I would encourage you to submit a zoning permit application to construct the improvements before April 7, 2014 (1 year + 30 days from the Court Order). This would allow me to issue the permit and would give you six (6) months from the date of issuance of the permit to start the project. If you have started the project before this deadline, the permit would not expire. If you have any questions, please let me know. Ray Belair Administrative Officer City of So. Burlington 575 Dorset Street So. Burlington, VT 05403 802-846-4106 www.sburl.com www.sbpathtosustainabilitv.com Notice - Under Vermont's Public Records Act, all e-mail, e-mail attachments as well as paper copies of documents received or prepared for use in matters concerning City business, concerning a City official or staff, or containing information relating to City business are likely to be regarded as public records which may be inspected by any person upon request, unless otherwise made confidential by law. If you have received this message in error, please notify us immediately by return email. Thank you for your cooperation. ray From: Sheldon Katz <sheldonkatz@comcast.net> Sent: Friday, February 21, 2014 10:31 AM To: ray Cc: Paul Conner; Jim Barlow; Pat Nowak; 'Sheldon Katz' Subject: 54 Central ave survey Ray, We respectfully ask you to reconsider requiring yet another rendition of the survey. There are several reasons why what was submitted should suffice. I explained these to Jim Barlow, on whose advise you said you relied, and he did not say that it would be unreasonable to approve what we submitted as compliant. 1. At trial, the city argued that no survey showed the exact distance between the line and the current structure. There was a survey that showed the distance, but the distance was based on the surveyor measuring his own survey, which used a scale of one inch to ten feet. The surveyor, Mr. Robenstien, noted that because of the scale and because he had not measured on the property, the measurement was accurate within one foot. He used the notation "+/-," which, he explained, is commonly used by surveyors. The city argued that was not good enough, and the surveyor actually had to measure the distance at the property. So we spent several hundred dollars to have Mr. Robenstien come out again. I have now submitted the result of that new survey, which shows the distance Mr. Robenstien measured and I also submitted a previous document in which the Mr. Robenstien showed the proposed improvements, which of course are not in place so cannot be actually measured. Together, these two documents show exactly what the city argued for and what court ordered. If the current structure and proposed improvements are shown on one document, it would look cluttered and difficult to ascertain. The approved improvements are just one foot from the current structure, and at one inch to ten feet, the difference between the lines will be nearly imperceptible. And then it will require additional text explaining what is portrayed, adding further clutter. What we have submitted is far clearer. 3. We have probably visited Mr. Robenstien's office a dozen or more times trying to satisfy the city's requests and demands. Mr. Robenstien is incredulous — in his decades of experience, he has never a property owner requested to do what the city has requested of us. For our efforts, we were unjustly and ignominiously accused of fraudulently forging or changing survey documents, which would never even occurred to either us and which neither of us would even consider doing if it had. 4. We have already spent many thousands of dollars and hundreds of hours just for approval of very modest improvements. And the city spent thousands and if not tens of thousands of dollars opposing those modest improvements, which the environmental court approved. We submit it is time to take a practical approach and approve the submission. We respectfully request that you reconsider and issue a letter to us stating that the conditions have been timely satisfied. Thank you for your kind consideration and attention. Claudia Berger & Sheldon M. Katz 54 Central Avenue South Burlington, VT 05403 802-324-6324 802-658-3723 sheIdonkatz@comcast.net 2015 VT 86 Page 1 of 8 Alvarez v. Katz and Berger (2014-385) 2015 VT 86 [Filed 19-Jun-2015] NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press. 2015 VT 86 No. 2014-385 Bruce Alvarez and Janet Alvarez u Sheldon M. Katz and Claudia Berger Dennis R. Pearson, J. Supreme Court On Appeal from Superior Court, Chittenden Unit, Civil Division April Term, 2015 Norman Williams and David A. Boyd of Gravel & Shea PC, Burlington, for Plaintiffs -Appellees. Claudia Berger and Sheldon M. Katz, Pro Ses, South Burlington, Defendants -Appellants. PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ. ¶ 1. EATON, J. New England poet Robert Frost once observed that "[g]ood fences make good neighbors." Robert Frost, Mending Wall, in North of Boston (Edward Connery Latham ed., 1977). The same, it appears, cannot be said of good trees. This is a case of protracted litigation, with extensive motion practice, between neighbors over a maple tree. For the reasons stated herein, we vacate the injunction and remand to the trial court for entry of judgment in favor of appellants Claudia Berger and Sheldon Katz and for determination of the form of declaratory relief in their favor regarding removal of the encroaching roots and branches from the Berger/Katz property. http://info.libraries.vermont.gov/supct/current/op20l4-385.html 6/22/2015 2015 VT 86 Page 2 of 8 ¶ 2. Berger and Katz own property at 54 Central Avenue in South Burlington in the Shelburne Bay area. The Alvarezes own the adjoining lot just to the north at 52 Central Avenue. The property is part of a residential neighborhood consisting of shallow lots with a limited view of Lake Champlain. ¶ 3. The maple tree in question is about sixty-five years old and stands about sixty-five feet tall. The trunk or stem of the tree is located entirely on the Alvarez property, approximately two feet from the property line. Although the superior court considered the tree to "effectively" be on the property line, the parties agree that the property line does not pass through the trunk of the tree, but lies to the south of the tree trunk. Further, there is no evidence that the tree was either planted as, or intended to be depictive of, the property boundary. When the Alvarezes bought their property approximately twenty-five years ago, the tree was already about one foot in diameter at the base. Approximately half of the branches and roots from the tree now cross the property boundary and encroach onto the Berger/Katz lot. Some roots extend under the existing deck on the Berger/Katz home. ¶ 4. For several years Berger and Katz have sought to expand their home by constructing a two-story addition on the rear which would occupy roughly the same existing footprint as the house and deck at present. Berger and Katz have received the necessary permits for construction of the addition. The plans for the construction of the addition to the Berger/Katz residence would necessitate cutting the roots and branches that are encroaching onto their property. This could encompass up to half of the tree's roots and branches. ¶ 5. Efforts to amicably resolve the problem of the maple tree in light of the planned Berger/Katz addition went for naught. In 2013, when Berger and Katz considered taking unilateral action to trim the tree's roots and branches, the Alvarezes filed for and received a temporary injunction, and later a permanent one. The superior court found it more likely than not that removal of 50% of the tree's roots and branches as contemplated would result in the premature death of the tree, perhaps within five years and probably within ten from the time of cutting. The final injunction barred the trimming of more than 25% of the roots and branches of the tree. http://info.libraries.vermont.gov/supct/current/op20l4-385.html 6/22/2015 2015 VT 86 (. , Page 3 of 8 ¶ 6. The trial court granted the temporary injunction, employing what it dubbed as the "urban -tree rule." The moniker attached to this theory stemmed from the trial court's belief that California, New York, and New Jersey place restrictions on the right of an adjoining landowner to trim roots or branches intruding onto their land from a neighbor's property due to the urban nature of those states. Under the "urban -tree rule," as described by the trial court, trimming the roots or branches of an encroaching tree may be proscribed if the trimming will destroy the tree. Although the judge hearing the permanent injunction questioned the validity of the "urban -tree rule," he felt it improper to apply a different legal analysis, relying upon it as the "law of the case." ¶ 7. This appeal from the permanent injunction followed. We review the superior court's decision to grant injunctive relief for an abuse of discretion. Obolensky v. Trombley, 2015 VT 34, ¶ 18, Vt. _, A.3d _. "We will not reverse the trial court's decision if the record below reveals any legalgrounds that would justify the result." Alberino v. Balch, 2008 VT 130, ¶ 7, 185 Vt. 589, 969 A.2d 61 (mem.). ¶ 8. Appellants allege the superior court erred in granting an injunction because the common law allows for an absolute right of a landowner to trim intruding branches and roots regardless of the impact on the offending tree; because there is no showing that the cutting would cause irreparable harm sufficient to support an injunction; and because injunctive relief results in a taking of appellant's property without compensation. Because we reaffirm Vermont's long-standing right of a property owner to trim branches and roots from an encroaching tree without regard to the impact that such trimming may have on the health of the tree, and vacate the injunction on that basis, we do not reach appellant's other arguments. 19. Vermont has long recognized ownership of property to include the ownership of that which is below the ground and that which is attached overhead. Stratton v. Lyons, 53 Vt. 641, 643 (1881) ("[W]hoever is in possession of the surface of the soil is in law deemed to be in possession of all that lies underneath the surface. Land includes not only the ground or soil, but everything attached to it, above or below."). The right of a property owner to trim non -boundary trees back to the property line cannot be gainsaid. This right has been clear for at least the last 100 years. Cobb v. W. Union Tel. Co., 90 Vt. 342, 344, 98 A. 758, 759 (1916) ("[I]t is a sound principle that where a tree http://info.libraries.vermont.gov/supct/current/op20l4-3 85.html 6/22/2015 2015 VT 86 Page 4 of 8 stands wholly on the ground of one and so is his tree, any part of it which overhangs the land of an adjoining owner may be cut off by the latter at the division line."). The superior court considered this case to be one of first impression in Vermont because of the anticipated adverse —and likely fatal —effect the proposed root -and -branch cutting would have on the encroaching tree, distinguishing this situation as an exception to the Cobb rule. The attempt to distinguish Cobb is inconsistent with its holding. Further, the "urban -tree rule" does not enjoy the support attributed to it by the superior court. ¶ 10. As a starting point, the law recognizes a distinction in treatment between trees that are on the boundary line ("line trees") and those on one side of a property line that intrude via branches, roots, or both onto neighboring property. A tree standing on the division line between adjoining proprietors, such that "the line passes through the trunk or body of the tree above the surface of the soil, is the common property of both proprietors as tenants in common." Skinner v. Wilder, 38 Vt. 115, 116-17 (1865). Neither may hew down his part of the tree to the property line and destroy the part belonging to the other. Id. at 117. ¶ 11. The property line here does not pass through the trunk or body of the tree, a distinction which affects the rights each party has concerning the tree. The superior court was incorrect that this tree is "effectively" a line tree. A line tree enjoys clarity under the law; either the property line passes through the stem of the tree or it does not. The former is a line tree, the latter is not. Absent the property line passing through the tree trunk, it cannot be considered a "line tree," and thus it is not owned by the parties as tenants in common. Id. at 116-17. The tree belongs to the Alvarezes and is not commonly owned. ¶ 12. The superior court's determination that this case is one of first impression requires an exceptionally narrow reading of Cobb. Cobb involved the trimming of two trees belonging to Cobb but encroaching into the right of way of the Rutland Railroad. The trees were on the Cobb property, a short distance from the right-of-way line, with branches from both trees and the main trunk of one overhanging into the right of way. At the direction of the railroad, agents of Western Union cut off the branches of one tree and the main trunk of the other where they overhung into the right of way. No trespass onto Cobb's land occurred during the cutting. http://info.libraries.vermont.gov/supct/current/op20l4-385.html 6/22/2015 2015 VT 86 ( Page 5 of 8 ¶ 13. In considering Cobb's claim for damages for the cutting of his trees, this Court stated: "we are satisfied that it is a sound principle that where a tree stands wholly on the ground of one and so is his tree, any part of it which overhangs the land of an adjoining owner may be cut off by the latter at the division line." Cobb, 90 Vt. at 344, 98 A. at 759 (emphasis added). Cobb did not suggest any limitation on the right to cut encroachments —in fact, quite the opposite is true: M encroaching part of the tree may be removed. Id. The Cobb Court recognized the right to cut off the main trunk of one of the trees where it entered the right of way. Any limitation in Cobb to "non -fatal" cutting as construed by the court below is not supported by the language or facts of that case. ¶ 14. In the ninety-nine years since Cobb was decided, our legislature has not seen fit to modify its holding by enacting any statute imposing a limitation on the cutting of encroaching trees. The right to cut encroaching trees where they enter the land of another, without regard to the impact on the encroaching tree by such cutting, is well -established under Vermont law. ¶ 15. Appellants assert that every jurisdiction to consider the issue has universally recognized the Cobb rule of self-help by permitting cutting of the encroaching tree to the extent of encroachment. While courts have imposed limitations in a few cases, the Cobb rule enjoys extremely widespread support. See, e.g., Harding v. Bethesda Reg'1 Cancer Treatment Ctr., 551 So. 2d 299, 302 (Ala. 1989); Cannon v. Dunn, 700 P.2d 502, 503 (Ariz. Ct. App. 1985); Bonde v. Bishop, 245 P.2d 617, 620 (Cal. Dist. Ct. App. 1952); McCrann v. Town Plan & Zoning Comm'n, 282 A.2d 900, 906 (Conn. 1971); Sterling v. Weinstein, 75 A.2d 144, 148 (D.C. 1950); Gallo v. Heller, 512 So. 2d 215, 216 (Fla. Dist. Ct. App. 1987) (per curiam); Whitesell v. Houlton, 632 P.2d 1077, 1079 (Haw. Ct. App. 1981); Lemon v. Curington, 306 P.2d 1091, 1092 (Idaho 1957); Toledo, St. Louis and Kan. City R.R. Co. v. Loop, 39 N.E. 306, 307 (Ind. 1894); Pierce v. Casady, 711 P.2d 766, 767 (Kan. Ct. App. 1985); Melnick v. C.S.X. Corp., 540 A.2d 1133, 1135 (Md. 1988); Michalson v. Nutting, 175 N.E. 490, 491 (Mass. 1931); Holmberg v. Bergin, 172 N.W.2d 739, 744 (Minn. 1969); Jur eg ns v. Wiese, 38 N.W.2d 261, 263 (Neb. 1949); Wegener v. Sugarman, 138 A. 699, 700 (N.J. 1927); Loggia v. Grobe, 491 N.Y.S.2d 973, 974 (Dist. Ct. 1985); Jones v. Wagner, 624 A.2d 166, 168 (Pa. Super. Ct. 1993); Rosa v. Oliveira, 342 A.2d 601, 605 (R.I. 1975); Lane v. W.J. Curry & Sons, 92 S.W.3d 355, 364 (Tenn. 2002); Gostina v. Ryland, 199 P. 298, 301 (Wash. 1921). It is clear, http://info.libraries.vermont.gov/supct/current/op20l4-385.html 6/22/2015 2015 VT 86 Page 6 of 8 however, that the right to self-help extends only to the property line. Under the self-help remedy, a landowner subject to encroachment may not cross the property line and cut or remove that part of a tree or hedge which has not encroached. Wegener, 138 A. at 700. ¶ 16. On the other hand, what the superior court dubbed the "urban -tree rule" has received limited support. One California decision imposes a duty to act reasonably in exercising the self-help remedy. Booska v. Patel, 30 Cal. Rptr. 2d 241, 245 (Ct. App. 1994). Without discarding the self-help rule, Booska holds that in exercising it one must act reasonably toward the neighboring property owner. Id. ¶ 17. An unreported New York decision from a lower court limits the right of self-help removal of encroaching branches and roots to situations where the exercise of that right does not destroy or injure the main support system of the tree. Fliegman v. Rubin, 781 N.Y.S.2d 624 (N.Y. App. Term 2003) (unreported). Fliegman has received scant support since its issuance. ¶ 18. Examination of the common law reveals that the right to cut encroaching boughs and roots historically counterbalanced a landowner's right to grow shade trees on his land, regardless of the impact those trees may have in casting shade or encroaching upon the neighboring property. As against adjoining proprietors, the owner of a lot may plant shade trees upon it, or cover it with a thick forest, and the injury done to them by the mere shade of the trees is damnum absque injuria [loss without injury]. It is no violation of their rights. We see no distinction in principle between damage done by shade, and damage caused by overhanging branches or invading roots. The principle involved is that an owner of land is at liberty to use his land, and all of it, to grow trees. Their growth naturally and reasonably will be accompanied by the extension of boughs and the penetration of roots over and into adjoining property of others.... The neighbor, [though] without right of appeal to the courts if harm results to him, is, nevertheless, not without remedy. His right to cut off the intruding boughs and roots is well recognized. His remedy is in his own hands. The common sense of the common law has recognized that it is wiser to leave the individual to protect himself, if harm results to him from this exercise of another's right to use his property in a reasonable way, than to subject that other to the annoyance, and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious. http://info.libraries.vermont.gov/supct/current/op20l4-385.html 6/22/2015 2015 VT 86 �, Page 7 of 8 Michalson, 175 N.E. at 490-91 (quotations and citations omitted). Thus, at the common law, there was no claim for damages caused by encroaching roots or branches. The remedy was one of self- help, allowing the cutting of roots and branches to the extent of encroachment. ¶ 19. Where other jurisdictions have departed from the common-law rule and allowed actions for damages as a result of encroaching roots or branches, they have generally relied upon nuisance principles. See, e.g., Curry & Sons, 92 S.W.3d at 360-63 (surveying approaches from across the country regarding the availability of remedies beyond self-help). Even where such actions have been permitted, those jurisdictions continue to recognize the right to self-help. See, e.g., id. at 360 ("Although the jurisdictions uniformly agree that self-help is an appropriate remedy, they are divided on the availability of any remedy beyond self-help."). ¶ 20. Of course, the issue of whether a nuisance claim might exist for the encroachment of roots and branches from the Alvarezes' tree is not presently before the Court. Rather, this case presents the competing interests of neighboring property owners. On the one hand, Berger and Katz have an interest in using their land, which they have purchased and upon which they pay taxes, as they see fit, within permissible regulations, free from limitations imposed by encroaching roots and branches from the neighbors' tree, which they did not invite and for which they receive no benefit. The Alvarezes seek to restrict the use of the Berger/Katz property by preventing the removal of branches and roots on land that is not theirs and for which they have given nothing of benefit to Berger and Katz for suffering the encroachment. On the other hand, the Alvarezes wish to continue to enjoy their tree, which has been there for many years, without placing its viability in peril due to the construction that Berger and Katz wish to undertake. ¶ 21. The law in Vermont, and overwhelmingly from other jurisdictions, resolves these competing interests in favor of the right of Berger and Katz to enjoy the use of their land by allowing them the right to remove the encroaching roots and branches. Potential limitations requiring that such removal be done reasonably and not negligently are not before the Court here. If the Alvarezes had the right to have their tree encroach onto the Berger/Katz property, the obvious next question would be to what extent the encroached -upon property owner must suffer such an encroachment. We would be hard-pressed to create a workable rule which would serve to limit encroachments in number, http://info.libraries.vennont.gov/supct/current/op20l4-385.html 6/22/2015 2015 VT 86 Page 8 of 8 extent, or distance that a property owner must tolerate from neighboring trees before allowing the property owner to exercise self-help. Although we are cognizant that on some occasions the exercise of self-help may result in the immediate or eventual loss of an encroaching tree, given the long - recognized rule in Vermont and its widespread support elsewhere, we decline to depart from the common-law rule in favor of the approach adopted by the superior court. ¶ 22. The Alvarezes also argue that 13 V.S.A. § 3606 prevents Berger and Katz from "destroying" the maple tree. This timber statute did not create a cause of action, but rather allowed cumulative damages for injuries actionable at common law. Vaillancourt v. Dutton, 115 Vt. 36, 38, 50 A.2d 762, 764 (1947) (citing Hathaway v. Goslant, 77 Vt. 199, 59 A. 835 (1905)). This statute is based upon trespass. Id. at 37-38, 50 A.2d at 763-64 (noting that statutory modification of common- law action of trespass does not introduce a new cause of action). The Alvarezes do not allege that trespass occurred here, and the timber statute creates no bar to the remedies available to Berger and Katz under the common law. 123. The superior court issued both a temporary and permanent injunction, finding that damages for wrongful injury to or destruction of the tree, if proven, would not provide an adequate remedy due to the difficulty of replacement and the value to the landowner. Because of our disposition of this case we need not reach this issue. ¶ 24. Lastly, Berger and Katz seek a declaration that the Alvarezes must either remove the offending branches and roots or compensate Berger and Katz for doing so. Consistent with this opinion, Berger and Katz are entitled to the declaratory relief requested. We leave to the trial court upon remand the task of determining the form of declaratory relief concerning removal of the encroaching roots and branches. The decision of the superior court, civil division granting injunctive relief is reversed. The iniunction is vacated and the case remanded for entry of Judgment in favor of Berger and Katz and for determination of the form of declaratory relief in their favor regarding removal of encroaching roots and branches. FOR THE COURT: Associate Justice http://info.libraries.vermont.gov/supct/current/op20l4-385.html 6/22/2015 1, Claudia A. Berger and Sheldon M. Katz 54 Central Avenue South Burlington, VTO5403 802-658-3723 September 20, 2012 Jacalyn Fletcher, Clerk Vermont Superior Court, Environmental Division 2418 Airport Road Barre, VT 05641 Re: Berger & Katz Application, Dkt. Nos. 119-7-10 Vtec& 141-9-1 lVtec Dear Ms. Fletcher: 4 SEP � � tip12 PAGE �~ Enclosed please find Applicants' Response to opponents' September 11, 2011 filing. Thank you for your attention. Very truly yours, C:::�-' Sheldo "atz e: John Klesch Bruce Alvarez STATE OF VERMONT SUPERIOR COURT, ENVIRONMENTAL DIVISION In re. South Burlington CMS 1 U-04_ 54 Central Avenue, South Burlington ) Docket No. 119-7-10 Vtec & 141-9-11Vtec Applicants: Claudia Bergcr and ? Sheldon Katz � Dates of Decisions: July 6, 2010 } August 20, 2011 ) APPLICANTS' REPLY TO OPPONENTS SEPTEMBER I I FILING Opponents made a filing on September 11 and did not serve Applicants until almost one week later. Since the Court did not authorize filings after the initial proposed findings and conclusion, the supplemental filings of opponents and the City were unauthorized filings. If the Court does not strike the opponents' September 1 I filing, it should consider the following: 1. The opponents' contention that the highway department of the City, a party in this action, somehow mistook a water main for property marker, is pure speculation and at odds with the evidence. [Jsing the survey, the highway department found and marked both the southwest and the northwest stakes. As Applicants testified on questioning by the Court, the highway department's northwest marking was right where it would be expected, 44-and-a-fraction feet away from the southwest marking made by the highway department, just as shown on the survey. Thus the opponents' speculation is invalidated. At any rate. the Court could certainly condition approval on a surveyor's attestation that improvements are no less than three feet from the property line. T7ie improvements are not there yet, so this solution makes sense. 2. With regard to plate height, the issue is appropriately before the Court. The board set a plate height condition that the City's own representative and expert witness could not define. It is therefore proper for the Court to do so, and reasonable to define plate height as relative to the floor, not the ground outside the existing structure. 3. Concerning construction cost, the testimony was entered without objection and no exhibit is required. The opponents' contention that the cost will exceed 35 percent, is pure speculation unsupported by any evidence. In any event, the 35 percent rule is not a bar to improvements. As the regulations state, the improvements would be permissible if the improvements meet conditional use requirements. LDR § 4.08F(2). There is no controversy that the improvements meet those requirements. 4. The board's decisions, which were cited, make it clear that it is most concerned with properties on the lake, which, due to their proximity, are, in the board's own words, "visually sensitive." Applicants' property is not on the lake, not anywhere near it. 5. Paragraph 55 of the Applicants' proposed findings is copiously explained and supported by the following paragraphs, specifically ¶T 57 to 62. Paragraph 56 is copiously explained and supported by the following paragraphs, specifically 63 to 84. As explained in detail. the regulations expressly allow proposed improvement of the front porch up to three feet f7om the property line. §§ 3.06J(3), 3.11B(3) & 4.08F(i)(b). Accordingly to unrebutted evidence, it is currently four feet from the property line and is not proposed to be expanded. Contrary to opponents' contention, § 4.08F says nothing about a five foot setback requirement. 6, Opponents' assertion that square footage means finished square footage has no support in the regulations or elsewhere. In !1 60 to 62, the Applicants carefully explained why under the regulations the enclosing the front porch will not increase square footage. Opponents can best understand this by looking at the Court's previous rulings, under which building on the current footprint of the rear deck and adding a story does add square footage. Conversely, 2 building on the current footprint while not adding a story does not add square footage. At any rate, opponents' unsupported interpretation violates the rules of statutory construction, which require that any ambiguity be construed in favor of the landowner proposing improvements. 7. While opponents testified that they offered an alternative, there is no evidence that it was feasible, reasonable, or that it would achieve the Applicants' needs and goals. 8. Mr. Buschcr testified that he did not take into consideration cloud cover at all. 9. The opponents challenge the brightness -- even with the blinds down -- of the north and west facing bedroom over the garage. Their challenge is not based on any evidence and must be disregarded. 10. The Court's May 31, 2012 order expressly granted summary judgment as to the proposed front porch, just as it did with the new screened rear deck and two dormers. The Applicants quoted the Court word for word in ! 4. The quote leaves no question that the proposed new front porch has been approved. 11. Ms. Henderson -King was not in the opponents' home because, unlike Mr. Buschcr, she was not specially invited in. Further, Ms. Henderson -King testified based on numerous photographs that were shown to her both before and during trial. More to the point, Mr. Buscher's testimony about the `feel" of the space is irrelevant to the issue because "feel" is not in the land use regulations. Rather, the issue is significant adverse impact on views and sunlight. On that point, the Court remarked to Mr. Buschcr that based on the site visit, Mr. Buscher's conclusions were unwarranted. As the Vermont Supreme Court has held, the Court can make findings grounded on its knowledge acquired from a site visit. In re Quechee Lakes Corp., 154 Vt. 543, 551, 580 A.2d 957, 962 (1990). In this case, the question comes down to 3 what the Court can believe: a regular City consultant paid to support the City's position or its own eyes. The question answers itself Dated this C&y of September 2012 at South Burlington, Vennont. CLAUDIA BERGER jand "HELD i,f' KA, TX By:=_— Clau a B rger, Sheldon M. Ka&� 5 4 l STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, V ERMONT 05402-1507 SCEVEN F STITZEL PATTI R. PAGE ROBERT E FLETCHER JOSEPH S. McLFAN AMANDA S E LAFFERTY JOHN H. KLESCH DINA L ATWOOD DAVID W RUGH* '(ALSO ADMITTED IN MD) Jacalyn Fletcher, Manager Vermont Superior Court Environmental Division 2418 Airport Road, Ste. 1 Barre, VT 05641-8701 TELEPHONE (802 660-2555) FAX (802 660-2552) WWW FIRMSPFCOM JKLESCH((v,FIRMSPF COM September 6, 2012 Re: Berger & Katz Expansion Application Docket Nos. 119-7-10 Vtec & 141-9-11 Vtec Dear Jacalyn Enclosed please find the City of South Burlington's Response to "Applicants' Proposed Findings of Fact and Conclusion of Law" dated August 28, 2012 for filing in the above -captioned matters. rely, JoYin H. Klesch Enclosure cc: Sheldon Katz, Esq. & David Edwards; Mr. Bruce H. Alvarez Ray Belair, Administrative Officer SON12-058 (Berger & Katz) JHK to Court.cor STITZEL, PAGE & FLETCHER, PC ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 BLiRLINGTON, VERMONT 05402-1507 STATE OF VERMONT SUPERIOR COURT In re: BERGER & KATZ EXPANSION APPLICATION ENVIRONMENTAL DIVISION DOCKET NOs. 119-7-10 Vtec And 141-9-11 Vtec CITY OF SOUTH BURLINGTON'S RESPONSE TO "APPLICANTS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW" DATED AUGUST 28, 2012 The City hereby responds to certain of the proposed findings of fact and conclusions of law submitted by Applicants dated August 28, 2012. The City was provided a copy of this recent filing by Applicants on September 4, 2012. The City submits that many of the faulty factual and legal contentions contained in Applicants' September 4, 2012 filing have been addressed in previous filings of the City. The City endeavors here to respond to a handful of contentions which appear to be new compared to Applicants' previous June 7, 2012 filing. The City lists its points according to Applicants' paragraph numbers in their September 4, 2012 filing. ¶ 11, 15, 55, 57• The City- does not agreel that the 2-story addition in the location of the existing rear deck and the enclosure of the front porch, if both are constructed at least five feet from the side yard setback, are permissible without regard to sunlight and views impacts. Under SBLDR § 4.o8(F)2, alterations to a non -conforming structure in the Queen City Park District can be made only if a proposed alteration or expansion does 1 Applicants' representations that the parties "agree" are entirely false. They point to no statement or writing of "agreement" by the City, and even if Mr. Belair did testify as Applicants claim, it is the Development Review Board, not the Administrative Officer, who has authority to decide an application under the governing SBLDR. 2 Section 4.o8(F) in the March 15, 2011 SBLDR and section 4.o8(G) in the January u, 2010 are identical. { STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 BURLINGTON, VERMONT 0.5402-1.507 not adversely affect views of adjoining properties and access to sunlight of adjoining/nearby properties. The Court has already ruled, and Applicants have already conceded, that the existing structure is non -conforming. See May 30, 2012 Decision on Cross -Motions for Summary Judgment at 5 ("Applicants contend that ... their property is currently non -complying."). The Court has also, therefore, ruled that Applicants must satisfy SBLDR § 4.o8(F) regardless of whether the proposed additions to the structure are located so as to encroach within the 5' side yard setback. Id. at 8. The plain language of § 4.o8(F) does not make its requirements applicable only where the additions will themselves encroach into the setback; rather, aU alteration which increases the square footage of the non -conforming structure triggers the 4.o8(F) criteria. ¶ 62. The Court has already ruled that, as a matter of law, enclosing a front porch represents an increase in square footage. See February 4, 2011 Decision and Order on Appellant-Applicants'Motion for Partial Summary Judgment at 6 ("the proposed enclosure of the front porch ... increases the square footage of the building."). ¶ 65, 66, 124. Act 25o aesthetics cases do not present the appropriate standard to apply here because, inter alia, the Act 25o aesthetics criterion relates to impacts on public resources, not on view impacts to a private property. See 10 V.S.A. § 6o86(a)(8) (whether there is "undue adverse effect on the scenic or natural beauty of the area, aesthetics, historic sites or rare and irreplaceable natural areas."); In re Times & Seasons, LLC, 2oo8 VT 7, ¶ 8,183 Vt. 336, 341, 95o A.2d 1189, 1194 ("An adverse impact is considered undue if any one of the three following questions is answered in the affirmative: (i) does the project violate a clear, written community standard intended to STITZEL, PAGE & FLETCHER, PC ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1.507 BURLINGTON, VERMONT 05401-1507 preserve the aesthetics or scenic, natural beauty of the area; ...") (bold/underline emphasis added, italics in original). Further, there is no indication in the SBLDR of intent on the part of the South Burlington City Council to have incorporated Act 250 criterion 8 review standards for SBLDR § 4.o8(F) and there is thus no valid basis to do so. ¶ 92. The City's trial notes do not indicate that Mr. Buscher "conceded that he did not take into account the effect of indirect sunlight" in reviewing sunlight impacts to the Alvarez property, and the City's counsel recalls no such concession. ¶ 115. The City's trial notes do not indicate that a witness testified or offered an exhibit supporting the contention in paragraph 115, and the City's counsel recalls no such evidence. T118,119. The suggestion that there can be no impact to sunlight on a cloudy day is self -evidently false. If one assumes, for example, that a given level of cloud cover reduces the brightness of sunlight by 50%, then an obstruction between the location of the sun and a structure will still block sunlight even in such cloudy conditions — only the amount or intensity of sunlight being blocked is less than on a cloudless day. The point is proved by virtue of the fact that a person can still see his or her shadow on a cloudy day depending on the opacity of the clouds. ¶ 122. The previous wall color of Applicants' house is not relevant. Further, there was no evidence the City recalls that the current wall color provides "maximum" available reflected sunlight to the Alvarez property. [SIGNATURE PAGE FOLLOWS] DATED at Burlington, Vermont September 6, 2012. STITZEL, PAGE & FLETCHER, P.C. Attorneys for the CITY OF SOUTH BURLINGTON JJ h H. Klesch Jl attery Street, P.O. Box 1507 B rlington, VT 05402 k:\wpdoc\lit\S0N12-032 FOF and COL relpy.lit STITZEL, PAGE & FLETCHER, PC ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 BURLINGTON, VERMONT 05402-1507 4 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STEVEN F STITZFL PATTI R. PAGE ROBERT E. FLETCHER JOSEPH S McLEAN AMANDA S E LAFFERTY JOHN H. KLESCH DINA L ATWOOD DAVID W RUGH* *(ALSO ADMITTED IN MD) VIA HAND DELIVERY Jacalyn Fletcher, Manager Vermont Superior Court Environmental Division 2418 Airport Road, Ste. 1 Barre, VT 05641-8701 TELEPHONE (802 660-2555) FAX (802 660-2552) WWW FIRMSPECOM JKLESCH(wFIRMSPF COM August 27, 2012 Re: Berger and Katz Expansion Application Docket Nos. 119-7-10 Vtec & 141-9-11 Vtec Dear Jacalyn: Enclosed please find the City of South Burlington's Proposed Findings of Fact and Conclusion of Law for filing in the above -captioned matters. Sincerely, John H. Klesch Enclosure cc: Sheldon Katz, Esq. & David Edwards, Esq. Mr. Bruce H. Alvarez Ray Belair, Administrative Officer SON12-053 (Berger & Katz) JHK to Court.cor.wpd STITZEI., PAGE & FLETCHER,PC ATTORNEYS AT LAW 177BATTERYSTREET PO BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT SUPERIOR COURT In re: BERGER & KATZ EXPANSION APPLICATION ENVIRONMENTAL DIVISION DOCKET NOs. 119-7-10 Vtec And 141-9-11 Vtec CITY OF SOUTH BURLINGTON'S PROPOSED FINDINGS OF FACT and CONCLUSIONS OF LAW The City of South Burlington hereby submits the following proposed findings of fact and conclusions of law for the Court's consideration. The City respectfully requests and reserves an opportunity to file a brief response to proposed findings and conclusions as may be submitted by Applicants. The City acknowledges Applicants made such a filing on June 7, 2012, prior to the merits hearing taking place. Should Applicants file no further findings and conclusions, the City will respond to that June 7, 2012 filing no later than September 3, 2012 unless the Court prohibits filing of responses. . Findings of Fact' 1. No evidence of survey data, prepared by a licensed surveyor showing the location of affected property lines and existing and proposed structures, was admitted into the record for its substance.2 2. Because no survey data was admitted for its substance, Applicants have not introduced admissible evidence of the distance to the Katz/Alvarez property boundary I The City understands there are facts which were determined undisputed in the Court's two prior summary judgment decisions. The City does not attempt to restate here all factual findings contained in these decisions. 2 While Appellants' Exhibits 4, 5, and 7 are survey plans that were admitted, these documents were admitted for the limited purpose of demonstrating to the Court what information had been submitted by Appellants in connection with their application(s) to the City. No surveyor appeared to give testimony in connection with any of these survey plans, and the plans are therefore inadmissible for their substantive contents. { J STITZEL, PAGE & FLETCHER, PC ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 BURLINGTON, VERMONT 05402 1507 line from the proposed front deck enclosure and rear two-story addition presented in their applications.3 3- Applicants' house or lot (at 54 Central Avenue) was constructed prior to February 28, 1974• 4- Applicants' property is located in the Queen City Park zoning district. 5. The north wall of Applicants' existing house is less than five feet from the Katz/Alvarez property boundary line. 6. Applicants' proposed development would increase the footprint and square footage of their existing house. Niews- 7. Michael Buscher is a licensed landscape architect and is an expert in matters of views and access to sunlight in the context of landscape and structural design. 8. Views from the Alvarez residence (52 Central Avenue) are oriented to the east, south and west. Due to the circulation through the structure and the positioning of the front porch, many views are oriented out the southeast and southwest corners. Testimony of M. Buscher, see also Exhibit V (TJ Boyle Report). 9. The two windows adjacent to the front porch are the only windows with direct exterior access from the front room of 52 Central Avenue. Id., see Exhibit V Figure 1. 10. Midway along the south fagade of 52 Central Avenue is a pair of double windows from the dining area of the rear room, followed by a smaller window at the eastern end of the south fagade. Exhibit V Figure 2 provides a view of the north fagade 3 This merits hearing circumstance may call for the Court to modify Court's Decision on Cross -Motions for Summary Judgment ¶6. r STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 BURLINGTON, VERMONT Of 54 Central Avenue, directly opposite the south fagade of 52 Central Avenue. Id. 11. Figure 3 provides a view from the 52 Central Avenue front room near the bottom of the staircase looking southwest. Views from the eastern window are mostly focused on the front porch of 54 Central Avenue, but also include the clapboard wall further east of the front porch. Id. 12. If Applicants were permitted to enclose the existing front porch, views from the eastern window of 52 Central Avenue would be almost entirely be of clapboard -sided fagade, not unlike the view shown in Exhibit V Figure 4. Id. 13. Views through the 52 Central Avenue dining area double windows focus on the northern fagade of 54 Central Avenue. The only view that offers relief from the clapboard fagade is from the kitchen area, facing the front porch as shown in Exhibit V Figure 5. Id. 14. Views from the 52 Central Avenue rear room include a rear door to the east with a glass panel, views out a greenhouse window to the east, and views out the window facing the eastern end of the southern fagade of 54 Central Avenue as shown in Exhibit V Figure 6. Views from this eastern facing window look over the existing 54 Central Avenue privacy fence, across the rear lawn area of 54 Central Avenue, and towards the wooded background. These views would be focused on the two-story clapboard extension of the northern fagade featured in the proposed the two-story addition. Id. 15. Other views that will be impacted from 52 Central Avenue to a lesser degree because of orientation or use include the eastern windows of the rear bedroom on the second floor; views from the mud room off of the kitchen on the first floor; and views from the front porch and also from the basement. These views include impact to partial 05402-1507 { { STITZEL, PAGE & FLETCHER. PC ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 BURLINGTON, VERMONT 05402-1507 lake views from the front living room and mudroom of the Alvarez house. Id. 16. The rear facades of both 54 and 52 Central Avenue are currently similar in setback and result in a respectful orientation between the two properties. Id. 17. The proposed rear expansion will relocate the rear fagade of 54 Central Avenue approximately 12' behind the corresponding fagade of 52 Central Avenue. Id. 18. Views from several locations within the structure of 52 Central Avenue will be affected by both the rear and front alterations of 54 Central Avenue. Id. 19. As presented by Applicants, the expanded northern fagade will lack architectural articulation and will be an expansion of a windowless two story fagade of clapboard. Id.; see also Exhibits II3, JJ3,KK2, 22. 20. The two story addition proposed for the rear of 54 Central Avenue would alter views from 52 Central Avenue toward the 1-story privacy screen by replacing existing views over the screen to sky and trees above it with an opaque 2-story clapboard facade. Id.; see also Exhibits LL1, KK1. 21. The proposed project will result in a significant increase of the extent to which exterior glazing of the first floor of 52 Central Avenue focuses on the clapboard fagade of 54 Central Avenue. Id, 22. Views of sky and natural features such as trees and wooded areas are valuable and deemed by architects to be worthy of protection in designing structures. Id. -Sunlight- 23. The Applicants' shade study only focused on the east fagade of 52 Central Avenue, but modeling provided by the applicant clearly indicates impacts to other 4 STITZEL, PAGE & FLETCHER, PC ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 BURLINGTON, VERMONT 05402-1507 elements of this adjoining property. Testimony of M. Buscher, see also Exhibit V (TJ Boyle Report). 24. Materials submitted into evidence by the Applicant do not provide sufficient detail or clarity to assess how access to sunlight from adjoining and/or nearby properties will be impacted by the proposed project. Specifically, the information provided only assesses impacts to the east faeade of 52 Central Avenue, and provides minimal information on what those impacts are. Id. 25. Exhibit T is a "Shadow Visualizations" providing a graphic comparison of possible sunlight impacts from Applicants' proposed development. Images within the shadow visualization compare existing shade patterns to those that would result due to the proposed project. The study indicates there will be minimal impacts to the 52 Central Avenue property during the summer months; that impacts will begin near the fall equinox, become most pronounced near the winter solstice; and become minimal after the spring equinox. During winter months, it appears sunlight will be blocked from portions of the 52 Central Avenue property, with results including additional shade to south -oriented windows. A significant portion of the rear yard extending from the east faeade of 52 Central Avenue will have increased shade, including the southern faeade of the northern portion which extends beyond the kitchen area. Reduced access to sunlight will be noticeable between the hours of io AM and 2 PM. This reduction will include increased shading of the southern window in the kitchen, increased shading of the western greenhouse window and rear door, and increased shading of the south faeade along the mud room area. Id.; see also Exhibit T. 26. Current lighting of the south faeade of 52 Central Avenue results in 5 I f STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 BURLINGTON, VERMONT 05402-1507 reflected sunlight into the rear interior portions of the residence during winter months, even where direct sunlight does not shine on such interior portions. Id. 27. Based on the modeling presented by Applicants, the proposed project will result in a significant decrease in the amount of sunlight that accesses the rear portion of 52 Central Avenue. Id. 28. Access to sunlight is important for quality of life and natural lighting even when such access is to indirect or reflected sunlight. Id., Testimony of B. Alvarez. 29. Access to sunlight is important for quality of life even when skies are not fully sunny, as clouded skies still produce natural sunlight. Id. 30. It is inappropriate to consider the large maple tree in analyzing sunlight impacts to the Alvarez property that would result from Applicants' proposed rear -yard development. The reason is that a large maple tree casts significant shade in warm weather seasons when sunlight is abundant during more hours of the day, temperatures are higher, and shading is desirable, but it does not significantly shade a property in cold weather seasons when maximizing sunlight during limited available sunlight hours for warmth and light is desirable. Stated another way, access to sunlight is most important in Vermont during those times of year when deciduous trees are typically sparsely leaved or bare of leaves. Id., Testimony of B. Alvarez. Conclusions of Law 31. "In this de novo proceeding on their zoning permit application, Applicants bear the burden of proof to show that they are entitled to the zoning permit." See In re Noyes CUPermit, Docket No. 98-7-11 Vtec (Vt. Envtl. Ct., September 26, 2011), slip op. 32. Side yard setbacks applicable to the Queen City Park zoning district are 2 STITZEL, PAGE & FLETCHER, PC ATTORNEYS AT LAW 171BATTERY STREET PO BOX 1507 BURLINGTON, VERMONT 05402-1507 five -feet. Exhibits Q, R. -Failure to Meet SBLDR § 3.o6(J W- 33. Because Applicants' house or lot (at 54 Central Avenue) was constructed prior to February 28, 1974 and is located in the Queen City Park zoning district, and because Applicants propose to expand the existing structure within less than io feet of the Alvarez/Katz property line, Section 3.o6(J)(3) and (4) of the South Burlington Land Development Regulations ("SBLDR") are applicable to the application. 34• SBLDR § 3,o6(J)(3) requires that any request under §§ 3.o6(J)(1)-(3), to expand an existing structure, or place a new structure, to within less than ten (io) feet of any property line, shall include the submission of survey data prepared by a licensed surveyor showing the location of affected property lines, existing and/or proposed structures, and any other information deemed necessary by the Administrative Officer. 35• Because there is no survey information in evidence as required by SBLDR § 3.o6(J)(3), the Applicants' application must be denied and the Court should enter judgment accordingly and there is no need to consider other aspects of their application. -Failure to Meet SBLDR § 3.o6(J)(3)- 36. Because Applicants' proposal is subject to SBLDR § 3.o6(J)(3), they are absolutely prohibited from locating a structure less than three (3) feet from a side property line. 37. Should the Court find that Applicants' proposed construction would result in a structure being less than three feet from the Alvarez/Katz property line, the Court must deny the application and enter judgment accordingly and there is no need to 7 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 BURLINGTON, VERMONT 05402-1507 consider other aspects of their application.4 -Failure to Meet SBLDR § 3.o6(J)(3) and 4.o8(F)(3): Views- 38. Applicants' existing house is a non -complying structure due to its extant encroachment into applicable side yard setbacks. 39• Because Applicants' proposed development would result in an increase in footprint and square footage of the existing house, Applicants must satisfy the requirements of SBLDR § 4.o8(F)(3). 40. SBLDR § 3.o6(J)(3) requires that Applicants' proposed development must not have an undue adverse effect on: (a) views of adjoining and/or nearby properties; (b) access to sunlight of adjoining and/or nearby properties; (c) adequate on -site parking; and (d) safety of adjoining and/or nearby property. 41. SBLDR § 4.o8(F)(3) requires that Applicants' proposed development must not have an adverse effect on: (a) views of adjoining and/or nearby properties; (b) access to sunlight of adjoining and/or nearby properties; and (c) adequate on -site parking. 42. An "adverse effect test must be applied reasonably to prohibit only substantial and material adverse effects." In re Miller, 170 Vt. 64, 69, 742 A.2d 1219, 1223 (1999)• 43• Applicants have the burden of proving that their proposed development 4 The City believes the Court has already so ruled from the bench. 9 9 STITZEL, PAGE & FLETCHER, PC. ATTORNEYS AT LAW 171 BATTERY STREET P0BOX 1507 BURLINGTON, VERMONP 05402-1507 would not adversely impact views from the Alvarez property. 44• Applicants' proposed development would significantly and materiallyy impact views from the Alvarez property in an adverse way. Significance and materiality of adverse view impacts is established by the facts that the Alvarez home is configured such that views from the first floor south facing windows, and to a limited extent some rear second story windows, which now afford views to open space, sky, trees, grassy areas, and wooded areas, would largely be altered to produce views either fully or partially obstructed by or focused on clapboard siding. These impacts are significant to the Alvarez property's current views. These impacts are also material because a reasonable person would find the enjoyment and quality of life associated with occupancy of the Alvarez property thereby diminished.6 Further, there is a partial impact to lake views that would result from enclosure of the front porch and addition of a new covered front porch. Because the total impacts to views from the proposed rear addition, front porch enclosure, and front porch extension would pose substantial and material impacts on the views from the Alvarez property, Applicants have failed to meet their burden. The Court must deny the application and enter judgment accordingly and there is no need to consider other aspects of their application. 45• The woodpile currently (as of the merits hearings in this case) located on Applicants' front porch cannot be considered current conditions of the site because the woodpile is not a structure; rather, it is personal property which can be removed at any 5 Any significant impact, both for sunlight and views, must also be material as a matter of law. 6 See Goldman v. Town of Plainfield, 171 Vt. 575, 576, 762 A.2d 854, 856 (2000) (in context of consumer fraud, a fact is material either if "a reasonable man would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question"). 0 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTF.RYSTREET PO BOX 1507 BURLINGTON, VERMONC 05402-1507 time. Therefore, the Court should find that the extent to which the wood pile currently impacts views from the Alvarez property is irrelevant except to the extent it demonstrates the impact that enclosing the front porch would have on such views if one were to envision clapboard siding in place of the plastic tarp -covered wood pile. -Failure to Meet SBLDR § 3.o6(J)(3) and 4.o8(F)(3): Sunlight- 46. Applicants have the burden of proving that their proposed development would not adversely impact access to sunlight for the Alvarez property. The proposed development would significantly impact access to sunlight for the Alvarez property in an adverse way because the proposed rear addition would cause additional shading on the Alvarez property, in particular during cold weather seasons when daylight is relatively scarce and thus more valuable for light and heat. These impacts are material because a reasonable person would find the enjoyment and quality of life associated with occupancy of the Alvarez property thereby diminished. These sunlight impacts meet the "substantial and material" standard and Applicants have thus failed to meet their burden. The Court must deny the application and enter judgment accordingly and there is no need to consider other aspects of their application. 47. Adverse impact to access to sunlight cannot, as a matter of law, be limited only to consideration of impacts to direct sunlight as the regulations do not limit the impact to "direct" sunlight. Thus, reflected sunlight, natural lighting reaching the interior of a structure, and cloud -filtered sunlight are all required to be considered in determining impacts to sunlight. Indeed, to the extent it is true that Vermont is a relatively "cloudy" place, sunlight is a relatively more precious resource deserving extra care. In other words, relative cloudiness of Vermont skies calls for greater, not lesser, 10 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 BURLINGTON VERMONT 05402-1507 protection of sunlight and that is the context in which the "access to sunlight" standard should be judged. These conclusions all weigh toward finding the sunlight impacts on the Alvarez property that would be caused by the proposed rear two story addition would be significant. 48. While the City respects the opinions of Ms. Henderson -King, her analysis discounts the value of sunlight in cloudy conditions and also improperly factors the large maple tree into her determinations regarding impacts to sunlight. For the reasons described by Mr. Buscher, the Court should not discount impacts to sunlight based on the presence of the large maple tree or Vermont's climate. -Summary Conclusion of Law- 49• Applicants have the burden of demonstrating required survey information, the absence of adverse impacts on the Alvarez property's views, and the absence of adverse impacts on the Alvarez property's access to sunlight. Failure of any of one of these requirements requires, as a matter of law, that the Court affirm the DRB's denial of Applicants' permit application. Because Applicants have failed to meet anyone of these criteria, the Court should enter judgment affirming the DRB's decision. DATED at Burlington, Vermont August 27, 2012. STITZEL, PAGE & FLETCHER, P.C. Attorneys for the CITY OF SOUTH BURLINGTON o ? I , : By: 14 .John H. Klesch 171 Battery Street, P.O. Box 1507 Burlington, VT 05402 SON12-030 (Berger & Katz) FOF and COL.Iit 11 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, V ERMONT 05402-1507 STEVEN F. STITZEL PATTI R PAGE ROBERT E FLETCHER JOSEPH S McLEAN AMANDA S E. LAFFERTY JOHN H KLESCH DINA L ATWOOD DAVID W RUGH* *(ALSO ADMITTED IN MD) Jacalyn Fletcher, Manager Vermont Superior Court Environmental Division 2418 Airport Road, Ste. 1 Barre, VT 05641-8701 TELEPHONE (802 660-2555) FAX (802 660-2552) WWW FIRMSPFCOM JKLESCH(dFIRMSPF COM June 26, 2012 Re: Berger and Katz Expansion Application Docket Nos. 119-7-10 Vtec & 141-9-11 Vtec Dear Jacalyn Unavailable dates for the City of South Burlington in July and August are as follows: • July 9, 13, 18, 24 and 26; and August 10. Thank you. H. Klesch cc: Sheldon Katz, Esq. & David Edwards, Esq. Mr. Bruce H. Alvarez Ray Belair, Administrative Officer SON12-039 unavailable dates cor wpd STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 TELEPHONE (802 660-2555) STEVEN F. STITZEL FAX (802 660-2552) PATTI R. PAGE WWW FIRMSPF.COM ROBERT E. FLETCHER JKLESCH(W,FIRMSPF.COM JOSEPH S McLEAN AMANDA S. E LAFFERTY JOHN H KLESCH DIVA L ATWOOD DAVID W. RUGH* *(ALSO ADMITTED IN MD) VIA ELECTRONIC AND FIRST CLASS MAIL June 11, 2012 Jacalyn Fletcher, Manager Vermont Superior Court Environmental Division 2418 Airport Road, Ste. 1 Barre, VT 05641-8701 Re: Berger and Katz Expansion Application Docket Nos. 119-7-10 Vtec & 141-9-11 Vtec Dear Jacalyn: Enclosed please find the City of South Burlington's Opposition to Appellants' Motion for Reconsideration for filing in the above -captioned matter. Klesch cc: (via email and first-class mail') Mr. Sheldon Katz Mr. Bruce H. Alvarez Ray Belair, Administrative Officer SON12-037.cor.wpi STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BAYTERY STREET PO BOX 1507 BURLINGTON VERMONP 05402-1507 STATE OF VERMONT SUPERIOR COURT In re: BERGER & KATZ ) EXPANSION APPLICATION ) ENVIRONMENTAL DIVISION DOCKET NOs. 119-7-10 Vtec And 141-9-11 Vtec CITY OF SOUTH BURLINGTON'S OPPOSITION TO APPELLANTS' MOTION FOR RECONSIDERATION NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and hereby opposes "Applicants' Motion for Reconsideration and Clarification of Decision on Cross -Motions for Denial of Summary Judgment" dated June 6, 2012. Memorandum A. THE PROPOSED COVERED FRONT PORCH IS SUBJECT TO REVIEW UNDER §§ 4.08 (F) (2) AND (F) (3) EVEN IF SAID PORCH CONFORMS WITH § 3.11(B)(3). The Town understands the Court's Order as follows. The Court entered judgment that the covered front porch meets SBLDR § 3.11 (B) (3) , as that is the only section of the SBLDR which they asked the Court to review.' See Decision on Cross -Motions for Summar Judgment, Conclusion T 1. However, the proposed front porch also must comply with §§ 4 . 08 (F) (2 ) and ( F) (3) . See SBDDR 4 . 08 (F) ("Non -complying Structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots. 1 See January 24, 2012 AppLi.cants' Motion for Partial Summary Judgment 1 8. 11 STIPZEL, PAGE & FLETCHER, PC ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1.507 BURLINGTON, VERMONT 05402-1507 Non -complying structures shall be subject to the following requirements and restrictions: Applicants did not attempt in their summary judgment filings to establish the proposed new front porch would conform with SBDDR §§ 4. 08 (F) (2 ) and (F) (3) . Therefore, the Court properly ruled that the question whether the proposed new front porch is permissible remains for trial. See Decision on Cross -Motions for Summar Judgment, Conclusion 1 3. B. THE PROPOSED ENCLOSURE OF THE FRONT PORCH AND REAR DECK WOULD VIOLATE § 3.11(B)(3) AND OTHER SBLDR SECTIONS SPECIFICALLY APPLICABLE TO THE PROPERTY AT ISSUE. Again, the Town notes that Applicants chose to move for partial summary judgment on the issue whether the proposed enclosure of both their front porch and rear deck meet SBLDR § 3.11(B)(3), but compliance with that specific section would not entitle Applicants to proceed with these alterations. To the contrary, § 3.11(D)(1) sets out express requirements for "Alterations to Non -Complying Structures," and the requirements include conformance with § 4.08(F) for a property, such as Applicants' property, located in the Queen City Park District. Therefore, conformance or not with § 3.11 (B) (3) cannot be dispositive of Applicants' application under the circumstances. Second, an increase in the square footage of a nonconforming 2 STITZEL, PAGE & FLETCHER, PC ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 BURLINGTON, VERMONT 05403-1507 structure is, as a matter of law, an increase in the degree of noncompliance of such a structure. Unlike Dunnett, Applicants' proposed enclosure of the rear deck and front porch do not merely involve an increase in volumez. Rather, those alterations would increase the square footage of Applicants' house. Compare In re Dunnett, 172 Vt. 196, 203, 776 A.2d 406, 412 (2001) ("Furthermore, there is no limitation on the volume of structures in the residential -commercial district. And notably, the overall square footage, the overall footprint and the overall percentage of lot coverage were all reduced ... ."). Unlike the proposal to enclose the rear deck and the front porch, alterations such as a covered front porch, a screened deck, and dormers do not increase the square footage living space of the property. The Court therefore found those proposed alterations will not increase the degree of noncompliance and thus granted partial summary judgment on the issue of SBLDR § 3.11(B)(3). However, the Court was correct to deny partial summary judgment on the issue 3. 11 (B) (3) as to those elements of the project which would increase the square footage of Applicants' nonconforming structure. 2 The City contends that an increase in volume may present an increase in nonconformity of a structure. However, it is unnecessary to consider the issue of volume here. 3 DATED at Burlington, Vermont June 11, 2012. STITZEL, PAGE & FLETCHER, P.C. AttorneX-8"\for the CITY OF SOUTH BURLINGTON By: 1 Jo7n. 17tBu k:'•wpd',,.\Li �.\>�)rI -lO bp qer re,_-5n=i..ier npp. d, STITZEL, PAGE & FLETCHER, PC ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 BURLINGTON, VERMONT 05402-1507 1171 esch .ry Street, P.0 on, VT 05402 I Box 1507 � r rli -47- I I r' 'r No Text Lobe & Fortin,PLC ATTORNEYS AT LAW Joshua B..Lobe, Esq. Corey.]. Fortin, Esq. David R. Edwards, Esq., of counsel Sheldon M. Katz, Esq. June 7, 2012 Jacalyn Fletcher, Clerk Vennont Superior Court, Environmental Division 2418 Airport Road Barre, VT 05641 30 Kimball Ave., Ste. 306 South Burlington, VT 05403 TEL: (802) 660-9000—FAX.- (802) 864-0375 E-MAIL: joshlobc@,,greenvt.net coreyfortin(a),green vt. net d<i viciedwards(ti)gn eenvt. n et shel d o nk a t z((vgreen v t. n et Re: Berger & Katz Application, Dkt. Nos. 119-7-10 Vtec & 141-9-1 lVtec Dear Ms. Fletcher: Enclosed for filing please find Applicants' Proposed Findings of Fact and Conclusions of Law. Thank you for your attention. Very truly y4irs IJdwar Parties of record STATE OF VERMONT SUPERIOR COURT, ENVIRONMENTAL DIVISION In re. South Burlington #MS l 0-04, ) 54 Central Avenue, South Burlington ) Applicants: Claudia Berger and ) Sheldon Katz ) Dates of Decisions: July 6, 2010 ) August 20, 2011 ) Docket No. 119-7-10 Vtec & 141-9-11Vtec APPLICANTS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Findings of Fact 1. Applicants own a home located at 54 Central Avenue, South Burlington, Vt. 2. Applicants' lot or home was in existence prior to February 28, 1974, and Applicants propose to continue to use it as a single-family dwelling. 3. Applicants' home is located in the Queen City Park area of South Burlington. 4. Queen City Park was designed to promote the area's historic development pattern of smaller lots and reduced setbacks. LDR § 4.08A. 5. Queen City Park "is very dense and homes are very close together" and with reduced setbacks. In the Matter of Provencher Application, MS-06-04; In the Matter of Ahladas Application, MS-08-07 (same); In the Matter of'Goodman Application, MS-09-05 (same). 6. A Development Review Board staff board staff told Applicants that the Board has never denied a permit in Queen City Park. LOBE & FORTIN, PLC 30 KGMBALL AVENUE SUITE 306 SOUTH BURUNGTON, VT 05403 �1 N LOBE & FOR-nN, PLC 30 VJMBALLAVENUE SUME 306 SOUTH BURLINGTON, VT 05403 802..660-9000 7. For purposes of this proceeding, Applicants propose the following improvements to their home: I 0 add a front porch: 2 0 enclose an existing front porch that for purposes of this proceeding is roughly four feet from the property's northern boundary; and a enclose a walled rear deck that for purposes of this proceeding is roughly four feet from the property's northern boundary into two stories 8. The north wall of the Applicants' home, which is grandfathered, is between about one to three feet inside the five foot setback area. 9. None of the proposed improvements will result in reducing the distance from the north wall of Applicants' home to the north property line. 10. None of the proposed improvements will result in encroachment into the setback space where there is no existing grandfathered encroachment. 11. The improvements are expected to cost $105,000, 12. Applicants' home is assessed at $323,000. 13. The proposed improvements are in compliance with all height, coverage, and parking requircments. Specifically (i) with the proposed additions, the Applicants' home will satisfy the coverage maxima 11or lots less than 5,000 square feet that existed before February 28, 1974 of forty percent (40%) for buildings and sixty percent (60%) overall coverage ; (ii) the existing and proposed height of the roof is less than 25 feet to the midpoint of the eave, which is within the limitation for the district; (iii) with the proposed improvements, the home will continue to have adequate on -site parking. I Applicants also seek clarification of the condition placed on the roof plate of the proposed screened in porch. The floor of the porch will be at the same height as the existing interior floor, which is about eighteen inches above the current grade but below the deck floor. A long as the condition rneans nine feet above the floor height, Applicants withdraw the ob�jection. 2 The Court approved the proposed front porch in its June 1, 2012 order. 2 I 14. Applicants' use is conforming. They use and will continue to use the subject property as a single unit residence, a permitted use in their zoning district. LDR Appx. C. 15.Tbe proposed improvements meet all conditional use requirements. They are consistent with the planned character of the area; conform to the stated purpose of the Queen City Park district; and will not adversely affect the capacity of existing or planned municipal or educational -facilities, the planned character of the Queen City Park neighborhood or district, the ability to develop adjacent property for appropriate uses, die traffic on roads and highways in the vicinity, or utilization of renewable energy resources. 16. The adjacent property to the north is owned by Bruce and Janet Alvarez (52 Central Avenue), They are the only property owners in the neighborhood who oppose the improvements. They complain the proposed changes will adversely impact their views and access to sunlight. 17. The opponents' home has more than thirty windows. Of their more than thirty windows. only three (and a mudroom door) face directly south toward the Applicants' home, and the views and sunlight through those windows is currently obstructed or partially obstructed by either existing structures or by their own tree, which is several feet from their home. 18. According to the opponents, those windows do not have "award -winning views" currently. 19. In Aplil 2012, Applicants removed a plum tree from their front yard near the northern property line, dramatically improving the opponents' views and access to sunlight. The opponents had previously complained about the plum tree and its impact on their views from the south or southwest looking windows of their home. LOBE & FORTIN, PLC 30 PUMBALL AVF NUE SUITE 306 SOUTH BURLINGTON, VT 05403 802-660-9000 LOBE & FORTIN, PLC 30 KIMBALL AVENUE SUITE 306 SOUTH BURLINGTON, \rr 05403 802-660-9000 2C. Applicable Law: Land Development Regulations 1. The current side setback in Queen City Park is five feet. LDR Appdx. C, Table 2. LDR § 3.1 1B.(3) provides as follows: A nonconforming structure that is devoted to a conforming use inay be reconstructed, structurally altered, restored or repaired, in whole or in part, with the provision that the degree of nonconformance shall not be increased. 3. A "structuml alteration" is [a]ny change in the supporting members of a building, such as bearing walls, Columns, beams or girders, or in the dimensions or configurations of the roof or exterior walls." L.DR § 2.02. 4. For a single-family dwelling units in existence prior to February 28, 1974, proposed improvements may encroach into the required side setback not less than three feet if it satisfies Article 14, Conditional Uses, does not have an undue adverse effect on views, access to sunlight, and safety of adjoining and/or nearby properties and has adequate on -site parking. LDR § 3.06J. 5. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming Uses and non -complying structures and lots. Non- complying homes are subject to the requirernents and restrictions of § 4.08F. Under § 4.08F, homes may be altered provided if the work does not exceed 35 percent of fair market value; does not increase the home's height or footprint, or otherwise increase its square footage of the building or structure. Improvements which do not meet these restrictions shall be approved subJect to the provisions of Article 14, Conditional Use Review and if the proposed improvement will not adversely aff'ect the views and access to sunlight of adjoining properties and adequate on -site parking. 4 LOBE & FORTIN, PLC 30 PCIMBALL AVENUE SUITE 306 SOUTH BURLINGTON, Vr 05403 502-66C,9000 6. Proposed conditional uses must be consistent with the planned character of the area; conform to the stated purpose of the district in which the proposed use is to be located; not adversely affect the capacity of existing or planned municipal or educational facilities; the planned character of the neighborhood or distdct in which the property is located, or the ability to develop adjacent property for appropriate uses; (c) traffic on roads and highways in the vicinity; utilization of renewable energy resources. LDR14.10(E). Rules of Construction 1. Zoning laws curtail and limit uses of real property and are in derogation of common law rights. Such laws must therefore be given a strict construction, and zoning provisions may not be extended by implication. In re Champlain College Maple Street Dormitory, 2009 VT 55 � 14, In re Bennington School, Inc., 176 Vt. 584, 845 A.2d 332 (2004); Murphy MolorSales, Inc. v. First Natl Bank qfSt. Johnsbury, 122 Vt. 121, 123-24, 165 A.2d 341, 342 (1960). 2. It is a firmly established rule in this state that any uncertainty in land use regulations must be construed in a way that is favorable to the property owner, that is, against the alleged land use violation. Kremer v. Lawyers Title Ins. Corp., 2004 VT 91 TI, 8. "Any ambiguity is resolved in favor of the landowner." In re BenninglonSchool, Inc., 2004 VT 6 Ji 12. 3. Land use regulations are not "intended . . . to guarantee that the view a person sees from his or her property will remain the same forever. Change must and will come," and land use regulation "will not be an impediment." Re: Okemo Mountain Inc., #2W505 t - 8-EB, Findings of Fact, Conclusions of Law and Order at 9 (Dec. 18, 1986); Re:.MainStreet Landing Company and City qf'Burlingion, 44C I 068-EB, Findings of Fact, Conclusions of Law, and Order at 17- 18 (Nov. 20, 2001). 5 LOBE & FORTIN, PLC 30 KIMBALL- AVENUE SUITE 306 SOUTH BURLINGTON, \/T 05403 802-660-9000 4. An adverse impact "occurs when the proposed project will significantly diminish the perception of quality." Agency of Natural Resources, Scenic Resource Evaluation Process. 3 5, As the Vermont Supreme Court has recognized, all development, "by necessity," affects views. S'ee In re. Appeal qfJAXf Go�,LLC, 185 Vt. 201 (2008) and Stale v. Baldwin, 140 Vt. 501 (1981). 6. The South -Burlington Development Review Board, approving an increase to the height of a Queen City Park home above the allowable height, noted that there was not adverse impact because neighboring views "wit I not be signiflcantly impacted," Application qf*Gr�ffin (99 Central Avenue), CU-04-07 T 4(a). 7. The South Burlington Development Review Board has clarified that in dealing with adverse impact on views in Queen City Park, the primary concern is with views of Lake Champlain. Homes close to the take -- especially on the lake side (west side) of Central Avenue are "visually sensitive" and improvements require close scrutiny, Applicalion qf'Gr�ffin (99 Central Avenue), CU-04-07 T 4(a). In other matters involving the ',adverse effect" standard but relating to homes further removed firorn Lake Champlain — such as Applicants -- the Development Review Board approved developments even though "it is somewhat possible that some favorable views exist." S�ee e,g. Application qf Provencher (45 Central Avenue), MS-06-04: Application QfAhladas (3 Pavilion) MS-08-07 (same); Application ql'Goodman (66 Central Avenue), MS-09-05 (same). 8. Administrative agencies like the Development Review Board must respect its own precedents. Mendez-Barrera v. Holder, 602 F.3d 21, 26 (1 " Cir. 2010) citing Natl Cable & Telecomms. Assn v. BrandXInternel Servs,, 545 U.S. 967, 981 (2005); Motor Vehicle Af,/�.Y. Ass'n ol'U.S., Inc. v. State Farm Mut. Auto. Ins. ('o., 463 U.S. 29, 43 (1983). http://www.arb.state.vt,tis.Ilup/pubiications/manual/`8aestheticsfinal.pdf 6 LOBE & FORTIN. PLC 30 I-QMBALL AVENUE SUITE 3G6 SOUTH BURLINGTON, VT 05403 002-660-9GOO Burden of Proof 1. Opponents of the proposed project bear the burden of ultimate burden of persuasion. &,,e e.g. Re: 5usan Dollentnaier andt1l'an-ha Dollenmaier,�poor, #3WO125-5- EB, Findings of Fact, Conclusions of Law, and Order at 9 (Feb. 7, 2005). See also Yarnall v. Allen, 44-4 A.2d 1335, 13-317 (Pa. Cmwlth. 1982) (opponent of improvements bears "both the duty to go forward with evidence and the burden of persuasion to establish a case sufficient to warrant denial of the application"). 2. The burden of proof with respect to aesthetics is "on any party opposing the applicant ... to show an unreasonable or adverse effect." In re Denio, 15 8 Vt.230, 236 (1992); In re Mc,'�hinskj,, 153 Vt. 586, 589 (1990). Conclusions of Law 1. The proposed improvements, without additional setback, must be permitted without further inquiry. Under § 3.1 113(3)� the proposed improvements are permissible without further inquiry. That section allows for structural alteration (including "any change" in walls or dimensions or configurations of the roof or exterior walls) of a nonconforming structure if the degree of nonconformance is not increased. The plain meaning of "degree" 4 is the extent, measure, or scope of a condition. MERRJAM-WEBSTER'S ONLINE DICTIONARY . The extent of the nonconformance in the setback is measured horizontally -- not vertically -- as the distance from the structure to the property line. The existing structure is two to three feet within the setback space. The proposed improvements will not increase the extent of the nonconformance. The phrase "increase the degree of nonconformance" unambiguously excludes the proposed improvements. In fact, the Vermont Supreme Court and other high courts agree C, that vertical improvements that do not increase the encroachment of the building within the 4 littp://www.nierriam-web ster.coin/d ictionaryl degree 7 LOBE & FCFMN, PLC 30 KJMBALL AVENUE SUITE -306 SOUTH BURLINGTON. \orr 05403 802_66C�9000 required setback do not increase the degree of nonconformance and are permissible by right. In re Dunnett, 172 Vt. 196, 203, 776 A.2d 406, 412 (200 1), Nettleton v. Zoning Bd oJ' Adjustment, 828 A. 2d 1033, 1039 (Pa. 2003). If the phrase "increase the degree of nonconformance" is deemed ambiguous as to whether it refers to the only to the extent of the nonconformance as it measured -- fi-om the wall to the property line -- that ambiguity must be decided in Applicants' favor. 2. Alternatively, the improvements may be permitted without additional setback. Queen City Park has its own special rules for improvements to non -complying structures that supersede the LDRs' rules of general application. Under those special rules, a five foot setback limit is inapplicable. In fact, the Development Review Board recently approved a similar improvement to another property in Queen City Park where the improvement was less than three feet -- in fact one to two feet -- from the side property line. AhladaT, MS-08-07. LDR § 33.111)(1) provides that any "additions or expansions" to non -complying buildings must comply with current setback requirements. The Applicants' home is considered "non-com plyi ng" because it predates the LDR and is or may be setback from the north property line less than five feet, which again is the LDRs' current setback limit. Accordingly, if § 3.11 D(I I) were to govern the Applicants' proposal, then the Applicants' proposed changes would have to comply with current setback requirements. However, by its own terms § 3.11 D(l) expressly yields to § 4.08, which governs the Queen City Park zoning district. LDR § 4.08G confilms that in Queen City Park § 3.1 ID(l) is inapt: "Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforrning uses and non -complying structures and lots." Non -complying structures in Queen City Park are subject to a different rule: that the proposed work will not change the home's height, square footage, or footprint. § 5 I LOBE & FOR-M, PLC 30 KIMBALI- AVENUE SUME 306 SOUTH BURLINGTON, VT 05403 802-660-9000 4.08.G(l)(b). If the work changes the home's height, square footage, or footprint, then the homeowner must obtain a conditional use permit. § 4.08G(2). In that instance, the work is still permissible absent a showing that it will adversely affect views from, and access to sunlight by, neighboring properties. § 4.08G(3). Z:) Making the improvements to the current footprint is permissible for three compelling reasons: (i) that any uncertainty must be construed favorably to Applicants, (ii) the consistency of the proposed improvements with the existing and historic character of Queen City Park with densely packed homes, and (iii) the rule that specific rules or statutes trump general rules or statutes, see e.g Town qf Brattleboro v. Garfield, 2006 VT 56, T 10, ("long-standing rule of statutory construction that where two statutes deal with the same subject matter, and one is general and the other specific, the more specific statute controls"). 3. Alternatively, the improvements may be permitted with a three foot setback. The LDRs expressly provide for a three foot setback for lots -- such as 54 Central Avenue -- that were in existence prior to February 28, 1974. LDR § 3.06J(3). The proviso is satisfaction of conditional use criteria and no undue adverse effect on adjoining property views, sunlight, and safety, and adequate on -site parking. In fact, the Development Review Board recently approved a similar improvement to another property in Queen City Park where the improvement was less than three feet from the side property line. Ahladas, MS- 08-07. Applicants meet these standards. 4. Alternatively, the proposed improvements to the front porch and rear deck and the addition of a front porch will not adversely affect, or have an adverse effect, on the views from and/or access to sunlight of the opponents' property or on adequate on- 9 LOSE & FORnN, PLC 30 KIMBAL.L AVENUE SUITE 306 SOUTH BURUNGTON. VT 05403 802-660-9000 site parking and/or safety of adjoining properties. An adverse impact"oecurs when the proposed prQject will significantly diminish the perception of quality." To begin with, the best views and most direct sunlight to the opponents' home are frorn the windows to the west and Southwest. None of these windows are affected, nor are the windows on the north and east sides. The south facing windows are already obstructed by the existing structures and by the opponents' own tree, with no quality views and very little sunlight, In fact, Applicants face the sarrie situation with their south windows. The opponents have not met their burden of persuasion of showing that the proposed improvements will "significantly diminish" or "significantly impact"the overall quality of their views and acccss to sunlight. As construed previously by the Development Review Board, the "adverse impact" standard is primarily concerned with lake views, and more specifically with development of homes right on the lake, a concern which is absent in the present matter. So for example, in Ahladas, the Development Review Board permitted the enclosure of a deck with two stories -- much like that proposed by Applicants on their rear deck -- even though it would block the lake views of the home to the north just a few feet away. Opponents are not guaranteed views from their property nor that any such views will remain the saine forever. To interpret the term "adversely affect" to include the ordinary effects on light and views that would be expected -from almost any development would violate both rules of interpretation. As the Vermont Supreme Court has recognized, all development, "by necessity," aillects views. �'eelnre.,4ppeal(�f'JAMGo�f,LLC,185Vt. 201 (2008), State v, Baldwin, 140 Vt. 501 (19 8 1). Opponents should not be allowed to use the land use regulations as an impediment to the modest proposed improvements that are consistent and in tune with the character of the neighborhood. 10 3 Dated this day of June 2012 at South Burlington, Vermont. CLAUDIA BERGER and SHE N TZ A By: L)7 -�atvidR'. Edwards, Esq. Lobe & Fortin. PLC 30 Kimball Avenue, Ste. 3106 South Burlington, VT 05403 LOBE & FORT1N, PLC 30 KIMBALL AVENUE SUITE 306 SOUTH BURLINGTON. V-r 05403 802-660-9000 I I By:_ — U Sheldon M. Katz ---------------------------------------- John H. Klesch, Esq. Stitzel Page & Fletcher, P.C. P.O. Box 1507 Burlington VT 05402 ---------------------------------------- Berger & Katz Expansion Application Vermont Superior Court Environmental Division 2418 �Lirport Roadef;jlyj�' Barre, VT 056 (802) 828-166 May 30, 2012 Docket No. 119-7-10 Vtec Please see the enclosed DECISION ON CROSS -MOTIONS FOR SUMMARY JUDGMENT issued by Judge Thomas S. Durkin on May 30, 2012. CC: Appellant, Claudia Berger Appellant, Sheldon Katz John H. Klesch, Attorney for Appellee, City of South Burlington Interested Person, Bruce H. Alvarez Co -Counsel for party 2, David Edwards Co -Counsel for party 3, David Edwards FILED MAY 3 0 201Z STATE OF VERMONT VERMONT SUPERIOR COURT — ENVIRONMENTAL DIVISIONSUPERIOR COURT ENVIRONMENTAL DIVISION In re Berger & Katz Docket No. 119-7-10 Vtec Expansion Applications Docket No. 141-9-11 Vtec Decision on Cross -Motions for Summary Judgment Claudia Berger and Sheldon Katz ("Applicants") sought approval from the City of South Burlington Development Review Board ("the DRB") to construct five improvements to their single-family dwelling located at 54 Central Avenue in the City of South Burlington, Vermont ("the City"). The DRB denied Applicants' application with respect to three of their proposed improvements, approved one of the proposed improvements subject to conditions, and determined that the final proposed improvement did not require DRB approval. Applicants then appealed the DRB's decision to this Court. Now pending before this Court is Applicants' motion for summary judgment and the City's cross -motion for summary judgment.' In this proceeding, Applicants are represented by David R. Edwards, Esq. The City is represented by John H. Klesch, Esq.7 Factual Background For the sole purpose of putting the pending motions into context, the Court recites the following facts, which it understands to be undisputed unless otherwise noted: 1. Applicants seek approval to construct certain improvements to their single-family dwelling located at 54 Central Avenue in the City. Specifically, Applicants seek to: (1) enclose an existing front porch; (2) construct a new covered front porch; (3) convert a rear deck to an enclosed two-story addition; (4) add a screened rear deck; and (5) add two dormers on the front and rear portions of the south side of the dwelling. 2. Pursuant to Section 4.08 of the City of South Burlington Land Development Regulations ("the Regulations"), Applicants' dwelling is located in the Queen City Park Zoning District. 1 The City's motion is entitled "City of South Burlingtoifs Opposition to Appellants' -Motion for Summary Judgment." However, because the City not only responds to the arguments presented in Applicants' motion for summary judgment but also raises additional issues, including requests for summary judgment, we treat the City's motion as a cross -motion for summary judgment. 2 Bruce H. Alvarez, PTO se, proceeds as an interested person. Mr. Alvarez has not filed a response to either Applicants' or the City's motions. 3. Applicants submitted an application for approval of their proposed improvements on April 12, 2010 ("the 2010 Application").3 The DRB denied the 2010 Application on June 6, 2010, determining that although the proposed improvements satisfied the conditional use criteria of Regulations Section 14.10(E), they would adversely affect Mr. Alvarez's views and access to sunlight under Section 4.08(G)�4 Applicants appealed that denial to this Court, and we assigned that appeal Docket No. 119-7-10 Vtec. As part of that appeal, Applicants submitted a Statement of Questions containing three Questions ("the 2010 Statement of Questions"). 4. On February 4, 2011, this Court issued a Decision on Applicants' motion for summary judgment with regard to Questions 1 and 2 of the 2010 Statement of Questions. See In re Berger & Katz ApXLh�cation No. 119-7-10 Vtec (Vt. Super. Ct. Envtl. Div. Feb. 4,2011) (Wright, J.). The Court dismissed Question 1. Id. at 3. The Court then addressed Question 2, determining that the proposed enclosure of the front porch and rear deck required review under Section 4.08(G)(2) (conditional use review), as each proposal involves an increase to the dwelling's square footage. Id. at 6. The Court did not determine whether the addition of the dormers also required review under Section 4.08(G)(2). Id. at 7. The Court then placed Docket No. 119-7-10 Vtec on inactive status to allow Applicants to file another application with the City while also preserving their right to appeal the DRBs denial of their 2010 Application. 5. On April 25, 2011, Applicants submitted a subsequent application ("the 2011 Application") to the DRB, again seeking approval of the five proposed improvements. Applicants submitted this additional application at the urging of the then -presiding judge — Judge Merideth Wright —so to allow Applicants to present to the DRB, and to this Court if a subsequent appeal was filed, a design of the front and rear deck enclosures that would align with the existing decks, thereby encroaching mito the five-foot side yard setback by one to two 3 Applicants' original design for the enclosures to the front and rear decks originally followed the alignment of the existing decks, which encroached into the five-foot side yard setback from Applicants' northern boundary by one to two and a half feet. After Town officials expressed concern about these improvements not respecting the minimum setback requirements, Applicants revised their design for the deck enclosure to be no closer than three feet from their northern boundary. Applicants offer an interpretation of Regulations Section 3.06(j)(3) that would allow Applicants to construct the proposed improvements to within three feet of their northern side yard boundary. 4 Section 4.08(G) in the 2010 version of the Regulations is identical in language to Section 4.08(F) in the 2011 version of the Regulations. The difference hes only in the subsection label. We refer to Section 4.08(G) here only because it was that Section under which the DRB and this Court made its decisions on the 2010 Application. PA and a half feet. See In re Berger & Katz Application No. 119-7-10 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. March 22,2011) (Wright, J.). 6. The 2010 and 2011 Applications differ from one another only with regard to the northern side yard setback that would be respected by the proposed front and rear deck enclosures. The 2010 Application design would be offset, especially from the rear deck, so as to respect a three- foot minimum, while the 2011 Application design would be aligned with the northern edge of the existing front porch and rear deck, thereby encroaching into the northern side yard setback by no more than those portions of the existing structure. 7. The DRB denied Applicants' 2011 Application with respect to the enclosure of the existing front porch, the addition of a new front porch, and the conversion of the rear deck to an enclosed two-story addition. The DRB approved the addition of the new screened rear deck with conditions. Finally, the DRB determined that the addition of the two dormers did not require DRB approval. 8. Applicants then appealed the DRB's denial of the 2011 Application to this Court. That appeal has been assigned Docket No. 141-9-11 Vtec. 9. As part of their 2011 appeal, Applicants submitted a Statement of Questions containing five Questions ("the 2011 Statement of Questions"). Each Question asks whether each of the five proposed improvements are permissible under the Regulations. Discussion Now pending before this Court are the parties' cross -motions for summary judgment. In their motion for partial summary judgment, Applicants contend that their five proposed improvements are permissible under Section 3.11(B)(3) of the Regulations because they do not increase their dwelling's non-compliance with the applicable side yard setback. In its cross - motion, the City contends that summary judgment should be entered against Applicants on Questions 1-3, that is, on the issues of enclosing the front porch, constructing a new front porch, and converting the rear deck to an enclosed two-story addition, because Applicants failed to submit sufficient evidence demonstrating a dispute as to material facts regarding whether they have complied with the criteria expressed in Sections 3.06(j) and 4.08(F)5 of the Regulations. 5 As discussed above, Section 4.08(F) in the 2011 version of the Regulations is identical in language to Section 4.08(G) in the 2010 version of the Regulations. We refer to the 2011 version of the Regulations throughout the rest of this Decision because the 2011 application is the focus of the pending cross - motions for summary judgment. See In re Bibby 5-Lot Final Plat Subdivision & Waiver ARREcation, No. 3 The City also argues that it is entitled to summary judgment on Questions 4 and 5, concerning the addition of a screened rear deck and two dormers, because, those Questions address improvements that the DRB approved and, therefore, those issues are not properly before the Court on appeal. For the reasons detailed below, we conclude that the proposed construction of a new front porch, a new covered back porch, and two dormers does not violate Section 3.11(B)(3). We further conclude that, while the proposed enclosure of the existing front porch and the conversion of the rear deck to a two-story enclosed addition violate Regulations Section 3.11(B)(3), Applicants may be entitled to an exception from the five-foot side yard setback, provided the evidence at trial allows the Court to render positive findings under Regulations Section 3.06(f)(3). We therefore decline to grant summary judgment for either Applicants or the City in regard to the proposed improvements( compliance with the applicable side yard setback provisions. We await the parties' presentations at trial on the question of whether the front and rear porch enclosures may be designed in such a way as to avoid increasing the nonconformance with the applicable side yard setbacks. Because we also conclude that a genuine dispute as to material facts exists as to whether the improvements Applicants propose in Questions 1-3 comply with Section 4.08(F)(2) (requiring conditional use review) and Section 4.08(F)(3) of the Regulations, we must deny the City summary judgment on Questions 1-3 of Applicants' 2011 Statement of Questions. Additionally, we conclude that Question 4, the issue of the addition of the dormers, does not present a case or controversy and thus is not properly before us. Finally, we conclude that Question 5, the issue of the proposed addition of a screened rear deck, is properly before us. L SummAa Tudgment Standard A court may grant summary judgment where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." V.R.C.P. 56(a); see also V.R.E.C.P. 5(a)(2). In considering the parties' cross -motions for summary judgment, we give each party the benefit of all reasonable doubts and inferences. Ci!y of Burlington v. Fairpoint Commc'ns 2009 VT 59, T 5,186 Vt. 332 (citing Toys, Inc. v. F.M. Burlington Co. 155 Vt. 44, 48 (1990)). We will "accept as true the [factual] allegations made in 189-11-10 Vtec, slip op. at 10 (Vt. Super. Ct. Envtl. Div. Mar. 2, 2012) (Durkin, J.) ("[A] landowner is entitled to review of a land use proposal under the version of the land use laws in effect at the time the landowner subn-dts a 'proper application.'" (citing In re Tollgy Assocs. 2006 VT 132, 111, 181 Vt. 190)). 4 opposition to [each] motion for summary judgment, so long as they are supported by affidavits or other evidentiary material." Robertson v. Wlan Labs., Inc., 2004 VT 15, T 15, 176 Vt. 356. IL Applicants' Motion for Partial Summ@U Jud0jent It is undisputed that Applicants' dwellin& including the attached front porch and rear deck, lie within five feet of the northern property boundary and therefore do not comply with the applicable side yard setback for the Queen City Park Zoning District ("the QCP District"). See Regulations Appendix Table C-1 (establishing the side yard setback mini -mum in the QC-P District as five feet). Pursuant to Regulations Section 3.11 (B)(3), a structure that does not conform to the existing municipal land use regulations "that is devoted to a conforming use may be reconstructed, structurally altered, restored or repaired, in whole or in part, [provided] that the degree of noncompliance shall not be increased." All parties concede that Applicants' dwelling is used as a single-family dwelling, which is a permitted use in the QCP District. See Regulations Appendix Table C-1. However, Applicants concede that their dwelling does not comply with the Regulations' setback requirements because the north wall of their home is less than five feet from the property line and therefore encroaches into the side yard setback. (Applicants' Reply Memorandum Supporting Motion for Summary Judgment and Opposing Cioss-Motion, at 3, filed Mar. 14, 2012.) In their motion for partial summary judgment, Applicants contend that although their property is currently non-complyin& the proposed property improvements are permissible under Section 3.11(B)(3) of the Regulations because they will not increase the property's nonconformity. Applicants propose to locate their new covered front porch, new screened rear deck, and two dormers on the south side of the house. Thus, the property's non-compliance will not be increased by those three proposed improvements because they are located on the opposite side of the dwelling from the setback violation and will not affect the setback encroachment. We therefore GRANT Applicants' motion for partial summary judgment with regard to the proposed new covered front porch, new screened rear deck, and two dormers, concluding that such improvements will comply with Section 3.11(B)(3) of the Regulations because they will not increase the dwelling's noncompliance. Applicants also propose to enclose an existing front porch and convert a rear deck to an enclosed two-story addition. Both of these proposed improvements are located on the north side of the dwelling, which is the side of the dwelling that is non -complying due to its 5 encroachment into the side yard setback. Thus, if the proposed improvements increase the degree of encroachment into the side setback, they will increase the dwelling's non-compliance in violation of Section 3.11(B)(3). It is true that neither the proposed enclosure of the existing front porch nor the conversion of an existing rear deck to an enclosed two-story addition will increase the dwelling's footprint. However, they will increase the dwelling's height. This Court has previously held that increasing the height of a structure that is in violation of setback requirements increases its nonconformity, See In re Clyde's Place LLC, Nos. 142-7-07 Vtec and 9-1-08 Vtec, slip op. at 15 (Vt. Envtl. Ct. Dec. 15, 2009) (Wright, J. ("The degree of nonconformity was enlarged by the new house, which had a larger volume of structure occupying the required front yard setback...."); Al2]Real of Kggga No. 244-11-02, slip op. at 1 (Vt. Envtl. Ct. Mar. 11, 2003) (Wright, J.) ("[A]n increase in height within the setback area would be considered an expansion of the existing nonconformity, even if it did not extend beyond the existing footprint."); cf. Appeal of Rawlings No. 37-3-03 Vtec, slip op. at 2 (Vt. EnvtI. Ct. June 26, 2003) (Wright, J.) (approving a conditional use application to raise a garage roof'where most of the height increase was outside the setbacks and the volume of the garage within the setbacks was "roughly the same" as it was with the prior roof configuration). Accordingly, we conclude that the enclosure of the existing front porch and the conversion of the rear deck to an enclosed two- story addition will increase the dwelling's nonconformity and violate Section 3.11(B)(3) of the Regulations. We therefore DENY partial summary judgment to Applicants with respect to these two proposed improvements. However, we decline to enter summary judgment for the City on this same legal issue. In their 2010 Application, Applicants proposed a revised design whereby their improvements would respect a three-foot setback from the northern property boundary, and they offered an interpretation of Regulations Section 3.060)(3) by which Applicants would be entitled to a reduction in the applicable setback. Since the conditions under which Applicants would be entitled to the setback exception under Regulations Section 3.060)(3) are fact specifiC,6 we decline to make a final determination on that issue until after we receive all evidence at trial. 6 Regulations Section 3.06a)(3) allows for a reduction in the minimum side yard setback to three feet provided that "the proposed encroachment will not have an undue adverse affect on" views and access to sunlight from other nearby properties, parking and safety. 1.1 111. The Ci!y's Cross -Motion for Summagy Judgment A. Ouestions 1-3 of ARPlicants' Statement of Questions Applicants apparently view Regulations Section 3.11(B)(3) as dispositive of the matter on appeal before us, contending that Section 3.11(B)(3) controls their application to the exclusion of other provisions of the Regulations. In response, the City contends that Applicants' proposed improvements must also comply with Section 4.08 of the Regulations. The City therefore argues that summary judgment against Applicants is appropriate with respect to Questions 1-3 of Applicants' 2011 Statement of Questions because Applicants have failed to meet their evidentiary burden of showing that the improvements proposed in those Questions will satisfy the criterih of Section 4.08. Question 1 of Applicants' 2011 Statement of Questions asks whether enclosing a front porch is permissible under the Regulations. Question 2 asks whether the Regulations permit the conversion of a rear deck to an enclosed two-story addition. Question 3 asks whether the addition of a new front porch is permissible under the Regulations. We interpret a zoning ordinance using the familiar rules of statutory construction. In re Appeal of Trah 2008 VT 90, 119, 184 Vt. 262. We will "'construe words according to their plain and ordinary meaning, giving effect to the whole and every part of the ordinance." Id. If the plain language resolves the interpretive conflict, "there is no need to go further, always bearing in mind that the paramount function of the court is to give effect to the legislative intent" Lubinsky v. Fair Haven Zoning Bd. 148 Vt. 47, 49 (1986). As discussed above, Section 3.11(B)(3) provides that a "non -complying structure that is devoted to a conforming use may be reconstructed, structurally altered, restored or repaired, in whole or in part, with the provision that the degree of noncompliance shall not be increased." Section 3.11(B)(3), however, is not the only section of the Regulations that regulates uses or structures that happen to be non -complying. To properly review a land use application, we must consider all applicable regulatory provisions. See In re LJer Self -Storage Unit Permits, 2011 VT 66, 113 (stating that courts not only examine the plain language of a zoning ordinance, but also the ordinance as a whole); In re Laberge Moto -Cross Trac 2011 VT 1, T 8, 189 Vt. 578 ("[Me construe an ordinance's words according to their plain and ordinary meaning, giving effect to the whole and every part of the ordinance." (quotations ornitted)). Section 3.11(D) also regulates alterations to non -complying structures. That Section sets forth the requirements for alterations to non -complying structures "except as otherwise provided ... in Article 4, Section 4.08, Queen City Park District." Regulations § 3.11(D). Thus, Section 3.11(D) specifically requires that alterations to non -complying structures located in the QCP District, the zoning district in which Applicants' property lies, comply with the requirements found in Section 4.08(F). We therefore proceed with an analysis of Section 4.08(F). Under Section 4.08(F), non- complying structures may be altered without DRB approval if the work is below a certain cost threshold and does not 'JiInvolve an increase to the structure's height or footprint, or otherwise involve an increase to the square footage of the building or structure." Regulations § 4.08(F)(1). The DRB may, however, approve an alteration to a non -complying structure that does exceed the cost threshold or involve an increase in height, footprint, or square footage if the proposed improvements meet the standards of conditional use review in Article 14 of the RegulationS7as well as three additional standards found in Section 4.08(F)(3). Section 4.08(F)(3) requires that the proposed alteration not adversely affect: (a) Views of adjoining and/or nearby properties; (b) Access to sunlight of adjoining and/or nearby properties; and (c) Adequate on -site parking. Regulations § 4.08(F)(2)-(3). The first subsection of Section 4.08(F) does not apply to the improvements Applicants propose in Questions 1-3 because these improvements, which relate to the proposed new front and rear porches, will result in an increase to either the dwelling's footprint or height. The proposed addition of a new covered front porch alters the dwelling's footprint, as that porch Conditional use review requires compliance with the following standards: (1) The proposed use, in its location and operation, shall be consistent with the planned character of the area as defined by the City of South Burlington Comprehensive Plan. (2) The proposed use shall conform to the stated purpose of the district in which the proposed use is to be located. (3) The proposed use shall not adversely affect: (a) The capacity of existing or planned municipal or educational facilities. (b) The planned character of the neighborhood or district in which the property is located, or the ability to develop adjacent property for appropriate uses. (c) Traffic on roads and highways in the vicinity, (d) Bylaws in effect. (e) Utilization of renewable energy resources. Regulations § 14.10(E). does not exist in the current footprint. Additionally, this Court has previously held that both Applicants' enclosure of an open front porch as well as the conversion of Applican& rear deck to an enclosed two-story addition increases the height of that portion of Applicants' dwelling. See Berp�er & Katz, No. 119-7-10 Vtec, slip op. at 6 Vtec (Vt. Super. Ct. Envtl. Div. Feb. 4, 2011) (Wright, J.). The enclosure of the front porch and the conversion of the rear deck to a two-story addition will therefore increase the height of that portioh of Applicants' dwelling. Thus, because the improvements proposed in Questions 1-3 will increase the dwelling's footprint and height, DRB approval is required under the second and third subsections of Section 4.08(F). To prevail in this matter, Applicants must show that the improvements proposed in Questions 1-3 will comply with the.conditional use criteria of Article 14 under Section 4.08(F)(2) and not adversely affect on -site parking or nearby properties' views or access to sunlight under Section 4.08(F)(3). In its cross -motion for summary judgment, the City contends that Applicants have failed to provide evidence indicating that the improvements proposed in Questions 1-3 meet the requirements of Section 4.08(F)(2) (conditional use criteria) or Section 4.08(F)(3). However, in response to the City's motion, Applicants submitted an affidavit from Applicant Sheldon Katz indicating that the proposed improvements will not adversely affect either the views or access to sunlight from Mr. Alvarez's property. Mr. Katz also stated that they will not adversely affect the on -site parking on his property or the safety of adjoining properties. Finally, Mr. Katz stated that the proposed use of the improvements — residential — is consistent with th- e character of the area as defined in the comprehensive plan, will conform with the stated purpose of the QCP District, and will not adversely affect the capacity of existing or planned municipal or educational facilities, the planned character of the neighborhood, the ability to develop adjacent property, traffic, bylaws, or the utilization of renewable energy resources. Accordingly, a dispute of material facts exists as to whether the improvements proposed in Questions 1-3 comply with the requirements of Section 4.08(F). We therefore DENY the City's cross -motion for summary judgment with respect to Questions 1-3 of Applicants' Statement of Questions. B. Question 4 of Applicants" Statement of Questions In its cross -motion for summary judgment, the City argues that it is entitled to summary judgment on Question 4 of Applicants' Statement of Questions, which asks whether the ILI Regulations permit Applicants to add dormers to their dwelling. The City contends that this is not a valid question because the DRB approved this particular proposed improvement. The City is generally correct in that the DRB in its 2011 Decision determined that the addition of dormers does not require DRB approval. In re Berger & Katz Findings of Fact & Decision, at 15 (City of South Burlington Dev. Review Bd. Aug. 30, 2011). Thus, while the DRB did not specifically grant approval for Applicants' dormers, the DRB determined that the Regulations did not require review or approval of Applicants' dormers as designed. Although the DRB's decision was in Applicants' favor, Applicants nevertheless raise the issue in their Statement of Questions. By arguing that there is no valid question before the Court regarding Question 4, the City makes clear that it does not dispute the DRB's decision that no permit is required for the addition of the dormers as specifically proposed in Applicants' application. Thus, despite Applicants' raising of the issue in their Statement of Questions, there appears to be no actual dispute or controversy before us on this issue. See Brod v. Agency of Natural Res., 2007 VT 87, 18, 182 Vt. 234 ("Vermont courts are vested with subject matter jurisdiction only over actual cases or controversies involving litigants with adverse interests."). We therefore DISMISS Question 4 of Applicants' Statement of Questions, given that a determination has already been rendered, and not contested, that Applicants' dormers, as designed, do not require approval under the applicable municipal regulations. C. Question 5 of Applicants' Statement of Questions Question 5 of Applicants' Statement of Questions asks whether the addition of a new screened rear deck is permissible under the Regulations. In its 2011 Decision, the DRB approved this alteration, subject to the condition that it have a maximum nine -foot plate height and roof pitch to match the existing dwelling. In re Berger & Ka Findings of Fact & Decision, at 15 (City of South Burlington Dev. Review Bd. Aug. 30, 2011). In its cross -motion for summary judgment, the City appears to contend that because Applicants' Question 5 does not challenge the condition imposed by the DRB, this Court does not have jurisdiction to consider that Question. As a general rule, this Court's jurisdiction "is confined to the issues raised in the statement of questions filed pursuant to an original notice of appeal." In re Gar 174 Vt. 151, 156 (2002); see also V.R.E.C.P. 5(f). However, the Court may also consider matters intrinsic to 10 those explicitly expressed in the statement of questions. In re Tol1gy Assocs. 2006 VT 13Z � 9, 181 Vt. 190; see also Crandall & Steams Waiver and Deck Application, No. 134-9-11 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. May 1, 2012) (Walsh, J.) ("The Court's jurisdiction extends to issues explicitly raised in each Question as well as to issues intrinsic to them.") Here, Applicants raised the issue of whether the addition of a rear deck is permissible under the Regulations. Intrinsic to this issue is whether a condition, including one similar to that imposed by the DRB, would be appropriate for this Court to impose in this de novo appeal. Thus, the City's contention that Applicants do not question the validity of the conditions imposed by the DRB is misplaced. We consider both the approval and any conditions under which the DRB approved Applicants' proposed rear deck to be intrinsic to the issue raised in Applicants' Question 5. We therefore DENY the City's cross -motion for summary judgment with respect to Question 5. The parties should prepare to discuss whether the proposed addition of a rear deck complies with the Regulations, including Section 4.08(F). Conclusion For the reasons detailed above, we announce the following conclusions: 1. We GRANT Applican& motion for partial summary judgment with regard to the proposed new covered front porch, new screened rear deck, and two dormers, concluding as a matter of law that such improvements comply with Section 3.11(B)(3) of the Regulations. 2. We DENY Applicants' motion for partial summary judgment with respect to their proposal to enclose an existing front porch and convert a rear deck to an enclosed two-story addition. We await the parties" respective evidentiary presentations at trial before making a final determination of whether these proposed improvements will violate Regulations Section 3.11(B)(3) by increasing the property's non-compliance. 3. We DENY the City's cross -motion for summary judgment with respect to Questions 1, Z 3, and 5 of Applicants' Statement of Questions. The parties should be prepared to present evidence at trial to address the legal questions of whether the proposed enclosure of the existing front porch and the proposed replacement of the rear deck with a two-story addition encroach into the five- foot side yard setback and, if so, may be authorized to do so, pursuant to Section 11 3.06a)(3). Tl-ie parties should also be prepared to present evidence on whether the proposed enclosure of the existing front porch, the proposed conversion of the.rear deck to an enclosed two-story addition, the proposed construction of a new covered front porch, and the proposed addition of a screened rear deck comply with Sections 4.08(F)(2) and 4.08 (F)(3) of the Regulations. 4. We DISMISS Question 4 from Applicants' 2011 Statement of Questions. The parties should now prepare for trial on Questions 1, 2, 3, and 5 of the 2011 Statement of Question with respect to the 2011 Application. The parties should also prepare for trial on Question 3 of the 2010 Statement of Questions, including its subparts, with respect to the 2010 Application.8 As previously scheduled, trial will be held on Tuesday, June 12, 2012 at 9:00 a.m. at the Chittenden Superior Court - Civil Division. Since the Court has already conducted one site visit with the parties, we will defer the decision of whether to conduct a second site visit until the close of trial. Done at Brattleboro, Vermont this 30th day of May, 2012. Thomas S. Durkin, Environmental. Judge 8 Because we determine that the issue of the proposed dormers is not before us, we need not consider that portion of Question 2 in the 2010 Statement of Questions. In its February 4, 2011 Decision, this Court previously resolved a motion for summary judgment on the 2010 Statement of Questions� Question 1 and the remainder of Question 2. See BerlZer & Katz, No. 119-7-10 Vtec, slip op. at 6-7 (Vt. Super. Ct. Envtl. Div. Feb. 4, 2011) (Wright, J.). 12 STATE OF VERMONT SUPERIOR COURT In re: BERGER & KATZ EXPANSION APPLICATION ENVIRONMENTAL DIVISION DOCKET NOs. 119-7- 10 Vtec And 141-9-11 Vtec CITY OF SOUTH BURLINGTON'S OPPOSITION TO APPELLANTS'MOTION FOR RECONSIDERATION NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and hereby opposes "Applicants' Motion for Reconsideration and Clarification of Decision on Cross -Motions for Denial of Summary Judgment" dated June 6, 2012. Memorandum A. THE PROPOSED COVERED FRONT PORCH IS SUBJECT TO REVIEW UNDER §§ 4.08(F)(2) AND (F)(3) EVEN IF SAID PORCH CONFORMS WITH § 3.1100). The Town understands the Court's Order as follows. The Court entered judgment that the covered front porch meets SBLDR § 3.1100, as that is the only section of the SBLDR which they asked the Court to review.' See Decision on - Cross -Motions for Summary Judgment, Conclusion T 1. However, the proposed front porch also must comply with §§ 4.08(F)(2) and (F)(3). See SBDLR 4.080 ('Non -complying Structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots. Non -complying structures shall be subject to the following requirements and restrictions: 1 See January 24, 2012 Applicants' Motion for Partial Summary Judgment T 8. 1 Applicants did not attempt in their summary judgment filings to establish the proposed new front porch would conform with SBDLR §§ 4.08(F)(2) and (F)(3). Therefore, the Court properly ruled that the question whether the proposed new front porch is permissible remains for trial. See Decision on Cross -Motions for_ SummaLry Judgment, Conclusion T 3. B. THE PROPOSED ENCLOSURE OF THE FRONT PORCH AND REAR DECK WOULD VIOLATE § 3.1 l(B)(3) AND OTHER SBLDR SECTIONS SPECIFICALLY APPLICABLE TO THE PROPERTY AT ISSUE. Again, the Town notes that Applicants chose to move for partial summary judgment on the issue whether the proposed enclosure of both their front porch and rear deck meet SBLDR § 3.1 l(B)(3), but compliance with that specific section would not entitle Applicants to proceed with these alterations. To the contrary, § 3.11(D)(1) sets out express requirements for "Alterations to Non -Complying Structures," and the requirements include conformance with § 4.080 for a property, such as Applicants' property, located in the Queen City Park District. Therefore conformance or not with § 3. 11 (B) (3) cannot be dispositive of Applicants' application under the circumstances. Second, an increase in the square footage of a nonconforming structure is, as a matter of law, an increase in the degree of noncompliance of such a structure. Unlike Dunnett, Applicants' proposed enclosure of the rear deck and front porch do not merely involve an increase in volume2. Rather, those alterations would increase 2 The City contends that an increase in volume may present an increase in nonconformity of a 2 the square footage of Applicants' house. Compare In re Dunnett, 172 Vt. 196, 203, 776 A.2d 406, 412 (2001) ("Furthermore, there is no limitation on the volume of structures in the residential -commercial district. And notably, the overall square footage, the overall footprint and the overall percentage of lot coverage were all reduced... ."). Unlike the proposal to enclose the rear deck and the front porch, alterations such as a covered front porch, a screened deck, and dormers do not increase the square footage living space of the property. The Court therefore found those proposed alterations will not increase the degree of noncompliance and thus granted partial summary judgment on the issue of SBLDR § 3.1 l(B)(3). However, the Court was correct to deny partial summary judgment on the issue 3.11 (B)(3) as to those elements of the project which would increase the square footage of Applicants' nonconforming structure. DATED at Burlington, Vermont June 11, 2012. 0 STITZEL, PAGE & FLETCHER, P.C. Attorneys for the CITY OF SOUTH BURLINGTON /s/ John H. Klesch 171 Battery Street, P.O. Box 1507 Burlington, VT 05402 k.\wpdoc\lit\sonl2-00x berger reconsider opp.docx structure. However, it is unnecessary to consider the issue of volume here. 51 EVEN F. $TIT/Fl, PATTI R. PAGE ROREXT E. FLETCHER JOSEPH S McLFAN AMANIM S, E. LAPFFR*I"Y JOHN H, KLESCH DINA L ATWOOD DAVID W, RUGH* (AUSO ADI&TTED IN MD) STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 TELEPHONE (802 660-2555) FAX (802 660-2552) WWW FIRMSPRCOM JKLESCH(i4FIRMSPI7.COM VIA FACSIMILE AND FIRST CLASS MAIL June 8, 2012 Jacalyn Fletcher, Manager Vermont Superior Court Environmental Division 2418 Airport Road, Ste. 1 Barre, VT 05641-8701 Re: Berger and Katz Expansion Application Docket Nos. 119-7-10 Vtec & 141-9-11 Vtec Dear Jacalyn: The City does desire an opportunity to respond to the Applicants' recent motion to reconsider/clarify. However, we will not be able to prepare our response this afternoon. The City intends to prepare the response over the coming weekend and fax it to the Environmental Court by Monday morning June 11, 2012. cc: (via email and first-class mail) Mr. Sheldon Katz Mr. Bruce H. Alvarez Ray Belair, Administrative Officer SON12-036.cor.wpd STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STEVEN F STITZEL PAM R. PAGE ROBERT E FLETCHER JOSEPH S. McLEAN AMANDA S. E LAFFERTY JOHN H. KLESCH DINA L ATWOOD DAVID W. RUGH' '(ALSO ADNUTTED IN MD) Mr. Sheldon Katz 54 Central Avenue South Burlington, VT 05403 TELEPHONE (802 660-2555) FAX (802 660-2552) WWW FIRMSPF COM JKLESCH(&FIRMSPF COM June 4, 2012 Re: Berger and Katz Expansion Application Docket Nos. 119-7-10 Vtec & 141-9-11 Vtec Dear Sheldon: Per your request, enclosed please find a CD which contains the photos I took during the May 2 site visit. Sincerely, d2 e9— cc: Mr. Bruce H. Alvarez Ray Belair, Administrative Officer SON12-033 wpd STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STEVEN F. STITZEL PAM R. PAGE ROBERT E. FLETCHER JOSEPH S. McLEAN AMANDA S. E. LAFFERTY JOHN H. KLESCH DINA L ATWOOD DAVID W. RUGH* *(ALSO ADMITTED IN MD) Jacalyn Fletcher, Manaaer Vermont Superior Court Environmental Division 2418 Airport Road, Suite 1 Barre, VT 05641-8701 - TELEPHONE (802 660-255 5) FAX (802 660-2552) WWW.FIRMSPF.COM JKLESCH@FIRMSPF.COM March 19, 2012 Re: Berger and Katz Expansion Application Docket Nos. 119-7-10 Vtec & 141-9-11 Vtec Dear Jacalyn: The court asked for the City of South Burlington's unavailable dates for a hearing in the above -referenced matter from April 15, 2012 - July 15, 2102. The City is unavailable on the following dates: April 17, 20, 23-27, 30; May 3, 31; and June 6, 19-20. S)�h �Ae r e 1 y, John]H. Klesch cc: Mr. Sheldon M. Katz & Ms. Cla A. Berger Mr. Bruce H. Alvarez V" Ray Belair, Administrative Officer SON12-009.wpd STATE OF VERMONT SUPERIOR COURT In re: BERGER & KATZ EXPANSION APPLICATION ENVIRONMENTAL DIVISION DOCKET NOs. 119-7-10 Vtec And 141-9-11 Vtec AFFIDAVIT I, Raymond J. Belair, being duly sworn, do hereby certify on my personal knowledge as follows: 1. 1 am the duly appointed Administrative Officer for the City of South Burlington and have held this position at all times relevant to this matter. 2. On or about April 25, 2011, Sheldon Katz and Claudia Berger (hereinafter the "Applicants") filed an application (# MS-11-01) for miscellaneous review in connection with a proposed expansion and addition of certain features at their single family dwelling on their property located at 54 Central Avenue in the Queen City Park District in South Burlington. A genuine and authentic copy of the application they submitted is attached hereto as Exhibit A. 3. In connection with the South Burlington Development Review Board's ("'DRB") hearing on application # MS-11-01, Applicants submitted several plat surveys depicting the development proposed in their application. The plat they latest provided to the DRB is entitled "Plat of Survey Sheldon Katz & Claudia Berger Property (Queen City Park Area) No. 54 Central Ave. So. Burlington, Vermont" with a last revision date July 5, 2011. A genuine and authentic copy of this plat (scale reduced) is attached hereto as Exhibit B. 1 I 4. On or about August 30, 2011, the South Burlington Development Review Board issued a written decision ("DRB Decision") on Applicants' aforementioned application. A genuine and authentic copy of the DRB decision is attached hereto as Exhibit C. 5. 1 made a site visit in 2010 to the site of the proposed development. I observed views from inside the Alvarez home, 52 Central Ave., which is located on the parcel adjacent to and northerly parcel of Applicants' parcel. My personal observation is that enclosure of the existing front porch (now located on the northwesterly corner of Applicants' home) at 54 Central Avenue would adversely affect views from the Alvarez home as the enclosure would block -off southwesterly views now available from the Alvarez home. My further personal observation is that a 2-story rear addition on the northeasterly corner of Applicants' home would adversely affect views now available from the Alvarez home as the addition would block -off views of open space toward the rear of Applicants' property. My further personal observation is that the 2-story rear addition would also adversely affect sunlight now reaching the Alvarez home and yard as the addition would block -off space through which sunlight exposure now reaches the Alvarez property. 6. 1 certify that the South Burlington Land Development Regulations ("LDR") provisions printed in italics in the DRB Decision under the several "Conclusions of Law" sections are correct excerpts 2 of the March 15, 2011 LDRs which, I understand, were mailed to the Court by the City's counsel and parties on November 29, 2011. Dated at South Burlington, Vermont thisleday of February 2012. R.-fym-ond J. Befair STATE OF VERMONT CHITTENDEN COUNTY, SS -2q " Subscribed and sworn to before me this +day of February 2012. Atary Noli-c Wy commission 4pires 2/10/2014 3 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURUNGTON, VERMONT 05402-1507 FAX (802 660-2552) STEVEN F_ STITZEL WWW.FIRMSPF.COM PATTIR PAGE JKLESCH@FERMSPF.COM ROBERT E FLETC14ER JOSEPH S. McLEAN AMANDA S E LAFFERTY JOHN H KLESCH DAVID W. RUGH* -(ALSO ADMITTED IN MD) December 9, 2011 Jacalyn Fletcher, Court Manager Vermont Superior Court D_iv-161 -011 2418 Airport Road, Ste. 1 Barre, VT 05641-8701 Re: Berger and Katz Expansion Application Docket No. 141-9-11 Vtec Dear Jacalyn: OF COUNSEL DINA L. ATWOOD I write to advise the Court the City is unavailable for trial on the 'following dates,between Jan. 15 - Mar. 2, 2012: January 18, 19, 25-27, February 1, 2, 8-10, 15, 16, 22-24, 27- March 2. Thank you. Sin'r�erely, H. Klesch CC: Ray Belair, Adminisurative 0 fi er Mr. Bruce H. Alvarez V Mr. Sheldon M. Katz & Ms. Ciaudia A. Berger SHE11-049.cor 7-EL, PAGE & FLETCHER,- Pt ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STEVEN F. STITZEL PATTI R. PAGE ROBERT E ' FLETCHER JOSEPH S. McLEAN AMANDA S. E. LAFFERTY JOHN H ' KLESCH DINA L. ATWOOD DAVID W. RUGH* '(ALSO ADNHTrED IN MD) Jacalyn Fletcher, Manager Vermont Superior Court Environmental Division 2418 Airport Road, Ste. 1 Barre, VT 05641-8701 TELEPHONE (802 660-2555) FAX (802 660-2552) WWW.FIRMSPF.COM JKLESCH@FIRMSPF.COM February 24, 2012 Re: Berger and Katz Expansion Application Docket Nos. 119-7-10 Vtec & 141-9-11 Vtec Dear Jacalyn: Enclosed please find the City of South Burlington's 56(c)(2) Statement of Undisputed Material Facts and Opposition to Appellants' Motion for Summary Judgment and for filing in the above -captioned matter. incVrely, JpfiA H. Klesch Enclosure cc: Mr. Sheldon M. Katz & Ms. Claudia A. Berger Mr. Bruce H. Alvarez Ray Belair, Administrative Officer SON12-005.cor ,TITZEL, PAGE & FLETCHER, PC. TTORNEYS AT ]LAW 171RATTERYSTRFET PO BOX 1507 IRLINGTON, VERMONT 05402-1507 I STATE OF VERMONT SUPERIOR COURT In re: BERGER & KATZ EXPANSION APPLICATION ENVIRONMENTAL DIVISION DOCKET NOs. 119-7-10 Vtec And 141-9-11 Vtec CITY OF SOUTH BURLINGTON'S 56(c)(2)STATEMENT OF UNDISPUTED MATERIAL FACTS RESPONSE TO APPLICANTS' FACTS 2. Objection: Applicants submit no admissible evidence to support this purported statement of fact. Further, the purported fact is of no relevance to the Court's adjudication of the pending motion. 3. Objection: The statement is a legal conclusion, not a statement of fact. Additional construction in an existing non -conforming footprint does, as a matter of law, increase the degree of nonconformity and does trigger development review criteria as discussed in the City's memorandum. ADDITIONAL FACTS 1 . On or about April 25, 2011, Sheldon Katz and Claudia Berger (hereinafter the "Applicants") filed an application (# MS-11-01) for miscellaneous review in connection with a proposed expansion and addition of certain features at their single family dwelling on their property located at 54 Central Avenue in the Queen City Park District in South Burlington. A genuine and authentic copy of the application they submitted is attached to the Affidavit of Ray Belair as Exhibit 1 STITZEL, PAGE & FLETCHER, PC. iTTORNEYS AT LAW 171RATTERYSTREET PO BOX 1507 URLINGTON, VERMONT 05402-1507 A. See Feb. 24, 2012 Affidavit of Ray Belair (hereafter "Belair Affidavit") T 2. 2. In connection with the South Burlington Development Review Board's (""DRB") hearing on application # MS-11-01, Applicants submitted several plat surveys depicting the development proposed in their application. The plat they latest provided to the DRB is entitled "Plat of Survey Sheldon Katz & Claudia Berger Property (Queen City Park Area) No. 54 Central Ave. So. Burlington, Vermont" with a last revision date July 5, 2011. A genuine and authentic copy of this plat (scale reduced) is attached to the Belair Affidavit as Exhibit B. Belair Affidavit T 3. 4. On or about August 30, 2011, the South Burlington Development Review Board issued a written decision ("DRB Decision") on Applicants' aforementioned application. A genuine and authentic copy of the DRB decision is attached to the Belair Affidavit as Exhibit C. Belair Affidavit 1 4. 5. Enclosure of the existing front porch (now located on the northwesterly corner of Applicants' home) at 54 Central Avenue would adversely affect views from the northerly Alvarez home as the enclosure would block -of f southwesterly views now available from the Alvarez home. A 2-story rear addition on the northeasterly corner of Applicants' home would adversely affect views now available from the Alvarez home as the addition would block -off views of open space toward the rear of Applicants' property. The 2-story rear addition 2 would also adversely affect sunlight now reaching the Alvarez home and yard as the addition would block -of f space through which sunlight exposure now reaches the Alvarez property. Belair Affidavit 1 5. DATED at Burlington, Vermont February 24, 2012. k:\wpdoc\1it\son12-007 sumf.docx STITZEL, PAGE & FLETCHER, PC. ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 BURLINGTON, VERMONT 06402,1507 STITZEL, PAGE & FLETCHER, P.C. Atto ,r-P,4�_ys for the CITY OF SOUTH BURLINGTON John lesch 1 71 alery Street, P.O. Box 1507 Bur /in on, VT 05402 3 STITZEL, PAGE & FLETCHER, PC. AXTORNEYS AT LAW 171BATTERYSTREET PO. BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT SUPERIOR COURT In re: BERGER & KATZ EXPANSION APPLICATION ENVIRONMENTAL DIVISION DOCKET NOs. 119-7-10 Vtec And 141-9-11 Vtec CITY OF SOUTH BURLINGTON'S OPPOSITION TO APPELLANTS' MOTION FOR SUMMARY JUDGMENT NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and hereby opposes "Applicants' Motion for Partial Summary Judgment" dated January 24, 2012.1 Further, based on Applicants' failure to adduce evidence upon which they have the burden of proof, as well as affirmative evidence showing their application cannot meet required criteria, the City submits the Court should enter summary judgment against Applicants on all Questions. See V.R.C.P. 56(c)(3) ("Summary judgment when appropriate may be rendered against the moving party."). Memorandum I. TWO OF APPLICANTS' FIVE QUESTIONS STATED ON APPEAL ARE NO LONGER AT ISSUE AND THE COURT SHOULD THEREFORE ENTER SUMMARY JUDGMENT AGAINST APPLICANTS ON QUESTIONS 4 AND 5._ Of the five elements most recently submitted to the South Burlington Development Review Board ("DRB") for application, the DRB found that two elements are permitted. One is project item # 4 as 1 The Motion/Memorandum, Statement of Undisputed Material Fact, and Affidavit are all dated January 24, 2012, but the filings were served by email on the Town January 25, 2012 which date is also the date of Applicants' cover -letter to the Court. 1 STITZEL, PAGE & FLETCHER, PC. ATTORNEYS AT LAW 171RATTERYSTREET PO BOX 1607 BURLINGTON, VERMONT 06402-1507 described in the DRBI s decision: a screened rear deck, conditioned on it being constructed with a maximum nine (9) foot plate height and roof pitch to match the existing house. See August 30, 2011 DRB Decision (Exhibit C to February 24, 2012 Affidavit of Raymond J. Belair) at 15 ("Project Item 4. Add Screened -in Rear Deck - This project item is approved ... ."). For reasons unstated, Applicants included this project item as question # 5 in their 2011 Statement of Questions, and nothing Applicants have filed explains what, if any, issue they have with this aspect of the DRB decision. Because Applicants' Statement of Questions does not appear to question the conditions imposed by the DRB, there is no jurisdictionally valid issue before the Court regarding Applicants' Statement of Questions item # 5 and the Court can and should therefore enter summary judgment on this Question as it is moot. The other DRB-approved element of their application is project item # 5 as described in the DRB's decision, adding a shed dormer on the front (West) and rear (East) sides of their house. See DRB Decision at 15 ("Project Item 5. Add Shed Dormer on Front (West) and Rear (East)) - This project item does not need Board approval."). For reasons unknown, Applicants also list this element of their application in their 2011 Statement of Questions, this item being question # 4. As this project item was also approved by the DRB, there is no valid question presented and the Court should thus also 2 STITZEL, PAGE & FLETCHER, PC. kTTORNEYS AT LAW 171BATTERYSTREET PO BOX 1607 3URLINGTON, VERMONT 05402-1507 enter summary judgment for mootness on Applicants Statement of Questions item # 4. II. THE COURT SHOULD ENTER SUMMARY JUDGMENT AGAINST APPLICANTS ON THE REMAINING THREE QUESTIONS STATED ON APPEAL, EACH PERTAINING TO AN ELEMENT OF APPLICANTS' PROPOSED DEVELOPMENT, BECAUSE APPLICANTS FAIL TO SUBMIT EVIDENCE TO DEMONSTRATE COMPLIANCE WITH ALL APPLICABLE REVIEW CRITERIA. Remaining for consideration are Questions ## 1-3 in Applicants' October 12, 2011 Statement of Questions. These three questions generally challenge the DRB's denial of three elements of their proposed construction at their home as follows: • Question # 1: Enclosing an extant front porch which encroaches into setbacks; • Question # 2: Replacing an extant rear deck, which also encroaches into setbacks, with a two-story enclosed addition on the same footprint as the deck; and • Question # 3: Adding a covered open porch. It is hornbook law that an applicant de novo appealing a land development permit denial to this Court has the burden of demonstrating compliance with all permit requirements. See In re Appeal.of Theresa McLaughlin, Docket No. 42-2-05 Vtec (Vt. Envtl. Ct., March 13, 2006), slip op. at 8 ("Appellant -Applicant must fulfill the burden of proving that her application complies with the applicable zoning ordinance provisions."). In the context of summary judgment, this rule means that Applicants must submit admissible evidence proving, beyond any genuine dispute of material fact, that they meet all criteria for the requested land development 3 STITZEL, PAGE & FLETCHER, PC. LWORNEYS AT 1AW 171BATTERYSTREET PO BOX 1507 URLINGTON, VFRMONT 05402-1507 permit. See In re No_ves CU Permit, Docket No. 98-7-11 Vtec (Vt. Envtl. Ct. , September 26, 2011) , slip op. ("In this de novo proceeding on their zoning permit application, Applicants bear the burden of proof to show that they are entitled to the zoning permit. Because Applicants' pending motion seeks judgment on their appeal in its entirety, we must find that Applicants have met this burden before we can rule in their favor.") ; see also Madden v. Omega Optical, Inc., 165 Vt. 306, 310, 683 A.2d 386, 389 (1996) (citing Poplaski v. Lamphere, 152 Vt. 251, 254-55, 565 A. 2d 1326, 1329 (1989) ) ("summary judgment appropriate where, after adequate time for discovery, party with burden of proof at trial fails to make showing sufficient to establish existence of elements essential to case."). Applicants here fail to submit evidence sufficient to meet their burden of proving compliance with all permit requirements, such that the Court must enter summary judgment against them on Statement of Questions ## 1-3. More particularly, they fail to introduce any facts at all other than to assert that the three rejected items of their application would not enlarge the footprint of their home. They do not present the application criteria which must be met, and they do not present evidence of facts regarding whether such criteria are or are not met. The remark in paragraph 3 of their Statement of Undisputed Facts, that the proposal would not increase nonconformance, is not a fact but rather an incorrect legal 4 3TITZEL, PAGE & FLETCHER, PC. TTORNEYS AT LAW 171BATTERYSTREET PO BOX 1507 iRLINGTON, VERMONT 05402-1507 conclusion. To further demonstrate the improvidence of their motion, the City will lay -out for the Court the review criteria applicable to each of the project elements that pertain to Applicants Statement of Questions ## 1-3. The Court can thereby readily see Applicants' failure to introduce any evidence on -point. 1. Enclos±ng Front Porch (2011 Statement of Quest:Lons # 1) . " And 2. Enclosing Rear Deck with Two Story Add:Ltion Front Porch (2011 Statement of Questions # 2). The City first notes that Applicants' phrasing for their 2011 Statement of Questions question # 1 contains an incorrect assertion, that the current porch "meets current setback requirements. " To the contrary, this Court has already rejected that contention. See February 4, 2011 Decision and Order on Appel lant-Appl icant s ' Motion for Partial Summary Judgment, No. 119-7-10 Vtec, at 1 ("The existing house is noncomplying with the northerly side yard setback of five feet applicable in the Queen City Park zoning district.") . Indeed, it is undisputed based on Applicants' own application that the entire 2 Applicants' phrasing of item #1 of their 2011 Statement of Questions states that the porch meets current setback requirements. This statement is false as discussed below. Second, both Question # 2 and Question # 3 states the proposed construction will not change "exterior square footage. - Square footage means interior living area such that the comment is without meaning. 5 STITZEL, PAGE & FLETCHER, PC. MORNEYS AT LAW 171BATTERYSTREET PO BOX 1507 3URLINGTON, VERMONT 05402-1507 northerly side of the house, the proposed site for both the enclosed front porch (2011 Statement of Questions project item # 1) and the proposed two story addition in the location of a current rear deck (2011 Statement of Questions project item # 2), is less than five feet from the side yard property line. Applicants indicated to the Court, in connection with the motion which was the subject of the February 4, 2011 Decision and Order, that they would obtain a survey of the distances from the house structures to the side yard property line. Id. at n. 1. They did so and presented it to the DRB as part of their application which is the subject of this appeal. Their survey shows the northwest corner of the existing covered porch is "4' +/-" from the side yard property line, the easternmost corner of said porch is "3.51 +/-" from the side yard property line, and the northeasternmost corner of the proposed addition would be 3' from the property line. See Affidavit of Ray Belair, Exhibit B (Applicants' July 5, 2011 Plat, their latest -submitted plan presented to DRB in connection with the application under appeal here). Because the enclosed front porch and the rear addition are both proposed to be less than five -feet from the northerly side yard property line, these two aspects of the application, and hence Statement of Questions ## 1 and 2, can be addressed together. ADDlicable Criteria DO 3 11 0 3TITZEL, PAGE & FLETCHER, PC. TTORNEYSATLAW 171 BATTERY STREET PO BOX 1507 iRLINGTON, VERMONT 06402-1507 It is undisputed that Applicants' property was developed prior to February 28, 1974. Therefore, § 3.06(J)' of the SBLDR applies. This section includes: (1) Side and Rear Setbacks. ... [Iln no event shall a structure have a side setback of less than five (5) feet. (3) Additional Encroachment Subject to DRB Approval. Encroachment of a structure into a required setback beyond the limitations set forth in (1) and (2) above may be approved by the Development Review Board subject to the provisions of Article 14, Conditional Uses, but in no event shall a structure be less than three (3) feet from a side or rear property line or less than five (5) feet from a front property line. In addition, the Development Review Board shall determine that the proposed encroachment will not have an undue adverse affect on: (a) views of adjoining and/or nearby properties; (b) access to sunlight of adjoining and/or nearby properties; (c) adequate on -site parking; and (d) safety of adjoining and/or nearby property. (4) Processing of a Request. Any request under subsections (l)-(3) above to expand an existing structure, or place a new structure, to within less than ten (10) feet of any property line shall include the submission of survey data prepared by a licensed surveyor showing the location of affected property lines, existing and/or proposed structures, and any other information deemed necessary by the Administrative Officer. In addition to setbacks, non -complying structures in the Queen City Park District, of which Applicants' home is one such structure, 3 "Exce-otions to Setback and Lot Coverac[e Reciuirements for Lots Existina Prior to February 28, 1974. The following exceptions to setbacks and lot coverages shall be permitted for lots or dwelling units that meet the following criteria: the lot or dwelling unit was in existence prior to February 28, 1974, and the existing or propos.ed principal use on the lot is a single-family dwelling or a two-family dwelling." 7 STITZEL, PAGE & FLETCHER, PC. dkTTORNEYS AT LAW 171RATTERYSTREET PO. BOX 1507 WRLINGTON, VERMONT 05402-1507 must satisfy § 4. 08 (F) of the SBLDR. 4 Alterations to such structures which increase the square footage of the building are prohibited unless they meet criteria for approval of a conditional use. See SBLDR § 4.08(F)(2). It has already been determined that enclosure of the extant front porch would increase the square footage of Applicants' home, see February 4, 2011 Decision and Order at 6, and it is self-evident that a two-story addition to the rear would increase the square footage. Thus, § 4. 08 (F) (2) provides a second, separate authority (i.e., in addition to § 3.06(J)(3)) requiring Applicants to demonstrate they meet all conditional use criteria. Also similar to § 3.06(1)(3), § 4.08(F)(2) requires that the DRB "shall determine" an alteration or expansion of a noncomplying structure in the Queen City Park District, irrespective of square footage increases, will not adversely affect: a. Views of adjoining and/or nearby properties; b. Access to sunlight of adjoining and/or nearby properties; and C. Adequate on -site parking. Section 4. 08 (F) (3) . As compared to § 3.06(J) (3), which requires a 4 Per the Court's prior determination that Applicants' home is a noncomplying structure by virtue of its existing encroachment into the side yard setback, SBLDR § 3. 11 (D) ("Alterations to Non -Complying Structures") may also apply. However, the potential applicability of this section does not alter the foregoing discussion that Applicants must prove compliance with § 3.06(J), because setback compliance is required under § 3.11(D). See SBLDR § 3.11(D)(1) ("In the event an addition or.an expansion to a building or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements")). Xe STITZEL, PAGE & FLETCHER, PC. kTTORNEYS AT IAW 171BATTERYSTREET PO. BOX 1507 WRLINGTON, VERMONT 06402-1507 finding of no undue adverse impact on similar features, § 4. 08 (F) (3) prohibits development if there is any adverse effect. Absence of Evidence Applicants fail to submit any evidence to prove the proposed front porch or the proposed rear two-story addition meets required setbacks. Their January 24, 2012 Statement of Undisputed Material Facts (and supporting affidavit) contains no facts indicating the distance of proposed construction from the side yard boundary line applicable setback. Rather, their Statement contains only what appears to be legal argument that, because the current footprint is nonconforming with applicable setbacks, they are entitled to construct whatever they please as long as they stay within the extant nonconforming footprint. Therefore, Applicants have submitted no evidence whatsoever to meet the applicable permit criteria. They have not submitted any evidence - let alone evidence that proves their case beyond any genuine dispute - that the front porch enclosure or the rear two-story addition would have no undue adverse effect on views of adjoining and/or nearby properties, on access to sunlight of adjoining and/or nearby properties, on adequate on -site parking, or on safety of adjoining and/or nearby properties. They have not submitted admissible evidence showing the location of proposed construction of the enclosed front porch, as their surveyor's plan has an 9 I STITZEL, PAGE & FLETCHER, PC. ffTORNEYS AT IAW 171BATTERYSTREET RO BOX 1507 �URLINGTON, VERMONT 05402-1507 indeterminate "+/-" indicator for several measurements. Finally, they have submitted no evidence purporting to establish compliance with conditional use review criteria for either the front porch or 5 the rear two-story addition. For the most basic reason of failure to meet their burden of submitting admissible evidence demonstrating compliance with all applicable regulations, the Court should enter summary judgment against Applicants on items #1 and #2 of their 2011 Statement of Questions. 3. Addition of New Covered Pront Porch (2011 Stat nt of Questions # 3). Applicable Criteria There is no concern regarding setbacks of the proposed new covered porch. See Ray Belair Affidavit Exhibit B. However, the addition of a new porch would constitute an addition to a 5 Pursuant to Section 14. 10 (E) of the SBLDR, a proposed conditional must meet the following standards: 1. The proposed use, in its location and operation, shall be consistent with the planned character of the area as defined by the City of South Burlington Comprehensive Plan. 2. The proposed use shall conform to the stated purpose of the district in which the proposed use is located. 3. The Development Review Board must find that the proposed uses will not adversely affect the following: (a) The capacity of existing or planned municipal or educational facilities. (b) The planned character of the neighborhood or district in which the property is located, nor ability to develop adjacent property for appropriate uses. (c) Traffic on roads and highways in the vicinity. (d) Bylaws in effect. (e) Utilization of renewable energy resources. 10 STITZEL, PAGE & FLETCHER, PC. MORNEYS AT LAW 171BATTERYSTREET RO BOX 1507 IURLINGTON, VERMONT 05402-1507 non -complying building or structure in the Queen City Park District, and this addition would increase the building's footprint. Id. Therefore, SBLDR § 4.08(F)(2) is triggered: (2) The Development Review Board may approve any alteration which exceeds the thirty-five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint, or square footage subject to the provisions of Article 14, Conditional Use Review. 6 Also, for any noncomplying addition in the Queen City Park District, proposed development must meet § 4.08(F)(3) (no adverse effect whatsoever on views, sunlight, or parking) as well. Absence of Evidence Again, Applicants have introduced no evidence showing the proposed new front porch meets conditional use criteria, as required by § 4.08(F)(2). They also have introduced no evidence showing compliance with § 4.08(F)(3). Therefore, because Applicants have produced no evidence as to facts for which they have the burden of proof at trial - i.e, compliance with all applicable criteria for construction of the proposed new front porch - the Court should also enter summary judgment against Applicants on item # 3 of their Statement of Questions. 6 See footnote 5 above for conditional use review criteria. 11 11 STITZEL, PAGE & FLETCHER, PC. ATTORNEYS AT LAW 171BATTERYSTREET PO. BOX 1507 BURLINGTON, VERMONT 05402-1507 III. THE COURT SHOULD ENTER SUMMARY JUDGMENT AGAINST APPLICANTS ON STATEMENT OF QUESTION ITEMS # 1 AND # 2 BECAUSE IT IS UNDISPUTED THAT THE PROPOSED ENCLOSED FRONT PORCH AND REAR TWO-STORY ADDITION WOULD AFFECT VIEWS AND/OR SUNLIGHT AT THE NEIGHBORING PROPERTY._ As discussed above, the SBLDR prohibit Applicants' proposed construction if there is any adverse effect on either views benefiting adjoining properties or access to sunlight for adjoining properties. Ray Belair made a site visit in 2010 during which he observed the location of the existing front porch proposed for enclosure (Statement of Questions item # 1) and the existing rear deck proposed for replacement by a two-story addition (Statement of Questions item # 2). See Ray Belair Affidavit 1 5. His affidavit presents eye -witness evidence that these projects would block views and, in the case of the rear two-story addition, sunlight now benefiting the adjacent Alvarez property to the north of Applicants" house. Id. Although the City has no burden of proof in the context of Applicants' application and motion for partial summary judgment, Mr. Belair's affidavit does nonetheless establish undisputed evidence that the proposed front porch enclosure and rear two-story addition do not meet required criteria under the SBLDR. Therefore, not only is there a dearth of evidence from Applicants, the evidence which exists proves these two elements of their project cannot meet SBLDR requirements. The Court should therefore enter summary judgment 12 ri against Applicants on Statement of Questions items # 1 and # 2 on this basis as well. Conclusion Of the five items in Applicants' Statement of Questions, two are not at issue (items # 4 and # 5). As to items ## 1, 2, and 3, these questions concern proposed development for which Applicants have the burden of submitting undisputed facts proving compliance with all permit criteria. As demonstrated beyond doubt supra, they have not submitted any evidence even relevant to whether their application meets these criteria. For this reason, the Court should enter summary judgment against them on their Questions ## 1-3. Moreover, the City has introduced affirmative evidence that Applicants' proposed front porch enclosure (Statement of Questions item # 1) and rear two-story addition (Statement of Questions item # 2) do not, in fact, meet required criteria. This affirmative undisputed evidence is further basis for the Court to enter judgment against them on Questions ## 1 and 2. Wherefore, the Court should deny Plaintiffs' motion and enter summary judgment against them on all items in their Statement of Questions. STITZEL, PAGE & FLETCHER, PC. 4,TTORNEYS AT LAW 171BATTERYSTREET PO. BOX 1607 BURLINGTON, VERMONT 06402-1507 13 DATED at Burlington, Vermont February 24, 2012. STITZEL, PAGE & FLETCHER, P.C. Atto s for the CITY OF SOUTH BURLINGTON 1, By: John K esch 1 71 Ba�t ry Street, P.O. Box 1507 Bur ringln, VT 05402 k:\wpdoc\1it\son12-005 berger msj opp.docx STITZEL, PAGE & FLETCHER, PC. =ORNEYS AT LAW 171BATTERYSTREET PO. BOX 1507 WRLINGTON, VERMONT 05402-1507 14 STATE OF VERMONT SUPERIOR COURT In re: BERGER & KATZ EXPANSION APPLICATION ENVIRONMENTAL DIVISION DOCKET NOs. 119-7-10 Vtec And 141-9-11 Vtec AFFIDAVIT I, Raymond J. Belair, being duly sworn, do hereby certify on my personal knowledge as follows: 1. 1 am the duly appointed Administrative Officer for the City of South Burlington and have held this position at all times relevant to this matter. 2. On or about April 25, 2011, Sheldon Katz and Claudia Berger (hereinafter the "Applicants") filed an application (# MS-11-01) for miscellaneous review in connection with a proposed expansion and addition of certain features at their single family dwelling on their property located at 54 Central Avenue in the Queen City Park District in South Burlington. A genuine and authentic copy of the application they submitted is attached hereto as Exhibit A. 3. In connection with the South Burlington Development Review Board's ("DRB") hearing on application # MS-11-01, Applicants submitted several plat surveys depicting the development proposed in their application. The plat they latest provided to the DRB is entitled "Plat of Survey Sheldon Katz & Claudia Berger Property (Queen City Park Area) No. 54 Central Ave. So. Burlington, Vermont" with a last revision date July 5, 2011. A genuine and authentic copy of this plat (scale reduced) is attached hereto as Exhibit B. 1 I 4. On or about August 30, 2011, the South Burlington Development Review Board issued a written decision ("DRB Decision") on Applicants' aforementioned application. A genuine and authentic copy of the DRB decision is attached hereto as Exhibit C. 5. 1 made a site visit in 2010 to the site of the proposed development. I observed views from inside the Alvarez home, 52 Central Ave . , which is located on the parcel adjacent to and northerly parcel of Applicants' parcel. My personal observation is that enclosure of the existing front porch (now located on the northwesterly corner of Applicants' home) at 54 Central Avenue would adversely affect views from the Alvarez home as the enclosure would block -off southwesterly views now available from the Alvarez home. My further personal observation is that a 2-story rear addition on the northeasterly corner of Applicants' home would adversely affect views now available from the Alvarez home as the addition would block -off views of open space toward the rear of Applicants' property. My further personal observation is that the 2-story rear addition would also adversely affect sunlight now reaching the Alvarez home and yard as the addition would block -off space through which sunlight exposure now reaches the Alvarez property. 6. 1 certify that the South Burlington Land Development Regulations ("LDR") provisions printed in italics in the DRB Decision under the several "'Conclusions of Law" sections are correct excerpts 2 I of the March 15, 2011 LDRs which, I understand, were mailed to the Court by the City's counsel and parties on November 29, 2011. Dated at South Burlington, Vermont thisdv-2� I& day of February 2012. 4/ Ra6rn�ond J. Befair STATE OF VERMONT CHITTENDEN COUNTY, SS Subscribed and sworn to before me this 2q -tay of February 2012. LJOA Atary �ulff ic Wy commission 4pires 2/10/2014 3 BELAIR AFFIDAVIT EXHIBIT A --------------- south-, - PLANNING ZONING Perinit # X� ( 06 Vve mly) CONDITIONAL USE / VARIANCE / MISCELLANEOUS APPLICATION FOR THE DEVELOPMENT REVIEW BOARD All information requested on this application must be completed in full. Failure to provide the requested information either on this application form or on the site plan will result in your application being rejected and a delay in the review before the Development Review Board. I understand the presentation procedures required by State Law (Section 4468 of the Plaiming & Development Act). Also that hearings are held twice a month- That a legal advertisement must appear a . irrium of fifteen (15) days prior to the hearing. I agree to pay a hearing fee which is to off -set the cost of the hearing. Type of application (check one): a O-equest for a conditional use ) �pquest for a variance 1) OWNER(S) OF RECORD (Name(s) as shown on deed 9miling address, phone & fax <:�Lk u, vJ Re rac> t- av-A <t-,e-(d, A 1-67 "L 2) LOCATION OF LAST RECORDED DEED (book& page 3) APPLICANT (name, mailing address, phone, fax #) <::?--kyyV10 4) CONTACT PERSON (person who will receive staff correspondence. Include name, mailing address, phone & fax #, if different from above): a. Contact e-mafl address: comea-��r ti e4- S75 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburi.com ri 5) PROJECT STREET ADDRESS: 15Qojy\.e_ 6) TAX PARCEL ED #.- 7) PROJECT DESCRIPTION a. General Project D ' tion (describe what you are proposing): ArJrvt�e ­"A4- pard, 5pp AA eA-rz�,-t- aarck% rear- A e>&e,,td OwS; &9J0(e_ ro&c. OJA q e-d w —or d e_c, L, cJJ skeA J?-�r m g::a o ri J56 WIx-ge-Ar'i nr�_Idd� I no ckettr�e In ht -orl rlj�g I' _J 1 -.0 -.1 b. Exis ' 9 Uses on Property (including description and size of each separate use): c. ProposePses on Property ude description and size of each new use and existing uses to remain): d. Total building square footage on property (proposed buildings & existing building to Nw)")-g New = + (6o,- e. Height of building & number of floors (proposed buildings and existing bWldings to remain, specify if basement & mezzanine).'1A 6 -(Loc-S abov e "�e_ '".i f Number of residen (if applicable, new units & existing units to remain): g. Number of employees & company vehicles (existing & proposed, note office vs. non -office employees): A 10- h. Other (list any other information pertinent to this application not specifically requested above, please note if overlay districts are applicable): A 10, 2 Conditional Use / Variance IMIscefianeous Applicadon Form. Rev. 12-2010 n5 8) LOT COVERAGE & Total parcel size: 1435c) Sq. Ft. b. Buildings: Existing --'� 4 1 — % / — N" Sq. Ft Proposed 3q, '+ % / T&-35--Sq. Ft. c. Overall impervious coverage (building, parldng, outside storage, etc) Existing q3,3 Sq.Ft Proposed 41�- Sq.Ft. d. Front yard impervious coverage (building, parking, outside storage, etc) Existing % / Sq. Ft. Proposed % Sq. Ft. e. Total area to be disturbed during construction: 0 Sq. Ft. * Projects disturbing more than one-half acre of land must follow the City's specifications for erosion control in Article 16 of the Land Development Regulations. Projects disturbing more than one acre require a permit from the Vermont Department of Environmental Conservation. 9) COST ESTIMATES a. Building (including interior renovations): S /06., 66 0 b. Landscaping $ S,000 c. Other site improvements (please list with cost): 10) ESTIMATED TRAFFIC: a. P.M. Peak hour for entire property (in and out): 11) PEAK HOURS OF OPERATION 12) PEAK DAYS OF OPERATTON i-� L&L 13) ESTIMATED PROJECT COMPLETION DATE-0 moE . qNer b ld.::; aerm / rf- 14) OWNERS OF RECORD OF ALL CONTIGUOUS PROPERTIES & MAILING ADDRESSES (this shall be provided on a separate attached sheet and on pro -stamped and pre - addressed envelopes. The city will add the return address). m-cc A rc-z; Pi dACAv-d Wki'�e s7z. Ceo+red Ave, 56 aexfra Aie, Condftnsl Use / Variance IMiscelleneous Appffcagon Form. Rev. 12-2010 I 15) PLANS AND FEE Plans "I be submitted which shows the information required by the City's Land Development Regulations. Five (5) regular size copies and one reduced copy (I I " x 17") of the plans must be submitted. A subdivision application fee shall be paid to the City at the time of submitting the application. See the City fee schedule for details. I hereby certify that all the informatim requested as part of accurate to the best of my knowledge. h SIGNATUR SIGNATURE OF PROPERTY OWNER DATE OF SUBAUSSION: application has been subtnitted and is Do not write below this line I have reviewed this application and find it to be: 0 eIC4 00, W L ET E U Incomplete 911 'INTITIUM-1-3-, 9 The applicant or permittee retains the obligation to identiA applyfor, and obtain relevant state permits for this project. Call (802) 879-5676 to speak with the regional Permit Specialist. Candfionel Use / Vniance / MkwWlaneous Appffbeflon Form. Rev. 12-2010 RAYMOND BELAIR AFFIDAVIT EXHIBIT B B-Alvarez Vot-Ze-1 P.1-493 vat -?-A' vs-ZIS(Yn") LIj V) LEGEN exl,s+-Iv)l Ir-on Pon la 0 -; saf, 0 rj'-R.SpW. In p,.VW4 . to y 9.9� ZT0 5 - Katz C. S er,�w- V-(. 24, p3, Z-IS- (M N F�tevl I.A k E 't. A l8c; Hou.se No.54 0 -lei 00 00 4. 0 IV 41- 3 iw 7ln-!fj d1p 0 1;0 V -41 CENTRAL AVE. 10 0,39' RECEIVED M/0 Survey Is based on physleal a v1dence found In the fleld and information abstracted JUL 0 5 2011 f4om deeds and otherpertlaent records and ffils survey Is consistent with that evidence, Cky of So. Budington Ms plot conforms to 27 V.S.A. sectlon.1 403, PLAT OF SURVEY SHELDON KATZ jCLAUDIA BERGER PROPERrY(QUEEN C17Y PARK AREA) WARR NO.54 CENTRAL AVE. So-SURLINGMNVERMONT A. ROSENfirnITIN Rmjuly &.201*1 611 DRAWN by NO. 48 DATE: M a _v 20,2004 SCALE: I"= 'd W.A.R. PROVED BY au WARREN A. ROBENSTIEN, REG. VT & . NH L.S. W-A-R, F.D. BOX 171 WINOOSKI, VT 05404 DRAWING NUMBER (802) 878-2359 e From our front porch south facing w- dow Picture 1 — As is Picture 2 — porch enclosed and new porch Picture 3 — porch enclosed and new porch with wood storage. Corner living room window Picture 1 — As is (before wood storage). Picture 2 — with porch enclosed and new porch Picture 3 — porch enclosed and new porch with wood storage. Living room South window Picture 1 — As is (before wood storage). Picture 3 porch enclosed. Picture 2 — with wood storage Dining room — west window Picture f — As is. Picture 2 — As is with wood storage Picture 3 — porch enclosed. South kitchen window Picture 1 — As is. Picture 2 — with deck enclosed. The window would never be in full sun and would have direct light for 20 minutes a day or less fall through winter and into spring. I Mudroom window at noon in November, the house would start blocking the sun as shown by the tree shadow line. Kitchen door at noon in November. The sun would already be blocked. Mudroom at 2 PM in November..) From kitchen door. The sun would be totally blocked as shown by the shadow line in the yard. The sun to the window would be totally blocked where it is currently in full sun at this time. From upstairs. The fence shadow line shows all sun would be blocked ( M RR COPY Comments to the DRB with respect to the application of Sheldon Katz and Dr. Claudia Berger (MS#11-01): Measurements - The applicants' have failed to correct the measurement errors from their filing one year ago: a. The measurements on the drawing suggest that the rear of the house is 1.5 feet narrower than the front. I seriously doubt this to be true. b. Since the side lot lines converge toward the rear of the lot, and the rear of the house is approximately'/4 of the distance from the road, the width of the lot at the rear of the deck can be no greater than approximately 43.3 feet. Per the applicants' diagram, the lot is 44.3' wide at the rear of the deck. Applicants' measurements are equally suspect with respect to the dimensions of the rear deck. It was built with 12' joists with "2 by" rim joist and ledger boards. As such, the deck is not 11'6" in depth but 12'3". c. Are the applicant's requesting to build on the current footprint or are they requesting to build to the dimensions on their drawing? d. The application makes no mention of steps either from the back of the house nor from the requested 6x 10 front porch. These would enlarge the footprint beyond what the applicants have stated. e. The applicants have not provided a current appraisal from which the board can determine if they are in compliance with the 35% limit. f. Perhaps the applicants should provide accurate measurements and information to the zoning department and DRB before their application is considered. 2. Setbacks: a. While the applicants' have repeatedly footnoted "actual distance to be determined" with respect to the lot lines and the distance to their house, they have done nothing to that end in the year since their first application was rejected. As their east and south side rear retaining wall was built per their 2004 survey, the north lot line should be sited per their survey unless a conclusive future survey shows otherwise. This puts the corner of the rear deck, and the corner of their proposed addition, at less than 26" from the lot line. This is not a legal distance for the existing deck nor a "finished space" replacement under any existing QCP zoning regulation. b. In their final paragraph, the applicants cite 4.08G's text: "Non -complying structures shall be subject to the following requirements and restrictions" as `proof that they are the ONLY requirements. As before, and in many other instances in the past year, the applicants ignore other relevant text that disproves their assertion. In this case the phrasing in 3.11 D: "Except as otherwise noted" AND 4.08G: "Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 11..." are not mentioned. Clearly the writers of these regulations did NOT intend that 4.08G set out the entirety of regulations for non -conforming structures in QCP, only those that supercede or add to 3.11D. c. In the same "word smithing" manner the applicants' failed to convince the Environmental Court judge that 4.08G supercedes 3.11D in its entirety, they are attempting to do the same with the South Burlington DRB. In fact, 4.08G only changes the requirement that the cost of a project is capped at 35% of the current ASSESSED value to 35% of the current APPRAISED value and adds the restrictions related to views, sunlight and parking. Had those who created the regulations intended that non- conforming structures in QCP be exempt from any side setback rules, it would have been stated in this section. d. The applicants' expect the DRB to believe that there are no setback requirements for non conforming structures in QCP based on the approval of the Ahlada's project (MS-08-04 and MS-08-07). I find no reference to the side lot distance in the documentation filed by the DRB so I must conclude that the DRB did not discuss the fact that the application violated both the QCP 5' setback and the potential to legally allow a minimum of 3' setback per 3.06J(3). I see no reason why this oversight should be considered a precedent that must be followed in perpetuity as the applicants say is required. 3. Views and sun: a. In her initial application, Ms. Ahladas requested a 1 story enclosure of an existing rear deck. There is a statement in the DRB file that a 1 story addition as designed would not affect sunlight. Ms. Ahladas subsequently came back to the DRB with a request to build the addition as a 2 story structure with a somewhat larger footprint than requested in the originally approved application. The documentation shows that "Based on testimony given at the hearing" views and sunlight do not appear to be impacted. The potential for impact was based on the north side neighbor's approval of the project, not a site visit to independently assess the potential impact to 5 Pavilion. b. The DRB members made a site visit to 52 Central related to the applicants' request a year ago. The result was a finding that views and sunlight would be adversely impacted and the application was rejected. I have additional facts to document the impact to sunlight in the Fall, Winter and Spring — measurements taken November 13th, 2010. There were 5 hours of sun from sunrise to "solar noon" on that day. If built: i. The sun in the window by the stove would drop from 2 hours 25 minutes to 20 minutes. At no time would the window be in full sunlight. ii. The sun in the greenhouse window would drop by two hours. iii. The sun in the back door (all glass) would drop by an hour. iv. The sun in the mudroom window would drop by 1 hour 40 minutes. Current zoning for the SE Quadrant states that 35% of the translucent windows and surfaces should be oriented to the south. Clearly the planners agree on the importance of south facing windows in the fall, winter and spring. There is no reason an existing structure should lose it's south facing light simply because someone immediately south of them and 8 feet away has a desire to enlarge their house. d. In an effort to `prove' that there is no view to the lake to lose from the westernmost window on the south wall of our house, the applicants built a rack to store 1 row of firewood 6 feet high along the north side of the front porch. All other wood was at or below the height of the rail or on the back deck. The wood in the 6' stack above the rail would have easily fit in the other racks. All of the lower wood on the front porch was used before any of the wood on the back deck. All of the wood on the back deck was used before any in the 6' stack. All but about 3 pieces in the 6' stack remain even though temperatures were similar to those once the applicants had used up all the other wood. I do not dispute their right to pile anything they like on their deck to intentionally or incidentally block our view to the lake, but allowing enclosure of the porch would make the blockage permanent and irreversible no matter who lives at 54 Central. I do not believe this is a reasonable request to grant. 4. Neighborhood: a. The applicants' contend that the board has never denied an application in QCP and suggest none should be rejected in the future because of that `history'. In fact, both of these premises are incorrect. If a project does not meet requirements of the zoning laws, the board is not required to approve it regardless of how many prior applications were or were not rejected. Other applications have been rejected with subsequent changes to the application approved. Specifically, 106 Central was turned down as being too close to Potash Brook when originally proposed. The next iteration was turned down as being too high on the east side (these might be reversed in order). The existing house is a compromise agreed by the board and the owner of the property. b. Applicants again refer to QCP's zoning regulations being formed to encourage development consistent with the neighborhood's historic character of high density and reduced setbacks and as such the setback requirements do not apply to their application. They infer that the QCP description is de facto carte blanche to do anything to any property regardless of impact to others. I will again point out that when the zoning for QCP was changed, it was with respect to the fact that few, if any, houses in the neighborhood met the 15' side and 30' front/rear setback and the lot coverage requirements. As such, NO work could be done without DRB review and approval. The 5' and 10' setbacks were chosen because they put most houses in compliance so work could be done without DRB involvement, not to encourage building to the maximum permissible limits on small lots. c. The house at 54 Central is NOT a winterized camp desperately in need of updating to meet modern standards. It was totally rebuilt and expanded into a year round house over 20 years ago. With a finished size of about 1,600 sq ft, it is larger than approximately 60% of the houses currently in the neighborhood yet the lot at 54 Central is in the bottom third by size. i. Of those houses that are larger, few are on smaller lots and several have no garage or basement for storage (this includes the Ahladas house). ii. Most bigger houses are on lots that are 110% to 1000% larger than 54 Central. iii. Of the houses that are smaller than 54 Central, about half are 75% or less in finished square footage and less than a third are on smaller lots. iv. If their application is granted, 54 Central will be about 2250 sq ft and in the top ten largest houses in QCP with the larger houses being on lots anywhere for 140% to 1000% larger. I do not think that this is `in line' with the character of the neighborhood, nor is there a requirement for the board to approve any request simply because "the neighborhood is already tight" as the applicants suggest. d. The applicants bought a house specifically designed for a family of 2 parents and 1 teenager. i. The 2"d floor consists of a master bedroom with a'/4 bath, one very large bedroom, one small guest bedroom and a full bath with laundry. ii. The first floor holds the kitchen, dining area, living room and a den with a '/2 bath behind the garage. iii. That the applicants have a family of 4 does not mean that the house is too small with the sole remedy being to expand and encroach on their neighbors. It means only that the house is configured incorrectly for their family. In fact, 54 Central is about the same size as 50 Central which is occupied by 2 parents and 3 children. iv. There are any number of ways the existing space at 54 Central can reconfigured to gain usable space including their proposed shed dormers over the master bedroom and bath. Additional space can be had with a much smaller addition than the applicants are requesting that would not encroach on our light and views. If they truly "need" 2,200+ sq ft of finished space, perhaps there are other neighborhoods that better suit their requirements. Bruce Alvarez 52 Central Ave South Burlington, VT 05403 ( Bruce Alvarez 52 Central Ave South Burlington, VT 05403 o FRE COPY 802-862-7451 In as much as the applicants have already blocked our view from several windows to the park and lake with a stack of unused firewood on the front porch, it will not be possible for the DRB members to see that view and ascertain the impact of enclosing the front porch during the site visit. Additionally, since there is no side elevation drawing of the proposed porch provided to the board members, it will be difficult to determine the impact of that new structure. I am providing these pictures and mock-ups to show the impact on light and views from various windows in our house. If the applicants felt the need to store wood in this manner on the front porch last year (having never done so before), I assume they will have the same need in the future as they would have much less porch space and no rear deck on which to store wood if their request were to be granted. The mock-up pictures reflect that. These pictures do not show the total of all impacted windows, only those with the most impact. Almost every window on the east and south side of our house, including those in the basement, will be affected to some degree. However, I think these specific windows are more than enough to show the negative impact permanent structures replacing the rear deck and front porch would have on views and sunlight. It is worth noting that while the applicants' do not feel our views will be significantly impacted by permanent opaque structures, they planted their plum tree offset from their kitchen window (after consulting with us) so it would lessen the impact of their view to the park Likewise, the prior owners placed the shed in the back yard at the north lot line so it wouldn't block their view of the ravine. Bruce Alvarez 14 July 2011 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 FAX (802 660-2552) STEVEN F STITZEL WWW.FIRMSPF COM PATTI R PAGE JKLESCH@FIRMSPF COM ROBERT E FLETCHER JOSEPH S.McLEAN AMANDA S E. LAFFERTY JOHN H.KLESCH DAVID W. RUGH* '(ALSO ADNUTeED IN MD) November 29, 2011 Jacalyn Fletcher, Court Manager Vermont Sunerior Court Environmental Division 2418 Airport Road, Ste. 1 Barre, VT 05641-8701 Re: Berger and Katz Expansion Application Docket No. 141-9-11 Vtec Dear Jacalyn: OF COUNSEL DINA L. ATWOOD Please find enclosed copies of the City of South Burlington Land Development Regulations effective January 11, 2010 and March 15, 2011. The application which is the subject of 119-17- 10 was filed on/about April 12, 2010, subject to the January 11, 2010 Regulations. The application which is the subject of 141- 9-11 was filed on/about April 11, 2011, subject to the March 15, 2011 Regulations. We have provided these copies in PDF format on CD due to the size of the documents. Should the Court prefer paper copies, we will promptly submit thc<i�. erely, H. Klesc Enclosures CC: Ray Belair, Administrative Officer (w/o encl.) Mr. Bruce H. Alvarez Mr. Sheldon M. Katz & Ms. Claudia A. Berger SHE11-049.cor sOuthl) i w. w° s' PLANNING & ZONING Permit # -�- D office ae 0*) CONDITIONAL USE / VARIANCE / MISCELLANEOUS APPLICATION FOR THE DEVELOPMENT REVIEW BOARD All information requested on this application must be completed in full. Failure to provide the requested information either on this application form or on the site plan will result in your application being rejected and a delay in the review before the Development Review Board. I understand the presentation procedures required by State Law (Section 4468 of the Planning & Development Act). Also that hearings are held twice a month. That a legal advertisement must appear a minimum of fifteen (15) days prior to the hearing. I agree to pay a hearing fee which is to off -set the cost of the hearing. Type of application (check one): equest for a conditional use ( ) R uest for a variance ( fDter 1) OWNER(S) OF RECORD (Name(s) as shown on deed ling address, phone & fax #): C" l' (I C7 . \,2. Wo.1 2) LOCATION OF LAST RECORDED DEED (book & page #) ce��L.12 3) APPLICANT (name, mailing address, phone, fax #) 4) CONTACT PERSON (person who will receive staff correspondence. Include name, mailing address, phone & fax #, if different from above): a. Contact e-mail address: 575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburl.com J 5) PROJECT STREET ADDRESS: 6) TAX PARCEL ID #: 7) PROJECT DESCRIPTION a. General Project Des ' tion describe what you are proposing): - V\ .: �v 0 -cik J P ( Y P P g)� 1_ cc-,r_: ��l �a,,f /'orct\ , c__v,c((Ec.r C,5:30 ( roof c t�( <,c/Ir-eJ.,% e d �, n C'r �l e r'-'M � C�nf r►'� �r s ca r'1 e kinc.uivt<<f rn kty` r'-(._ b. Exis ng Uses on Property (including description and size of each separate use): c. Propose�Uses on Property (- lude description and size of each new use and existing uses to remain): E n i d ei T i C� d. Total building square footage on property (proposed buildings & existing building to remain): e. Height of building & number of floors (proposed buildings and existing buildings to remain, specify if basement & mezzanine): C i, ; c3�ac S �� t �`� ��(: r G��� v e _ e '�gove' 4C-C4 f. Number of residentjal Units (if applicable, new units & existing units to remain): g. Number of employees & company vehicles (existing & proposed, note office vs. non -office employees): (1)(L h. Other (list any other information pertinent to this application not specifically requested above, please note if overlay districts are applicable): A 16< 2 Conditional Use / Variance / Miscellaneous Application Form. Rev. 12-2010 r 8) LOT COVERAGE a. Total parcel size: 'q 3' CQ Sq. Ft. b. Buildings: Existing >`� % / 1c/ Sq. Ft Proposed 34. 1- % / //3FSq. Ft. c. Overall impervious coverage (building, parking, outside storage, etc) Existing q 3, 3 % / leg)- , _S Sq. Ft. Proposed �6 -�- % / - 0(1,) , 5 Sq. Ft. d. Front yard impervious coverage (building, parking, outside storage, etc) Existing % / Sq. Ft. Proposed % / Sq. Ft. e. Total area to be disturbed during construction: `5 C) C' Sq. Ft. * Projects disturbing more than one-half acre of land must follow the City's specifications for erosion control in Article 16 of the Land Development Regulations. Projects disturbing more than one acre require a permit from the Vermont Department of Environmental Conservation. 9) COST ESTIMATES a. Building (including interior renovations): $ /00 , C() Cl b. Landscaping $S, noo c. Other site improvements (please list with cost): 10) ESTIMATED TRAFFIC: a. P.M. Peak hour for entire property (in and out): 11) PEAK HOURS OF OPERATION 12) PEAK DAYS OF OPERATION /'y /Cti. 13) ESTIMATED PROJECT COMPLETION DATE S c7(' f e r 191j , ✓, ef-Ai i f 14) OWNERS OF RECORD OF ALL CONTIGUOUS PROPERTIES & MAILING ADDRESSES (this shall be provided on a separate attached sheet and on pre -stamped and pre - addressed envelopes. The city will add the return address). Ave,��� +—� r-Gtc` A ( V c.r� Conditional Use / Variance / Miscellaneous Application Form. Rev. 12-2010 15) PLANS AND FEE Plans shall be submitted which shows the information required by the City's Land Development Regulations. Five (5) regular size copies and one reduced copy (11" x 17") of the plans must be submitted. A subdivision application fee shall be paid to the City at the time of submitting the application. See the City fee schedule for details. I hereby certify that all the information requested as part of application has been submitted and is accurate to the best of my knowledge. SIGMA SIGNATURE OF PROPERTY OWNER PRINT NAME Do not write below this line DATE OF SUBMISSION: I have reviewed this application and find it to be: C MPLETE ❑ Incomplete Officer The applicant or permittee retains the obligation to identify, apply for, and obtain relevant state permits for this project. Call (802) 879-5676 to speak with the regional Permit Specialist. Condition/ Use/ Verience / Mi&m#&neous Applica6bn Fom. Rev. 12-2010 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 FAX (802 660-2552) STEVEN F STITZEL WWW.FIRMSPF COM PATTI R PAGE JKLESCH@FIRMSPF COM ROBERT E FLETCHER JOSEPH S McLEAN AMANDA S E LAFFERTY JOHN H KLESCH DAVID W RUGH' -(ALSO ADMITTED IN MD) October 17, 2011 Jacalyn Fletcher, Manager Vermont Superior Court J nVilJilllICllL a1 1)i ViSivii 2418 Airport Road, Ste. 1 Barre, VT 05641-8701 Re: Berger and Katz Expansion Application Docket No. 119-7-10 Vtec Dear Jacalyn: OF COUNSEL DINA L ATWOOD Enclosed please find a Notice of Substitution of Appearance for filing in the above -captioned matter. Enclosure Si rely, J n Klesch CC: Ms. Claudia Berger Mr. Sheldon Katz Ray Belair, Administrative Officer SON11-071.cor l SUPERIOR COURT STATE OF VERMONT ENVIRONMENTAL DIVISION BERGER & KATZ APPLICATION DOCKET NO. 119-7-10 Vtec NOTICE OF SUBSTITUTION OF APPEARANCE NOW COMES, JOHN H. KLESCH, of the firm of Stitzel, Page & Fletcher,, P.C., and hereby enter his appearance, substituting the previously filed appearance by AMANDA S. E. LAFFERTY, on b::lhalf of the City f S ♦.L. Dl rl ; � the bo .. J_�y VI_ JC. ii Oil ♦✓li�J_J. lag ��l'lil, it �.ii... G:!„'w1v%'" referenced matter. Dated at Burlington, in the County of Chittenden and State of Vermont, this 17th day of October, 2011. STITZEL, PAGE & FLETCHER, P.C. Attorneys for the City of South Burlington SON11-036 JHK SOA.lit.wpd STITZEL, PAGE & FLETCHER, P.C. 'ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 3URLINGTON, VERMONT 05402-1507 JohnOB Klesch 171 ery Street P.O.1507 Burlon, VT 05402-1507 (802)660-2555 STITZEL, PAGE & FLEMIER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STEVEN F. STITZEL PATTI R. PAGE ROBERT E FLETCHER JOSEPH S McLEAN AMANDA S E LAFFERTY JOHN H.KLESCH DAVID W RUGH' '(ALSO ADMITTED IN MD) Jacalyn Fletcher, Manager Vermont Superior Court Environmental Division 2418 Airport Road, Ste. 1 Barre, VT 05641-8701 TELEPHONE (802 660-2555) FAX (802 660-2552) WWW FIRMSPF.COM JKLESCH@FIRMSPF COM October 4, 2011 Re: Berger & Katz Expansion Application Docket No. 141-9-11 Vtec Dear Jacalyn: OF COUNSEL, DINA L ATWOOD Enclosed please find our Notice of Appearance on behalf'of the City of South Burlington for filing in the above -captioned matter. ly, Klesch Enclosure CC: Ms. Claudia Berger Mr. Sheldon Katz Rav Belair, Administrative Officer SG.;11-0G9 JHK EOA - Berger Katz.cor.wpd STATE OF VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION DOCKET NO. 141-9-11 VTEC IN RE: BERGER & KATZ EXPANSION APPLICATION ENTRY OF APPEARANCE NOW COMES, JOHN H. KLESCH, of the firm of Stitzel, Page & Fletcher, P.C., and hereby enters his appearance on behalf of the City of South Burlington, in the above -referenced matter. Dated at Burlington, in the County of Chittenden and State of Vermont, this 1-1 day of October, 2011. SON11-035 JHK EOA.wpd STITZEL, PAGE & FLETCHER, P.C. 1TTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 IURLINGTON, VERMONT 05402-1507 STITZEL, PAGE & FLETCHER, P.C. Attorneys for the City of South Burlington JVh4 H. Klesch Battery Street vBox 1507 lington, VT 05402-1507 (802)660-2555 1 r southburlington PLANNING & ZONING September 30, 2011 Sheldon Katz and Claudia Berger 54 Central Ave South Burlington, VT 05403 Re: Berger and Katz Expansion Application Docket No. -9-11 Vtec Dear Mr. Katz and Ms. Berger, Pursuant to Rule 5(b) (4) (A) of the Vermont Rules of Environmental Court Proceedings (also see 24 V.S.A. §4471(c)), the following is a list of "interested persons" for the above referenced proceeding. You are instructed by that Rule to serve a copy of your client's notice of appeal upon all people or entities listed below, by certified mail. Sheldon Katz & Claudia Berger 54 Central Ave South Burlington, VT 05403 Bruce & Janet Alvarez 52 Central Ave South Burlington, VT 05403 When the Development Review Board (DRB) sent out its notice on the above reference application, the following additional people or entities were provided a copy of the DRB notice (this list does not include the persons noted above who appeared at the DRB hearing): Richard White 56 Central Ave South Burlington, VT 05403 Lastly, I recommend that you consult the statutory definition for "interested persons" contained in 24 V.S.A. §4465(b). If you believe that our list is missing someone who has interested persons status in this proceeding, you should consider sending them a copy of the notice of 575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburl.com appeal, so that you can be confident that all persons or entities who are entitled to notice have received it. If you have any questions, please feel free to contact me. Sincere) Raymo J. Belair Administrative Officer cc: Vermont Environmental Court Amanda S.E. Lafferty, Esq. Claudia A. Berger and Sheldon M. Katz 54 Central Avenue South Burling>ion, VT 05403 802-658-3723 September 26, 2011 Jacalyn Fletcher, Clerk Vermont Superior Court, Environmental Division 2418 Airport Road BaTe,VT 05641 Re: Docket 119-7-10 Vtec Dear Sir or Madame: The instant matter was stayed pending a decision on remand. That decision is attached. Enclosed for filing please find a notice of de novo review of the decision on remand and a check in the amount of $105 for the filing fee. We respectfully request a waiver of the certified mail requirement. Thank you for your consideration. Very truly yours, /s Claudia Berger and Sheldon M. Katz Enclosures South Burlington City Clerk (dkinville@sburl.com) Ray Belair (rbelair@sburl.com) Bruce and Janet Alvarez (bhaskate@cotncast.net) STATE OF VERMONT SUPERIOR COURT, ENVIRONMENTAL DIVISION In re. Berger & Katz Application ) 54 Central Avenue South Burlington ) Docket No. 119-7-10 Vtec Date of Decision: August 30, 2010 ) NOTICE OF APPEAL Pursuant to 24 V.S.A. §§ 4471, 4472, Applicants Claudia Berger and Sheldon Katz give notice of de novo review of the above captioned matter to be joined with the pending docket. All interested persons must enter an appearance in writing with the court within 20 days of receiving this notice, or in such other time as may be provided in V.R.E.C.R. 5(c) if they wish to participate in the appeal. Dated this ___ day of September 2011 at South Burlington, Vermont. By: /s Claudia Berger and Sheldon Katz Poll ..1� south PLANNING & ZONING August 30, 2011 Re: #MS-11-01 Dear Applicant: Enclosed, please find a copy of the Findings of Fact and Decision rendered by the Development Review Board concerning your recent application. Please note the conditions of approval including that a zoning permit must be obtained within six (6) months. If you have any questions, please contact me. Since , I Raymond J. Bel 'r Administrative Officer Encl. CERTIFIED MAIL -Return Receipt Requested # 7010 0290 0000 2215 2906 575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburl.com I Agenda item #7 MEMORANDUM TO: Development Review Board FROM: Raymond J. Belair, Administrative Officer RE: Katz & Berger Application #MS-11-01 DATE: July 15, 2011 The Development Review Board will conduct a site visit at 54 Central Avenue at 6:30 pm on July 19, 2011. Since the last meeting we have received a drawing of an elevation of the subject property (see attached). Also attached are the staff comments with a few modifications. No Text CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING DEVELOPMENT REVIEW BOARD Report preparation date: July 15, 2011 Development Review Broad\Staff Comments\MS-11- Application received: April 25, 2011 01 _54CentralAve_Katz&Berger.doc 54 Central Avenue Miscellaneous Application #MS-11-01 Meeting date: July 19, 2011 Agenda # 7 Applicants/Owners Property Information Claudia Berger & Sheldon Katz Tax Parcel ID 0330-00054 54 Central Avenue Queen City Park (QCP) District South Burlington, VT 05403 Parcel Size: 4350 SF Location Map CITY OF SOUTH BURLINGTON 2 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger doc Claudia Berger and Sheldon Katz, hereafter referred to as the applicants, seek approval to expand a non -complying single family dwelling by: 1) enclosing existing front porch, 2) constructing 6' x 10' covered front porch, 3) converting rear deck to 2-story addition, 4) adding 8'x12.5' screened in rear deck, and 5) adding two (2) shed dormers, 54 Central Avenue. This application was continued from the July 5, 2011 meeting to provide the Board an opportunity to conduct a site visit. Administrative Officer Ray Belair and Director of Planning & Zoning Paul Conner have reviewed the plans submitted on April 25, 2011, and have the following comments. Zoning District & Dimensional Requirements: QCP Zoning District Required Proposed �► Min. Lot Size 7500 S.F. 4350 S.F Max. Building Coverage**** 40% 34% Max. Overall Coverage***** 60% 47% Min. Front Setback loft 19 ft ♦ in. Side Setback 5 ft. 3.2 & 4.5 �► Min. Rear Setback 10 ft. Approx 30 ft. Max. Building Height 25 ft. <25 ft �► Pre-existing non-compliance; will be reviewed under SBLDR section 4.08 (G) ♦ Zoning non-compliance �l Zoning compliance ****Many of the homes in the Queen City Park neighborhood are eligible for relief from coverage limitations under Section 3.06 of the South Burlington Land Development Regulations for pre- existing non -compliant lots which existed prior to February 28, 1974. Lots smaller than 5000 square feet in size may exceed the maximum allowed for the district up to a maximum of forty percent (40%) for buildings and sixty percent (60%) for overall coverage. Staff has reviewed the application under Sections 3.06(J) [Exceptions to Setback and Lot Coverage Requirements for Lots Existing Prior to February 28, 1974], 3.11(D) [Alterations to Non -Complying Structures] and 4.08(E), and (F) [Queen City Park District] of the South Burlington Land Development Regulations (SBLDR). It is Staff's opinion that the survey plat submitted with a last revision date of June 23, 2011 is incomplete and does not meet the submission requirements under Section 3.06 (J) (4) as the plat does not show the location of the proposed front porch enclosure and does not indicate the actual proposed distance from the proposed front porch enclosure to the northerly property boundary line; instead it only provides a range (project item 1). Submission requirements have been met for Section 3.11(D), 4.08(E), and 4.08(F). [Note: for this application, staff has performed an analysis for each discrete element of the CITY OF SOUTH BURLINGTON 3 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger.doc proposed project] PROJECT ITEM 1: ENCLOSE EXISTING FRONT PORCH, ONE STORY The existing open front porch has dimensions of 5.5' X 19.66' and is located 4+/- feet (this is a range of 3 to 5 feet) from the side property line. The proposal is to enclose this area with walls, thereby increasing the size of the building. Section 3.06 (J) (1), (3) & (4) of the SBLDR (1) Side and Rear Setbacks. A structure may encroach into the required side or rear setback up to a distance equal to 50% of the side or rear setback requirement of the district, but in no event shall a structure have a side setback of less than five (5) feet. (3) Additional Encroachment Subject to DRB Approval. Encroachment of a structure into a required setback beyond the limitations set forth in (1) and (2) above may be approved by the Development Review Board subject to the provisions of Article 14, Conditional Uses, but in no event shall a structure be less than three (3) feet from a side or rear property line or less than five (5) feet from a front property line. In addition, the Development Review Board shall determine that the proposed encroachment will not have an undue adverse affect on: (a) views of adjoining and/or nearby properties; (b) access to sunlight of adjoining and/or nearby properties; (c) adequate on -site parking; and (d) safety of adjoining and/or nearby property. (4) Processing of a Request. Any request under subsections (1) - (3) above to expand an existing structure, or place a new structure, to within less than ten (10) feet of any property line shall include the submission of survey data prepared by a licensed surveyor showing the location of affected property lines, existing and/or proposed structures, and any other information deemed necessary by the Administrative Officer. For this element of the project, applicants propose a side setback of 4+/- feet (this is a range of 3 to 5 feet), which does not comply with Section 3.06 (J) (1) of the SBLDR. Section 3.06(J) (3) permits additional encroachment into the side setback if the proposed encroachment will not have an undue adverse affect on the criteria listed above. It is Staff's opinion that the survey plat submitted with a last revision date of July 5, 2011 is incomplete and does not meet the submission requirements under Section 3.06 (J) (4) as the plat does not show the location of the proposed front porch enclosure and does not indicate the actual proposed distance from the proposed front porch enclosure to the northerly property boundary line; instead it only provides a range (project item 1). Section 3.11 (D) (1) of the SBLDR states that "except as otherwise provided in sub -sections (2) and (3) below, and in Article 4, Section 4.08, Queen City Park District, and in Article 12, Section 12.01(D), any non -complying building or structure may be altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost thirty-five percent (35%) for residential properties and twenty-five percent (25%) for industrial and commercial property of the current assessed value as determined by the City Assessor and in compliance with Section 3.11(B) above. In the event an addition or an expansion to a building CITY OF SOUTH BURLINGTON 4 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger.doc or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements)". Section 3.11 (D) (2) of the SBLDR states that "the thirty-five percent (35%) limitation for residential properties described above shall not apply to structures on lots that were in existence prior to February 28, 1974". This proposed alteration, pursuant to Section 3.11 (D) (2) of the SBLDR is not subject to the 35% limitation described in Section 3.11 (D) (1), as the structure is on a lot that was in existence prior to February 28, 1974. Section 3.11 (D) (1) requires that an addition or expansion to a non -complying structure meet the minimum side yard setback and Section 4.08 does not provide otherwise for non -complying structures in the Queen City Park district. Applicants' proposal to enclose the existing front porch is an addition or expansion to a building that does not itself comply with the required 5- foot side yard setback. Therefore, the proposed front porch enclosure does not comply with Section 3.11 (D) (1). Section 4.08 (F). Non -complying structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots. Non -complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer; or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. Applicants' proposal does not exceed in aggregate cost thirty-five percent of the fair market value and Applicants' proposal to enclose the existing front porch involves an increase to the square footage of the building or structure. Therefore, the non -complying building may not be altered except as allowed by Section 4.08(F) (2) and (3): (2) The Development Review Board may approve any alteration which exceeds the thirty- five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint, or square footage subject to the provisions of Article 14, Conditional Use Review. Staff has evaluated compliance with the criteria in the section of this report titled 'Conditional Use Review' below. (3) In addition to the provisions set forth above, the DRB shall determine that the proposed alteration or expansion will not adversely affect: a. Views of adjoining and/or nearby properties, b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking. Subsection 'a' and 'b' above are difficult for staff alone to assess as they are unique in the Land CITY OF SOUTH BURLINGTON 5 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger doc Development Regulations in that they are to be evaluated from the perspective of adjoining and/or nearby properties and not necessarily from a public right-of-way. The proposed alteration is proposed to be located only 4+/- feet from the northern property line, where the abutting property also appears to be very close to the property line. The distance between these two structures appears to be very minimal. As such, the subject property, given the proximity to the adjoining home and its location, appears to have the potential to block the existing view of Lake Champlain. Still, staff is not qualified to address this without trespassing on private property. As such, Staff urges that the Board carefully consider testimony from adjoining and/or nearby property owners and carefully consider such testimony with respect to the proposal's compliance with criteria 'a' and `b' above. Additionally, Staff recommends the Board schedule a site visit to the property to assess compliance or non-compliance with "a" and "b" above. Staff finds that the subject property has adequate on -site parking. CONDITIONAL USE CRITERIA Pursuant to Section 14.10(E) of the Land Development Regulations the proposed conditional use shall meet the following standards: 1. The proposed use, in its location and operation, shall be consistent with the planned character of the area as defined by the City of South Burlington Comprehensive Plan. Staff does not think that the proposed alteration is in conflict with the planned character of the area, as defined by the Comprehensive Plan. 2. The proposed use shall conform to the stated purpose of the district in which the proposed use is located. According to Section 4.08(A) of the Land Development Regulations, the QCP Zoning District is formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. 3. The Development Review Board must find that the proposed uses will not adversely affect the following: (a) The capacity of existing or planned municipal or educational facilities. The proposed alteration will not adversely affect municipal services. (b) The planned character of the neighborhood or district in which the property is located, nor ability to develop adjacent property for appropriate uses. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. The QCP district is historically a very CITY OF SOUTH BURLINGTON 6 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger.doc dense neighborhood. The proposed alteration is to the front of the property and will blend in with the remainder of the building. Again, the Board should consider testimony from the adjacent property owners with respect to any impact on access to sunlight which could result from the proposed alteration. (c) Traffic on roads and highways in the vicinity. The proposed alteration will not affect traffic in the vicinity. (d) Bylaws in effect. The proposed alteration will not be in compliance with the side setback requirement for the district. (e) Utilization of renewable energy resources. The proposed alteration has the potential to impact adversely the abutting property owner's access to solar energy, as stated previously in this report. The Board should discuss the application with respect to this criterion. PROJECT ITEM 2. ADD COVERED FRONT PORCH This proposed alteration consists of constructing a new 6' X 10' covered front porch that will comply with the front and side yard setback requirements. Section 3.11 (D) (1) of the Land Development Regulations states that "except as otherwise provided in sub -sections (2) and (3) below, and in Article 4, Section 4.08, Queen City Park District, and in Article 12, Section 12.01(D), any non -complying building or structure may be altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost thirty-five percent (35%) for residential properties and twenty-five percent (25%) for industrial and commercial property of the current assessed value as determined by the City Assessor and in compliance with Section 3.11(B) above. In the event an addition or an expansion to a building or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements)". Section 3.11 (D) (2) of the SBLDR's states that "the thirty-five percent (35%) limitation for residential properties described above shall not apply to structures on lots that were in existence prior to February 28, 1974". This proposed alteration, pursuant to Section 3.11 (D) (2) of the SBLDR's is not subject to the 35% limitation described in Section 3.11 (D) (1). This proposed alteration is in compliance with the requirement in Section 3.11 (D) (1) with respect to compliance with setback requirements. Section 4.08 (F). Non -complying structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots. Non -complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: CITY OF SOUTH BURLINGTON 7 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger doc a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer; or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. Applicants' proposal exceeds in aggregate cost thirty-five percent of the fair market value and Applicants' proposal to construct a new covered front porch involves an increase to the footprint of the building or structure. Therefore, the non -complying building may not be altered except as allowed by Section 4.08(F)(2) and (3): (2) The Development Review Board may approve any alteration which exceeds the thirty- five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint, or square footage subject to the provisions of Article 14, Conditional Use Review. Staff has evaluated compliance with the criteria in the section of this report titled 'Conditional Use Review' below. (3) In addition to the provisions set forth above, the DRB shall determine that the proposed alteration or expansion will not adversely affect: a. Views of adjoining and/or nearby properties; b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking. Subsection 'a' and 'b' above are difficult for staff alone to assess as they are unique in the Land Development Regulations in that they are to be evaluated from the perspective of adjoining and/or nearby properties and not necessarily from a public right-of-way. The proposed alteration is proposed to be located in the front of the building and will meet the minimum setback requirements. As such, Staff urges that the Board carefully consider testimony from adjoining and/or nearby property owners and carefully consider such testimony with respect to the proposal's compliance with criteria 'a' and 'b' above. Additionally, Staff recommends the Board schedule a site visit to the property to assess compliance or non-compliance with "a" and "b" above. Staff finds that the subject property has adequate on -site parking CONDITIONAL USE CRITERIA Pursuant to Section 14.10(E) of the Land Development Regulations the proposed conditional use shall meet the following standards: 1. The proposed use, in its location and operation, shall be consistent with the planned character of the area as defined by the City of South Burlington Comprehensive Plan. Staff does not think that the proposed alteration is in conflict with the planned character of the area, as defined by the Comprehensive Plan. 2. The proposed use shall conform to the stated purpose of the district in which the CITY OF SOUTH BURLINGTON 8 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Bercaer.doc proposed use is located. According to Section 4.08(A) of the Land Development Regulations, the QCP Zoning District is formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. 3. The Development Review Board must find that the proposed uses will not adversely affect the following: (a) The capacity of existing or planned municipal or educational facilities. The proposed alteration will not adversely affect municipal services. (b) The planned character of the neighborhood or district in which the property is located, nor ability to develop adjacent property for appropriate uses. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. The QCP district is historically a very dense neighborhood. The proposed alteration is to the front of the property and will blend in with the remainder of the building. Again, the Board should consider testimony from the adjacent property owners with respect to any impact on access to sunlight which could result from the proposed alteration. (c) Traffic on roads and highways in the vicinity. The proposed alteration will not affect traffic in the vicinity. (d) Bylaws in effect. The proposed alteration will be in compliance with the side and front setback requirements for the district. (e) Utilization of renewable energy resources. The proposed alteration has the potential to impact adversely the abutting property owner's access to solar energy, as stated previously in this report. The Board should discuss the application with respect to this criterion. PROJECT ITEM 3. ENCLOSE EXISTING REAR DECK, TWO STORIES, EXTEND EXISTING GABLE ROOF This proposed alteration consists of constructing an 11.5' X 19' 2-story addition over an existing deck located 3 feet from the north property boundary line. Section 3.06 (J) (1) and (3) of the SBLDR (1) Side and Rear Setbacks. A structure may encroach into the required side or rear CITY OF SOUTH BURLINGTON 9 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Beraer.doc setback up to a distance equal to 50% of the side or rear setback requirement of the district, but in no event shall a structure have a side setback of less than five (5) feet. (3) Additional Encroachment Subject to DRB Approval. Encroachment of a structure into a required setback beyond the limitations set forth in (1) and (2) above may be approved by the Development Review Board subject to the provisions of Article 14, Conditional Uses, but in no event shall a structure be less than three (3) feet from a side or rear property line or less than five (5) feet from a front property line. In addition, the Development Review Board shall determine that the proposed encroachment will not have an undue adverse affect on: (a) views of adjoining and/or nearby properties; (b) access to sunlight of adjoining and/or nearby properties; (c) adequate on -site parking; and (d) safety of adjoining and/or nearby property. For this element of the project, applicants propose a side setback of 3 feet which does not comply with Section 3.06 (J) (1) of the SBLDR. Section 3.06(J) (3) permits additional encroachment into the side setback if the proposed encroachment will not have an undue adverse affect on the criteria above. The Board should conduct a site visit to evaluate the effect of the proposed alteration on the above criteria. Section 3.11 (D) (1) of the Land Development Regulations states that "except as otherwise provided in sub -sections (2) and (3) below, and in Article 4, Section 4.08, Queen City Park District, and in Article 12, Section 12.01(D), any non -complying building or structure may be altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost thirty-five percent (35%) for residential properties and twenty-five percent (25%) for industrial and commercial property of the current assessed value as determined by the City Assessor and in compliance with Section 3.11(B) above. In the event an addition or an expansion to a building or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements)". Section 3.11 (D) (2) of the SBLDR's states that "the thirty-five percent (35%) limitation for residential properties described above shall not apply to structures on lots that were in existence prior to February 28, 1974". This proposed alteration, pursuant to Section 3.11 (D) (2) of the SBLDR's is not subject to the 35% limitation described in Section 3.11 (D) (1). Section 3.11 (D) (1) requires that an addition or expansion to a non -complying structure meet the minimum side yard setback and Section 4.08 does not provide otherwise for non -complying structures in the Queen City Park district. Applicants' proposal to construct a 2-story addition over an existing deck is an addition or expansion to a building that does not itself comply with the required 5-foot side yard setback. Therefore, the proposal to construct a 2-story addition over an existing deck does not comply with Section 3.11 (D) (1). Section 4.08 (F). Non -complying structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying CITY OF SOUTH BURLINGTON 10 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger doc structures and lots. Non -complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer; or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. Applicants' proposal exceeds in aggregate cost thirty-five percent of the fair market value and Applicants' proposal to construct a 2-story addition over an existing deck involves an increase to the square footage of the building or structure. Therefore, the non -complying building may not be altered except as allowed by Section 4.08(F)(2) and (3): (2) The Development Review Board may approve any alteration which exceeds the thirty- five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint, or square footage subject to the provisions of Article 14, Conditional Use Review. Staff has evaluated compliance with the criteria in the section of this report titled `Conditional Use Review' below. (3) In addition to the provisions set forth above, the DRB shall determine that the proposed alteration or expansion will not adversely affect: a. Views of adjoining and/or nearby properties; b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking. Subsection `a' and 'b' above are difficult for staff alone to assess as they are unique in the Land Development Regulations in that they are to be evaluated from the perspective of adjoining and/or nearby properties and not necessarily from a public right-of-way. The proposed alteration is proposed to be located only 2+/- feet from the northern property line, where the abutting property also appears to be very close to the property line. The distance between these two structures appears to be very minimal. As such, the subject property, given the proximity to the adjoining home and its location, appears to have the potential to block southern solar exposure. Still, Staff is not qualified to address this without trespassing on private property. As such, Staff urges that the Board carefully consider testimony from adjoining and/or nearby property owners and carefully consider such testimony with respect to the proposal's compliance with criteria 'a' and `b' above. Additionally, Staff recommends the Board schedule a site visit to the property to assess compliance or non-compliance with "a" and "b" above. Staff finds that the subject property has adequate on -site parking. CONDITIONAL USE CRITERIA CITY OF SOUTH BURLINGTON 11 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Ber4er doc Pursuant to Section 14.10(E) of the Land Development Regulations the proposed conditional use shall meet the following standards: 1. The proposed use, in its location and operation, shall be consistent with the planned character of the area as defined by the City of South Burlington Comprehensive Plan. Staff does not think that the proposed alteration is in conflict with the planned character of the area, as defined by the Comprehensive Plan. 2. The proposed use shall conform to the stated purpose of the district in which the proposed use is located. According to Section 4.08(A) of the Land Development Regulations, the QCP Zoning District is formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. 3. The Development Review Board must find that the proposed uses will not adversely affect the following: (a) The capacity of existing or planned municipal or educational facilities. The proposed alteration will not adversely affect municipal services. (b) The planned character of the neighborhood or district in which the property is located, nor ability to develop adjacent property for appropriate uses. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. The QCP district is historically a very dense neighborhood. The proposed alteration is to the rear of the property and will not be visible from the street. Again, the Board should consider testimony from the adjacent property owners with respect to any impact on access to sunlight which could result from the proposed alteration. (c) Traffic on roads and highways in the vicinity. The proposed alteration will not affect traffic in the vicinity. (d) Bylaws in effect. The proposed alteration will not be in compliance with the side setback requirement for the district. (e) Utilization of renewable energy resources. The proposed alteration has the potential to impact adversely the abutting property owner's access to solar energy, as stated previously in this report. The Board should discuss the CITY OF SOUTH BURLINGTON 12 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger doc application with respect to this criterion. PROJECT ITEM 4. ADD SCREENED -IN REAR DECK This alteration consists of constructing a new 8' X 12.5' screened -in porch onto the rear of the building which will meet the side and rear setback requirements. Section 3.11 (D) (1) of the Land Development Regulations states that "except as otherwise provided in sub -sections (2) and (3) below, and in Article 4, Section 4.08, Queen City Park District, and in Article 12, Section 12.01(D), any non -complying building or structure may be altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost thirty-five percent (35%) for residential properties and twenty-five percent (25%) for industrial and commercial property of the current assessed value as determined by the City Assessor and in compliance with Section 3.11(B) above. In the event an addition or an expansion to a building or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements)". Section 3.11 (D) (2) of the SBLDR's states that "the thirty-five percent (35%) limitation for residential properties described above shall not apply to structures on lots that were in existence prior to February 28, 1974". This proposed alteration, pursuant to Section 3.11 (D) (2) of the SBLDR's is not subject to the 35% limitation described in Section 3.11 (D) (1). This proposed alteration is in compliance with the requirement in Section 3.11 (D) (1) with respect to compliance with setback requirements. Section 4.08 (F). Non -complying structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots. Non -complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer; or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. Applicants' proposal exceeds in aggregate cost thirty-five percent of the fair market value and Applicants' proposal to construct a new screened -in porch onto the rear of the building involves an increase to the footprint of the building or structure. Therefore, the non -complying building may not be altered except as allowed by Section 4.08(F)(2) and (3): (2) The Development Review Board may approve any alteration which exceeds the thirty- five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint, or square footage subject to the provisions of Article 14, Conditional Use Review. Staff has evaluated compliance with the criteria in the section of this report titled 'Conditional � 1 CITY OF SOUTH BURLINGTON 13 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger doc Use Review' below. (3) In addition to the provisions set forth above, the DRB shall determine that the proposed alteration or expansion will not adversely affect: a. Views of adjoining and/or nearby properties; b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking. Subsection 'a' and 'b' above are difficult for staff alone to assess as they are unique in the Land Development Regulations in that they are to be evaluated from the perspective of adjoining and/or nearby properties and not necessarily from a public right-of-way. The proposed alteration is proposed to be located in the rear of the building and will meet the minimum setback requirements. As such, Staff urges that the Board carefully consider testimony from adjoining and/or nearby property owners and carefully consider such testimony with respect to the proposal's compliance with criteria 'a' and 'b' above. Additionally, Staff recommends the Board schedule a site visit to the property to assess compliance or non-compliance with "a" and "b" above. Staff finds that the subject property has adequate on -site parking CONDITIONAL USE CRITERIA Pursuant to Section 14.10(E) of the Land Development Regulations the proposed conditional use shall meet the following standards: 1. The proposed use, in its location and operation, shall be consistent with the planned character of the area as defined by the City of South Burlington Comprehensive Plan. Staff does not think that the proposed alteration is in conflict with the planned character of the area, as defined by the Comprehensive Plan. 2. The proposed use shall conform to the stated purpose of the district in which the proposed use is located. According to Section 4.08(A) of the Land Development Regulations, the QCP Zoning District is formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. Again, the proposed alteration is in compliance with the proposed purpose of the district which related to smaller lots and lesser setbacks than other residential districts. 3. The Development Review Board must find that the proposed uses will not adversely affect the following: (a) The capacity of existing or planned municipal or educational facilities The proposed alteration will not adversely affect municipal services. 1 CITY OF SOUTH BURLINGTON 14 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger doc (b) The planned character of the neighborhood or district in which the property is located, nor ability to develop adjacent property for appropriate uses. Staff does not think that the proposed alteration will adversely affect the character of the neighborhood. The QCP district is historically a very dense neighborhood. The proposed alteration is to the rear of the property and will blend in with the remainder of the building. Again, the Board should consider testimony from the adjacent property owners with respect to any impact on access to sunlight which could result from the proposed alteration. (c) Traffic on roads and highways in the vicinity. The proposed alteration will not affect traffic in the vicinity. (d) Bylaws in effect. The proposed alteration will be in compliance with the side and front setback requirements for the district. (e) Utilization of renewable energy resources. The proposed alteration has the potential to impact adversely the abutting property owner's access to solar energy, as stated previously in this report. The Board should discuss the application with respect to this criterion. PROJECT ITEM 5. ADD SHED DORMER ON FRONT (WEST) AND REAR (EAST) This alteration consists of adding a shed dormer on the front (west) and on the rear (east). Section 3.11 (D) (1) of the Land Development Regulations states that "except as otherwise provided in sub -sections (2) and (3) below, and in Article 4, Section 4.08, Queen City Park District, and in Article 12, Section 12.01(D), any non -complying building or structure may be altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost thirty-five percent (3591o) for residential properties and twenty-five percent (25%) for industrial and commercial property of the current assessed value as determined by the City Assessor and in compliance with Section 3.11(B) above. In the event an addition or an expansion to a building or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements)". Section 3.11 (D) (2) of the SBLDR's states that "the thirty-five percent (35%) limitation for residential properties described above shall not apply to structures on lots that were in existence prior to February 28, 1974". This proposed alteration, pursuant to Section 3.11 (D) (2) of the SBLDR's is not subject to the 35% limitation described in Section 3.11 (D) (1). Section 4.08 (F). Non -complying structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots. Non -complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: 1 CITY OF SOUTH BURLINGTON 15 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff CommentsWS 11 01 54CentralAve Katz&Berger doc a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer; or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. The shed dormer alteration will not involve development described in Section 4.08 (F) (1) (b) of the SBLDR. 4Respecllbmit d r R mond Belair, Administrative Officer Copy to: Claudia Berger and Sheldon Katz, Applicants CITY OF SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD Development Review Broad\Staff Comments\MS-1 1 - 01 _54CentralAve_Katz&Berger.doc DEPARTMENT OF PLANNING & ZONING Report preparation date: July 1, 2011 Application received: April 25, 2011 54 Central Avenue Miscellaneous Application #MS-11-01 Meeting date: July 5, 2011_ - Agenda # 7 Applicants/Owners Property Information Claudia Berger & Sheldon Katz Tax Parcel ID 0330-00054 54 Central Avenue Queen City Park (QCP) District South Burlington, VT 05403 Parcel Size: 4350 SF Location Map CITY OF SOUTH BURLINGTON 2 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger doc Claudia Berger and Sheldon Katz, hereafter referred to as the applicants, seek approval to expand a non -complying single family dwelling by: 1) enclosing existing front porch, 2) constructing 6' x 10' covered front porch, 3) converting rear deck to 2-story addition, 4) adding 8'xl2.5' screened in rear deck, and 5) adding two (2) shed dormers, 54 Central Avenue. This application was continued from the June 21, 2011 meeting to provide the applicants an opportunity to submit additional information requested by the Board. Administrative Officer Ray Belair and Director of Planning & Zoning Paul Conner have reviewed the plans submitted on April 25, 2011, and have the following comments. Zoning District & Dimensional Requirements: QCP Zoning District Re uired Proposed �► Min. Lot Size 7500 S.F. 4350 S.F �l Max. Building Coverage**** 40% 34% �Max. Overall Coverage"""' 60% 47% Min. Front Setback loft 19 ft ♦ Min. Side Setback 5 ft. 3.2 & 4.5 �► Min. Rear Setback 0 ft. A rox 30 ft. Max. BuildingHeight L25ft. <25 ft �► Pre-existing non-compliance; will be reviewed under SBLDR section 4.08 (G) ♦ Zoning non-compliance �l Zoning compliance ****Many of the homes in the Queen City Park neighborhood are eligible for relief from coverage limitations under Section 3.06 of the South Burlington Land Development Regulations for pre- existing non -compliant lots which existed prior to February 28, 1974. Lots smaller than 5000 square feet in size may exceed the maximum allowed for the district up to a maximum of forty percent (40%) for buildings and sixty percent (60%) for overall coverage. Staff has reviewed the application under Sections 3.06(J) [Exceptions to Setback and Lot Coverage Requirements for Lots Existing Prior to February 28, 1974], 3.11(D) [Alterations to Non -Complying Structures] and 4.08(E), and (F) [Queen City Park District] of the South Burlington Land Development Regulations (SBLDR). It is Staff's opinion that the survey plat submitted with a last revision date of June 23, 2011 is incomplete and does not meet the submission requirements under Section 3.06 (J) (4) as the plat does not show the location of the proposed front porch enclosure and does not indicate the actual proposed distance from the proposed front porch enclosure to the northerly property boundary line; instead it only provides a range (project item 1). Submission requirements have been met for Section 3.11(D), 4.08(E), and 4.08(F). [Note: for this application, staff has performed an analysis for each discrete element of the CITY OF SOUTH BURLING TON 3 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger.doc proposed project] PROJECT ITEM 1: ENCLOSE EXISTING FRONT PORCH, ONE STORY The existing open front porch has dimensions of 5.5' X 19.66' and is located 4+/- feet (this is a range of 3 to 5 feet) from the side property line. The proposal is to enclose this area with walls, thereby increasing the size of the building. Section 3.06 (J) (1), (3) & (4) of the SBLDR (1) Side and Rear Setbacks. A structure may encroach into the required side or rear setback up to a distance equal to 50% of the side or rear setback requirement of the district, but in no event shall a structure have a side setback of less than five (5) feet. (3) Additional Encroachment Subject to DRB Approval. Encroachment of a structure into a required setback beyond the limitations set forth in (1) and (2) above may be approved by the Development Review Board subject to the provisions of Article 14, Conditional Uses, but in no event shall a structure be less than three (3) feet from a side or rear property line or less than five (5) feet from a front property line. In addition, the Development Review Board shall determine that the proposed encroachment will not have an undue adverse affect on: (a) views of adjoining and/or nearby properties; (b) access to sunlight of adjoining and/or nearby properties; (c) adequate on -site parking; and (d) safety of adjoining and/or nearby property. (4) Processing of a Request. Any request under subsections (1) - (3) above to expand an existing structure, or place a new structure, to within less than ten (10) feet of any property line shall include the submission of survey data prepared by a licensed surveyor showing the location of affected property lines, existing and/or proposed structures, and any other information deemed necessary by the Administrative Officer. For this element of the project, applicants propose a side setback of 4+/- feet (this is a range of 3 to 5 feet), which does not comply with Section 3.06 (J) (1) of the SBLDR. Section 3.06(J) (3) permits additional encroachment into the side setback if the proposed encroachment will not have an undue adverse affect on the criteria listed above. It is Staff's opinion that the survey plat submitted with a last revision date of June 23, 2011 is incomplete and does not meet the submission requirements under Section 3.06 (J) (4) as the plat does not show the location of the proposed front porch enclosure and does not indicate the actual proposed distance from the proposed front porch enclosure to the northerly property boundary line; instead it only provides a range (project item 1). Section 3.11 (D) (1) of the SBLDR states that "except as otherwise provided in sub -sections (2) and (3) below, and in Article 4, Section 4.08, Queen City Park District, and in Article 12, Section 12.01(D), any non -complying building or structure may be altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost thirty-five percent (35%) for residential properties and twenty-five percent (2551o) for industrial and commercial property of the current assessed value as determined by the City Assessor and in compliance with Section 3.11(B) above. In the event an addition or an expansion to a building CITY OF SOUTH BURLINGTON 4 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Ber4er doc or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements)". Section 3.11 (D) (2) of the SBLDR states that "the thirty-five percent (35%) limitation for residential properties described above shall not apply to structures on lots that were in existence prior to February 28, 1974". This proposed alteration, pursuant to Section 3.11 (D) (2) of the SBLDR is not subject to the 35% limitation described in Section 3.11 (D) (1), as the structure is on a lot that was in existence prior to February 28, 1974. Section 3.11 (D) (1) requires that an addition or expansion to a non -complying structure meet the minimum side yard setback and Section 4.08 does not provide otherwise for non -complying structures in the Queen City Park district. Applicants' proposal to enclose the existing front porch is an addition or expansion to a building that does not itself comply with the required 5- foot side yard setback. Therefore, the proposed front porch enclosure does not comply with Section 3.11 (D) (1). Section 4.08 (F). Non -complying structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots. Non -complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer, or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. Applicants' proposal does not exceed in aggregate cost thirty-five percent of the fair market value and Applicants' proposal to enclose the existing front porch involves an increase to the square footage of the building or structure. Therefore, the non -complying building may not be altered except as allowed by Section 4.08(F) (2) and (3): (2) The Development Review Board may approve any alteration which exceeds the thirty- five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint, or square footage subject to the provisions of Article 14, Conditional Use Review. Staff has evaluated compliance with the criteria in the section of this report titled 'Conditional Use Review' below. (3) In addition to the provisions set forth above, the DRB shall determine that the proposed alteration or expansion will not adversely affect: a. Views of adjoining and/or nearby properties; b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking. Subsection `a' and 'b' above are difficult for staff alone to assess as they are unique in the Land CITY OF SOUTH BURLINGTON 5 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger doc Development Regulations in that they are to be evaluated from the perspective of adjoining and/or nearby properties and not necessarily from a public right-of-way. The proposed alteration is proposed to be located only 4+/- feet from the northern property line, where the abutting property also appears to be very close to the property line. The distance between these two structures appears to be very minimal. As such, the subject property, given the proximity to the adjoining home and its location, appears to have the potential to block the existing view of Lake Champlain. Still, staff is not qualified to address this without trespassing on private property. As such, Staff urges that the Board carefully consider testimony from adjoining and/or nearby property owners and carefully consider such testimony with respect to the proposal's compliance with criteria `a' and 'b' above. Additionally, Staff recommends the Board schedule a site visit to the property to assess compliance or non-compliance with "a" and "b" above. Staff finds that the subject property has adequate on -site parking CONDITIONAL USE CRITERIA Pursuant to Section 14.10(E) of the Land Development Regulations the proposed conditional use shall meet the following standards: 1. The proposed use, in its location and operation, shall be consistent with the planned character of the area as defined by the City of South Burlington Comprehensive Plan. Staff does not think that the proposed alteration is in conflict with the planned character of the area, as defined by the Comprehensive Plan. 2. The proposed use shall conform to the stated purpose of the district in which the proposed use is located. According to Section 4.08(A) of the Land Development Regulations, the QCP Zoning District is formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. 3. The Development Review Board must find that the proposed uses will not adversely affect the following: (a) The capacity of existing or planned municipal or educational facilities. The proposed alteration will not adversely affect municipal services. (b) The planned character of the neighborhood or district in which the property is located, nor ability to develop adjacent property for appropriate uses. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. The QCP district is historically a very CITY OF SOUTH BURLINGTON 6 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger.doc dense neighborhood. The proposed alteration is to the front of the property and will blend in with the remainder of the building. Again, the Board should consider testimony from the adjacent property owners with respect to any impact on access to sunlight which could result from the proposed alteration. (c) Traffic on roads and highways in the vicinity. The proposed alteration will not affect traffic in the vicinity. (d) Bylaws in effect. The proposed alteration will not be in compliance with the side setback requirement for the district. (e) Utilization of renewable energy resources. The proposed alteration has the potential to impact adversely the abutting property owner's access to solar energy, as stated previously in this report. The Board should discuss the application with respect to this criterion. PROJECT ITEM 2. ADD COVERED FRONT PORCH This proposed alteration consists of constructing a new 6' X 10' covered front porch that will comply with the front and side yard setback requirements. Section 3.11 (D) (1) of the Land Development Regulations states that "except as otherwise provided in sub -sections (2) and (3) below, and in Article 4, Section 4.08, Queen City Park District, and in Article 12, Section 12.01(D), any non -complying building or structure may be altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost thirty-five percent (35%) for residential properties and twenty-five percent (25%) for industrial and commercial property of the current assessed value as determined by the City Assessor and in compliance with Section 3.11(B) above. In the event an addition or an expansion to a building or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements)". Section 3.11 (D) (2) of the SBLDR's states that "the thirty-five percent (35%) limitation for residential properties described above shall not apply to structures on lots that were in existence prior to February 28, 1974". This proposed alteration, pursuant to Section 3.11 (D) (2) of the SBLDR's is not subject to the 35% limitation described in Section 3.11 (D) (1). This proposed alteration is in compliance with the requirement in Section 3.11 (D) (1) with respect to compliance with setback requirements. Section 4.08 (F). Non -complying structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots. Non -complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: CITY OF SOUTH BURLINGTON 7 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger doc a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer, or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. Applicants' proposal exceeds in aggregate cost thirty-five percent of the fair market value and Applicants' proposal to construct a new covered front porch involves an increase to the footprint of the building or structure. Therefore, the non -complying building may not be altered except as allowed by Section 4.08(F)(2) and (3): (2) The Development Review Board may approve any alteration which exceeds the thirty- five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint, or square footage subject to the provisions of Article 14, Conditional Use Review. Staff has evaluated compliance with the criteria in the section of this report titled 'Conditional Use Review' below. (3) In addition to the provisions set forth above, the DRB shall determine that the proposed alteration or expansion will not adversely affect: a. Views of adjoining and/or nearby properties; b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking. Subsection 'a' and 'b' above are difficult for staff alone to assess as they are unique in the Land Development Regulations in that they are to be evaluated from the perspective of adjoining and/or nearby properties and not necessarily from a public right-of-way. The proposed alteration is proposed to be located in the front of the building and will meet the minimum setback requirements. As such, Staff urges that the Board carefully consider testimony from adjoining and/or nearby property owners and carefully consider such testimony with respect to the proposal's compliance with criteria 'a' and 'b' above. Additionally, Staff recommends the Board schedule a site visit to the property to assess compliance or non-compliance with "a" and "b" above. Staff finds that the subject property has adequate on -site parking. CONDITIONAL USE CRITERIA Pursuant to Section 14.10(E) of the Land Development Reaulations, the proposed conditional use shall meet the following standards: 1. The proposed use, in its location and operation, shall be consistent with the planned character of the area as defined by the City of South Burlington Comprehensive Plan. Staff does not think that the proposed alteration is in conflict with the planned character of the area, as defined by the Comprehensive Plan. 2. The proposed use shall conform to the stated purpose of the district in which the CITY OF SOUTH BURLINGTON 8 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Beraer.doc proposed use is located. According to Section 4.08(A) of the Land Development Regulations, the QCP Zoning District is formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. 3. The Development Review Board must find that the proposed uses will not adversely affect the following: (a) The capacity of existing or planned municipal or educational facilities. The proposed alteration will not adversely affect municipal services. (b) The planned character of the neighborhood or district in which the property is located, nor ability to develop adjacent property for appropriate uses. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. The QCP district is historically a very dense neighborhood. The proposed alteration is to the front of the property and will blend in with the remainder of the building. Again, the Board should consider testimony from the adjacent property owners with respect to any impact on access to sunlight which could result from the proposed alteration. (c) Traffic on roads and highways in the vicinity. The proposed alteration will not affect traffic in the vicinity. (d) Bylaws in effect. The proposed alteration will be in compliance with the side and front setback requirements for the district. (e) Utilization of renewable energy resources. The proposed alteration has the potential to impact adversely the abutting property owner's access to solar energy, as stated previously in this report. The Board should discuss the application with respect to this criterion. PROJECT ITEM 3. ENCLOSE EXISTING REAR DECK, TWO STORIES, EXTEND EXISTING GABLE ROOF This proposed alteration consists of constructing an 11.5' X 19' 2-story addition over an existing deck located 3 feet from the north property boundary line. Section 3.06 (J) (1) and (3) of the SBLDR (1) Side and Rear Setbacks. A structure may encroach into the required side or rear CITY OF SOUTH BURLINGTON 9 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger.doc setback up to a distance equal to 50% of the side or rear setback requirement of the district, but in no event shall a structure have a side setback of less than five (5) feet. (3) Additional Encroachment Subject to DRB Approval. Encroachment of a structure into a required setback beyond the limitations set forth in (1) and (2) above may be approved by the Development Review Board subject to the provisions of Article 14, Conditional Uses, but in no event shall a structure be less than three (3) feet from a side or rear property line or less than five (5) feet from a front property line. In addition, the Development Review Board shall determine that the proposed encroachment will not have an undue adverse affect on: (a) views of adjoining and/or nearby properties; (b) access to sunlight of adjoining and/or nearby properties; (c) adequate on -site parking; and (d) safety of adjoining and/or nearby property. For this element of the project, applicants propose a side setback of 3 feet which does not comply with Section 3.06 (J) (1) of the SBLDR. Section 3.06(J) (3) permits additional encroachment into the side setback if the proposed encroachment will not have an undue adverse affect the criteria above. The Board should conduct a site visit to evaluate the effect of the proposed alteration on the above criteria. Section 3.11 (D) (1) of the Land Development Regulations states that "except as otherwise provided in sub -sections (2) and (3) below, and in Article 4, Section 4.08, Queen City Park District, and in Article 12, Section 12.01(D), any non -complying building or structure may be altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost thirty-five percent (35%) for residential properties and twenty-five percent (25%) for industrial and commercial property of the current assessed value as determined by the City Assessor and in compliance with Section 3.11(B) above. In the event an addition or an expansion to a building or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements)". Section 3.11 (D) (2) of the SBLDR's states that "the thirty-five percent (35%) limitation for residential properties described above shall not apply to structures on lots that were in existence prior to February 28, 1974". This proposed alteration, pursuant to Section 3.11 (D) (2) of the SBLDR's is not subject to the 35% limitation described in Section 3.11 (D) (1). Section 3.11 (D) (1) requires that an addition or expansion to a non -complying structure meet the minimum side yard setback and Section 4.08 does not provide otherwise for non -complying structures in the Queen City Park district. Applicants' proposal to construct a 2-story addition over an existing deck is an addition or expansion to a building that does not itself comply with the required 5-foot side yard setback. Therefore, the proposal to construct a 2-story addition over an existing deck does not comply with Section 3.11 (D) (1). Section 4.08 (F). Non -complying structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying CITY OF SOUTH BURLINGTON 10 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MSA 1-01 54CentralAve Katz&Berger doc structures and lots. Non -complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer; or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. Applicants' proposal exceeds in aggregate cost thirty-five percent of the fair market value and Applicants' proposal to construct a 2-story addition over an existing deck involves an increase to the square footage of the building or structure. Therefore, the non -complying building may not be altered except as allowed by Section 4.08(F)(2) and (3): (2) The Development Review Board may approve any alteration which exceeds the thirty- five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint, or square footage subject to the provisions of Article 14, Conditional Use Review. Staff has evaluated compliance with the criteria in the section of this report titled 'Conditional Use Review' below. (3) In addition to the provisions set forth above, the DRB shall determine that the proposed alteration or expansion will not adversely affect: a. Views of adjoining and/or nearby properties; b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking. Subsection 'a' and 'b' above are difficult for staff alone to assess as they are unique in the Land Development Regulations in that they are to be evaluated from the perspective of adjoining and/or nearby properties and not necessarily from a public right-of-way. The proposed alteration is proposed to be located only 2+/- feet from the northern property line, where the abutting property also appears to be very close to the property line. The distance between these two structures appears to be very minimal. As such, the subject property, given the proximity to the adjoining home and its location, appears to have the potential to block southern solar exposure. Still, Staff is not qualified to address this without trespassing on private property. As such, Staff urges that the Board carefully consider testimony from adjoining and/or nearby property owners and carefully consider such testimony with respect to the proposal's compliance with criteria 'a' and 'b' above. Additionally, Staff recommends the Board schedule a site visit to the property to assess compliance or non-compliance with "a" and "b" above. Staff finds that the subject property has adequate on -site parking. CONDITIONAL USE CRITERIA CITY OF SOUTH BURLINGTON 11 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Ber er doc Pursuant to Section 14.10(E) of the Land Development Regulations the proposed conditional use shall meet the following standards: 1. The proposed use, in its location and operation, shall be consistent with the planned character of the area as defined by the City of South Burlington Comprehensive Plan. Staff does not think that the proposed alteration is in conflict with the planned character of the area, as defined by the Comprehensive Plan. 2. The proposed use shall conform to the stated purpose of the district in which the proposed use is located. According to Section 4.08(A) of the Land Development Regulations, the QCP Zoning District is formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. 3. The Development Review Board must find that the proposed uses will not adversely affect the following: (a) The capacity of existing or planned municipal or educational facilities. The proposed alteration will not adversely affect municipal services. (b) The planned character of the neighborhood or district in which the property is located, nor ability to develop adjacent property for appropriate uses. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. The QCP district is historically a very dense neighborhood. The proposed alteration is to the rear of the property and will not be visible from the street. Again, the Board should consider testimony from the adjacent property owners with respect to any impact on access to sunlight which could result from the proposed alteration. (c) Traffic on roads and highways in the vicinity. The proposed alteration will not affect traffic in the vicinity. (d) Bylaws in effect. The proposed alteration will not be in compliance with the side setback requirement for the district. (e) Utilization of renewable energy resources. The proposed alteration has the potential to impact adversely the abutting property owner's access to solar energy, as stated previously in this report. The Board should discuss the CITY OF SOUTH BURLINGTON 12 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MSA 1-01 54CentralAve Katz&Berger doc application with respect to this criterion. PROJECT ITEM 4. ADD SCREENED -IN REAR DECK This alteration consists of constructing a new 8' X 12.5' screened -in porch onto the rear of the building which will meet the side and rear setback requirements. Section 3.11 (D) (1) of the Land Development Regulations states that "except as otherwise provided in sub -sections (2) and (3) below, and in Article 4, Section 4.08, Queen City Park District, and in Article 12, Section 12.01(D), any non -complying building or structure may be altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost thirty-five percent (35%) for residential properties and twenty-five percent (25%) for industrial and commercial property of the current assessed value as determined by the City Assessor and in compliance with Section 3.11(B) above. In the event an addition or an expansion to a building or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements)". Section 3.11 (D) (2) of the SBLDR's states that "the thirty-five percent (3551o) limitation for residential properties described above shall not apply to structures on lots that were in existence prior to February 28, 1974". This proposed alteration, pursuant to Section 3.11 (D) (2) of the SBLDR's is not subject to the 35% limitation described in Section 3.11 (D) (1). This proposed alteration is in compliance with the requirement in Section 3.11 (D) (1) with respect to compliance with setback requirements. Section 4.08 (F). Non -complying structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots. Non -complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer, or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. Applicants' proposal exceeds in aggregate cost thirty-five percent of the fair market value and Applicants' proposal to construct a new screened -in porch onto the rear of the building involves an increase to the footprint of the building or structure. Therefore, the non -complying building may not be altered except as allowed by Section 4.08(F)(2) and (3): (2) The Development Review Board may approve any alteration which exceeds the thirty- five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint, or square footage subject to the provisions of Article 14, Conditional Use Review. Staff has evaluated compliance with the criteria in the section of this report titled `Conditional } CITY OF SOUTH BURLINGTON 13 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger doc Use Review' below. (3) In addition to the provisions set forth above, the DRB shall determine that the proposed alteration or expansion will not adversely affect: a. Views of adjoining and/or nearby properties; b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking. Subsection 'a' and 'b' above are difficult for staff alone to assess as they are unique in the Land Development Regulations in that they are to be evaluated from the perspective of adjoining and/or nearby properties and not necessarily from a public right-of-way. The proposed alteration is proposed to be located in the rear of the building and will meet the minimum setback requirements. As such, Staff urges that the Board carefully consider testimony from adjoining and/or nearby property owners and carefully consider such testimony with respect to the proposal's compliance with criteria 'a' and 'b' above. Additionally, Staff recommends the Board schedule a site visit to the property to assess compliance or non-compliance with "a" and "b" above. Staff finds that the subject property has adequate on -site parking. CONDITIONAL USE CRITERIA Pursuant to Section 14.10(E) of the Land Development Regulations the proposed conditional use shall meet the following standards: 1. The proposed use, in its location and operation, shall be consistent with the planned character of the area as defined by the City of South Burlington Comprehensive Plan. Staff does not think that the proposed alteration is in conflict with the planned character of the area, as defined by the Comprehensive Plan. 2. The proposed use shall conform to the stated purpose of the district in which the proposed use is located. According to Section 4.08(A) of the Land Development Regulations, the QCP Zoning District is formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. Again, the proposed alteration is in compliance with the proposed purpose of the district which related to smaller lots and lesser setbacks than other residential districts. 3. The Development Review Board must find that the proposed uses will not adversely affect the following: (a) The capacity of existing or planned municipal or educational facilities. The proposed alteration will not adversely affect municipal services. CITY OF SOUTH BURLINGTON 14 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger.doc (b) The planned character of the neighborhood or district in which the property is located, nor ability to develop adjacent property for appropriate uses. Staff does not think that the proposed alteration will adversely affect the character of the neighborhood. The QCP district is historically a very dense neighborhood. The proposed alteration is to the rear of the property and will blend in with the remainder of the building. Again, the Board should consider testimony from the adjacent property owners with respect to any impact on access to sunlight which could result from the proposed alteration. (c) Traffic on roads and highways in the vicinity. The proposed alteration will not affect traffic in the vicinity. (d) Bylaws in effect. The proposed alteration will be in compliance with the side and front setback requirements for the district. (e) Utilization of renewable energy resources. The proposed alteration has the potential to impact adversely the abutting property owner's access to solar energy, as stated previously in this report. The Board should discuss the application with respect to this criterion. PROJECT ITEM 5. ADD SHED DORMER ON FRONT (WEST) AND REAR (EAST) This alteration consists of adding a shed dormer on the front (west) and on the rear (east). Section 3.11 (D) (1) of the Land Development Regulations states that "except as otherwise provided in sub -sections (2) and (3) below, and in Article 4, Section 4.08, Queen City Park District, and in Article 12, Section 12.01(D), any non -complying building or structure may be altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost thirty-five percent (35%) for residential properties and twenty-five percent (25%) for industrial and commercial property of the current assessed value as determined by the City Assessor and in compliance with Section 3.11(B) above. In the event an addition or an expansion to a building or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements)". Section 3.11 (D) (2) of the SBLDR's states that "the thirty-five percent (35%) limitation for residential properties described above shall not apply to structures on lots that were in existence prior to February 28, 1974". This proposed alteration, pursuant to Section 3.11 (D) (2) of the SBLDR's is not subject to the 35% limitation described in Section 3.11 (D) (1). Section 4.08 (F). Non -complying structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots. Non -complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: CITY OF SOUTH BURLINGTON 15 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger doc a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer; or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. The shed dormer alteration will not involve development described in Section 4.08 (F) (1) (b) of the SBLDR. RespkoffuUy subm Belair, Administrative Officer Copy to: Claudia Berger and Sheldon Katz, Applicants Claudia Berger and Sheldon M. Katz 54 Central Avenue South Burlington, VT 05403 802-658-3723 June 24, 2010 Development Review Board 575 Dorset St. S. Burlington, VT 05403 Re: 54 Central Avenue Dear Sirs and Madames: At the June 21, 2011 meeting, the board ruled that any improvements to our property must meet a three foot side setback and that to be considered for a permit we must submit a survey showing the proposed improvements with no less than a three foot setback. We therefore today submit the requested survey. Thank you for your kind attention. Since 1 Claudia A. Berger & S c: Janet and Bruce Alva RECEIVED JUN 2 4 2011 on . Katz It rez (by electronic mail) City of So. Burlington 4 2. o �0�— ► 99�¢ ,LIC 0 Story-9� 1 5 . Katz = C. B eryes- ' Vvl•4'1d P5.241 Vol• z;. Pg . 27S (IM-Ho Files, (ul�.m. s co►a colleci'►ohs) t - -new a; sc o _Pr'' 180 d it.t r' 1 ez House N,o.54 pg.49-3 �5.275(rnaP� ' �L t I ; -. - n e w�o�ceced a •C\l 990 o QO 00. 01 44.•16 k l• _ ..�N 41-32a9 .fly RQ.Sp�c• ;. J J Claudia Berger and Sheldon M. Katz 54 Central Avenue South Burlington, VT 05403 802-658-3723 June 24, 2010 Development Review Board 575 Dorset St. S. Burlington, VT 05403 Re: 54 Central Avenue Dear Sirs and Madames: At the June 21, 2011 meeting, the board ruled that any improvements to our property must meet a three foot side setback and that to be considered for a permit we must submit a survey showing the proposed improvements with no less than a three foot setback. We therefore today submit the requested survey. Thank you for your kind attention. Since el Claudia A. Berger & S c: Janet and Bruce Alva RECEIVED JUN 2 a 2011 on . Katz It) rez (by electronic mail) City of So. Burlington 42. 99�¢ Stor—j 6tdg. . �:ol ► 2�O 0� I S • Katz = C. B er9er Val•4.7b py •24.1 Vol, 24. pg . 27S" Files, (%kv.M. S ccto Collec�'1on3) ez House No.54 pg • 49 3 �y •275(vnaP) N Q Go '9.9' o O 00, R.R.Sp►c lRR.5p1c. SO' 00- �.,newcQy�r_ed I - J I � 1 +� L ' N � � Q L% ��01 �I I . � _ 44.•16 , -.E-N 41=32 Mclg a Claudia Berger and Sheldon M. Katz 54 Central Avenue South Burlington, VT 05403 802-658-3723 June 24. 2010 Development Review Board 575 Dorset St. S. Burlington, VT 05403 Re: 54 Central Avenue Dear Sirs and Madames: At the June 21, 2011 meeting, the board ruled that any improvements to our property must meet a three foot side setback and that to be considered for a permit we must submit a survey showing the proposed improvements with no less than a three foot setback. We therefore today submit the requested survey. Thank you for your kind attention. Since el Claudia A. Berger & S on . Katz 1b c: Janet and Bruce Alvarez (by electronic mail) RECEIVED JUN 2 4 2011 City of So. Burlington CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING DEVELOPMENT REVIEW BOARD Report preparation date: June 17, 2011 Development Review Broad\Staff Comments\MS-11- Application received: April 25, 2011 01 54CentralAve Katz&Berger.doc 54 Central Avenue Miscellaneous Application #MS-11-01 Meeting date: June 21, 2011 Agenda # 5 Applicants/Owners Property Information Claudia Berger & Sheldon Katz Tax Parcel ID 0330-00054 54 Central Avenue Queen City Park (QCP) District South Burlington, VT 05403 Parcel Size: 4350 SF Location Map CITY OF SOUTH BURLINGTON 2 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger.doc Claudia Berger and Sheldon Katz, hereafter referred to as the applicants, seek approval to expand a non -complying single family dwelling by: 1) enclosing existing front porch, 2) constructing 6' x 10' covered front porch, 3) converting rear deck to 2-story addition, 4) adding 8'xl2.5' screened in rear deck, and 5) adding two (2) shed dormers, 54 Central Avenue. Administrative Officer Ray Belair and Director of Planning & Zoning Paul Conner have reviewed the plans submitted on April 25, 2011, and have the following comments. Zoning District & Dimensional Requirements: QCP Zoning District Required Proposed 4 Min. Lot Size 7500 S.F. 4350 S.F Max. Building Coverage"" 40% 34% Max. Overall Coverage" 60% 47% Min. Front Setback loft 19 ft ♦ in. Side Setback 5 ft. 3.2 & 4.5 Min. Rear Setback 10 ft. Approx 30 ft. Max. Building Height 25 ft. <25 ft �► Pre-existing non-compliance; will be reviewed under SBLDR section 4.08 (G) ♦ Zoning non-compliance Zoning compliance ****Many of the homes in the Queen City Park neighborhood are eligible for relief from coverage limitations under Section 3.06 of the South Burlington Land Development Regulations for pre- existing non -compliant lots which existed prior to February 28, 1974. Lots smaller than 5000 square feet in size may exceed the maximum allowed for the district up to a maximum of forty percent (40%) for buildings and sixty percent (60%) for overall coverage. Staff has reviewed the application under Sections 3.06(J) [Exceptions to Setback and Lot Coverage Requirements for Lots Existing Prior to February 28, 1974], 3.11(D) [Alterations to Non -Complying Structures] and 4.08(E) and (F) [Queen City Park District] of the South Burlington Land Development Regulations (SBLDR). [Note: for this application, staff has performed an analysis for each discrete element of the proposed project] PROJECT ITEM 1: ENCLOSE EXISTING FRONT PORCH, ONE STORY The existing open front porch has dimensions of 5.5' X 19.66' and is located 4+/- feet (this is a range of 3 to 5 feet) from the side property line. The proposal is to enclose this area with walls, CITY OF SOUTH BURLIJON 3 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11 01 54CentralAve Katz&Berger doc thereby increasing the size of the building. Section 3.06 (J) (1) of the SBLDR (1) Side and Rear Setbacks. A structure may encroach into the required side or rear setback up to a distance equal to 50% of the side or rear setback requirement of the district, but in no event shall a structure have a side setback of less than five (5) feet. For this element of the project, applicants propose a side setback of 4+/- feet (this is a range of 3 to 5 feet), which does not comply with Section 3.06 (J) (1) of the SBLDR. Section 3.06(J) (3) permits additional encroachment into the side setback, for a resulting side setback of no less than three feet, if the proposed encroachment will not have an undue adverse affect on: a. Views of adjoining and/or nearby properties; b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking. d. Safety of adjoining and/or nearby property. The Board should conduct a site visit to evaluate the effect of the proposed alteration on the above criteria. Section 3.11 (D) (1) of the SBLDR states that "except as otherwise provided in sub -sections (2) and (3) below, and in Article 4, Section 4.08, Queen City Park District, and in Article 12, Section 12.01(D), any non -complying building or structure may be altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost thirty-five percent (35%) for residential properties and twenty-five percent (25%) for industrial and commercial property of the current assessed value as determined by the City Assessor and in compliance with Section 3.11(B) above. In the event an addition or an expansion to a building or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements)". Section 3.11 (D) (2) of the SBLDR states that "the thirty-five percent (35%) limitation for residential properties described above shall not apply to structures on lots that were in existence prior to February 28, 1974". This proposed alteration, pursuant to Section 3.11 (D) (2) of the SBLDR is not subject to the 35% limitation described in Section 3.11 (D) (1), as the structure is on a lot that was in existence prior to February 28, 1974. Section 3.11 (D) (1) requires that an addition or expansion to a non -complying structure meet the minimum side yard setback and Section 4.08 does not provide otherwise for non -complying structures in the Queen City Park district. Applicants' proposal to enclose the existing front porch is an addition or expansion to a building that does not itself comply with the required 5- foot side yard setback. Therefore, the proposed front porch enclosure does not comply with Section 3.11 (D) (1). Section 4.08 (F). Non -complying structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying CITY OF SOUTH BURLINGTON 4 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger.doc structures and lots. Non -complying structures shall be subject to the following requirements and restrictions: (2) Any non -complying building or structure may be altered provided such work does not: a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer; or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. Applicants' proposal does not exceed in aggregate cost thirty-five percent of the fair market value and Applicants' proposal to enclose the existing front porch involves an increase to the square footage of the building or structure. Therefore, the non -complying building may not be altered except as allowed by Section 4.08(F) (2) and (3): (3) The Development Review Board may approve any alteration which exceeds the thirty- five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint, or square footage subject to the provisions of Article 14, Conditional Use Review. Staff has evaluated compliance with the criteria in the section of this report titled 'Conditional Use Review' below. (4) In addition to the provisions set forth above, the DRB shall determine that the proposed alteration or expansion will not adversely affect: a. Views of adjoining and/or nearby properties; b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking. Subsection 'a' and 'b' above are difficult for staff alone to assess as they are unique in the Land Development Regulations in that they are to be evaluated from the perspective of adjoining and/or nearby properties and not necessarily from a public right-of-way. The proposed alteration is proposed to be located only 4+/- feet from the northern property line, where the abutting property also appears to be very close to the property line. The distance between these two structures appears to be very minimal. As such, the subject property, given the proximity to the adjoining home and its location, appears to have the potential to block the existing view of Lake Champlain. Still, staff is not qualified to address this without trespassing on private property. As such, Staff urges that the Board carefully consider testimony from adjoining and/or nearby property owners and carefully consider such testimony with respect to the proposal's compliance with criteria 'a' and 'b' above. Additionally, Staff recommends the Board schedule a site visit to the property to assess compliance or non-compliance with "a" and "b" above. Staff finds that the subject property has adequate on -site parking. CONDITIONAL USE CRITERIA Pursuant to Section 14.10(E) of the Land Development Regulations, the proposed conditional use shall meet the following standards: CITY OF SOUTH BURLINGTON 5 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger doc 1. The proposed use, in its location and operation, shall be consistent with the planned character of the area as defined by the City of South Burlington Comprehensive Plan. Staff does not think that the proposed alteration is in conflict with the planned character of the area, as defined by the Comprehensive Plan. 2. The proposed use shall conform to the stated purpose of the district in which the proposed use is located. According to Section 4.08(A) of the Land Development Regulations, the QCP Zoning District is formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. 3. The Development Review Board must find that the proposed uses will not adversely affect the following: (a) The capacity of existing or planned municipal or educational facilities. The proposed alteration will not adversely affect municipal services. (b) The planned character of the neighborhood or district in which the property is located, nor ability to develop adjacent property for appropriate uses. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. The QCP district is historically a very dense neighborhood. The proposed alteration is to the front of the property and will blend in with the remainder of the building. Again, the Board should consider testimony from the adjacent property owners with respect to any impact on access to sunlight which could result from the proposed alteration. (c) Traffic on roads and highways in the vicinity. The proposed alteration will not affect traffic in the vicinity. (d) Bylaws in effect. The proposed alteration will not be in compliance with the side setback requirement for the district. (e) Utilization of renewable energy resources. The proposed alteration has the potential to impact adversely the abutting property owner's access to solar energy, as stated previously in this report. The Board should discuss the application with respect to this criterion. CITY OF SOUTH BURLINGTON 6 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger.doc PROJECT ITEM 2. ADD COVERED FRONT PORCH This proposed alteration consists of constructing a new 6' X 10' covered front porch that will comply with the front and side yard setback requirements. Section 3.11 (D) (1) of the Land Development Regulations states that "except as otherwise provided in sub -sections (2) and (3) below, and in Article 4, Section 4.08, Queen City Park District, and in Article 12, Section 12.01(D), any non -complying building or structure may be altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost thirty-five percent (35%) for residential properties and twenty-five percent (25%) for industrial and commercial property of the current assessed value as determined by the City Assessor and in compliance with Section 3.11(B) above. In the event an addition or an expansion to a building or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements)". Section 3.11 (D) (2) of the SBLDR's states that "the thirty-five percent (3551o) limitation for residential properties described above shall not apply to structures on lots that were in existence prior to February 28, 1974". This proposed alteration, pursuant to Section 3.11 (D) (2) of the SBLDR's is not subject to the 35% limitation described in Section 3.11 (D) (1). This proposed alteration is in compliance with the requirement in Section 3.11 (D) (1) with respect to compliance with setback requirements. Section 4.08 (F). Non -complying structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots. Non -complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer; or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. Applicants' proposal exceeds in aggregate cost thirty-five percent of the fair market value and Applicants' proposal to construct a new covered front porch involves an increase to the footprint of the building or structure. Therefore, the non -complying building may not be altered except as allowed by Section 4.08(F)(2) and (3): (2) The Development Review Board may approve any alteration which exceeds the thirty- five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint, or square footage subject to the provisions of Article 14, Conditional Use Review. Staff has evaluated compliance with the criteria in the section of this report titled 'Conditional Use Review' below. CITY OF SOUTH BURLINVTON 7 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger doc (3) In addition to the provisions set forth above, the DRB shall determine that the proposed alteration or expansion will not adversely affect: a. Views of adjoining and/or nearby properties; b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking. Subsection `a' and 'b' above are difficult for staff alone to assess as they are unique in the Land Development Regulations in that they are to be evaluated from the perspective of adjoining and/or nearby properties and not necessarily from a public right-of-way. The proposed alteration is proposed to be located in the front of the building and will meet the minimum setback requirements. As such, Staff urges that the Board carefully consider testimony from adjoining and/or nearby property owners and carefully consider such testimony with respect to the proposal's compliance with criteria 'a' and `b' above. Additionally, Staff recommends the Board schedule a site visit to the property to assess compliance or non-compliance with "a" and "b" above. Staff finds that the subject property has adequate on -site parking. CONDITIONAL USE CRITERIA Pursuant to Section 14.10(E) of the Land Development Regulations the proposed conditional use shall meet the following standards• 1. The proposed use, in its location and operation, shall be consistent with the planned character of the area as defined by the City of South Burlington Comprehensive Plan. Staff does not think that the proposed alteration is in conflict with the planned character of the area, as defined by the Comprehensive Plan. 2. The proposed use shall conform to the stated purpose of the district in which the proposed use is located. According to Section 4.08(A) of the Land Development Regulations, the QCP Zoning District is formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. 3. The Development Review Board must find that the proposed uses will not adversely affect the following: (a) The capacity of existing or planned municipal or educational facilities. The proposed alteration will not adversely affect municipal services. (b) The planned character of the neighborhood or district in which the property is located, nor ability to develop adjacent property for appropriate uses. CITY OF SOUTH BURLINGTON 8 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Beraer.doc Staff thinks that the Board should evaluate this criteric examining the existing character of the neighborhood. dense neighborhood. The proposed alteration is to the with the remainder of the building. Again, the Board adjacent property owners with respect to any impact on from the proposed alteration. (c) Traffic on roads and highways in the vicinity. )n following completion of a site visit The QCP district is historically a very front of the property and will blend in should consider testimony from the access to sunlight which could result The proposed alteration will not affect traffic in the vicinity. (d) Bylaws in effect. The proposed alteration will be in compliance with the side and front setback requirements for the district. (e) Utilization of renewable energy resources. The proposed alteration has the potential to impact adversely the abutting property owner's access to solar energy, as stated previously in this report. The Board should discuss the application with respect to this criterion. PROJECT ITEM 3 ENCLOSE EXISTING REAR DECK TWO STORIES, EXTEND EXISTING GABLE ROOF This proposed alteration consists of constructing an 11.5' X 19' 2-story addition over an existing deck located 2+/- feet (this is a range of 1 to 3 feet) from the north property boundary line. Section 3.06 (J) (1) of the SBLDR (1) Side and Rear Setbacks. A structure may encroach into the required side or rear setback up to a distance equal to 50% of the side or rear setback requirement of the district, but in no event shall a structure have a side setback of less than five (5) feet. For this element of the project, applicants propose a side setback of 2+/- feet (this is a range of 1 to 3 feet), which does not comply with Section 3.06 (J) (1) of the SBLDR. Section 3.06(J) (3) permits additional encroachment into the side setback, for a resulting side setback of no less than three feet, if the proposed encroachment will not have an undue adverse affect on: a. Views of adjoining and/or nearby properties; b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking; d. Safety of adjoining and/or nearby property. The Board should conduct a site visit to evaluate the effect of the proposed alteration on the above criteria. Section 3.11 (D) (1) of the Land Development Regulations states that "except as otherwise provided in sub -sections (2) and (3) below, and in Article 4, Section 4.08, Queen City Park District, and in Article 12, Section 12.01(D), any non -complying building or structure may be CITY OF SOUTH BURLING rON 9 J DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Develooment Review Board\Staff Comments\MS-11 01 54CentralAve Katz&Berger doc altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost thirty-five percent (35%) for residential properties and twenty-five percent (25%) for industrial and commercial property of the current assessed value as determined by the City Assessor and in compliance with Section 3.11(B) above. In the event an addition or an expansion to a building or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements)". Section 3.11 (D) (2) of the SBLDR's states that "the thirty-five percent (3591o) limitation for residential properties described above shall not apply to structures on lots that were in existence prior to February 28, 1974". This proposed alteration, pursuant to Section 3.11 (D) (2) of the SBLDR's is not subject to the 35% limitation described in Section 3.11 (D) (1). Section 3.11(D)(1) requires that an addition or expansion to a non -complying structure meet the minimum side yard setback and Section 4.08 does not provide otherwise for non -complying structures in the Queen City Park district. Applicants' proposal to construct a 2-story addition over an existing deck is an addition or expansion to a building that does not itself comply with the required 5-foot side yard setback. Therefore, the proposal to construct a 2-story addition over an existing deck does not comply with Section 3.11 (D) (1). Section 4.08 (F). Non -complying structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots. Non -complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer; or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. Applicants' proposal exceeds in aggregate cost thirty-five percent of the fair market value and Applicants' proposal to construct a 2-story addition over an existing deck involves an increase to the square footage of the building or structure. Therefore, the non -complying building may not be altered except as allowed by Section 4.08(F)(2) and (3): (2) The Development Review Board may approve any alteration which exceeds the thirty- five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint, or square footage subject to the provisions of Article 14, Conditional Use Review. Staff has evaluated compliance with the criteria in the section of this report titled `Conditional Use Review' below. (3) In addition to the provisions set forth above, the DRB shall determine that the proposed alteration or expansion will not adversely affect: a. Views of adjoining and/or nearby properties; CITY OF SOUTH BURLINGTON 10 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger.doc b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking. Subsection 'a' and 'b' above are difficult for staff alone to assess as they are unique in the Land Development Regulations in that they are to be evaluated from the perspective of adjoining and/or nearby properties and not necessarily from a public right-of-way. The proposed alteration is proposed to be located only 2+/- feet from the northern property line, where the abutting property also appears to be very close to the property line. The distance between these two structures appears to be very minimal. As such, the subject property, given the proximity to the adjoining home and its location, appears to have the potential to block southern solar exposure. Still, Staff is not qualified to address this without trespassing on private property. As such, Staff urges that the Board carefully consider testimony from adjoining and/or nearby property owners and carefully consider such testimony with respect to the proposal's compliance with criteria `a' and `b' above. Additionally, Staff recommends the Board schedule a site visit to the property to assess compliance or non-compliance with "a" and "b" above. Staff finds that the subject property has adequate on -site parking. CONDITIONAL USE CRITERIA Pursuant to Section 14.10(E) of the Land Development Regulations, the proposed conditional use shall meet the following standards: 1. The proposed use, in its location and operation, shall be consistent with the planned character of the area as defined by the City of South Burlington Comprehensive Plan. Staff does not think that the proposed alteration is in conflict with the planned character of the area, as defined by the Comprehensive Plan. 2. The proposed use shall conform to the stated purpose of the district in which the proposed use is located. According to Section 4.08(A) of the Land Development Regulations, the QCP Zoning District is formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. 3. The Development Review Board must find that the proposed uses will not adversely affect the following: (a) The capacity of existing or planned municipal or educational facilities. The proposed alteration will not adversely affect municipal services. CITY OF SOUTH BURLING �ON 11 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11 01 54CentralAve Katz&Berger doc (b) The planned character of the neighborhood or district in which the property is located, nor ability to develop adjacent property for appropriate uses. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. The QCP district is historically a very dense neighborhood. The proposed alteration is to the rear of the property and will not be visible from the street. Again, the Board should consider testimony from the adjacent property owners with respect to any impact on access to sunlight which could result from the proposed alteration. (c) Traffic on roads and highways in the vicinity. The proposed alteration will not affect traffic in the vicinity. (d) Bylaws in effect. The proposed alteration will not be in compliance with the side setback requirement for the district. (e) Utilization of renewable energy resources. The proposed alteration has the potential to impact adversely the abutting property owner's access to solar energy, as stated previously in this report. The Board should discuss the application with respect to this criterion. PROJECT ITEM 4. ADD SCREENED -IN REAR DECK This alteration consists of constructing a new 8' X 12.5' screened -in porch onto the rear of the building which will meet the side and rear setback requirements. Section 3.11 (D) (1) of the Land Development Regulations states that "except as otherwise provided in sub -sections (2) and (3) below, and in Article 4, Section 4.08, Queen City Park District, and in Article 12, Section 12.01(D), any non -complying building or structure may be altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost thirty-five percent (35%) for residential properties and twenty-five percent (25%) for industrial and commercial property of the current assessed value as determined by the City Assessor and in compliance with Section 3.11(B) above. In the event an addition or an expansion to a building or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements)" Section 3.11 (D) (2) of the SBLDR's states that "the thirty-five percent (35%) limitation for residential properties described above shall not apply to structures on lots that were in existence prior to February 28, 19 74 ". This proposed alteration, pursuant to Section 3.11 (D) (2) of the SBLDR's is not subject to the 35% limitation described in Section 3.11 (D) (1). This proposed alteration is in compliance with the requirement in Section 3.11 (D) (1) with respect to compliance with setback requirements. CITY OF SOUTH BURLINGTON 12 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger.doc Section 4.08 (F). Non -complying structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots. Non -complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer; or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. Applicants' proposal exceeds in aggregate cost thirty-five percent of the fair market value and Applicants' proposal to construct a new screened -in porch onto the rear of the building involves an increase to the footprint of the building or structure. Therefore, the non -complying building may not be altered except as allowed by Section 4.08(F)(2) and (3): (2) The Development Review Board may approve any alteration which exceeds the thirty- five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint, or square footage subject to the provisions of Article 14, Conditional Use Review. Staff has evaluated compliance with the criteria in the section of this report titled 'Conditional Use Review' below. (3) In addition to the provisions set forth above, the DRB shall determine that the proposed alteration or expansion will not adversely affect: a. Views of adjoining and/or nearby properties; b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking. Subsection 'a' and 'b' above are difficult for staff alone to assess as they are unique in the Land Development Regulations in that they are to be evaluated from the perspective of adjoining and/or nearby properties and not necessarily from a public right-of-way. The proposed alteration is proposed to be located in the rear of the building and will meet the minimum setback requirements. As such, Staff urges that the Board carefully consider testimony from adjoining and/or nearby property owners and carefully consider such testimony with respect to the proposal's compliance with criteria 'a' and 'b' above. Additionally, Staff recommends the Board schedule a site visit to the property to assess compliance or non-compliance with "a" and "b" above. Staff finds that the subject property has adequate on -site parking. CONDITIONAL USE CRITERIA Pursuant to Section 14.10(E) of the Land Development Regulations, the proposed conditional use shall meet the following standards: 1. The proposed use, in its location and operation, shall be consistent with the planned CITY OF SOUTH BURLING TON 13 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11 01 54CentralAve Katz&Berger doc character of the area as defined by the City of South Burlington Comprehensive Plan. Staff does not think that the proposed alteration is in conflict with the planned character of the area, as defined by the Comprehensive Plan. 2. The proposed use shall conform to the stated purpose of the district in which the proposed use is located. According to Section 4.08(A) of the Land Development Regulations, the QCP Zoning District is formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. Again, the proposed alteration is in compliance with the proposed purpose of the district which related to smaller lots and lesser setbacks than other residential districts. 3. The Development Review Board must find that the proposed uses will not adversely affect the following: (a) The capacity of existing or planned municipal or educational facilities. The proposed alteration will not adversely affect municipal services. (b) The planned character of the neighborhood or district in which the property is located, nor ability to develop adjacent property for appropriate uses. Staff does not think that the proposed alteration will adversely affect the character of the neighborhood. The QCP district is historically a very dense neighborhood. The proposed alteration is to the rear of the property and will blend in with the remainder of the building. Again, the Board should consider testimony from the adjacent property owners with respect to any impact on access to sunlight which could result from the proposed alteration. (c) Traffic on roads and highways in the vicinity. The proposed alteration will not affect traffic in the vicinity. (d) Bylaws in effect. The proposed alteration will be in compliance with the side and front setback requirements for the district. (e) Utilization of renewable energy resources. The proposed alteration has the potential to impact adversely the abutting property owner's access to solar energy, as stated previously in this report. The Board should discuss the application with respect to this criterion. PROJECT ITEM 5. ADD SHED DORMER ON FRONT (WEST) AND REAR (EAST) This alteration consists of adding a shed dormer on the front (west) and on the rear (east). CITY OF SOUTH BURLINGTON 14 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger.doc Section 3.11 (D) (1) of the Land Development Regulations states that "except as otherwise provided in sub -sections (2) and (3) below, and in Article 4, Section 4.08, Queen City Park District, and in Article 12, Section 12.01(D), any non -complying building or structure may be altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost thirty-five percent (35%) for residential properties and twenty-five percent (25%) for industrial and commercial property of the current assessed value as determined by the City Assessor and in compliance with Section 3.11(B) above. In the event an addition or an expansion to a building or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements)". Section 3.11 (D) (2) of the SBLDR's states that "the thirty-five percent (35%) limitation for residential properties described above shall not apply to structures on lots that were in existence prior to February 28, 1974". This proposed alteration, pursuant to Section 3.11 (D) (2) of the SBLDR's is not subject to the 35% limitation described in Section 3.11 (D) (1). Section 4.08 (F). Non -complying structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots. Non -complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer, or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. The shed dormer alteration will not involve development described in Section 4.08 (F) (1) (b) of the SBLDR. Respectfull bmitted, Ray on elair, Administrative bfficer Copy to: Claudia Berger and Sheldon Katz, Applicants f Claudia Berger and Sheldon M. Katz 54 Central Avenue South Burlington, VT 05403 802-658-3723 June 10, 2010 BY HAND DELIVERY Development Review Board 575 Dorset St. S. Burlington, VT 05403 Re: 54 Central Avenue Dear Sirs and Madames: RECEIVED JUN 10 2011 City of So. Burlington Today we submit with this letter a full sized revised survey of our property showing both the existing and proposed structure. Accordingly, our application is complete and ready for decision, which we would like at the earliest time possible. Please make a decision on each element of the proposal as if it were proposed individually and on each potential ground for approval or denial. If it is your judgment that any particular element does not need Ir,e, board's approval, please indicate that as well. The survey shows that all elements of the proposal other than the enclosure of portions of the existing footprint (the front porch and the rear deck) easily meet even current setback requirements. Currently the front porch is plus or minus four feet from the northern property line. The plus or minus means it could be as close as three feet and as far as five feet. The proposal will not change that distance. The rear deck is currently plus or minus two feet from the property line, meaning as close as one foot and as far as three feet. Again, the proposal will not change that distance. However, if you decide that three feet is the minimum setback, then please consider as an alternative proposal withdrawal of the wall to not less than three feet from the property line. The property line and the exact dis+,-inces would be determined by the surveyor visit prior to final design and construction. We absolutely do not intend to and will not encroach on the setback with the property line determined by the surveyor. As you know, the current side setback in Queen City Park is five feet, LDR Appdx. C Table 2C, the current structure is non -complying, and the lot existed prior to February 28, 1974. The LDR expressly provide for an exception to current setback requirements for lots in existence prior to February 28, 1974. LDR § 3.06J. Under that rule, the board may allow a structure to encroach into the five foot area as long as it Development Review Board Letter of June 10, 2011 leaves at least a three foot setback. LDR § 3.06J(3). The front porch footprint meets that setback. The existing rear deck footprint, which will not be affected the proposal, may or may not meet that setback. If in your judgment the rear deck proposal meets all 3.06J criteria other than the three foot setback, and if further in your iudgment $ 4.08 requires a setback greater than the current setback (a conclusion with which we maintain below is unwarranted), please consider the application to call for a three foot setback such that the continuation of the north wall of the proposal will be recessed to meet the three foot setback from the line determined by the surveyor. Alternatively, please condition your approval on recessing the wall to meet the three foot setback. Queen City Park has its own speci..l rules for improvements to non -complying structures. Under § 4.08G, changes to a non -complying structure in Queen City Park are conditionally permitted. If those conditions are met, Section 4.08G requires no particular setback. Nevertheless, our proposal does nothing to reduce the current level of setback. To be sure, LDR § 3.11D(1) provides that any "additions or expansions" to non- complying buildings should comply with current setback requirements. However, that section is prefaced "[e]xcept as otherwise provided ... in Article 4, Section 4.08, Queen City Park District." Further, § 3.11 D(1) is inapt in Queen City Park under the express terms of § 4.08: "Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots." Further, § 4.08G's mandatory terms -- "Non -complying structures shall be subject to the following requirements and restrictions:" -- demonstrates that improvements to non -complying buildings .n Queen City Park are not subject to additional requirements. If city council had intended other requirements, it could easily have added "in addition to the requirements of Section 3.11D." Having not done so, the council clearly intended § 4.08 to establish the exclusive requirements for improvements to Queen City Park non -complying buildings. Moreover, it is axiomatic that specific rules or statutes trump general rules or statutes. See e.g Town of Brattleboro v. Garfield, 2006 VT 56, ¶ 10, 180 Vt. 90, 904 A.2d 1157 ("long-standing rule of statutory construction that where two statutes deal with the same subject matter, and one is general and the other specific, the more specific statute controls" ). Since § 4.08G is specific to Queen City Park, it controls over the merely general § 3.11(D). Zoning laws, because they conflict with historic common law rights, "must be given a strict construction." In re Champlain College, 2009 VT 55. "Any ambiguity or uncertainty must be decided in favor" of tl ,r• property owner seeking to improve his 2 Development Review Board Letter of June 10, 2011 property. See id. See also Kremer v. Lawyers Title Ins. Corp., 177 Vt. 553 (2004) ("[i]t is a firmly established rule in this state [Vermont] that any uncertainty in land use regulations must be construed in a way that is favorable to the property owner, that is, against the alleged land use violation."); In re. Bennington School, Inc., 176 Vt. 584 (because land use regulation conflicts with common law, "any ambiguity is resolved in favor of the landowner."); In re. Weeks, 167 Vt. 551, 555 (1998). Accordingly, in this matter any doubt must be decided in favor ( if the Applicants. The LDR also must be construed in light of the expressly stated purpose for creating the Queen City Park district: "to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood." § 4.08A. The Queen City Park district is "designed to promote the area's historic development pattern of smaller lots and reduced setbacks." Id. The board has recognized that Queen City Park "is very dense and homes are very close together." In the Matter of Provencher Application, MS-06-04; In the Matter of Ahladas Application, MS-08-07 (same); In the Matter of Goodman Application, MS-09-05 (same). In point of fact, acting on a recent application very similar to that of the Applicants, the board approved a new two-story addition to a non -complying structure. See Ahladas, MS-08-07. In Ahladas, the new addition was built within roughly one foot of the property line. The board approved the addition even though it did not comply with current setback requirements. The board is bound by its own precedents. See e.g. Motor Vehicle Mfrs. Ass'n. of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), Mendez-Barrera v. Holder, 602 F.3d 21, 26 (1st Cir. 2010) citing Nat'l Cable & Telecomms. Ass'n. v. Brand X Internet Servs:, 545 U.S. 967, 981 (2005). Consequently, as in Ahladas, the proposed improvements in the instant matter need not comply with current setbacks. Further, Ahladas binds the board to find that the proposed improvements meet § 4.08G's conditions. Finally, please have each board member disclose any previous or existing personal or professional relationship with any of the parties, including with the neighbor opponents. Thank you for your kind attention. Sincerely Claudia rger & Sheldon M. Katz c: Janet and Bruce Alvarez (by electronic mail) CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING DEVELOPMENT REVIEW BOARD Report preparation date: June 3, 2011 Development Review Broad\Staff Comments\MS-11- Application received: April 25, 2011 01 54CentralAve_Katz&Berger.doc 54 Central Avenue Miscellaneous Application #MS-11-01 Meeting date: June 7, 2011 Agenda # 9 Applicants/Owners Property Information Claudia Berger & Sheldon Katz Tax Parcel ID 0330-00054 54 Central Avenue Queen City Park (QCP) District South Burlington, VT 05403 Parcel Size: 4350 SF Location Map � 1 CITY OF SOUTH BURLINGTON 2 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger doc Claudia Berger and Sheldon Katz, hereafter referred to as the applicants, seek approval to expand a non -complying single family dwelling by: 1) enclosing existing front porch, 2) constructing 6' x 10' covered front porch, 3) converting rear deck to 2-story addition, 4) adding 8'x12.5' screened in rear deck, and 5) adding two (2) shed dormers, 54 Central Avenue. Administrative Officer Ray Belair and Director of Planning & Zoning Paul Conner have reviewed the plans submitted on April 25, 2011, and have the following comments. Zoning District & Dimensional Requirements: QCP Zoning District Re uired Proposed �► Min. Lot Size 7500 S.F. 4350 S.F Max. Building Coverage**** 40% 34% Max. Overall Coverage"' 60% 47% �l Min. Front Setback loft 19 ft ♦ Min. Side Setback 5 ft. 3.2 & 4.5 A Min. Rear Setback 10 ft. Approx 30 ft. Max. Building Height 25 ft. <25 ft �► Pre-existing non-compliance; will be reviewed under SBLDR section 4.08 (G) ♦ Zoning non-compliance �l Zoning compliance ****Many of the homes in the Queen City Park neighborhood are eligible for relief from coverage limitations under Section 3.06 of the South Burlington Land Development Regulations for pre- existing non -compliant lots which existed prior to February 28, 1974. Lots smaller than 5000 square feet in size may exceed the maximum allowed for the district up to a maximum of forty percent (40%) for buildings and sixty percent (60%) for overall coverage. Staff has reviewed the application under Sections 3.06(J) [Exceptions to Setback and Lot Coverage Requirements for Lots Existing Prior to February 28, 1974], 3.11(D) [Alterations to Non -Complying Structures] and 4.08(E) and (F) [Queen City Park District] of the South Burlington Land Development Regulations (SBLDR). [Note: for this application, staff has performed an analysis for each discrete element of the proposed project] PROJECT ITEM 1: ENCLOSE EXISTING FRONT PORCH, ONE STORY The existing open front porch has dimensions of 5.5' X 19.66' and is located 4.5 feet from the side property line. The proposal is to enclose this area with walls, thereby increasing the size of the building. CITY OF SOUTH BURLINGTON 3 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger doc Section 3.06 (J) (1) of the SBLDR (1) Side and Rear Setbacks. A structure may encroach into the required side or rear setback up to a distance equal to 50% of the side or rear setback requirement of the district, but in no event shall a structure have a side setback of less than five (5) feet. For this element of the project, applicants propose a side setback of 4.5 feet, which does not comply with Section 3.06 (J) (1) of the SBLDR. While Section 3.06(J)(3) permits additional encroachment into the side setback under certain circumstances, applicants have not submitted the information required by Section 3.06(J)(4). Section 3.11 (D) (1) of the SBLDR states that "except as otherwise provided in sub -sections (2) and (3) below, and in Article 4, Section 4.08, Queen City Park District, and in Article 12, Section 12.01(D), any non -complying building or structure may be altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost thirty-five percent (35%) for residential properties and twenty-five percent (259yo) for industrial and commercial property of the current assessed value as determined by the City Assessor and in compliance with Section 3.11(B) above. In the event an addition or an expansion to a building or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements)". Section 3.11 (D) (2) of the SBLDR states that "the thirty-five percent (359yo) limitation for residential properties described above shall not apply to structures on lots that were in existence prior to February 28, 1974". This proposed alteration, pursuant to Section 3.11 (D) (2) of the SBLDR is not subject to the 35% limitation described in Section 3.11 (D) (1), as the structure is on a lot that was in existence prior to February 28, 1974. Section 3.11(D)(1) requires that an addition or expansion to a non -complying structure meet the minimum side yard setback and Section 4.08 does not provide otherwise for non -complying structures in the Queen City Park district. Applicants' proposal to enclose the existing front porch is an addition or expansion to a building that does not itself comply with the required 5- foot side yard setback. Therefore, the proposed front porch enclosure does not comply with Section 3.11 (D) (1). Section 4.08 (F). Non -complying structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots. Non -complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer, or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. Applicants' proposal exceeds in aggregate cost thirty-five percent of the fair market value and CITY OF SOUTH BURLINGTON 4 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger doc Applicants' proposal to enclose the existing front porch involves an increase to the square footage of the building or structure. Therefore, the non -complying building may not be altered except as allowed by Section 4.08(F)(2) and (3): (2) The Development Review Board may approve any alteration which exceeds the thirty- five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint, or square footage subject to the provisions of Article 14, Conditional Use Review. Staff has evaluated compliance with the criteria in the section of this report titled 'Conditional Use Review' below. (3) In addition to the provisions set forth above, the DRB shall determine that the proposed alteration or expansion will not adversely affect: a. Views of adjoining and/or nearby properties, b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking. Subsection 'a' and 'b' above are difficult for staff alone to assess as they are unique in the Land Development Regulations in that they are to be evaluated from the perspective of adjoining and/or nearby properties and not necessarily from a public right-of-way. The proposed alteration is proposed to be located only 4.5 feet from the northern property line, where the abutting property also appears to be very close to the property line. The distance between these two structures appears to be very minimal. As such, the subject property, given the proximity to the adjoining home and its location, appears to have the potential to block the existing view of Lake Champlain. Still, staff is not qualified to address this without trespassing on private property. As such, Staff urges that the Board carefully consider testimony from adjoining and./or nearby property owners and carefully consider such testimony with respect to the proposal's compliance with criteria `a' and 'b' above. Additionally, Staff recommends the Board schedule a site visit to the property to assess compliance or non-compliance with "a" and "b" above. Staff finds that the subject property has adequate on -site parking CONDITIONAL USE CRITERIA Pursuant to Section 14.10(E) of the Land _Development Reaulations. the proposed conditional use shall meet the following standards: 1. The proposed use, in its location and operation, shall be consistent with the planned character of the area as defined by the City of South Burlington Comprehensive Plan. Staff does not think that the proposed alteration is in conflict with the planned character of the area, as defined by the Comprehensive Plan. 2. The proposed use shall conform to the stated purpose of the district in which the proposed use is located. According to Section 4.08(A) of the Land Development Regulations, the QCP Zoning District is formed in order to encourage residential use at densities and setbacks that are compatible with CITY OF SOUTH BURLING ON 5 ) DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger doc the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. 3. The Development Review Board must find that the proposed uses will not adversely affect the following: (a) The capacity of existing or planned municipal or educational facilities. The proposed alteration will not adversely affect municipal services. (b) The planned character of the neighborhood or district in which the property is located, nor ability to develop adjacent property for appropriate uses. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. The QCP district is historically a very dense neighborhood. The proposed alteration is to the front of the property and will blend in with the remainder of the building. Again, the Board should consider testimony from the adjacent property owners with respect to any impact on access to sunlight which could result from the proposed alteration. (c) Traffic on roads and highways in the vicinity. The proposed alteration will not affect traffic in the vicinity. (d) Bylaws in effect. The proposed alteration will not be in compliance with the side setback requirement for the district. (e) Utilization of renewable energy resources. The proposed alteration has the potential to impact adversely the abutting property owner's access to solar energy, as stated previously in this report. The Board should discuss the application with respect to this criterion. PROJECT ITEM 2. ADD COVERED FRONT PORCH This proposed alteration consists of constructing a new 6' X 10' covered front porch that will comply with the front and side yard setback requirements. Section 3.11 (D) (1) of the Land Development Regulations states that "except as otherwise provided in sub -sections (2) and (3) below, and in Article 4, Section 4.08, Queen City Park District, and in Article 12, Section 12.01(D), any non -complying building or structure may be altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost thirty-five percent (35%) for residential properties and twenty-five percent (25%) for industrial and commercial property of the current assessed value as determined by the City Assessor and in compliance with Section 3.11(B) above. In the event an I � CITY OF SOUTH BURLINGTON 6 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54Centi'alAve Katz&Beraer.doc addition or an expansion to a building or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements)". Section 3.11 (D) (2) of the SBLDR's states that "the thirty-five percent (35%) limitation for residential properties described above shall not apply to structures on lots that were in existence prior to February 28, 1974". This proposed alteration, pursuant to Section 3.11 (D) (2) of the SBLDR's is not subject to the 35% limitation described in Section 3.11 (D) (1). This proposed alteration is in compliance with the requirement in Section 3.11 (D) (1) with respect to compliance with setback requirements. Section 4.08 (F). Non -complying structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots. Non -complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer; or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. Applicants' proposal exceeds in aggregate cost thirty-five percent of the fair market value and Applicants' proposal to construct a new covered front porch involves an increase to the footprint of the building or structure. Therefore, the non -complying building may not be altered except as allowed by Section 4.08(F)(2) and (3): (2) The Development Review Board may approve any alteration which exceeds the thirty- five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint, or square footage subject to the provisions of Article 14, Conditional Use Review. Staff has evaluated compliance with the criteria in the section of this report titled 'Conditional Use Review' below. (3) In addition to the provisions set forth above, the DRB shall determine that the proposed alteration or expansion will not adversely affect: a. Views of adjoining and/or nearby properties, b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking. Subsection `a' and `b' above are difficult for staff alone to assess as they are unique in the Land Development Regulations in that they are to be evaluated from the perspective of adjoining and/or nearby properties and not necessarily from a public right-of-way. The proposed alteration is proposed to be located in the front of the building and will meet the minimum setback requirements. CITY OF SOUTH BURLINGTON 7 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger doc As such, Staff urges that the Board carefully consider testimony from adjoining and/or nearby property owners and carefully consider such testimony with respect to the proposal's compliance with criteria `a' and 'b' above. Additionally, Staff recommends the Board schedule a site visit to the property to assess compliance or non-compliance with "a" and "b" above. Staff finds that the subject property has adequate on -site parking CONDITIONAL USE CRITERIA Pursuant to Section 14.10(E) of the Land Development Regulations the proposed conditional use shall meet the following standards: 1. The proposed use, in its location and operation, shall be consistent with the planned character of the area as defined by the City of South Burlington Comprehensive Plan. Staff does not think that the proposed alteration is in conflict with the planned character of the area, as defined by the Comprehensive Plan. 2. The proposed use shall conform to the stated purpose of the district in which the proposed use is located. According to Section 4.08(A) of the Land Development Regulations, the QCP Zoning District is formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. 3. The Development Review Board must find that the proposed uses will not adversely affect the following: (a) The capacity of existing or planned municipal or educational facilities. The proposed alteration will not adversely affect municipal services. (b) The planned character of the neighborhood or district in which the property is located, nor ability to develop adjacent property for appropriate uses. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. The QCP district is historically a very dense neighborhood. The proposed alteration is to the front of the property and will blend in with the remainder of the building. Again, the Board should consider testimony from the adjacent property owners with respect to any impact on access to sunlight which could result from the proposed alteration. (c) Traffic on roads and highways in the vicinity. The proposed alteration will not affect traffic in the vicinity CITY OF SOUTH BURLINGTON 8 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger.doc (d) Bylaws in effect. The proposed alteration will be in compliance with the side and front setback requirements for the district. (e) Utilization of renewable energy resources. The proposed alteration has the potential to impact adversely the abutting property owner's access to solar energy, as stated previously in this report. The Board should discuss the application with respect to this criterion. PROJECT ITEM 3. ENCLOSE EXISTING REAR DECK, TWO STORIES, EXTEND EXISTING GABLE ROOF This proposed alteration consists of constructing an 11.5' X 19' 2-story addition over an existing deck located 3.2 feet from the north property boundary line. Section 3.06 (J) (1) of the SBLDR (1) Side and Rear Setbacks. A structure may encroach into the required side or rear setback up to a distance equal to 50% of the side or rear setback requirement of the district, but in no event shall a structure have a side setback of less than five (5) feet. For this element of the project, applicants propose a side setback of 3.2 feet, which does not comply with Section 3.06 (J) (1) of the SBLDR. While Section 3.06(J)(3) permits additional encroachment into the side setback under certain circumstances, applicants have not submitted the information required by Section 3.06(J)(4). Section 3.11 (D) (1) of the Land Development Regulations states that "except as otherwise provided in sub -sections (2) and (3) below, and in Article 4, Section 4.08, Queen City Park District, and in Article 12, Section 12.01(D), any non -complying building or structure may be altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost thirty-five percent (35%) for residential properties and twenty-five percent (25%) for industrial and commercial property of the current assessed value as determined by the City Assessor and in compliance with Section 3.11(B) above. In the event an addition or an expansion to a building or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements)" Section 3.11 (D) (2) of the SBLDR's states that "the thirty-five percent (35%) limitation for residential properties described above shall not apply to structures on lots that were in existence prior to February 28, 1974". This proposed alteration, pursuant to Section 3.11 (D) (2) of the SBLDR's is not subject to the 35% limitation described in Section 3.11 (D) (1). Section 3.11(D)(1) requires that an addition or expansion to a non -complying structure meet the minimum side yard setback and Section 4.08 does not provide otherwise for non -complying structures in the Queen City Park district. Applicants' proposal to construct a 2-story addition over an existing deck is an addition or expansion to a building that does not itself comply with the required 5-foot side yard setback. Therefore, the proposal to construct a 2-story addition over an existing deck does not comply with Section 3.11 (D) (1). CITY OF SOUTH BURLINGTON 9 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger.doc Section 4.08 (F). Non -complying structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots. Non -complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer, or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. Applicants' proposal exceeds in aggregate cost thirty-five percent of the fair market value and Applicants' proposal to construct a 2-story addition over an existing deck involves an increase to the square footage of the building or structure. Therefore, the non -complying building may not be altered except as allowed by Section 4.08(F)(2) and (3): (2) The Development Review Board may approve any alteration which exceeds the thirty- five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint, or square footage subject to the provisions of Article 14, Conditional Use Review. Staff has evaluated compliance with the criteria in the section of this report titled 'Conditional Use Review' below. (3) In addition to the provisions set forth above, the DRB shall determine that the proposed alteration or expansion will not adversely affect: a. Views of adjoining and/or nearby properties; b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking. Subsection 'a' and 'b' above are difficult for staff alone to assess as they are unique in the Land Development Regulations in that they are to be evaluated from the perspective of adjoining and/or nearby properties and not necessarily from a public right-of-way. The proposed alteration is proposed to be located only 3.2 feet from the northern property line, where the abutting property also appears to be very close to the property line. The distance between these two structures appears to be very minimal. As such, the subject property, given the proximity to the adjoining home and its location, appears to have the potential to block southern solar exposure. Still, Staff is not qualified to address this without trespassing on private property. As such, Staff urges that the Board carefully consider testimony from adjoining and/or nearby property owners and carefully consider such testimony with respect to the proposal's compliance with criteria 'a' and 'b' above. Additionally, Staff recommends the Board schedule a site visit to the property to assess compliance or non-compliance with "a" and "b" above. Staff finds that the subject property has adequate on -site parking. CITY OF SOUTH BURLINGTON 10 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger doc CONDITIONAL USE CRITERIA Pursuant to Section 14.10(E) of the Land Development Regulations the proposed conditional use shall meet the following standards: 1. The proposed use, in its location and operation, shall be consistent with the planned character of the area as defined by the City of South Burlington Comprehensive Plan. Staff does not think that the proposed alteration is in conflict with the planned character of the area, as defined by the Comprehensive Plan. 2. The proposed use shall conform to the stated purpose of the district in which the proposed use is located. According to Section 4.08(A) of the Land Development Regulations, the QCP Zoning District is formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. 3. The Development Review Board must find that the proposed uses will not adversely affect the following: (a) The capacity of existing or planned municipal or educational facilities. The proposed alteration will not adversely affect municipal services. (b) The planned character of the neighborhood or district in which the property is located, nor ability to develop adjacent property for appropriate uses. Staff thinks that the Board should evaluate this criterion following completion of a site visit examining the existing character of the neighborhood. The QCP district is historically a very dense neighborhood. The proposed alteration is to the rear of the property and will not be visible from the street.. Again, the Board should consider testimony from the adjacent property owners with respect to any impact on access to sunlight which could result from the proposed alteration. (c) Traffic on roads and highways in the vicinity. The proposed alteration will not affect traffic in the vicinity. (d) Bylaws in effect. The proposed alteration will not be in compliance with the side setback requirement for the district. (e) Utilization of renewable energy resources. } CITY OF SOUTH BURLINGTON 11 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger doc The proposed alteration has the potential to access to solar energy, as stated previously application with respect to this criterion. PROJECT ITEM 4. ADD SCREENED -IN REAR DECK impact adversely the abutting property owner's in this report. The Board should discuss the This alteration consists of constructing a new 8' X 12.5' screened -in porch onto the rear of the building which will meet the side and rear setback requirements. Section 3.11 (D) (1) of the Land Development Regulations states that "except as otherwise provided in sub -sections (2) and (3) below, and in Article 4, Section 4.08, Queen City Park District, and in Article 12, Section 12.01(D), any non -complying building or structure may be altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost thirty-five percent (35%) for residential properties and twenty-five percent (25%) for industrial and commercial property of the current assessed value as determined by the City Assessor and in compliance with Section 3.11(B) above. In the event an addition or an expansion to a building or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements)" Section 3.11 (D) (2) of the SBLDR's states that "the thirty-five percent (35%) limitation for residential properties described above shall not apply to structures on lots that were in existence prior to February 28, 1974". This proposed alteration, pursuant to Section 3.11 (D) (2) of the SBLDR's is not subject to the 35% limitation described in Section 3.11 (D) (1). This proposed alteration is in compliance with the requirement in Section 3.11 (D) (1) with respect to compliance with setback requirements. Section 4.08 (F). Non -complying structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots. Non -complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer, or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. Applicants' proposal exceeds in aggregate cost thirty-five percent of the fair market value and Applicants' proposal to construct a new screened -in porch onto the rear of the building involves an increase to the footprint of the building or structure. Therefore, the non -complying building may not be altered except as allowed by Section 4.08(F)(2) and (3): (2) The Development Review Board may approve any alteration which exceeds the thirty- five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint, or square footage subject to the provisions of Article 14, CITY OF SOUTH BURLINGTON 12 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MSA 1-01 54CentralAve Katz&Berger.doc Conditional Use Review. Staff has evaluated compliance with the criteria in the section of this report titled 'Conditional Use Review' below. (3) In addition to the provisions set forth above, the DRB shall determine that the proposed alteration or expansion will not adversely affect: a. Views of adjoining and/or nearby properties; b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking. Subsection 'a' and 'b' above are difficult for staff alone to assess as they are unique in the Land Development Regulations in that they are to be evaluated from the perspective of adjoining and/or nearby properties and not necessarily from a public right-of-way. The proposed alteration is proposed to be located in the rear of the building and will meet the minimum setback requirements. As such, Staff urges that the Board carefully consider testimony from adjoining and/or nearby property owners and carefully consider such testimony with respect to the proposal's compliance with criteria 'a' and 'b' above. Additionally, Staff recommends the Board schedule a site visit to the property to assess compliance or non-compliance with "a" and "b" above. Staff finds that the subject property has adequate on -site parking. CONDITIONAL USE CRITERIA Pursuant to Section 14.10(E) of the Land Development Regulations, the proposed conditional use shall meet the following standards: 1. The proposed use, in its location and operation, shall be consistent with the planned character of the area as defined by the City of South Burlington Comprehensive Plan. Staff does not think that the proposed alteration is in conflict with the planned character of the area, as defined by the Comprehensive Plan. 2. The proposed use shall conform to the stated purpose of the district in which the proposed use is located. According to Section 4.08(A) of the Land Development Regulations, the QCP Zoning District is formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. Again, the proposed alteration is in compliance with the proposed purpose of the district which related to smaller lots and lesser setbacks than other residential districts. 3. The Development Review Board must find that the proposed uses will not adversely affect the following: (a) The capacity of existing or planned municipal or educational facilities. CITY OF SOUTH BURLINGTON 13 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff Comments\MS-11-01 54CentralAve Katz&Berger.doc The proposed alteration will not adversely affect municipal services. (b) The planned character of the neighborhood or district in which the property is located, nor ability to develop adjacent property for appropriate uses. Staff does not think that the proposed alteration will adversely affect the character of the neighborhood. The QCP district is historically a very dense neighborhood. The proposed alteration is to the rear of the property and will blend in with the remainder of the building. Again, the Board should consider testimony from the adjacent property owners with respect to any impact on access to sunlight which could result from the proposed alteration. (c) Traffic on roads and highways in the vicinity. The proposed alteration will not affect traffic in the vicinity. (d) Bylaws in effect. The proposed alteration will be in compliance with the side and front setback requirements for the district. (e) Utilization of renewable energy resources. The proposed alteration has the potential to impact adversely the abutting property owner's access to solar energy, as stated previously in this report. The Board should discuss the application with respect to this criterion. PROJECT ITEM 5. ADD SHED DORMER ON FRONT (WEST) AND REAR (EAST) This alteration consists of adding a shed dormer on the front (west) and on the rear (east). Section 3.11 (D) (1) of the Land Development Regulations states that "except as otherwise provided in sub -sections (2) and (3) below, and in Article 4, Section 4.08, Queen City Park District, and in Article 12, Section 12.01(D), any non -complying building or structure may be altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost thirty-five percent (35%) for residential properties and twenty-five percent (25%) for industrial and commercial property of the current assessed value as determined by the City Assessor and in compliance with Section 3.11(B) above. In the event an addition or an expansion to a building or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements)". Section 3.11 (D) (2) of the SBLDR's states that "the thirty-five percent (35%) limitation for residential properties described above shall not apply to structures on lots that were in existence prior to February 28, 1974". This proposed alteration, pursuant to Section 3.11 (D) (2) of the SBLDR's is not subject to the 35% limitation described in Section 3.11 (D) (1). Section 4.08 (F). Non -complying structures. Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots. Non -complying structures shall be subject to the following requirements and CITY OF SOUTH BURLINGTON 14 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \Development Review Board\Staff CommentsWS-11-01 54CentralAve Katz&Berger doc restrictions: (1) Any non -complying building or structure may be altered provided such work does not: a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer; or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. The shed dormer alteration will not involve development described in Section 4.08 (F) (1) (b) of the SBLDR. Resppr.tfullyF sub ' d, I R ymond Belair, Administrative Officer Copy to: Claudia Berger and Sheldon Katz, Applicants Jeuja�y PR 0-1E-C 1 � E-Sc—e-i F-T 1 Q,�j Cc, rx 1 O cL le ,rama- f jj0 cjv�.V ,✓"r� - �''� '^�'� � 4•"! h �'.,.�'�y i� `a ,. "'�'' i� � ` !�; '�r�. ;� Y� . em _ fi „�9 �, ,V :�'; Q' .1 "�S � .; �n � � ''� '=Gr ' , VJ EX �STI ZS"H�S� i g C- � i I � _ CEXIsTfN 903 lot t�1 EvJ CcaJ � R� fl eaPc 'P �WEVJO 5e�� CLC- V14 = 2 e.w 5te4 6a-ck---19' Q; a I (O,s' Claudia Berger and Sheldon M. Katz 54 Central Avenue South Burlington, VT 05403 802-658-3723 BY HAND DELIVERY Development Review Board 575 Dorset St. S. Burlington, VT 05403 Re: 54 Central Avenue Dear Sirs and Madames: April 11, 2010 RECEIVED APR 1,1 2:.:1 City of So. Burlington Attached please find an application in connection with the above -captioned property. This matter comes from the Superior Court Environmental Division. We previously filed this application with the board. However, your staff and legal counsel advised us that the board had no jurisdiction to approve it as filed. We therefore amended the application to conform to the changes sought by the staff and counsel. The amended application was denied and we brought it to the environmental court, where we sought review of not only the denial but also of the whether the board had jurisdiction over the application as originally filed. According to the court, it could not resolve the latter issue because the board had not made a decision. The court placed its review on hold while the board decides the issue. In light of this Kafkaesque history, and given that the board has already decided most of the attached form, we request that the board waive its filing fee and consider the attached application as promptly as legally possible. The sole difference between the attached form and that previously decided by the board concerns setback. Specifically, the present form calls for enclosing a walled deck and porch of a non -complying structure (i.e. a home that does not meet current setback requirements) without receding the enclosures to the current setback limit. The attached form raises the issue of whether the Land Development Regulations ("LDR") permit improvements to a non -complying Queen City Park home while maintaining the home's existing footprint. The LDR clearly permit such improvements. Under LDR Appdx. C, Table 2C., the current side setback in Queen City Park is five feet. For two independent reasons, that distance does not apply in the instant matter. First, the LDR expressly provide for an exception to current setback requirements for lots -- such as 54 Central Avenue -- that were in existence prior to February 28, 1974. LDR § 3.06J. The board may allow a structure to encroach into the five foot setback area if at least a three foot setback remains. LDR § 3.06J(3). Hence, LDR § 3.06J and J(3) clearly allow the proposed improvements, and even if the board still believes that the improvements are not otherwise permissible, it should find that in Development Review Board Letter of April 11, 2011 the proper circumstances, the improvements -- without receding to a five foot setback -- would unquestionably be permissible. In fact, the board recently approved a similar improvement to another property in Queen City Park where the improvement was not only within five feet of the side boundary, but less than three feet of the side boundary. Ahladas, MS-08-07. Ahladas unmistakably demonstrates that the board's jurisdiction to permit the Applicants' proposed improvements. A second and independent ground for finding that the proposed improvements -- again without receding to a five foot setback — are permissible. Queen City Park has its own special rules for improvements to non -complying structures that supersede the LDR's rules of general application. Under those special rules, the five foot setback limit is inapplicable. LDR § 3. I ID(1) provides that any "additions or expansions" to non -complying buildings must comply with current setback requirements.) The Applicants' home is considered "non -complying" because it predates the LDR and is or may be setback from the north property line less than five feet, which again is the LDR's current setback limit. Appdx. C, Table 2-C. Accordingly, if § 3.11D(1) were to govern the Applicants' proposal, then the Applicants' proposed changes would have to comply with current setback requirements. However, by its own terms § 3.11D(1) expressly yields to § 4.08, which governs the Queen City Park zoning district. LDR § 4.08G confirms that in Queen City Park § 3.11D(1) is inapt: "Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots." Non -complying structures in Queen City Park are subject to a different rule: that the proposed work will not change the home's height, square footage, or footprint. § 4.08.G(1)(b). If the work changes the home's height, square footage, or footprint, then the homeowner must obtain a conditional use permit.2 § 4.08G(2). In that instance, the ' Section 111D provides in pertinent part: Except as otherwise provided ... in Article 4, Section 4.08, Queen City Park District, ... In the event an addition or an expansion to a building or stricture is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g. setback requirements). Similarly, if the cost of improvements exceeds 35 percent of the home's fair market, a conditional use permit is necessary. 4.08.G(1)(a). The application meets this criterion. Development Review Board Letter of April 11, 2011 work is still permissible absent a showing that it will adversely affect views from, and access to sunlight by, neighboring properties. § 4.08G(3).3 Zoning laws, because they conflict with historic common law rights, "must be given a strict construction." Ira re Champlain College, 2009 VT 55. "Any ambiguity or uncertainty must be decided in favor" of the property owner seeking to improve his property. See id See also Kremer v. Lawyers Title In,s. Corp., 177 Vt. 553 (2004) ("[i]t is a firmly established rule in this state [Vermont] that any uncertainty in land use regulations must be construed in a way that is favorable to the property owner, that is, against the alleged land use violation.")- In re. Bennington School, Inc., 176 Vt. 584 (because land use regulation conflicts with common law, "any ambiguity is resolved in favor of the landowner."); In re. Weeks, 167 Vt. 551, 555 (1998). Accordingly, in this matter any doubt must be decided in favor of the Applicants. The LDR also must be construed in light of the expressly stated purpose for creating the Queen City Park district: "to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood." § 4.08A. The Queen City Park district is "designed to promote the area's historic development pattern of smaller lots and reduced setbacks." Id. The board has recognized that Queen -City Park "is very dense and homes are very close together." In the Matter of Provencher Application, MS-06-04; In the Matter of Ahladas Application, MS-08-07 (same), In the Matter of Goodman Application, MS-09-05 (same) The board recognizes Queen City Park's distinctiveness and that the neighborhood is very dense with homes on small lots close together and reduced setbacks. Indeed, board staff told Applicants that the Board has never denied a permit in Queen City Park. Applicants are at a loss as to the reason that theirs would be the first. Section 3.11D, the generally applicable provision barring changes to non- complying structures unless current setback requirements are obeyed, does not apply to Queen City Park First, by its terms, § 3.11 yields to § 4.08, the section specifically governing Queen City Park. Second, § 4.08 itself states that Queen City Park homes are not governed by all of § 3.11D's restrictions. Rather, Queen City Park is governed by an alternative regulatory scheme designed for its distinct and unique character. By its plain terms, the LDR does not require improvements to Queen City Park homes to meet current setback requirements. The rule that zoning regulations must be construed in favor of the property owner removes any doubt about this conclusion. Moreover, the board must construe §§ 3.11D and 4.08G in light of the Queen City Park district's purpose, to encourage development consistent with the neighborhood's historic character of high density and reduced 3 The adverse effect test is a factual test and therefore the instant motion does not address it. 3 Development Review Board Letter of April 11, 2011 setbacks. Based on the foregoing, as long as the Applicants are not further extending into the setback area, the sole plausible conclusion is that the current setback requirements do not apply to the work proposed by Applicants. In point of fact, acting on a recent application very similar to that of the Applicants, the board approved a new two-story addition to a non -complying structure. See Ahladas, MS-08-07. In Ahladas, the new addition was built within roughly one foot of the property line. The board approved the addition even though it did not comply with current setback requirements. In fact, the board approved the addition even though its setback was less than the three feet required by 3,06J(3). The board is bound by its own precedents. See e.g. Motor Vehicle Mfrs. Assn. of U.S., Inc. v. State Farm Mitt. Auto. Ins. Co., 463 U.S. 29, 43 (1983), Mendez-Barrera v. Holder, 602 F.3d 21, 26 (Vt Cir. 2010) citing Nat'l Cable & Telecomnis. Assn v. Brand X Internet Servs., 545 U.S. 967, 981 (2005). Consequently, as in Ahladas, the proposed improvements in the instant matter need not comply with current setbacks. Finally, Section 4.08G's mandatory terms -- "Non -complying structures shall be subject to the following requirements and restrictions:" -- demonstrates that improvements to non -complying buildings in Queen City Park are not subject to additional requirements. If city council had intended other requirements, it could easily have added "in addition to the requirements of Section 3." Having not done so, the council clearly intended § 4.08 to establish the exclusive requirements for improvements to Queen City Park non -complying buildings. Thank you for your kind attention. Si Claudia A. Berg(k�eldon M. Katz Enclosure c: Janet and Bruce varez (by electronic mail) Claudia Berger and Sheldon M. Katz 54 Central Avenue South Burlington, VT 05403 802-658-3723 June 10, 2010 BY HAND DELIVERY Development Review Board 575 Dorset St. S. Burlington, VT 05403 Re: 54 Central Avenue Dear Sirs and Madames: RECEIVED JUN 10 2011 City of So. Burlington Today we submit with this letter a full sized revised survey of our property showing both the existing and proposed structure. Accordingly, our application is complete and ready for decision, which we would like at the earliest time possible. Please make a decision on each element of the proposal as if it were proposed individually and on each potential ground for approval or denial. If it is your judgment that any particular element does not need ii-e board's approval, please indicate that as well. The survey shows that all elements of the proposal other than the enclosure of portions of the existing footprint (the front porch and the rear deck) easily meet even current setback requirements. Currently the front porch is plus or minus four feet from the northern property line. The plus or minus means it could be as close as three feet and as far as five feet. The proposal will not change that distance. The rear deck is currently plus or minus two feet from the property line, meaning as close as one foot and as far as three feet. Again, the proposal will not change that distance. However, if you decide that three feet is the minimum setback, then please consider as an alternative proposal withdrawal of the wall to not less than three feet from the property line. The property line and the exact dis+�inces would be determined by the surveyor visit prior to final design and construction. We absolutely do not intend to and will not encroach on the setback with the property line determined by the surveyor. As you know, the current side setback in Queen City Park is five feet, LDR Appdx. C Table 2C, the current structure is non -complying, and the lot existed prior to February 28, 1974. The LDR expressly provide for an exception to current setback requirements for lots in existence prior to February 28, 1974. LDR § 3.06J. Under that rule, the board may allow a structure to encroach into the five foot area as long as it I Development Review Board Letter of June 10, 2011 leaves at least a three foot setback. LDR § 3.06J(3). The front porch footprint meets that setback. The existing rear deck footprint, which will not be affected the proposal, may or may not meet that setback. If in your judgment the rear deck proposal meets all 5 3.06J criteria other than the three foot setback, and if further in your iudgment $ 4.08 requires a setback greater than the current setback (a conclusion with which we maintain below is unwarranted), please consider the application to call for a three foot setback such that the continuation of the north wall of the proposal will be recessed to meet the three foot setback from the line determined by the surveyor. Alternatively, please condition your approval on recessing the wall to meet the three foot setback Queen City Park has its own speci;J rules for improvements to non -complying structures. Under § 4.08G, changes to a non -complying structure in Queen City Park are conditionally permitted. If those conditions are met, Section 4.08G requires no particular setback. Nevertheless, our proposal does nothing to reduce the current level of setback. To be sure, LDR § 3.11 D(1) provides that any "additions or expansions" to non- complying buildings should comply with current setback requirements. However, that section is prefaced "[e]xcept as otherwise provided ... in Article 4, Section 4.08, Queen City Park District." Further, § 3.11 D(1) is inapt in Queen City Park under the express terms of § 4.08: "Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.1 1, nonconforming uses and non -complying structures and lots." Further, § 4.08G's mandatory terms -- "Non -complying structures shall be subject to the following requirements and restrictions:" -- demonstrates that improvements to non -complying building;, .n Queen City Park are not subject to additional requirements. If city council had intended other requirements, it could easily have added "in addition to the requirements of Section 3.11 D.- Having not done so, the council clearly intended § 4.08 to establish the exclusive requirements for improvements to Queen City Park non -complying buildings. Moreover, it is axiomatic that specific rules or statutes trump general rules or statutes. See e.g Town of Brattleboro v. Garfield. 2006 VT 56, ¶ 10, 180 Vt. 90, 904 A.2d 1157 ("long-standing rule of statutory construction that where two statutes deal with the same subject matter, and one is general and the other specific, the more specific statute controls" ). Since § 4.08G is specific to Queen City Park, it controls over the merely general § 3.11(D). Zoning laws, because they conflict with historic common law rights, "must be given a strict construction." In re Champlain College, 2009 VT 55. "Any ambiguity or uncertainty must be decided in favor" of thr property owner seeking to improve his 2 Development Review Board Letter of June 10, 2011 property. See id ,See also Krerner v. Lahyers Title Ins. Corp., 177 Vt. 553 (2004) ("[i]t is a firmly established rule in this state [Vermont] that any uncertainty in land use regulations must be construed in a way that is favorable to the property owner, that is, against the alleged land use violation."); In re. Bennington School, Inc., 176 Vt. 584 (because land use regulation conflicts with common law, "any ambiguity is resolved in favor of the landowner."), In re. Weeks, 167 Vt. 551, 555 (1998). Accordingly, in this matter any doubt must be decided in favor 4 the Applicants. The LDR also must be construed in light of the expressly stated purpose for creating the Queen City Park district: "to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood." § 4.08A. The Queen City Park district is "designed to promote the area's historic development pattern of smaller lots and reduced setbacks." Id The board has recognized that Queen City Park "is very dense and homes are very close together." In the Mutter of'ProvencherApplication, MS-06-04; In the Matter ofAhladas Application, MS-08-07 (same); In the Matter of Goodman Application, MS-09-05 (same). In point of fact, acting on a recent application very similar to that of the Applicants, the board approved a new two-story addition to a non -complying structure. See Ahladus, MS-08-07. In Ahladas, the new addition was built within roughly one foot of the property line. The board approved +he addition even though it did not comply with current setback requirements. The board is bound by its own precedents. See e.g. Motor Vehicle Mfi•s. Ass 'n. of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), Mendez-Barrera v. Holder, 602 F.3d 21, 26 (Is' Cir. 2010) citing Nat'l Cable & Telecomms. Ass 'n. v. Brand X Internet Servs., 545 U.S. 967, 981 (2005). Consequently, as in Ahladas, the proposed improvements in the instant matter need not comply with current setbacks. Further, Ahladas binds the board to find that the proposed improvements meet § 4.08G's conditions. Finally, please have each board member disclose any previous or existing personal or professional relationship with any of the parties, including with the neighbor opponents. Thank you for your kind attention. Sincerely Claudia rger & Sheldon M. Katz c: Janet and Bruce Alvarez (by electronic mail) Comments to the DRB with respect to the application of Sheldon Katz and Dr. Claudia Berger (MS# 11-01): Measurements - The applicants' have failed to correct the measurement errors from their filing one year ago: a. The measurements on the drawing suggest that the rear of the house is 1.5 feet narrower than the front. I seriously doubt this to be true. b. Since the side lot lines converge toward the rear of the lot, and the rear of the house is approximately'/4 of the distance from the road, the width of the lot at the rear of the deck can be no greater than approximately 43.3 feet. Per the applicants' diagram, the lot is 44.3' wide at the rear of the deck. Applicants' measurements are equally suspect with respect to the dimensions of the rear deck. It was built with 12' joists with "2 by" rim joist and ledger boards. As such, the deck is not 11'6" in depth but 12'3". c. Are the applicant's requesting to build on the current footprint or are they requesting to build to the dimensions on their drawing? d. The application makes no mention of steps either from the back of the house nor from the requested 6x10 front porch. These would enlarge the footprint beyond what the applicants have stated. e. The applicants have not provided a current appraisal from which the board can determine if they are in compliance with the 35% limit. f. Perhaps the applicants should provide accurate measurements and information to the zoning department and DRB before their application is considered. 2. Setbacks: a. While the applicants' have repeatedly footnoted "actual distance to be determined" with respect to the lot lines and the distance to their house, they have done nothing to that end in the year since their first application was rejected. As their east and south side rear retaining wall was built per their 2004 survey, the north lot line should be sited per their survey unless a conclusive future survey shows otherwise. This puts the corner of the rear deck, and the corner of their proposed addition, at less than 26" from the lot line. This is not a legal distance for the existing deck nor a "finished space" replacement under any existing QCP zoning regulation. b. In their final paragraph, the applicants cite 4.08G's text: "Non -complying structures shall be subject to the following requirements and restrictions" as `proof that they are the ONLY requirements. As before, and in many other instances in the past year, the applicants ignore other relevant text that disproves their assertion. In this case the phrasing in 3.11D: "Except as otherwise noted" AND 4.08G: "Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 11..." are not mentioned. Clearly the writers of these regulations did NOT intend that 4.08G set out the entirety of regulations for non -conforming structures in QCP, only those that supercede or add to 3.11D. c. In the same "word smithing" manner the applicants' failed to convince the Environmental Court judge that 4.08G supercedes 3.11D in its entirety, they are attempting to do the same with the South Burlington DRB. In fact, 4.08G only changes the requirement that the cost of a project is capped at 35% of the current ASSESSED value to 35% of the current APPRAISED value and adds the restrictions related to views, sunlight and parking. Had those who created the regulations intended that non- conforming structures in QCP be exempt from any side setback rules, it would have been stated in this section. d. The applicants' expect the DRB to believe that there are no setback requirements for non conforming structures in QCP based on the approval of the Ahlada's project (MS-08-04 and MS-08-07). I End no reference to the side lot distance in the documentation filed by the DRB so I must conclude that the DRB did not discuss the fact that the application violated both the QCP 5' setback and the potential to legally allow a minimum of 3' setback per 3.06J(3). I see no reason why this oversight should be considered a precedent that must be followed in perpetuity as the applicants say is required. Views and sun: a. In her initial application, Ms. Ahladas requested a 1 story enclosure of an existing rear deck. There is a statement in the DRB file that a 1 story addition as designed would not affect sunlight. Ms. Ahladas subsequently came back to the DRB with a request to build the addition as a 2 story structure with a somewhat larger footprint than requested in the originally approved application. The documentation shows that "Based on testimony given at the hearing" views and sunlight do not appear to be impacted. The potential for impact was based on the north side neighbor's approval of the project, not a site visit to independently assess the potential impact to 5 Pavilion. b. The DRB members made a site visit to 52 Central related to the applicants' request a year ago. The result was a finding that views and sunlight would be adversely impacted and the application was rejected. I have additional facts to document the impact to sunlight in the Fall, Winter and Spring — measurements taken November 13th, 2010. There were 5 hours of sun from sunrise to "solar noon" on that day. If built: i. The sun in the window by the stove would drop from 2 hours 25 minutes to 20 minutes. At no time would the window be in full sunlight. ii. The sun in the greenhouse window would drop by two hours. iii. The sun in the back door (all glass) would drop by an hour. iv. The sun in the mudroom window would drop by 1 hour 40 minutes. c. Current zoning for the SE Quadrant states that 35% of the translucent windows and surfaces should be oriented to the south. Clearly the planners agree on the importance of south facing windows in the fall, winter and spring. There is no reason an existing structure should lose it's south facing light simply because someone immediately south of them and 8 feet away has a desire to enlarge their house. d. In an effort to `prove' that there is no view to the lake to lose from the westernmost window on the south wall of our house, the applicants built a rack to store 1 row of firewood 6 feet high along the north side of the front porch. All other wood was at or below the height of the rail or on the back deck. The wood in the 6' stack above the rail would have easily fit in the other racks. All of the lower wood on the front porch was used before any of the wood on the back deck. All of the wood on the back deck was used before any in the 6' stack. All but about 3 pieces in the 6' stack remain even though temperatures were similar to those once the applicants had used up all the other wood. I do not dispute their right to pile anything they like on their deck to intentionally or incidentally block our view to the lake, but allowing enclosure of the porch would make the blockage permanent and irreversible no matter who lives at 54 Central. I do not believe this is a reasonable request to grant. 4. Neighborhood: a. The applicants' contend that the board has never denied an application in QCP and suggest none should be rejected in the future because of that `history'. In fact, both of these premises are incorrect. If a project does not meet requirements of the zoning laws, the board is not required to approve it regardless of how many prior applications were or were not rejected. Other applications have been rejected with subsequent changes to the application approved. Specifically, 106 Central was turned down as being too close to Potash Brook when originally proposed. The next iteration was turned down as being too high on the east side (these might be reversed in order). The existing house is a compromise agreed by the board and the owner of the property. b. Applicants again refer to QCP's zoning regulations being formed to encourage development consistent with the neighborhood's historic character of high density and reduced setbacks and as such the setback requirements do not apply to their application. They infer that the QCP description is de facto carte blanche to do anything to any property regardless of impact to others. I will again point out that when the zoning for QCP was changed, it was with respect to the fact that few, if any, houses in the neighborhood met the 15' side and 30' front/rear setback and the lot coverage requirements. As such, NO work could be done without DRB review and approval. The 5' and 10' setbacks were chosen because they put most houses in compliance so work could be done without DRB involvement, not to encourage building to the maximum permissible limits on small lots. c. The house at 54 Central is NOT a winterized camp desperately in need of updating to meet modern standards. It was totally rebuilt and expanded into a year round house over 20 years ago. With a finished size of about 1,600 sq ft, it is larger than approximately 60% of the houses currently in the neighborhood yet the lot at 54 Central is in the bottom third by size. } i. Of those houses that are larger, few are on smaller lots and several have no garage or basement for storage (this includes the Ahladas house). ii. Most bigger houses are on lots that are 110% to 1000% larger than 54 Central. iii. Of the houses that are smaller than 54 Central, about half are 75% or less in finished square footage and less than a third are on smaller lots. iv. If their application is granted, 54 Central will be about 2250 sq ft and in the top ten largest houses in QCP with the larger houses being on lots anywhere for 140% to 1000% larger. I do not think that this is `in line' with the character of the neighborhood, nor is there a requirement for the board to approve any request simply because "the neighborhood is already tight" as the applicants suggest. d. The applicants bought a house specifically designed for a family of 2 parents and 1 teenager. i. The 2°d floor consists of a master bedroom with a'/4 bath, one very large bedroom, one small guest bedroom and a full bath with laundry. ii. The first floor holds the kitchen, dining area, living room and a den with a % bath behind the garage. iii. That the applicants have a family of 4 does not mean that the house is too small with the sole remedy being to expand and encroach on their neighbors. It means only that the house is configured incorrectly for their family. In fact, 54 Central is about the same size as 50 Central which is occupied by 2 parents and 3 children. iv. There are any number of ways the existing space at 54 Central can reconfigured to gain usable space including their proposed shed dormers over the master bedroom and bath. Additional space can be had with a much smaller addition than the applicants are requesting that would not encroach on our light and views. If they truly "need" 2,200+ sq ft of finished space, perhaps there are other neighborhoods that better suit their requirements. Bruce Alvarez 52 Central Ave South Burlington, VT 05403 iR JG r4�$. =e I = 1 o �+, �l41 A II LEGEND exlsi-I09 Iron P,n re-►+J • -Tire-rot sef p ►Z•R.SpK. In povr•r} m e+clstlnyconc.mon o 0 hboh Sur✓ey V01•410 F5•z*l Vol• 24. Py - Z7S (rnP Hoses p L.) j } � (�i�.n^ SPee�wl C.11ectlonJ, B•Alvarez Vol.2(-7 Pg.493 Vel• 24 P9 •Z7s(rhe,P) Y r b f'�9•ao 9.9• .00 �R , O°. I 11_ 44.16 _ 41.95' _ R-Q.LPK PaQ.S K. .rN F32 n7dg B9 • P so _ • �� h LP° 91 'M t C ENTRAL AVE. NIA 1 • `\IV I O �2 10_0.39 180 CTroPll,c SCo.I¢ , �0 20 30 40 So Mir Survey Is based on physical evidence found in the field and information abstracted from deeds and otherpertinent records and thla survey is consistent with that ev/denee, This plat conforms to 27 V.S.A. section 1403. / f7 1-�, c —i ,,4kE CNAMP«lN Locwiton Mo.p (Mt.z. R,ECEIVEC JUN 07 'L:) City of So. Budinc .n PLAT OF 5VRVEY SHELDON KATZ�CLAUDIA 13ERGER NROFERTY(QUEEN CITY PARK AREA NO.54 CENTRAL AVE. 50-OURLINCTON)VERXIONT DRAWN BY DATE: May 20, 2004 SCALE: 1 =10 WA.R. D BY WARREN A. ROBENSTIEN, REG. VT & NH L.S. APPROVED P.O. BOX 171 WINOOSKI, VT 05404 DRAWING NUMBER ion-n a-ya.7zFo Claudia Berger and Sheldon M. Katz 54 Central Avenue South Burlington, VT 05403 802-658-3723 April 11, 2010 BY HAND DELIVERY Development Review Board RECEIVE D 575 Dorset St. S. Burlington, VT 05403 APR 11 Re: 54 Central Avenue City of So. BuHinJon Dear Sirs and Madames: Attached please find an application in connection with the above -captioned property. This matter comes from the Superior Court Environmental Division. We previously filed this application with the board. However, your staff and legal counsel advised us that the board had no jurisdiction to approve it as filed. We therefore amended the application to conform to the changes sought by the staff and counsel. The amended application was denied and we brought it to the environmental court, where we sought review of not only the denial but also of the whether the board had jurisdiction over the application as originally filed. According to the court, it could not resolve the latter issue because the board had not made a decision. The court placed its review on hold while the board decides the issue. In light of this Kafkaesque history, and given that the board has already decided most of the attached form, we request that the board waive its filing fee and consider the attached application as promptly as legally possible. The sole difference between the attached form and that previously decided by the board concerns setback. Specifically, the present form calls for enclosing a walled deck and porch of a non -complying structure (i.e. a home that does not meet current setback requirements) without receding the enclosures to the current setback limit. The attached form raises the issue of whether the Land Development Regulations ("LDR') permit improvements to a non -complying Queen City Park home while maintaining the home's existing footprint. The LDR clearly permit such improvements. Under LDR Appdx. C, Table 2C., the current side setback in Queen City Park is five feet. For two independent reasons, that distance does not apply in the instant matter. First, the LDR expressly provide for an exception to current setback requirements for lots -- such as 54 Central Avenue -- that were in existence prior to February 28, 1974. LDR § 3.06J. The board may allow a structure to encroach into the five foot setback area if at least a three foot setback remains. LDR § 3.06J(3). Hence, LDR § 3.06J and J(3) clearly allow the proposed improvements, and even if the board still believes that the improvements are not otherwise permissible, it should find that in Development Review Board Letter of April 11, 2011 the proper circumstances, the improvements -- without receding to a five foot setback -- would unquestionably be permissible. In fact, the board recently approved a similar improvement to another property in Queen City Park where the improvement was not only within five feet of the side boundary, but less than three feet of the side boundary. Ahladas, MS-08-07. Ahladas unmistakably demonstrates that the board's jurisdiction to permit the Applicants' proposed improvements. A second and independent ground for finding that the proposed improvements -- again without receding to a five foot setback — are permissible. Queen City Park has its own special rules for improvements to non -complying structures that supersede the LDR's rules of general application. Under those special rules, the five foot setback limit is inapplicable. LDR § 3.11D(1) provides that any "additions or expansions" to non -complying buildings must comply with current setback requirements. The Applicants' home is considered "non -complying" because it predates the LDR and is or may be setback from the north property line less than five feet, which again is the LDR's current setback limit. Appdx. C, Table 2-C. Accordingly, if § 3.11D(1) were to govern the Applicants' proposal, then the Applicants' proposed changes would have to comply with current setback requirements. However, by its own terms § 3.11D(1) expressly yields to § 4.08, which governs the Queen City Park zoning district. LDR § 4.08G confirms that in Queen City Park § 3.11D(1) is inapt: "Structures in the Queen City Park District are not subject to all provisions of Article 3, Section 3.11, nonconforming uses and non -complying structures and lots." Non -complying structures in Queen City Park are subject to a different rule: that the proposed work will not change the home's height, square footage, or footprint. § 4.08.G(1)(b). If the work changes the home's height, square footage, or footprint, then the homeowner must obtain a conditional use permit.2 § 4.08G(2) In that instance, the ' Section 3.11D provides in pertinent part: Except as otherwise provided ... in Article 4, Section 4.08, Queen City Park District, .. In the event an addition or an expansion to a building or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g. setback requirements). Similarly, if the cost of improvements exceeds 35 percent of the home's fair market, a conditional use permit is necessary. 4.08.G(1)(a). The application meets this criterion. No 5e-vy.c J 5 `� • /,, r , Development Review Board Letter of April 11, 2011 work is still permissible absent a showing that it will adversely affect views from, and access to sunlight by, neighboring properties. § 4 08G(3).3 Zoning laws, because they conflict with historic common law rights, "must be given a strict construction " hi re Champlain College, 2009 VT 55. "Any ambiguity or uncertainty must be decided in favor" of the property owner seeking to improve his property. See id See also Kremer v. Lawyers Title Ins. Corp., 177 Vt. 553 (2004) ("[i]t is a firmly established rule in this state [Vermont] that any uncertainty in land use regulations must be construed in a way that is favorable to the property owner, that is, against the alleged land use violation."); In re. Bennington School, Inc., 176 Vt. 584 (because land use regulation conflicts with common law, "any ambiguity is resolved in favor of the landowner." ); In re. Weeks, 167 Vt. 551, 555 (1998). Accordingly, in this matter any doubt must be decided in favor of the Applicants. The LDR also must be construed in light of the expressly stated purpose for creating the Queen City Park district: "to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood." § 4.08A. The Queen City Park district is "designed to promote the area's historic development pattern of smaller lots and reduced setbacks." Id. The board has recognized that Queen City Park "is very dense and homes are very close together." In the Matter of Provencher Application, MS-06-04; In the Matter of Ahladas Application, MS-08-07 (same); In the Matter of Goodman Application, MS-09-05 (same). The board recognizes Queen City Park's distinctiveness and that the neighborhood is very dense with homes on small lots close together and reduced setbacks. Indeed, board staff told Applicants that the Board has never denied a permit in Queen City Park Applicants are at a loss as to the reason that theirs would be the first. Section 3.11D, the generally applicable provision barring changes to non- complying structures unless current setback requirements are obeyed, does not apply to Queen City Park First, by its terms, § 3.11 yields to § 4.08, the section specifically governing Queen City Park. Second, § 4.08 itself states that Queen City Park homes are not governed by all of § 3.11D's restrictions. Rather, Queen City Park is governed by an alternative regulatory scheme designed for its distinct and unique character. By its plain terms, the LDR does not require improvements to Queen City Park homes to meet current setback requirements. The rule that zoning regulations must be construed in favor of the property owner removes any doubt about this conclusion. Moreover, the board must construe §§ 3.11D and 4.08G in light of the Queen City Park district's purpose, to encourage development consistent with the neighborhood's historic character of high density and reduced 3 The adverse effect test is a factual test and therefore the instant motion does not address it. 3 Development Review Board Letter of April 11, 2011 setbacks. Based on the foregoing, as long as the Applicants are not further extending into the setback area, the sole plausible conclusion is that the current setback requirements do not apply to the work proposed by Applicants. In point of fact, acting on a recent application very similar to that of the Applicants, the board approved a new two-story addition to a non -complying structure. See Ahladas, MS-08-07. In Ahladas, the new addition was built within roughly one foot of the property line. The board approved the addition even though it did not comply with current setback requirements. In fact, the board approved the addition even though its setback was less than the three feet required by 3.06J(3) The board is bound by its own precedents. See e.g. Motor l'ehicle Mfrs. Ass'n. of U.S., Inc. v. State Farris Mut. Artto. Ins. Co., 463 U S. 29, 43 (1983), Mendez-Bai•rera v. Holder-, 602 F.3d 21, 26 (1st Cir. 2010) citing Nat'l Cable & Teleconims. Assn v. Brand X Internet Servs., 545 U. S. 967, 981 (2005) Consequently, as in Ahladas, the proposed improvements in the instant matter need not comply with current setbacks. Finally, Section 4 08G's mandatory terms -- "Non -complying structures shall be subject to the following requirements and restrictions:" -- demonstrates that improvements to non -complying buildings in Queen City Park are not subject to additional requirements. If city council had intended other requirements, it could easily have added "in addition to the requirements of Section 3." Having not done so, the council clearly intended § 4.08 to establish the exclusive requirements for improvements to Queen City Park non -complying buildings. Thank you for your kind attention. S Claudia A. Bergr"�eldon M. Katz Enclosure c: Janet and Bruce varez (by electronic mail) 11 May 25, 2011 Dear Property Owner: � ►re southburiington PLANNING & ZONING Attached to this letter is a copy of the draft agenda for the June 7, 2011 South Burlington Development Review Board meeting. The agenda includes a proposal that abuts property you own. The official agenda will be posted on the City's website (www.sburi.com) by the Friday prior to the meeting. Under Title 24, Section 4464 of State law, participation in a municipal regulatory proceeding is required in order to preserve your right to appeal a local development approval to the Vermont Environmental Court. State law specifies that "Participation in a local regulatory proceeding shall consist of offering, through oral or written testimony, a statement of concern related to the subject of the proceeding." If you would like to know more about the proposed development, you may call this office at 846- 4106, stop by during regular office hours, or attend the scheduled public meeting. Si*yymond R Belai Administrative Officer 575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburi.com is,81 A `r southburlington PLANNING & ZONING AGENDA South Burlington Development Review Board , City Hall Conference Room, 575 Dorset Street, South Burlington, VT. Tuesday, June 7, 2011 7:30 p.m. 1. Other business/announcements 2. Continued conditional use application #CU-11-02 of,OI Brien Meadowlands, LLG for 5,000 sq. ft. of funeral home and mortuary use (crematorium) in uiit#7, 472 Meadowland Drive. 3. Continued site plan application #SP-11-14 of O'Brien Meadowlands, LLC to amend a previously approved plan for a 60,000 sq. ft. multi -tenant industrial' ',building. The amendment consists of occupying vacant space (unit #7) with 5,000 sq. ft. of funeral.home and mortuary use (crematorium), 472 Meadowland Drive. 4. Continued preliminary plat application #SD�l 146of F & M Deve(a Tent Co., LLC for a planned unit development consisting of: 1) razing an existing health club, 2) subdividing a 2.67 acre parcel into two (2) lots of 1.42 acres & 1.25 acres, 3) constructing a 46'unit rriulti-family dwelling, 4) constructing a 63 unit multi -family dwelling,,5) converting 5000 sq, ft. of general office use to medical office use (38 Eastwood Dr.) and 5) i'nAding"tl`ie adjacent two (2) developed properties at 20 Joy Drive and 38 Eastwood Drive into the proposed PUD, 78 Eastwood Drive. 5. Final plat application #SD-11-20 of,,F & M Development Co., LLC for a planned unit development consisting of: 1) razing'an existing health club, 2)'subdividing a 2.67 acre parcel into two (2) lots of 1.42 acres,& 1,25 acres, 3) constructing a 49',unit multi -family dwelling, 4) constructing a 62 unit multi -family dwelling, 5) converting 5000 sq. ft. of general office use to medical office use (38 Eastwood Dr.) and-5) including the adjacent two (2) developed properties at 20 Joy Drive and 38 Eastwood Drive into the proposed'PUD, 78 Eastwood Drive. 6. Final plat application #SD-11. 19 of Vermont Air National Guard to relocate a section of National Guard Avenue resulting in the creation of two (2) lots of 12.04 acres (lot #1) and 32.72 acres (lot #2), NationarGuard Avenue. 7. Miscellaneous application #MS-11-01 of Claudia Berger and Sheldon Katz for approval to expand a non -complying single family dwelling by: 1) enclosing existing front porch, 2) constructing 6' x 10' covered front porch; 3) converting rear deck to 2-story addition, 4) adding 8' x 12.5' screened in rear deck, and 5) adding two (2) shed dormers, 54 Central Avenue. 8. Minutes of February 1, May 3 & May 17, 2011. Respectfully Submitted, Raymond J. Belair Administrative Officer s south Sanford I. Miller, City Manager smfllerqsburi com Ms. Claudia Berger Mr. Sheldon M. Katz 54 Central Avenue South Burlington, VT 05403 Dear Ms. Berger and Mr. Katz: I recevied your request for a waiver of the Development Review Board (DRB) fee for a new submission to the DRB following the DRB's decision to reject a different submission regarding the same property. In reviewing the request, the Superior Court's determination regarding this matter and the Staff recommendation it is clear this is a different application from the one which the DRB denied and there is no basis for waiver of the fee. I must, therefore, respectfully deny your request for a waiver of the fee. Sincerely, Sanford I. Miller City Manager C. Paul Conner, Director, Planning and Zoning Ray Belair, Zoning Administrator 04/'04/2011 17:18 18028281P�5 VT JUDICIARY PAGE 01/03 VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION FACSIMILE TRANSMISSION TO: Sheldon .Katz, Esq. Fax 864-0375 Claudia Berger Amanda Lafferty, Esq. Fax 660-2552 FROM: Diane C. Chamberlin, Assistant Clerk &P1 DATE: Monday, April 04, 2011 828-1660 2418 Airport Road, Ste. 1, Barre, Vermont 05641-8701 SUBJECT: Berger & Katz Expansion Applic. Dkt, No. 119-7-10 Vtec This is being sent by FAX ONLY to the parties listed above. All other parties will receive by hail. Number of pages being faxed, including this cover page 3 COMMENTS: ENTRY ORDER If this fax transmission is unsuccessful, please contact the Court at 828-1,660. Thank you. NOTICr THIS TRANSMJ TAT, IS INTENDED ONLY FOR THE USE Or- AND BY TIZE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED. IT ,MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL, OR ExEMPT.I;ROM DISCLOSURE UNDER APPLICABLE LAW. Ir THE READER OF THIS TRANSMITTAL IS NOT THE INTBNDEb RECIPIENT OR THE E%4PLOYEF OR AGENT RESPONSIBLE I:OR DELIVERING THE TRANSMITTAL TO THE INTENDED RECIPIENT, YOiI ARE HEREBY NOTIFIED n-IAT ANY DISSEMINATION, DISTRIBUTION, OR COPY OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU RAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY THIS OFFICE IMMEDIATELY BY TELEPHONE AND RrTURN THE ORIGINAL MESSAGE AND DOCUMENTS TO THE ABOVE ADDRESS. 04/04/2011 17:18 le02e2e'-)5 VT JUDICIARY PAGE 02/03 FILED Vermont Superior Court APR - 4 2011 Environmental Division VERMOW SUPERIOR COURT` VIMW _- -__--_ E N T R Y R E G A R D I N G R E Q 0 B T Berger & Katz Expansion Application Title: Request for ,Remand, No. 6 Filed: March 26, 2011 Filed By: Pro Se, Attorney for: Appellant Claudia aerger Appellant Sheldon. Katz Docket No. 1.19-7-10 Vtec Municipal DRB Other Response filed on 03/31/11, by Appellee City of South Burlington Reply filed on 4/4/2011 by Appellants Granted Denied other 1 S�2 �1 v4 �0.V''AgS1C1�� As reflected in the March 22, 2011 court order and the February 4, 2011 decision V on partial summary judgment, the onl„y application before the Court in the Present appeal is one that does not propose any construction closer than five feet to the property line, It is only that proposal that can be considered by the Court in the present appeal. Before presenting this aPPlicatJ_on, Appellants .had sought to present an application that did propose construction Closet' than five feet to the property line, However„ they did not appeal, to the DRB the zoning administrator's ruling that all new construction had to Comply with the five-foot setback, and that original application did not go before the DRB. The Court therefore does not have jurisdiction of the question of whether their original proposal is eligible for consideration by the DRB, or whether it should be approved. Appellants seem to .be under a mistaken impression, as reflected in their several letters filed with the Court on March 21, 2011, On March 28, 2011, and on April 4, 2011, that the Court can somehow send the legal, question posed as Question 1 of the Statement of Questions back to the DRB for the DRB to consider and rule on it. The Court Cannot do that because, as fully explained in the February 4, 2011 Summary Judgment Decision, at 3, it was not within the scope of the appeal in the first place. Question 1 was therefore dismissed by the February 4., 2011 decision. 04/104/2011 17:18 18028281E-95 VT JUDICIARY � PAGE 03/03 Page 2 If Appellants ,now wish to have the DRB consider their original application, they must file it with the DR$; it is not before the Court in the Present appeal„ As explained in the March 22, 2011 order, Appellants can leave the present appeal pending before the Court, where it will, stay in inactive status until the DRB issues a derision on the newly -filed original application, or they can, have the present appeal remanded to the DRB to be reconsidered together with the DRB's proceedings on the newly -filed original application. Once the DRB issues a decision, regardless of whether it addresses only the newly -filed original, application or whether it addresses both the newly - filed originaz application and the remanded present application, any appeal of that new DRB decision will require a new notice of appeal and the filing fee for a Successive appeal. It will receive a new docket number and Appellants will have to file a statement of questions as to that new appeal. If the present appeal were to be put on hold, it would be again activated, and both appeals would proceed together., The Court would at that time hold a telephone Conference to disCOSS the appropriate proceedings in the consolidated appeals. Given the extent of apparent misunderstanding as to the nature of a remand, and to preserve all of Appellants' arguments before this Court, it appears to the Court that the better approach is to place this appeal on inactive status and to allow Appellants to make whatever application they with to make to the DRB regarding their original proposal. They will be required to report briefly in writing to the Court when they have filed their application, and monthly thereafter until the DRB has ruled on their application. An entry order carrying out this schedule will, issue effective at 4:00 p.m. on Thursday, April 7, 2011, unless an objection is filed by 3:00 p.m. on Wednesday, April 6, 2011. Due to the very short time frames, any party wishing to object shall so advise the Court by 'telephone at 802-828-1660 and may file the objection by fax or electronic means. Judge- __- tte ` Date copies sent Copies sent to: Clerk's Initialsr[� Appellant CJ,audia iaerger Appellant Sheldon Katz Attorney Amanda Lafferty for ,Appellee City of South Burlington Interested Person Bruce N. Alvarez } Claudia A. Berger and Sheldon M. Katz 54 Central Avenue South Burlington, VT 05403 802-658-3723 April 1, 2011 Jacalyn Fletcher, Clerk Vermont Superior Court, Environmental Division 2418 Airport Road Barre, VT 05641 Re: Berger & Katz Application, Dkt. No. 119-7-10 Vtec Dear Ms. Fletcher: Our understanding of the Court's Option 2 is that the Court will remand the cause solely for consideration of a narrow legal issue that the City's counsel and staff have already advised us would be futile to bring to the DRB's attention: whether in making improvements to their home Applicants must retract the current footprint of their home or rather -- more common sensibly -- the Applicants' plan to build on and improve upon the existing footprint is permissible. If DRB counsel was correct that the DRB has no jurisdiction over an improvement on the existing footprint, as she and DRB staff told Applicants, then Applicants can re -open the appeal and present that issue to the Court de novo. In any event, there is no reason that the DRB cannot, consistent with any notice requirements, hear Applicants' argument and then promptly issue a decision. The suggestion that the DRB's decision on this narrow issue of law could consume 45 days, and that the DRB would charge yet another fee, merely reveals the respondents' bad faith. It seems the City's primary objective is to make this process as difficult, time-consuming, and costly for the Applicants as possible. Thank you for your consideration. Very ly you, s� Claudia Berge an heldon M. Katz c: Parties (by electronic mail) STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STE VEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTIR PAGE WWW.FIRMSPFCOM ROBERT E FLETCHER E-MAIL(FIRM2555QFIRMSPF.COM) JOSEPH S McLEAN WRITER'S E-MAIL (ALAFFERTYQFI RMSPF COM) AMANDA S E, LAFFERTY WRITER'S FAX (802) 660-2552 JOHN H KLESCH DAVID W. RUGH' '(ALSO ADMITTED IN MD) March 30, 2011 Jackie Fletcher, Manager Vermont Superior Court Environmental Division 2418 Airport Road Barre, VT 05641-8701 Re: Berger & Katz Expansion Application Docket No. 119-7-10 Vtec Dear Jackie: OF COUNSEL DINAL ATWOOD In response to Appellants' letter to the Court dated March 25, 2011, Appellants misstate Option 2 of the Court's Entry Regarding Request of March 22, 2011, and apparently base their choice of option solely on a mistaken understanding. The Court's entry does not address in any way the City's required application review fees. Appellants should direct any questions regarding said fees to the City Planning and Zoning Staff. If Appellants do not intend for the DRB to reconsider any aspect of the application that is currently before the Court in this matter, then there is no need for a remand. It is unclear from Appellants' letter whether Appellants want the DRB to reconsider the application which the DRB decided in June 2010 or intend simply to submit the application that they originally submitted and then withdrew. Either way, the City DRB must warn and hold a hearing on the application. At the close of the hearing, the DRB will have 45 days to issue a written decision. Please call with any questions. Thank you. Sincerely, ) �^ Amanda S . '-E . Lafferty (� 1 CC: (via email) Bruce Alvarez Sheldon Katz and Claudia Berger sonll-021.cor FILED STATE OF VERMONT FEB 4 2011 SUPERIOR COURT } In re Berger & Katz Application } } } ENVIRONMEN'] &I&WISION SUPERIOR COURT ENVIRONMENTAL DIVISION Docket No. 119-7-10 Vtec Decision and Order on A1212ellant-Aj2plicants' Motion for Partial Summary udgment Appellant -Applicants Claudia Berger and Sheldon M. Katz appealed from a decision of the Development Review Board (DRB) of the City of South Burlington, denying their application to make certain improvements to their house at 54 Central Avenue. Appellant -Applicants (Applicants) have entered an appearance representing themselves; Applicant Sheldon M. Katz is a Vermont -licensed attorney. The City is represented by Amanda S.E. Lafferty, Esq. Interested Person Bruce H. Alvarez has entered art appearance representing himself. Applicants have moved for partial summary judgment on Questions I and 2 of their Statement of Questions. The following facts are undisputed unless otherwise noted. Applicants own the residential property at 54 Central Avenue in the Queen City Park zoning district of the City of South Burlington. Applicants' north property line is the south property line of the Alvarez property. The northerly portion of Applicants' existing house is oriented with its ridgeline running east -west, that is, with its gable ends facing the front (west) and the rear (east) of the property. The southerly portion of Applicants' house is oriented with its ridgeline running north -south, that is, with its gable end facing the south side of the property. The existing house is noncomplying with the northerly side yard setback of five feet applicable in the Queen City Park zoning district. The northwest corner of the 1 existing covered front porch is located approximately 4.5 feet from the north side property line and the northeast corner of the existing open rear deck is located approximately 3.2 feet from the north side property line.' In the April 12, 2010 application that is before the Court in the present case, Applicants applied to the DRB for approval of their plans to make the following improvements, listed under the heading "Project Description' in their application: 1) Enclose existing front porch, one story, to no less than 5' of north property line; 2) Add covered front porch, 6' x 10'; 3) Enclose existing rear deck, two stories, [and] extend existing gable roof [over it] to not less than 5' of north property line; 4) Add screened -in rear deck, 8' x 125; 5) Add shed dormer on front (west) and rear (east) on south side of building. The project description in their application also stated that the proposal would result in no added lot coverage, no change in height or ridgeline, and "no change in footprint except addition of front and rear porches described above." Applicants had applied earlier in 2010 to enclose the entire existing front covered porch, including that portion of it within the five foot north side setback, and 'to enclose the entire existing rear deck to two stories and extend the roof over it, including that portion of it within the five foot north side setback, as well as to make the other three improvements listed at numbers 2, 4, and 5, above. After being told by the Administrative Officer that their proposed new construction must comply with the 5- foot side setback requirement, Applicants withdrew the earlier application. Applicants did not appeal to the DRB the Administrative Officer's ruling ' The distances from the property line are taken from the sketch plan that is part of Applicants' application; however, Applicants state that "[t]he actual fact is subject to further survey, which may prove that the structure is not within the current setback area." Applicants' Mot. for Partial Summ. J. at 3, n. 3. 2 regarding the need for their new construction to comply with the 5-foot side setback requirement, nor did Applicants seek DRB approval of their initial application. Applicants' Motion for Summary Tudgment on Question 1 Question 1 of the Statement of Questions asks [w]hether the Regulations allow the enclosures of the existing footprints of the front porch and of the rear deck without retracting to five feet or more from the property line where § 3.11D(1) expressly excepts properties in [the] Queen City Park District from the requirement that changes comply with setback requirements and § 4.08G expressly provides that Queen City Park properties are not subject to the requirements of § 3.11. In the context of Applicants' present application, which does not seek to extend the new construction closer than five feet to the property line, the City is correct that this is an entirely advisory question. In re Keystone Development Corp., 2009 VT 13, 17, 186 Vt. 523 (citing Chase v. State, 2008 VT 107, y[ 13, 184 Vt. 430) (court lacks authority to render an advisory opinion). The Court sits in place of the DRB to decide only the application before it, not to advise on other issues that have not been appealed to the Court. Question 1 would have been within the scope of an appeal if Applicants had appealed to the DRB from the Administrative Officer's earlier ruling regarding the need for compliance of new construction with the 5-foot side setback requirement. Question 1 would have been within the scope of an appeal from a DRB ruling approving or denying Applicants' -initial application. Applicants took neither of those appeals; therefore Question 1 is not within the scope of the present appeal. Accordingly, Summary Judgment must be DENIED to Applicants and GRANTED to the City on Question 1 of the Statement of Questions, which is hereby DISMISSED. 3 Applicants' Motion for Summary Tudgment on Question 2 Question 2 of the Statement of Questions asks [w]hether § 4.08G(2) is inapplicable to the proposed enclosures of the front porch and the rear deck and to the proposed shed dormers where these improvements do not increase the maximum height of the structure, do not increase its footprint, and do not increase the exterior square footage of the home. Question 2 does not contest that the additions of the new front porch and new rear deck described as items 2 and 4 in the application require review under § 4.08(G). In the Queen City Park zoning district, § 4.08(G)(1) allows alterations to noncomplying buildings without prior approval by the DRB if the work is below a certain threshold cost and does not "[innvolve an increase to the structure's height or footprint, or otherwise involve an increase to the square footage of the building or structure." (Emphasis added). Section 4.08(G)(2) allows the DRB, and hence this Court, to consider approval of an alteration to a nonconforming building in the Queeri City Park zoning district that does exceed the threshold cost, not at issue in the present appeal, or that does involve "an increase to the structure's height, footprint or square footage."' To be approved, applications subject to § 4.08(G)(2) must meet the Conditional Use Review standards in Article 14, and also must meet the additional standards in § 4.08(G)(3): that the "proposed alteration or expansion" will not adversely affect the views or access to sunlight of adjoining and/or nearby properties, and will not adversely affect adequate 2 The Ahladas application, attached as Exhibit 2 to Applicants' January 3, 2011 Reply Memorandum, appears to be an example of a proposal that did require § 4.08(G)(2) review because the square footage of the building was increased by the enclosure of a deck. If anything, that application supports the City's position regarding whether § 4.08(G)(2) is applicable. Of course, on the merits of Applicants' proposal under the conditional use standards and the standards of § 4.08(G)(3), if the Ahladas application is admitted into evidence, Applicants will have the opportunity to use the fact that it was approved in support of any argument that their own application should be approved. 4 on -site parking. As Appellants did apply under § 4.08(G)(2) for DRB'approval of the proposed alterations in the present case, and did not argue to the DRB that it does not apply, the City argues that they have waived any claim that their proposal does not increase the square footage of the nonconforming building. However, as five different alterations were proposed in the present application, Appellants are free to raise in this de novo , appeal the issue of whether only some but not all of the proposed alterations should have been reviewed under the § 4.08(G)(2) standards. Appellants are correct that the three factors listed as the trigger for § 4.08(G)(2) refer to increases in the lateral and/or the vertical dimensions of the nonconforming building, rather than to whether existing interior space is converted in use from unimproved space to living space. However, ordinances are interpreted to avoid surplusage, and to carry out the intent of the drafters. See In re Miller, 2009 VT 36, 114, 185 Vt. 550 (court "must not allow a significant part of a statute to be rendered surplusage or irrelevant"); State v. LaBounjy 2005 VT 124, y[ 4, 179 Vt. 199 ("goal in interpreting statutes is to give effect to the Legislature's intent"). If square footage meant the same as footprint, the use of the term "square footage" in that provision would be surplusage. Moreover, if square footage meant the same as footprint, the word "otherwise" in § 4.08(G)(1) ("otherwise involve an increase to the square footage of the building") would be surplusage. Instead, the Court must determine the distinct meaning of "square footage," as used in '§ 4.08(G), and in the similar language governing nonconformities in other zoning districts in § 3.11(D)(3), from its context and the structure of the ordinance as a whole. The term "building footprint" is defined in the City's Land Development Regulations3 as 3 City of South Burlington Land Development Regulations, § 2.02, available at: 5 1 [t]he area of land physically occupied by a building on the ground, including any deck, porch or other appurtenant structure attached to the building, and any area of land over which any portion of a building or appurtenant structure overhangs. It does not include walkways, driveways, or uncovered patios. The term "square footage" is not defined in the definitions section of the Land Development Regulations, but it is used in the definition of "floor area ratio" in the context of the definition of "floor area," which in turn refers to the sum of the areas of all floors of the building, including enclosed porches, balconies and raised platforms (decks) but not including unenclosed decks, porches or balconies. Thus, the enclosure of an unenclosed deck would increase the square footage of a building even though it would not increase the building's footprint. Similarly, the extension of a room on an upper floor of a house over the roof of an enclosed porch would increase the square footage, even though it would not increase the building's footprint and even though the room extension remained within the building's existing height. Because the proposed enclosure -of the front porch, and the proposed enclosure of and addition to the rear deck, each increases the square footage of the building, they require review under § 408(G)(2).4 that: Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED 1) Summary Judgment is DENIED to Appellant -Applicants and GRANTED to the City, in that Question 1 of the Statement of Questions calls for an http://www.sburl.com/vertical/Sites/%7BD1 A 8A 14E-F9A2-40BE-A701- 417111F9426B%7D/uploads/%7BE089E1C9-D 181-475E-988E-8D5A95DBE992%7D.PDF. 4 In its memoranda the City did not argue that the proposed dormers, in and of themselves, would have required review under § 408(G)(2). Please be prepared to discuss in the scheduled conference whether this remaining element of Question 2 is agreed or remains to be addressed by the Court. 6 10 impermissible advisory opinion with respect to the application before the Court, so that Question 1 is therefore DISMISSED; and 2) Summary Judgment is DENIED to Appellant -Applicants and GRANTED to the City that Conditional Use Approval is required for the proposed enclosure of the front porch and of the rear deck under § 4.08(G)(2), resolving Question 2 of the Statement of Questions as to all but the proposed dormers. A telephone conference has been scheduled (see enclosed notice) to discuss mediation and further scheduling in this case. Done at Berlin, Vermont, this 4th day of February, 2011. Merideth Wright Environmental Judge 7 STEVEN F, STITZEL PATrI R. PAGE ROBERT E. FLF,TCHER JOSEPI1 S. McLEAN AMANDA S. E. LAFFERTY JOHN H. KLESCII DAVID W. RUGH' -(ALSO ADMITCED IN MD) STITZEL, PAGE & F'LETCHER, P.C. A'I-rORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT05402-1507 (802) 660.2555 (VOICE/rDD) FAX (802) 660-2552 or 660-9119 W W W.FIItMSPF.COM E-MAI L(F I RM2555LFIR MSPE COM) WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 February 1, 2011 Jacalyn Fletcher, Court Manager Vermont Superior Court Environmental Division 2418 Airport Road, Ste. 1 Barre, VT 05641-8701 Re: Berger and Katz Expansion Application Docket No. 119-7-10 Vtec Dear Jacalyn: Enclosed please find for filing in the above -captioned matter the City of South Burlington's Surreply. Sincerely, Amanda S. E. Lafferty Enclosures CC: (via email): Ray Belair, Administrative Officer Mr. Bruce H. Alvarez Mr. Sheldon M. Katz Ms. Claudia A. Berger sonll-008 2-1-11 berger.cor OF COUNSEL DINA L. ATWOOD STITZEL, PAGE & t'LETCHM PC ATTORNE'Y8 A'[' LAW l i l il.\'f'TK)tY ti l t1Pati C FIX 11(1X ]:III: !tl'M rV TON, L'I,kliON1 (N. t-Y! 150 7 STATE OF VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION BERGER & KATZ APPLICATION DOCKET NO. 119-7-10 VTEC CITY OF SOUTH BURLINGTON'S SURREPLY NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and hereby responds to two arguments appellants made for the first time in their reply to the City's opposition to their motion for summary judgment. Memorandum I. The Court lacks jurisdiction to consider appellants' question 1. Appellants cannot submit to the Environmental Division an application that they failed to submit to the City Development Review Board. Appellants, admitting this failure, now apparently claim that they can submit to the Environmental Division any application that they could have, but did not actually, submit to the Development Review Board. In so arguing, Appellants ignore that the futility doctrine does not apply in zoning appeals. The term "exhaustion" is used to describe both the judge - made common-law doctrine and a statutory direction that judicial review is available only if specified administrative procedures are employed. Where the Legislature specifically mandates, exhaustion is required . . The futility doctrine has been adopted as part of that discretion to dispense with unnecessary exhaustion of administrative remedies. It has no place, however, in the face of a clear legislative mandate that exhaustion is required. 1 4TITZP[,. PAGN7 . l'C.ETC111rPIR, 1!c ATTONNENS N1 LAW I71 FIAT', P.RN STFI .K'I 3'+t ISt)X I"V? Stone v. Errecart, 165 Vt. 1, 4, 675 A.2d 1322, 1325 (1996) (citations omitted). In zoning matters, 24 V.S.A. section 4472 deprives the Environmental Division of jurisdiction except in accordance with that statutory procedure. See id. at 4-5(citing Levy v. St. Albans, 152 Vt. 139, 141-142, 564 A.2d 1361, 1363 (1989)). The Vermont Supreme Court has "strictly enforced the exclusivity -of -remedy provision consistent with the evident legislative intent to require all zoning contests to go through the administrative review process in a timely fashion." See City of South Burlington v. Department of Corrections, 171 Vt. 587, 588, 762 A.2d 1229, 1230 (2000)(emphasis added). Moreover, the Development Review Board decision from which appellants appealed was "based on testimony provided at the above -mentioned public hearing and the plans and supporting materials contained in the document file for this application". The description of the project, as contained in the permit application or attachments, is a permit condition which appellants were required, and failed, to appeal. See In re Jackson, 175 Vt. 304, 315, 830 A.2d 685, 694-695, 2003 VT 45, paragraph 29 (2003). The Court's jurisdiction is limited to the application submitted to and reviewed by the Development Review Board. Assuming arguendo that the Court actually considers appellants' arguments that submitting the application to the Development Review Board that they now seek to submit to the N ;nvironmental Division would have been futile, appellants fail to iemonstrate that such review was unnecessary. See Stone v. ;rrecart, 165 Vt. 1, 4, 675 A.2d 1322, 1325 (1996) (citations Imitted). Futility does not excuse necessary review of an .pplication by the Development Review Board simply because it is ,ossible that appellants might not have liked the Board's ecision. See Town of Bridgewater v. Department of Taxes, 173 t. 509, 511-512, 787 A.2d 1234, 1237-1238 (2001). Appellants laims about statements by the City staff and counsel are also ntruel. See the Affidavit of Raymond J. Belair. II. The Land Development Regulations require that the Development Review Board approve any alteration which involves an increase to the structure's square footage subject to the provisions of Article 14, Conditional Use review. As an initial matter, appellants fail to demonstrate that he court has jurisdiction to consider this argument. Appellants ubmitted to the City an application asking the Development eview Board to review their application under the conditional use criteria in Article 14 of the Land Development Regulations. hey did not make this application under protest and they failed o argue before the Board that the review was not necessary. See he Affidavit of Raymond Belair. As a result, they have waived ny claim that their proposal that is the subject of the motion s'cl 'zii,i,,RAGE;t& 1 while it would be remarkably convenient for appellants if FLETC11E,R,PC ity staff and counsel actually used the word "futile", such is XI"I'Q1tiYlsY:i ATTAIN of the case. See the affidavit of Raymond J. Belair. po, 11OX pv)7 STI'IZEI, PA(A,: K F1,r"I'ClIE13,1!(;. i I I I'YARY;i'I R K K I' 1Y )X 1607 I51'RLIXtI I'�):: VF:RN!)N'1 urns z Ina f for partial summary judgment does not increase the square footage of the nonconforming single family dwelling. Appellants make, for the first time', the novel claim that their application for conditional use review of their proposals to enclose the existing front porch to no less than five feet of the property line and to enclose the existing rear deck and add a second story above it and extend the existing gable roof to not less than five feet of the property line do not increase the square footage of the building or structure. See Section 4.08(G)(2) of the Land Development Regulations. Relying on ejusdem generic and their reading of Section 4.08(G) that the terms `building height" and "footprint" relate to a building exterior, appellants jump to the wild conclusion that the term "square footage" actually means "exterior square footage". Setting aside appellants, utter failure to explain what "exterior square footage" is, appellants apparently misunderstand the rule of ejusdem generis. This rule of statutory construction means where general words follow enumerations of particular items, the general words shall be construed in a manner consistent with the general nature of the enumerated items. See In re Chatelain, 164 Vt. 597, 597, 664 A.2d 269, 270(1995)(FN)(where the subject zoning ordinance defined "community facility" as "[any] meeting 2 Again, appellants failed to argue before the DRB that their application for conditional use review was "under protest" or unnecessary. 4 sl•n'zp1,, Ymw, & I I.I•;'PJISH, 11C, 7 7I 3)A9 TEHY Kf tV,:1 T r(l, 11 X L507 I,>.W 211101 hall, place of assembly, museum, art gallery, library, school, church, or other similar type of establishment . . the court ruled that a proposed building to house an emergency medical response service was not a "community facility"). In Section 4.08(G) of the Land Development Regulations, the terms "height", "footprint" and "square footage" are neither general words that follow enumerations of particular items, nor are they enumerations of particular times followed by general words. Those terms are part of a list of building or structure characteristics, which, if increased, require conditional use review. The rule of ejusdem generis simply does not apply in interpreting Section 4.08(G) of the Land Development Regulations. The proposed enclosures of the existing front porch and existing back deck and the proposed addition of a second story above the newly -enclosed back deck will increase the total square footage of the appellants' nonconforming single family dwelling. Section 4.08(G)(2) requires that this proposal be reviewed under Article 14, Conditional Use review. Appellants apparently agreed with this analysis, and submitted an application for conditional use review. 5 10 Conclusion For all the reasons set forth above and in the City of South Burlington's Opposition to Appellants' Motion for Summary (judgment, the Court should deny appellants' motion for summary judgment. DATED at Burlington, Vermont this 1't day of February 2011. sonli-004 katzberger surreply.lit STITZ]:r., IInr;r: FLE`I CH{:ill'. W, ATTORNEYS XP TAW 171 BATTERY TrRFFf pn TIOX V,07 11TMN'(.T,)K VERt[,)NII, (�rlw l 1-107 STITZEL, PAGE & FLETCHER, P.C. Attorneys for the CITY OF SOUTH BURLINGTON Amanda S. E. Lafferty 171 Battery Street, P.O'. Box 1507 Burlington, VT 05402 R Exhibit 1 VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION Berber & Katz Application Dkt. No. 1 19-7-10 Vtec AFFIDAVIT OF SHELDON KATZ 1. Before or during the Development Review application process, DRB staff member Ray Belair and DRB counsel advised me the DRB had "no jurisdiction" to approve the original application in which the setback was less than five feet and that proceeding with it was futile. Since the neighbors who now oppose had expressly told us that they would not oppose our application, we decided to avoid the cost and delay of a futile application and amend to pull back the improvement to five feet 2 Before or during the Development Review application process, DRB staff member Ray Belair told me that the DRB had never denied a permit in Queen City Park. Further Affiant saith not. Date- Sheldon M. Kat Sworn to on this 3d day of January 2011. d 'o ary Public as "[t]he gross area of all floors." § 2.02 at 2-15. Since LRR uses square footage without the boor area modifier, it must intend exterior square footage, just as height and footprint are concepts that pertain to a building's exterior. Again, if there be any doubt, the benefit of it must be decided in favor of Applicants. Finally, neighbor opponent asks for the first time -- it did not raise this issue in the DRB proceeding -- whether the proposed improvements are less than 3 5 percent of assessed value, as required by § 4,08G(1)(a) for permissible improvements to non -complying buildings. Applicants' home is assessed at 5323,000. The value of the improvements, as Applicants represented to the DRB and to this Court in its moving papers, is $100,000 for building improvements and $5,000 for landscaping. See Exhibit to City's Opposition. The improvements total far less than 35 percent of assessed value. The neighbor opponent does not challenge this conclusion by affidavit and therefore does not raise a genuine issue of fact regarding this issue. Accordingly, the Court must conclude that proposed improvements satisfy this requirement. Conclusion For the foregoing reasons, along with the reasons stated in the motion, the Applicants respectfully request the Court to grant their motion and schedule the remaining issues for trial. Dated this 3d day of January 2011 at South Burlington, Vermont. Claudia Berger and Sheldon Katz 6 extends the existing roof without increasing its height. Hence, these changes do not affect the building's height. These proposed changes also do not change the building's "footprint," which according to the LDR, includes the area of existing front porch and deck. § 2.02 (defining building footprint as "the area of land physically occupied by a building on the ground, including any deck, porch, or other appurtenant structure attached to the building") Finally, contrary to the opposing neighbor's assertion, these proposed changes do not alter the building's "square footage," as that term is used in the LDR, Square footage is one of a series of terms: changes to non -complying structures are permissible without a conditional use permit provided the changes do not increase the structure's height, footprint, or square footage. When construing a statute such as LDR § 4.08.G. with a series of terms, the Court must apply the rule of Jusdem genesis, meaning to include only those things similar in character to those specifically defined. 1"errs oniBapist COnvention il. Burlington ZonirngBc., 159 Vt. 28, 30, 613 A.2d 710, 711 (1992). Both building height and footprint relate to the building exterior. Applying ejusdem generis, square footage must also be construed to relate to the building exterior Since the changes at issue on the instant motion do not affect the building's exterior square footage (nor height or footprint), these changes are not subject to conditional use permission. Moreover, where the LDR intends interior square footage, it modifies the term square feet to specify floor area and not exterior area. See e.g. LDR § 4.06C(7) (allowing in District R7 retail food establishments not exceeding `°5,000 square feet in gross floor area"). If city council intended improvements to include interior square footage, as the neighbor opponents contend, it easily could have used in § 4.08G the term "floor area," which is specifically defined Section 4.08G's mandatory terms "Non -complying structures shall be subject to the following requirements and restrictions:" -- belie the opposition's contention that improvements non -complying buildings in Queen City Park are subject to additional requirements. if the council had intended other requirements, it could easily have added "in addition to those of Section 3." Having not done so, the council clearly intended § 4.08 to establish the exclusive requirements for improvements to Queen City Park non -complying buildings. In a case of very recent vintage, Maher ofAhladasApplication, MS-08-04, the 'DRB permitted the owner of a non -complying Queen City Park to enclose a deck that was roughly two feet from the boundary. I Exhibit 2. Ahladas, establishes that the LDR does not require improvements (that do not break new ground) to non -complying Queen City Park homes to meet current setback rules. Accordingly; Applicants do not need to pull back further from the property line so as to meet current setback requirements. Their request to enclose their front porch and rear deck with no change to their outlines is permissible. C. The Proposed Changes Meet § 4.08C's Rules for Improvements to Non -Complying Structures that Do Not Require Conditional Use Permission The City and the neighbor opponent confuse all of the components of the application with the specific components of the application before the Court on the instant motion. On its face, the instant motion seeks summary relief only as to (i) enclosure of the existing front porch and (ii) enclosure of the existing walled rear deck into two stories The enclosure of the existing front porch makes use of the existing roof line, and the enclosure of the existing rear deck merely ' The.4h1adac applicants subsequently amended their request to increase the dimensions of their project and add a second stor} The DRB again approved; resulting in a two stop- addition ,vithin roughly two feet of the proper(y line. V A.2d 1157. The City -- arguing that LDR § 3.1 1D, the less specific rule which on its face yields in application to Queen City Park properties ("Except as otherwise provided in ... in Article 4, Section 4,08, Queen City Part: District"), somehow trumps § 4.08, the rule that specifically applies to Queen City Park and that on its face controls (`'Structures in the Queen City Park District are not subject to ct//, provisions of Article 3, Section 3.11 ") -- turns this hard and fast rule of construction on its head The City may take the venerable rule of construction lightly, but the Court cannot be so cavalier And should there be any doubt about the construction of the LDR, the benefit of that doubt must be decided in Applicants' favor. Further, it is nonsensical to believe that the city council created a separate zoning district for Queen City Park and drafted specific rules for it only to then apply the same rules that apply everywhere else in the City. The council recognized Queen City Park's distinct character nature, with its "historic development pattern of smaller lots and reduced setbacks " § 4.08A It therefore created a separate district for the area and drafted special rules for it "to encourage residential use at densities and setbacks that are compatible with" that existing character. Icl. In approving several applications, the DRB has cited the fact that the area "is very dense and homes are very close together." Prot,encher App/ication, MS-06-04; AhIcidas Application, MS-08-07 (same); Goodmein Application, MS-09-05 (same). Indeed, DRB staff member Ray Belair told Applicants that the DRB has never denied a permit in Queen City Park Exhibit 1, Katz Affidavit 112. It is antithetical to the LDR's recognition of the area's distinct nature to subject the present application to general rules and at the same time refrain from applying the specific Hiles the council established for the area. The Court ought not interpret the LDR to such a way as is nonsensical or would thwart its legislative purpose. S'ee e.g (. jar v. McDermolt's, Inc., 20 t0 VT 19, 996 A.2d 709 (Vt. 2010), In the application process DRB staff and counsel gave Applicants successively conflicting advice until they became resolute that the DRB had "no jurisdiction" to approve the original application in which the setback was less than five feet. Exhibit 1, Katz Affidavit ¶ 1. Indeed, the DRB staff and counsel advised that proceeding with the application would be futile, id., and their opposition to the instant motion confirms that it would have been futile. Instead of engaging in a futile act, the Applicants amended their request so that the DRB's consideration would not be delayed. Id. Simenchnger, which unsurprisingly observed that the Court's authority is only as broad as the municipal commission's authority, is inapt because the Applicants are not asking the Court to exceed the DRB's authority. Rather, Applicants request only that the Court construe the LDR, hardly a task that is beyond the Court's jurisdiction. Further, the City's selective quotation from Maple Tree Place is misleading. Maple Tree Place did not rule out appellate review of questions not specifically addressed by the agency but rather ruled that the circumstances of the case warranted a remand. It explained that reviewing courts "necessarily" have discretion in determining exhaustion administrative remedies. 156 Vt. at 501 citing 4 K. Davis, A#)mrNis-i'RA'nvl. LAw Txrn'r'IsE. § 26:15 at 478 (2d ed. 1983). The Court should not require Applicants to have engaged in an act that, according the City's own counsel, was futile. The issue of whether under the circumstances a five foot setback is not required is properly before the Court. The Court has the authority to and should address that issue. B. The LDR Does Not Require Compliance with Current Setback Rules It is a longstanding rule of statutory construction that specific statutory provisions trump more general ones. ,See e.g. li)ivn of'Brattlebor�o ►� Garfela; 2006 VT 56, 1110, 180 Vt. 90, 904 2 VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION Berger & Katz Application Dkt. No. 119-7-10 Vtec APPLICANTS' REPLY MEMORANDUM SUPPORTING MOTION FOR PARTIAL SUMMARY JUDGMENT Applicants moved for partial summary judgment. The City and a neighbor oppose. If their opposition demonstrates anything, it is that the LDR are in many respects labyrinthine and Subject to various interpretations. As the Court knows well, because they conflict with common law rights, the LDR "must be" construed strictly, with "any ambiguity or uncertainty" decided in Applicants' favor. In re Champlain College, 2009 VT 55, Kremer v. Lcmyers Title Ins. (701p., 177 Vt. 553 (2004) ("[i]t is a firmly established rule, that any uncertainty in land use regulations must be construed ... against the alleged land use violation."). The doubt raised by the LDR must be resolved to the Applicants' benefit. For this reason alone, the Court has no alternative but to grant Applicants' motion. A. Whether Compliance with Current Setbacks Is Not Required Is Properly before the Court The City's contention that the Court lacks jurisdiction to consider whether the LDR requires compliance with current setback requirements has no merit. Where raising an issue with the lower tribunal would be futile, the issue is not deemed waived for purposes of appeal See e.g. SIcde v. Locktirood, 160 Vt. 547, 577, 632 A.2d 655, 672 (Vt. 1993), Allen i� UlliUersit}% of 6 ernrvnt, 2009 VT 33, 973 A.2d 1183 (Vt. 2009) (exhaustion of administrative remedies is not required where exhaustion would be futile), C. dvsani v. Hale, 2010 VT 8 (law does not require a party to engage in "futile exercise"). 1 Claudia A. Berger and Sheldon M. Katz 54 Central Avenue South Burlington, VT 05403 802-658-3723 January 3, 2010 Jacalyn Fletcher, Clerk Vermont Superior Court, Environmental Division 2418 Airport Road Barre, VT 05641 Re. Berger & Katz Application, Dkt. No. 119-7-10 Vtec Dear Ms. Fletcher: Enclosed for filing please find the Applicants' Reply Memorandum Supporting Motion for Partial Summary Judgment. Thank you for your consideration. Very_,-R- y yours;F` Claudia Berger and e on M Katz Enclosures c: Parties #MS-08-04 CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING AM) ZONING YIOTA AHLADAS — 3 PAVILION AVENUE MISCELLANEOUS APPLICATION #MS-08-04 FINDINGS OF FACT AND DECISION Yiota Ahladas, hereafter referred to as the applicant, is seeking to expand a non- complying single family dwelling by enclosing an existing 12' x 14' deck, 3 Pavilion Avenue. The Development Review Board held a public hearing on Tuesday, June 17, 2008. The applicant was present at the hearing. Based on testimony provided at the above mentioned public hearing and the plans and supporting materials contained in the document file for this application, the Development Review Board finds, concludes, and decides the following: FINDINGS OF FACT 1. The applicant is seeking to expand a non -complying single family dwelling by enclosing an existing 12' x 14'xieck, 3 Pavilion Avenue. 2. The owner of record of the subject property is Yiota Ahladas, 3. The subject property is located in the Queen City Park (QCP) Zoning District. 4. The plans submitted consist of two (2) hand drawn plans depicting existing and proposed condition on the property, dated May 2008. Zoning District & Dimensional Requirements: MCP Zorliti _D,isfric� :, -e 'r�[ired,: ro osad' Min. Lot Size 7500 S.F. 2195 S.F *** Max, Building Coverage 40% 39.3% ***Max. Overall Coverage 60% 45.2% * Min. Front Setback loft 8 ft * Min. Side Setback 5 ft. Aprox 2 ft. . * Min. Rear Setback 10 ft. Approx 17 ft. 4 Max. Building Height 25 ft. 23 ft. 6 Pre-existing non-compliance -1- #MS-08-04 ****Many of the homes in the Queen City Park neighborhood are eligible for relief from setbacks and coverages under Section 3.06 of the South Burlington Land Development Regulations for pre-existing non -compliant lots which existed prior to February 28, 1974. Lots smaller than 5000 square feet in size may exceed the maximum allowed for the district up to a maximum of forty percent (40%) for buildings and sixty percent (60%) for overall coverage. This applicant has been reviewed under Section 4.08 of the South Burlington Land Development Regulations. A. Purpose: A Queen City Park District is herby formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. The proposed addition is in compliance with the purpose of the QCP Zoning District. B. Comprehensive Plan The proposed addition is harmonious with the City's Comprehensive plan. C. Permitted Use The proposed residential addition is a permitted use in the QCP district. D. Conditional Uses The proposed project does not require conditional use review. E. Area, Density, and Dimensional Requirements ****Many of the homes in the Queen City Park neighborhood are eligible for relief from setbacks and coverages under Section 3,06 of the South Burlington Land Development Regulations for pre-existing non -compliant lots which existed prior to February 28, 1974. Lots smaller than 5000 square feet in size may exceed the maximum allowed for the district up to a maximum of forty percent (40%) for buildings and sixty percent (60%) for overall coverage, F. Height of Structures The maximum height for all structures shall be no more than twenty-five feet above the average pre -construction grade adjoining such structure. The existing height of the roof is 23'. This is within the standard allowable use in the district. -2- #MS-08-04 G. Non -Complying Structures Structures in the Queen City Park District are not subject to all provisions of Article 3, non -complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer; or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. The applicant has proposed a building cost of $18,000 and is thus in compliance with part 'a' of this criterion. However, the square footage of the building will be increased. Therefore, Section 4.08(G)(2) applies: (2) The Development Review Board may approve any alteration which exceeds the thirty-five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint, or square footage subject to the provisions of Article 14, Conditional Use Review. Compliance has been evaluationed with the criteria in the section of this report titled 'Conditional Use Review'. (3) In addition to the provisions set forth above, the DRB shall determine that the proposed alteration or expansion will not adversely affect: a. Views of adjoining and/or nearby properties,- b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking. These criteria are evaluated below as part of conditional use review. CONDITIONAL. USE CRITERIA Pursuant to Section 14.10(E) of the Land Development Regulations the proposed conditional use shall meet the following standards 9. The proposed use, in its location and operation, shall be consistent with the planned character of the area as defined by the City of South Burlington Comprehensive Plan. The proposed addition is not in conflict with the planned character of the area, as defined by the Comprehensive Plan. 2. The proposed use shall conform to the stated purpose of the district in which the proposed use is located. -3- #MS-08-04 According to Section 4.08(A) of the Land Development Regulations, the QCP Zoning District is formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. Again, the proposed addition is in compliance with the proposed purpose of the district. 3. The Development Review Board must find that the proposed uses will not adversely affect the following: (a) The capacity of existing or planned municipal or educational facilities. The proposed addition will not adversely affect municipal services. (b) The essential character of the neighborhood or district in which the property is located, nor ability to develop adjacent property for appropriate uses. The proposed addition will not adversely affect the character of the neighborhood. The QCP district is historically a very dense neighborhood, The proposed addition is to the rear of the property and will be largely unseen. (c) Traffic on roads and highways in the vicinity. The proposed addition will not affect traffic in the vicinity. (d) Bylaws in effect. The proposed addition adheres to the applicable regulations in all instances except for consideration of the existing structure as a pre-existing non -conforming structure. (e) Utilization of renewable energy resources. The proposed addition will not affect renewable energy resources. (0 General public health and welfare. The proposed addition will not have an adverse affect on general public welfare. Pursuant to Section 4.08(G)(3) of the Land Development Regulations, the proposed alteration or expansion will not adversely affect: (a) views of adjoining and/or nearby properties; The building expansion is one (1) story so it will not adversely affect views. (b) access to sunlight of adjoining and/or nearby properties; The building expansion is one (1) story so it will not adversely affect access to sunlight. -4- #MS-08-04 (c) adequate on -site parking; and The proposed building expansion will not have an undue adverse affect on adequate on - site parking. (d) safety of adjoining and/or nearby property. The proposed building expansion will not have an undue adverse affect on the safety of adjoining properties. /� DECISION Motion � � by (e Q6I/ 416 , seconded by46V fAx(—F , to approve Miscellaneous Applicati n f#MS-08-04 of Yiota Ahladas, subject to to th�win conditions: J g 1. All previous approvals and stipulations which are not superseded by this approval shall remain in effect. 2. This project shall be completed as shown on the plans submitted by the applicant and on file in the South Burlington Department of Planning and Zoning. 3, The applicant shall obtain a zoning permit within six (6) months pursuant to Section 17.04 of the Land Development Regulations or this approval is null and void. 4. Any change to the site plan shall require approval by the South Burlington Development Review Board or the Administrative Officer. Mark Behr —yea/nay/abstain not prese Matthew Birmingham -- yea/nay/abstain of rese ,John Dinklage a nay/abstain/not present Roger Farley — nay/abstain/not present Eric Knudsen — e nay/abstain/not present Peter Plumeau — /nay/abstain/ prese Gayle Quimby —&onay/abstain/not present Motion carried by a vote of T - D - O Signed this .___l_ day of 2008, by John Dinklage, Chai -5- STITZEL, PAGE & FUTC119R, K. ATTORNEYfl AT LAW rn liATTray s nmrr BURL1NMON, PFIRMONT tl5A9z-1507 STATE OF VERMONT SUPERIOR COURT BERGER & KATZ APPLICATION AFFIDAVIT ENVIRONMENTAL DIVISION DOCKET NO. 119-7-10 VTEC I, Raymond J. Belair, being duly sworn, do hereby certify on my personal knowledge as follows: 1. I am the duly appointed Administrative Officer for the City of South Burlington. 2. In early 2010, Sheldon Katz and Claudia Berger (hereinafter the "applicants") filed an application in connection with the single family dwelling on their property located at 54 Central Avenue in the Queen City Park District in South Burlington. They proposed, in relevant part, to enclose both the existing front porch and the existing rear deck and to add above the enclosed rear deck a second story with the same footprint. As a result of these proposals, there would have been new building within a setback. 3. I informed the applicants that any proposed new building addition must meet the 5-foot side setback required by the Land Development Regulations in Sections 3.11(D)(1) and 4.08(G). 4. The applicants informed me by electronic mail that they withdrew their application. 5. In April 2010, applicants submitted a revised application that proposed to: (1) enclose the existing front porch to no less than 5 feet of the property line, (2) add a new covered front porch, (3) enclose the existing rear deck and add a I second story above it and extend the existing gable roof to not less than five feet of the property line, (4) add screened -in 81 x 12.5' rear deck, (5) add shed dormers on front and rear on south side of building. As a result of these proposals, appellants proposed to add 160 square feet to the existing single family dwelling. No where in the application materials do the applicants argue that their proposal is not subject to Section 4. 08 (G) (2) . G. The Development Review Board opened the hearing on this application on May 4, 2010. The Board continued the hearing several times and conducted a site visit. I attended each meeting in which the Development Review Board considered this application. At no time did applicants argue that their application complied with Section 4.08(G)(1), such that review under Section 4.08(G)(2) was not necessary or allowed. At no time did applicants argue that review under section 4.08(G)(2) was improper. Dated at South BurlingtoOd i ye of November 2010. e air STATE OF VERMONT CHITTENDEN COUNTY, SS 2010. STITZEL, PAQE & FLETCIIPH PC. ATTORtvTM AT LAW 17 L HAITERY :3TR19ET W. BOX 150: RURTANGTON. VF R; ONT 0580'41507 Subscribed and sworn to before me this 2411 day of November Notary Public My commission expires 2/10/2011 2 CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 Permit # jq � -L&�_-� APPLICATION FOR THE DEVELOPMENT REVIEW BOARD All information requested on this application must be completed in full. Failure to provide the requested information either on this application form or on the site plan will result in your application being rejected and a delay in the review before the Development Review Board. I understand the presentation procedures required by State Law (Section 4468 of the Planning & Al,o that hec-;ngs are held twice a. r,ont That lc_,i cc'. :; , appear a minimum of fifteen (15) days prior to the hearing. I agree to pay a hearing fee which is to off -set the cost of the hearing. Type of application (check one): APut-al H urn decision of the Administrative Officer (includes appeals from Notice of est fcr a conditiorv�l use � j'k.',Uebt tor cA variance PROv160N OF ZONING ORDINANCE IN QUESTION (IF ANY)- v� �t :T' jN 'JF -,HE - )MINISTRA ,'-IVF_ OFFIC,r_R ARE 'r i, .:d�r✓r� �- r:�(; RI �i e as shown on deed, mailing aud-a- ;__,_ore & i-ax,+,: 2) LOCATION OF LAST RECORDED DEED (book & page #)�- 3) APPLICANT (name, mailing address, phone and fax #) M e- 4) CONTACT PERSON (person who will receive staff correspondence. Include name, mailing address, phone & fax # if different from above): 5) PROJECT STREET ADDRESS: _ Sc�.w.(e 6) TAX PARCEL ID #: 7) PROJECT DESCRIPTION use): A. Existing Uses on Property (including description and size of each separate R�e5; 6em-�j0 Qes13e�nces- lbr,, Tewa.k. = W A U. Z c B. Proposed Uses on Property (include description and size of each new use and existing uses to remain): C. Total building square footage on property (proposed buildings & existing building to remain): D. Height of building & number of floors (proposed buildings and existing buildiinn s t emain, specify if basement & me an e): (� 1Wo a,n't 26rahawe r � I�ear Zj 0.60p Mlq p�•�ke;sk+. 11-; w'C E: Number of residential Units (if applicable, new units & existing units to 4l remain): I F. Number of employees & company vehicles (existing & proposed, note office vs. non -office employees): rs IA G. Other (list any other information pertinent to this application not specifically requested above, please note if overlay districts are applicable): V, \ Ia. 8) LOT COVERAGE A. Total parcel size: �,3t7 Sq. Ft. B. Buildings: Existing % / Sq. Ft Proposed �' % / Sq. Ft. C. Overall Ei impervious coverage (building, parking, ing, outside storage, etc) Existing % / g 2^• Sq. Ft. Proposed % t�±�Sq. Ft. D. Total area to be disturbed during construction: Sq. Ft. * Projects disturbing more than one-half acre of land must follow the City's specifications for erosion control in Article 16 of the Land Development Regulations. Projects disturbing more than one acre require a permit from the Vermont Department of Environmental Conservation. 9) COST ESTIMATES A. Building (including interior renovations): $ B. Landscaping $a4 9 C. Other site improvements (please list with cost): 10) ESTIMATED TRAFFIC: A. Average daily traffic for entire property (in and out): M ct B. A. M. Peak hour for entire property (in and out): n c, C. P.M. Peak hour for entire property (in and out): 11) PEAK HOURS OF OPERATION n �� 12) PEAK DAYS OF OPERATION h 13) ESTIMATED PROJECT COMPLETION DATE 14) LIST ABUTTING PROPERTY OWNERS: (list names and address of all abutting property owners, including those across any street or right-of-way. You may use a separate sheet of paper if necessary): G 6 Cpav t re, ( Xj e I hereby certify that all the information requested as part of this application has been submitted and is accurate to the best of my knowledge. SIGNATUR APPLICANT SIGNATUTF PROPERTY OWNER v._ .. .. ..... .. _.�,.....r.... .. -.ram.. ,.�_�.,.�.� ��... .... .. ... 4 Do not write below this line F.)P,TF. OF `�"A rv,) SSI0N: V VEW A ." 4 ��;%P TY. L�velopment Review Board C Director, Planning & Zoning ;d find it to be ❑ Incomplete r of Planning & Zoning or Designee t I11�� da VA vo av�;( t-1•ra�� a 1 � �,,,00.J�'� 1�� �� �-�1 � �J��,�.� LAg U O4 -. j rS eat LA 0 C E� .� c� lAJ " ��— S �� Ca "� =Q I wlwsal QU ---A p uv sS�W'Iq:::� ` �Qjo7_15, 'i el era f %A Q fz!5�-V9av-qa�} S r"', '"�� j ) tA3.o1 r ) -0-r S(� 6=c-� - -3, 00 Ck-�C.-,15e J�or wS��wG r t Po IZC(4 Ca�hle La.je- i Z� i C F2 STI W 6' 10� NEW CGa� R fl ToRC* YgNEVUM Q Said a-c-k 1(6 twq, i 6 I O.AI d_%I ,, 1. a 1"= 10-4, % Wtl-1 %, �-e, No Text i Yt ply ` — � ...,,., �.,. ,yt�."M� •I�fCpj'CNr 1� O�uBf ,,,.; �,,';i � '(�..,, ,,.. ,^ Am _ YRw� y r►, I 4p, ' '�d ",f I � cf'�P`i h.;;.' ��-� • — � - y'�F i�yx'�`T`, ';�^. "`:!. ��.1' "',_Y� - 7 ,ki_`��-'`•+i 6.tt�,; x:l�'�',. %"J�"; �;:�,- ., . ,;Na' ar"l, ,f.i":z� '+'d+,•j°_iSG"_,, •,F'S .rym,»,.�,','4y'".>aJx.�,#:':'r .c`-:�' - STEVEN F. STITZEL PATTI R. PAGE ROBERT E.FLETCHER JOSEPH S McLEAN AMANDA S. E LAFFERTY JOHN H. KLESCH WILLIAM E. FLENDER STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICEJTDD) FAX (802) 660-2552 or 660-9119 WWW FI RMSPF.COM E-MAIL(FUtM2555 FIRMSPF.COM) WRITER'S E-MAII. (ALAFFERTY@FIRMSPF COM) WRITER'S FAX (802) 660-2552 July 28, 2010 Jacalyn Fletcher, Court Manager Vermont Superior Court Environmental Division 2418 Airport Road, Ste. 1 Barre, VT 05641-8701 Re: Berger and Katz Expansion Application Docket No. 119-7-10 Vtec Dear Jacalyn: OF COUNSEL DINA L. ATWOOD Enclosed please find my Entry of Appearance on behalf of the City of South Burlington in connection with the above -captioned matter. Sincerely, Amanda S. E. ASEL/jg Enclosure cc: Mr. Sheldon M. Katz Ms. Claudia A. Berger Ray Belair, Administrative Officer son10-042 07-28-10 ASEL to ECourt - BergerKatz.cor.wpd V(. le Lafferty STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT SUPERIOR COURT IN RE: CLAUDIA BERGER AND SHELDON KATZ EXPANSION APPLICATION ENVIRONMENTAL DIVISION DOCKET NO. 119-7-10 Vtec ENTRY OF APPEARANCE NOW COMES, AMANDA S. E. LAFFERTY, of the firm of Stitzel, Page & Fletcher, P.C., and hereby enters her appearance on behalf of the City of South Burlington, in the above -referenced matter. Dated at Burlington, in the County of Chittenden and State of Vermont, this 28th day of July, 2010. STITZEL, PAGE & FLETCHER, P.C. Attorneys for the City of South Burlington By: 1 L Amanda S. E. Lafferty 171 Battery Street P.O. Box 1507 Burlington, VT 05402-1507 (802)660-2555 son10-021 ASEL EOA - Berger & Katz.lit.wpd MINH, southburlington PLANNING & ZONING July 28, 2010 Sheldon Katz and Claudia Berger 54 Central Ave South Burlington, VT 05403 Re: Berger and Katz Expansion Application Docket No. 119-7-10 Vtec Dear Mr. Katz and Ms. Berger, Pursuant to Rule 5(b)(4)(A) of the Vermont Rules of Environmental Court Proceedings (also see 24 V.S.A. §4471(c)), the following is a list of "interested persons" for the above referenced proceeding. You are instructed by that Rule to serve a copy of your client's notice of appeal upon all people or entities listed below, by certified mail. Sheldon Katz & Claudia Berger 54 Central Ave South Burlington, VT 05403 Bruce & Janet Alvarez 52 Central Ave South Burlington, VT 05403 Sandra Dooley 44 East Terrace South Burlington, VT 05403 Michael Young 15 Dover Street South Burlington, VT 05403 When the Development Review Board (DRB) sent out its notice on the aboce reference application, the following additional people or entities were provided a copy of the DRB notice (this list does not include the persons noted above who appeared at the DRB hearing): Richard White 56 Central Ave South Burlington, VT 05403 575 Dorset Street South Burlington, VT 05403 tal 802.846.4106 fax 802.846.4101 www.sburl.com Lastly, I recommend that you consult the statutory definition for "interested persons" contained in 24 V.S.A. §4465(b). If you believe that our list is missing someone who has interested persons status in this proceeding, you should consider sending them a copy of the notice of appeal, so that you can be confident that all persons or entities who are entitled to notice have received it. If you have any questions, please feel free to contact me. Sincere aymond J. Belair Administrative Officer cc: Vermont Environmental Court Amanda S.E. Lafferty, Esq. VERMONT ENVIRONMENTAL COURT ---------------------------------------- City of South Burlington 575 Dorset Street South Burlington VT 05403 ---------------------------------------- (802) 828-1660 2418 Airport Road, Ste. 1 Barre, Vermont 05641 - 8701 July 20, 2010 Berger & Katz Expansion Application Docket No. 119-7-10 Vtec The above -referenced appeal from a municipal panel, district commission, agency of natural resources or agency of agriculture was received at the Environmental Court on 07/22/2010. Environmental Court docket number 119-7-10 Vtec has been assigned to this appeal. Please use the Environmental Court docket number and the above case name when filing any documents or asking any questions concerning this case. Please note, this case name may not be final if we are missing necessary information from the appellant. All documents should be filed with the Environmental Court at the address at the top of this letter. Also, if you have not provided the Court with a telephone number where you can be reached during working hours for the purpose of telephone conferences, please do so as soon as possible. The Vermont Rules for Environmental Court Proceedings (V.R.E.C.P.) set out the procedures to follow for this appeal. You may obtain a full copy of the Rules and Reporter's Notes at www.vermontjudiciary.org. 1. The person filing the appeal is called "the appellant." The appellant must take certain actions in order to assure that this appeal is not dismissed. Consult the Vermont Rules for Environmental Court Proceedings to see what those actions are. For requirements regarding the appellant's responsibility to notify interested parties, see V.R.E.C.P. 5(b)(4) for municipal appeals, (see also Form 900 available on the Court's web site at www.vermontjudiciary.org or by calling the Court at the above number and requesting that one be sent to you). 2. This case will be ready for hearing or other appropriate disposition when the time for filing the appellant's statement of questions has expired, or 20 days after the notice to interested parties has been sent, whichever occurs later. To complete service of appeals, the appellant must do as follows: Post-! Fax of 7671 Date 0 ag°es► To From Co./Dept. Co. Phone # Phone # Fax # Fax # follow V.R.E.C.P. 5(b)(4)(A). it panel must provide the )ersons within five working days >py of the notice of appeal. July 26, 2010 -Page 2- 119-7-10 Vtec From a District Commission, District Coordinator or the Secretary of the Agency of Natural Resources, follow V.R.E.C.P. 5(b)(4)(B): Take special notice that no -list of interested parties will be provided by the tribunal, other than the service list on the decision appealed from. The Court may extend that time if a request is made by written motion filed with the Court before the deadline has expired. If this case is set for a hearing on the merits, the hearing will take place in or near the county in which the case originated. Please note that pursuant to V.R.E.C.P. 5 (b)(4) (g), these appeals are de novo, unless the municipality has adopted procedures to make certain appeals on the record. 3. Faxing a copy of a document is not sufficient to meet deadlines for filing documents with the Court. Faxed copies may be authorized by the Court in certain circumstances, but the Court will not accept Faxed documents unless the sender has first telephoned the Court and obtained permission to do so or and unless the judge has authorized it in a scheduling order. 4. The person filing any document (including letters) with the Court must also send a copy of that document to each of the other parties. The Clerk of the Environmental Court will contact the parties to arrange for a pre -hearing conference in person or by telephone with a judge or with a case manager. Before the initial conference, the Appellant is requested to provide the Court with a copy of the decision being appealed from. The Court finds it useful in preparing to discuss the appeal with the parties at the initial conference. Sincerely, v v rTf w �� M. Fletc er, Court Manager/designee NOTE-: Enclosed are Pro Se Forms for Ms Berger and Mr. Katz. Please fill out the forms, send the original to the Court at the above address and keep a copy for yourselves as it contains information you may find helpful. CC: Municipality, City of South Burlington Appellant, Claudia Berger Appellant, Sheldon Katz 41 N ) FILED Vermont Superior Court Environmental Division JUL 2 6 2010 VERMONT -------------------------------------------------------------- %jpERIOR COURT ON----------------------------------- - ENTRYwo REGARD ING RE QUE SEFRONM�N'fAL --------------------------------------------------------------------------- --------------------------------------------------------------------------- Berger & Katz Expansion Application Docket No. 119-7-10 Vtec Municipal DRB Other Title: Request To Waive Service by Certified Mail, No. 1 Filed: July 22, 2010 Filed By: Appellants Claudia Berger and Sheldon Katz Granted X Denied X Other . s. .. ............................ .. ......... .` - . 26 -7uL„ 2 Judge Date Date to sent copies — Clerk's Initials p 2( Copies sent to: Municipality City of South Burlington Appellant Claudia Berger Appellant Sheldon Katz Claudia A. Berger and Sheldon M. Katz 54 Central Avenue South Burlington, VT 05403 802-658-3723 July 21, 2010 Jacalyn Fletcher, Clerk Vermont Superior Court, Environmental Division 2418 Airport Road Barre,VT 05641 Re: fit re. South Burlington #MSl0-04 Dear Sir or Madame: V4 Enclosed for filing please find a notice of de novo review in the above -captioned matter along with a copy of the municipal decision under de novo review and a check in the amount of $250 for the filing fee. We respectfully request a waiver of the certified mail requirement. Thank you for your consideration. Very truly yours, Claudia Berger and Sheldon M. Katz Enclosure c: South Burlington City Clerk (without enclosure) STATE OF VERMONT SUPERIOR COURT, ENVIRONMENTAL DIVISION In re. South Burlington #MS 10-04, ) 54 Central Avenue, South Burlington ) Docket No. Applicants: Claudia Berger and ) Sheldon Katz ) Date of Decision: July 6, 2010 } NOTICE OF APPEAL Applicants Claudia Berger and Sheldon Katz give notice of de Novo review of the above captioned matter. Applicants request approval of their application and such further relief as the Court deems just and equitable, including but not limited to the costs and fees incurred in this proceeding and in the proceeding under review. Dated this day of July 2010 at South Burlington, Vermont. Claudia Berger and Sheldon Katz c: South Burlington City Clerk r southburlington PLANNING & ZONING July 19, 2010 Dear Mr. Katz & Ms. Berger, The Development Review Board's Findings of Fact and Decision on Miscellaneous Application #MS-10-04 mistakenly states that the Chair of the Board signed said Decision on June 6, 2010. The Chair signed the Decision on July 6, 2010. Please call with questions. Thank you. Sinc ly -r R ymond J. Belalr Administrative Officer cc: Bruce and Janet Alvarez �P CERTIFIED MAIL: 7010 0290 0000 2215 26V 575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburi.com DEVELOPMENT REVIEW BOARD 1 JUNE 2010 The South Burlington Development Review Board held a regular meeting on Tuesday, 1 June 2010, at 7:30 p.m., in the Conference Room, City Hall, 575 Dorset St. Members Present: J. Dinklage, Chair; M. Behr, E. Knudsen, G. Quimby, R. Farley, B. Stuono Also Present: R. Belair, Administrative Officer; C. LaRose, Associate Planner; T. Hubbard, Recreation Director; M. Young, S. Katz, C. Berger, S. Dooley, L. Llewellyn, B. Nedde, B. Rabinowitz, D. Marshall, D. Twitchell, A. Shalna & family, E. Farrell, G. McCain, D. Frohlingham, P. Krueger, B. Wessel, M. Novotny, T. Barritt, Ms. Cochran 1. Other Business & Announcements: No issues were raised. 2. Minutes of 20 April and 4 May: Ms. Quimby moved to approve the Minutes 20 April and 4 May 2010 as written. Mr. Farley seconded. Motion passed unanimously. 3. ontinued Miscellaneous Application #MS-10-04 of Claudia Berger and Sheldon Kat pproval to expand a non -complying single family dwelling by: 1) enclosing existing front porch, 2) constructing 6'x10' covered front porch, 3) converting rear deck to 2-story addition, 4) adding 81x12.5' screened in rear deck, and 5) adding two shed dormers, 54 Central Avenue: Mr. Dinklage noted that Board members had received communications from the applicant and neighbors, one in their mailboxes and 2 delivered at this meeting. He asked members if they had engaged in any ex parte communication. Members all said they had not. Mr. Dinklage also noted that the Board had made a site visit to the property in questions. Ms. Quimby asked the applicant if the porch roof will stay at the slant. Mr. Katz said it will be approximately the same pitch. Mr. Knudsen asked if the roof line would continue as it does now. Mr. Katz said he wasn't sure because they were told they would have to meet the setback. It will be 2 stories, either the same height at the ridge or maybe slightly lower. Mr. Katz said that the precedent is that there would have to be "significant impact" in order to stop the development. He noted another house in the area where the improvements come to within 1+ foot of the property line. He showed members photos of another 2-story improvement which the Board allowed with an addition fewer than 2 feet from the property line. Mr. Alvarez, neighbor to the property in question, said he does not want to lose light and what little views they now have. He added that the latest drawing demonstrates there is significant impact to his home. DEVELOPMENT REVIL4 BOARD 1 JUNE 2010 PAGE 2 Mr. Knudsen noted that the Board is tasked with applying the "adverse affect" standard, and the Ordinance does not use "significance" as a standard. Mr. Katz said most home improvements have some impact, and the Board can't say no to all of them. He asked the Board to apply a common sense approach. Ms. Quimby then moved to close the public hearing. Mr. Farley seconded. Motion passed unanimously. Mr. Dinklage said the Board has several options: to have an open deliberation, to ask for a draft decision for the Board to review, and to have a closed deliberative session. Members opted for a closed deliberative session and asked that the City Attorney provide an option. They agreed to meet in deliberative session on 15 June, 7 p.m., prior to the next Board meeting. 4. Continued Site Plan Review Application #SP-10-29 of Allen Road Land Company to amend a plan for a 31-unit and 32-unit multi -family dwelling. The amendment consists of after -the -fact approval to revise the grading plan to add a berm along Allen Road, 150 and 152 Allen Road: Mr. Llewellyn explained that materials had been stockpiled, and Mr. Larkin decided to use them to make the area look the same as the other side. Mr. Behr asked if there was an issue with the fence being in the right-of-way or with the landscaping on the building side of the fence. He noted that landscaping is shown on the plan to be on both sides of the fence. Mr. Llewellyn said the fence will be moved to correspond with the plan. Mr. Belair noted that the CO is being held up because of the grading and fence. Mr. Llewellyn said Justin Rabidoux had no issues with either. Mr. Dinklage said there is merit with having flat unpaved areas on either side of the rec path for people to cross-country ski and to run off the pavement. Ms. Quimby asked how the owner could have moved people into the buildings without a CO. Mr. Dinklage said that is an enforcement issue. Mr. Belair said all he can do is write a letter. Mr. Dinklage added this is a matter for the City Council, City Manager, and City Attorney to deal with. Mr. Dinklage asked the applicant to affirm that they will move the fence and place it correctly. Mr. Llewellyn so affirmed. Ms. Quimby moved to approve Site Plan Application #SP-10-29 of Allen Road Land Company subject to the stipulations in the draft motion. Mr. Farley seconded. Motion passed unanimously. 40 PLANNING & ZONING July 14, 2010 Sheldon Katz Claudia Berger 54 Central Avenue South Burlington, VT 05403 Re: June 1, 2010 DRB Minutes Dear Mr. Katz & Ms. Berger: For your records, enclosed is a copy of the approved June 1, 2009 Development Review Board meeting minutes. If you have any questions, feel free to contact me. Sincerely, bas, b" Betsy Brown Planning & Zoning Assistant Encl. 575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburl.com 1 July 7, 2010 MI�� II, * E � 1 PLANNING & ZONING Ms. Claudia Berger and Mr. Sheldon Katz 54 Central Avenue South Burlington VT 05403 Re: 54 Central Avenue Dear Mr. Katz, Enclosed please find the decision issued by the Development Review Board on July 6, 2010. If you have any questions, please contact me. Xvm ly, ond Belair Administrative Officer Encl. CERTIFIED MAIL RECEIPT #7010 0290 0000 2215 2623 575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburl.com l DEVELOPMENT REVIEW BOARD 1 JUNE 2010 The South Burlington Development Review Board held a regular meeting on Tuesday, 1 June 2010, at 7:30 p.m., in the Conference Room, City Hall, 575 Dorset St. Members Present: J. Dinklage, Chair; M. Behr, E. Knudsen, G. Quimby, R. Farley, B. Stuono Also Present: R. Belair, Administrative Officer; C. LaRose, Associate Planner; T. Hubbard, Recreation Director; M. Young, S. Katz, C. Berger, S. Dooley, L. Llewellyn, B. Nedde, B. Rabinowitz, D. Marshall, D. Twitchell, A. Shalna & family, E. Farrell, G. McCain, D. Frohlingham, P. Krueger, B. Wessel, M. Novotny, T. Barritt, Ms. Cochran 1. Other Business & Announcements: No issues were raised. 2. Minutes of 20 April and 4 May: Ms. Quimby moved to approve the Minutes 20 April and 4 May 2010 as written. Mr. Farley seconded. Motion passed unanimously. 3. Continued Miscellaneous Application #MS-10-04 of Claudia Berger and Sheldon Katz for approval to expand a non -complying single family dwelling by: 1) enclosing existing front porch, 2) constructing 6'x10' covered front porch, 3) converting rear deck to 2-story addition, 4) adding 8'x12.5' screened in rear deck, and 5) adding two shed dormers, 54 Central Avenue: Mr. Dinklage noted that Board members had received communications from the applicant and neighbors, one in their mailboxes and 2 delivered at this meeting. He asked members if they had engaged in any ex parte communication. Members all said they had not. Mr. Dinklage also noted that the Board had made a site visit to the property in questions. Ms. Quimby asked the applicant if the porch roof will stay at the slant. Mr. Katz said it will be approximately the same pitch. Mr. Knudsen asked if the roof line would continue as it does now. Mr. Katz said he wasn't sure because they were told they would have to meet the setback. It will be 2 stories, either the same height at the ridge or maybe slightly lower. Mr. Katz said that the precedent is that there would have to be "significant impact" in order to stop the development. He noted another house in the area where the improvements come to within 1+ foot of the property line. He showed members photos of another 2-story improvement which the Board allowed with an addition fewer than 2 feet from the property line. Mr. Alvarez, neighbor to the property in question, said he does not want to lose light and what little views they now have. He added that the latest drawing demonstrates there is significant impact to his home. DEVELOPMENT REVIEW BOARD 1 JUNE 2010 PAGE 2 IMr. Knudsen noted that the Board is tasked with applying the "adverse affect" standard, and the Ordinance does not use "significance" as a standard. Mr. Katz said most home improvements have some impact, and the Board can't say no to all of them. He asked the Board to apply a common sense approach. Ms. Quimby then moved to close the public hearing. Mr. Farley seconded. Motion passed unanimously. Mr. Dinklage said the Board has several options: to have an open deliberation, to ask for a draft decision for the Board to review, and to have a closed deliberative session. Members opted for a closed deliberative session and asked that the City Attorney provide an option. They agreed to meet in deliberative session on 15 June, 7 p.m., prior to the next Board meeting. 4. Continued Site Plan Review Application #SP-10-29 of Allen Road Land Company to amend a plan for a 31-unit and 32-unit multi -family dwelling. The amendment consists of after -the -fact approval to revise the grading plan to add a berm along Allen Road, 150 and 152 Allen Road: Mr. Llewellyn explained that materials had been stockpiled, and Mr. Larkin decided to use them to make the area look the same as the other side. Mr. Behr asked if there was an issue with the fence being in the right-of-way or with the landscaping on the building side of the fence. He noted that landscaping is shown on the plan to be on both sides of the fence. Mr. Llewellyn said the fence will be moved to correspond with the plan. Mr. Belair noted that the CO is being held up because of the grading and fence. Mr. Llewellyn said Justin Rabidoux had no issues with either. Mr. Dinklage said there is merit with having flat unpaved areas on either side of the rec path for people to cross-country ski and to run off the pavement. Ms. Quimby asked how the owner could have moved people into the buildings without a CO. Mr. Dinklage said that is an enforcement issue. Mr. Belair said all he can do is write a letter. Mr. Dinklage added this is a matter for the City Council, City Manager, and City Attorney to deal with. Mr. Dinklage asked the applicant to affirm that they will move the fence and place it correctly. Mr. Llewellyn so affirmed. Ms. Quimby moved to approve Site Plan Application #SP-10-29 of Allen Road Land Company subject to the stipulations in the draft motion. Mr. Farley seconded. Motion passed unanimously. DEVELOPMENT REVIEW BOARD 18 MAY 2010 The South Burlington Development Review Board held a regular meeting on Tuesday, 18 May 2010, at 7:30 p.m., in the Conference Room, City Hall, 575 Dorset St. Members Present: M. Behr, Acting Chair; G. Quimby, R. Farley, B. Stuono Also Present: R. Belair, Administrative Officer; C. LaRose, Associate Planner; M. Young, B. Alvarez, S. Katz, C. Berger, C. Preston, L. Llewellyn I. Other Business & Announcements: No issues were raised. 2. Minutes of 20 April and 4 May 2010: Ms. Quimby moved to approve the Minutes of 20 April and 4 May 2010 as written. Mr. Farley seconded. Motion passed unanimously. 3. Continued Miscellaneous Application 4MS-10-04 of Claudia Berger & Sheldon Katz for approval to expand a non -complying single family dwelling by: 1) enclosing existing front porch, 2) constructing 6'x10' covered front porch, 3) converting rear deck to 2-story addition, 4) adding 8'x12.5' screened in rear deck, and 5) adding two shed dormers, 54 Central Avenue: Mr. Belair gave members written statements from the parties involved, including neighbors. Mr. Behr said that the impact of the proposed additions/renovations becomes subjective, and he felt the Board should make a visit to the site to see it first hand. He added that the unique thing about Queen City Park is that it does take into account the impact on neighbors because the development is so dense. Other members agreed. Mr. Belair explained that the site visit would be warned and would be open to the public. No testimony would be taken at the site visit and there would be no ex-parte communication between members. Minutes would indicate that the visit was held, when it began and when it ended. Ms. Quimby then moved to adjourn the hearing on Miscellaneous Application #MS-10- 04 until 6:30 p.m. on 1 June 2010, at 54 Central Avenue. Mr. Farley seconded. Motion passed unanimously. 4. Continued Preliminary Plat Application #SD-09-51 of Pizzagalli Properties, LLC, for a planned unit development to construct a 50,000 sq. ft. office building,119 Tilley Drive: DRB review of 54 Central Avenue zoning request.. Comments from Bruce and Janet Alvarez, owners/residents of 52 Central Ave Arguments against granting applicants' request: 1) The houses are just over 8 feet apart at the rear and 9.5 feet at the front. As such, a two story addition at the back of 54 Central will substantially reduce the number of hours of direct sunlight on the SE side of 52 Central during the fall, winter and spring months. 2) The legal setback is 5 feet. The north side of 54 Central is substantially less than that, especially in the rear. 3) Construction of an addition replacing the rear deck will necessitate removal of the maple tree on the property of 52 Central. That tree helps keep the house cool in the summer and allows us to leave the windows open when it rains so we can cool the house at night. 4) While not an award winning view, the view out the SE kitchen window (picture 1) now overlooks the deck of 54 Central to trees in the ravine. Similarly, the view from the mudroom overlooks the yard and deck of 54 Central (2 & 3). Converting V the deck space to 2 stories will both block light and convert the view in pictures 1 L & 3 to something similar to picture 4. This is the current view from the dining room windows that face south. 5) The current angle view (picture 5) forward from the dining room at 52 Central looks through the front porch of 54 Central to the park. The current angle view (picture 6) from the living room window on the south wall looks through the front porch of 54 Central to the lake. Enclosing the porch and adding a new will also convert the views in pictures 5, 6 & 7 to something similar to picture 4. 6) The prior owner of 54 Central was granted permission by the city to build the rear deck. They claimed a 7-foot side setback with no survey data and the city did not require any proof of the claim. The actual setback is 33" or less depending on whether the 1994 or 2004 pin is used (see next page). 7) We do not feel that parts of non -conforming structure built with inaccurate information should be grandfathered for the purpose of extending the structure either vertically or horizontally. This is particularly true of the north side of 54 Central as it is substantially in violation of required setbacks that are already quite small in the Queen City Park neighborhood. We also have a general concern, potentially already handled by the applicants with their contractor. The grade of the property at 54 Central originally dropped off into the ravine less than 5 feet behind the foundation. The existing deck and the entire back yard is built on fill. As the prior owner had no intention of building anything other than the deck, there was no effort made to insure it was stable enough to support a 2-story structure. It may not be a problem be we feel it is important that the applicants are aware of the substrate on which they plan to build. 54 Central north side setbacks: Actual Claimed: Rear of deck: < 33" 38.4" Rear of house: 34" Front of house: 38.5" Front of porch: 40.5" 54" Pertinent points regarding the lot line: 1) There are 2 pins in the rear. The first was put in by Bill Robenstein — 1994. We had the entire lot surveyed, pins put in all 5 marks — 2 rear, 3 front before installing the front and rear fences with the express purpose of NOT building outside our lot lines. 2) The pin put in by Warren Robenstein in 2004 is 7 inches south of the 1994 pin 3) Actual measurements above were from the 1994 pin, granting the applicants the most favorable lot line. If the proper placement of the rear pin is determined to be the 2004 survey, subtract 7" from the above actual measurements. The pins in the front of 52 Central were removed during excavation for the new fire hydrant line several years ago. I contacted the city to have them replaced. They said it was the contractor's responsibility. The contractor said that they didn't know the pins were there and, in short, "too bad", they would not resurvey. However, I had made a detailed drawing with lines to 3 points of the house for each survey marker when Bill Robenstein originally installed them. Figure 1 Location of front lot survey markers 4) 1 marked (2/14/2010) the point of the SW pin to calculate the Actual setback values above. 5) The rear fence at 52 Central was intentionally set inside the lot line. 6) The front fence is also intentionally set inside the lot line, however due to a miscalculation in sizing the 3 panels, it is —1 foot north of the intended position. 7) The measurements are exclusive of roof overhangs. M Picture 1 — Kitchen Picture 3 — Mudroom Picture 2 - Mudroom Picture 4 - siding Picture l — Kitchen Picture 3 — Mudroom Picture 2 - Mudroom Picture 4 - siding y ^ I Picture 5 — Dining Angle view Picture 6 — Living room Angle view Picture 7 — From living room couch Picture 8 — Bedroom The top of the deck wall is left of center of the bottom sash. A two-story structure would block the fall, winter, spring sun several hours earlier and 75% of the view f �W _�..wrwrArv.rwry..�a.vu►...uo.xR...A,..a.r.u.. L'7.,.i.,W..:,:.,,'iM1:1Mfu Figure 2 — 52 and 54 Central showing effect of proposed changes on both view and sunlight Pagel of 2 ray From: Bruce Alvarez [bhaskate@comcast.net] Sent: Monday, May 17, 2010 10:49 PM on To: ray; Cathyann LaRose p fill c Cc: Claudia Berger Subject: Re: 54 Central Avenue application I'm sorry this matter has sunk to the level of claim / counter claim letter writing. To some extent it is due to the fact that the meeting is Tuesday night. 1. We never claimed the "vast majority of windows" in our house would be affected, only most of those on the southeast, south and southwest. Our Figure 2 clearly makes no claims regarding the windows on the northeast, north and northwest sides of our house. We designed the house to let light in so, yes we have a lot of windows. We did not think it necessary to specifically list every window in our house and what the effect would be when 19 of the 32 windows are not affected at all. Of those, 2 are already totally blocked by the existing structure. Nor did we specifically list every window that would be affected to some degree from 'minimal' to 'total'. 2. Yes, views depend on the position of the viewer. I do not recall reading anything in the zoning ordinance that said objection related to sun and views must meet a "100% blockage from all vantage points" rule. If the north side additions are built we will lose light and views from 'totally' in some windows regardless of where we stand to partially in others. In some cases, partial is 20%, in others it is 95%. We did INDEED show 2 views from a single window from the mud room. Picture 2 (angle) shows about 20% partial blockage, picture 3 (straight out) shows total blockage. We did make an attempt to not overstate our case. 3. Contrary to their assertion that we did not explain how the photos were taken, our picture 7 is clearly labeled "from living room couch". Picture 6 is "Living room Angle view". If more detail is needed, it is the view from the computer chair; a chair in which Janet is seated many, many hours a day. Is there some legal requirement that we provide the applicants' with the detailed descriptions and photographs of our objections prior to the meeting? There is no requirement for them to notify adjoining property owners prior to filing when they are going to file an application nor what it entails. It is up to the adjoining property owners to contact the zoning office after they receive the DRB meeting notice —9 days prior to the meeting. What happens if someone is on a 2 week vacation and doesn't get the notice until after the meeting date? If no one shows up to object, the application is granted? In our case, as I have stated before, I had 2 days for each of the Feb 1 Oth and May 4th meetings. In both cases, I didn't complete my documentation until the night prior. In addition, I felt I was clear in my March phone conversation with Mr. Katz that we objected to the loss of views and light. I was as surprised that they didn't know I was at the May 11th meeting to object as they were to find out that was the case. We would like to add that we are appreciative that they copied us on their letter of May 11 th and the email to which we are responding so we could respond prior to the meeting. I'm sure we all want to bring this to conclusion as quickly as is reasonably possible. As we are not able to attend the meeting on May 18th, I do not feel it would be appropriate to grant their application at that time. If the board determines that a site visit is necessary prior to making a decision, please contact either of us. I can be reached at work (769-4146) from —8:30 to 5:30 week days. Janet is in and out during the day but is home most of the time: 862-7451. Alternately, if you put together a list of possible times to visit and send it via email to both the applicants and us, we can 5/18/2010 Page 2 of 2 hopefully find a time in the very near future that is agreeable to all parties. Thank you, Bruce and Janet Alvarez On May 17, 2010, at 1:02 PM, Claudia Berger wrote: Dear Ray and Cathyann: Please find attached a letter to the Board members for their consideration at the May 18th meeting. Please kindly forward the attached to the Board members. The Alvarezes are copied on this message for their convenience. Thank you for your consideration. Claudia Berger 54 Central Avenue South Burlington, VT 05403 802-658-3723 claudiaberger@myfairpoint.net myfairpoint.net <54 Central Avenue Ap_ltr 5.17.10.docx> 5/18/2010 4 � OClaudia Berger and Sheldon M. Katz 54 Central Avenue p South Burlington, VT 05403 802-658-3723 May 17, 2010 BY ELECTRONIC MAIL (rbelair @sburl.com and claroseLa sburl.com) Development Review Board c/o Ray Belair and Cathyann LaRose 575 Dorset St. S. Burlington, VT 05403 Re: 54 Central Avenue: Development Review Application Dear Sirs or Madames: We are in receipt of Bruce and Janet Alvarez's May 171h letter. Needless to say, we disagree with much of it and will explain at Board's request. However, there are important areas of agreement: 1. The Alvarezes concede that the light and views from the vast majority of their home's windows will be completed unaffected by the proposed improvements. The photographs they submitted at the May 4, 2010 hearing did not reveal that. 2. They acknowledge that any impact on views -- which they themselves describe as "not award winning" to begin with -- depends on where the viewer is situated in their home. The view may be partially obstructed, apparently, when sitting on the couch. The views will be unaffected when the viewer looks out the window from other vantage points. The photographs they submitted at the May 4, 2010 hearing did not reveal that. 3. The Alvarezes do not contest that they did not afford us the opportunity of reviewing their photographic evidence before the May 4th meeting, did not explain how the photos were taken (e.g. from the couch), and did not even tell us that such photographs existed. In these circumstances, we were in no position at the May 0, meeting to respond. The photographs accurately show only what they intend to show — that from a few windows and from selected vantage points there maybe partial obstructions. They do not show that from most of the Alvarezes' windows there will be effect and that from certain other windows there will be no effect from other vantage points. Finally, the Alvarezes agree that a site visit could be useful to the Board. Development Review Board Letter of May 17, 2010 We do object to continuing the matter to the next meeting. We are sympathetic to the conflict, but as a result of information provided by the planning department and its lawyers, our application has been delayed for months. Further delay may cause us to miss another building season. We propose that the Board either approve the application at the May 18' meeting based on the foregoing points of agreement (views from most of the Alvarezes' windows are unaffected and views are affected (partially) only from certain selected vantage points), or, since the Alvarezes do not object to a site visit, use the May 18th meeting to schedule a site visit during the Board's June 1" meeting. In conclusion, we ask the Board to construe the zoning law reasonably in a way that does not discourage residents from improving their homes and from staying in their homes as owner -occupants. Thank you for your kind attention. Sincerely, /s Claudia A. Berger & Sheldon M. Katz c: Janet and Bruce Alvarez (by electronic mail bhaskate comcast net) 0 o C Bruce and Jan et et Alvarez 52 Central Ave South Burlington, VT 05403 802-862-7451 Response to the letter of May 11, 2010 to the DRB from Sheldon Katz and Dr. Claudia Berger Full history: We were approached by Mr. Katz and Dr. Berger some months ago regarding their proposed addition. At that time we had not had reason to look at the QCP zoning ordinance for 19 years. The only thing we recalled was the 5' set back requirement. Both Janet and I remember repeatedly stating the requirement, ours and the city's, that the additions be no closer than 5' from the lot line. Our impression at the time was that we had no recourse but to accept their plans if they met the 5' setback requirement. When we were surprised by the notice for the DRB meeting in February, I went to the town offices to see exactly what was being proposed. When we found that the proposal violated the 5' setback, I looked further into the zoning rules and knew then that the addition application, regardless of setback, must also consider access to sunlight and views of neighboring properties as the house is non -conforming. With only a weeks notice and no time to find out what was being proposed until the Friday afternoon before the meeting plus no time until Sunday prior to the Tuesday meeting, I prepared the documentation (95% the same as what I presented at the May 4th meeting) and emailed it to the zoning office the night prior to the Feb meeting. The application was withdrawn the same day. I was informed of the withdrawal by the zoning office and told they would keep my documentation on file in case the application was refiled. Mr. Katz informed me in a phone call he placed to me in March that the application was withdrawn due to the city attorney's misunderstanding of the "non complying structure" status of the applicants' house. In that conversation, he stated that his reading of the zoning laws said he could do whatever he wanted as long as the addition did not violate the 5' setback. My response was that as the house is non -conforming, the regulations had view, sunlight and parking requirements. Parking is not an issue but the views and access to sunlight were of concern to us. He was still pushing for building on the current footprint saying that 5 feet would not be much different than 3 feet. His final response was that he would talk to his wife and decide what they wanted to do. In his letter Mr. Katz claims to have come to our house "a couple of ' weeks prior to the May 4th meeting to tell us that they had modified the application to adhere to the 5' setback. In fact it was less than a week and a half before and I was in Greece and returned home at 11:30 PM on May 1st. In addition, the DRB notice was on their house the week prior and we had received the DRB meeting notice in the mail on April 24th. The applicants' documentation repeatedly states that my objections at the May meeting were an `unfair surprise'. However they did not show us what they planned to file prior to sending the application for either meeting. Given I had only 2 days of preparation time prior to either meeting, I find his complaint absurd. I had already stated our objections in the March telephone conversation. Mr. Katz also apparently seriously misunderstood what he describes in his letter as "Janet expressed pleasure with the change and her appreciation" and "given Janet's approval and gratitude for the revision". Janet thanked him for telling her and reconsidering the 5' setback and informed them I was in Greece and she would let me know when I returned. Janet feels her response was far from anything as strong as `pleasure' or `gratitude' for the change and she certainly did not indicate approval of the north side additions. Given this misinterpretation, we can see how they were surprised when I showed up to object. However, our concerns related to sun and views that I discussed with Mr. Katz in the March conversation still existed in the application so I presented our documentation at the DRB meeting. One of Mr. Katz' arguments is that the QCP zoning is designed to encourage closer density than is allowed in the rest of the city. As noted, there are houses that are closer than ours. He did not mention that those houses are also on smaller lots and the houses are smaller as well. At the May 4th meeting, he claimed that the distance between our house (#52) and the house to our north (#50) was not much different than the distance between our houses. In fact, the distance between #50 and #52 is 13' along the north side of our garage. The rest of our house, south and west of the garage, is approximately 25' from #50. The distance between #52 and #54 ranges from just over 8' rear to 9.5' at the front. My understanding of the QCP specific zoning is that since most of the houses were far from meeting the 15' setback requirement and many were winterized camps, the city wanted to allow improvements to these houses without QCP homeowners having to go to the DRB for every one. The setbacks made most of the houses in QCP compliant. Mr. Katz seems to be interpreting the zoning intent as a blanket approval to push the boundaries in all cases. As it stands, their house (roughly 1650+ sq ft of living space exclusive of any finished basement space), was remodeled to a `proper' house 22 years ago (it had no bathing facility) adding —530 sq ft. of living space plus a 1 car garage. The applicants' "modest proposal", including only the north side additions, would increase the size of their house by —30% (again excluding garage and any finished basement space). The tone and statements in the applicants' letter approach defamation. Phrases such as "misleading character of the Alvarezes' photographs" and "in no position at the May 4th meeting to contest the authenticity or relevance of the photographs". In his letter he states that they were never invited in to see how the photographs were taken. He did not mention that they also never asked to come in our house. Had they told us they were going to file the referenced letter, we would have invited them in so they could see our specific objections. In contrast to his claims that I presented misleading photographs, I made every effort to ensure the photographs were an accurate representation of the impact to our views. The impact to light and views is detailed in my figure #2 showing both houses (drawn to scale and properly positioned) and the change in angles at the SW and SE corners in which the light and/or views would be blocked by their proposed north side additions. What I have not been able to figure out is how to show the difference in location of the transit of the sun through the seasons. In mid December, it rises at 125 degrees east of north — approximately straight out our green house window. It rises to a total azimuth of just over 22 degrees, fully blocked by their house, and sets at 235 degrees east of north — meaning approximately at a point left of the large tree shown on the right of my picture 7. This is the window he references in his description of his photograph 2. Clearly the direct mid to late morning sun on our southeast and southwest windows would be blocked in from mid fall to mid spring much earlier if their east side addition were built. The maximum sun angle is June 20th. At that point, the sun rises at 55 degrees east of north — from our greenhouse window, it rises east of #50. The maximum azimuth is nearly 70 degrees and it sets at 305 degrees — over Red Rocks Park. The sun in June is never blocked by their house (additions approved or not). This explains how the southwest side of our house is `drenched in sunlight' in the afternoon as shown in his photograph 5. Throughout his letter he states that the additions will have little or no affect on our light and views claiming his photographs prove that claim. If one wants to talk about misrepresentation, I suggest you notice that his pictures 1a, b, and c are all taken from the middle of their back yard facing south or southeast. The same is true of pictures 2a, b, and c — they are pictures taken from the middle of their front yard. In both cases, those are their current AND future views if the additions are approved. Of course there are no obstructions to either the views or sunlight, they are east or west of the proposed additions and well south of their north property line. 1. At no time did I claim that every window will be obstructed from all angles, or that all windows would be affected year round. Nor did I include pictures of every window that would be affected to some degree. I also did not claim that we have magnificent southeast views now. The phrase I used was "while not an award winning view". However, a view through and over their deck lattice is much preferable to a view of siding 8' away. While their photographs 2a, b and c claim there will be NO light or view blockage, I had not claimed that angle would be affected. I can just as easily take a picture from inside our house from that window that would show total blockage of light and views by aiming into their existing porch but it would not be a fair representation. What I showed was the actual view, from our couch through that window, facing southwest to the lake — my picture 7. Certainly as one walks normal paths through our house, the views and sunlight from most windows on the southeast and southwest sides can go from `unaffected' to partially or fully blocked by their existing house and would be much more affected if the additions are approved. 2. The greenhouse window (shown in their photograph #1) is glass on all sides and on top. They claim there would be no light or view impact from their addition. This is, in fact, false. While there is only a somewhat narrow angle where the view is affected (mid fall to mid spring), the light it gets in that period is substantial and would be blocked starting several hours earlier by their east side addition. I will spare you further detailed comparisons of points made in Mr. Katz' letter. In order to avoid a protracted point / counterpoint series of letters, I would ask that if my pictures and figure #2 in my documentation presented at the May 4th meeting are not adequate proof of the impact to views and light, that the DRB members, in whole or in part, set up a site visit as Mr. Katz suggested in his letter. Additionally, if this application is to be re -considered at the May 18th meeting, we request that it be continued to the next meeting. The Champlain Valley Skating Club Annual meeting is the same evening. As club officers, Janet and I are required to attend. Bruce and Janet Alvarez 01, Av 44 40 as No Text ., •t � �, � .r cp! � + �—'y 4 -.c is u--t p.' 31. y f ... Ssb"v`s'.�:d1"h� l .�?:r.�}$Y'�tY.• �w,i'* 1. mc. iA' i ... f ;y a+ k �►�tri o"°aSfs sy � � � •,�+ � � ,. � �r �' � `. i �f, � ..fit F-rrrrr- f/m -- - -1- - [1-1-F-F-FFFFFFFF FTFTI log! I Ir FrFF-F-Fr Ff I FF V e. zk , \va, A0 awlfis f, S4 "id i " Z Interested Persons Record and Service List southburfington FNM0 VT Under the 2004 revisions to Chapter 117, the Development Review Board (DRB) has certain administrative obligations with respect to interested persons. At any hearing, there must be an opportunity for each person wishing to achieve interested person status to demonstrate compliance with the applicable criteria. 24 V.S.A. § 4461(b). The DRB must keep a written record of the name, address and participation of each person who has sought interested person status. 24 V.S.A. § 4461(b). A copy of any decision rendered by the DRB must be mailed to every person or body appearing and having been heard by the DRB. 24 V.S.A. § 4461(b)(3). Upon receipt of notice of an appeal to the environmental court, the DRB must supply a list of interested persons to the appellant in five working days. 24 V.S.A. § 4471(c). rON-=,% t' HEARING DATE: PLEASE PRINT CLEARLY! NAME MAILING ADDRESS pRn_il=rT nG 1AITC:DCQT % v►-�r4 S `�. ��7b,/ J4�Z /j±-� 0 e2c.Al, L 4. %Ot0� OV S� Sz to `�5 1A, �b� �, e �$ Interested Persons Record and Service List southburl�ugtou "COMPNT Under the 2004 revisions to Chapter 117, the Development Review Board (DRB) has certain administrative obligations with respect to interested persons. At any hearing, there must be an opportunity for each person wishing to achieve interested person status to demonstrate compliance with the applicable criteria. 24 V.S.A. § 4461(b). The DRB must keep a written record of the name, address and participation of each person who has sought interested person status. 24 V.S.A. § 4461(b). A copy of any decision rendered by the DRB must be mailed to every person or body appearing and having been heard by the DRB. 24 V.S.A. § 4461(b)(3). Upon receipt of notice of an appeal to the environmental court, the DRB must supply a list of interested persons to the appellant in five working days. 24 V.S.A. § 4471(c). HEARING DATE: PLEASE PRINT CLEARLY! NAME MAILING ADDRESS PROJECT OF INTEREST U94 l� c�Qiw►es- _ OI a�iw►�cg. �o� ID P_ ��r (Z+ , 3©ar-�0�a�a „ /( `� Y 1•u.1 j�f C-) I 1 s f J f'( WAr ` a , -; Sl AQ.,I ILL Oeme MAW OC&ge5rM Ji' o 574 �f (�� l�o� �Q / Miv ,U J,4 A//yo g1 v/� 60� , /wa/ -a-4k . IN 04 Lil &N JL141We5RU�•A01 4� 1poeqi0 3 S _7-" VT_ 72- 0� hlle /. 11 Vol, Interested Persons Record and Service List southhurl�zigt ojj F9MU VT Under the 2004 revisions to Chapter 117, the Development Review Board (DRB) has certain administrative obligations with respect to interested persons. At any hearing, there must be an opportunity for each person wishing to achieve interested person status to demonstrate compliance with the applicable criteria. 24 V.S.A. § 4461(b). The DRB must keep a written record of the name, address and participation of each person who has sought interested person status. 24 V.S.A. § 4461(b). A copy of any decision rendered by the DRB must be mailed to every person or body appearing and having been heard by the DRB. 24 V.S.A. § 4461(b)(3). Upon receipt of notice of an appeal to the environmental court, the DRB must supply a list of interested persons to the appellant in five working days. 24 V.S.A. § 4471(c). HEARING DATE: ` , -0 I ) PLEASE PRINT CLEARLY! NAME MAILING Annm=ss DRn I=r r /lC W-rcmcc-r 3$ went,uo4-h -701 AA -en AI 11 is n \/7 OS�q� 16. Bq i f ns -ice • V 'T OS4o 0vVPCVz- 1IV So NIAlN S i c.:.4WR +r S14PL-NA o �;&-7 C' LiXlf�+FG L L. 10 M P•n(S4F,GF-V Q1r--n! L ^f V-e1b) �►nee.y a�` v fltl c-, t 104 7 i�al��- /Z.o vok tPA y� 0 Claudia Berger and Sheldon M. Katz o f/Ir'A" 54 Central Avenue South Burlington, VT 05403 802-658-3723 May 28, 2010 BY ELECTRONIC MAIL (rbelair(cr) burl.com and clarose(g),sburl.com) Development Review Board C/o Ray Blair and Cathyann LaRose 575 Dorset St. S. Burlington, VT 05403 Re: 54 Central Avenue: Development Review Application Dear Sirs or Madams: Please consider this important supplement to our letter of earlier today. As it turns out, one of the previous Board matters we cited in our earlier letter, Application of Ahladas (3 Pavilion) MS-08-07 -- decided favorably to the applicant in 2008 -- is remarkably similar to our application and should control the result in the current matter. As we understand the Ahladas application, the similarities between Ahladas and the current application are extraordinary. Like the current application, Ahladas concerned a two-story addition to the rear of the non -complying structure. In fact, the Ahladas extension was even a little deeper (from east to west) than our proposed extension with a resulting greater impact on views and light. Further, the distance between the Ahladas house and the house at 5 Pavilion to its immediate north (Pavilion, like Central Avenue, runs roughly north and south) is about the same as the distance between the Alvarezes' house and ours, so the effect on views and light would be roughly similar. There are differences between Ahladas and our application, and they weigh in favor of approval of our application. First, Ahladas concerned a two-story addition where no previous structure existed. Our proposal is to enclose a pre-existing front porch and to build a two story addition where there is already a one story lattice wall. In fact, the north part of our deck was previously completely enclosed with a roof until a few years ago, when we removed the roof. Therefore, our application calls for the addition of one story to a pre-existing one-story structure. As a result, the impact on views and light will be even less than the addition in Ahladas. Second, the Ahladas home sits one to two feet from its northern boundary line. Our house (which is not parallel to the boundary line) sits from about 3 feet 3 inches from the north boundary in the rear to about 4 feet 6 inches from the north boundary in the front. In other words, in Ahladas the degree of pre-existing noncompliance was greater. Development Review Board Letter of May 28, 2010 Moreover, as we understand it, the Ahladas addition was a straight extension of the existing northern wall of the applicants' home from east to west. In other words, the extension itself appears to be only one to two feet from the property's northern boundary line. Based on what the Planning Department told us,' our current application calls for an extension that is not less than five feet from the northern boundary line, much further away from the boundary than the Ahladas addition. Thank you again for your patience and kind attention. Sincerely, /s Claudia A. Berger & Sheldon M. Katz C: Janet and Bruce Alvarez (by electronic mail bhaskate(&comcast.net) ' We were originally advised that we needed the Board's approval only if we proposed an addition that followed the existing footprint and that if we recessed to not less than five feet from the boundary line we needed only a zoning permit. Later, we were advised that we could not develop along the existing footprint but needed to recess to not less than five feet of the northern boundary. That is what the current application does. 2 Page 1 of 2 ray From: Bruce Alvarez [bhaskate@comcast.net] Sent: Friday, May 28, 2010 10:50 PM To: Claudia Berger o FILE cop Cc: ray; Cathyann LaRose Subject: Re: 54 Central Avenue application Importance: High I don't know that this should be necessary since there will be a site visit on Tuesday. There is no time to investigate the details of each of the 4 applications referenced. I can only comment on what I know about the properties. 1) Ahladas (3 Pavilion MS-08-01) - The neighbor to the north had no lake views from the rear of the house and wrote a letter of approval for the project. 2) Provencher (45 Central Ave MS-06-04) - The house to the north had no lake views. Mary owns both 45 Central and the one to the north, I doubt she filed an objection to the project. 3) Goodman (66 Central Ave MS-09-05) - The house to the north is 50 feet away, the house to the south 100 feet, no access to light could be affected. the new house blocks no views that were not already blocked by the preexisting house. 4) Griffin (99 Central CU-04-07) - The section of the house that is higher than 25 feet is on the lake side, down a significant slope and there are no houses on the east side of Central Ave opposite 99. Bruce Alvarez 52 Central Ave On May 28, 2010, at 3:24 PM, Claudia Berger wrote: Ray and Cathyann, Please find attached a supplemental letter for your consideration and the Board's for the June 1st meeting. Please kindly forward the letter to the Board members at your very first convenience so that they will have time to review it in advance of the meeting. The supplement concerns a recent favorable Board decision (an approval of a conditional use) that appears to control the result in the current matter. Please copy us on your forwarding message and on any comments you make available to the Board members. Thank you for your consideration. As you can see, a copy of this message and attachment is being sent to the other parties involved for their convenience. Claudia Berger & Sheldon Katz 54 Central Avenue South Burlington, VT 05403 802-658-3723 claudiaberger-@myfairpoint.net 6/1/2010 Claudia Berger and Sheldon M. Katz 54 Central Avenue South Burlington, VT 05403 802-658-3723 June 1, 2010 BY ELECTRONIC MAIL (rbelair@sburl.com and clarose(Fbsburl.com) Development Review Board C/o Ray Blair and Cathyann LaRose 575 Dorset St. S. Burlington, VT 05403 Re: 54 Central Avenue: Development Review Application Dear Sirs or Madams: fill COPY The Alvarezes attempt to distinguish the Board's previous decisions we have cited in support of our application, asserting that in those instances the applications in question were not opposed. This is a distinction without a difference, however, since opposition or lack thereof (or support, for that matter) is not a criterion identified in the ordinance. Under the ordinance, the fact that the Alvarezes have expressed opposition to our application has absolutely no bearing and is not a factor that may be considered. The Alvarezes also attempt to distinguish the current application from three others we cited — Griffin, Provencher, and Goodman -- maintaining that the facts in each of those matters case is somewhat different than the fact of our application. While no two matters are identical, the distinctions are beside the point because the importance of those matters lies not to their factual similarity but in the standards set by the Board, standards which when applied to the facts of our application support approval. First, as the Board explained in Griffin, conditional uses are permitted unless neighboring views will "be significantly impacted." A de minimis effect on views from a small percentage of a neighbor's windows, and then from only selected vantage points in the home, does not amount to the requisite "significant impact." Second, again in Griffin, the Board set the "visually sensitive" standard -- houses close to the lake, especially on the west (lake) side of Central Avenue, are "visually sensitive" and improvements require close scrutiny. Improvements to homes that are on the east side of Central Avenue (Provencher and Goodman) -- and like ours are not even directly across from it — are not visually sensitive. The obscure effect on lake views of improvement to homes distant from the lake does not, under the Board's own precedents, warrant prohibiting reasonable improvements.' 1 The Alvarezes' focus on the effect of the improvement in Griffin only on views from the east misses the point. In Griffin, the Board allowed the conditional use (a roof higher than the height permitted by the ordinance) despite the effect on the home situated proximately to the north. Similarly, the Alvarezes' home is situated to our north. The Board's approval in Griffin therefore supports approval of our application. Development Review Board Letter of June 1, 2010 Finally, the Alvarezes assert that the Ahladas neighbor to the north did not have a lake view, even of the "non -award winning" kind from select vantage points that the Alvarezes complain about. In the current season, with the dense foliage, there does not appear to be a lake view from the Ahladas neighbor to the north. Absent the foliage, however, it appears that the neighbor to the north had a view of the lake before it was completely blocked by the Ahladas addition. In the current matter, the proposed addition will leave the Alvarezes with a lake view even from the one window in question, not to mention far better lake views from their home's many other windows.2 As an administrative agency, the Development Review Board must respect its own precedents. Mendez-Barrera v. Holder, 602 F.3d 21, 26 (1st Cir. 2010) citing Nat'l Cable & Telecomms. Assn v. Brand XInternet Servs., 545 U.S. 967, 981 (2005); Motor Vehicle Mfrs. Assn of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). In this matter, respect for its own precedents requires the Board to approve our application. Thank you again for your patience and kind attention. Sincerely, /s Claudia A. Berger & Sheldon M. Katz C: Janet and Bruce Alvarez (by electronic mail bhaskate(a),comcast.net) 2 And in Ahladas the Board permitted an addition one to two feet from the property line. 2 CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING DEVELOPMENT REVIEW BOARD Report preparation date: May 25, 2010 drb\i c\Berger_Katz\BergerKatz_misc2.doc Application received: April 12, 2010 54 Central Avenue Miscellaneous Application #MS-10-04 Meeting date: June 1, 2010 A enda # 3 Applicants/Owners Property Information Claudia Berger & Sheldon Katz Tax Parcel ID 0330-00054 54 Central Avenue Queen City Park (QCP) District South Burlington, VT 05403 Parcel Size: 4350 SF Location Map CITY OF SOUTH BURLINGTON 2 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\misc\BergerKatz misc3 doc Claudia Berger and Sheldon Katz, hereafter referred to as the applicants, are seeking approval to expand a non -complying single family dwelling by: 1) enclosing existing front porch, 2) constructing 6' x 10' covered front porch, 3) converting rear deck to 2-story addition, 4) adding 8'xl2.5' screened in rear deck, and 5) adding two (2) shed dormers, 54 Central Avenue. The application was reviewed on May 4, 2010 (meeting minutes not yet available). The Board continued the application until May 18, 2010 and again until June 1" so that they may complete a site visit of the property. Associate Planner Cathyann LaRose and Administrative Officer Ray Belair have reviewed the plans submitted on April 12, 2010 and have the following comments. Zoning District & Dimensional Requirements: QCP Zoning District Required Proposed A Min. Lot Size 7500 S.F. 4350 S.F Max. Building Coverage"" 40% 34% Max. Overall Coverage'" 60% 47% Min. Front Setback loft 19 ft Min. Side Setback 5 ft. Approx 5 ft. �► Min. Rear Setback 10 ft. Approx 30 ft. Max. Building Height 25 ft. <25 ft �► Pre-existing non-compliance; will be reviewed under SBLDR section 4.08 (G) Zoning compliance ****Many of the homes in the Queen City Park neighborhood are eligible for relief from coverage limitations under Section 3.06 of the South Burlington Land Development Regulations for pre- existing non -compliant lots which existed prior to February 28, 1974. Lots smaller than 5000 square feet in size may exceed the maximum allowed for the district up to a maximum of forty percent (40%) for buildings and sixty percent (60%) for overall coverage. Staff has further reviewed the application under Section 4.08 of the South Burlington Land Development Regulations (SBLDRs). A. Purpose: A Queen City Park District is herby formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. The proposed additions are in compliance with the purpose of the QCP Zoning District. B. Comprehensive Plan CITY OF SOUTH BURLINGTON 3 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\misc\BergerKatz misc3 doc The proposed additions are harmonious with the City's Comprehensive plan. C. Permitted Use The proposed residential additions are a permitted use in the QCP district. D. Conditional Uses The proposed project does require conditional use review per Section 4.08(G)(2) of the SBLDRs. E. Area, Density, and Dimensional Requirements ****Many of the homes in the Queen City Park neighborhood are eligible for relief from setbacks and coverages under Section 3.06 of the South Burlington Land Development Regulations for pre-existing non -compliant lots which existed prior to February 28, 1974. Lots smaller than 5000 square feet in size may exceed the maximum allowed for the district up to a maximum of forty percent (40%) for buildings and sixty percent (60%) for overall coverage. F. Height of Structures The maximum height for all structures shall be no more than twenty-five feet above the average pre -construction grade adjoining such structure. The existing and proposed height of the roof is less than 25 feet to the midpoint of the eave. This is within the limitation for the district. G. Non -Complying Structures Structures in the Queen City Park District are not subject to all provisions of Article 3, non- complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer; or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. As the cost and square footage of the building will be increased beyond these limits, Section 4.08(G)(2) applies: (2) The Development Review Board may approve any alteration which exceeds the thirty- five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint, or square footage subject to the provisions of Article 14, Conditional Use Review. Staff has evaluated compliance with the criteria in the section of this report titled 'Conditional Use Review' below. CITY OF SOUTH BURLINGTON 4 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\misc\BergerKatz misc3 doc (3) In addition to the provisions set forth above, the DRB shall determine that the proposed alteration or expansion will not adversely affect: a. Views of adjoining and/or nearby properties; b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking. Subsection 'a' and 'b' above are difficult for staff alone to assess as they are unique in the Land Development Regulations in that they are to be evaluated from the perspective of an abutting property owner and not necessarily from a public right of way. The proposed second story addition in the rear is proposed to be located only five feet from the northern property line, where the abutting property also appears to be very close to the property line. The distance between these two structures appears to be very minimal. As such, the subject property, given the proximity to the adjoining home and its location, appears to have the potential to block southern solar exposure. Still, Staff is not best qualified to address this without trespassing on private property. As such, Staff urges that the Board carefully consider testimony from adjoining property owners and carefully consider such testimony with respect to the proposal's compliance with criteria `a' and `b' above. The owner of the property immediately to the south provided testimony and photographs to the Board at the hearing on May 4, 2010 (written documents attached; verbal testimony will be documented in meeting minutes). The Board voiced their general agreement that the proposed additions would violate sections `a' and 'b' above. An informal poll of the Board found one member expressing desire for a site visit; other members did not feel that it would be necessary. The applicant has since submitted additional information via Staff that they wish for the Board to review (attached as letter dated May 11 from the applicants and as Word document with photographs 1-5). Staff finds that the subject property has adequate on -site parking. The Board did not express any concern that this criterion was being met. CONDITIONAL USE CRITERIA Pursuant to Section 14.10(E) of the Land Development Regulations the proposed conditional use shall meet the following standards: 1. The proposed use, in its location and operation, shall be consistent with the planned character of the area as defined by the City of South Burlington Comprehensive Plan. Staff does not feel that the proposed additions are in conflict with the planned character of the area, as defined by the Comprehensive Plan. 2. The proposed use shall conform to the stated purpose of the district -in which the proposed use is located. According to Section 4.08(A) of the Land Development Regulations, the QCP Zoning District is formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the CITY OF SOUTH BURLINGTON 5 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\misc\BergerKatz misc3 doc area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. Again, the proposed additions are in compliance with the proposed purpose of the district which related to smaller lots and lesser setbacks than other residential districts. 3. The Development Review Board must find that the proposed uses will not adversely affect the following: (a) The capacity of existing or planned municipal or educational facilities. The proposed additions will not adversely affect municipal services. (b) The essential character of the neighborhood or district in which the property is located, nor ability to develop adjacent property for appropriate uses. Staff does not feel that the proposed additions adversely affect the character of the neighborhood. The QCP district is historically a very dense neighborhood. The proposed addition is to the rear of the property and will be largely unseen. Again, the Board should consider testimony from the adjacent property owners with respect to any impact on access to sunlight which could result from the proposed addition. (c) Traffic on roads and highways in the vicinity. The proposed additions will not affect traffic in the vicinity. (d) Bylaws in effect. The proposed additions adhere to the applicable regulations in all instances except for consideration of the existing structure as a pre-existing non -conforming structure. (e) Utilization of renewable energy resources. The proposed additions have the potential to adversely impact the abutting property owner's access to solar energy, as stated previously in this report. The Board should discuss the application with respect to this criterion. (f) General public health and welfare. Staff does not believe that the proposed additions will not have an adverse affect on general public welfare. Res ectfully submitted, U., dva /i, A�) athyan aRose, ICP, Associate Planner Copy to: Claudia Berger and Sheldon Katz, Applicants DEVELOPMENT REVIEW BOARD 4 MAY 2010 PAGE 2 Mr. Dinklage said the decision will extend the deadline until July of this year. Mr. Lesser -Goldsmith said the work is being done by a local Vermont artist and will be anchored to the masonry of the building. No issues were raised. Ms. Quimby moved to approve Design Review Application #DR-10-02 of Healthy Living subject to the conditions in the approval motion. Mr. Farley seconded. Motion passed unanimously. 5. Preliminary & Final Application #SD-10-13 of the University of Vermont for a planned unit development to construct a 275' x 600' track (only a portion of which is located in South Burlington), 147 Spear Street: Ms. Ravin said this was previously approved. There is a small change in Burlington but nothing in South Burlington. Mr. Dinklage suggested submitting the plans to the South Burlington Fire Department for their information in case they have to back up Burlington. Mr. Belair said staff had no issues. Ms. Quimby moved to,:approve Preliminary and Final Plat Application #SD-10-13 of the University of Vermorft subject to the stipulations in the draft motion. Mr. Farley seconded. Motion passed unanimously, 6. Miscellaneous Application #MS-10-04 of Claudia Berger & Sheldon Katz for approval to expand a non -complying single family dwelling by: 1) enclosing existing front porcb,l constructing 6' x10' covered front porch, 3) converting rear deck to 2-story addition,*adding 8' x 12.5' screened -in rear deck, and 5) adding two shed dormers, 54 Central Avenue: Mr. Katz said they'have lived in the house 10 years and need to expand and renovate. He said they are actually withdrawing the footprint. They will comply with the setback by cutting back the front porch and deck. Mr. Dinklage said it is up to the Board to determine that the proposed additions will not block views or sunlight from neighboring homes. Mr. Alvarez, a neighbor, gave members his written comments. He indicated that the proposed 2- story structure would block the fall, winter and spring sun and 75% of his view. The proposed deck would also destroy a tree on his property. DEVELOPMENT REVIE )BOARD 4 MAY 2010 PAGE 3 Ms. Berger said part of the tree is on their property, and if they cut down that part of it, the tree will die. Mr. Katz said the City Arborist told him that it would have to come down in 5 years regardless. Mr. Alvarez noted that a tree in front of the Katz/Berger house overhangs his property. He also noted that there are 2 survey pins in the back yard which are 7 inches apart. One was placed when Mr. Alvarez had a survey done and one when the applicants had a survey. Mr. Katz said he took issue with Mr. Alvarez's claim that his views will be blocked. Mr. Alvarez said that from every window on the south side of his home, he will see nothing but the siding on the applicants' house. Mr. Katz said the character of Queen City Park houses is that they are very close together, almost on top of each other. Mr. Alvarez said that means you should make every effort not to encroach in any way on your neighbors. Mr. Knudsen suggested a site visit. Mr. Belair said that would have to be warned. Mr. Knudsen said that is the only way to make a finding re: views and sunlight. Mr. Dinklage said he couldn't support the application as proposed. He had no objection to a site visit. Mr. Stuono and Mr. Behr agreed. Mr. Belair suggested continuing the application so a new decision could be drawn up. Mr. Katz said he felt that the Alvarez objection is based on "peek." Ms. Quimby moved tp continue Miscellaneous Application #MS-10-04 until 18 May 2010. Mr. Farley seconded. Motion, passed unanimously. 7. Sketch, Plan Application #SDi-1,0-14 of Donald G. Winnett & Gloria Davis for a planned unit'de*el pinent to subdivide a 12,100 sq. ft. lot developed with a two-family dwelli '01ihto two footprint lots of 1,190 sq. ft. each and a 9,270 sq. ft. remaining lot, 12-14 Wri ''�Pqurt: Mr. Henson said the owners want to sell the 2 units of the duplex individually. Open space will be owned by anassociation of the two owners. Mr. Belair said staff has no objections. Ms. LaRose reminded the applicant that for planning purposes these will not be recognized as separate lots. Mr. Henson noted that banks will no longer finance condominiums unless there are footprint lots, and insurers will not insure them. 8. Continued Final Plat Application #SD-10-10 of Wedgewood Development Corp. for a planned unit development consisting of. 1) six two-family dwellings, and 2) three single family lots, 232 Autumn Hill Road: Mr. Burke said the Director of Public Works has reviewed the plans. Claudia Berger and Sheldon M. Katz 54 Central Avenue South Burlington, VT 05403 802-658-3723 May 28, 2010 BY ELECTRONIC MAIL (rbelair(a)sburl.coin and cIarose(a�sburt.coin) Development Review Board C/o Ray Blair and Cathyann LaRose 575 Dorset St. S. Burlington, VT 05403 Re: 54 Central Avenue: Development Review Application Dear Sirs or Madams: The question raised on this application is whether the opponents have met their burden of showing that the proposed improvements will "adversely affect" the views and light from their property. See Zoning Ordinance § 4.08.G(3). The applicants therefore address the meaning of the term "adversely affect" under both the rules of interpretation set out by the Vermont Supreme Court and this Board's own interpretations of that term in previous applications. At the outset, the Vermont Supreme Court has consistently ruled that zoning laws, because they conflict with historic common law rights, "must be given a strict construction." See In re Champlain College, 2009 VT 55. The Court has explained that "Any ambiguity or uncertainty must be decided in favor" of property owners seeking to improve their properties. See id. See also Kremer v. Lawyers Title Ins. Corp., 177 Vt. 553 (2004) ("[i]t is a firmly established rule in this state [Vermont] that any uncertainty in land use regulations must be construed in a way that is favorable to the property owner, that is, against the alleged land use violation.") and In re. Bennington School, Inc., 176 Vt. 584 (because land use regulation conflicts with common law, any ambiguity is resolved in favor of the landowner."') and In re. Weeks, 167 Vt. 551, 555 (1998). Accordingly, in this matter any doubt must be decided in favor of the applicants. Further, in interpreting statutes and ordinances, it must be presumed that the legislature (in this matter City Council) did not enact a meaningless law. See State v. Baldwin, 140 Vt. 501 (1981). Interpretations that lead to absurd or irrational results must be avoided. See State v. Rice, 145 Vt. 25 (1984). To interpret the term "adversely affect" to include the ordinary effects on light and views that would be expected from almost any development would violate both rules of interpretation. As the Vermont Supreme Court has recognized, all development, "by necessity," affects views. See In re. Appeal of JAM Golf, LLC, 185 Vt. 201 (2008) and State v. Baldwin, 140 Vt. 501 (1981). The City's zoning ordinance allows property Development Review Board Letter of May 28, 2010 owners to improve noncomplying structures, and, therefore, "by necessity," allows for such improvements to have some effect on views. Hence, the ordinance cannot be interpreted to bar improvements which, like the proposal before the Board, only modestly affect views or access to light. To interpret the ordinance in such a way would make its allowance of improvements both irrational and meaningless and would therefore violate the Supreme Court's rules for interpreting such ordinances. The Board's previous decisions bear out the common sense notion that a modest effect on neighboring views and light, as in the currently matter before the Board, does not warrant prohibiting property owners from improving their properties. For example, the "adverse effect" standard was in issue in Application of Griffin (99 Central Avenue), CU-04-07, where the property owners sought to increase the height of their home above the allowable height. Approving the conditional use, the Board noted that neighboring views "will not be significantly impacted." ¶ 4(a) (emphasis supplied). According to the Board, therefore, home improvements should be prohibited only where the effect is "significant." In the matter before the Board, the opponents admit that of the numerous windows in their home, views from only a few will be involved, and then only from selected vantage points in the home. No reasonable person could conclude that the modest effect rises to the level of "significant impact " as required by the Board in the Griffin application. In several previous matters, the Board has further clarified that the ordinance's concern with views in Queen City Park focuses on views of Lake Champlain. The applicants' home in Griffin, for instance, was on the lake (west) side of Central Avenue, a location that the Board termed "visually sensitive." ¶ 4(a). Similarly, in other matters in which the "adverse affect" standard was before the Board, the Board emphasized that Queen City Park is "located very close to Lake Champlain," noting, therefore, that "it is somewhat possible that some favorable views exist." See for example Application of Provencher (45 Central Avenue), MS-06-04; Application. ofAhladas (3 Pavilion) MS- 08-07 (same); Application of Goodman (66 Central Avenue), MS-09-05 (same). Notice that while the Board was highly interested in the effect on views in Griffin, involving a house right on the lake, its interest was diminished in Provencher, Ahladas, and Goodman, all of which involved properties -- like the property in issue in the current matter -- further from the lake. Clearly, then, the ordinance's and the Board's concern with preserving views in Queen City Park centers on views of Lake Champlain, a concern which is all but absent in the present matter. As the opponents themselves conceded, to the small extent views are affected, those views are "not award - winning" to begin with. Turning to the issue of light, the Board has recognized that the Queen City Park neighborhood "is very dense and homes are very close together." Provencher, MS-06- 2 Development Review Board Letter of May 28, 2010 04; Ahladas, MS-08-07 (same); Goodman, MS-09-05 (same). Accordingly, the Board has assumed and accepted that home improvements will have some effect on light and has refrained from blocking any proposed improvements on that ground. As previously stated, ordinances are to be interpreted so as not to lead to irrational results. In the current case, applicants could -- without the Board's approval -- raze their current home and erect a new home that, unlike the proposal before the Board, would actually have real effects on neighboring views and light. To forbid the proposed modest improvements and thereby encourage the applicants to raze and rebuild a structure far less favorable to the opponents is just the kind of absurd result that should be avoided by interpreting the ordinance to allow improvements which, as in the present matter, have at most de minimis effects. Based on the foregoing, the pending application must be granted. All development has an effect on views and light. Yet the ordinance allows improvements to noncomplying structures, tolerating some effect on neighboring views and light as long as, as the Board put it, the impact is not "significant." The effect on views from a small fraction of the windows in a neighboring home, and then only from select vantage points within that home, does not meet the Board's own standard. The Board has recognized, naturally enough, that in Queen City Park the ordinance is concerned with views of Lake Champlain. Lake views are all but absent in the instant matter. The Board has also recognized that given the neighborhood's density, all development will block some light and it has been willing to accept home improvements where, as in the current matter, the effect on light is de minimis. If the Board has any uncertainty, under Vermont law that uncertainty must be decided in favor of the applicants. Moreover, the Board should not prevent the proposed improvements only to encourage a new structure that will have far greater effects on neighboring views and light. The undersigned respectfully request that you allow us to invest in and improve our Queen City Park home for our growing family and, by doing so, improve the neighborhood and the City. Thank you for your kind attention. Sincerely, /s Claudia A. Berger & Sheldon M. Katz C: Janet and Bruce Alvarez (by electronic mail bhaskate(,&comcast. net) Ll 2 n 1 .: ki �a Fez cz O 6- G A-V U � r � 1 - 10 RECEIVED JAN 2 2 202 City of So. Burlington Kaft V off Interested Persons Record and Service List SOUtnn_x�_ 1Angt-on Yf RM 04T Under the 2004 revisions to Chapter 117, the Development Review Board (DRB) has certain administrative obligations with respect to interested persons. At any hearing, there must be an opportunity for each person wishing to achieve interested person status to demonstrate compliance with the applicable criteria. 24 V.S.A. § 4461(b). The DRB must keep a written record of the name, address and participation of each person who has sought interested person status. 24 V.S.A. § 4461(b). A copy of any decision rendered by the DRB must be mailed to every person or body appearing and having been heard by the DRB. 24 V.S.A. § 4461(b)(3). Upon receipt of notice of an appeal to the environmental court, the DRB must supply a list of interested persons to the appellant in five working days. 24 V.S.A. § 4471(c). PLEASE PR/NT CLEARLY! NAME MAILING AnnRFcc Omer% IC/�T ^rT 1w1_-r Mr_^r 4,J L _V �a C. . t( 5 (�((e O_* 12CO CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING DEVELOPMENT REVIEW BOARD Report preparation date: May 12, 2010 drb\misc\Berger_Katz\BergerKatz_miscZdoc Application received: April 12, 2010 54 Central Avenue Miscellaneous Application #MS-10-04 Meeting date: May 18, 2010 Agenda # 3 Applicants/Owners Property Information Claudia Berger & Sheldon Katz Tax Parcel ID 0330-00054 54 Central Avenue Queen City Park (QCP) District South Burlington, VT 05403 Parcel Size: 4350 SF Location Map CITY OF SOUTH BURLINGTON 2 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\misc\BergerKatz misc2 doc Claudia Berger and Sheldon Katz, hereafter referred to as the applicants, are seeking approval to expand a non -complying single family dwelling by: 1) enclosing existing front porch, 2) constructing 6' x 10' covered front porch, 3) converting rear deck to 2-story addition, 4) adding 8'x12.5' screened in rear deck, and 5) adding two (2) shed dormers, 54 Central Avenue. The application was reviewed on May 4, 2010 (meeting minutes not yet available). The Board continued the application until May 18, 2010. Associate Planner Cathyann LaRose and Administrative Officer Ray Belair have reviewed the plans submitted on April 12, 2010 and have the following comments. Zoning District & Dimensional Requirements: QCP Zoning District Required Proposed Min. Lot Size 7500 S.F. 4350 S.F Max. Building Coverage"" 40% 34% Max. Overall Coverage***** 60% 47% Min. Front Setback loft 19 ft Min. Side Setback 5 ft. Approx 5 ft. 4 Min. Rear Setback 10 ft. Approx 30 ft. � Max. Building Height 25 ft. <25 ft �► Pre-existing non-compliance; will be reviewed under SBLDR section 4.08 (G) Zoning compliance ****Many of the homes in the Queen City Park neighborhood are eligible for relief from coverage limitations under Section 3.06 of the South Burlington Land Development Regulations for pre- existing non -compliant lots which existed prior to February 28, 1974. Lots smaller than 5000 square feet in size may exceed the maximum allowed for the district up to a maximum of forty percent (40%) for buildings and sixty percent (60%) for overall coverage. Staff has further reviewed the application under Section 4.08 of the South Burlington Land Development Regulations (SBLDRs). A. Purpose: A Queen City Park District is herby formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. The proposed additions are in compliance with the purpose of the QCP Zoning District. B. Comprehensive Plan CITY OF SOUTH BURLINGTON 3 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\misc\BergerKatz misc2 doc The proposed additions are harmonious with the City's Comprehensive plan. C. Permitted Use The proposed residential additions are a permitted use in the QCP district. D. Conditional Uses The proposed project does require conditional use review per Section 4.08(G)(2) of the SBLDRs. E. Area, Density, and Dimensional Requirements ****Many of the homes in the Queen City Park neighborhood are eligible for relief from setbacks and coverages under Section 3.06 of the South Burlington Land Development Regulations for pre-existing non -compliant lots which existed prior to February 28, 1974. Lots smaller than 5000 square feet in size may exceed the maximum allowed for the district up to a maximum of forty percent (40%) for buildings and sixty percent (60%) for overall coverage. F. Height of Structures The maximum height for all structures shall be no more than twenty-five feet above the average pre -construction grade adjoining such structure. The existing and proposed height of the roof is less than 25 feet to the midpoint of the eave. This is within the limitation for the district. G. Non -Complying Structures Structures in the Queen City Park District are not subject to all provisions of Article 3, non- complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer, or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. As the cost and square footage of the building will be increased beyond these limits, Section 4.08(G)(2) applies: (2) The Development Review Board may approve any alteration which exceeds the thirty- five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint, or square footage subject to the provisions of Article 14, Conditional Use Review. Staff has evaluated compliance with the criteria in the section of this report titled 'Conditional Use Review' below. } CITY OF SOUTH BURLINGTON 4 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\misc\BergerKatz misc2 doc (3) In addition to the provisions set forth above, the DRB shall determine that the proposed alteration or expansion will not adversely affect: a. Views of adjoining and/or nearby properties; b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking. Subsection 'a' and 'b' above are difficult for staff alone to assess as they are unique in the Land Development Regulations in that they are to be evaluated from the perspective of an abutting property owner and not necessarily from a public right of way. The proposed second story addition in the rear is proposed to be located only five feet from the northern property line, where the abutting property also appears to be very close to the property line. The distance between these two structures appears to be very minimal. As such, the subject property, given the proximity to the adjoining home and its location, appears to have the potential to block southern solar exposure. Still, Staff is not best qualified to address this without trespassing on private property. As such, Staff urges that the Board carefully consider testimony from adjoining property owners and carefully consider such testimony with respect to the proposal's compliance with criteria 'a' and 'b' above. The owner of the property immediately to the south provided testimony and photographs to the Board at the hearing on May 4, 2010 (written documents attached; verbal testimony will be documented in meeting minutes). The Board voiced their general agreement that the proposed additions would violate sections 'a' and 'b' above. An informal poll of the Board found one member expressing desire for a site visit; other members did not feel that it would be necessary. The applicant has since submitted additional information via Staff that they wish for the Board to review (attached as letter dated May 11 from the applicants and as Word document with photographs 1-5). Staff finds that the subject property has adequate on -site parking. The Board did not express any concern that this criterion was being met. CONDITIONAL USE CRITERIA Pursuant to Section 14.10(E) of the Land Development Regulations the proposed conditional use shall meet the following standards: 1. The proposed use, in its location and operation, shall be consistent with the planned character of the area as defined by the City of South Burlington Comprehensive Plan. Staff does not feel that the proposed additions are in conflict with the planned character of the area, as defined by the Comprehensive Plan. 2. The proposed use shall conform to the stated purpose of the district in which the proposed use is located. According to Section 4.08(A) of the Land Development Regulations, the QCP Zoning District is formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also CITY OF SOUTH BURLINGTON 5 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\misc\BergerKatz misc2 doc encourages the conversation of seasonal homes to year round residences. Again, the proposed additions are in compliance with the proposed purpose of the district which related to smaller lots and lesser setbacks than other residential districts. 3. The Development Review Board must find that the proposed uses will not adversely affect the following: (a) The capacity of existing or planned municipal or educational facilities. The proposed additions will not adversely affect municipal services. (b) The essential character of the neighborhood or district in which the property is located, nor ability to develop adjacent property for appropriate uses. Staff does not feel that the proposed additions adversely affect the character of the neighborhood. The QCP district is historically a very dense neighborhood. The proposed addition is to the rear of the property and will be largely unseen. Again, the Board should consider testimony from the adjacent property owners with respect to any impact on access to sunlight which could result from the proposed addition. (c) Traffic on roads and highways in the vicinity. The proposed additions will not affect traffic in the vicinity. (d) Bylaws in effect. The proposed additions adhere to the applicable regulations in all instances except for consideration of the existing structure as a pre-existing non -conforming structure. (e) Utilization of renewable energy resources. The proposed additions have the potential to adversely impact the abutting property owner's access to solar energy, as stated previously in this report. The Board should discuss the application with respect to this criterion. (fl General public health and welfare. Staff does not believe that the proposed additions will not have an adverse affect on general public welfare. Respectfully submitted, Cathyan La —Rose, AICP, Associate Planner Copy to: Claudia Berger and Sheldon Katz, Applicants 1 DRB review of 54 Central Avenue zoning request.. Comments from Bruce and Janet Alvarez, owners/residents of 52 Central Ave Arguments against granting applicants' request: 1) The houses are just over 8 feet apart at the rear and 9.5 feet at the front. As such, a two story addition at the back of 54 Central will substantially reduce the number of hours of direct sunlight on the SE side of 52 Central during the fall, winter and spring months. 2) The legal setback is 5 feet. The north side of 54 Central is substantially less than that, especially in the rear. 3) Construction of an addition replacing the rear deck will necessitate removal of the maple tree on the property of 52 Central. That tree helps keep the house cool in the summer and allows us to leave the windows open when it rains so we can cool the house at night. 4) While not an award winning view, the view out the SE kitchen window (picture 1) now overlooks the deck of 54 Central to trees in the ravine. Similarly, the view from the mudroom overlooks the yard and deck of 54 Central (2 & 3). Converting the deck space to 2 stories will both block light and convert the view in pictures 1 & 3 to something similar to picture 4. This is the current view from the dining room windows that face south. 5) The current angle view (picture 5) forward from the dining room at 52 Central looks through the front porch of 54 Central to the park. The current angle view (picture 6) from the living room window on the south wall looks through the front porch of 54 Central to the lake. Enclosing the porch and adding a new will also convert the views in pictures 5, 6 & 7 to something similar to picture 4. 6) The prior owner of 54 Central was granted permission by the city to build the rear deck. They claimed a 7-foot side setback with no survey data and the city did not require any proof of the claim. The actual setback is 33" or less depending on whether the 1994 or 2004 pin is used (see next page). 7) We do not feel that parts of non -conforming structure built with inaccurate information should be grandfathered for the purpose of extending the structure either vertically or horizontally. This is particularly true of the north side of 54 Central as it is substantially in violation of required setbacks that are already quite small in the Queen City Park neighborhood. We also have a general concern, potentially already handled by the applicants with their contractor. The grade of the property at 54 Central originally dropped off into the ravine less than 5 feet behind the foundation. The existing deck and the entire back yard is built on fill. As the prior owner had no intention of building anything other than the deck, there was no effort made to insure it was stable enough to support a 2-story structure. It may not be a problem be we feel it is important that the applicants are aware of the substrate on which they plan to build. 54 Central north side setbacks: Actual Claimed: Rear of deck: < 33" 38.4" Rear of house: 34" Front of house: 38.5" Front of porch: 40.5" 54" Pertinent points regarding the lot line: 1) There are 2 pins in the rear. The first was put in by Bill Robenstein — 1994. We had the entire lot surveyed, pins put in all 5 marks — 2 rear, 3 front before installing the front and rear fences with the express purpose of NOT building outside our lot lines. 2) The pin put in by Warren Robenstein in 2004 is 7 inches south of the 1994 pin 3) Actual measurements above were from the 1994 pin, granting the applicants the most favorable lot line. If the proper placement of the rear pin is determined to be the 2004 survey, subtract 7" from the above actual measurements. The pins in the front of 52 Central were removed during excavation for the new fire hydrant line several years ago. I contacted the city to have them replaced. They said it was the contractor's responsibility. The contractor said that they didn't know the pins were there and, in short, "too bad", they would not resurvey. However, I had made a detailed drawing with lines to 3 points of the house for each survey marker when Bill Robenstein originally installed them. Figure 1 Location of front lot survey markers 4) I marked (2/14/2010) the point of the SW pin to calculate the Actual setback values above. 5) The rear fence at 52 Central was intentionally set inside the lot line. 6) The front fence is also intentionally set inside the lot line, however due to a miscalculation in sizing the 3 panels, it is —1 foot north of the -` intended position. 7) The measurements are exclusive of roof overhangs. Claudia Berger and Sheldon M. Katz 54 Central Avenue South Burlington, VT 05403 802-658-3723 May 11, 2010 BY ELECTRONIC MAIL (rbelair(%sburl.com and claroseLa)sburl.com) Development Review Board c/o Ray Belair and Cathyann LaRose 575 Dorset St. S. Burlington, VT 05403 Re: 54 Central Avenue: Development Review Application Dear Sirs or Madames: We are writing to request reconsideration of your preliminary thoughts in connection with our development review application. Reconsideration of those thoughts is necessary and appropriate because, as we explain below, the opposition and evidence presented against the application during the May 4, 2010 meeting amounted to unfair surprise. Further, the attached photographs demonstrate that the impact on light and views of the proposed improvements was greatly overstated. A couple of weeks before the May 4, 2010 meeting, we approached our neighbors, Janet and Bruce Alvarez, to tell them that we had changed the original application. The original application called for the proposed improvements to be built on our home's existing footprint. The Alvarezes had objected to the original proposal because it called for improvements to the existing footprint that are within five feet of the property boundary. The revised application, as we explained to Janet Alvarez a couple weeks before the May 4, 2010 meeting, backed away the improvements to not less than five feet from the boundary. When we explained this to Janet Alvarez, she expressed her pleasure with the change and her appreciation. Given Janet Alvarez's approval and gratitude for the revision, we reasonably thought that pulling back from the boundary had satisfied whatever objections the Alvarezes had to the proposed improvements. In these circumstances, Bruce Alvarez's appearance at the May 4, 2010 meeting and opposition to our application at that time amounted to unfair surprise. Further, at the meeting, Bruce Alvarez presented photographs purporting to show the impact of our modest proposal. These photographs were taken months before the May 4, 2010 meeting, yet the Alvarezes never showed them to us and we did not see them until after he showed them to the Board. The photographs exacerbated the unfair surprise. Had we known about the Alvarezes' opposition and the photographs, we could have presented our own evidence demonstrating the misleading character of the Alvarezes' photographs. Development Review Board Letter of May 11, 2010 Moreover, the Alvarezes' photographs were taken from inside their home. We were never invited inside their home to see for ourselves how the photographs were taken and to evaluate their opposition to the proposed improvements. In these circumstances, we were in no position at the May 4, 2010 meeting to contest the authenticity or relevance of the photographs. Now that we are aware that the Alvarezes oppose our revised application and that they intend to use photographs taken inside their home without any prior notice to us, we respectfully request the Board to consider the attached photographs as well. At a minimum, these photographs provide sufficient reason for the Board members to conduct a site visit prior to issuing a final ruling on the application. The attached photographs support affirmation of the application, and a site visit will confirm that conclusion. Photograph # 1 portrays the rear window on the east side of the Alvarezes' home.' In the photograph, the end of our existing deck lattice wall is shown on the left and the Alvarezes' maple tree is shown on the right. Photograph ## 1 a, 1 b, and 1 c show some of the southern and eastern light and views accessible through the Alvarezes' rear window. These photographs show that the light and these views will be completely unaffected by the proposed improvements. The photographs submitted by the Alvarezes did not, as far as we can tell, include light and views accessible from this window. Photograph 2 shows a window on the side of the Alvarezes' home facing our home. This window is the third most westerly window on that side of their home. The northwestern post of our front porch is shown to the right of the window. Photograph ## 2a, 2b, and 2c show the southern and western light and views accessible through that window. These photographs show that even with the proposed improvements, the window is exposed to abundant light as well as southwestern views and views of Lake Champlain. In fact, the light and views may even be enhanced given that the proposed improvements will be further from the boundary than the existing front deck. Photograph 3 shows two second -story windows on the western side of the Alvarezes' home. Because the windows are second -story, there was no way to photograph the light views available from these windows, but there is no current obstruction to the light and views from these windows and the proposed improvement, a one-story improvement to an existing one-story porch, will have no impact on the light and views through these windows. 1 As oriented, the two sides of the Alvarezes' home are actually slightly off a north and south axis. 2 Development Review Board Letter of May 11, 2010 Photograph 4 shows five windows (and a sixth window in the basement) on the southwest corner and west (front) side of the Alvarezes' home. The proposed improvements will again have no impact on the light and views through these windows. Photograph 5 shows a series of three windows on the east side of the Alvarezes home. The proposed improvement will again have little or no impact of the light and views through these windows from the south southeast.2 Further, given -the retraction of the improvement to not less than five feet from the line and the fact that the Alvarezes' home is elevated over our home, the views and light from the south will be little affected. Photograph 5 also shows a south -facing window to the right. The proposed improvements will again have little impact on the light and views through this window (as shown by the Alvarezes' own Picture 2). In addition, Photograph 5, taken in the afternoon, shows that the south side (facing our home) of the Alvarezes' home is drenched in sunlight. The proposed improvements will not block this sunlight. In conclusion, the proposed improvements, which will be farther away from the boundary than our home's existing footprint, will have very little impact on the Alvarezes' light and views. The proposed improvements are in keeping with the City's zoning ordinance, which recognizes that Queen City Park lots are small and that the area is densely built. Indeed, as the Board well knows, and as could be easily verified by a site visit, many houses are far closer together than the Alvarez house and ours. As the foregoing, along with attached photographs, demonstrates, there is nothing about the proposed improvements out of the ordinary in terms of height, coverage, or impact on light and views. We therefore respectively request that the Board reconsider its preliminary thoughts, based on misleading photographs which amounted to unfair surprise, and approve our application. If the Board remains unsure, a site visit would be appropriate to remove any doubts that the proposed improvements comply with the City's zoning ordinance in all regards, including impact on light and views. Thank you for your kind attention. Sincerely, /s Claudia A. Berger & Sheldon M. Katz c: Janet and Bruce Alvarez (by hand delivery) 2 The light and views from these windows are obstructed by the foliage of the Alvarezes' own maple tree, even in the winter as shown by the Alvarezes' Picture 8. Picture 1 — Kitchen Picture 3 — Mudroom Picture 2 - Mudroom Picture 4 - siding Picture 5 — Dining Angle view Picture 6 — Living room Angle view Picture 7 — From living room couch Picture 8 — Bedroom The top of the deck wall is left of center of the bottom sash. A two-story structure would block the fall, winter, spring sun several hours earlier and 75% of the view Figure 2 — 52 and 54 Central showing effect of proposed changes on both view and sunlight No Text i � ,�e��1„t �=,rr��.:1«`R,,= .,y "• •1� 1 ,b !. Y ,fad", vy_-`% ��r lySy •�y�-••'.,F-�..45, n �`�3��y }'� '' ""'•YiY'+:,•` r '"1. i a • Y!«. "fit„ • •ro Rt1 4� A . `gym` Y w S , J -",- L•', tp .:�;4� .,.fi.•,.,t ""F-bra%'•., . 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Burlington --N RIN AN Sou llibu li ngto . `J FA MD N7 Interested Persons Record and Service List Under the 2004 revisions to Chapter 117, the Development Review Board (DRB) has certain administrative obligations with respect to interested persons. At any hearing, there must be an opportunity for each person wishing to achieve interested person status to demonstrate compliance with the applicable criteria. 24 V.S.A. § 4461(b). The DRB must keep a written record of the name, address and participation of each person who has sought interested person status. 24 V.S.A. § 4461(b). A copy of any decision rendered by the DRB must be mailed to every person or body appearing and having been heard by the DRB. 24 V.S.A. § 4461(b)(3). Upon receipt of notice of an appeal to the environmental court, the DRB must supply a list of interested persons to the appellant in five working ( king dayts.. 24 V.S.A0. §§ 4471(c). IV HEARING DATE; A �l%. � / n PLEASE PRINT CLEARLY! NAME MAILING ADDRESS PROJECT OF INTEREST 4j L Y, .f &C6_141W62 J�� CA L C2 // c� C>hri S �i�g h7 0-� r RQ-re �r\� �-C'� 1�.5 c � �- L t' w e � � 2u K, �w•!� �, f.1 (a„�,U � !! i � G�" 1 I&M, Interested Persons Record and Service List southt�gy#ngt€ n Yf RM 9 NT Under the 2004 revisions to Chapter 117, the Development Review Board (DRB) has certain administrative obligations with respect to interested persons. At any hearing, there must be an opportunity for each person wishing to achieve interested person status to demonstrate compliance with the applicable criteria. 24 V.S.A. § 4461(b). The DRB must keep a written record of the name, address and participation of each person who has sought interested person status. 24 V.S.A. § 4461(b). A copy of any decision rendered by the DRB must be mailed to every person or body appearing and having been heard by the DRB. 24 V.S.A. § 4461(b)(3). Upon receipt of notice of an appeal to the environmental court, the DRB must supply a list of interested persons to the appellant in five working days. 24 V.S.A. § 4471(c). HEARING DATE: PLEASE PRINT CLEARLY! NAME MAILING ADDRESS PROJECT OF INTEREST Sotra,h 1 2 os -F-ttInn PNe . � li h 4 _ Uri k-0. C 1U L., lva'�-c -z— Ce 2 2 Z �v�i C� % a Z ZZ 0 7 /fit SC C �" g �G I &s �� .SO 9vr l V r 0 s YC3 UVX, o -7'�-4' rvad ,• � Interested Persons Record and Service List southburfin ton `J E N M 04T Under the 2004 revisions to Chapter 117, the Development Review Board (DRB) has certain administrative obligations with respect to interested persons. At any hearing, there must be an opportunity for each person wishing to achielve interested person status to demonstrate compliance with the applicable criteria. 24 V.S.A. § 4461(b). The DRB must keep a written record of the name, address and participation of each person who has sought interested person status. 24 V.S.A. § 4461(b). A copy of any decision rendered by the DRB must be mailed to every person or body appearing and having been heard by the DRB. 24 V.S.A. § 4461(b)(3). Upon receipt of notice of an appeal to the environmental court, the DRB must supply a list of interested persons to the appellant in five working days. 24 V.S.A. § 4471(c). HEARING DATE: PLEASE PRINT CLEARLY, 1/, 21Z/ Z5 NAME MAILING ADDRESS PROJECT OF INTEREST Ole% C.GcGJLt)O� C— �, �iv/&,t- LV -J, (,17— 141.R f-; I I Mom ALJI Z-ARI ..w - VAN "mom .440 , wscj� , No Text f . I - , '7---, s 7,pw DRB review of 54 Central Avenue zoning request.. Comments from Bruce and Janet Alvarez, owners/residents of 52 Central Ave Arguments against granting applicants' request: 1) The houses are just over 8 feet apart at the rear and 9.5 feet at the front. As such, a two story addition at the back of 54 Central will substantially reduce the number of hours of direct sunlight on the SE side of 52 Central during the fall, winter and spring months. 2) The legal setback is 5 feet. The north side of 54 Central is substantially less than that, especially in the rear. 3) Construction of an addition replacing the rear deck will necessitate removal of the maple tree on the property of 52 Central. That tree helps keep the house cool in the summer and allows us to leave the windows open when it rains so we can cool the house at night. 4) While not an award winning view, the view out the SE kitchen window (picture 1) now overlooks the deck of 54 Central to trees in the ravine. Similarly, the view from the mudroom overlooks the yard and deck of 54 Central (2 & 3). Converting the deck space to 2 stories will both block light and convert the view in pictures 1 & 3 to something similar to picture 4. This is the current view from the dining room windows that face south. 5) The current angle view (picture 5) forward from the dining room at 52 Central looks through the front porch of 54 Central to the park. The current angle view (picture 6) from the living room window on the south wall looks through the front porch of 54 Central to the lake. Enclosing the porch and adding a new will also convert the views in pictures 5, 6 & 7 to something similar to picture 4. 6) The prior owner of 54 Central was granted permission by the city to build the rear deck. They claimed a 7-foot side setback with no survey data and the city did not require any proof of the claim. The actual setback is 33" or less depending on whether the 1994 or 2004 pin is used (see next page). 7) We do not feel that parts of non -conforming structure built with inaccurate information should be grandfathered for the purpose of extending the structure either vertically or horizontally. This is particularly true of the north side of 54 Central as it is substantially in violation of required setbacks that are already quite small in the Queen City Park neighborhood. We also have a general concern, potentially already handled by the applicants with their contractor. The grade of the property at 54 Central originally dropped off into the ravine less than 5 feet behind the foundation. The existing deck and the entire back yard is built on fill. As the prior owner had no intention of building anything other than the deck, there was no effort made to insure it was stable enough to support a 2-story structure. It may not be a problem be we feel it is important that the applicants are aware of the substrate on which they plan to build. 54 Central north side setbacks: Actual Claimed: Rear of deck: < 33" 38.4" Rear of house: 34" Front of house: 38.5" Front of porch: 40.5" 54" Pertinent points regarding the lot line: 1) There are 2 pins in the rear. The first was put in by Bill Robenstein — 1994. We had the entire lot surveyed, pins put in all 5 marks — 2 rear, 3 front before installing the front and rear fences with the express purpose of NOT building outside our lot lines. 2) The pin put in by Warren Robenstein in 2004 is 7 inches south of the 1994 pin 3) Actual measurements above were from the 1994 pin, granting the applicants the most favorable lot line. If the proper placement of the rear pin is determined to be the 2004 survey, subtract 7" from the above actual measurements. The pins in the front of 52 Central were removed during excavation for the new fire hydrant line several years ago. I contacted the city to have them replaced. They said it was the contractor's responsibility. The contractor said that they didn't know the pins were there and, in short, "too bad", they would not resurvey. However, I had made a detailed drawing with lines to 3 points of the house for each survey marker when Bill Robenstein originally installed them. Figure 1 Location of front lot survey markers 4) I marked (2/14/2010) the point of the SW pin to calculate the Actual setback values above. 5) The rear fence at 52 Central was intentionally set inside the lot line. 6) The front fence is also intentionally set inside the lot line, however due to a miscalculation in sizing the 3 panels, it is —1 foot north of the intended position. 7) The measurements are exclusive of roof overhangs. v PEIM SOON wow r Picture 5 — Dining Angle view Picture 6 — Living room Angle view Picture 7 — From living room couch Picture 8 — Bedroom The top of the deck wall is left of center of the bottom sash. A two-story structure would block the fall, winter, spring sun several hours earlier and 75% of the view r !. tw.�— vca A"m -.«w Figure 2 — 52 and 54 Central showing effect of proposed changes on both view and sunlight DEVELOPMENT REVIEW BOARD 4 MAY 2010 PAGE 2 Mr. Dinklage said the decision will extend the deadline until July of this year. Mr. Lesser -Goldsmith said the work is being done by a local Vermont artist and will be anchored to the masonry of the building. No issues were raised. Ms. Quimby moved to approve Design Review Application #DR-10-02 of Healthy Living subject to the conditions in the approval motion. Mr. Farley seconded. Motion passed unanimously. 5. Preliminary & Final Application #SD-10-13 of the University of Vermont for a planned unit development to construct a 275' x 600' track (only a portion of which is located in South Burlington), 147 Spear Street: Ms. Ravin said this was previously approved. There is a small change in Burlington but nothing in South Burlington. Mr. Dinklage suggested submitting the plans to the South Burlington Fire Department for their information in case they have to back up Burlington. Mr. Belair said staff had no issues. Ms. Quimby moved to approve Preliminary and Final Plat Application #SD-10-13 of the University of Vermont subject to the stipulations in the draft motion. Mr. Farley seconded. Motion passed unanimously. 6. Miscellaneous Application #MS-10-04 of Claudio Berger & Sheldon Katz for approval to expand a non -complying single family dwelling by: 1) enclosing existing front porch, 2) constructing 6' x10' covered front porch, 3) converting rear deck to 2-story addition, 4) adding 8' x 12.5' screened -in rear deck, and 5) adding two shed dormers, 54 Central Avenue: Mr. Katz said they have lived in the house 10 years and need to expand and renovate. He said they are actually withdrawing the footprint. They will comply with the setback by cutting back the front porch and deck. Mr. Dinklage said it is up to the Board to determine that the proposed additions will not block views or sunlight from neighboring homes. Mr. Alvarez, a neighbor, gave members his written comments. He indicated that the proposed 2- story structure would block the fall, winter and spring sun and 75% of his view. The proposed deck would also destroy a tree on his property. DEVELOPMENT REVIEW BOARD 4 MAY 2010 PAGE 3 proposed 2-story structure would block the fall, winter and spring sun and 75% of his view. The proposed deck would also destroy a tree on his property. Ms. Berger said part of the tree is on their property, and if they cut down that part of it, the tree will die. Mr. Katz said the City Arborist told him that it would have to come down in 5 years regardless. Mr. Alvarez noted that a tree in front of the Katz/Berger house overhangs his property. He also noted that there are 2 survey pins in the back yard which are 7 inches apart. One was placed when Mr. Alvarez had a survey done and one when the applicants had a survey. Mr. Katz said he took issue with Mr. Alvarez's claim that his views will be blocked. Mr. Alvarez said that from every window on the south side of his home, he will see nothing but the siding on the applicants' house. Mr. Katz said the character of Queen City Park houses is that they are very close together, almost on top of each other. Mr. Alvarez said that means you should make every effort not to encroach in any way on your neighbors. Mr. Knudsen suggested a site visit. Mr. Belair said that would have to be warned. Mr. Knudsen said that is the only way to make a finding re: views and sunlight. Mr. Dinklage said he couldn't support the application as proposed. He had no objection to a site visit. Mr. Stuono and Mr. Behr agreed. Mr. Belair suggested continuing the application so a new decision could be drawn up. Mr. Katz said he felt that the Alvarez objection is based on "peek." Ms. Quimby moved to continue Miscellaneous Application #MS-10-04 until 18 May 2010. Mr. Farley seconded. Motion passed unanimously. 7. Sketch Plan Application #SD-10-14 of Donald G. Winnett & Gloria Davis for a planned unit development to subdivide a 12,100 sq. ft. lot developed with a two-family dwelling into two footprint lots of 1,190 sq. ft. each and a 9,270 sq. ft. remaining lot, 12-14 Wright Court: Mr. Henson said the owners want to sell the 2 units of the duplex individually. Open space will be owned by an association of the two owners. Mr. Belair said staff has no objections. Ms. LaRose reminded the applicant that for planning purposes these will not be recognized as separate lots. Mr. Henson noted that banks will no longer finance condominiums unless there are footprint lots, and insurers will not insure them. 8. Continued Final Plat Application #SD-10-10 of Wedgewood Development f f CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING DEVELOPMENT REVIEW BOARD Report preparation date: April 28, 2010 drb\misc\Berger_Katz\BergerKatz_misc.doc Application received: April 12, 2010 54 Central Avenue Miscellaneous Application #MS-10-04 Meeting date: May 4, 2010 Agenda # 6 Applicants/Owners Property Information Claudia Berger & Sheldon Katz Tax Parcel ID 0330-00054 54 Central Avenue Queen City Park (QCP) District South Burlington, VT 05403 Parcel Size: 4350 SF Location Map CITY OF SOUTH BURLINGTON 2 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\misc\BergerKatz misc.doc Claudia Berger and Sheldon Katz, hereafter referred to as the applicants, are seeking approval to expand a non -complying single family dwelling by: 1) enclosing existing front porch, 2) constructing 6' x 10' covered front porch, 3) converting rear deck to 2-story addition, 4) adding 8'x12.5' screened in rear deck, and 5) adding two (2) shed dormers, 54 Central Avenue. Associate Planner Cathyann LaRose and Administrative Officer Ray Belair have reviewed the plans submitted on April 12, 2010 and have the following comments. Zoning District & Dimensional Requirements: QCP Zoning District Required Proposed w► Min. Lot Size 7500 S.F. 4350 S.F Max. Building Coverage**** 40% 34% Max. Overall Coverage***** 60% 47% Min. Front Setback loft 19 ft Min. Side Setback 5 ft. Approx 5 ft. .6 Min. Rear Setback 10 ft. Approx 30 ft. 4 Max. Building Hei ht 25 ft. <25 ft w► Pre-existing non-compliance; will be reviewed under SBLDR section 4.08 (G) Zoning compliance ****Many of the homes in the Queen City Park neighborhood are eligible for relief from coverage limitations under Section 3.06 of the South Burlington Land Development Regulations for pre- existing non -compliant lots which existed prior to February 28, 1974. Lots smaller than 5000 square feet in size may exceed the maximum allowed for the district up to a maximum of forty percent (40%) for buildings and sixty percent (60%) for overall coverage. Staff has further reviewed the application under Section 4.08 of the South Burlington Land Development Regulations (SBLDRs). A. Purpose: A Queen City Park District is herby formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. The proposed additions are in compliance with the purpose of the QCP Zoning District. B. Comprehensive Plan The proposed additions are harmonious with the City's Comprehensive plan. CITY OF SOUTH BURLINGTON 3 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\misc\BergerKatz misc.doc C. Permitted Use The proposed residential additions are a permitted use in the QCP district. D. Conditional Uses The proposed project does require conditional use review per Section 4.08(G)(2) of the SBLDRs. E. Area, Density, and Dimensional Requirements ****Many of the homes in the Queen City Park neighborhood are eligible for relief from setbacks and coverages under Section 3.06 of the South Burlington Land Development Regulations for pre-existing non -compliant lots which existed prior to February 28, 1974. Lots smaller than 5000 square feet in size may exceed the maximum allowed for the district up to a maximum of forty percent (40%) for buildings and sixty percent (60%) for overall coverage. F. Height of Structures The maximum height for all structures shall be no more than twenty-five feet above the average pre -construction grade adjoining such structure. The existing and proposed height of the roof is less than 25 feet to the midpoint of the eave. This is within the limitation for the district. G. Non -Complying Structures Structures in the Queen City Park District are not subject to all provisions of Article 3, non- complying structures shall be subject to the following requirements and restrictions: (1) Any non -complying building or structure may be altered provided such work does not: a. Exceed in aggregate cost thirty-five percent for residential properties and twenty five percent for non-residential properties of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Administrative Officer; or b. Involve an increase to the structures height or footprint, or otherwise involve an increase to the square footage of the building or structure. As the cost and square footage of the building will be increased beyond these limits, Section 4.08(G)(2) applies: (2) The Development Review Board may approve any alteration which exceeds the thirty- five and twenty-five percent rule described above or which involves an increase to the structure's height, footprint, or square footage subject to the provisions of Article 14, Conditional Use Review. Staff has evaluated compliance with the criteria in the section of this report titled 'Conditional Use Review' below. (3) In addition to the provisions set forth above, the DRB shall determine that the proposed CITY OF SOUTH BURLINGTON 4 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\misc\BergerKatz misc.doc alteration or expansion will not adversely affect: a. Views of adjoining and/or nearby properties; b. Access to sunlight of adjoining and/or nearby properties; and c. Adequate on -site parking. Subsection 'a' and 'b' above are difficult for staff alone to assess as they are unique in the Land Development Regulations in that they are to be evaluated from the perspective of an abutting property owner and not necessarily from a public right of way. The proposed second story addition in the rear is proposed to be located only five feet from the northern property line, where the abutting property also appears to be very close to the property line. The distance between these two structures appears to be very minimal. As such, the subject property, given the proximity to the adjoining home and its location, appears to have the potential to block southern solar exposure. Still, Staff is not best qualified to answer this without trespassing on private property. The Board should solicit testimony from adjoining property owners and carefully consider such testimony with respect to the proposal's compliance with criterion 'a' and 'b' above. In the event of any disagreement or confusion, a shadow study may be appropriate. Staff finds that the subject property has adequate on -site parking. CONDITIONAL USE CRITERIA Pursuant to Section 14.10(E) of the Land Development Regulations, the proposed conditional use shall meet the following standards: 1. The proposed use, in its location and operation, shall be consistent with the planned character of the area as defined by the City of South Burlington Comprehensive Plan. Staff does not feel that the proposed additions are in conflict with the planned character of the area, as defined by the Comprehensive Plan. 2. The proposed use shall conform to the stated purpose of the district in which the proposed use is located. According to Section 4.08(A) of the Land Development Regulations, the QCP Zoning District is formed in order to encourage residential use at densities and setbacks that are compatible with the existing character of the Queen City Park neighborhood. It is designed to promote the area's historic development pattern of smaller lots and reduced setbacks. This district also encourages the conversation of seasonal homes to year round residences. Again, the proposed additions are in compliance with the proposed purpose of the district which related to smaller lots and lesser setbacks than other residential districts. 3. The Development Review Board must find that the proposed uses will not adversely affect the following: (a) The capacity of existing or planned municipal or educational facilities. The proposed additions will not adversely affect municipal services. CITY OF SOUTH BURLINGTON 5 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\misc\BergerKatz misc.doc (b) The essential character of the neighborhood or district in which the property is located, nor ability to develop adjacent property for appropriate uses. Staff does not feel that the proposed additions adversely affect the character of the neighborhood. The QCP district is historically a very dense neighborhood. The proposed addition is to the rear of the property and will be largely unseen. Again, the Board should consider testimony from the adjacent property owners with respect to any impact on access to sunlight which could result from the proposed addition. (c) Traffic on roads and highways in the vicinity. The proposed additions will not affect traffic in the vicinity. (d) Bylaws in effect. The proposed additions adhere to the applicable regulations in all instances except for consideration of the existing structure as a pre-existing non -conforming structure. (e) Utilization of renewable energy resources. The proposed additions will not affect renewable energy resources. (t) General public health and welfare. The proposed additions will not have an adverse affect on general public welfare. Respectfully submitted, cathya66 LaRose, AICP, Associate Planner Copy to: Claudia Berger and Sheldon Katz, Applicants DRB review of 54 Central Avenue zoning request.. Comments from Bruce and Janet Alvarez, owners/residents of 52 Central Ave Arguments against granting applicants' request: 1) The houses are just over 8 feet apart at the rear and 9.5 feet at the front. As such, a two story addition at the back of 54 Central will substantially reduce the number of hours of direct sunlight on the SE side of 52 Central during the fall, winter and spring months. 2) The legal setback is 5 feet. The north side of 54 Central is substantially less than that, especially in the rear. 3) Construction of an addition replacing the rear deck will necessitate removal of the maple tree on the property of 52 Central. That tree helps keep the house cool in the summer and allows us to leave the windows open when it rains so we can cool the house at night. 4) While not an award winning view, the view out the SE kitchen window (picture 1) now overlooks the deck of 54 Central to trees in the ravine. Similarly, the view from the mudroom overlooks the yard and deck of 54 Central (2 & 3). Converting the deck space to 2 stories will both block light and convert the view in pictures 1 & 3 to something similar to picture 4. This is the current view from the dining room windows that face south. 5) The current angle view (picture 5) forward from the dining room at 52 Central looks through the front porch of 54 Central to the park. The current angle view (picture 6) from the living room window on the south wall looks through the front porch of 54 Central to the lake. Enclosing the porch and adding a new will also convert the views in pictures 5, 6 & 7 to something similar to picture 4. 6) The prior owner of 54 Central was granted permission by the city to build the rear deck. They claimed a 7-foot side setback with no survey data and the city did not require any proof of the claim. The actual setback is 33" or less depending on whether the 1994 or 2004 pin is used (see next page). 7) We do not feel that parts of non -conforming structure built with inaccurate information should be grandfathered for the purpose of extending the structure either vertically or horizontally. This is particularly true of the north side of 54 Central as it is substantially in violation of required setbacks that are already quite small in the Queen City Park neighborhood. We also have a general concern, potentially already handled by the applicants with their contractor. The grade of the property at 54 Central originally dropped off into the ravine less than 5 feet behind the foundation. The existing deck and the entire back yard is built on fill. As the prior owner had no intention of building anything other than the deck, there was no effort made to insure it was stable enough to support a 2-story structure. It may not be a problem be we feel it is important that the applicants are aware of the substrate on which they plan to build. 54 Central north side setbacks: Actual Claimed: Rear of deck: < 33" 38.4" Rear of house: 34" Front of house: 38.5" Front of porch: 40.5" 54" Pertinent points regarding the lot line: 1) There are 2 pins in the rear. The first was put in by Bill Robenstein — 1994. We had the entire lot surveyed, pins put in all 5 marks — 2 rear, 3 front before installing the front and rear fences with the express purpose of NOT building outside our lot lines. 2) The pin put in by Warren Robenstein in 2004 is 7 inches south of the 1994 pin 3) Actual measurements above were from the 1994 pin, granting the applicants the most favorable lot line. If the proper placement of the rear pin is determined to be the 2004 survey, subtract 7" from the above actual measurements. The pins in the front of 52 Central were removed during excavation for the new fire hydrant line several years ago. I contacted the city to have them replaced. They said it was the contractor's responsibility. The contractor said that they didn't know the pins were there and, in short, "too bad", they would not resurvey. However, I had made a detailed drawing with lines to 3 points of the house for each survey marker when Bill Robenstein originally installed them. Figure 1 Location of front lot survey markers 4) I marked (2/14/2010) the point of the SW pin to calculate the Actual setback values above. 5) The rear fence at 52 Central was intentionally set inside the lot line. 6) The front fence is also intentionally set inside the lot line, however due to a miscalculation in sizing the 3 panels, it is —1 foot north of the ' intended position. L. 7) The measurements are exclusive of roof overhangs. J k l I °i: r$r$yy r?',•� ON le y ;t'riif`1 'sic+• ,.'�ii y"� J ,`AS K: Vr3„S,1 ' h� 't', � • "-.;tin w ,.n. v;M...r T ,. ------------------ . „ r s . '�,.,�, a'"ww�".,.;,.:,.,�-.�,...,x,w�+.»,.�,.r,'�+,«.>n>r��«,w:"... ..s,.�.. .,w•c,,:w�t,wM..,,... .g��........,...+«..�_.. 'N fpf ......,. s ..�, _.. � �i,.so.n+'«.+rM-.�.A��•.wenuw�M. �r,y�vn.,u�.W..,r-`�+,'.�.,n.rown.«m.,.»y....,.m. ww.u^i+»w..M.+w-.'. � f Figure 2 — 52 and 54 Central showing effect of proposed changes on both view and sunlight southburlineton PLANNING & ZONING February 4, 2010 Richard White 56 Central Avenue South Burlington, VT 05403 Re: 54 Central Avenue Dear Property Owner: On the back of this letter is a copy of the draft agenda for the February 16, 2010 South Burlington Development Review Board meeting. The agenda includes a proposal that abuts property you own. The official agenda will be posted on the City's website (www.sburl.com) by the Friday prior to the meeting. Under Title 24, Section 4464 of State law, participation in a municipal regulatory proceeding is required in order to preserve your right to appeal a local development approval to the Vermont Environmental Court. State law specifies that "Participation in a local regulatory proceeding shall consist of offering, through oral or written testimony, a statement of concern related to the subject of the proceeding." If you would like to know more about the proposed development, you may call this office at 846- 4106, stop by during regular office hours, or attend the scheduled public meeting. Sincerely, Jana Beagley Planning & Zoning Assistant Agenda on reverse of letter (reduce, reuse, recycle!) 575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburi.com I Page 1 of 1 ray From: Sheldon Katz [sheldonkatz@myfairpoint.net] Sent: Tuesday, February 16, 2010 8:54 AM To: ray Subject: ap withdrawn Sheldon M. Katz 54 Central Avenue South Burlington, VT 05403 802-658-3723 sheldonkatz@myfairpoint.net 2/16/2010 I DRB review of 54 Central Avenue zoning request.. Comments from Bruce and Janet Alvarez, owners/residents of 52 Central Ave Arguments against granting applicants' request: 1) The houses are just over 8 feet apart at the rear and 9.5 feet at the front. As such, a two story addition at the back of 54 Central will substantially reduce the number of hours of direct sunlight on the SE side of 52 Central during the fall, winter and spring months. 2) The legal setback is 5 feet. The north side of 54 Central is substantially less than that, especially in the rear. 3) Construction of an addition replacing the rear deck will necessitate removal of the maple tree on the property of 52 Central. That tree helps keep the house cool in the summer and allows us to leave the windows open when it rains so we can cool the house at night. 4) While not an award winning view, the view out the SE kitchen window (picture 1) now overlooks the deck of 54 Central to trees in the ravine. Similarly, the view from the mudroom overlooks the yard and deck of 54 Central (2 & 3). Converting the deck space to 2 stories will both block light and convert the view to something similar to picture 4. This is the current view from the dining room windows that faces south. 5) The current angle view (picture 5) forward from the dining room at 52 Central looks through the front porch of 54 Central to the park. The current angle view (picture 6) from the living room window on the south wall looks through the front porch of 54 Central to the lake. Enclosing the porch will also convert these views to something similar to picture 4. 6) The prior owner of 54 Central was granted permission by the city to build the rear deck. They claimed a 7-foot side setback with no survey data and the city did not require any proof of the claim. The actual setback is 33" or less depending on whether the 1994 or 2004 pin is used (see next page). 7) We do not feel that parts of non -conforming structure built with inaccurate information should be grandfathered for the purpose of extending the structure either vertically or horizontally. This is particularly true of the north side of 54 Central as it is substantially in violation of required setbacks that are already quite small in the Queen City Park neighborhood. We also have a general concern, potentially already handled by the applicants with their contractor. The grade of the property at 54 Central originally dropped off into the ravine less than 5 feet behind the foundation. The existing deck and the entire back yard is built on fill. As the prior owner had no intention of building anything other than the deck, there was no effort made to insure it was stable enough to support a 2-story structure. It may not be a problem be we feel it is important that the applicants are aware of the substrate on which they plan to build. 54 Central north side setbacks: Actual Claimed: Rear of deck: < 33" 38.4" Rear of house: 34" Front of house: 38.5" Front of porch: 40.5" 54" Pertinent points regarding the lot line: 1) There are 2 pins in the rear. The first was put in by Bill Robenstein — 1994. We had the entire lot surveyed, pins put in all 5 marks — 2 rear, 3 front before installing the front and rear fences with the express purpose of NOT building outside out lot lines. 2) The pin put in by Warren Robenstein in 2004 is 7 inches south of the 1994 pin 3) Actual measurements above were from the 1994 pin, granting the applicants the most favorable lot line. The pins in the front of 52 Central were removed during excavation for the new fire hydrant line several years ago. I contacted the city to have them replaced. They said it was the contractor's responsibility. The contractor said that they didn't know the pins were there and, in short, "too bad", they would not resurvey. However, I had made a detailed drawing with lines to 3 points of the house for each survey marker when Bill Robenstein originally installed them. Figure 1 Location of front lot survey markers 4) I marked (2/14/2010) the point of the SW pin to calculate the Actual setback values above. 5) The rear fence at 52 Central was intentionally set inside the lot line. 6) The front fence is also intentionally set inside the lot line, however due to a miscalculation in sizing the 3 panels, it is —1 foot north of the intended position. 7) The measurements are exclusive of roof overhangs. N�A I 'All Picture 5 — Dining Angle view Picture 6 — Living room Angle view Picture 7 — Bedroom The top of the deck wall is left of center of the bottom sash. A two- story structure would block the fall, winter, spring sun several hours earlier and 75% of the view A Figure 2 — 52 and 54 Central showing effect of proposed changes on both view and sunlight ►.IWI south r PLANNING & ZONING MEMORANDUM TO: South Burlington Development Review Board FROM: Cathyann LaRose, AICP, Associate Planned RE: Agenda #3, #MS-10-02, Claudia Berger and Sheldon Katz DATE: February 12, 2010 Claudia Berger and Sheldon Katz, hereafter referred to as the applicants, are seeking to expand a non -complying single family dwelling, 54 Central Avenue. Staff has been in communication with the applicants who are considering various options with respect to the application, including the possibility of withdrawal of the application. Staff will update the Board at the meeting on February 16tn As always, thank you for your continued patience. 575 Dorset Street South Burlington, VT 05403 fall 802.846.4106 fax 802.846.4101 www.sburi.com 0"1144 southburliu too PLANNING & ZONING February 4, 2010 Claudia Berger and Sheldon Katz 54 Central Avenue South Burlington, VT 05403 Dear Property Owner: Enclosed is the draft agenda for the February 16, 2009 South Burlington Development Review Board Meeting. It includes an application for development on your property. This is being sent to you and the abutting property owners to make aware that a public meeting is being held regarding the proposed development. The official agenda will be posted on the City's website (www.sburl.com) by the Friday prior to the meeting. Under Title 24, Section 4464 of State law, participation in a municipal regulatory proceeding is required in order to preserve your right to appeal a local development approval to the Vermont Environmental Court. State law specifies that "Participation in a local regulatory proceeding shall consist of offering, through oral or written testimony, a statement of concern related to the subject of the proceeding." If you would like to know more about the proposed development, you may call this office at 846-4106, stop by during regular office hours, or attend the scheduled public- meeting. Sincerely, Jana Beagley Planning & Zoning Assistant Encl. 575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburi.com r 1 southburlinoon PLANNING & ZONING February 4, 2010 Bruce and Janet Alvarez 52 Central Avenue South Burlington, VT 05403 Re: 54 Central Avenue Dear Property Owner: On the back of this letter is a copy of the draft agenda for the February 16, 2010 South Burlington Development Review Board meeting. The agenda includes a proposal that abuts property you own. The official agenda will be posted on the City's website (www.sburl.com) by the Friday prior to the meeting. Under Title 24, Section 4464 of State law, participation in a municipal regulatory proceeding is required in order to preserve your right to appeal a local development approval to the Vermont Environmental Court. State law specifies that "Participation in a local regulatory proceeding shall consist of offering, through oral or written testimony, a statement of concern related to the subject of the proceeding." If you would like to know more about the proposed development, you may call this office at 846- 4106, stop by during regular office hours, or attend the scheduled public meeting. Sincerely, Janany Planning & Zoning Assistant Agenda on reverse of letter (reduce, reuse, recycle!) 575 Dorset Street South Burlington, VT 05403 tel 802.846,4106 fax 802.846.4101 www.sburi.com c' `r southburlinp-ton PLANNING & ZONING February 4, 2010 Richard White 56 Central Avenue South Burlington, VT 05403 Re: 54 Central Avenue Dear Property Owner: On the back of this letter is a copy of the draft agenda for the February 16, 2010 South Burlington Development Review Board meeting. The agenda includes a proposal that abuts property you own. The official agenda will be posted on the City's website (www.sburl.com) by the Friday prior to the meeting. Under Title 24, Section 4464 of State law, participation in a municipal regulatory proceeding is required in order to preserve your right to appeal a local development approval to the Vermont Environmental Court. State law specifies that "Participation in a local regulatory proceeding shall consist of offering, through oral or written testimony, a statement of concern related to the subject of the proceeding." If you would like to know more about the proposed development, you may call this office at 846- 4106, stop by during regular office hours, or attend the scheduled public meeting. Sincerely, Jana Beagley Planning & Zoning Assistant Agenda on reverse of letter (reduce, reuse, recycle!) 575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburi.com CITY OF cnT TTT T T'T -�-- - DEPARTME Post-W Fax Note 7671 5 TO U SOUTH BL Co./Dept. Phone # Fax # Date From Co. Permit # �--Lo - D'�- APPLICATION FOR THE DEVELOPMENT REVIEW BOARD All information requested on this application must be completed,in full. Failure to provide the requested information either on this application form or on the site plan will result in your application being rejected and a delay in the review before the Development Review Board. I understand the presentation procedures required by State Law (Section 4468 of the Planning & Development Act). Also that hearings are held twice a month. That a legal advertisement must appear a minimum of fifteen (15) days prior to the hearing. I agree to pay a hearing fee which is to off -set the cost of the hearing. Type of application (check one): ( ) Appeal from decision of the Administrative Officer (includes appeals from Notice of Violation ( ) Request for a conditional use ( ) Request for a variance (Other, PROVISION OF ZONING ORDINANCE IN QUESTION (IF ANY): WHAT ACTION OF THE ADMINISTRATIVE OFFICER ARE YOU APPEALING ? 1) OWNER OF RECORD (Name as shown on de mailing address, phone & fax #): Clt).v-o1a lere'er C"d Zi-:L , Sq (-,n-lr-i %r4en�e 2) LOCATION OF LAST RECORDED DEED (book & page #) �3 3) APPLICANT (name, mailing address, phone and fax #) 4) CONTACT PERSON (person who will receive staff correspondence. Include name, mailing address, phone & fax # if different from above)- 5) PROJECT STREET ADDRESS:c�rnC-' 6) TAX PARCEL ID #: 7) PROJECT DESCRIPTION A. Existing Uses on Property (including description and size of each separate use): e 5, C e n4- i Q i I e wc.k' = B. Proposed Uses on Property (include description and size of each new use and existing uses to remain): .,I c �c. err' e C. Total building square footage on property (proposed buildings & existing building to remain): LY;5+f ��� i�o a=?7. 5 " ILq plea = IL6 D. Height of building & number of floors (proposed buildings and existing buil�din s t emain, specify if basement & mefzanrI nl�e): 1 -1 ` 1 ►WO r�D4( S ems- � 5(00_i �rabave t�N� Rear 2 (`a6aie E. Number of residential Units (if applicable, new units & existing unfits to . r r��sj��•�� remain): I F. Number of employees & company vehicles (existing & proposed, note office vs. non -office employees): n ]a G. Other (list any other information pertinent to this application not specifically requested above, please note if overlay districts are applicable): IQ 8) LOT COVERAGE A. Total parcel size: 1" 1350 Sq. Ft. B. Buildings: Existing t�,€ `1 % Sq. Ft Proposed % / Sq. Ft. C. Overall impervious coverage (building, parking, outside storage, etc) Existing QVS % / a"', Sq. Ft. Proposed 9:) %/ 2-0HZ_Cj Sq. Ft. D. Total area to be disturbed during construction: 156 Sq. Ft. * Projects disturbing more than one-half acre of land must follow the City's specifications for erosion control in Article 16 of the Land Development Regulations. Projects disturbing more than one acre require a permit from the Vermont Department of Environmental Conservation. 9) COST ESTIMATES A. Building (including interior renovations): $ B. Landscaping $� C. Other site improvements (please list with cost): 10) ESTIMATED TRAFFIC: A. Average daily traffic for entire property (in and out): rn] c-, B. A. M. Peak hour for entire property (in and out): 1\ C C_ C. P.M. Peak hour for entire property (in and out): = �� 11) PEAK HOURS OF OPERATION n I c, 12) PEAK DAYS OF OPERATION n �� 13) ESTIMATED PROJECT COMPLETION DATE 0c:(, 14) LIST ABUTTING PROPERTY OWNERS: (list names and address of all abutting property owners, including those across any street or right-of-way. You may use a separate sheet of paper if necessary): V11," i c r I hereby certify that all the information requested as part of this application has been submitted and is accurate to the best of my knowledge. A. �."a' SIGNATURE OF AFk FLICANT SIGNATURE OF PROP TY OWNER Do not write below this line DATE OF SUBMISSION: 1 REVIEW AUTHORITY: Development Review Board ❑ Director, Planning & Zoning I have revi "d this application and find it to be: E 6 EXHIBIT A SITE PLAN The following information must be shown on the plans. Please submit five (5) copies and one reduced copy (11" x 17") of the plan. Failure to provide the following information will result in your application being rejected and a delay in the review before the Development Review Board. o Lot drawn to scale (20 feet scale if possible). o Survey data (distance and acreage). o Contours (existing and finished). o Proposed landscaping schedule (number, variety, and size) as required in Section 13.06(G) of the Land Development Regulations. o Location of streets, abutting properties, fire hydrants, existing buildings, existing landscaping. o Existing and proposed curb cuts, pavement, walkways. o Zoning boundaries. o Number and location of parking spaces (as required under Section 13.01(b) of the Land Development Regulations). o Number and location of handicapped spaces (as required under Section 13.01(I) of the Land Development Regulations). o Location of septic tanks (if applicable). o Location of any easements. o Lot coverage information: Building footprint, total lot, and front yard. o North arrow. o Name of person or firm preparing site plan and date. o Exterior lighting details (cut sheets). All lights should be down casting and shielded. o Dumpster locations (dumpsters must be screened). o Bicycle rack as required under Section 13.01(G)(5) of the Land Development Regulations. o If restaurant is proposed, provide number of seats and square footage of floor area provided for patron use but not containing fixed seats. APPLICATION FEE ❑ Appeal of Administrative Officer $ 111.00* ❑ Conditional Use $ 136.00* 21�Aiscellaneous $ 86.00* ❑ Variance $ 136.00* *includes $11.00 recording fee " i , Lam{- `� ram. „� �, C '' � � p -�"..� , vel i-,T- q(-( (lbo, q3 rem r A el �c Vn N-,-keJ ae) oo 5 (f A1JGre-?, <' 00 C �n C, .y �or Nf'O 60 EX CST I W6- 1 � Ig' V Q� QoR� N 0 \ ! 5crA c j' fawn 4oa(A = 2C! I 6' I Z. titvj ScP Qc" ?goEVJO t 6.s' Vol. 259 Page 522. r.-.-..�-T..,m,.m....-.-^..,.-�..rn.+.n'm'•--•Mrvn+c.r-.-Tr T;•:rrn.--�..mr+,..'-�...,.�-,mi++m'. _.. _���mssr•^a,;^++.nav "..... FORM 903 VERMON'T ADMINISTRAT( )EEO T 'y.� ,wr, ,L■// M5 ^ . I •7'7 11Tl LI( s�` ` 4 v rricC lc�rylJj �„�. L.ANr� oO C, 0 III t0 fl'�'IIUpI tljw, lt)--nity (1-010t JAMES W. GIROUARD, SR. Ldmini.strator of the ('oods, ('hultels and Estate of Ruth Girouard , late of South Burlington in the County of Chittenden and State o/' 1'ennont, deceased, SEXI) UliLil'TIJ'U: Wbtrt115, the honorable the Probate ('ourl for the District nl' Chittenden (it a session thereol', holden at the Probate 0111ce in Burlington, Vermont in said District, oil the 29 clay of February ,.L, D. 1988 ou cicte application in writiuo, 1'or that purpose, ichich, said application lhuvints been dilly published uecordind to lam, did lirecc.se and authorize JAMES W. GIROUARD SR. to sell (it public our Icon or private sale lands and premises known as 54 Central Avenue, South Burlington, Vermont, and recorded in Volume 61, Page 434, of the City of South Burlington Land Records, being all of the real (,stale o/' ,said deceased, for the propose of benefitting the estate Zinb WbCrtag, Ituvin� previously taken the oath, required by law, and ful- filled all the requisitions of the .Statute., and of the license aforesaid I have sold all of the .sauce real estate to CRAIG ANDERSON and JOANNE ANDERSON , of South Burlington , in the County of Chittenden and ,Slate of Vermont for the siren, of *************Fifty One Thousand and no/lOO****************Dollars. POW, Unow Pt, 'Phut prnsrrunl to the license and authority aforesaid, curd not otherwise, and ill cunsider(ltiou of the said suns of ************Fifty One Thousand T)oljars, the receipt uItereo/', I do hereby ucknou-led,%e, T du by Illese presents, (,rant, Haroaiu, ,Sell, ('onvecl ultd ('un/lr•c)i unto IheSaid CRAIG ANDERSON and JOANNE ANDERSON, their as tenants by the entirety heirs and u.ssi-dils, the followin'i described Land in South Burlington ill ille("ounlllol' Chittenden and .Staten/' Vermont described us follores, t•iz; Vol. 259 Pa g 523 I A lot of land with the buildings thereon situated on the easterly side of Central Avenue in that part of town called Queen City Park, the cottage thereon now being known and designated as No. 54 Central Avenue, said land having a frontage on said Avenue totalling forty-one (41) feet and a depth of eighty (80) feet, comprising all of Lot #106 and the northerly portion of Lot #105 on a Plan of Queen City Park Association recorded in Vol. 5, Pages 52-3, of the City of South Burlington Land Records, together with a strip of land three (3) feet between said lots running north and south, and forty (40) feet east and west, also land in the rear measuring forty (40) feet east and west and thirty-eight (38) feet north and south, meaning to convey all and the same land and premises acquired by John F. and Elizabeth L. Sheehan, in Executor's Deed of Walter E. Crandall, Executor of the Estate of of Delia C. Church, dated May 16, 1958 and recorded in Volume 34, Page 433 of said Land Records. This conveyance is made subject to certain conditons and restrictions of the Queen City Park Association. Being all and the same lands and premises conveyed to Lawrence Girouard and Ruth Girouard by Warranty Deed of John F. Sheehan and Elizabeth L. Sheehan, dated January 15, 1963 and recorded in Volume 61, Page 434 of the Land Records of the City of South Burlington. Lawrence Girouard predeceased Ruth Girouard, vesting sole title in Ruth Girouard at that time. Reference is hereby made to the above -mentioned instruments, the records thereof, the references therein made and their respective records and references, all in further aid of this description. bein,6 all of the real estate whereof the said R UTH GIROUARD died seized and possessed tin the said JAMES W. GIROUARD, SR. TO babe aub t0 bOlb the said pre;)dses, with all the prit;iledes and applir- tenances thereof, to the said CRAIG ANDERSON and JOANNE ANDERSON, their heirs and os.sious forever, to uiid their 071•71 rise. .-Ind I the said JAMES W. GIROUARD, SR. .ldministrator do corenanl with tilesai(l CRAIG ANDERSON and JOANNE ANDERSON , their ` CITY OF SOUTH BURLINGTON PERMIT NO �dl APPLICATION FOR ZONING PERMIT 1st. Copy CODE OFFICER Zone... ... 2nd. Copy CITY ENGINEER 3rd. Copy CITY ASSESSOR 4th Copy APPLICANT Date ................................ f..... ... 19 . . The undersigned hereby applies for permission to make certain building Improvements as described below. (Plans to be submitted if required by Building Inspector.) All construction to be completed in accordance with the Zoning Laws and Building Regulations of the City of South Burlington and the State of Vermont, and con- form to the Regulations of the National Board of Fire Underwriters and any and all Federal Regulations now In effect. CONSTRUCTION STREET ✓ g l NUMBER OCCUPANCY FLOORS LOT SIZE: Frontage Depth Lot No. Single Family Is 1 2 3 Two Family Cement OWNER BUILDER• Apartment No. Fam. Earth WATER SUPPLY: Public ❑ Pr' ❑ Store Pine Offices Hardwood SEWAGE DISPOSAL: Public El Tank ElPermit * Warehouse The Carpet ROAD OPENING: (Show layout) f Permit # - - Res Garage A i FI & St tt c rs. No. Cars Det.Lj Att. Gas Station INTERIOR FINISH FOUNDATION Pine Concrete Hardwood Brick or Stone Unfinished Piers Paneling Cellar Area Full '%. % Retreat. Room No Cellar Finished Attic Fireplace EXTERIOR WALLS Clapboards HEATING Wide Siding Pipeless Furnace Drop Siding Hot Air Furnace No Sheathing Forced Air Furn. Wood Shingles Steam asbes. Shingles Hot Wat. or Vapor Stucco on Frame No Heating Stucco on The Electric Brick Veneer Gas Burner Brick on Tile Oil Burner Solid Brick Solar Panels Stone Veneer PLUMBING Conc, or Cind. BI. Bathroom Lo'rollet Room Terra Cotte Water Closet Vitrolite Kitchen Sink Plate Glass Std. Wat. Heat Insulation Auto. Wat. Heat Weatherstrip Elect. Wet. Syst. Laundry Tubs ROOFING Asph. Shingles No Plumbing Wood Shingles TILING Asbes. Shingles Bath Ff. & Wcot. Slate Toilet Ff. & Wcot. Tile LIGHTING Metal Electric Composition No Lighting Roll Roofing NO. OF ROOMS Bsmt. 2nd. 1 St. 3rd. ELEC., WIRING: Underground ❑ Overhead ❑ �1:a1ermit # Plot to scale Lot and Building Improvements, showing width of Front, Side and Rear yards. Mark N at Compass point Indicating North. PROPERTY LINE Remarks ❑ Demolition ❑ Utilities closed ❑ /a,VZV A 0�1, T,o ',--) ` y��� y 6/._11leA_ Estimated Cost a' e o v FEE C MPUTATION $ ✓ Plans received Yes ❑ No ❑ G SIGNATURE of OWNER or BUILDER ADDRESS of OWNER APPLICATION: REJECTED ❑ APPROVED✓ SIGNATURE OF CODE OFFICER ISSUED TO ' Low"" 'Aa.- t,1 Date fM PERMIT VALID FOR SIX MONTHS PERMIT SUBJECT TO APPEAL WITHIN 15 DAYS FROM DATE ISSUED PROGRESS DRAINING AV �,� - 2.W ---cop 42- e-Y NOTICE OF APPEAL SOUTH BURLINGTON ZONING BOARD OF ADJUSTMENT Name, address and telephone,# of applicant C R,4 /a. G. ¢ � r�s� Name, address of property owner dame " S /&,ye_ Property location and description I hereby appeal to the Zoning Board of Adjustment for the following: conditional use, variance or decision of the administrative officer. I understand the meetings are held twice a month (second and fourth Mondays). The legal advertisement must appear a minimum of fifteen (15) days before the hearing.- Iiagree to pay the hearing fee of $30.00 which is to off -set the cost of the hearing. Hearing Date gnature of Appellant Do not write below this line SOUTH BURLINGTON ZONING NOTICE In accordance with the South Burlington Zoning.Regulations and Chapter 117, Title 24 V.S.A. the South Burlington Zoning Board of Adjustment will hold a public hearing at the South Burlington Municipal Offices, Conference Room, 575 Dorset Street, South Burlington, Vermont on 0- V'? X, 0* 0 , �;" 1"J'4,4 of ':z . //fif A- at (day of wee )-- (month o d date) time to consider the following: / Appeal ofd44R,x, .. D .•µ ,�'-.- �+ -e-t ,4 lw,.^... I, G seeking a G� w `I, i..aQ.,, from Section % pJ , i�!°�✓W•,t �+ r r �, c't _ c.t, % ' n ed South of the Southh Burlington Regulations. Request is for permission to „`i� � d -d /+..�-1 .,J �..! .� C. f � 1 � � �^- L� � ��Ii C,� G{. ,� %, �' L �- f C air �i4�..�,, w���.-�.�� � . f .�..✓ �n t PROGRESS DRAWING �f �LOH �.w ,r '1 s QUEEN CITY PARK / COMMON LAND S 54 C E NTR AI. AVE _Sfl.. 13URL'INGT-O N VT. -L-OT 4 iQra _._ANDERSON RESIDE NC_E o ly, vRnww lei A. °" L I - I 0 - 88 - ntwuo C City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 PLANNER 658-7955 January 25, 1988 Mr. Craig Anderson 17 Wellesley Grove South Burlington, Vermont 05403 Re: 54 Central Avenue Dear Mr. Anderson: ZONING ADMINISTRATOR 658-7958 Be advised that the South Burlington Zoning Board of Adjustment will hold a public hearing at the City Hall Conference Room, 575 Dorset Street on Monday, February 8, 1988 at 7:00 P.M. to consider ,your request for a zoning variance. Please plan to attend this hearing. Very truly, 'j Richard Ward, Zoning Administrative Officer Rw/mcp i SOUT14 BURLINGTON 10141IN0 NOTICE In accordance 'with the South BurNnyron .Zonhw Reauhtions and Chapt 117,'Tnle i1 V.S.A. the South Burlington Zoning Board of Adjustment will hold a 4lic hearing at the South Bur. I Munu,poI Offices, Can- fennce Room, 575 Dorset Street, South Burlington, Vermont on Monday, February 8, 1988, Of 7,00 P.M. to consider the following, N 1 Appeal of Craig and JoAnne =Anderson o vad- fromsee 19.00, NomcomPlyxp in structures sub section 19.002 ohera- Lions and Section 18.00 DI. 1 mensiond r wmnsmems of the South Burlington Regula- lion. Request Is for permis- sion to construct a 12x34 addition (garago R den) alas a 1Ox38 deck to within w (5) foot of the wes" side yard and twelve (121 iset of the roar yard, also interior renovate the existing c well- ipp=-W nrorog, on a lot containing op- feeas S4 GntZ Avenue, G.C.P. 02 Appeal of David Brossard ad Wiliam Black seeking a varksnce, -Aran•- Section 11.503 Area, density and dimet,sional requirement (or Platwued Commorclal Dewl- mem of the South sur. Fk per con- struct building istrut a office 12520 square feet) in con. junction with on existing au• tomadvo repair shop on a lot containing 1.25 acres with 315 feet frontage, also a variance from Section 19.104 kmdscapk4 re- quinmeats, sub section (b) from yard,, at to use the fro- area for will ..coed 1M mVatiknum allowed, at Midas Muller, 1255 Willis- ton Road. Richard Ward, Zon; dministrative Officor January 23. .08