Loading...
HomeMy WebLinkAboutMinutes - City Council - 07/15/1976JOINT WORK SESSION JULY 15, 1976 The South Burlington City Council, Planning Commission, and Zoning Board of Adjustment held a joint work session on Thursday, July 15, 1976, in the Conference Room, Municipal Offices, 1175 Williston Road. The City Council was represented by Paul Farrar, Chairman, Frank Armstrong, John Dinklage, Michael Flaherty, Catherine Neubert. The Planning Commission was represented by William Wessel, Chairman; James Ewing, Ernest Levesque, Frank Lidral, David Morency, Sidney Poger, W. Kirk Woolery. The Zoning Board was represented by Robert Martineau, Vice Chairman, and Frederick Fayette, Jr. Administrators present were Richard Spokes, City Attorney; William Szymanski, City Manager; Richard Ward, Zoning Administrator. Also present were William Schuele, Dick Sweterlitsch, and David Heim. The meeting was called to order by the Chairman of the City Council at 8:00 p.m. who explained the purpose of the work session was to meet with the City Attorney to discuss the rights and functions of the three boards. Mr. Spokes first mentioned the Right to Know Law, its bearing regarding deliberations behind closed doors vs. deliberations before the public. Another topic he suggested was the jurisdiction of the Planning Commission and the jurisdiction of the Zoning Board; in conducting hearings, based on the experience of the Lamplough property appeal, just how formal does each board have to be in a given situation. Mr. Spokes then explained what he felt were the primary roles of the Planning Commission, the first of which is to initiate drafts for planning documents, the Master Plan, the Zoning Ordinance, the Subdivision Regulations, and other types of By-Laws, the Official Map, and Capital Program. Chairman Farrar commented the Capital Program is no longer a By-Law, with Mr. Spokes agreeing that was correct. Mr. Spokes felt one of the jobs of the Commission is to actually initiate the drafting of these documents, consider these documents, amend the documents to just keep them current. They initiate the procedure, whether new planning or an amendment process. Another primary issue is considering subdivision applications and he referred to the six or seven statutes in the Planning Act that really outline what the Planning Commission can do and recommended these statutes as worthwhile reading to get an idea of what can be done in a given situation. Also the members of the Planning Commission should be familiar with their own Subdivision Regulations — there is a lot of meat in that document. The third primary area of the Planning Commission, Mr. Spokes continued, is site plan review. This is really new in Vermont in the last six or eight years. Site plan review is a limited review but it is extremely important to get into the area of egress and ingress, access points, the circulation of traffic in whatever parcel of land is being considered, parking, landscaping, and screening. The Commission is limited to those criteria under site plan review and it is always applicable except in one- family residential situations. In everyday commercial situations these are very, very important, and even though there may not be a subdivision review, the Commission does have site plan review and the traffic and landscaping and screening are the key items the City is concerned about. Mr. Spokes referred to the Zoning Ordinance and the Planning Act requiring any person who wishes to develop his property to have frontage on a public road or a right-of-way no less than 20 feet in width approved by the Planning Commission. He said this had caused problems because of uncertainty of just what the area of the Planning Commission is in this or what the legislature had in mind. The question came up of whether or not a requirement of 40 or 60 feet could be put in the Subdvision Regulations and Mr. Spokes felt the Commission should stick with 20, but that would not restrict the Planning Commission from saying 20 feet is not enough and a developer should have 40 in terms of considering access for emergency vehicles. Location of a right-of-way is important. In the case of a person with 20 acres off Spear Street, for example, and wanting to put in two houses, the Planning Commission can look at the access but he did not think they could require it to be upgraded to City standards. However, there is always concern about how many houses are to be served by this right-of-way and if it is not up to City standards it could cause a problem. The Commission can cause the applicant to enter into a contract with the City where he binds himself into utilizing this right-of-way to serve X number of structures. Mr. Farrar said if the City had an Official City Map, if this network had been layed out appropriately, then it could require the placement of these roads. A discussion of an Official City Map followed. Mr. Wessel felt it required mapping by a surveyor or engineer and would cost a great deal. Mr. Farrar did not agree that it had to be that precise. Mr. Ward felt the Zoning Map and the Traffic Map both show where possible roads are going to be constructed and an Official City Map wouldn't have to be done that precisely or that officially. Mrs. Neubert said Fred Mitchell (former City Planner) thought it should be very specific and he didn't want to touch it because he felt there was too much flux going on. She said she objected to designating somebody's property as a street and then he couldn't do anything with his property because it was a street. Mr. Ward explained that is why Section 91 gives 120 days to take action if and when the property is going to be developed. Referring to the proposed connector road, Mr. Spokes said this could be located on an Official Map and that prevents anybody from being able to develop that land for anything else; the City has a lock on this land. Mrs. Neubert wanted to make sure it could be done and how it could be done. Mr. Spokes said he didn't think anybody in the State has had much experience in that; he didn't know whether it was too big a project or whether the City could take advantage of it. Asked by Mr. Dinklage how many communities have an Official Map, Mr. Spokes replied he didn't know of any. Mr. Ward said the City didn't have to buy the land; it could condemn it or it could say it didn't want it. Mr. Farrar felt an Official Map gives power to say where an official street would go. Mrs. Neubert asked if the City must purchase the corridor because it is on the Map. Mr. Dinklage said if an area is shown on the Map as a street and someone wants to put a structure there, that is when the City has to decide whether it wants to implement that portion of the Official Map. Mrs. Neubert stated she did not approve of condemnation unless absolutely necessary. Mr. Ward said a Map could be made on the most accurate information available but when it comes time to administer it, it must be more precise. Mrs. Neubert said she would prefer to implement the road with the cooperation of the property owners. Then it will go on the Map and everybody understands where it is to go. Mr. Ward commented the Official Map could force the City to get involved in spending a lot of money — it could end up with rights­of­way all over town. Mr. Szymanski cited a case where the City didn't want to build a road but it had to. He said a little work was done a few years ago on a Map and it was his impression that it didn't have to be precise but when someone wanted to go in and develop the land then the City had to go out and physically locate where this road would go. There are cases where there would be a single lot and putting in a road would mean taking the entire lot so the owner would have to have compensation. Mr. Farrar said the real purpose in laying this out is to avoid problems. If 20 years ago this had been done the City wouldn't have the problems it has on Shelburne Road and Williston Road. Mr. Ward stated there was quite a bit of material available to put a fairly accurate Map together. Attorney Spokes then referred to the Zoning Board granting a variance, saying the Planning Commission has to go about its duties and take that variance as a law. It has no right to try and rescind the action of the Zoning Board unless the Commission follows the appeal procedure that the statutes provide. He said he was raising the question because there have been cases where the Zoning Board does something and the Planning Commission feels another way would have been more appropriate. Mr. Poger said the Zoning Board felt traffic would not be much more difficult and that was the basis of the Planning Commission's discussion on site plan review, and he felt the City Attorney's opinion was in a very difficult gray area. He asked if the jurisdiction on this could be layed down. Mr. Spokes explained the Zoning Board looked at this proposed use on Williston Road in general, what effect would a motel on the Lamplough property have on Williston Road. They determined that it would not have such an adverse impact on the present situation as to deny the request. The Planning Commission's scope of review was limited; it could look at only the point where the applicant had to have his egress and ingress. Mr. Poger said the Zoning Board believed the impact would not be serious and the Planning Commission believed it would be serious. Mr. Spokes said the Commission was stuck with one access — they had to have an access. Mr. Martineau said the use was allowed on a portion of the property and the Board did extend the use. The Board, based on its own knowledge, did not grant this variance or make the judgment that there is no traffic problem on Williston Road; it did say that the use of this property in this manner would not appreciably affect it and there was no reasonable cause to deny the appeal. He said the Board has to be very careful in making a judgment, not out of emotion, but saying can the Board realistically deny one person the reasonable use of that property. That property was zoned to accommodate a motel. Mrs. Neubert said she felt the Board had the right to grant a use variance on five acres of property and that was a really all the Board had a right to do. She felt what the Board really did was to approve a specific proposal, and asked how that affected the Planning Commission. Mr. Wessel then asked what was the best approach, how could the Planning Commission participate in Zoning Board decisions, and vice versa. Mr. Martineau asked what were the qualifications for persons approaching the Zoning Board. Mr. Spokes explained the authority of the Zoning Board to permit a variance from the particular requirements of the ordinance if the Zoning Board finds the magic criteria. Concerning the difference between use variance and a dimensional variance, he said a dimensional variance has more flexibility than a use variance, a use variance being much more severe. The Zoning Board is in a quasi-judicial setting; it must protect rights of the applicant and also the rights of whoever is opposing the application which the Planning Act calls an interested party. He read aloud the five categories of interested parties as stated in the Planning Act. Mr. Dinklage suggested allowing any reasonable opinion to be expressed or any reasonable question to be asked, but when it comes to Findings of Fact it should be confined to legitimate interested parties. Mr. Farrar felt there was a question as to the intent of the legislation, was it to restrict it to the ones who can participate, or did it guarantee the right of everyone to speak. He suggested a presiding official might allow persons to speak other than those mentioned in the five categories. Mr. Wessel outlined the new procedures the Planning Commission is setting up to allow questions from the public only to the Planning Commission who will decide whether or not the question should be asked of the witness, with time also allowed for public opinion input. Mr. Dinklage said he disagreed with the idea of the public not being allowed to ask question directly to witnesses. Mr. Spokes explained why the Planning Commission had to adjust to that situation in the Graves case, saying it might never happen again. Mr. Martineau asked if there was agreement that the Chairman of the Board can refuse to accept testimony if it is irrelevant. Mrs. Neubert said she had been very concerned about the ability of laymen to deal with an attorney such as Fred Parker. Mr. Martineau replied the questions that Attorney Parker raised were appropriately referred to the City Attorney, and beyond that all the testimony that he or his people testified to was all testimony that the Board had to admit. Mr. Martineau emphasized that in no way was he or anyone on the Board intimidated by Attorney Parker's presence. Their hands were tied and they had no option except to hear the testimony and ultimately it was the decision of the Board, and at no time was there any intimidation. He asked what Attorney Parker could possibly say that would intimidate the Board. Mr. Spokes explained his duty is to represent the boards and to do everything he felt was legally correct and not to take a pro and con attitude or to be an advocate. He received many phone calls from citizens who did not understand his role as City Attorney; they thought he should be opposing the Lamplough proposal. Mr. Farrar said a decision was made; it was not an over-riding City issue but an issue of specifics which does not have any broad application and therefore should be decided by the information presented by the applicant or those interested citizens opposing it. If there are generalized rules of procedure they should be in a fairly strong legal position, they should be on pretty firm grounds in proceeding to let the public participate in an orderly fashion. Mr. Spokes commented the Planning Commission is doing something which seems to be working out well. Mr. Fayette said he had a firm belief that the spirit of the law has to be taken into consideration. If a law is found to be unworkable, is not really working, that is where course law comes into play. Mr. Farrar felt some problems could be avoided by adopting By-Laws ahead of time. A discussion of uses in R-7, particularly on Kennedy Drive, was next. Mr. Dinklage cautioned that allowing use variances on Kennedy Drive could defeat the long range planning for the City; it could be changing the intent of the Zoning Ordinance and the Master Plan. He suggested there are times when granting a variance might seem a reasonable thing to do but the implications would be much larger. He asked when would it be appropriate to refer the Zoning Board's opinion back to the Planning Commission to initiate a zoning amendment. Mr. Fayette said the case Mr. Dinklage was bringing up was very important but one of the first things he would take into consideration would be what, as a result of changes in whatever is happening in the Town as a result of zoning and what is finally coming out in actual use, has been the restriction of any reasonable use of the property. That is a tough thing to define. Mr. Dinklage asked if that was hardship. Mr. Farrar felt hardship to be a fine line. Mr. Dinklage felt that by going outside the allowed specific uses in a certain zone, the Board was setting itself up as increasing commercial use and that was outside the scope of its authority and contradicts the spirit of the zoning law. Mr. Fayette said when there is a reasonable claim, relief should be granted when a good case is made; the criteria allows judgment. Mr. Fayette felt it was incredible to put pressure on the Zoning Board and say it didn't have the spirit of the zoning law. He asked what would happen if the Board was law-locked and there was no safety valve. Mr. Dinklage said he was only trying to raise a very important philsophical point. When the Board grants a use that is not allowed in a zone, then that is re-zoning and has profound implications on the Town, and he was asking the Board to consider in the R-7 zone that the people who wrote the zoning document and approved it very likely recognized that the medical and dental clinic development that is conceivable in that area is limited. He emphasized the importance of keeping a mixed use. Mr. Levesque said there was no analysis ever made of that mix. Mr. Dinklage felt the Zoning Board was not the proper place to address that question, that kind of change. Mr. Fayette objected that bringing every issue like this up to have a change through the Planning Commission means becoming letter law-locked and there is no longer a viable zoning ordinance. Mr. Farrar said different boards have different sets of responsibilities, and the proper board to address such a question is the Planning Commission. Mr. Martineau asked Mr. Farrar if he meant that particular use should be stricken by the Planning Commission from further application. Mr. Farrar replied use variances have their proper place but should be looked at very carefully because the Board is getting into the area of the Planning Commission. Because of the very restrictive provision in the zone that only medical and dental could be built there, that would limit the amount of commercial in that zone, but if you start allowing very similar uses, then that character of the zone has been changed by that administrative belief. Mr. Dinklage stated he was personally concerned about the Zoning Board's philosophy of hardship, and Mr. Fayette suggested a discussion of his own philosophy with Mr. Dinklage. Mr. Dinklage, referring to the Lamplough proposal, said the Zoning Board did not require the appellant to consider the mixed use that was allowed in the zone. Mr. Martineau explained that with the existing allowable use, it was reasonable to extend the area. Mr. Flaherty said it is a question of philosophy and judgment. If we put people on the Zoning Board we can't pick and choose what use variances they are going to hear. We have to allow a certain amount of latitude on the Zoning Board to show their good judgment. Mr. Dinklage said he wanted to state publicly that he was really disturbed about the Board's concept of hardship and he could respond to this concern by acting to get Council more actively involved. Mrs. Neubert asked that the City Attorney explain specifically what hardship is, because she didn't care for the lack of testimony to support the hardship in the Graves case. Also she wanted to know what her own role was as an individual, as a member of the Council with a constituency, what was her obligation as an elected official when she saw something going on that she didn't like and Council was not participating. Must she always be shut up and thrown out. She said she was talking about going to advertised public hearings, having an opinion, having a very strong feeling, having a constituency that backs her, and the Board doesn't happen to like what she is saying. Mr. Farrar told Mrs. Neubert she had the right to participate as a citizen; she also had a responsibility, if she thought there was a public issue involved and she thought Council should participate in this, to specifically request Council to participate in those deliberations. Mrs. Neubert said she just happens to go to a lot of hearings and the rest of Council doesn't. She feels she has a duty and an obligation. Mr. Martineau said the Zoning Board does accept and is responsive to testimony of everyone; there is not guarantee that their judgment will always be agreed upon by all members of the community. Mrs. Neubert said there were people who felt she didn't have any right to go without approval from Council. She does take the trouble to go and she does represent people and has never stated she represented Council. Mr. Dinklage said there was confusion in the different roles Mrs. Neubert might have; if there was a formal vote and she was designated as Council representative, she could be acting for the Council. Mrs. Neubert objected that she couldn't stop the proceedings while she went back to Council. Mr. Fayette explained if someone brings in a good cause for continuance, the Board has always continued the hearing. It would have to be something specific that should be checked out and it would have to be outlined. A person would have to know and not say "I think." Mr. Fayette said if he were going to that Zoning Board in the future as a citizen, he wouldn't feel they were a representative body at all, he would feel they were being dictated to. He feels as a Board member he has the right to use his knowledge, his background, and represent the citizenry. Mr. Farrar suggested some procedure where Council could look at and review the cases and decide which ones it would participate in. Mr. Martineau said they would be responsive to any input in order to make a decision but he didn't think that in any way their decision should be influenced. He would welcome discussion if they had a particular philosophy but the Board should consider the facts and make its own decision based on the facts. Mr. Dinklage said Council was looking for some way to become aware of the items on the agenda before the hearing but never got beyond some discussion of that mechanism. Mr. Armstrong asked about the length of the terms, the number of terms, and the optimum number of members for the Zoning Board. He asked Mr. Martineau if he felt five was an optimum number. Mr. Martineau said he understood there are some three-man boards but he feels five has been very workable for them. He said remarks had been made that the Board is all too much in the same vested interests, etc. and he thought that came from the fact there were many unanimous votes on appeals. He explained the give and take process that takes place among the Board members, the applicant, the neighbors, and when it is finished there is unanimous agreement from the Board members. When there is not a unanimous agreement, one could infer there had been no give and take along the way. He said he would dislike to see a change made since it would be an irresponsible action due to a conflict. He said it was healthy to get together but if the Lamplough proposal had never existed this group would probably not be meeting tonight. As to the number of terms, Mr. Martineau said that after eleven years he could honestly say that the first year or two were no where near as comfortable as he feels now. He feels he can contribute much after this period of time. Membership requires a lot of experience; the first year or two has to be spent learning. The subject of the five o'clock meeting was brought up by Mrs. Neubert. She said the general public cannot come; they are not aware of these meetings. When the Board has a controversial thing and knows the public is concerned and worried and upset, she didn't think the Board responded to that. It is the public that is angry with the Board. Mr. Martineau said he must reject the implication that the Board wants those hearings at five o'clock for the express reason of keeping people away. Mrs. Neubert said the Board has been asked, there are people who would like to have the hour changed to an evening meeting. Mr. Fayette responded that when the meetings were at seven, there were no people there. Mr. Martineau said again he rejected the implication. The Board has had controversial cases and the room is full many times at five o'clock. Mr. Poger said that the Zoning Board needs a majority of the Board to give a variance and going to seven members would make a difference in the way they work. However he would point out that there was not a broad enough spectrum in the members of the Board; there should be a member who was nothing, who did not represent any of the things represented by the present members. Mr. Martineau felt that was dangerous ground to get into. Mr. Wessel stated seven members is better for the Planning Commission. He would like to have a new person on for one year and everybody else stay for five years. Mr. Fayette said that if they could keep five members long enough, then one of the longer-standing members would be tempted to resign. He explained he wouldn't feel at all hurt personally if Council decided someone else might sit in his place. Asked again about the five o'clock meeting time, Mr. Martineau said they were switched into that by the energy crisis, although that no longer applies. There was no particular reason for going back to an evening meeting any more than there was any special reason to keep the five o'clock time. Mr. Schuele commented the League of Women Voters which comprises at least half of the active women in South Burlington cannot make the five o'clock time. Mr. Farrar suggested it might be worthwhile to meet again in a couple months. The session was declared adjourned at 11:00 p.m. Clerk Published by ClerkBase ©2019 by Clerkbase. No Claim to Original Government Works.