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HomeMy WebLinkAboutMinutes - City Council - 12/21/1987CITY COUNCIL 21 DECEMBER 1987 The South Burlington City Council held a regular meeting on Monday, 21 December 1987, at 7:30 p.m., in the Conference Room, City Hall, 575 Dorset Street. Members Present Paul Farrar, Chairman; Michael Flaherty, Francis X. Murray, George Mona, Molly Lambert Also Present William Szymanski, City Manager; Wendy Schroeder, Mary McKearin, Business Managers; Margaret Picard, City Clerk/Treasurer; Richard Ward, Zoning Administrator; Jim Condos, David Boehm, Fred Blais, J. Thibault, Zoning Board; Sonny Audette, Street Dept; Sid Poger, The Other Paper; Mike Donoghue, Free Press; Glenn Jarrett, Anne Byrnes, Bill Schuele, George Chamberland; Ed Blake, CWD; Mike Hertzberg, Michael Shawl Comments & Questions from the Audience (not related to agenda items) No issues were raised. Report on plans & activities of the CWD Ed Blake, Superintendent, gave a brief history of the Chittenden Water District whose members now include Shelburne, South Burlington, Williston, Essex/Essex Junction, Winooski, Colchester, and Milton Main facilities are now centered at Queen City Park Rd. Mr. Blake gave Council members a copy of the recently published 20th anniversary annual report. In 1981, CWD commissioned a study to look at each member's water system. Since then the District has been formulating plans to meet needs. A ten-year plan through 1995 is in progress. It will allow expansion to provide all the quality water the communities request. CWD has negotiated with Burlington to purchase up to 3,000,000 gpd beginning in 1988. Quality studies have been made at Shelburne Bay and the waters off Colchester, but quality is not consistent enough. Water is now being tested north of the sandbar, and so far this looks promising. CWD is discussing a contract with a deep rock exploration firm which would explore all of Chittenden County at their cost and risk to look for 2,000,000 gpd of quality water. If they find it, the District will purchase it from them. Mr. Blake cited turbidity as the major water quality problem. He said there have been no problems with pollution on the beaches such as Burlington had this summer. CWD will provide the S. Burlington Natural Resources Committee with copies of testing results for water off Red Rocks. Discussion with David Boehm and members of Zoning Board of problems and possible solutions to Zoning Board procedures Mr. Farrar noted that Mr. Boehm had submitted his resignation which the Council has not yet accepted. Mr. Boehm said the Board had heard about 150 cases since he joined, and he has been in the minority on voting in about a quarter of these. The main problem, he said, is with variances. He cited current zoning regulations as one part of the problem, and said this puts the Board in a difficult position. He added that he often finds he doesn't have the energy to defend his position. Mr. Boehm presented Council members with a documentation of a number of cases which particularly troubled him. In two of these cases, Mr. Boehm noted, the applicants had actually testified they could not meet the 5 criteria for a variance, but variances were still given and Board members found the criteria had been met. Mr. Farrar asked if the problem was with procedure or results. Mr. Boehm said it was both. He said he felt the Planning Commission and City Council have stated the way the city should be developed, but the Zoning Board takes these carefully considered requirements and changes them. Mr. Mona asked Mr. Ward how the finding of fact gets generated. Mr. Ward said that each member must check off each of the criteria that has been met. Ms. Lambert noted that in Act 250 hearings, each criteria is listed, and it is then indicated how each project does or does not meet each criteria. She felt this would be helpful for the Zoning Board. Mr. Boehm noted that Minutes don't always reflect what went on at a meeting, and it is hard to know if the 5 criteria have been addressed. He felt 2 things had to happen: the Ordinance has to be made enforceable and it has to be enforced. He noted that other Zoning Board members often say to him: "Technically you're right..." Mr. Murray said it is a question of whether there is any discretion permitted. Mr. Farrar said the law provides what those interpreting the law allow. Mr. Murray said that when an applicant testified criteria had not been met, and the variance was still granted, one has to ask why. Mr. Jarrett, a former Zoning Board member, noted that the Vermont Supreme Court says the 5 criteria have to be met in order for a variance to be issued and that the Court almost uniformly overturns the granting of a variance. Mr. Boehm said he felt the situation has become such that it is no longer a question of reasonable people disagreeing. Mrs. Lambert asked how decisions are being made. Mr. Jarrett said it was his feeling that Board members were judging on the basis of whether they thought a project was "worthwhile." Mr. Murray said it has gotten to the point where it is being asked whether it is permissible for the Zoning Board to ignore criteria because a project is "worthwhile" or "good for the community." Mr. Mona said he didn't think "reasonableness" was the issue. Where criteria are not met, members have checked off they were met. He said he wanted to know why. Mr. Condos noted that when he was interviewed for the Board, he had said he thought "use variances" were wrong but dimensional variances needed to be looked at for their own merits. He felt he must have said "something right" since the Council had appointed him to the Board. He felt maybe the Board needed more direction from the Council than they were getting. He said he was troubled that David had asked to resign and felt he was good for the Board. Mr. Farrar said he hadn't heard of incidents where results have been so horrendous. Mr. Boehm noted problems on Shelburne and Williston Rds. He noted that a message was received from the Council that the Board was not to be lenient with projects in strategic areas, and the Board has allowed expansion of already non- conforming uses on Shelburne Rd. Mr. Blais said he took away from the first meeting with the Council a genuine concern about use variances, and felt the Board had made every attempt to limit or look very hard at use variances. He thought they had utilized tight scrutiny. He could recall only 2 use variances since that time, one a mini-warehouse on Swift St. in a commercial zone where warehousing is not specifically allowed. In that case, he said, a majority of the Board felt it did not conflict with the Ordinance. The other case was the Trono Bagel Bakery which the Board felt was an auxiliary use not a use variance. Mr. Blais noted he had voted for the cases Mr. Boehm had cited. In case #13, he felt the question was whether it was reasonable to allow the applicant a variance to allow more front yard use. He said he felt it would help keep trees instead of using land for parking. He felt there was no adverse impact to the neighborhood. He did acknowledge that the applicant's representative had said they could conform without a variance. Mr. Blais said he did not feel uncomfortable about decisions made in the last year. Mrs. Lambert said she was hearing there is not a clear discussion of the 5 criteria and members are left to interpret the discussion and make their decision. She said she was also hearing an "end justifies the means" philosophy. Mr. Chamberland asked who would decide if the Board has acted illegally. Mr. Farrar said if a decision were appealed, the Court would hear the case and make a decision as if it were the Zoning Board. Mr. Murray added the Council cannot appeal its own Zoning Board's decisions. One member of the public said it seemed to him the Council was suggesting a compromise could be legal but that it sounded to him that the law was very clear and did not leave room for this kind of interpretation. Mr. Shawl said he was impressed with the level of discussion and felt the central question was one of trust. He added that residents have the right to expect the Council to nurture the vision of what the City is about and to hold the Zoning Board accountable for that vision. He hoped the Council would not accept David's resignation and would provide adequate direction to the Zoning Board. Mr. Mona said if there are problems with the Ordinance, the Zoning Board should dump those problems back on the Council, not take the law into their own hands. Mr. Blais said the Board has been given the charge to review what is approvable or not approvable. Mr. Mona noted that when the Council gave the direction that it wanted part of Williston Rd. to stay residential, the Zoning Board marched off in a different direction to make it commercial. Addressing Mr. Boehm, Mr. Murray said the perception of the community had been that the Zoning Board was not operating well. Mr. Boehm's attempts helped people feel this was being addressed. He asked if Mr. Boehm would let the Council hold his resignation until at least January as he felt it was not in the City's best interest for him to resign now. Mr. Schuele said that one problem he had noted is trying to understand "hardship." If a person buys a piece of land that is too small, that should not be considered hardship. That is a problem of the buyer's own making. Mr. Hertzberg said he had sat on the Zoning Board in Warren for 8 years and they never had an issue like this. He said this is a very serious thing as one day someone will sue the Zoning Board. He said there is no room for interpretation of the 5 criteria. If one criterion is not met, the variance is denied and the hearing is over. Mr. Boehm said he appreciated the discussion and said the Council can act when it wants. He felt Ms. Lambert's suggestion of addressing each criterion specifically was a good one and long overdue. He said it is time for the Council to tell the Zoning Board if it should be following the laws. Mr. Murray moved that the Council direct the Zoning Board to follow the Zoning Ordinance whether for use variances or other variances and that a variance be granted only when the 5 criteria are met. Further, the Board should state specifically how the 5 criteria are met, namely what evidence was presented and who the witnesses were who established that evidence. Ms. Lambert seconded. Mr. Condos noted that a change in the look of the ballot was needed. Mr. Boehm said a new ballot form was presented but the Board never adopted it or used it. Mr. Mona asked Mr. Blais if the motion gave him a hard time. Mr. Blais said it did not. In the vote which followed, the motion passed unanimously. Approve hiring of consultants to perform impact studies in anticipation of the Pyramid Mall project. This to be done jointly with other communities. Mr. Murray noted he had met by chance with Art Hogan of Regional Planning who told him the contracts are in place and that Williston, Shelburne, Winooski and So. Burlington will participate with Burlington. South Burlington's share of the cost will be about $15,000, half due within 30 days of the beginning of the study and the other half within 60-90 days of completion. Mr. Farrar questioned which budget this should be included in. Mr. Murray said it would move quickly through Act 250 probably before the end of the current budget. Mr. Flaherty moved to commit the City to funding the Pyramid Mall study with an amount and time for payment to be determined between the City Manager and Regional Planning. Ms. Lambert seconded. Motion passed 4-0, Mr. Murray abstaining. Sign Highway renewal note Mr. Mona moved the Council sign the $32,000 renewal note and Resolution. Mr. Murray seconded. Motion passed unanimously. Review Zoning Board Agenda No issues were raised. Minutes of 7 December 1987 Ms. Lambert moved to approve the Minutes of 7 December as written. Mr. Flaherty seconded. Motion passed unanimously. Sign Disbursement Orders Disbursement orders were signed. Other Business Mr. Szymanski advised that he needed authority to give up a sewer easement in the area where the new Pomerleau hotel project is going. Buildings are being removed. Mr. Flaherty moved that the Council authorize the City Manager to sign over the sewer easement to meet the needs of the hotel approved by the Planning Commission. Mr. Murray seconded. Motion passed unanimously. Ms. Lambert noted that the smell is back on Kirby Rd. and that this time the people investigating it have finally smelled it. Executive Session Mr. Murray moved the Council adjourn and meet in Executive Session to discuss Dorset St. park land acquisition and resume regular session only to adjourn. Mr. Flaherty seconded. Motion passed unanimously. The Council came out of Executive Session and adjourned immediately. Clerk Published by ClerkBase ©2019 by Clerkbase. No Claim to Original Government Works.