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Home My WebLink AboutAO-22-01 - Supplemental - 0410 Golf Course Road (9) 180 Market Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburl.com TO: South Burlington Development Review Board FROM: Marla Keene, Development Review Planner SUBJECT: AO-22-01 – 410 Golf Course Road DATE: May 17, 2022 Development Review Board meeting Appeal #AO-22-01 of Robert Cooper appealing the decision of the Zoning Administrative Officer to issue a zoning permit for site improvements on a single family lot, 410 Golf Course Road. A memorandum describing the background and facts of the case is included in the packet for the Board. This cover memorandum summarizes the question to be decided by the Board. The State statute governing appeals of the administrative officer’s decisions is as follows. 24 V.S.A. § 4465. Appeals of decisions of the administrative officer (c) In the exercise of its functions under this section, a board of adjustment or development review board shall have the following powers, in addition to those specifically provided for elsewhere in this chapter: (1) To hear and decide appeals taken under this section, including, without limitation, where it is alleged that an error has been committed in any order, requirement, decision, or determination made by an administrative officer under this chapter in connection with the administration or enforcement of a bylaw. (2) To hear and grant or deny a request for a variance under section 4469 of this title. In other words, the Board must stand in the shoes of the Zoning Administrative Officer determine whether an error has been made in applying the Land Development Regulations. The subject property received a zoning permit issued by Dalila Hall on March 21, 2022 (#ZP-22-071). The appellant submitted a notice of appeal which was deemed complete by Staff on March 31, 2022. A summary of the LDRs governing alteration of grade are as follows: 14.11 Site Plan and Conditional Use Review: Specific Uses and Standards F. Alteration of Existing Grade (1) Approval Required. The removal from land or the placing on land of fill, gravel, sand, loam, topsoil, or other similar material in an amount equal to or greater than twenty (20) cubic yards, except when incidental to or in connection with the construction of a structure on the same lot, shall require the approval of the Development Review Board. The Development Review Board may grant such approval where such modification is requested in connection with the approval of a site plan, planned unit development or #AO-22-01 2 subdivision plat. This section does not apply to the removal of earth products in connection with a resource extraction operation (see Section 14.11(G), Earth Products.) (2 ) Standards and Conditions for Approval. (a) The Development Review Board shall review a request under this Section for compliance with the standards contained in this Section 14.11(F) and Section 3.07, Height of Structures of these regulations. An application under this section shall include the submittal of a site plan, planned unit development or subdivision plat application showing the area to be filled or removed, and the existing grade and proposed grade created by removal or addition of material. (b) The Development Review Board, in granting approval may impose any conditions it deems necessary, including, but not limited to, the following: (i) Duration or phasing of the permit for any length of time. (ii) Submission of an acceptable plan for the rehabilitation of the site at the conclusion of the operations, including grading, seeding and planting, fencing, drainage, and other appropriate measures. ii) Provision of a suitable bond or other security in accordance with Section 15.A.20 adequate to assure compliance with the provisions of these Regulations. (iv) Determination of what shall constitute pre-construction grade under Section 3.07, Height of Structures. There are three packages of testimony included in the packet for the Board: 1. Testimony of the Zoning Administrative Officer. This testimony describes the permitting timeline and reasoning for issuance of a zoning permit. 2. Testimony of the appellant. This testimony contains a number of sections, some of which the applicant correctly classifies as the basis of appeal and some of which the appellant categorizes as requests for enforcement. Requests for enforcement are not within the authority of the Board to adjudicate. This testimony excerpts several sections of the LDR as applicable to their testimony. Staff notes the section, 9.08A(4) Use of Berms only pertains the projects within the SEQ NRN. The subject property is located in the SEQ-NR and therefore 9.08A(4) is not applicable. 3. Testimony of the permit holder. The permit holder is a party to the appeal but their actions are not the subject of the appeal. The subject of the appeal is the decision of the administrative officer to issue a permit for the work proposed in the zoning permit application. Staff recommends the Board conduct the hearing as follows o Ask who is seeking interested person status. Only interested persons can participate. The following criteria of 24 V.S.A. § 4465 are the only ways in which someone could be considered an interested person. (1) A person owning title to property, or a municipality or solid waste management district empowered to condemn it or an interest in it, affected by a bylaw, who alleges that the bylaw imposes on the property unreasonable or inappropriate restrictions of present or potential use #AO-22-01 3 under the particular circumstances of the case. (2) The municipality that has a plan or a bylaw at issue in an appeal brought under this chapter or any municipality that adjoins that municipality. (3) A person owning or occupying property in the immediate neighborhood of a property that is the subject of any decision or act taken under this chapter, who can demonstrate a physical or environmental impact on the person's interest under the criteria reviewed, and who alleges that the decision or act, if confirmed, will not be in accord with the policies, purposes, or terms of the plan or bylaw of that municipality. (4) Any ten persons who may be any combination of voters or real property owners within a municipality listed in subdivision (2) of this subsection who, by signed petition to the appropriate municipal panel of a municipality, the plan or a bylaw of which is at issue in any appeal brought under this title, allege that any relief requested by a person under this title, if granted, will not be in accord with the policies, purposes, or terms of the plan or bylaw of that municipality. This petition to the appropriate municipal panel must designate one person to serve as the representative of the petitioners regarding all matters related to the appeal. (5) Any department and administrative subdivision of this State owning property or any interest in property within a municipality listed in subdivision (2) of this subsection, and the Agency of Commerce and Community Development of this State. Ask each person seeking interested person status to identify themselves, provide contact information, and demonstrate their eligibility using one of the above criteria. o Determine who of those requesting interested person status is an interested person. o Invite each party to provide testimony, in the following order. • Zoning Administrative Officer – The zoning administrator can lay out the facts of the zoning permit • Appellant • Permit Holder • Other interested persons The Chair may allow each party to provide a response to the testimony of others. Staff recommends the Board proceed in the same order for each round of testimony. o Once testimony has been provided, the Chair may allow public comments. The Board will determine the weight to give public comment in its deliberations. o Only if there are questions of fact should the hearing be continued; otherwise the hearing should be concluded. The Board must render its decision within the standard 45-day timeframe. Respectfully submitted, Marla Keene, Development Review Planner 180 Market Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburl.com ATTACHMENTS 1. Zoning Permit ZP-22-071 2. Written testimony of the Zoning Administrative Officer 3. Written testimony of the appellant 4. Written testimony of the permit holder