HomeMy WebLinkAboutAgenda 05_AO-22-03_29-31 and 39-41 Elm St_Leavitt_packet
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: Paul Conner, Director of Planning & Zoning
SUBJECT: AO-22-03 – 29,31, 39 & 41 Elm Street
DATE: September 20, 2022 Development Review Board meeting
Appeal #AO-22-03 of Bruce Leavitt appealing the decision of the Zoning Administrative Officer to issue zoning
permits for construction of two (2) two-family homes, 29, 31, 39 and 41 Elm Street.
This cover memorandum briefly provides the project history and then summarizes the question to be decided
by the Board. Bruce Leavitt is not able to attend the DRB hearing and so has named Rosanne Greco to
represent him.
NOTE: Marla Keene issued the zoning permits under appeal in her role as Acting Zoning Administrative
Officer; therefore for this proceeding Marty Gillies and I will serve as the Board’s staff liaison.
DRB Statutory Role
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 properties received zoning permits issued by Marla Keene on August 4, 2022 (#ZP-22-304 & #ZP-22-
318). The appellant submitted a notice of appeal which was deemed complete by Staff on August 18, 2022.
#AO-22-01
2
Project Background
Spear Meadows received Final Plat approval #SD-17-14 from the Development Review Board on August 1,
2017. That decision was appealed to the Environmental Court, and eventually to the Vermont Supreme Court.
The Vermont Supreme Court found in the applicant’s favor, thus finalizing the approval.
The applicant received a zoning permit (#ZP-21-368) for construction of the first building in the neighborhood
on September 16, 2021, for a duplex at 29-31 Elm Street.
During construction questions were raised as to the height of this building. The developer, Chris Snyder,
measured the height of the building in the spring of 2022 and concluded that the building had exceeded the
maximum allowable height of 28’.
The developer then submitted a new zoning permit application for a reconfigured building at 29-31 Elm Street
(ZP-22-304), and repeated this same building elevation for a second, additional building at 39-41 Elm Street (ZP-
22-318).
These most recent zoning permits are the subject of the appeal.
Relevant Land Development Regulations
The maximum height of the buildings is the subject of the appeal. The relevant standard and definitions are as
follows:
3.07 Height of Structures
A. General Provisions. Structures in all districts shall comply with the height standards presented below
in this section. The requirements of Table C-2, Dimensional Standards, and of Building Envelope Standards in
Article 8, City Center Form Based Code, shall apply. Maximum allowable building heights are illustrated in
Figure 3-1, Height of Structures.
The maximum height for building in the SEQ-Neighborhood Residential Zoning District is 28 feet, as stated in
Table C-2 and in decision #SD-17-14.
The appellant is disputing the Acting Zoning Administrator’s application of how a pitched roof is measured in
calculation of a building’s height. The applicable definition and illustrations are below:
Section 2.02: Definitions
Height. The vertical distance of a building measured from the average preconstruction grade level at the base
of the building to the highest point of the roof if the roof is flat or mansard, or to the average level between
the eaves and the highest point of the roof if the roof is of any other type. Height calculation of a building
shall not include minor rooftop apparatus such as solar collectors, chimneys, elevator and mechanical
penthouses, air conditioning equipment, satellite dishes, and similar apparatus that project from the roof. For
larger rooftop apparatuses such as steeples, spires, towers, water tanks, radio and television antennas, see
Section 3.07 of these Regulations. Chimneys (as defined in these Regulations) for residential structures shall
be exempt from the height limitations. Height of a structure that is not a building shall be measured from the
average preconstruction grade level at the base of the structure to the highest point of the structure.
#AO-22-01
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Figure 3-1 Height of Structures
Supporting documents and Supplied testimony:
There are three packages of testimony included in the packet for the Board:
1. Zoning Permits for 29-31 Elm Street (#ZP-22-304) and 39-41 Elm St (#ZP-22-318) which are the
subject of the appeal
2. Appeal application, from Bruce Leavitt
3. Testimony of the Acting Zoning Administrative Officer, Marla Keene
4. Testimony of the appellant, Bruce Leavitt
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
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
#AO-22-01
4
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. [note: Mr. Leavitt has
included his statement of eligibility in his testimony, and further has named Rosanne Greco to
represent him at this hearting in his place).
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 (if they choose)
• Other interested persons
o 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 and reminds all
parties that responses are to be directed to the DRB chair.
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,
Paul Conner, AICP
ZP-22-304
8/2/2022 2,619.50 SEQ-NR
26.56' high two family home on lots 44 & 45
SD-17-14 8/1/2017
x 8/4/2022
8/19/2022 8/3/2023
x
SEQ-NR
modify height of building approved in ZP-21-368 to 26'5" above approved preconstruction grade
SD-17-14 8/1/2017
x 8/4/2022
8/19/2022 8/3/2023
x
575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburl.com
Application #AO - ______ - ______
(office use only)
NOTICE OF APPEAL
All information requested below must be completed in full. Failure to provide the requested information
on this notice will result in rejection of your application and delay in the review of the appeal before the
Development Review Board.
I understand:
the presentation procedures required by State Law (Section 4468 of the Planning & Development
Act);
that the Development Review Board holds regular meetings twice a month;
that a legal advertisement must appear a minimum of fifteen (15) days prior to the hearing on my
appeal.
I agree to pay the required fee to offset the cost of the hearing on my appeal.
1) NAME AND ADDRESS OF APPELLANT(S):
____________________________________________________________________________________
____________________________________________________________________________________
1a) EMAIL ADDRESS OF APPELLANT(S)_____________________________________________
2) LOCATION AND BRIEF DESCRIPTION OF PROPERTY AT ISSUE IN THIS
APPEAL:___________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
3) WHAT ACTION OF THE ADMINISTRATIVE OFFICER ARE YOU APPEALING?
______________________________________________________________________________
4) WHAT PROVISIONS OF THE LAND DEVELOPMENT REGULATIONS ARE
APPLICABLE TO THIS APPEAL, IF ANY?
______________________________________________________________________________
2 Appeal Form. Rev. 12-2011
5) WHAT RELIEF DO YOU WANT THE DEVELOPMENT REVIEW BOARD TO GRANT?
_________________________________________________________________
_________________________________________________________________
6) WHY DO YOU BELIEVE THAT THE RELIEF REQUESTED IN NUMBER 5, ABOVE, IS
PROPER UNDER THE CIRCUMSTANCES?
_________________________________________________________________
_________________________________________________________________
NOTE: NOTIFICATION of ADJOINING PROPERTY OWNERS: Notification of adjoining
property owners, in accordance with 24 V.S.A. §4464(a) and Section 17.06(B) of the South Burlington
Land Development Regulations, is the responsibility of the appellant. After deeming a request complete,
the Administrative Officer will provide the appellant with a draft meeting agendas or public hearing
notice and sample certificate of service. The sworn certificate of service shall be returned to the City
prior to the start of any public hearing.
I hereby certify that all the information requested as part of this notice of appeal has been submitted and
is accurate to the best of my knowledge.
_________________________________________
SIGNATURE OF APPELLANT
________________________________
DATE
_________________________________________________________________
Do not write below this line
DATE OF SUBMISSION:__________________________________
I have reviewed this application and find it to be:
Complete Incomplete
_______________________________________________________
Administrative Officer Date
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.
180 Market Street, South Burlington, Vermont 05403 | 802-846-4106 | www.southburlingtonvt.gov
TO: South Burlington Development Review Board
FROM: Marla Keene, Development Review Planner
SUBJECT: #AO-22-03 29, 31, 39, 41 Elm Street
DATE: September 20, 2022 Development Review Board meeting
Bruce Leavitt, of 312 Four Sisters Road, (“the Appellant”) has filed an appeal of the Administrative
Officer’s decision to issue zoning permits #ZP-22-304 and #ZP-22-318.
The Appellant has cited the definition of height, Table C-2 Dimensional Standards, and Figure 3-1b as the
applicable standards.
The Administrative Officer notes that the rules applicable to the zoning permit under appeal are the
Land Development Regulations adopted March 21, 2016. Though the language of the sections cited by
the Appellant has not changed from the March 21, 2016 LDR to the current LDR (adopted May 2, 2022),
the pagination and some of the section numbering has changed.
Background:
• Final plat decision #SD-17-14 included the following finding pertaining to height.
The applicant indicates that the proposed buildings will not exceed 28 feet in height. The Board finds
this criterion is met.
• The March 21, 2016 LDR defines height as follows
Height. The vertical distance of a building measured from the average preconstruction grade level
at the base of the building to the highest point of the roof if the roof is flat or mansard, or to the
average level between the eaves and the highest point of the roof if the roof is of any other type.
Height calculation of a building shall include rooftop apparatus such as solar collectors, chimneys,
spires, towers, elevator and mechanical penthouses, air conditioning equipment, water tanks,
satellite dishes, radio and television antennas, and similar projections, except as set forth in Section
3.07 of these Regulations. Chimneys (as defined in these Regulations) for residential structures shall
be exempt from the height limitations. Height of a structure that is not a building shall be measured
from the average preconstruction grade level at the base of the structure to the highest point of the
structure.
• LDR 3.07A references Figure 3-1 by stating “Maximum allowable building heights are illustrated in
Figure 3-1, Height of Structures.” Figure 3-1b illustrates how height is measured in three scenarios.
None of these three examples match the rooflines proposed in #ZP-22-304 and #ZP-22-318.
• The applicant’s applications for #ZP-22-304 and #ZP-22-318 included plans showing the height to
various points on the structure, and a computation of height as measured from the approved grade.
The rooflines proposed in #ZP-22-304 and #ZP-22-318 involve multiple pitches, and on the highest
pitch, the distance from the eaves to the apex varies from one side to the other. The administrative
officer has applied the the definition of height and figure 3-1b to these applications by calculating
the average height from the average grade to the average midpoint of the roof. The administrative
officer has prepared the following simplified illustration of the highest pitch of the roof and how
height is calculated.
The applicant has performed their computation of height slightly differently, in that they have
measured the eaves and apex to a baseline (in this case, the top of foundation), and then adjusted
to the average grade.
• In the case of #ZP-22-304, the height computation is as follows.
𝐻𝑒�ℎ𝑖�𝑡=
𝐸𝑎𝑣𝑒1′+𝐸𝑎𝑣𝑒2′
2 +𝐴𝑛𝑒𝑥′
2 +(𝐸𝑙𝑒𝑣𝑎𝑡�ℎ𝑛𝑛𝑇𝑂𝐹− 𝐸𝑙𝑒𝑣𝑎𝑡�ℎ𝑛𝑛𝐴𝑣𝑔𝐹𝑟𝑎𝑑𝑑)
𝐻𝑒�ℎ𝑖�𝑡=
10′8" + 21'7 1/2"
2 +32′8 1/4"
2 +(392.95 −390.80)=26.5667′
Note: The applicant has not specifically included the Top of Foundation elevation in their
computations. This elevation has been derived from the other provided values.
• In the case of #ZP-22-318, the height computation is as follows.
𝐻𝑒�ℎ𝑖�𝑡=
𝐸𝑎𝑣𝑒1′+𝐸𝑎𝑣𝑒2′
2 +𝐴𝑛𝑒𝑥′
2 +(𝐸𝑙𝑒𝑣𝑎𝑡�ℎ𝑛𝑛𝑇𝑂𝐹− 𝐸𝑙𝑒𝑣𝑎𝑡�ℎ𝑛𝑛𝐴𝑣𝑔𝐹𝑟𝑎𝑑𝑑)
𝐻𝑒�ℎ𝑖�𝑡=
10′8" + 21'7 1/2"
2 +32′8 1/4"
2 +(393.5 −391.50)=26.4167′
Note: In this case the applicant has specifically included the Top of Foundation elevation in their
computations.
Conclusion:
The height of both buildings is less than the approved height of 28 ft as measured from average grade,
therefore both #ZP-22-304 and #ZP-22-318 were properly issued.
Respectfully Submitted,
Marla Keene, P.E.
Development Review Planner
Appeal of Permits ZP-22-304 an ZP-22-318
Dear South Burlington Developmental Review Board,
Thank you for considering my appeal of permits ZP-22-304 (39 & 41 Elm Street) and ZP-22-318
(29 & 31 Elm Street) each approved on 8/4/2022. I will be in Africa on September 20th
performing life-saving heart surgery on adolescent Rwandans and cannot be present at the
meeting. I do not know if the Internet connection in Rwanda will be robust enough for me to
participate online. Therefore I am designating my neighbor, Rosanne Greco, to speak on my
behalf.
I am a 34 year resident of South Burlington and have lived at 312 Four Sisters Rd in South
Burlington since 1999. I qualify as an interested party as my property is adjacent to the Spear
Meadow project being developed by The Snyder Group.
A few months ago I noticed a building being constructed on Spear Street that seemed
excessively high. I’m familiar with roof height limitations since the roof line on my house had to
be adjusted to comply with the height restrictions at the time. As a concerned South Burlington
citizen, I feel that buildings in a development next to mine should conform to the city’s height
standard, just as I and others have complied with city regulations. I went to the South
Burlington zoning office to express my concern that this building violated the height standard. I
was told to file a formal complaint which I did via email. A week or so later I noticed that the
roof was being removed. I assumed this was a response to my official complaint.
Shortly after this, the developer submitted a second design on August 2nd, which was approved
by Marla Keene on August 4th. The design is noted below. However, based on the information
that the developer submitted, compared with the LDR language, this roof height also exceeds
LDR standards. Moreover, aesthetically, it looks grossly out of place. Since I can see this
development from my house, I am concerned that the other 40+ houses in the development
will be excessively high.
I think that the city zoning staff mis-read or mis-interpreted the LDRs by approving these two
permits. Table C-2 of the LDRs in effect for this development states that the maximum
allowable height for two-family buildings with pitched roofs in the SEQ-NR is 28 feet. The LDRs
define “Height” as “[t]he vertical distance of a building measured from the average
preconstruction grade level at the base of the building to the highest point of the roof if the
roof is flat or mansard, or to the average level between the eaves and the highest point of the
roof if the roof is of any other type.”
The buildings in question have pitched roofs so the “Height” is simply “[t]he vertical distance of
a building measured from the average preconstruction grade level at the base of the building to
the … average level between the eaves and the highest point of the roof.”
Figure 3-1 illustrates this definition:
The permits at issue here apply an odd definition of “Height” (by reference to the roof eaves
and the first-floor eaves at the back of each building).
In particular, the calculation of “Height” contained in permit #ZP-22-318 reads as follows:
The calculation of “Height” contained in permit # ZP-22-304 reads as follows:
Both permits calculate “Height” as the distance from the preconstruction grade to a point
midway between the highest point of the roof and another point that is the midway point
between the lower eave and the upper eave. In effect, the applicant has re-written the
definition of Height as the vertical distance of a building measured from the average
preconstruction grade level at the base of the building to the … average level between the
average level between the eaves and the highest point of the roof.
This is not what the LDR regulation states.
Moreover, the purpose of providing for a limit on “Height” is to ensure that homes are visually
appealing and consistent with the neighborhood. Given this, it is obvious that calculating the
“Height” of a building must use the visible face of the building that is being measured. That is, a
building which has a roof with eaves at different levels on different faces would have a different
height for each face. Measuring the “Height” of a building by using an eave which a viewer
cannot see would negate the purpose of providing for a maximum height.
The permit which was approved uses a unique calculation devised by the developer which
defies common sense and is in conflict with the meaning and intention behind the LDR
language. Simply put the LDRs say that to calculate the overall height of a pitched roof house,
one averages two numbers: the height at the top of the roof and the height of the eaves. (Note:
according to the dictionary, the word “eave” referring to a single area of a house is normally
used in the plural “eaves.” Therefore, it is reasonable to assume that the word “eaves” in the
LDRs was not intended to apply to multiple eaves in the calculation of the building height.)
Because the objective is to assess the height of the building, if there are multiple eaves, the
uppermost eave on the face that is being measured is the one to be used. But, the developer
did not do this. Rather, he selected two eaves, one over the second floor and one behind the
house over the first floor. He averaged the heights of these two eaves, added this average to
height of the peak, and then averaged these two numbers. He used the average of the average.
This creative math does not match the words in the LDRs.
When the height is correctly calculated it is clear that the “Height” of each of the buildings is
more than the 28-foot maximum allowable height.
The correct calculation of “Height” for the structure at 39 & 41 Elm Street is 29 feet and 2
inches as shown below:
[A] Roof Eave (from T.O.F.) 21.625
[B] Highest Peak (from T.O.F.) 32.6875
[C] Midway Point between Roof Eave and Highest Peak (from T.O.F.) ((A + B)
/2)
27.15625
[D] T.O.F. Above Preconstruction Grade 2
[E] Height (C + D) 29.15625
The correct calculation of “Height” for the structure at 29 & 31 Elm Street is (at least) 29 feet 3
inches as shown below:
[A] Roof Eave (from T.O.F.) 21.625
[B] Highest Peak (from T.O.F.) 32.6875
[C] Midway Point between Roof Eave and Highest Peak (from T.O.F.) ((A + B)
/2)
27.15625
[D] T.O.F. Above Preconstruction Grade 2.15
[E] Height (C + D) 29.30625
The illustration below shows how the applicant determined the height (in (B)) and how the
height should have been calculated (in (A)).
I think I understand why the height of these buildings exceed the LDR regulations. After my
appeal was filed, Mr. Chris Snyder emailed asking to speak with me . We spoke over the phone
the next day. He told me that they had increased the height of the first floor living area from 9
to 10 feet, and increased the height of the second floor from 8 foot to 9 feet. I believe this is
why the roof is over the height limit.
Although I am not an architect, I think the LDRs are clear in how to measure the overall height
of a residential building: add the height of the uppermost eave to the height of the peak of the
house and divide by 2. It makes no sense to add the heights of multiple eaves at other locations
on the house, average them, and then add in the height of the peak and then average that with
the average of the other peaks.
Thank you for your time and consideration.
Sincerely,
Bruce J Leavitt
312 Four Sisters Rd.
South Burlington, VT 05403