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Home My WebLink AboutAO-22-03 - Supplemental - 0029 0031 0039 0041 Elm Street 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 3 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