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HomeMy WebLinkAboutAO-22-03 - Decision - 0029 0031 0039 0041 Elm Street#AO-22-03 1 CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING AND ZONING CITY OF SOUTH BURLINGTON – 29, 31, 39 & 41 Elm Street APPEAL OF THE ADMINISTRATIVE OFFICER #AO-22-03 FINDINGS OF FACT AND DECISION 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. The Development Review Board held a public hearing on September 20, 2022. Roseanne Greco represented the appellant. Based on the plans and materials contained in the document file for this application, the Board finds, concludes, and decides the following: FINDINGS OF FACT 1. Bruce Leavitt is 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. 2. The owner of record of the subject properties is Spear Meadows, Inc. 3. The subject property is located in the Southeast Quadrant-Neighborhood Residential Zoning District. 4. 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. 5. 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. 6. 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’. 7. 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). 8. These most recent zoning permits are the subject of the appeal. 9. The appellant submitted a notice of appeal which was deemed complete by Staff on August 18, 2022. 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 #AO-22-03 2 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 to 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. Relevant Land Development Regulations The maximum height of the buildings is the subject of the appeal. The relevant standard and definitions are as follows: Section 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-22-03 3 Figure 3-1 Height of Structures As part of Zoning Permit Application #ZP-22-304, the applicant submitted a plan set, of which Sheet AA3.1B, dated 07/12/2022, shows the applicant’s height calculations. Similarly, as part of Zoning Permit Application #ZP-22-318, the applicant submitted a plan set, of which an elevation plan, dated 07/14/2022, shows the applicant’s height calculations. The Acting Administrative Officer found that the height of the proposed two-family homes did not exceed the maximum height of a principal structure with a pitched roof in the Southeast Quadrant – Neighborhood Residential Zoning District. The Acting Administrative Officer determined that the height of a building with unequal eaves should be calculated by determining the midpoint of Eave A, then determining the midpoint of Eave B, and averaging those midpoints to determine the “average level between the eaves and the highest point of the roof”. The Acting Administrative Officer relied on the use of the plural, “eaves”, in making this determination. The appellant argued that the correct interpretation of the LDR’s definition of height, in the case of a structure with unequal eaves, is to take the average level between the highest eave and the highest point of the roof. The appellant argued that whichever of the two unequal eaves is lower does not have any bearing on the height of the structure, asserting that height is commonly understood to be a calculation of how tall something is, and that because the positioning of the lower of the two unequal eaves does not affect how tall the structure is, it should not affect the calculation of structure height. The appellant further argued that the Acting Administrative Officer’s interpretation of the LDR’s definition of height was inaccurate and opens the door for manipulation by builders, potentially enabling builders to incorporate unequal eaves more often in home design in order to increase the highest allowable point of the roof. In summation, the appellant argued that the height of a building with unequal eaves should be calculated by using the midpoint of the highest eave as the “average level between the eaves and the highest point of the roof” as defined in the LDR. The Development Review Board reviewed testimony from the appellant, applicant, and Acting Administrative Officer. The Board finds that the Acting Administrative Officer’s interpretation of the definition of height of a structure with unequal eaves is the most accurate interpretation of the definition of height as presently #AO-22-03 4 defined by the South Burlington Land Development Regulations, with the plural use of the word “eaves” and “average level” within the definition of height and no illustration within Figure 3-1 providing direction for interpretation of roof structure within unequal eaves. As such, the Board concludes that the Administrative Officer did not make an error in this circumstance and rejects appeal AO-22-03 from Bruce Leavitt. DECISION Motioned by Dan Albrecht and seconded by Dawn Philibert, to affirm the decision of the Administrative Officer to permit the building height, as presented in applications #ZP-22-304 and #ZP-22-318, for the two-family homes located at 29-31 and 39-41 Elm Street. Dan Albrecht Yea Nay Abstain Not Present Mark Behr Yea Nay Abstain Not Present Frank Kochman Yea Nay Abstain Not Present Quin Mann Yea Nay Abstain Not Present Dawn Philibert Yea Nay Abstain Not Present John Stern Yea Nay Abstain Not Present Stephanie Wyman Yea Nay Abstain Not Present Motion carried by a vote of 5-1-0. Signed this ____ day of November 2022, by _____________________________________ Dawn Philibert, Chair Please note: An appeal of this decision may be taken by filing, within 30 days of the date of this decision, a notice of appeal and the required fee by certified mail to the Superior Court, Environmental Division. See V.R.E.C.P. 5(b). A copy of the notice of appeal must also be mailed to the City of South Burlington Planning and Zoning Department at 575 Dorset Street, South Burlington, VT 05403. See V.R.E.C.P. 5(b) (4)(A). Please contact the Environmental Division at 802-828-1660 or http://vermontjudiciary.org/GTC/environmental/default.aspx for more information on filing requirements, deadlines, fees and mailing address. The applicant or permittee retains the obligation to identify, apply for, and obtain relevant state permits for this project. Call 802.477.2241 to speak with the regional Permit Specialist.