HomeMy WebLinkAboutAgenda 06_AO-23-01_410 Shelburne Road_Payson
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-23-01 Appeal of AO Decision
DATE: October 3, 2023 Development Review Board meeting
This memo was modified on 9/28/2023 after initial publication. Modifications are in green.
Appeal #AO-23-01 of Robert Payson and Kathy Brunette (17 Apple Tree Court, Burlington) appealing the
decision of the Acting Administrative Officer that there is no performance standard violation at 408 Shelburne
Road.
This cover memorandum briefly provides the project history and the applicable standards, and 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 determine whether an error has been made by the Zoning Administrative
Officer in determining there is no violation of the Land Development Regulations. The appellant has not
requested a variance.
The subject building has been in place since prior to 1994, at which time it was identified on a conditional use
site plan as an existing restaurant. In October, 2022, the applicant obtained zoning permit #ZP-22-413 for
interior renovations to construct and install a wood fired oven and grill. This did not constitute a change in use,
as the property was already approved for restaurant use, therefore no site plan approval was required or
obtained. Zoning certificate of occupancy is not required where there is no site plan approval.
As described in the Acting Administrative Officer’s testimony, the Acting Administrative Officer received two
phone calls from the appellant, Robert Payson, stating that odors from the property were objectionable.
Applicable Standards
A summary of the relevant provisions of the Land Development Regulations is as follows.
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3.16 General Performance and Maintenance Standards
A. Purpose of Performance Standards.
Consistent with the general purposes of these regulations, performance standards (see Appendix A) shall set
specific controls on potentially objectionable external aspects of such non-residential uses so as to:
(1) Reduce to a reasonable minimum the dissemination of smoke, gas, dust, odor, or other atmospheric
pollutant outside the structure or beyond the property boundaries in which the use is conducted.
B. Hazardous Conditions Prohibited.
No land or structure in any district shall be used or occupied in any manner so as to cause hazardous or
objectionable conditions to exist or to in any way endanger users of the site or the surrounding area. Such
hazardous or objectionable conditions include but are not limited to dangerous, injurious, noxious or
otherwise objectionable biohazard, fire, explosive, or other hazard; or to create any noise, vibration, smoke,
dust, odor, air pollution, heat, cold, dampness, electromagnetic or radioactive radiation, glare, toxicity or
other hazardous or objectionable condition on the site or in the surrounding area.
C. Performance Standards.
The use of any substance or process so as to create any hazardous or objectionable condition on the site or in
the surrounding area shall be prohibited except at levels in conformance with the requirements of this section
and the performance standards listed in Appendix A, Performance Standards.
D. Review of Performance Standards.
(1) The Administrative Officer shall withhold a zoning permit or certificate of occupancy until satisfied
that the proposed construction or use will comply with the performance standards in Appendix A,
Performance Standards.
(2) Continued performance with such standards, once applicable, shall be a requirement for the
continuance of any certificate of occupancy.
(3) Furthermore, the Administrative Officer, upon determination at any time that a use is exceeding or
may exceed performance standards or will in any way create potentially hazardous conditions shall
require an application for conditional use review under the requirements of Article 14, Conditional Use
Review and this section.
Hazardous conditions are as defined by the performance standards in Appendix A; anything exceeding those
thresholds is prohibited. Potentially applicable hazards in this situation were A.4 Air Pollution and A.5 Odors.
A.4 Air Pollution
(a) Visible Emissions. There shall not be discharged into the atmosphere from any source at any time
any air pollutant in excess of specified darkness standards (No. 1 on the Ringlemann Chart, except under
specified conditions contained within air pollution standards). This shall include emissions of air
pollutants of such capacity as to obscure an observer’s view to a degree equal to or greater than the
above visible emission standard. Visible emission of any kind at ground level past the lot line of the
property on which the source of the emissions is located are prohibited.
(b) Pollutants. All discharge or emission of potentially dangerous or offensive elements into the air shall
be subject to the requirements of all applicable local, state, and federal regulations.
A.5 Odors
(a) No emission shall be permitted of odorous gases or other odorous matter in such quantities as to be
readily detected or as to interfere unreasonably with the comfort of the public.
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Staff considers ready detection and unreasonable interference to be the first tests that the Administrative
Officer must use in determining whether a performance standard is potentially being violated.
(b) Any process which may involve the creation or emission of any odors shall be provided with a
secondary safeguard system so that control will be maintained if the primary safeguard system should
fail.
(c) Table III, Odor Thresholds in Chapter 5 of the Air Pollution Abatement Manual, copyright 1951 by the
Manufacturing Chemists’ Association, Inc. or its equivalent shall serve as a guide to determining such
quantities of offensive odors.
Staff reminds the Board that this appeal is of the Administrative Officer’s decision that no violation of the Land
Development Regulations pertaining to hazardous conditions was occurring at the time of the site inspection.
Staff notes the Board is not required to determine what to do if there is a hazardous condition occurring; it
merely must decide whether to uphold the Administrative Officer’s decision that there was no prohibited
hazardous condition.
Index of Attachments
1. #ZP-22-413
2. Appeal application form and attachments. The applicant has not provided any additional testimony
beyond what is indicated on the application form and attachments.
3. Testimony of the Acting Administrative Officer
4. Testimony of Appellant
5. Testimony of permit holder
RECOMMENDATION
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
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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.
• Acting Administrative Officer – The Administrative Officer can lay out the facts of the
zoning permit & inspections performed.
• 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,
Marla Keene, Development Review Planner
C1-R15
construct wood fired oven and grill (interior renovations)
10/18/2022
11/3/2022 10/17/2023
Dear Board:
Mr. Payson contacted the Planning & Zoning Department in February to inquire about air quality
standards in South Burlington, and again in June to report his concerns regarding the wood smoke
emissions generated by the operaƟon of Myer’s Bagels at their new locaƟon at 408 Shelburne Road in
South Burlington.
In June, I reviewed our Land Development RegulaƟons and our various Ordinances for any regulatory
language that could regulate wood smoke emissions, and determined that our Performance Standards
for both ‘Air PolluƟon’ (Appendix A.4) and ‘Odors’ (Appendix A.5) might apply to the situaƟon Mr. Payson
had described.
On Friday, July 7, I performed a site visit at approximately 10:00 am during hours of operaƟon Myer’s
Bagels was open for business. I walked around the building and made specific observaƟons at two
locaƟons; one towards the rear of the Myer’s Bagels lot, and another in the public right-of-way next to
17 Apple Tree Court (see aƩached map for specific observaƟon locaƟons).
I observed no odors in violaƟon of the ‘Odors’ Performance Standard and observed no visible emissions
in violaƟon of the ‘Air PolluƟon’ Performance Standard. As a result, I determined that, at the Ɵme of this
site visit, there was no evidence that Myer’s Bagels was in violaƟon of either relevant Performance
Standard. I concluded that no further invesƟgaƟon was necessary. I communicated this informaƟon to
Mr. Payson in a July 7th email.
Thank you,
Marty
275 COLLEGE STREET, PO BOX 4485 | BURLINGTON, VT 05406-4485 | PHONE 802 861-7000 | FAX 861-7007 | MSKVT.COM
Via Electronic Mail
September 19, 2023
Marla Keene, PE
Development Review Planner
City of South Burlington
180 Market Street
South Burlington, VT 05403
mkeene@southburlingtonvt.gov
Re: AO-23-01 480 Shelburne Road (Myer’s Wood Fired Bagels)
Appeal of Administrative Officer Decision
Dear Marla,
Enclosed for the October 3, 2023 hearing on the above-referenced matter please find:
1. Background statement of Robert Payson;
2. Aerial photo of location;
3. Photos of smoke stack;
4. Photo of wood pile;
5. Photo of smoke stack cleaner at Folino’s Pizza in Burlington;
6. Newspaper article published by Quartz concerning wood-burning ovens; and
7. Video of smoke.
At the hearing, we expect that Mr. Payson, his wife Kathy Brunette and other neighbors on
Apple Tree Court will state that they are affected by the smoke coming from Myer’s Bagels.
Please do not hesitate to contact me with any questions.
Thank you.
Very truly yours,
Liam L. Murphy
Liam L. Murphy, Esq.
lmurphy@mskvt.com
cc: Robert Payson
Carl Lisman, Esq.
Myer’s Wood Fired Bagels
Enclosures
1
Background Information
Re: AO-23-01 480 Shelburne Road (Myer’s Wood Fired Bagels)
Appeal of Administrative Officer Decision
My wife, Kathy Brunette and I have resided at 17 Appletree Court since September 1, 2014.
Our backyard adjoins 408 Shelburne Road, which has had many restaurants during the time we
have lived here. We have had no issues with the former restaurants at that location.
However, once Myer’s Wood Fired Bagels opened in April, 2023, we immediately started to
experience wood smoke in our house if the windows were open. When the wind is blowing from
the west (which is predominate) we cannot be on our porch or open any windows. Again,
depending on the wind direction, one can smell wood smoke throughout the Eastwoods
neighborhood. We are not only smelling the wood smoke but breathing it in.
I contacted South Burlington zoning on February 22nd about my concerns as to the Myer’s
Bagels wood fire oven and was sent a copy of the South Burlington regulations.
I spoke with the owner of Myer’s Bagels at the back door of the restaurant on May 5th. He said
he would speak to his landlord, Mr. Larkin about the smoke.
I sent certified letters to Mr. Larkin, the building owner, and Mr. Jones, the restaurant operator,
on May 31st. They were received June 2nd. The letter asked if there are any plans to remediate
the wood smoke. I have not received a reply.
The building permit filed for remodeling of the restaurant at 408 Shelburne Road does not list the
construction of a wood fired oven. A wood fired oven is a change of use of the property and
should have gone before the DRB for approval as the wood smoke affects the neighborhood
more than the aromas emanating from a traditional commercial kitchen.
I made a complaint to the City in June of 2023 and had a discussion with Marty Gillies on June
23rd.
He wrote back to me on June 23rd regarding the performance standards and among other things
stated:
> In terms of Performance Standard A.5.a, it would likely be an involved
> and drawn-out process to prove that Myer's is emitting wood smoke in
> such quantities as to 'interfere unreasonably with the comfort of the
> public'. As such, we would prefer to address this issue without
> formally citing Myer's for a violation of these standards, since that
> could put us in a slightly precarious legal position. However, I have
> reached out to the property owner with an informal request that he
> identify how they intend to mitigate the wood smoke emissions from the
> site and he told me that he will have an update on that next week. I
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> will continue to monitor this situation and will keep you informed of
> any relevant developments.
>
I followed up on July 5th.
Marty Gillies came to visit on July 7th without notice. He did not smell anything around the
restaurant and we were not home when he visited our house. Following his visit, he wrote stating
in part:
I do not believe that Myer's Bagels is presently in violation of Performance Standard A.5(a),
which prohibits the emission of "odorous gases or other odorous matter in such quantities as to
be readily detected or as to interfere unreasonably with the comfort of the public".
That is not to say that this case is closed - we can certainly revisit this issue in the future. You
also retain a couple of options for action, including challenging/appealing my decision to not
pursue enforcement for a violation of the Performance Standards.
I filed an appeal of the decision on July 20, 2023
A hearing was scheduled for September 6, 2023. Following the appeal, discussions were initiated
with the property owner, the Larkins. We were informed that they would work with Myer’s to
come to an amicable resolution. Various suggestions were made as to how the issue might be
resolved by means of a filter. However, we were recently informed that the Larkins did not
consider the matter to be their responsibility and that Myer’s were not interested in pursuing a
solution.
Sincerely,
/s/ Robert Payson
Robert Payson
STOKING THE IRE
Wood-burning ovens produce delicious food and dangerous air
pollution
By
Annaliese Griffin
PublishedOctober 23, 2018
In an effort to reduce harmful wintertime smog, Montreal has set
strict standards for residential wood-burning stoves and fireplaces,
essentially making it illegal to burn wood within the city limits using
anything other than the newest, cleanest stoves. With the ban in
place, city officials have indicated that they will now focus on
commercial wood-burning ovens, and grills, namely those used to
produce Montreal’s famous bagels, as well as Portuguese-style piri
piri chicken.
“We are aware that these are iconic for Montreal, the bagels, the
Portuguese chicken,” Jean-François Parenteau, the city of Montreal’s
executive committee member responsible for environmental
issues told the Montreal Gazette. “We realize that people are really
attached to these things.”
Montreal is not alone in the move to modernize cherished cooking
traditions that also happen to be harmful to air quality.
New York City’s mayor, Bill De Blasio, proposed new regulations for
wood- and coal-fired ovens in 2014, though there has been little
forward movement on it since. In 2015, San Vitaliano, Italy, a small
Neapolitan town, required that all wood-burning stoves and ovens,
including those cooking the region’s famous pizza, reduce their
emissions through the use of filters or other technology—a regulation
that caused much outrage. A 2016 paper in Atmospheric
Environment outlined the air pollution issues, and deforestation,
caused by Brazil’s considerable appetite for wood-fired pizza.
It’s not just that wood-burning ovens contribute to carbon emissions.
Wood smoke—which gives food its delicious, smokey flavor—contains
very fine particulates that penetrate deep into the lungs and
exacerbate respiratory conditions like asthma.
“If you live next to a home or restaurant with a wood-burning
fireplace, your health is screwed,” Brian Moench, president of Utah
Physicians for a Healthy Environment, told Salt Lake City Magazine.
“You might as well live in Beijing.”
There’s also a layer of foodie privilege evident in the debate. “We’ve
had a fundamental connection between fire and food since the
beginning of time,” the renowned farm-to-table chef Alice Waters
told the LA Times in 2001, when the Berkley City Council voted to
restrict new wood-burning ovens and grills in restaurants. “Until we
stop driving cars, I’d rather live in a world with wood-burning ovens.”
She’s not wrong. Cooking in a wood-fired oven is exciting, dynamic,
and elemental. Take a bite of Texas-style brisket, eggplant bharta, or
Irish cold-smoked salmon and try to argue against the power of wood
smoke as a path to deliciousness.
The oven at Waters’ own California restaurant, the temple to
sustainable eating Chez Panisse, was grandfathered in under that
Berkeley ordinance, and makes an appearance during a lesson in
cooking meat in the new Netflix show Salt, Fat, Acid, Heat. On
chef David Chang’s show, Ugly Delicious, he eats with René Redzepi
and the Noma chef’s family in their home in Copenhagen, which
includes a hearth in the kitchen. There’s a romance to cooking over a
roaring fire that is undeniable.
At the same time, the World Health Organization estimates that
around the world about three billion people have no choice but to do
their daily cooking on open fires using wood, dung, charcoal or other
highly polluting solid fuels, often in poorly ventilated spaces.
Breathing the particulates results in nearly four million premature
deaths each year. In particular, close to half of pneumonia deaths
among children under five worldwide are caused by soot inhaled from
household air pollution.
Cigarettes have been banned in restaurants around the world, but
staffers are still exposed to smoke from ovens, and many complain of
respiratory symptoms. An international group of doctors and
scientists has come together to warn against the carcinogenic
properties of this smoke.
Banning wood-fired ovens in buzzy restaurants and cherished bagel
spots won’t solve the global problem, but it seems a relatively small
price to pay: a minor loss of smokey flavor and rustic charm for a few,
to ensure cleaner air for all.
September 16, 2023
Adam Jones
Myer’s Wood Fired
408 Shelburne Road
Burlington, VT 05401
(802) 863-5013
Cell (802) 238-2081
Dear South Burlington Review Board:
In conjunction with the current “Development Notice” appeal by Payson/Brunette, I wanted to
add what information we have found to date with our attempt to find resolution for their issue.
I have made inquiries with the following groups:
Brickliners Chimney Repair, Williston
Mt Mansfield Chimney, Colchester
Catamount Chimney, Fletcher
Above the Rest Chimney, Morrisville
All establishments stated they were not aware of screens, filters, devices, etc
that would help to eliminate the “SMELL” of wood fire.
Avonda Air Systems, South Burlington
This is the Air/HVAC group that did the construction all our hood systems, ansel
systems, and chimney vent for our oven, grill, and griddle at 408 Shelburne
Road. They also were not aware of any device, system to help eliminate the
“SMELL” of wood burning. They only project they were involved in similar was
with Zero Gravity and trying to offset the smell of the beer making process. The
system they researched for that instance was an Osmosis/Water Vapor cleaning
as the byproduct of brewing was steam. They stated it would not work for the
dry direct burn of wood and the smell it produces since it is a direct fuel.
Foam Brewers, Burlington
Foam also looked into eliminating the smells from their brew processes and
came across a device called a catalytic combustor. This too would help act as
a filter to ‘water laden vapors’ as a secondary way to catch smells in water
exhausts (steam). After passing the name of this device to all the above
establishments, they all agreed this would not influence the SMELL of burning
wood…and also could create a fire hazard issue in relation to the direct temp of
the fuel source.
Folino’s Pizza, Burlington
I spoke to one of the owners, Buddy Koerner, and asked about the ‘need’ to put
something in their Burlington place to reduce the smell of their oven process and
if we could take note on it. He stated they have never been asked to modify,
change, or amend their cooking process of the wood oven since they started in
Burlington…or any of their locations. They have put in the same type of system
in all of their spots, all per local guidance of building permits, fire
permits/regulations, and city ordinances. As of August 25, 2023, he has not
received any complaints regarding their smell in Burlington.
Please also note that if a reasonable, cost-effective solution does exist to eliminate “SMELLS” of
wood burning, we are very happy to put in place. The specific point that I would like to add is
that the Payson/Brunette complaint is not about “smoke” becoming a nuisance, but the
apparent smell of the wood burning process.
Many other neighboring homesteads in the area have offered to testify of their experiences if
necessary. At this point I did not feel it would be necessary to have them take their personal
time to contribute to this situation. Again, we have been and our continuing to see what other
ideas/option might exist that can make this an amicable solution for both parties.
Thank you,
Adam Jones
Owner, Myer’s Wood Fired
802/238-2081
Cc: Joe Larkin
Pietro Lynn