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HomeMy WebLinkAboutAO-07-04 - Decision - 0435 Dorset StreetCITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING AND ZONING VEVE ASSOCIATES, LLP - 435 DORSET STREET APPEAL #AO-07-04 FINDINGS OF FACT AND DECISION Veve Associates, LLP, hereinafter referred to as the applicant, appeals the decision of the Administrative Officer in Notice of Violation #NV-07-18, 435 Dorset Street. The Development Review Board held a public hearing on Tuesday, February 19, 2008. Mark Sperry represented the applicant. Based on testimony provided at the above mentioned public hearing and the plans and supporting materials contained in the document file for this application, the Development Review Board finds, concludes, and decides the following: FINDINGS OF FACT 1. The applicant appeals the decision of the Administrative Officer contained in Notice of Violation #NV-07-18, 435 Dorset Street. 2. The owner of record of the subject property is Veve Associates, LLP. 3. The subject property is located in the Residential 7 (R7) Zoning District. 4. In early October of 2007, the Planning and Zoning Office received a phone call from an individual who reported that trees were being cut at 435 Dorset Street. Administrative Officer Raymond Belair investigated and took a series of photos on October 4, 2007. 5. On October 11, 2007, the Administrative Officer mailed via Certified Mail a Notice of Violation (#NV-07-18) to Veve Associates, LLP, informing them of the Administrative Officer's determination that the following zoning violations existed on the subject property: Alteration of the existing site plan by removal of vegetation and the removal and placement of fill in several areas on the property and encroachment into a wetland and wetland buffer, all without a zoning permit. 6. On October 25, 2007, the appellant submitted a Notice of Appeal, appealing the determinations in the Notice of Violation. 7. The final plat approval for 104 residential units on this property was approved by the Planning Commission on May 24, 1977. The last City approval for this property was on April 9, 1984, when the Zoning Board of Adjustment approved a variance to exceed the density and allow a maintenance building with an office and apartment on the second floor. 8. The 1977 approved plans include a landscaping plan. One of the purposes of the landscaping was to screen the structures and uses on the subject property from neighboring properties. The approved Phase I landscaping plan proposed that certain existing trees on either side of the pedestrian path through the middle of Phase I be saved and required that appellant plant at least 45 pine trees along the shared boundary line with Town Square Associates. The final plat approval also required that appellant submit a landscaping plan for Phase II of the project. The City does not have any record that appellant complied with this requirement. Therefore, appellant's Phase II landscaping plan is that which existed on the property at the time that appellant obtained the last Certificate of Occupancy for the subject property. When appellant removed trees from areas where the site plan required that the trees be saved or removed proposed trees that are depicted on the approved landscaping plan, he changed a site plan without first seeking approval, in violation of the Land Development Regulations. 9. The zoning violation is the result of the appellant cutting trees on the property, thereby altering an approved landscaping plan without site plan approval from the Development Review Board. The cutting and removal of trees also involves encroachment into the Interstate Highway Overlay District (IHO) along the property's westerly boundary. The City has never approved an encroachment into the IHO district. 10. The appellant submitted a plan for approval in 1996 which was never approved. This plan allegedly shows existing site conditions, but appellant failed to include the IHO district encroachments. Therefore, appellant did not encroach into the IHO district until after 1996. 11. The Administrative Officer agrees that appellant did not encroach into a wetland or a wetland buffer. CONCLUSIONS OF LAW 1. Section 13.06(B)(6) of the Land Development Regulations reads as follows: "Maintenance and responsibility. All planting shown on an approved site plan shall be maintained by the property owner in a vigorous growing condition throughout the duration of the use. Plants not so maintained shall be replaced with new plants at the beginning of the next immediately following growing season". The trees which have been cut are no longer in a "vigorous growing condition" and have not been replaced. These trees were either required as part of the Phase I Landscaping Plan or were in place at the time that appellant obtained a certificate of occupancy for the last constructed building on the property. Section 14.03(A) of the Land Development Regulations states that "[s]ite plan approval shall be required prior to issuance of a zoning permit ...for... (3) Any alterations or change to an approved site plan". The Board concludes that appellant's removal of trees and vegetation, without site plan approval, was a violation. 2. Section 10.04(C)(1) of the Land Development Regulations prohibits the encroachment into the Interstate Highway Overlay District unless approved by the Development Review Board. Since no approval for the existing encroachments has ever been obtained, said encroachments are in violation of the Land Development Regulations. DECISION Motion by f �fi�1\ �� t'y`�u , seconded by ��` to uphold and affirm the Administrative Officer's determination contained in Notice of Violation #NV-07-18, 435 Dorset Street that appellant altered the existing site plan by removal of vegetation, without obtaining site plan approval. Mark Behr— yea/nay/abstain not prese�-— Matthew Birmingham — yea/nay abstain John Dinklage -4 nay/abstain/not present Roger Farley — ea ay/abstain/not Dresent Eric Knudsen — yea/ ay/abstain t rese Peter Plumeau — nay/abstain/not present Gayle Quimby — e nay/abstain/not present Motion carried by a vote of I L? - v Signed this / �X day of April 2008, by John Dinklage, Chair G' Please note: You have the right to appeal this decision to the Vermont Environmental Court, pursuant to 24 VSA 4471 and VRCP 76 in writing, within 30 days of the date this decision is issued. The fee is $225.00. If you fail to appeal this decision, your right to challenge this decision at some future time may be lost because you waited too long. You will be bound by the decision, pursuant to 24 VSA 4472 (d) (exclusivity of remedy; finality).