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HomeMy WebLinkAboutBATCH - Supplemental - 0900 Nesti DriveJOHN M. DINSE FREDERIC W. ALLEN ROBERT H. ERDMANN MICHAELB CLAPP ROBERT C. ROESLER KAREN McANDREW JAMES H. WICK RICHARD H. GREGORY, III SPENCER R. KNAPP DINSE, ALLEN & ERDMANN ATTORNEYS AT LAW 186 COLLEGE STREET BURLINGTON, VERMONT 05402 September 20, 1977 Richard Ward, Zoning Administrative Officer City of South Burlington 1175 Williston Road South Burlington, Vermont 05401 Re: Nesti Dear Dick: TELEPHONE AREA 802-864-57S1 HILTON A. WICK OF COUNSEL I have a copy of your letter of September 14 to Doctor Nesti. In reviewing 24 V. S.A. Section 4470(b), I note that a notice of decision and findings of fact are required. I do not believe that your letter technically fulfills this requirement and would appreciate it if you would forward the appropriate decision and findings to me and also to my client. Very truly yours, DINSE, ALLEN & ERDMANN a Robert C. Roesler R CR /n 1p cc: Doctor Richard Nesti NOTICE OF APPEAL SOUTH BURLINGTON ZONING BOARD OF ADJUSTMENT I hereby appeal to the Zoning Board of Adjustment for the following: conditional use, variance, decision of administrative officer: Property Owner__j2� A 7'1 t roperty location & description Cl ;#e-76R)0,fC 1• 45e r c(-1-/ ,UAr6: Variance of Section , number) (title of section Basis of appeal I understand the regular meetings are held twice a month on Monday at 5:00 p.m. at the City Hall, Conference Room. The legal advertise- ; rant ;rust appear in the Burlington Free Press a minimum of fifteen (15) days before the hearing,•I agree to pay a fee of $30.00 which'' fee is to off -set the costs of advertising and the hearing* j hearing Date Signature of Appellant. - - -------------------------------------------------------------------------------, �LINGTON ZONING NOTICE SOUTH BU In accordance with the South Burlington Zoning Regulations and Chapter 91, Title 24 V.S.A. the South Burlington Zoning Board of Adjustment will 'Hold a public hearing at the South Burlington City Offices, Conference Room, 1175 Williston Road, South Burlington, Vermont on at - day of week month and date time to consider the following: , Appeal of ✓ C, =;� � ��rs y i seeking a , from Section._,,-�'•.�,.� �.,r' of the South Burlington Zoning Regula-•. tions. Request is for permission to ;• �- ,,r" ZONING BOARD OF ADJUSTMENT SEPTEv,3EP. 12, 1977 Mr. Ward said that Dr. Nesti had applied for a variance and been denied and that he was now appealing that decision in court. He has also submitted another request for a variance to the Zoning Board which he says is different from the first. Mr. Martineau said that he felt that the Board should not hear the appeal under the authority of Section 4470 (b) of Title 24. He said that 1) the proposed location of the building is the same (over a class B drainage ditch), which is not permitted, 2) the building is at the same location within a CO district, which is not allowed, 3) that the building, although larger, does not represent a change in the request by itself, and 4) the home could still be built within the Zoning Ordinances on some other portion of his property. In short, the request is substantially the same as the original submission and the issues raised by the appellant have been resolved in a previous appeal. e;i � Id cam, ORTHOPAEDIC ASSOCIATES 55 Main Street Essex Junction, Vermont 05452 Telephone 802-879-7441 Richard P. Nesti, M.D. David M. Bosworth, M.D. 802-864-4310 802-453-3435 September 19. 1977 Richard Ward Zoning Administrative Officer City of South Burlington 1175 Williston Road South Burlington, VT 05401 Dear Dick: September 9, 1977 when I called inquiring the time of my September 12, 1977 hearing you informed me Dick Spokes, the South Burlington town attorney, denied us the privilege of a variance hearing. I am therefore surprised at your September 14 correspondence. Would you please send me a copy of the September 12 hearing minutes, a copy of the Vermont Planning and Development Act, Section 4470B referred to and the decisions rendered by each member of the zoning board for my case. I have not received a copy of the minutes and board members individual decisions from our 1975 hearing as yet. Very Truly, Dick Nesti RPN/pgb LAW OFFICES OF gyp/ SPOKES & OBUCHOWSKI 86 ST. PAUL STREET BURLINGTON, VERMONT 05401 October 3, 1977 Robert C. Roesler, Esq. Dinse, Allen & Erdmann 186 College Street Burlington, Vermont 05402 Re: Nesti -- South Burlington Dear Bobs Dick Ward has turned over to me your letter of September 20, 1977. It is my judgment that Mr. Ward's notice to you of September 14, 1977 adequately satisfies the requirements of 24 V.S.A. Section 4470(b). In any event, I am enclosing a photocopy of the minutes you requested, along with a document entitled "Findings of Fact" which should satisfy your requirements. I am also enclosing a photocopy of a letter which your client delivered to Par. Ward's office. I note that he did not send a copy to you, and it seems his questions should be more appropriately handled by his own attorney. Dr. Nesti has caused me and other city officials to spend an inordinate amount of time on his situation. We have done everything we can to help resolve the Nesti matter, and at times this has not been easy to do. The City must support the Zoning Board of Adjustment's decision to deny your client's variance request. In my opinion this decision is strongly supported by facts and law. It would seem that there must be a solution which would end the frustrations of your client, and free us all to pursue more meaningful tasks. Would it be beneficial to have another crack at a conference? Please let me know your thoughts. Very truly yours, Richard A. Spokes RAS/tb cc: Richard Ward NOTICE OF APPEAL SOUTH BURLINGTON ZONING BOARD OF ADJUSTMENT I hereby appeal to the Zoning Board of Adjustment for the following: conditional use, variance, decision of administrative officer. Property Owner Property location & description ,r Variance of Section , number title of section Basis of appeal I understand the regular meetings are held twice a month on Monday at 5:00 p.m. at the City Hall, Conference -Room. The legal advertise- ment must appear in the Burlington Free Press a minimum of fifteen (15) days before the hearing, I agree to pay a fee of $30.00 which fee is to off -set the.costs of advertising and the hearing. Hearing Date Signature of Appellant SOUTH BURLINGTON ZONING NOTICE In accordance with the South Burlington Zoning Regulations and Chapter 91, Title 24 V.S.A. the South Burlington Zoning Board of Adjustment will hold a public hearing at the South Burlington City Offices, Conference -Room, 1175 Williston Road, South Burlington, Vermont on at to consider the day of week month and date time following: #8 Appeal of Dr. Richard Nesti seeking -�' a Variance , from Section 3.10 , Permitted Uses of the South Burlington Zoning Regula- tions. Request is for permission to construct a single family dwelling approximately 32' x 481, also requiring a variance from Section 13.70 said dwelling to be located to within sixty-five (65) feet of Lake Champlain, location off Pine Haven Shore Road, Shelburne, Vermont and the South Burlington City line. Richard A..Myette Chairman Zoning Board of Adjustment august 26, 1975 Dr. T ichard Nesti PO '.ustin Drive Furlington, VT 05401 Tear Dr. Nesti: Fe advised that the "south TurlinFton oning T:oard of just- ment will hold a pultic hearing at the youth Eurlin t n City Hall, ".on.ference -loom, 12.75 illiston 'T:oad on Monday, :eptember P, 1975 at 5:00 p.m. to consider your request for zoning variance. Please plan to attend. Very truly, 1' i ch d ,: ar Zoning :`administrative ":1"fficer � / �_'t�. � .� i. i•� / ��; � as �; � '.i i i %!� 1 ..........� JOHN M. DINSE FREDERIC W. ALLEN ROBERT H. ERDMANN MICHAEL B. CLAPP ROBERT C. ROESLER KAREN McANDREW DEWITT E. MEAD JAMES H. WICK DINSE, ALLEN & ERDMANN ATTORNEYS AT LAW 186 COLLEGE STREET BURLINGTON, VERMONT OS401 July 29, 1975 Richard R. Ward, Zoning Administrator City of South Burlington South Burlington, Vermont 05401 Re: Nesti House - Shelburne South Burlington Line Dear Dick: TELEPHONE AREA 802-864-5751 HILTON A.WICK OF COUNSEL I am forwarding to you a copy of the proposed house site of the Nestis. Would you please review this in light of our previous telephone conversation in regards to the requirements of the City of South Burlington for building permits for this structure. As you will recall, you stated to me that if a small portion of the house was located in South Burlington that no building permit would be required. It appears from the sketch that only a small part of the building will be located in South Burlington. Would you please confirm in writing that no building permits will be required from South Burlington. Thank you. Very truly yours, DINSE, ALLEN & ERDMANN 6W Robert C. Roesler RCR/nlp -NOTICE OF APPEAL - SOUTH BURLINGTON ZONING BOARD OF ADJUSTMENT I hereby -appeal conditional use, Property Property (,--)1 Owner, to the - Zoning Board of Adjustment for the following: variance, decision _of admin strative officer. LAA `.. i'l, \Ila & I ii Variance of Section 1 number title of section) Basis of a e alLt.e� L,, location & descripti I understand the regular meetings are held twice a month on Monday at 5:00 p.m. at the City Hall, Conference -Room. The legal advertise- ment must appear in the Burlington Free Press a minimum of fifteen (15) days before the hear ing , _ I agree to pay a fee of $30.00 which fee is to off -set --the costs of advertising and the hearing. Hearing Date -- - - Signature of Appell t SOUTH BURLINGTON ZONING NOTICE In accordance with the South Burlington Zoning Regulations and Chapter 117 Title 21- V.S.A. the South Burlington Zoning Board of Adjustment will hold a public hearing at the South Burlington City Offices, Conference Room, '1175 Williston Road, South Burlington, Vermont on I (day of week following: Appeal of month and date a from Section _ �r . /3 • �J Gam` of th e . at time to consider the seeking South Burlington Zoning -Regula- tions. Request is for permission to January 1Q, 1977 hichard P. Nesti, M.D. ::ain ..;tree Essex Jct., VT 05452 Dear Dr. Nesti: `ickes Lumber Yard was gr�.{nte-:_ a sign permit on ;',ay 24, 1974. The pylon sign in question v-as erected witi-iin a ri ht-of-,,,ay which I believe vTas purchased by .111ickes umber prior to your purchase of the property. If a property line dispute has arisen, this is a legal matter between . ickes and yourself and in no way of"ects 0the City. Very truly, Richard Ward `` Zoning Administrative Officer it 411/4 RICHARD P. NESTI, M.D. 55 MAIN STREET ESSEX JUNCTION, VERMONT 05452 Telephone 802-864-4310 802-879-7441 January 17, 1977 Mr. Richard Ward Zoning Administrator Town of So. Burlington 1175 Williston Road So. Burlington, Vermont 05401 Dear Dick: Wickes Lumbar Yard apparently received permission from South Burlington to erect their Wickes pylon sign on our property. This may be an oversight - I hope. Yours truly,, �.(c Richard P. Nesti RPN:sm JOHN M. DINSE FREDERIC W. ALLEN ROBERT H. ERDMANN MICHAEL B. CLAPP ROBERT C. ROESLER KAREN McANDREW DEWITT E. MEAD JAMES H. WICK JAMES L. MORSE DINSE, ALLEN & ERDMANN ATTORNEYS AT LAW 186 COLLEGE STREET BURLINGTON, VERMONT 05401 Mr. Richard Ward Zoning Administrator City of South Burlington South Burlington, Vermont 05401 Re: Nesti Appeal Dear Dick: September 22, 1975 TELEPHONE AREA 802-864-S751 HILTON A.WICK OF COUNSEL It is my understanding that the Findings of Fact and Order in this matter were signed on September 16. Could you please send me a certified copy of the same in order that I may review it. I am not certain what my clients wish to do but I would like to be prepared to appeal if that is their desire. Thanks for your help. Very truly yours, DINSE, ALLEN & ERDMANN Robert C. Roesler RCR/nlp DINSE, ALLEN & ERDMANN ATTORNEYS AT LAW 186 COLLEGE STREET BURLINGTON. VERMONT STATE OF VERMONT CHITTENDEN COUNTY, SS. RECEIVED OCT 2 1975 MANAGER-g OHFICE CITY So--URLJNOTON IN RE: RICHARD and FRANCES NESTI) Appeal from South Burlington ) CHITTENDEN SUPERIOR COURT Zoning Board of Adjustment ) Docket No. NOTICE OF APPEAL NOW COMES Drs. Richard P. and Frances Nesti, and hereby appeals to the Chittenden Superior Court, the decision of the Zoning Board of Adjustment of the City of South Burlington denying the application of said petitioners for permission and/or a variance from the South Burlington Zoning Regulations. The petitioners further appeal from the Findings of Fact dated September S, 1975, in that there are unique physical circumstances or conditions surrounding this property and it is the position of the petitioners that this location would represent the minimum variance and be the most conservationaliy oriented location and will meet all other requirements of the Town Ordinances. The petitioners-appellauts request a trial of this appeal to polo. Dated at Burlington, County of Chlaenden and State of Vermont this 30th day of September, 1975. cc: Richard A. Spokes, Fsquire City of South Burlington Mr. William T. Murray Mr. Robert R. Herge Mr. ',,1a .en L. Thompson Pine Haven Shore Association James M. Farrell, Esquire DWE, ALLEN & ERDWIANN S - ROBER T C. ROESLER By: Robert C. Roesler A Member of the Firm LAW OFFICES OF EWING & SPOKES 86 ST. PAUL STREET BURLINGTON. VERMONT 05401 October 3, 1975 Paul Farrar, Chairman South Burlington City Council 1175 Williston (toad South Burlington, Vt. 05401 Dear Paul: Enclosed please find a photocopy of a z1otice of Appeal u I received this date from Rinse, Allen & Erdmann, attorneys for Richard and Frances Neati. The :Testis applied for a variance which was denied by the Zoning Board of Adjustment. Pursuant to the Vermont Planning and Development Act, they have appealed that decision to the Chittenden Superior Court, and are untitled to a de novo hearing. There is some question whether South Burlington is requirae to actively participate in the Superior Court pro- ceedings. It is arguable that the City is obligated to defend the actions of its "oning Board, but most municipal attorneys feel it is not mandatory. Any interested party who O wishes to oppose the granting of the variance by the Superior Court can intervene in the proceedings and oppose the variance request. In this particular cave, there are neighbors of the testis who participated in the Zoning Board's hearing, and undoubtedly will be represented by counsel in the Superior Court proceedings. I would recommend that the Council review this case with with Dick Myette, and make a determination whether there is sufficient city interest to become actively involved in the Superior Court appeal. Bill Szymanski and ?Tick Ward are familiar with the circumstances of this particular case, and I would suggest that the Council also confer with them. Since this is a litigation matter, I think any discussion with the Zoning Board or others should take place in an executive session. Very truly yours, Richard -A., Spokes RAS : nm Enclosure cc: Richard r4yette, Chairman cc: Zoning Board of Adjustment Richard R. Ward ity Administrative Officer cc: William J. Szymanski City Manager DINSE, ALLEN & ERDMANN ATTORNf YS AT LAW 166 COLLEGE STREET BURLINGTON. VERMONT STATE OF VERMONT CHITTENDEN COUNTY, SS. IN R.E. 12ICHARD and F[LANCES NESTI) Appeal from South Burlington ► C:H1TTENDEN SUPERIOR COURT Zoning Ward of Adjustment ) Docket No. N(. t 1(,E OF APPEAL N(ACOMES lira. Richard F. and Frances Nesti, and hereby appeals to the Ghittenden Superior Court, the decision of the Zoning Board of Adjustment of the C1ty of South Burlington denying the application of said petitioners for permission and/or a variance from the South Burlington Zoning Regulations. The petitioners further appeal from the Findings of Fact dated Septemher 8, 1975, in that ire are unique physical circumstances ur conditiotis surrounding this property and it is the position of the petitioners that this location would represent the hninimum variance and he the most conservationally oriented location and will meet all other requirements of the Town Ordinances. '[be petitioner y-appellarts request a trial of this appeal to polo. Dated at Burlington, k.;ounty of (.;hittencien and State of Vermont this 30th day of Septemi*r, 1975. cc: Richard A. Spokes, scluire uity of South Burlington Mr. W illian 'l . hurray Mr. Robert R. Herge 1rir. ,;arrexi L. 'l'Fhumgsor, Pine Haven Shore Assuciatzun Jainesi Mi. Farrell, � squirc RINSE, ALLEN R ERDMANN By: S • ROSERT C. ROESLER ubert C Aue:sler ..lernber of they 1, irm SPOKES & OBUCHOWSKI ATTORNEYS AT LAW iOUTH BURLINGTON, VERMONT STATE OF VERMONT CHITTENDEN COUNTY, SS. RE: ,kICILARD and FRANCES NESTI kppeal from South Burlington CHITTENDEN SUPERIOR COURT 7 ,oning Board of Adjustment Docket No. MEMORANDUM OF LAW OF CITY OF SOUTH BURLINGTON STRODUCTION The Appellants, Richard and Frances Nesti, appealed to thi: .,urt from an adverse ruling by the South Burlington Zoning Board Adjustment. The Nestis sought a use variance to construct a esidence in the Conservation -Open Space Zoning district wherein ructures are prohibited by the City's zoning regulations. The axing Board found that the Nesti proposal did not comply wit4h e criteria set forth in 24 V.S.A., 54463. Pursuant to statute de novo trial was held by the Chittenden Superior Court on ,nuary 26, 1978. THE VARIANNCE APPROVAL AUTHORITY OP THIS COURT IS LIMITED BY STATUTE The power of a zoning board of adjustment, or in the instant case, a superior court, is severely limited by the terms of 24 V.S.A., 54468(a) which reads in part: "On an appeal... wherein a variance from the provisions of a zoning regulation is the relief requested by the ap- pellant, the board of adjustment or superior court may grant such variances, and render a decision in favor of such ap- pellant if all of the following facts are found by the board or the court... (1) That there are unique physical circumstances oL conditions, including irregularity, narrowness, or shallow- ness of lot size or shape, or exceptional topographical or SPOKES & OBUCHOWSKI ATTORNEYS AT LAW SOUTH BURLINGTON, VERMONT other physical conditions peculiar to the particular proper- ty, and that the unnecessary hardship is due to such con- ditions, and not the circumstances or conditions generally created by the provisions of the zoning regulation in the neighborhood or district in which the property is locate'° (2) That because of such physical circumstances or conditions, there is no possibility that the property can be, developed in strict conformity with the provisions of the zoning regulation and that the authorization of a variancF, is therefore necessary to enable the reasonable use of the property; (3) That such unnecessary hardship has not been cr ed by the appellant; (4) That the variance, if authorized, will not alte., the essential character of the neighborhood or district ix, which the property is located, nor substantially or perman- ently impair the appropriate use or development of adjacent property, nor to be detrimental to the public welfare,* an(,,. (5) That the variance, if authorized, will represent the minimum, variance that will afford relief and will repre- sent the least modification possible of the zoning regula- tion and of the plan." These five standards of 24 V.S.A. 94468 govern the court'- ,ility to approve a variance request. "Unless the board (coui: by competent evidence, can raake such findings, it cannot grant a .riance because it simply does not have such power at law." M. Pike & Son, Inc. v. Town of Waterford, 130 Vt. 432, 435, 29 A.2d 262 (1972). In commenting on the significance of the manda- tory review findings, the Vermont Supreme Court recently declared "For relief by way of a variance the statute governing its granting must prevail, rather than a judicial finding indicating, at best, general desirability. The statutory, criteria are conditions precedent..." W. R. Sorg and North Herollo,use$ Inc. vs. North hero ZonLij Boar3 of Adjustment, Docket No. 367-76 0pfr_U_0n__FT1_Wd December 12, 1977 at Pg. `1 It logically follows from Sorel that an applicant for variz relief has the burden of providing evidence to permit the Cour" to make the necessary findings. -2- SPOKES & OBUCHOWSKI ATTORNEYS AT LAW SOUTH BURLINGTON, VERMONT III. APPLICATIONS FOR USE VARIANCES REQUIRE MORE STRINGENT EXAMINATION The Appellants in the present case seek to utilize the ,)rtions of their parcel of land which lie in the Conservation - Open Space district for a prohibited use, i.e. construction and occupancy of a residence. See SS3.101 and 3.30(l) of City Zoninci Regulations - Plaintiff's Ex. No. 4. ',',A use variance, as the ter implies, is one which permits a use of land other than which �- prescribed by the zoning regulations." 3 Anderson, American Law of Zoning 2d, Section 18.06 at Pg. 148. 1%lthough no distinction ,twean a use variance and an area variance is set forth in the tabling act, this dichotomy is recognized in Lewis vs. Picke-L,, 134 Vt. 22, 349 A2d 715 (1975). In addressing this issue in _14., the Supreme Court stated at page 26: "The variance sought was not for a use, but for a dimensional variance, or an area variance. 'In most states the courts will approve an area variance upon a lesser showing by the applicant than is required to sustain a use variance'. 3 R. Anderson, American Law of Zoning Secti 14.45, at 3(1968) Ed." It appears front Pickerin. that Vermont, like most states, a -i­ieres to the principal that use variances are rarely if ever supportable. This proposition is further supported by the la of 24 V.S.A., 94473, which reads in part: "It is the purpose of this chapter to provide for re- view of all questions arising out of or with respect to the implementation by a municipality of this chap -ter. Except as specifically provided herein, no board of adjustment (Court) may amend, alter, invalidate or affect any development plan or by-law of any municipality or the implementation or en- forcement thereof, or allow any use not permitted bv an,. zoning regulations or other empfias "ad a-dT­ ITT. THE REQUISITE FINDINGS OF 24 V.S.A., 54468 CAJ.4NOT BE' MADE THE PRESENT CASE -3- SPOKES & OBUCHOWSKI ATTORNEYS AT LAW SOUTH BURLINGTON, VERMONT A. THE LAND OWNERS' PERSONAL PROBLEMS AND INCOWLIL?NCZS INOT SUFFICIENT TO SATISFY CRITERION NO. 1. Criterion No. 1 of 24 V.S.A., S4468 requires the Court to find the existence of unnecessary hardship, and that the hard- siiip is due to unique physical circumstances of the property in question. The Nestis have cited their desire to have their home "related to the lake". They also desire a portion of their resi- dence to be located in the Town of Shelburne to permit connectiol- to Shelburne municipal services, and allow their children to at- tend the Shelburne school system. Their proposed homesite i: one which offers uniqueness and unusual challenges in the opin! Qf their architect. If these desires can be interpreted as r hardship, they are merely personal in nature and have no relat.,j snip to the physical features of the land. Robert Andersoniin bis well known zoning treatise states : "Hardship which is ii-terely personal to the current owne-T of real property will not justify the granting of a variancE which will run with the land itself. One New York court sal 'It is not uniqueness of the plight of the owner, but unique~ ness of the land causing the plight that is the criterion.' The use variance is not a device which may be used to prote,- a landowner from his own errors or improvident investments.' 3 Anderson, American Law of Zoning 2nd, Section 18.30 at Pg. 218 Similarily Anderson comments on this issue in connection wi area variances: "To warrant the granting of an area variance there must be something more than a showing that a variance would ' permi the applicant to a select a prefarab.Lalternative." 3 Andersc American Law of zoning 2nd, Section 18.52 at Pg. 285. The Ver-mont Supreme Court has declared that, "Personal in - convenience is not basis for a variance, or even a more profita,, usep which appellants disclaim." Sow, !��V E9. at Pg. 4. -4- SPOKES & OBur-HOWSKI ATTORNEYS AT LAW 3OUTH BURLINOTC The Nesti application is grounded more in terms of their own Personal desires and conveniences than in any undue hardship .reated by the unique physical circumstances or conditions of this property. B. CRITERION NO. 2 CAN ONLY BE SATISFIED IF THERE IS NO POSSIBILITY THAT THE PROPERTY CA14 BE DEVELOPED IN STRICT CONFORM- ITY WITH THE ZONING REGULATIONS. The language of Criterion No. 2 is succinct, and there must be 1-10 202sibility that the property can be developed in strict conformity with South Burlington's Zoning Regulations In addition it must be found that a variance is necessary to en- able the property owners to have reasonable use of their propex At the hearing in this cause, two civil engineers and an archj­ tect all testified that a residence could be constructed on til_ Nesti property in strict conformity witli South Burlington's zon- '9 requirements, and that reasonable use of the property is ,::rmissible without the granting of a variance. There was not a scintella of evidence suggesting that this criterion can be ­,tisf ied. C. IF THERE IS A14Y UNNECESSARY HARDSHIP, IT CANNOT BE SELF- :;AEATED. I The third fact required by the statute is that the unnecessary hardship cannot be created by the Appellants. Siqni f4 Icantly, the testis N purchased their property after the effectiv ;te of the current South Burlington "Zoning Regulations. Prior o the purchase they were also aware that the common boundar,,,,� 'line between South Burlington and Shelburne bisected their la!-,;:' Their difficulties seem to stem from the location of the com-mox: boundary line which has hampered the Appellants' wishes to coca -5- SPOKES & OBUCHOWSKI ATTORNEYS AT LAW SOUTH BURLINGTON, VERMONT their home, in part, in the Town of Shelburne. The Nesti situ ation is analogous to that of the applicantin Pike- AS in the, present situation, Pike, prior to purchase, was aware that it's laud would lie in two communities, and that the zoning in one was more restrictive. Pike, supra, 130 Vt. at Pg. 436, Pike never sought to have the exact location of the boundary line determined prior to purchase and construction. The Court mined that if any hardship existed it was not created by the zoning regulations in effect prior to the time of purchase, but by the very acts of the Appellant. "A person who purchases land with knowledge, actual or constructive, of zoning ordiarices which are in effect at th time of purchase is said to have created for himself what- �ver hardships sucii restrictions entail. Relief has been denied by variance to a purchaser who has created his own hards1hig." Pike, sueLa,, 130, Vt. at Pg. 436 citine, "lawson v. Z �n�i _R. of Rev. of Town of Barrington, 102 (R.I.) 552, 232 Also see 3 haiderson, American Law of zoning 2nd, Section 18.422 at Pg. 254 and Section 18.43 at Pg. 258. D. THE ESSENTIAL CHARACTEM Or! THE NEIGHBORHOOD CANNOT BE ALi'.ORED BY THL APPROVAL OF A VARIA14CL, 14OR CAN 71HE, APPROVAL BE DETRIMENTAL TO THE PU13LIC WELFARE. Wheedler or not the granting of a variance would alter the essential character of the neighborhood is a factual quostioi The subject property is adjacent to the Pine Haven Shore Deve-Ir *went where all of the houses are a significant distance from the lake and in a row. The Appellants propose to construct their home within sixty-five (65) feet of the shore. This location substantially impairs the lake views of the adjoining neighbors and disrupts the aesthetic uniformity of the neighborhood. For these reasons, Criterion No. 4 cannot be satisfied. -6... SPOKES & OBUCHOWSKI ATTORNEYS AT LAW SOUTH BURLINGTON, VERMONT This criterion also requires an affirmative finding a variance, if authorized, would not be detrimental to the public welfare. Anderson interprets this requirement as follows: "In short, an applicant for a variance must show than. the proposed use will not thwart the purpose of the zoning scheme or alter the essential character of the neighborhoorl. but it is not enough that lie shows the innocuous character - of the variant use. He must demonstrate that a literal ap- plication of the ordinance will deprive him of all beneficie use of his property." 3 Anderson, American Law of Zoning 2nd, Section 18.39 at Pg. 243. The granting of a use variance in the instant case would .)ritradict the purposes of the Conservation -Open Space district set forth in Section 3.00 of the City Zoning Regulations .Plaintiff's Ex. No. 4. An approval would also contradict the objectives of the Vermont Planning and Development Act 24 V.S.A- 1302 and 54411. E. LASTLY, THE COURT CAN ONLY GRMT THE MINIMUM VARIAice:-, WHICH WILL AFFORD RELI'177. Little legal interpretation can be offered in connectir with this criterion. Obviously this requirement is irrelevai;.- linless the first four criteria are found. Without attempting to summarize the evidence, an examination of Plaintiff's Ex. No. , '!-.,-i,onstrates the absurity of the slesti application. Not only is no relief in order, but their proposed location demands maximum variance relief. IV. THE GRANTING OF PREVIOUS VARIANCES BY THE ZONING BOARD OF ADJUSTME9T DOES NOT DICTATE APPROVAL Or THIS APPLICATION. The thrust of the Appellants' case is not their satisfactior of the requirements of 24 V.S.A. S4468. Rather, they suggesi -7- they are entitled to a variance because other applicants in cis City of South Burlington have been granted variances in the gelneral area. Dispelling this theory, Mr. Anderson notes: "The granting of a variance to one land owner does not require the granting of a similar variance to a second owner in the same neighborhood. If such a rule were im- posed, the granting of a single variance would result in the destruction of the entire zoning scheme. The fact that one or more variances have been granted to land owners near the site of a proposed variant use does not constitute proof of undue hardship." 3 Anderson, American Law of Zoning 2nd, Section 18.26 at Pg. 210. V. APPELLANTS' EFFORTS TO DISCREDIT THE CITY'S ZONING MAP ARE IRRELEVA!NT. The Appellants attempted to show that the City zonin,, depicts the stream (which forms the basis of the Conservatori, Space district zoning) in the Town of Shelburne, and not in 'oath Burlington. The Appellants also strived to demonstrate tha- oiily a small portion of their lake frontage is located in the tY Of South Burlington. These efforts were designed to avoid ,iiu burden of satisfying the mandate of 24 V.S.A. S4468. The Tow-, -undary line was established through the testimony of the Apt:,,. ants' arciiitect, Marcel Beaudoin. and is shown on Defendants' X. D. Except in the easterly most portion of the Nesti property, he stream at all points lies within South Burlington. Even if his issue liad any bearing in the case at bar, Section 13.70 of he Zoning Regulations puts to rest any contention Appellants can fifer. Subsections 2 and 3 at the bottori of Page 32 demonstrate hi- irrelevancy of the Appellants' arguments. The issues which he Nestis attempt to raise cannot deter the Court from the neces- ity of examining the variance criteria set forth in Section SPOKES & OBUCHOWSKI 1Ij'�4,48 Of Title 24. ATTORNEYS AT LAW iOUTH BURLINGTON, VFRMONT -8- SPOKES & OBur-HOWSKI ATTORNEYS AT LAW SOUTH BURL.INGT( REQUESTS FOR FINDINGS OF FACT OF CITY OF SOUTH BURLINGTON NOW COMES the Appellee, City of South Burlington, by amc (through its attorneys of record, Spokes & Obuchowski, and re- Iquests the Court to include in it's Findings of Fact and Conc.Lu­ Isions the following: 1. On January 2, 1975, the Appellant, Frances Nesti, pur- chased a parcel of land on the shore of Lake Champlain which (-or Itains approximately two and one-half (2-1/2) acres. (Plaintiff, Ex. No. 2) 2. The Nesti parcel, situated at-1jacent to and northerly of the Pine Haven Shore Development, has a northerly sideline c approximately seven hundred (700) feet, an easterly or rear line of approxiamately two hundred eigility-five (285) feet, a southerly line of approximately six hundred fifty (650) feet, any a westerly line fronting on Lake Champlain of approximately ong� ­,andred (100) feet. (Plaintiff's Ex. No. 1 and Defendants' Ex. A) 3. Prior to the Nesti purchase, the City of South Burl ,.iopted new zoning regulations which became effective on March zi, 1974. (Plaintiff's Ex. No. 4) 4. A majority of the Nesti property is situated in the Residential 1 zoning district (Rl), but two segments of the par- cel are situated in the Conservation-0pen Space district (=', ,_ie first portion is a strip of land one hundred fifty feet (L: feet in depth along the lake, and the second is a strip of land Ifty (50) feet on both sides of the centerline of a minor stream which traverses the entire length of the land from the C= sterly or rear boundary to Lake Champlain. (Plaintiff's Ex. o. 4 at Page 32) 5. Although residences are permitted by the zoning regula- ions in the Rl district, no structures are permitted in the district. (Plaintiff's Ex. No. 4 at 3 and 4) 6. Mrs. Nesti, and her husband, Richard Nesti, applied "Qi use variance to construct a house in the Conservation -Open district. 7. The South Burlington Zoning Board of Adjustment denied Nesti request for the following reasons, which are cited in Board's Findings of Fact. (Plaintiff's Ex. No. 3) A. There are no unique physical circumstances or conditions. B. There is a possibility that the property can be developed by relocating the proposed structure. C. Does not represent the minimum variance that woul& afford relief. D. Proposed building can be constructed in an area not affecting the Conservation -Open Space District,, E... Does not conform with Section 4468 of the Vernor.L_ Planning and Development Act. 8. The Appellants appealed the decision of the Citv's Zonirj ard and the Findings of Fact of September 8, 1975, by filing a Aotice of Appeal on September 30, 1975. In their Notice of Appea' Appellants requested a trial de novo. 9. In order to approve the Nesti variance request, thi5,, must make five Findings of Fact which are forth in 24 .S.A. 94468. SPOKES & OBUCIOWSKI II ATTORNEYS AT 11W SOUTH BURLINGTON. VERMONT CRITERION NO. I UNNECESSARY HARDSHIP DUE TO UNIQUE PHYSICAL FEATURES OF PROP ER17Y 10. The Appellants directed their architect, Marcel Bea to select a building site which would afford a desired relation- ship with Lake Champlain. 11. The Nestis also felt that a portion of their home must The located in the Town of Shelburne to permit them to connect to Shelburne muniQipal services, and to allow their children to at -- tend the Shelburne school system. 12. With these objectives in mind, Beaudoin selected a site totally within the Conservation-Opetu Space district and approxi- mately sixty-five (65) feet from the shoreline. 13. The proposed dwelling ifould straddle the stream and a lwide ravine. 14. The architect's plans to build the house on a bridge lover the ravine resemble in his own words, Frank Lloyd Wright' famous Bear Run in Pennsylvania. 15. There are no unique physical circumstances or condi- tions characterizing the Nesti property, with the exception of the deep ravine over which they propose to build. (Plaintifft,, I Ex. No. 5) 16. A substantial portion of the Nesti land is relatively flat, particularly in the northeasterly section. 17. Ise comparison to the Pine Havea Shore lots, the Appel-, lants' property is substantially larger, even if the ravine and those areas in the CO district were not included. SPOKES & OBUCHOWSKI ATTORNEYS AT LAW 5OUTH BURLINGTON. VERMONT SPOKES & OBUCHOWSKI ATTORNEYS AT LAW SOUTH BURLINGTON. VERMONT 18. The plight of the Nestis is dictated by their own de- sires and convenience and taus must bt-; viewed by this Court a;.;, I personal is nature. CRITERION NO. 2. 1111ER.6 IS 'NO POSSIBILITY Ti AT THE PROPERTY CAN BE DEVELOPED IN STRICT CONFOPJ,1ITY WITH THE ZONING PX,.GULATIONS, AND A VARIANCF IS NECESSARY TO ENABLE A REASONABLE USE OF THE PROPERTY. 19. Marcell Beaudoia testified that the proposed house loca- Ition was the most aesthetically pleasing site to his clients, an,: Ithe ideal location from an architectural viewpoint. 20. Beaudoin also testified, however, that reasonable of the property was possible without any variance being auLi.,-.-izt. The same conclusion was reached by two civil engineers testif-ir, on behalf of the City of South Burlington, one of whoin was t; ;.ty Manager (Plaintiff's Ex. No. 6) 21. The two engineers affirmed there were no engineering ob- stacles to constructing a house on that portion of the propert-., in the RI zonii-ig district. 22. It is clear from the testimony of Mr. Beaudoin *that dit- rent shapes, dii-iiensions and locations of a residenc� are possible on the Westi land. CRITERION NO. 3 THE UN14ECESSARY HARDSHIP, IF ANY, HAS NOT BEEN CREATED BY THE APPELLX14TS. 23. The common boundary line between the City of South J11irl-I �gton and the Town of Shelburne runs in an easterly-westerl, .section throug'I'L the Nesti land. 24. Mrs. Nesti was aware of this factor prior to purchase but was unaware of the boundary's exact location. Prior to hei: -12- SPOKES & OBUCHOWSKI ATTORNEYS AT LAW SOUTH BURLINGTON, VERMONT application for a building permit in South Burlington, the exact location of the Burlington -Shelburne line was determined. (_,z: endant's Ex. D) 26. Before the location of the boundary line was determined, the Nestis were under the impre6sion that most of their hou!t--�-- would be located in Shelburne. 26. After uonfirwatiou of tne South Burlington -Shelburne lir the Nestis discovered that approximately eig1'lty to eighty-five A percent of their home would be located in the City o' South Burlington. 27. The Nestis difficulties stem from their desire to locatE. house near Lake Champlain, partially in the Town of Shelbur,-,- dd their initial failure to determine the exact location of the ,municipal boundary line. For this reason, any undue hardship mus be viewed by this Court as self-created. 28. It is also significant that the City's zoning regulation ,!re in effect prior to the Nesti Purchase, and constructive !-,nowledga of these regulations must be iinpu,L.-.ed to the Appe.L L Uj A. L S CRITERION NO. 4 THE VARIANCE, IF AUTHORIZED, WILL aOT ALTER THE ESSENTIAL CHARACTER OF THL NEIGHBORHOOD NOR BE DETRIMENTAL TO THE PUBLIC WELFARE. 29. The domes in the Pine haven Shore Development, whicl, is adjacent to and southerly of the Appellants' land, are located some distance from the shores of Lake Champlain and in a line. All the Pine Haven Shore homes are an equal distance from the rai road tracks which are easterly of the Nesti land and parallel to tiie lake. -13- 30. William Hurray, who owns a home in the Pine haven Shore i.it--velopment and is president of the Development's Association, testified that the variance, if authorized, would alter the es- sential character of this neigiWorhood, 31. The liesti house would not be located in line with tht:,, oining homes, and thus would obstruct the lake views of the ghbors. 34'. When the Appellants' architect first visited the premise noted substantial soil erosion in the ravine area. 33. The reasoning of South Burlington in placing certain 4-ands in the Conservation -Open Space district was not attacked bj Appellants and proven to be based upon considerations outside e scope of the enabling act. Therefore the Court is not in a position to reassess the City's legislative determination that. any structures in this district would be detrimental to the public welfare. 34. Permitting the construction of a house in the propose'i cation would thwart the objectives of South Burlington's zoning regulations as articulated in Section 3.00. (Plaintiff's Ex. C4o. 4 at 3) CRITERION NO. 5 THE VARIANCE, IF AUTHORIZED, WILL REPRESENT THE MINIMUM VARIANCE WHICH WILL AFFORD RELIEF. 35. As indicated in Findings Nos. 20-22 the Appellants can .istruct their home in any number of locations on -their land in full compliance with South Burlington's zoning regulations. Thus heir requested variance does not represent the minimum which SPOKES & 0BUCHOWSKI ATTORNEYS AT LAW -ouid afford them necessary relief. SOUTH BURLINGTON, VERMONT Dated this 9th day of February, 1978. SPORES & OBUCHOWSKI By Joseph T.—OEic-howsRi, Esqu re 1775 Williston Road So. Burlington, Vermont 05401 Attorneys for Appellee, City of South Burlington SPOKES & OBLICHOWSKI ATTORNEYS AT LAW SOUTH BURLINGTON, VFRMONT ZONING BOARD OF ADJUSTMENT SEPTEMBER 8, 1�75 Mr. Beliveau explained he has just bought a new car and has no place to keep it under cover. The driveway is already paved. The Chairman asked what prevented him from putting a detached garage in the back yard. - D:r. Beliveau replied he wants to be able to get from the carport into the house without getting out in the rain or a snowfall. He said the house was built in 1959 by Howard Barber. There are steps leading into the house from the driveway side, and a carport there would mean getting right into the house without going outside. The Board voted unanimously to approve this request. APPEAL OF DR. RICHARD NrSTI Appeal of Dr. Richard Nesti seeking a variance from Section 3.10, Permitted Uses of the South Burlington Zoning Regulations. Request is for permission to construct a single family dwelling approximately 32' x 48', also requiring a variance from Section 13.70, said dwelling to be located to within sixty-five (65) feet of Lake Champlain, location off Pine Haven Shore, Shelburne, Vermont, and the South Burlington City line. Mr. Ward presented drawings of the property to the Board, saying the area in question on the South Burlington side is Conservation -Open Space District, a drainage way with the 50' setback. In addition there is a setback from the lake of 150 feet at an elevation of 102.5 feet. The request is to build a single family dwelling 32' x 48'. The property consists of about two acres. Chairman Myette asked Dr. Nesti if he purchased the property with all the existing rights of way, and Dr. Nesti replied they purchased all the rights of the previous owner. ;parcel � ., -Beaudin, the architect for the Nesti's property, stated they started off with a very difficult site but there was a certain amount of feasibility with certain engineering considerations, if they were allowed to build in a particular manner. They checked with both South Burlington and Shelburne and have a permit from Shelburne, with also water and sewer from Shelburne. They approached South Burlington for their requirements, at that time not realizing they would encroach as much as they are, assuming they would be primarily in Shelburne. After receiving the topographical information they realized the house would be substantially in South Burlington; it will be well over 501 in South Burlington. In determining the best possible location for the house, considering environmental and topographic considerations, it would be most difficult tolocate it elsewhere. To put it on one side or the other of the stream would cause various hardships; would create hardship in parking, in snow plowing. The proposed plan of building the house over the stream would cause the least damage to the bank in terms of erosion• Mr. Beaudin continued by saying the Nestis bought the land because it was lakeshore property so they could enjoy living on the lakeshore, in terms of getting access to the lake and a view of the lake and the Adirondacks and Shelburne Point, etc. Obviously, he said, they could build further back but South Burlington doesn't have sewer and water supply so they are meeting the requirements of Shelburne in order to have their water and sewer. Also to build further back inland would mean cutting down more trees. Shelburne's setback from the lake is different from that required by South Burlington. BOARD OF ADJUSTMFNT SEPTEMBER "o-said one of the ma sons they they planned the house there was to keep the protection afforded by the trees at the edge of the lake and not to disturb them. The house would be built in the form of a bridge, abutments would be designed as bridge abutments. Concerning the protection of the drainage way, he said it had been used as a dump for years and the Nestis have been cleaning it up. The soil is fairly stable but the areas showing erosion will be rip - rapped. Asked by Chairman Myette about water and sewer lines being exposed, Mr. Beaudin explained they will go down in the abutment and then out. he then displayed drawings of the house which will have three levels. The Chairman asked the reasons why it was necessary to locate this house in this area specificly, at what would appear to be considerable expense. Why did they happen to choose that particular site and were they aware of the Conservation Open Space district. Mrs. Nesti explained they investigated it before buying it, had it surveyed before buying it, got written permission from the environmental commission. They had seven architects to see if it could be built on and they all said "Yes." Yr. Beaudin was the architect selected. They had the county forester come to look at the property to get his advice in saving the trees and they intimated to him where the house would go. They had a building permit from the Town of Shelburne. She said she went to the Zoning Administrator to get the forms to fill out and was told if less than 50% of the house was in South Burlington it was all right. She said she brought the survey swap and'vapproxi- mate location of the house to Mr. Ward and he showed it to several people and called the town attorney to ask him about it and said there«was no need for a variance or zoning permit as long as less than 50% of the house would be in South Burlington. She did not get anything in writing from Mr. Ward. The Chairman said the plan shows about 90% in South Burlington. ;frs. Nesti replied the plan has 75% in South Burlington. The architect - thought it would be the best place for the house since they had to ask for a. variance anyway. They purchased the property because they thought they had investigated it thoroughly. She said she believed that pressure had been brought to bear on town officials by neighbors. She said their contractor had found five feet of rubbish on the property, fresh rubbish. Also they had found a leach field which is draining into the drainage ditch and right into Lake Champlain. Chairman Myette felt that was not pertinent to the presentation. Mrs. Nesti replied she was just trying to show that they are trying to pre- serve the trees and prevent erosion. She said they had put their entire life savings into this property; they bought it in good faith; now they are left with an expensive, useless hole in the ground. She said the Town of South Darlington should be responsible for their financial loss. Chairman Myette said the Zoning Administrator has people every day who ask him hypothetical questions. Mr. 'ward explained Mfrs. Nesti did come in and she had a very rough sketch of the plan which had a very minor part of the building, probably 25%, in South Burlington based on what they identified as the Shelburne -South Burlington town line. After checking out with Dick Spokes and Dick Underwood, we felt there was no problem. ".r. Myette asked the Nestis if the plan presented to Mr. Ward was only 25% in South Burlington and now it is 75%. Nss. Nesti said they thought it would be best to ask for what the architect felt was best. Xr. ;lard said she was advised by him to get the permit from Shelburne and she did. It was not until physical construction occurred that anyone knew there was a permit issued. He said he didn't hear anything about it until Dick Spokes called him up, and he vaguely remembered discussing it five or six months ago and he (Dick Spokes) asked him to go, down with him. At that time it was not 6. ZONING BOARD OF ADJUSTMENT SEPT FMBER 8�1g?_� established that the brook was the Shelburne -South Burlington town line. Mr. Beaudin said there were three surveys. Mrs. Nesti added that some of the trees on the water front were cut during the survey. Chairman ?;yette said if they want Shelburne services they can't acquire them without having a portion of the house in Shelburne; if they move It back they will have it in South Burlington and can't get Shelburne services. Mr. Beaudin said they could move the house 30 feet further west, also Shelburne requires 15 foot side yards, they could move the house, the whole house could then be contained in Shelburne. Then they would have no room to terminate a driveway to get a turn around for snow plows. The Chairman asked if there was an access from South Burlington, saying -if the Board were to grant this variance it would mean going before the Planning Commission as well. Xr. Ward said Pine Haven Shore must be a town road. Dr. Nesti stated they had certainly demonstrated their good faith. Mr. Martineau asked Mrs. Nesti if this was a case of hardship, saying that one of the things to be considered by the Board was hardship. He said Mrs. Nesti had stated that she checked this out very carefully and checked with Shelburne officials and also with Mr. Ward, and on those occasions she was talking about the greater portion being in Shelburne. He said he missed the cross -over point of why is it that now most of it is in South Burlington.' He asked her if there was a misunderstanding on her part about the boundary. Mrs. Nesti eeplied they had planned to put less than SOYA in South Burlington. The architect and engineer thought it would be the most feasible to put it where it is planned now. Mr. Paul Carrara stated that upon viewing the site with Mr. Beaudin, the owners, and the engineer involved, he would say that the site is very -limited, with physical handicaps. In order to utilize this as a lakeside lot and construct a foundation on it, the only location is the location Mr. Beaudin has chosen. To go back, you would no longer have a lakefront lot, you would be in the woods. The only way to construct is in the way proposed. Mr. Martineau asked Mrs. Nesti if for several months she assumed she would have most of the house in Shelburne. Mrs. Nesti replied "Yes. Over SO,o." Mr. Martineau said if this was something they decided to do without chedking where it could be located, at what point did this hardship come; they must have had a proposed location in mind where this should -would be. Mr. Beaudin explained when the topographical survey became available, it was possible to locate the house this way. Dr. Ncstl said when you look at property, it looks one way; when you go'down the bank it looks another way. He said Mr. Beaudin was the one who suddenly told them they had too much of the house in South Burlington. Mr. Martineau told the Nestis their entire presentation was being made upon misinterpretation by Mr. Ward and pressure on South Burlington officials and none of that is pertinent; they simply thought they were going to build in Shelburne. Mr. Beaudin explained they located the house on the site irrespective of the to,,,, lines; then they had the surveyor locate it for them and put it on the map. It is physically possible to put it in Shelburne, he said, but there would be extreme hardship to put the house either totally in Shelburne or totally in South Burlington. There was no further support for this appeal. The Chairman asked if there was any opposition. Mr. Bob Herge stated he was the abutting property owner and a resident of Shelburne, and regarding the location of the house in close proximity to 7. ZCNING BOARD OF ADJUST'I'FNT SEPTEMBER 8, 1975 the lake, he didn't really look forward to looking out his living -room or off his deck at Mr.-Nesti's house.- If that is the only alternative he has, that is fine, but looking at the property himself he would certainly say there is substantial room in South Burlington to place the house and he couldn't see where there was a significant hardship to cross the ravine. He said -he felt -the house ought to be moved back more in line with the rest of the houses. Bill Murray, President of Pine Haven North Associates, presented a copy of a survey to the Board. i�Hr. Beaudin said that land is in dispute; Pine Haven Shore claims it owns it, Dr. Nesti owns it. Mr. Myette said it was not pertinent to the issue. Dr. Nesti asked if they paid taxes in South Burlington, and was told that was not pertinent to the question. Mr. i:urray called attention to discrepancies in dimensions of the house in Shelburne and what was shown on the present plan. He said this would affect everybody from the Warren Thompsons over, if the house were to be6built where they want it. There is plenty of room and a way could be gotten into the property to build in South Burlington. Warren Thompson said he tried to come in with an entirely open mind, but as far as he could see there is no reason to put that house in that -particular location other than the enjoyment of the amenities that particular spot might provide, but it would damage all the other property, and it should be placed in a spot which would be consistent with the other homes in the area, io - Mr. Beaudin said one point was well taken, that the house might be set more in line with the other houses, but it would mean being in South Burlington with no sewer or water. The other houses have achieved their view by taking out the trees; he didn't feel they had a right to take out all the existing trees to get the view. Mr. Murray said that originally when these houses were built, he believed this was all pasture and meadow land. It was an old farm and naturally the rubbish was brought down there. He said they had endeavored to plant more trees for screening after Wicks and Georgia Pacific came in. Chairman Myette explained the Zoning Board of Adjustment is a quasi -legal body and has to make its judgments based on five criteria which he read aloud. He then referred specificly to the criteria concerning unique physical circum- stances or topograph conditions causing unnecessary hardship; the one saying there was no possibility that the property can be developed in strict con- formity with the zoning regulations; and another that the minimum variance will mean the least modification possible. Mr. Carrara said this lot certainly has unique physical characteristics. It is a lakeshore lot and there should be at least a view of the lake. The Chairman replied the Board can't consider that. The lot size will hold a specific piece of property. The Board has to look at the entire lot. Ns. Carrara explained the reasonable use of the lot is for a lakeshore lot; to put the house further back means cutting the trees downs there would be a tremendous erosion problem. He said in his opinion the only place to put a house on the lot is in the proximity of where it has been located. The quality of the lakeshore lot would be lost by putting it back further. Mr. Beaudin said South Burlington grants a lot of variances for swimming pools, and they are not talking about a swimming pool but a house. A swimming pool is not really a requirement as important as it is to build a house where there is sewer and water. The Board voted unanimously to deny Dr. Nesti's appeal. On September 9, 1975 This office discussed the Nesti case with :attorney Spokes and Dick Underwood. Both recalled the discussion with hors. Nesti in November 1974. Because that portion of the structure was negligible we would not require that a permit be issued by South Burlington. Mrs. Nesti was informed to secure a permit from Shelburne. Mrs. Nesti was in fact advised that if 50' were in South Burlington she would be required to secure a permit from both municipalities. In November, the exact location of the town line was not established nor was the drainage discussed, and certainly no ment-.on about constructing a house over a drainageway. About July 15, 1975 the drainageway was surveyed and the town line was established, based on that information South Burlington became involved (reason a larger portion of the proposed house was to be in South Burlington and the plan had differed from the November 1974 plan). On advise from Attorney Spokes no further action should be taken by this office, no portion of the house can be constructed on the South burl.ington side. Zoning Board of Adjustment denied the request on September 8, 1975. MEMORANDUM FROM ZONING ADYINISTR. TOR Re: Appeal of Dr. Richard Nesti Tuesday, August 23, 1977 Richard Nesti came into this office to inquire about procedures regarding appealing to Zoning Board of Adjustment. Nesti wanted information regarding his former appeal before the Zoning Board. We discussed his submitting the same application, he was told that the Zoning Board could hear his application if there was new evidents. 4:e discussed the procedures for appeal, he was told to obtain the original site plan which was prepared by Marcel Beaudin, and to amend this plan to reflect the current proposal, he was fur- ished with an appeal application and he left. Wednesday, ".ugust 24, 1977 Dr. Nesti came in to this office with his a-olication of appeal and a rough drawn sketch of his proposal. 11e discussed his application, which was not properly completed. The property owner was listed as "Frances Nesti" and the applicant signature was "Nests Nesti" in two different hand writings. After more discussion regarding his application he signed the application "Richard P. Nests'and paid the hearing fee. We also had discussion regarding his site plan, which was a tracing on onion skin paper with a square piece of white paper taped to the onion skin. This was taped in a manner that it could be removed, therefore Nesti was informed to sketch in his proposed dwelling, which he did in the presence of Mrs. Marie Gallant and myself. He was cuestioned as to the size due to the fact that his sketch had no scale, and informed me that he wanted it large enough to span the stream and tjien stated a size of 36' x 541. The size was penciled in by myself. Nesti then inquired about the need for a permit to cross the stream with a culvert. He was informed to discuss this with Ms. Szymanski. Memorandum From Zoning administration Re: Appeal of D. Richard Nesti Page II Thursday, August 25, 1977 This appeal was discussed with Attorney Richard Spokes - he in -formed me that the first appeal is being challenged in court and that we should not process Dr. Nesti appeal. Code Officer Copy OF SOUTH BURLINGTON APPLICATION FOR PERMIT DATE. ..................................................... PERMIT NO. ............................ ZONE............................ 19 The undersigned hereby applies for permission to make certain building improvements as described below. (Plans to be submitted if required by Building Inspector.) All construction to be completed in accordance with the Zoning Laws and Building Regulations of the Town of South Burlington and the State of Vermont, and conform to the Regulations of the National Board of Fire Underwriters and any and all Federal Regulations now in effect. • • L OCCUPANCY I FLOORS• SIZE: Ft. Frontage 2 18 Ft. Depth5�E C, Lot No. Two Family OWNER ApartmentT WATER SUPPLY: Public Private Offices SEWAGE DISPOSAL: Public 0 Septic TankF] Perniit # Warehouse Comm. Garage I ROAD OPENING: (Show layout) Perinit # Res. 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Tile LIGHTING • •.No Lighting I I FEE COMPUTATION $ ............._...._........_.............. Plans received Yes ❑ No. El �4C /�J ,��Gf{�@fJ � %` 8 rJ.S�/iv !OR!(4-c , e.UQ L /"I C / CfA/, W. ADDRESS of OWNER APPLICATION: REJECTED W APPROVED /..... ______ G`"''�.. - ..........._ _ _...._........._........... SIGNATURE~OF CODE OFFICER ISSUEDTO .................... _.......................................................... -........ ..... .................. _.............................................................. ............... Date......................._.........Y/ .--•-•- 19(..2---•- PERMIT VALID FOR SIX MONTHS �-�iN1I/NG, STATE OF VERMONT ENVIRONMENTAL BOARD DISTRICT ENVIRONMENTAL COMMISSION# 4 July 16, 1982 Mr. & Mrs. Nestie Pine Haven Shore Shelburne, Vermont 05482 RE: Land Use Permit #4C0518 Lakelands South Burlington, Vt. 05401 Dear Mr. & Mrs. Nestie: In response to your call regarding this development the South Burlington Planner, David Spitz, and I visited the site on July 16th. In our phone conversation you expressed concerns regarding the cut- ting of trees, disrupting the surface and elevating the land within the setback zone. Those felled trees were cut over nine months ago. No new trees have been cut. The contractor is permitting those previously cut trees now laying on the project site to be cut for firewood rather than burning them on the site. The City of South Burlington is aware of the previously cut trees and has reached an agreement with the permittee. The drainageway to the northwest of the property has been approved and is being constructed in accordance with the approved plans. I believe the disturbed area to which you are referring is the most southwesterly building cluster. Due to the topography of the land in this area the building footprint appears closer to the shoreline than it actually is. The disturbed'area around the building footprint is within normal lim- its to construction. The permittee was to put in place the necessary erosion control devices by July 17th. bjy cc: Gerald Milot David Spitz, Susan Haitsma Sin erely, ' n Katherine M. Powers District Coordinator October 5, 1978 Alexander & Truex, Inc. Mr. Thomas Cullins 45 Clarke Street Burlington, Vermont 05401 Re: Proposed Nesti house, off Pine Haven Shore Road Dear Mr. Cullins: Confirming our discussion of Wednesday, October 4, 1978 regarding the location of Dr. Richard Nesti proposed dwelling. It is my understanding that the structure will be located completely within the Town of Shelburne. That some excavating will be required on the South Burlington.portion of the property due to the construction of the foundation. That the area involved will be restored, and no damage to the drainage way will result. That the new plan has been approved by the Town Manager of Shelburne, a copy of the plan has been filed with this office. Based on the information submitted to this office, I find that the City has no further involvement in this matter. Thank you for your co-operation. Very truly, Richard Ward Zoning Administrative Officer Rt•y/mcg cc: Attorney Richard Spokes, City Attorney Mr. Edward Schuette, Shelburne Town Manager Mr. Dave Farrington, General Contractor DINSE, ALLEN &ERDMANN ATTORNEYS AT LAW 186 COLLEGE 57RF,ET BURLINGTON. VERNONT STATE OF VEP.MOINT CHITTF._IDI: I COUNT-Y, SS . III RE . RICHARD AND FRANCES NESTI Appeal from South Burlington -oning Board of Adjustment CHITTE IDEN SUPEnIOR COURT DOCKET NO. C61-75 CnM REQUESTS FOR FPP)INGS NOW COME pICIIARD AND FRANCES NESTI,' by their attorneys, Dinse, Allen & Erdmann, and request the Court to find as follows: 1. In December of 1974 Dr, Frances Nesti and her husband, Dr. Richard Nesti, were interested in buying from the Estate of Myrtle Lozon a piece of property situated in the Town of Shelburne and the City of South Burlington which fronted on Shelburne Bay of. Lake Champlain on the west and was bounded on the east, at least in part, by tracks of the Vermont Railways, Inc. 2. Some time in December of 1974 Dr. Frances IIesti went to the offices of the City of South Burlington to inquire about zoning and building permits. She was directed to Richard I -lard, the Zoning Administrator of the City of South Burlington. Dr. Frances Nesti described generally the property to Mr. Ward. 3, Based on the representations of Dr. Frances ilesti, and assuming that the house to be built was less than fifty per cent in South Burlington, Ward told Mrs. ilesti that no building permit in South Burlington was necessary nor was any variance of the zoning law. In her presence Ward called by 4 l telephone the City Attorney and following that conversation, Ward repeated that neither a permit nor a variance was necessary in South Burlington. lie did request, however, that Mrs. lesti_ bring a copy of the lot survey in to show him. This she did and drew in on the survey where the house was to be located, which was across a stream bed and one hundred thirty-three (133) .feet from the Lake. Ward again repeated that no permit and no variance was necessary. Ward, who appeared at the hearing as a witness in this case, did not deny any of these conversations. 4. At the request of the 1`Iestis, a land surveyor, Harris Hyman, prepared a plan of the lot, the first revision being drawn December 16, 1974, which shows the town line running diagonally across the lot. (Plaintiff's Exhibit 1.) 5. Harris Hyman also prepared a typographical survey, originally drawn ,January 19, 1975. (Plaintiff's Exhibit 5.) 6. Based on the information then available to her, including the representations of ;Mr. Ward, Frances Tlesti purchased the property from the Lozon Estate by Administrator's Deed. 7. The Nestis retained Marcel Beaudoin, an architect, to assist them in utilization of the land and design of a house. Having in mind the ravine which ran east and west across the property, the value of the lake .frontage and the wooded areas of the lot, and also the fact that the railroad tract: ran along the easterly edge of the property, '�?r. Beaudoin, in his opinion, DINS , ALLEN considered a spot across the ravine, bridging it, to be the fk ERDMANN I ATTORNEYS AT LAW _ 186 COLLEGE STREET BURLINGTON. VERMONT best spot on which to build the house. This was approximately the spot indicated by Mrs. Nesti to Mr. ;lard. In addition to that, in Mr. Beaudoin's opinion, the lot was oriented to facilities which could be furnished by Shelburne and not by South Burlington, such as utilities, access.for schools, as well as access by road since the Nestis had no access across the railroad tracks from South Burlington. 8. Having in mind the problems of design and location, it was the opinion of Mr. Beaudoin that the spot bridging the ravine, substantially as indicated by Mrs. Nesti to �Jard on the plan, was the spot to build the house, and it appeared that more than fifty percent of the house as constructed would be in South Burlington. Therefore, in early September, 1975, Marcel Beaudoin, as agent for the Nestis, applied .for a zoning permit in the City of South Burlington. (Plaintiff's Exhibit 7. This was summarily rejected by Ward and appeal to the Zoning Board of Adjustment was automatically taken. 9. On September 8, 1975,.the Zoning Board of Adjustment denied the appeal of Dr. Richard Nesti which was denied in terms of the denial of a variance under 24 V.S.A. 4468. At no time prior to September 8, 1975 had Ward or anyone else connect with South Burlington raised any issue, either about setback from Lake Champlain or from the ravine. The only previous issue being that of the percentage of house being built across the town line. MPT:Z _. AL_1_Ew a- EM)"111AW11 �1 —3— ATTOnNEYS IJ LAIN 106 COU.:rcr" I I EURCtNC704. VERMONT 11 DINS', ALLEN Sc ERDMANN ATTORNEYS AT LAW 166 COLLEGE s'(REET BURLINGTON. VERMONT 10. At the meeting of the Zoning Board of Adjustment on September 3, 1975, one of the principal opponents of the appli- cation was Warren Thompson, the Chairman of the Board which denied the request was Richard Myette, who at that time was an employee of Thompson. (Plaintiff's Exhibit 3.) 11. The property in question has about 12Q feet of frontage on Lake Champlain. Of that a very small portion, perhaps less than ten feet, is in the City of South Burlington, that being on the northerly end of the property. The proposed house location is directly easterly of the Shelburne Lake frontage and not the Lake frontage in the City of South Burlington. (Plaintiff's Exhibit 5,) 12. the ravine in question enters Lake Champlain in the Town. of Shelburne, although it is shown on South Burlington Planning and Zoning Maps as being,in Shelburne for about half_ of the east and west distance of the lot which is shown on Plaintiff's Exhibit 5, as having a northerly line of 693 feet, The ravine is described by various of the witnesses as being twelve to twenty feet deep in places, and was also described by an engineer who testified in behalf of the Town as not a usual building lot. 13. Portions of the easterly end of the parcel in question are described as being; very wet and also subject to litigation as to the ownership ofthose premises. As shown in Plaintiff's Exhibit 5, the easterly boundary of the premises is -4- DINSF, ALLEN & ERDMANN ATTORNEYS AT LAW 186 COLLEGE STREET BURLINGTON. VERMUNT the Vermont Railway which has trains passing on it twice a day. 14. The proposed location of the house meets with setback provisions of the Town of Shelburne, both as to the lake frontage and as to the ravine and a building permit was granted in the Town of Shelburne. 15. There is additional lake frontage in the City of South Burlington running between the property in question and Queen City Park, so-called. Variances have been granted of the setback from the Lake although `•lard could not remember specifically what they were or how many were in question. 16. As a result of the work done at the direction of the Ilestis and their architect, Mr. Beaudoin, trash has been cleaned out of the ravine and riprap has been placed therein which has improved the stream bed. 17. The approximate budget that Marcel Beaudoin was dealing with was $150,000. 13. The South Burlington Zoning Map bears a legend and does designate some areas as "Conservation -Open Space." This was done with somme streams in the City but does not appear on the stream in question. (Plaintiff's Exhibit 4, 3 and 9.) 19. The neighborhood south of the property in question is residential known as "Pine Haven Shores" and is in the Town. of Shelburne. The neighborhood immediately north of the property in question is an open field and the next house is son; -5- DINA.LLE N & ERDMAPli4 ATTORNUS AT LAW 186 COLLEGE s(REST BUP.LINGTON. VERMCNT distance northerly. CONCLUSIONS OF LAW 1. The property in question is unusual in its physical and topographical characteristics presenting hardships in construction of a dwelling house. It is lakefront property which makes it desirable. The opposite end of the property is both on a railroad and in dispute as to the ownership as well as having some moisture problems. The rest of the property is virtually cut in half with a ravine. ?, Perhaps mathematically it can be computed that on one or two spots on the property some sort of building could be built, but there is no possibility that the property can be developed reasonably in strict conformity with the provisions of the zoning regulations, and therefore a variance is necessary. 3. The condition described and the resulting hardship was not created by the appellant. +. Since the character of the adjoining neighborhood, at least to the south, is residential in character, such construc- tion will not alter the essential character of the neighborhood nor impair the use and development of adjacent property nor be detrimental to public welfare, 5. That the variance requested represents the minimal. variance that will afford relief. Dated: February 10, 1978. Cc: Richard A. Spokes, South Burlington City Attorney Respectfully submitted, DIT1S ALL?:^T & ERDi1AI` N M SPOKES & OBUCHOWSKI ATTORNEYS AT LAW P.O. Box 2325 SOUTH BURLINGTON, VERMONT 05402 RICHARD A. SPOKES 1775 WILLISTON ROAD JOSEPH F. OBUCHOWSKI i'eLruary 13, 1973 TELEPHONE (802) 863-2857 Mr. viilllai�i Szymanski City Manager City of South Burlington 1175 Williston Road So. Burlington, Vermont 05401 1-0 vIfr. Richard Ward Zoning Administrator City of South Burlington 1175 Williston Road So. Burlington, Vermont 05401 Re: Nesti Case Dear Bill and Dick: Enclosed please find copies of the Requests for Findings of Fact and Memorandum of Law I filed with the Court. I thought you migat be interested in our lagal arguments. RAS/cci, Enclosure Very .truly curs, Richard A. Spokes e t cnb a r 7 � 19 7 5 tc at vm,!r N- +. ".I I 1a uly R o i. Q i m jt\ a b o m - �Q \\ C M a rn o � UN \ CD TpN — �\ b 27 - J TO rrl 228 Lam• � * ���.;7� —! ` . 1 � rn h u � �-�/,Q C Top °B < '_ y J o- � ' ` °n f x � 'ao Nj �` �C m �IN,\ N v U �f S S' N011 g Fence O n9 done :L{ jyi v N w -cf 04, I O No Text Mr. Richard Myette 1175 Williston Road So. Burlington, Vt. Dear Dick: LAW OFFICES OF EWING & SPOKES SB ST. PAUL STREET BURLINGTON, VERMONT 05401 July 6, 1976 05401 The next Nesti zoning variance appeal to Chittenden Superior Court appears on the Miscellaneous Calendar commencing July 6, 1976. There is a good possibility that this case will be heard sometime during July. Is there a chance that you could refresh your memory on the matter and meet with perhaps Dick Ward and myself for 15 minutes. Please give me a call at your convenience. Thank you. Very truly yours, Richard A. Spokes RAS:nm cc: Richard R. Ward