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Home My WebLink AboutAO-08-04 - Supplemental - 0911 Dorset StreetPLANNING & ZONING MEMORANDUM To: Development Review Board From: Raymond J. Belair, Administrative Officer 7b RE: Appeal #AO-08-04 of Kathleen Kelleher, et al. Date: April 23, 2008 Appeal #AO-08-04 of Kathleen Kelleher, Dorene Quesnel & Melinda Tate appealing the decision of the Administrative Officer to issue Zoning Permit #ZP- 08-069 to Indian Creek Homeowner's Association, 911 Dorset Street #35. 1. On March 20, 2008, the Administrative Officer issued zoning permit #ZP-08-09 to Indian Creek Condominium Association for work to be done at 911 Dorset Street, Unit 35, described as "expanded living room (289 sq. ft.) and screened porch (280 sq. ft.) on footprint of existing deck/patio" (copy of permit enclosed). 2. The zoning permit applicant, Howard Goldberg, signed the application indicating that he "hereby affirms that the information presented in this applir.atinn iq true accurate, and complete" _ 3. The property owner on the application is listed as "Indian Creek Condominium Assn". William Masterson, President of Indian Creek Condominium Association, signed the application. 4. The proposed work will take place at the rear of unit #35 and replace an existing deck with a living room expansion and a screened porch. Site plan review is not necessary since there will be no change in building footprint which could affect coverage or setbacks. 5. On April 4, 2008, the City received a Notice of Appeal from Kathleen Kelleher, Dorene Quesnel and Melinda Tate, hereinafter referred to as the "Appellants", appealing the issuance of zoning permit #ZP-08-069 of the Administrative Officer (copy enclosed). 6. A public notice on the appeal was published in Seven Days on April 16, 2008. 575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburi.com In CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 Application #AO - - NOTICE OF APPEAL All information requested below must be completed in full. Failure to provide the requested information on this notice will result in rejection of your application and delay in the review of the appeal before the Development Review Board. I understand: • the presentation procedures required by State Law (Section 4468 of the Planning & Development Act); • that the Development Review Board holds regular meetings twice a month; • that a legal advertisement must appear a minimum of fifteen (15) days prior to the hearing on my appeal. • 1 agree to pay a fee of $111 to offset the cost of the hearing on my appeal. 1) NAME AND ADDRESS OF APPELLANT(S):�TG -yr 57- 4p4i�sIvlo--z. 75%,P32 SO &Zely,rV Vr as ,!�3 2) LOCATION AND BRIEF DESCRIPTION OF PROPERTY AT ISSUE IN THIS APPEAL: ( '0/rIIYJOry AieEffS Gam" T IAJ PIAA) C�ieE i�' l °�fJCbi�J/�/CIhI 3) WHAT ACTION OF THE ADMINISTRATIVE OFFICER ARE YOU APPEALING? CT NTIiUFr Of �D/lJ/Nlr }��'/�/T `-=4/� Zawllt4c - f'�iE'/�'IZ% 4) WHAT PROVISIONS OF THE LAND DEVELOPMENT REGULATIONS ARE APPLICABLE TO THIS APPEAL, IF ANY? �'iC.r�?/.�P-�'r-C��C.�.�i. 5) WHAT RELIEF DO YOU WANT THE DEVELOPMENT REVIEW BOARD TO GRANT? 6) WHY DO YOU BELIEVE THAT THE RELIEF REQUESTED IN NUMBER 5 A OVE IS PROPER UNDER THE CIRCUMSTANCES? �i/E ��t,�VJ�/�° C��''r' Yo J5 t1a7- T,/r0Cv�O l' 6I Tim :��,� P700 7'/rvG'UE�/V ./yl/STD SJFE'S��U 1Gil/.9TC ' Oy T/fr P/& — ,E'C �U/rtJG J lJ��rFST/.dL Ttl C311�i/3>�", %S f— w,9U 7) LIST ABUTTERS (LIST ON A SEPARATE SHEET OF PAPER NAMES AND ADDRESSES OF ALL OWNERS OF PROPERTY THAT ABUTS THE PROPERTY THAT IS THE SUBJECT OF THIS APPEAL). ,5EC //f/GY,✓�11J C��C l%GU��.C�-S G%ST f�T��'�.L� I hereby certify that all the information requested as part of this notice of appeal has been submitted and its accurate to the best of my 09wledge. SIGNATURE OF APPELLANT 40 2�-f nolk7l O-F 4060werJ�Py. PJu/Gi4sPCYI�,2. 0.2, Cann SPCA 1702.A. �0s�r22 . %h� Ocu/�Pri fir' i/�d se&J- 51* f /C!n 19'pDTkr/ 79*/" 7%e 3eve/a7a ricr� f Revi ea) P 'Pei ¢lOc°s Ivt 7I // A/ifh r7 rzh e ex��t�or�s aef 'Zq -2- Do not write below this line DATE OF SUBMISSION: q/V 5 REVIEW AUTHORITY: I have reviewed this Notice of Appeal and find it to be: Complete Incomplete r of Planning & Zoning or Designee Date Am CITY OF SOUTH BURLINGTON ZONING PERMIT APPLICATION 1. Present use of property (e.g. single family home, garage, commercial building, etc): Present structure/improvements ion property (describe): j''` "I I ki''- A 3 13 J V d�.� �+ 3, 2. PROPOSED use of property (please describe in detail what you are planning to do): S M �r PROPOSED structures/improvements including building `dimensions (describe): jIN( _ xc5�"' i.�N, .�.r..a .. a..3t2 1.�9V+b "a �i0 C,.'.'1. 4, sCIL<CrC-A C3lr� Pv-4-VY.tia�' 0L. V-n -%A-: -1 .1v-Lk/ r'g4;-Z 44" 3. ESTIMATED total cost of improvements: $ ANNEW J'ri!5' o a ATTACH SKETCH PLAN (see attached sketch plan instructions) OR SITE PLAN. 4. Building footprint — i.e. size in sq.ft of main floor of house and all attached and detached structures including enclosed breezeways, garages, and sheds (describe): Post-ir Fax Note Total square feet of other it 5. APPLICANT/OWNER CERTIFICATION The undersigned property owner hereby consents to submit this application and understands that if the application is approved, the Zoning Permit and any attached conditions will be binding on the property. 7i-a1 —�.� C' Y �* w.. 13 d Property Owner Signature r- Date,' The undersigned applicant hereby affirms that the information presented in this application is true, accurate and complete. a i N d Applicant Signature v f Date Notice of Appeal Rights: Any interested person may appeal this decision by filing a written Notice of Appeal with the clerk of the Development Review Board within fifteen [15] days of the date of this decision. The notice of appeal must be accompanied by a filing fee of $85.00. This permit does NOT authorize commencement of any development activity approved by the permit until the permit takes effect as set forth above. Site modifications and improvements made prior to this permit becoming effective may be subject to removal and site restoration if a timely appeal is commenced. 1 h L.j..VVARD, GGLDE E T 'FLDQO`..*P-*.::P MS ING LAN b 6 1-77, AA111,YE)vT 1/3 INDIAN CREEK OWNERS LIST Unit I Updated I Legal Owner ( Mailing Address Legal Owner City State Zip I Telephone I Phase 1 - Bottom of Hill - Right 1 10/5/2006 Ruth,r/f+fenson Je07 Ole, Qje ' 911 Dorset Street #1 South Burlington, VT 05403 862-7926 2 10/5/2006 Allene F. Lanou ��// 911 Dorset Street #2 South Burlington, VT 05403 862-1065 3 10/5/2006 Prue Milnes 911 Dorset Street #3 South Burlington, VT 05403 D.N.W.P. 4 10/5/2006 Harry W. Jones 911 Dorset Street #4 South Burlington, VT 05403 D.N.W.P. 5 10/5/2006 Amy Paquin 911 Dorset Street, #5 South Burlington, VT 05403 NOT PROVIDED 6 10/5/2006 Stefanie M. Waite & Miles Waite 31 Elm Terrace Burlington, VT 05401 860-6421 7 10/5/2006 Renee Barnes 911 Dorset Street #7 South Burlington, VT 05403 598-8359 8 10/5/2006 Van D. Nguyen "Kiet" 911 Dorset Street #8 South Burlington, VT 05403 598-8353 9 10/5/2006 James Smith & Woralee Cartier 911 Dorset Street #9 South Burlington, VT 05403 863-4052 H.-Abbe LackSawabini & Wadi L i 1 ik- _ •_, f 10 10/5/2006 Saevaisirli %�lfjl/I/G' 512-A;cor4Lane Shelburne, VT 05482 _-t8&4248- 11 10/5/2006 Stephanie Jacesko 911 Dorset Street #11 South Burlington, VT 05403 769-2921/310-5154 Phase 2 - Bottom of Hill - Before Pool 12 10/5/2006 William Masterson 1127 North Ave, Suite 27 Burlington, VT 05401 321-946-1406 14 10/5/2006 James Thornton 911 Dorset Street #14 South Burlington, VT 05403 985-8682 15 10/5/2006 Daniel Connely 911 Dorset Street #15 South Burlington, VT 05403 651-0845 16 10/9/2006 Steve & Edna North 911 Dorset Street #16 South Burlington, VT 05403 NOT AVAILABLE 17 10/5/2006 Yoonhwa Cho & Eric Reynolds 911 Dorset Street #17 South Burlington, VT 05403 658-7935 18 10/5/2006 Sylvia Rein & Dr. Julius Rein 911 Dorset Street #18 South Burlington, VT 05403 862-1164 19 10/5/2006 Beverly Jacobson 911 Dorset Street #19 South Burlington, VT 05403 865-0419 20 10/5/2006 Edward & Elizabeth Coleman 911 Dorset Street #20 South Burlington, VT 05403 660-3192 21 10/5/2006 Lori Valburn & John Zwick 911 Dorset Street #21 South Burlington, VT 05403 865-2717 22 10/5/2006 Arlene Yankowski�-/ 911 Dorset Street #22 South Burlington, VT 05403 862-0289 23 10/5/2006 L �;P.,1-YerY9/A V4711SO4 D1gTtP--i1j1 D.N.W.P. D.N.W.P. 24 10/5/2006 Kathleen Kelph�er • 911 Dorset Street #24 South Burlington, VT 05403 D.N.W.P. 25 10/5/20066tl�P.//�Ijp�QrP% 6-1d-P.�Jr'�1 �'ix'� D.N.W.P. D.N.W.P. Phase 3 - Past Tennis Courts - 213 Near Side of Circle 26 10/5/2006 Elizabeth Sabens 911 Dorset Street #26 South Burlington, VT 05403 658-7962 27 10/5/2006 Mina Peshavaria 911 Dorset Street #27 South Burlington, VT 05403 658-2053 28 10/5/2006 Cort Lohff 911 Dorset Street #28 South Burlington, VT 05403 862-7940 29 10/5/2006 Susan Young & Wes Sanders 911 Dorset Street #29 South Burlington, VT 05403 863-5708 30 10/5/2006 Carol A. Chase 911 Dorset Street #30 South Burlington, VT 05403 864-6307 31 10/5/2006 Ellen Powell 911 Dorset Street #31 South Burlington, VT 05403 651-8753 32 10/5/2006 Dorene Ouesnel 911 Dorset Street #32 South Burlington, VT 05403 D.N.W.P. 33 10/5/2006 Jim Olinger 911 Dorset Street #33 South Burlington, VT 05403 860-2295 34 10/5/2006 William M. & Harriet T. O'Neill 911 Dorset Street #34 South Burlington, VT 05403 860-7636 35 10/5/2006 Howard R. Goiderg 911 Dorset Street #35 South Burlington, VT 05403 860-6871 36 10/5/2006 Marylouise R. Adsit 911 Dorset Street #36 South Burlington, VT 05403 862-5209 37 10/5/2006 J. Sarabia 911 Dorset Street #37 South Burlington, VT 05403 864-0581 38 10/5/2006 Kristen Leavitt 911 Dorset Street #38 South Burlington, VT 05403 865-4892 39 10/5/2006 Karen Mills 911 Dorset Street #39 South Burlington, VT 05403 862-3005 Phase 4 - Past Tennis Courts - Far Side of Circle 40 1015/2006 Anne Welsh 911 Dorset Street #40 South Burlington, VT 05403 D.N.W.P. 41 10/5/2006 Trampas Demers 911 Dorset Street #41 South Burlington, VT 05403 734-1268 42 10/5/2006 John & Kathy Martineck 911 Dorset Street #42 911 Dorset Street #42 865-3303 William H. Conway, Jr. & Mary 43 10/5/2006 Conway 911 Dorset Street #43 South Burlington, VT 05403 864-5961 44 10/5/2006 Kathryn Webb 911 Dorset Street #44 South Burlington, VT 05403 863-1218 45 10/5/2006 Paul Charow & Ellen Hamilton 911 Dorset Street #45 South Burlington, VT 05403 760-7623 46 10/5/2006 Joan C, Bowker 11 High Meadows Road Underhill, VT 05489 802-899-3547 47 10/5/2006 Kor Kiley & Wichada Sukantarat 911 Dorset Street #47 South Burlington, VT 05403 658-8611 48 10/5/2006 Amman 911 Dorset Street #48 South Burlington, VT 05403 486e-240t 49 10/5/2006 Tath 911 Dorset Street #49 South Burlington, VT 05403 3t9 8395 50 10/5/2006 GaPAU,.eaker 911 Dprset Street #50 South Burlington, VT 05403 864-0082 Phase 5 - Top of Hill 51 10/5/2006 Thomas C. Leupp 911 Dorset Street #51 South Burlington, VT 05403 863-8285 52 10/5/2006 Brenda J. Racht & Leo J. Racht 911 Dorset Street #52 South Burlington, VT 05403 D.N.W.P. 53 10/5/2006 eryarr-ftekers`y?/';L,f ;y--A;Y,/,,1 _ 911 Dorset Street #53 South Burlington, VT 05403 '23ETS'T83' 31�g 54 10/5/2006 Jean S. Richardson 911 Dorset Street #54 South Burlington, VT 05403 862-0911 -- 55 10/5/2006 Deborah Lang P.O. BOX 8503 Essex, VT 05451 658-4567 56 10/5/2006 Marguerite Myers 911 Dorset Street #56 South Burlington, VT 05403 865-3959 57 10/5/2006 Eric Griffin 911 Dorset Street #57 South Burlington, VT 05403 847-1733/862-1578 58 10/5/2006 Marie France L. Knapp 911 Dorset Street #58 South Burlington, VT 05403 862-2642 59 10/5/2006 Joel Cauley 911 Dorset Street #59 South Burlington, VT 05403 660-9920 60 10/5/2006 Colby Morris 911 Dorset Street #60 South Burlington, VT 05403 864-7966 'D.N.W.P - Does not want published Corporation Information Corporation Name INDIAN CREEK CONDOMINIUMS ASSOCIATIONS, INC. Corporation Status Active File No N-01895-0 Type Vermont Incorporation Date 07/30/1982 Corporation Description CONDO MGMT State of Incorporation VT Registered Agent SCOTT J MICHAUD Address PO BOX 1201 City State Zip WILLISTON VT 05495 Officer 1 MELINDA TATE Officer 3 JANET SERABIA Officer 4 DORENE QUESNEL Principal Street Address PO BOX 1201 City State Zip WILLISTON VT 05495 Last Biennial Report filed 01/31/2006 Terminated 04/25/1994 Reinstated 06/25/1996 Above accurate as of. 04/03/2008 Izrlolmmalioil. ont�ict Flame I Site Search I Help Home Vermonnt_State Page j la sclaimer This Web Page is http://cgi2.sec.state.vt.us/cgi-shl/nhayer.exe 4/4/2008 � I r "Ovaeoi. southburfington PLANNING & ZONING April 4, 2008 Indian Creek Condominiums Associations, Inc. c/o Scott Michaud, Registered Agent PO Box 1201 Williston, VT 05495-1201 Re: Appeal of Zoning Permit #ZP-08-069 Dear Mr. Michaud: Please be advised that on April 4, 2008 Zoning Permit #ZP-08-069 issued to you on March 20, 2008 for construction on unit #35 has been appealed (copy enclosed). Pursuant to 24 VSA § 4449 (a)(3) , this permit shall not take effect until adjudication of the appeal by the Development Review Board is complete and the time for taking an appeal to the environmental court has passed without an appeal being taken. A public hearing on the appeal is scheduled for 7:30 p.m. in -City Hall (575 Dorset Street) on May 6, 2008. .X ""�i . a and J. Be air Administrative Officer cc: Howard Goldberg 575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburi.com STITLEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE WWW.FIRMSPF.COM ROBERT E. FLETCHER E-MAIL(FIRM2555@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S E-MAIL (JKLESCH@FIRMSPF.COM) AMANDA S. E. LAFFERTY WRITER'S FAX (802) 660-9119 WILLIAM E. FLENDER July 22, 2008 OF COUNSEL JOHN H. KLESCH DINA L. ATWOOD Jacalyn M. Fletcher, Court Manager Vermont Environmental Court 2418 Airport Road Barre, VT 05641-8701 Re: Kathleen Kelleher v. Indian Creek Condominium Association Docket No.: Dear Jacalyn: Enclosed for filing with the Court is our Entry of Appearance in connection with the above -referenced matter. Sin ert,ely, J,oh H. Klesch JHK/ j g Enclosure CC: Douglas Le Brun, Esq. Raymond Belair, Administrative Officer son08-088.wpd STATE OF VERMONT ENVIRONMENTAL COURT KATHLEEN KELLEHER Appellant, go INDIAN CREEK CONDOMINIUM ASSOCATION, and HOWARD GOLDBERG, Appellees. DOCKET NO.: ENTRY OF APPEARANCE NOW COMES JOHN H. KLESCH, of the firm of Stitzel, Page & Fletcher, P.C., and hereby enters his appearance in the above - referenced matter by and on behalf of the City of South Burlington. DATED at Burlington, in the County of Chittenden and State of Vermont, this 22nd day of July, 2008. son08-037.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PO. BOX 1507 BURLINGTON, VERMONT 05402-1507 STITZEL, PAGE & FLETCHER, P.C. Jofi . Klesch 17r attery Street, PO Box 1507 x� ington, VT 05402 22) 660-2555 July 21, 2008 Douglas Le Brun, Esq. Shlansky & Co., LLP 360 Main Street Vergennes, VT 05491 Re: Indian Creek Condo #35 Addition Docket No. 147-7-08 Vtec Dear Mr. Le Brun: Pursuant to Rule 5(b) (4) (A) of the Vermont Rules for Environmental Court Proceedings, (also see 24 V.S.A. §4471(c)), the following is a list of "interested persons" for the above proceeding. You are instructed by that Rule to serve a copy of your client's notice of appeal upon all the people or entities listed below, by certified mail. The following persons appeared at the hearing held by the Development Review Board (hereinafter referred to as the DRB) on this application: Jim Thornton 911 Dorset Street #14 South Burlington, VT 05403 Kathleen Kelleher 911 Dorset Street #24 South Burlington, VT 05403 Dan Connelly 911 Dorset Street #15 South Burlington, VT 05403 Dorene Quesnel 911 Dorset Street #32 South Burlington, VT 05403 Melinda Tate 911 Dorset Street #25 South Burlington, VT 05403 575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburl.com Howard Goldberg 911 Dorset Street, #35 South Burlington, VT 05403 When the DRB sent out its notice on the above referenced application, the following additional people or entities were provided a copy of the DRB notice (this list does not include the people noted above who appeared at the DRB hearing): Mary Louise R. Adsit Life Estate 911 Dorset Street #36 South Burlington, VT 05403 Indian Creek Condominiums Associations, Inc. c/o Scott Michaud, Registered Agent PO Box 1201 Williston, VT 05495 Lastly, I recommend that you consult the definition for "interested persons" contained in 24 V.S.A. §4465(b). If you believe that your list is missing someone who has interested persons status in this proceeding, you should consider sending them a copy of the notice of appeal, so that you can be confident that all persons or entities who are entitled to notice have received it. /wL v � I J. B lair trative Officer cc: Vermont Environmental Court John Klesch, Esq. VERMONT ENVIRONMENTAL COURT ---------------------------------------- City of South Burlington 575 Dorset Street South Burlington VT 05403 ---------------------------------------- (802) 828-1660 2418 Airport Road, Ste.1 Barre, Vermont 05641 - 8701 July 18, 2008 Indian Creek Condo #35 Addition Docket No. 147-7-08 Vtec The above -referenced appeal from a municipal panel, district commission, agency of natural resources or agency of agriculture was received at the Environmental Court on 07/17/2008. Environmental Court docket number 147-7-08 Vtec has been assigned to this appeal. Please use the Environmental Court docket number and the above case name when filing any documents or asking any questions concerning this case. Please note, this case name may not be final if we are missing necessary information from the appellant. All documents should be filed with the Environmental Court at the address at the top of this letter. Also, if you have not provided the Court with a telephone number where you can be reached during working hours for the purpose of telephone conferences, please do so as soon as possible. The Vermont Rules for Environmental Court Proceedings (V.R.E.C.P.) set out the procedures to follow for this appeal. Enclosed is a copy of those Rules, minus Rules 3 & 4 which are not applicable in this type of action. I have also omitted some of the Reporter's Notes. You may obtain a full copy of the Rules and Reporter's Notes at wwv.VclTiOi.t]udCay.Org. 1. The person filing the appeal is called "the appellant." The appellant must take certain actions in order to assure that this appeal is not dismissed. Consult the Vermont Rules for Environmental Court Proceedings to see what those actions are. For requirements regarding the appellant's responsibility to notify interested parties, see V.R.E.C.P. 5(b)(4)(A); see also Form 900 available on the Court's web site at www.vermontjudiciary.org or by calling the Court at the above number and requesting that one be sent to you. 2. This case will be ready for hearing or other appropriate disposition when the time for filing the appellant's statement of questions has expired, or 20 days after the notice to interested parties has been sent, whichever occurs later. To complete service of appeals, the appellant must do as follows: From an Appropriate Municipal Panel, follow V.R.E.C.P. 5(b)(4)(A). The clerk of the appropriate municipal panel must provide the appellant with a list of interested persons within five working days of the municipality's receipt of a copy of the notice of appeal. July 18, 2008 -Page 2- 147-7-08 Vtec From a District Commission, District Coordinator or the Secretary of the Agency of Natural Resource, follow V.R.E.C.P. 5(b)(4)(B): Take special notice that no list of interested parties will be provided by the tribunal, other than the service list on the decision appealed from. The Court may extend that time if a request is made by written motion filed with the Court before the deadline has expired. If this case is set for a hearing on the merits, the hearing will take place in or near the county in which the case originated. Please note that pursuant to V.R.E.C.P. 5 (b)(4) (g), these appeals are de novo, unless the municipality has adopted procedures to make certain appeals on the record. 3. Faxing a copy of a document is not sufficient to meet deadlines for filing documents with the Court. Faxed copies may be authorized by the Court in certain circumstances, but the Court will not accept Faxed documents unless the sender has first telephoned the Court and obtained permission to do so or and unless the judge has authorized it in a scheduling order. 4. The person filing any document (including letters) with the Court must also send a copy of that document to each of the other parties. The Clerk of the Environmental Court will contact the parties to arrange for a pre -hearing conference in person or by telephone with a judge or with a case manager. Before the initial conference, the Appellant is requested to provide the Court with a copy of the decision being appealed from. The Court finds it useful in preparing to discuss the appeal with the parties at the initial conference. Sincerely, Jacal M. Fletcher, Court Manager/designee CC: FYI, City of South Burlington Douglas D. LeBrun, Attorney for Appellant, Kathleen Kelleher DEVELOPMENT REVIEW BOARD 6 MAY 2008 Mr. Plumeau rejoined the Board. 6. Appeal #AO-08-04 of Kathleen Kelleher, Doreen Quesnel & Melinda Tate appealing the decision of the Administrative Officer to issue Zoning Permit #ZP-08-69 to Indian Creek Condominium Association, 911 Dorset Street #35: Mr. Lebrun, representing Ms. Kelleher, said that only a landowner has the right to file a land use application. Indian Creek says it is the landowner of the piece of property in question, and the appellants say that is not true. In a condominium, the owner owns the unit. Common land is owned by all the tenants in common. The Indian Creek Association owns no interest in the real property whatsoever. The common areas are owned by the 59 tenants in common, and they have not agreed to develop the property in question. In addition, if there is a request made of the tenants in common for a development proposal, all 59 must agree to it. Mr. Lebrun said a Development Review Board does not have the right to review an application by anyone other than a landowner. In this instance, the Indian Creek Association said it had the right to submit a development application, which the appellants contend it did not. Mr. Dinklage noted that Mr. Goldberg, the applicant and owner of the unit, is just enclosing a deck. Mr. Lebrun said the deck is common property and is not owned by Mr. Goldberg. Mr. Belair noted that on the application, the Condo Association was listed as the "owner of the property," and it was staff s expectation that people put what is true on an application. Mr. Dinklage asked if the deck is part of the footprint lot. Mr. Belair said there are not footprint lots in Indian Creek. Mr. Dinklage asked if it is understood by the Association that all decks are common land. He asked if one resident could hold a party on another resident's deck. Mr. Lebrun said there is a difference between "ownership" and "use." Mr. Dinklage asked what the problem is with enclosing a deck. Mr. Lebrun said you can't have a condo owner expanding his property by enclosing the deck. Mr. Goldberg, owner of the property in question, read a statement by Mr. Masterson, President of the Homeowner's Association, who said the design for the deck was submitted to the Design Review Committee of Indian Creek and was reviewed by the Indian Creek Board of Directors. They recommended approval of the design. Mr. Goldberg said lots of people build on other people's property without transferring the property. Mr. Masterson claims that he has the ability to sign for all the owners and has the right to act for them. Mr. Goldberg said it would be absurd to ask every owner to sign the application. Mr. Thornton, a Member of the Indian Creek Association and a Member of their Board, said the critical issue is that the declarations define "repairs" and "modifications" to a deck. The concept of an addition to a deck is not in the declaration. He added that the declarations have not been amended to allow for "additions." DEVELOPMENT REVIEW BOARD 6 MAY 2008 Another Indian Creek resident noted that enclosing the deck changes the percentage of ownership of one unit. Mr. Connolly said an addition to a living unit is an "encroachment." Mr. Lebrun said that the Vermont Statute of Frauds requires any authority to transfer authority regarding ownership in writing. That was not done in this case. He said you can't transfer property just by voting on it. Ms. Tate noted that the members voted to have the owners "maintain" the decks, even though they are common property. Members felt they wanted to consult with the City Attorney and agreed to close the hearing. Ms. Quimby moved to close the hearing. Mr. Birmingham seconded. Motion passed unanimously. 7. Site Plan Application #SP-08-25 of Gardner & Sons Development Corp. to construct a three -unit multi -family dwelling, 18 Southview Drive: Mr. Courcelle said they have spoken with the Arborist and will work with him on the hedge. They will also add snow storage areas on each side of the driveway. Bicycle storage will be wall -mounted in the garages. They will submit cut sheets for lighting. Mr. Dinklage said the essential thing the Board has to consider are encroachments into the wetland buffer. The State has said there is no harm to the function of the wetland. However, the waiver allows for denser development than otherwise possible. Mr. Dinklage said he felt the massing of the building is out of context with the neighborhood and he would like to see it reduced. Mr. Belair noted receipt of a letter from Douglas Marek, a neighbor, who expressed his intent to appeal any approval of the project. Ms. Ambusk asked whether people would be allowed to walk in the wetland buffer area. Mr. Dinklage said they can walk there but not "disturb" the area. He stressed that it is not a "backyard." Mr. Belair added that it can't be mowed and can be brushogged only 3 times a year. It also can't be used recreationally. There will be a stipulation added to that effect. Ms. Quimby moved to approve Site Plan Application #SP-08-25 of Gardner & Sons Development Corp. subject to the stipulations in the draft motion as noted above. Mr. Farley seconded. Motion passed unanimously. -5- r �► southbul rington i PLANNING & ZONING July 21, 2008 John Klesch, Esq. Stitzel Page & Fletcher PO Box 1507 Burlington, VT 05402-1507 Re: DRB Appeals — Wesco, Inc. — 1118 Williston Road John & Joyce Belter — 102 Ethan Allen Drive Kathleen Kelleher — 911 Dorset Street #35 Dear John: Enclosed, please find copies of Notices of Appeal for the above referenced appellants. Please enter an appearance on behalf of the City for each appeal. Thanks. Administrative Officer 575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.shurl.com J SHLANSKY & CO., LLP A TTORNEYS AT LAW 360 MAIN S I'REE7 VER.GEiNNES, VERMON-L 05491 Wkl' ELR'SEMAIL, DDLOSHLANSKYLAW.COM July 16, 2008 VIA OVERNIGHT DELIVERY Jacalyn M. Fletcher, Court Manager Vermont Environmental Court 2418 Airport Road Barre, VT 05641-8701 f El: (802) 877-7()OI FAX: (866) 25l 9530 W W W.,SHIAN.SKI'IAW.COM Re: Notice of Appeal of City of South Burlington Development Review Board Appeal #AO- 08-04, Findings of Fact and Decision Dear Jacalyn: Enclosed is a Notice of Appeal of the captioned decision of the City of South Burlington Development Review Board, plus a check for the $225.00 filing fee. Thank you for your attention to this. Please call if you have any questions or concerns. Sincerely, Douglas Le Brun, Esq. Counsel for Kathleen Kelleher Enclosures c: South Burlington Development Review Board Vermont Environmental Court 0716 08 VERMONT ENVIRONMENTAL COURT KATHLEEN KELLEHER Appellant VS. INDIAN CREEK CONDOMINIUM ASSOCIATION, and HOWARD GOLDBERG, Appellees Docket No. NOTICE OF APPEAL NOW COMES Kathleen Kelleher, by and through her counsel, Shlansky & Co., LLP, and hereby appeals the decision styled Appeal #AO-08-04, Findings of Fact and Decision, rendered by the City of South Burlington Development Review Board on June 19, 2008, to the Vermont Environmental Court. Ms. Kelleher claims party statu&because she is an "interested person who has participated in a municipal regulatory proceeding" within the meaning of 24 V.S.A. section 4471(a), since she offered testimony, evidence and a statement of concern before the said Development Review Board at its May 6, 2008 public hearing, and otherwise. The property with which this appeal is concerned is a condominium unit and common area located at the Indian Creek Condominiums, 911 Dorset St., South Burlington, Vermont 05403, and in particular unit #35 thereof and the deck located outside that unit. The development at issue is a proposed addition to unit #35 proposed,to be built on the deck outside unit #35, which location Ms. Kelleher believes to be a condominium common area, not property 2 owned by Howard Goldberg. The name of the applicant for the zoning permit in question is Howard Goldberg. Dated at Vergennes, Vermont this 16th day of July, 2008. Respectfully Submitted, Kathleen Kelleher By her attorneys, Douglas Le Brun, Esq. Shlansky & Co., LLP 360 Main Street Vergennes, VT 05491 Phone: (802) 877-7001 Fax: (802) 257-9530 c: South Burlington Development Review Board June 19, 2008 Jim Thornton 911 Dorset Street #14 South Burlington, VT 05403 Re: Appeal #AO-08-04 Dear Mr. Thornton: Pursuant to 24 VSA 4464(b)(3), enclosed please find a copy of the Development Review Board decision regarding the above referenced matter. You are being provided a copy of this decision because you appeared or were heard at the hearing. If you have any questions, please feel free to contact this office. Sincerely, Betsy McDonough Brown Planning & Zoning Assistant 675 rhir. t Street South uriiugi ti, YT 05403 fat 802-94 .",OCi- lax 002,846,4101 aas�, asrat� June 19, 2008 Doug LeBrun 360 Main Street Vergennes, VT 05491 Re: Appeal #AO-08-04 Dear Mr. Thornton: Pursuant to 24 VSA 4464(b)(3), enclosed please find a copy of the Development Review Board decision regarding the above referenced matter. You are being provided a copy of this decision because you appeared or were heard at the hearing. If you have any questions, please feel free to contact this office. Sincerely, 6&y eww-, Betsy McDonough Brown Planning & Zoning Assistant 57S Durmt Struet Sout% aarlingtan, yT g5q.ss gej 4ax, 092A4601 June 19, 2008 Dan Connelly 911 Dorset Street #15 South Burlington, VT 05403 Re: Appeal #AO-08-04 Dear Mr. Connelly: Pursuant to 24 VSA 4464(b)(3), enclosed please find a copy of the Development Review Board decision regarding the above referenced matter. You are being provided a copy of this decision because you appeared or were heard at the hearing. If you have any questions, please feel free to contact this office. Sincerely, &kq 6UWK- Betsy McDonough Brown Planning & Zoning Assistant 5,76 DoEset stru t Souz1h urlin ton, VT 05403 iel 02AIAS ,311 lax 002-94PJ. C11 �www-sb rf-co rs June 19, 2008 Howard Goldberg 911 Dorset Street #35 South Burlington, VT 05403 Re: Appeal #AO-08-04 Dear Mr. Goldberg: Pursuant to 24 VSA 4464(b)(3), enclosed please find a copy of the Development Review Board decision regarding the above referenced matter. You are being provided a copy of this decision because you appeared or were heard at the hearing. If you have any questions, please feel free to contact this office. Sincerely, ft-q &O"\.- Betsy McDonough Brown Planning & Zoning Assistant 75 Dorset Strawt South SurlingRan, VT 0a2 tel 02.. . S day 902-0.490 June 19, 2008 William Masterson 911 Dorset Street #12 South Burlington, VT 05403 Re: Appeal #AO-08-04 Dear Mr. Masterson: Pursuant to 24 VSA 4464(b)(3), enclosed please find a copy of the Development Review Board decision regarding the above referenced matter. You are being provided a copy of this decision because you appeared or were heard at the hearing. If you have any questions, please feel free to contact this office. Sincerely, &q&VWK- Betsy McDonough Brown Planning & Zoning Assistant 6175 Ourset, Street Hourk"no4en, VT 06463 1&1 AQ2-'D46,AV1Fz fax ww.w.sburl-cam Carl H. Lisman a graduate of Harvard Law School, devotes approximately half of his time to litigation and dispute resolution, with an emphasis on business and real estate matters, and the remainder of his time in business transactions and finance, and has been continuously listed in the Best Lawyers in America for more than 15 years. His clients include business purchasers, sellers, managers and operators as well as local, regional, national and international lenders; real estate developers, construction contractors, community associations, construction and permanent lenders, mortgage brokers; and property managers. His practice encompasses the entirety of the State, and he is a frequent consultant to lawyers and serves as an expert witness. Mr. Lisman served as an Adjunct Professor at Vermont Law School for 16 years, teaching third -year students. He has lectured extensively on commercial law and the Uniform Commercial Code, corporate governance issues, resort and real estate issues, common interest ownership (including condominium) law and other topics. He is planning chair for the ALI-ABA Consortium on Continuing Legal Education and a member of the faculty on Drafting Documents for Condominiums, Planned Communities and New Urbanism Projects, and a member of the faculty of the Resort Real Estate Program. Mr. Lisman has been a Commissioner on Uniform State Laws since 1976 and is the chair of the Vermont delegation. He has served as Treasurer and a member of the Scope and Program Committee of the National Conference of Commissioners on Uniform State Laws. As a Uniform Law Commissioner, he has been a member of a number of Committees responsible for the drafting of Uniform Laws on many topics, including the Uniform Condominium Act, the Uniform Planned Community Act, the Model Real Estate Cooperative Act, the Uniform Common Interest Ownership Act, the Revised Anatomical Gift Act, and the Securities Act. He is currently chairing the Committee to revise the Uniform Common Interest Ownership Act, and was the chair of the Committees for the Uniform Nonjudicial Foreclosure Act and the Uniform Unincorporated Nonprofit Associations Act. Mr. Lisman was selected for membership in the American College of Real Estate Lawyers in 1983. He was elected to a three-year term on the College's Board of Governors in 1993. He is a former chair of the College Committee on Common Interest Ownership. In addition, Mr. Lisman is co-chair of the Joint Editorial Board for Real Property Acts, sponsored by the National Conference of Commissioners on Uniform State Laws, the American Bar Association Real Property Sections and American College of Real Estate Lawyers. Mr. Lisman is serving his second term as Chair of the Board of Trustees at the University of Vermont. Following graduation from law school, Mr. Lisman was clerk for Honorable Sterry R. Waterman, United States Circuit Judge for the Second Circuit. He then was an associate with a major Wall Street firm before returning to Vermont. He has been an active member of the Vermont Bar Association, serving as a member of its Board of Managers. To: City of South Burlington Design Review Committee From: William Masterson, President — Indian Creek Condominiums Association Re: Zoning Permit Application Number 2P-08-069 Date: May 6, 2008 I signed this application in my capacity as President of the Association. Mr. Goldberg applied to the Board of Directors for permission to enclose his deck in the fall of 2007. The Design Review Committee of the Indian Creek Board of Directors reviewed his plans and made changes. The plans that you have were presented by the Chairman of the Indian Creek Design Review Committee to the Indian Creek Board of Directors -in December of 2007 with the recommendation that they be approved. They were approved — and in accordance with that approval an application for a Zoning Permit was filed. Mr. Goldberg signed as Applicant and I signed as Owner on behalf of the Indian Creek Condominium Association and/or the owners. William Masterson, President, Indian Creek Condominium Association rr s®ut burlin to PLANNING & ZONING April 16, 2008 Indian Creek Condominiums Associations, Inc. c/o Scott Michaud, Registered Agent PO Box 1201 Williston, VT 05495 Dear Property Owner: Enclosed is a copy of a public notice published in Seven Days. It includes an application for development on your property. This is being sent to you and the abutting property owners to make aware that a public hearing is being held regarding the proposed development. Under Title 24, Section 4464 of State law, participation in a municipal regulatory proceeding is required in order to preserve your right to appeal a local development approval to the Vermont Environmental Court. State law specifies that "Participation in a local regulatory proceeding shall consist of offering, through oral or written testimony, a statement of concern related to the subject of the proceeding." Please call our office at 846-4106 if you have any questions. Sincerely, Betsy McDonough Brown Planning & Zoning Assistant Encl. cc: Howard Goldberg Kathleen Kelleher Dorene Quesnel Melinda Tate 575 Dorset Street South Burlington, VT 05403 tell 802.846.4106 fax 802.846.4101 www.sburl.com April 16, 2008 Mary Louise R. Adsit Life Estate 911 Dorset Street #36 South Burlington, VT 05403 Dear Property Owner: Enclosed is a copy of a public notice published in Seven Days. It includes an application for development that abuts property you own. This is being sent to you to make you aware that a public hearing is being held regarding the proposed development. You will not receive this notice if any subsequent or continued public hearings for the same applications are required. Under Title 24, Section 4464 of State law, participation in a municipal regulatory proceeding is required in order to preserve your right to appeal a local development approval to the Vermont Environmental Court. State law specifies that "Participation in a local regulatory proceeding shall consist of offering, through oral or written testimony, a statement of concern related to the subject of the proceeding." If you would like to know more about the proposed development, you may call this office at 846-4106, stop by during regular office hours, or attend the schedule public hearing. Sincerely, Betsy McDonough Brown Planning & Zoning Assistant Encl. 575 Dorset Street South Burlington, VT 05403 tell 802.846.4106 fax 802.846.4101 www.sburi.com A F, A ®®®*� sothburlington PLANNING & ZONING May 2, 2008 Dorene Quesnel 911 Dorset Street #32 South Burlington, VT 05403 Re: 911 Dorset Street #35 Dear Ms. Quesnel: Enclosed is the agenda for next Tuesday's Development Review Board meeting and staff comments to the Board. Please be sure that someone is at the meeting on Tuesday, May 6, 2008 at 7:30 p.m. at the City Hall Conference Room, 575 Dorset Street. If you have any questions, please give us a call. Sincer ly, I * Betsy McDonough Brown Planning & Zoning Assistant Encl. 575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburl.com LISMAN, WEBSTER &LECKERLING, P.C. Attorneys at Law March 18, 2008 Mr. Howard Goldberg 911 Dorset Street - Unit 35 South Burlington, VT 05403 Indian Creek Dear Howard: Carl H.Lisman Direct dial: 802 865-2500 ext. 225 E-mail: clisman(uidisman.com I am writing in response to your letter, dated February 22, 2008, inquiring whether the approval given to you to enclose the deck at the rear of your townhouse was within the authority of the Board to give. In analyzing this question, I have reviewed the following documents: (a) the Declaration of Condominium, dated July 14, 1982, as amended by amendments dated April 11, 1988, January 16, 1997, April 22, 1997 and May 15, 2001 (together, as amended, the "Declaration");' (b) the Bylaws of the Indian Creek Condominiums Association, Inc., as amended by amendments dated April 15, 1996, January 16, 1997, May 15, 2001 and January 25, 2007 (together, as amended, the "Bylaws"); (c) various policies adopted by the Board of Directors relating to exterior modficiation of units entitled "Natural Gas Installation Policy," "Additional Window Installation Policy," "Split Vent Air Conditioning Installation Policy," "Through -Wall Air Conditioning Installation Policy," "Satellite Dish Installation Policy," " Retractable Deck Awning Installation ' I have assumed that there have been other amendments to the declaration and bylaws not relevant to the subject of this letter. Lisman, Webster, & Leckerling, P.C. 84 Pine Street, Burlington, VT 05402-0728 Phone: (802) 864-5756 Facsimile (802) 864-3629 www.lisman.com Mr. Howard Goldberg March 18, 2008 Page 2 Policy," Exterior Door Installation Policy," "Rear Deck Modification and Installation Policy" and "Addition[s] at Rear of Unit Policy," dated various dates; (d) minutes of the September, October and December 2007 meetings of the Board of Directors. In addition, we have reviewed the Vermont Condominium Ownership Act (the "Act") and made further investigation of law as we have deemed appropriate. Background As is common with early condominium properties in Vermont, the original declaration defined the townhouses as being bounded by the upper surface of the unfinished subfloor (probably concrete), the lower surface of the drywall ceiling above the second floor, and the unfinished surface of the interior drywall of the exterior walls. It also designated terraces and patio spaces as limited common elements appurtenant to the townhouses to which they were attached. The original declaration was amended in 1997, in part, as follows: "An owner shall own and maintain the rear deck of the townhouse." That amendment also redefined townhouse boundaries. Though not as artful as it might have been, the 1997 amendment clearly transferred the ownership of the townhouse decks from all of the owners (as tenants in common) to each owner for the deck appurtenant to his or her townhouse. The Declaration requires approval of the Board of Directors for structural alterations to "within or affecting" a townhouse. The Rear Deck Modification and Installation Policy, revised in December 2006 (the "Modification Policy"), and the Addition[s] at Rear Policy, dated October 2007 (the "Additions Policy") set forth guidelines adopted by the Board of Directors for modification or additions to the area of the deck. Consistent with the Additions Policy, you sought permission in December 2007 to enclose "the footprint of [the] current deck with one floor living space to the east and screened porch to the north." Applicable Law Most courts have concluded that the Act is essentially an enabling law, designed to allow Lisman, Webster, & Leckerling, P.C. 84 Pine Street, Burlington, VT 05402-0728 Phone: (802) 864-5756 Facsimile (802) 864-3629 www.lisman.com Mr. Howard Goldberg March 18, 2008 Page 3 banks and other regulated lenders to make first mortgage loans and to permit the tying of unit and common element ownership. As a consequence, courts have upheld documentation that deviates from the Act so long as the deviation is not inconsistent with the Act. See e.g., Tosney v.Chelmsford Village Condominium Association, 397 Mass. 683 (1986); American Savings v. Kosaka, 718 P.2d 1001 (Ariz. App. 1985). Courts have also — quite consistently — upheld amendments to condominium declarations so long as the amendment process has been followed and the process does not violate the statutory requirements. Here, it appears that the authorization given by the Board to your modification is consistent with the Act, the Declaration and the Additions Policy: 1. The Act clearly contemplates that boundaries between townhouses and common elements (including limited common elements) can be altered. That was done at Indian Creek by amendment to the declaration. 2. The Declaration now provides that owners own their townhouses and their decks. The amendment is unambiguous. 3. The Additions Policy was duly adopted by the Board of Directors and is within the Board's authority to manage the condominium for the benefit of the townhouses and the owners, including the authority to grant easements in the condominium. The enclosure of the decks — now owned by the townhouse owners — can be interpreted either as within the common law rights of property owners to make improvements to their properties or as, in essence, an easement to develop the airspace above the decks. It appears that you have complied with the Additions Policy, which is really a rule, in your application, and it appears that the Board applied the Policy as it was intended. Conclusion Board members have fiduciary duties. Among those duties is to act within the bounds of the governing documents. The membership voted to amend the original declaration to vest ownership of decks in the individual owners. The Board enacted rules dealing with modification and additions to decks. You applied to improve the deck area and the Board, consistent with the Lisman, Webster, & Leckerling, P.C. 84 Pine Street, Burlington, VT 05402-0728 Phone: (802) 864-5756 Facsimile (802) 864-3629 www.lisman.com Mr. Howard Goldberg March 18, 2008 Page 4 rules, approved your application. I believe that the Board acted within its authority. 25120\001 0 Carl H. Lisman Lisman, Webster, & Leckerling, P.C. 84 Pine Street, Burlington, VT 05402-0728 Phone: (802) 864-5756 Facsimile (802) 864-3629 www.lisman.com To: City of South Burlington Design Review Committee From: Howard R. Goldberg, Applicant Re: Zoning Permit Application Number 2P-08-069 Date: May 6, 2008 1. As applicant, I applied for a Zoning Permit to enclose the deck on my Indian Creek Condominium Unit in accordance with the plans and application submitted to the Planning and Zoning Administrative officer, Ray Belair. I signed the application as "Applicant" and William Masterson, in his capacity as President of the Indian Creek Condominiums Association, signed as "Owner". 2. As I read the appellants' Notice of Appeal — they object on two grounds: a. That (per item 4 on their Notice of Appeal), your Land Development Regulations do not allow someone to erect a building on someone else's land, and b. That (per item 6 on their Notice of Appeal) President Masterson's signature on the Zoning application is (and I quote) "false and fraudulent" because the Indian Creek Condominiums Association is not the owner of the real property in question. With respect to item A — the assertion that the "land development regulations do not allow someone to erect a building on someone else's land", is incorrect. If Mr. Brown wanted to build a shed on his neighbor, Mr. White's property — this would be allowed if Mr. Brown and Mr. White made application for a Zoning Permit. Lots of folks build on other people's property without the requirement that the land be transferred to the applicant doing the actual building on someone else's land With respect to item B - the assertion that President Masterson's signature is "false and fraudulent" is also incorrect. Whether one considers the owner of the land to be the Association, or the 59 owners — President Masterson, in his capacity as President, has the authority to sign for both. The Declaration of Condominium that established the Indian Creek Condominiums Association is recorded in the South Burlington Land Records. (Volume 181, p 295) That Declaration pursuant to Article XI, Section 2 of Exhibit C (recorded at Volume 181 p 333) irrevocably appoints the Association - on behalf of each of the 59 owners — as each owner's attorney -in -fact "to manage, control and deal with the interests of the owners in the common and limited common areas of the property." Accordingly, President Masterson, in his capacity as representative of the Association, is the only person who could have signed that application as Owner. His signature is neither false nor fraudulent. Common sense also tells us that a Condominium Association President must be able to sign a Zoning Permit Application on behalf of the Association and/or the individual owners. The absurdity of requiring every owner of a condominium complex to sign a zoning application for building on the common or limited common property is self-evident, because, as a practical matter, this would make any construction on any Condominium Association land impossible. If one accepts the position of the Appellants, then, if this zoning application had been for a new swimming pool for the Indian Creek Condominium Association, this DRB would have to reject it based on the fact that this application was not signed by all 59 owners. — clearly an impossible hurdle to overcome. Howard Goldberg 3� .) J t8 ASSOCIATES P. O. Sox 1 t C IT9f1EL0, VERMONT I 06 EXHIBIT C TO DECLARATION OF CONDOMINIUM INDIAN CREEK CONDOMINIUMS ,BY-LAWS OF INDIAN CREEK CONDOMINIUMS ASSOCIATION, INC. ARTICLE I NAME AND LOCATION The name of this Association is as follows: INDIAN CREEK CONDOMINIUMS ASSOCIATION, INC. Its principal office is located at: Indian Creek Condominiums, 911 South Dorset, So. Burlington, Vermont 05401. ARTICLE II DEFINITIONS Unless it is plainly evident from the context that a different meaning is intended all terms used herein shall have the same meaning as they are defined in the Declaration or in Title 27, Chapter 15, Vermont Statutes Annotated, the so-called "Condominium Ownership Act.,, ARTICLE III MEMBERS 1. Every person, group of persons, corporation, trust or other legal entity, or any culmination thereof, which owns a townhouse within the Property shall be a member of the Association. 2. A member shall not be deemed to be in good standing nor shall he be entitled to vote in any annual meeting or special meeting if any assessments levied against the townhouse are delinquent or not current or both. 3. Except for those owners who initially purchased a townhouse from the Declarant, any person on becoming an owner of a townhouse, shall furnish to the Secretary of the Association or Board of Directors, a photocopy or certified copy of the recorded instrument vesting that person with an interest or ownership in the Property, which instrument shall remain in the files of the Association. A member shall not be deemed to be in good standing nor shall he be entitled to vote at any annual or at a special meeting of members unless this requirement is first met. There shall also be registered with the Secretary or the Board of Directors one mailing address to be used by the Association for the mailing of statements, notices, demands, and all other communications, and such registered address shall be Page 1 i � 1 5 � D. No structural alteration, construction, addition or demolition of any townhouse or the common areas shall be commenced or conducted, without the prior written approval of the Board of Directors. E. The maintenance, keeping, boarding and/or raising of animals, livestock, poultry or reptiles of any kind, regardless of number, shall be and is prohibited within any townhouse or upon the common areas, except that the keeping of small, orderly domestic pets (e.g., dogs, cats or caged birds) not to exceed one per townhouse without the approval of the Board of Directors, is permitted, subject to the regulations adopted by the Board of Directors; provided, however, that such pets are not kept or maintained for commercial purposes or for breeding and provided, further, that any such pet causing or creating a nuisance or unreasonable disturbance or noise shall be permanently removed from the Property upon ten (10) days written notice from the Board of Directors. Such pets shall not be permitted upon the common areas unless accompanied by an adult and unless carried or leashed. Any owner who keeps or maintains any pet upon any portion of the Property shall be deemed to have indemnified and agreed to hold all the owners and the Association and the Declarant free and harmless from any loss, claim or liability of any kind or character whatever arising by reason of keeping or maintaining such pet within the Property. All pets shall be registered with the Board of Directors and shall otherwise be registered and innoculated as required by law. F. Except for such signs as may be posted by the Declarant for promotional or marketing purposes, traffic control or the like, no signs of any character shall. be erected, posted or displayed without the prior consent in writing of the Board of Directors. G. No junk vehicle or unregistered vehicle, trailer, truck, camper, camp truck, house trailer, boat or the like shall be kept upon any of the common areas, nor shall the repair or extraordinary maintenance of automobiles or other vehicles be carried out on any of the common areas. Notwithstanding the foregoing, campers, boats and unregistered vehicles may be stored in such area as is designated for that purpose by the Board of Directors. H. No outside television or radio aerial or antenna, or other aerial or antenna, for reception or transmission, shall be maintained upon any of the common areas without the prior written consent of the Board of Directors. ASSOCIATES Box))° I There shall be no violation of any Administrative LO. VERMONT )-73 Rules which may from time to time be adopted by the Board Page 13 ;SOCIATES )x Igo VERMONT i1J managing, operating and maintaining the Property. 2. Association as Attorney -in -Fact - The Association is hereby irrevocably appointed as attorney -in -fact for all the owners, and for each of them, to manage, control and deal with the interests of such owners in the common and limited common areas of the Property. The foregoing shall be deemed to be a power of attorney coupled with an interest and the acceptance by any person or entity of any interest in any townhouse shall constitute an irrevocable appointment of the Association as attorney -in -fact as a aforesaid. 3. Management Agent - The Association may by contract in writing delegate any of its ministerial duties, powers or functions to a Management Agent. 11. Duty to Maintain - Except for maintenance requirements herein imposed upon the Association, an owner shall, at his own expense, maintain the interior of his townhouse and any and all equipment, appliances or fixtures therein situate, and its other appurtenances, in good order, condition and repair, and in a clean and sanitary condition, and shall do all redecorating, painting and the like which may at any time be necessary to maintain its good appearance. In addition to the foregoing, an owner shall, at his own expense, maintain, repair, replace any plumbing and electrical fixtures, water heaters, heating equipment, lighting fixtures, refrigerators, freezers, trash compactors, dishwashers, clothes washers, clothes dryers, disposals, ranges, range hoods, and other equipment that may be in or declared to be appurtenant to such townhouse. An owner shall also, at his own expense, keep any other limited common areas which may be appurtenant to such townhouse and reserved for his exclusive use in a clean, orderly and sanitary condition. 5. Association's Power to Grant - The Association through its Board of Directors is authorized and empowered to grant such licenses, easements and rights -of -way, including, but not limited to, sewer lines, waterlines, electrical cables, telephone cables, gas lines, storm drains, overhead or underground conduits and other such purposes related to the provision of public or quasi -public utilities, to the Property, as may be considered appropriate by the Directors. ARTICLE XII AMENDMENT 1. Amendments - These By-laws may be amended by the affirmative vote of owners representing fifty-one (51,�) percent of the total votes of the Association, at any special or annual meeting of the owners duly called for such purpose, in accordance with the provisions and requirements of these By-laws. Any amendment to these By-laws shall be effective only upon the recordation of such amendments together with a certificate in writing of the President or Secretary stating Page 15 LISMAN, WEBSTER &LECKERLING, P.C. Attorneys at Law May 2, 2008 Mr. Howard Goldberg 911 Dorset Street - Unit 35 South Burlington, VT 05403 Indian Creek Dear Howard: Carl H.Lisman Direct dial: 802 865-2500 ext. 225 E-mail: clisman(a)lisman.com Thanks for forwarding a copy of the appeal to the South Burlington DRB as well as Doug Lebrun's letter, dated April 16, 2008. So far as I can determine, the appellants believe that no improvements can be made at Indian Creek without the consent of every owner. I believe that position is incorrect: Taken to its logical conclusion, nothing could happen at Indian Creek — or any other condominium in Vermont — without the express consent of every owner; one owner in a communal property could unilaterally prevent any improvement or alteration. Not only is there no reported court decision that reaches that conclusion, its absurdity is patent. Whether or not the amendments to the Declaration of Condominium are valid or invalid, your unit is benefitted by the deck, which is a limited common element. By law; a limited common element is a subset of the common elements and therefore owned by all of the owners in proportion to their common element interest — but the use of a limited common element is only for the owner or owners of the unit or units to which the limited common element is appurtenant. Therefore, no other owner at Indian Creek may make any use of the deck which is appurtenant to your unit. Clearly and unambiguously, you have the exclusive use of the deck. You have been authorized by the Association to enclose it. I previously wrote you that Lisman, Webster, & Leckerling, P.C. 84 Pine Street, Burlington, VT 05402-0728 Phone: (802) 864-5756 Facsimile (802) 864-3629 www.lisman.com LAW OFFICES OF LISMAN, WEBSTER & LECKERLING, P.C. Mr. Howard Goldberg May 2, 2008 Page 2 the Board's authorization was within its authority. Nothing in Mr. Lebrun's letter alters that opinion. Si e y, Carl H. Lisman 25I20\001 Courts outside Vermont, when asked to interpret laws identical or similar to Vermont's Condominium Ownership Act, have ruled that the law is permissive and that governing documents may expand or modify the law in furtherance of the interests of the owners. Lisman, Webster, & Leckerling, P.C. 84 Pine Street, Burlington, VT 05402-0728 Phone: (802) 864-5756 Facsimile (802) 864-3629 www.lisman.com Carl H. Lisman a graduate of Harvard Law School, devotes approximately half of his time to litigation and dispute resolution, with an emphasis on business and real estate matters, and the remainder of his time in business transactions and finance, and has been continuously listed in the Best Lawyers in America for more than 15 years. His clients include business purchasers, sellers, managers and operators as well as local, regional, national and international lenders; real estate developers, construction contractors, community associations, construction and permanent lenders, mortgage brokers; and property managers. His practice encompasses the entirety of the State, and he is a frequent consultant to lawyers and serves as an expert witness. Mr. Lisman served as an Adjunct Professor at Vermont Law School for 16 years, teaching third -year students. He has lectured extensively on commercial law and the Uniform Commercial Code, corporate governance issues, resort and real estate issues, common interest ownership (including condominium) law and other topics. He is planning chair for the ALI-ABA Consortium on Continuing Legal Education and a member of the faculty on Drafting Documents for Condominiums, Planned Communities and New Urbanism Projects, and a member of the faculty of the Resort Real Estate Program. Mr. Lisman has been a Commissioner on Uniform State Laws since 1976 and is the chair of the Vermont delegation. He has served as Treasurer and a member of the Scope and Program Committee of the National Conference of Commissioners on Uniform State Laws. As a Uniform Law Commissioner, he has been a member of a number of Committees responsible for the drafting of Uniform Laws on many topics, including the Uniform Condominium Act, the Uniform Planned Community Act, the Model Real Estate Cooperative Act, the Uniform Common Interest Ownership Act, the Revised Anatomical Gift Act, and the Securities Act. He is currently chairing the Committee to revise the Uniform Common Interest Ownership Act, and was the chair of the Committees for the Uniform Nonjudicial Foreclosure Act and the Uniform Unincorporated Nonprofit Associations Act. Mr. Lisman was selected for membership in the American College of Real Estate Lawyers in 1983. He was elected to a three-year term on the College's Board of Governors in 1993. He is a former chair of the College Committee on Common Interest Ownership. In addition, Mr. Lisman is co-chair of the Joint Editorial Board for Real Property Acts, sponsored by the National Conference of Commissioners on Uniform State Laws, the American Bar Association Real Property Sections and American College of Real Estate Lawyers. Mr. Lisman is serving his second term as Chair of the Board of Trustees at the University of Vermont_ Following graduation from law school, Mr. Lisman was clerk for Honorable Sterry R. Waterman, United States Circuit Judge for the Second Circuit. He then was an associate with a major Wall Street firm before returning to Vermont. He has been an active member of the Vermont Bar Association, serving as a member of its Board of Managers. May 22, 2008 Dorene Quesnel 911 Dorset Street #32 South Burlington, VT 05403 Re: Minutes — Goldberg Dear Ms. Quesnel For your records, enclosed is a copy of the approved May 6, 2008 Development Review Board meeting minutes. If you have any questions, feel free to contact me. Sincerely, Betsy a�%nough Brown Planning & Zoning Assistant Encl. 575 DO?'- g itO's: Intl #ilurt�'sp,icn, 1.1T' D5402 key 902 fxx I;il1,IS,46 4,�01 ww . -. b u r, 1, uz m DEVELOPMENT REVIEW BOARo 6 MAY 2008 Mr. Plumeau rejoined the Board. Appeal #AO-08-04 of Kathleen Kelleher, Doreen Quesnel & Melinda Tate appealing the decision of the Administrative Officer to issue Zoning Permit #ZP-08-69 to Indian Creek Condominium Association, 911 Dorset Street #35: Mr. Lebrun, representing Ms. Kelleher, said that only a landowner has the right to file a land use application. Indian Creek says it is the landowner of the piece of property in question, and the appellants say that is not true. In a condominium, the owner owns the unit. Common land is owned by all the tenants in common. The Indian Creek Association owns no interest in the real property whatsoever. The common areas are owned by the 59 tenants in common, and they have not agreed to develop the property in question. In addition, if there is a request made of the tenants in common for a development proposal, all 59 must agree to it. Mr. Lebrun said a Development Review Board does not have the right to review an application by anyone other than a landowner. In this instance, the Indian Creek Association said it had the right to submit a development application, which the appellants contend it did not. Mr. Dinklage noted that Mr. Goldberg, the applicant and owner of the unit, is just enclosing a deck. Mr. Lebrun said the deck is common property and is not owned by Mr. Goldberg. Mr. Belair noted that on the application, the Condo Association was listed as the "owner of the property," and it was staff s expectation that people put what is true on an application. Mr. Dinklage asked if the deck is part of the footprint lot. Mr. Belair said there are not footprint lots in Indian Creek. Mr. Dinklage asked if it is understood by the Association that all decks are common land. He asked if one resident could hold a party on another resident's deck. Mr. Lebrun said there is a difference between "ownership" and "use." Mr. Dinklage asked what the problem is with enclosing a deck. Mr. Lebrun said you can't have a condo owner expanding his property by enclosing the deck. Mr. Goldberg, owner of the property in question, read a statement by Mr. Masterson, President of the Homeowner's Association, who said the design for the deck was submitted to the Design Review Committee of Indian Creek and was reviewed by the Indian Creek Board of Directors. They recommended approval of the design. Mr. Goldberg said lots of people build on other people's property without transferring the property. Mr. Masterson claims that he has the ability to sign for all the owners and has the right to act for them. Mr. Goldberg said it would be absurd to ask every owner to sign the application. Mr. Thornton, a Member of the Indian Creek Association and a Member of their Board, said the critical issue is that the declarations define "repairs" and "modifications" to a deck. The concept of an addition to a deck is not in the declaration. He added that the declarations have not been amended to allow for "additions." `DEVELOPMENT REVIEW BOAR, 6 MAY 2008 Another Indian Creek resident noted that enclosing the deck changes the percentage of ownership of one unit. Mr. Connolly said an addition to a living unit is an "encroachment." Mr. Lebrun said that the Vermont Statute of Frauds requires any authority to transfer authority regarding ownership in writing. That was not done in this case. He said you can't transfer property just by voting on it. Ms. Tate noted that the members voted to have the owners "maintain" the decks, even though they are common property. Members felt they wanted to consult with the City Attorney and agreed to close the hearing. Ms. Quimby moved to close the hearing. Mr. Birmingham seconded. Motion passed unanimously. 7. Site Plan Application #SP-08-25 of Gardner & Sons Development Corp. to construct a three -unit multi -family dwelling, 18 Southview Drive: Mr. Courcelle said they have spoken with the Arborist and will work with him on the hedge. They will also add snow storage areas on each side of the driveway. Bicycle storage will be wall -mounted in the garages. They will submit cut sheets for lighting. Mr. Dinklage said the essential thing the Board has to consider are encroachments into the wetland buffer. The State has said there is no harm to the function of the wetland. However, the waiver allows for denser development than otherwise possible. Mr. Dinklage said he felt the massing of the building is out of context with the neighborhood and he would like to see it reduced. Mr. Belair noted receipt of a letter from Douglas Marek, a neighbor, who expressed his intent to appeal any approval of the project. Ms. Ambusk asked whether people would be allowed to walk in the wetland buffer area. Mr. Dinklage said they can walk there but not "disturb" the area. He stressed that it is not a "backyard." Mr. Belair added that it can't be mowed and can be brushogged only 3 times a year. It also can't be used recreationally. There will be a stipulation added to that effect. Ms. Quimby moved to approve Site Plan Application #SP-08-25 of Gardner & Sons Development Corp. subject to the stipulations in the draft motion as noted above. Mr. Farley seconded. Motion passed unanimously. -5- E LISMAN, WEBSTER &LECKERLING, P.C. Attorneys at Law Post -it® Fax Note 767, Date aoe pgs To �) V From Co./Dept. Co. Phone # Phone # Fax # Fax # March 18, 2008 Mr. Howard Goldberg 911 Dorset Street -Unit 35 South Burlington, VT 05403 Indian Creek Dear Howard: Carl H.Lisman Direct dial: 802 865-2500 ext. 225 E-mail: clismanfi!lisman.com I am writing in response to your letter, dated February 22, 2008, inquiring whether the approval given to you to enclose the deck at the rear of your townhouse was within the authority of the Board to give. In analyzing this question, I have reviewed the following documents: (a) the Declaration of Condominium, dated July 14, 1982, as amended by amendments dated April 11, 1988, January 16, 1997, April 22, 1997 and May 15, 2001 (together, as amended, the "Declaration");' (b) the Bylaws of the Indian Creek Condominiums Association, Inc., as amended by amendments dated April 15, 1996, January 16, 1997, May 15, 2001 and January 25, 2007 (together, as amended, the "Bylaws"); (c) various policies adopted by the Board of Directors relating to exterior modficiation of units entitled "Natural Gas Installation Policy," "Additional Window Installation Policy," "Split Vent Air Conditioning Installation Policy," "Through -Wall Air Conditioning Installation Policy," "Satellite Dish Installation Policy," " Retractable Deck Awning Installation. ' I have assumed that there have been other amendments to the declaration and bylaws not relevant to the subject of this letter. Lisman, Webster, & Leckerling, P.C. 84 Pine Street. Burlington, VT 05402-0728 Phone: (802) 864-5756 Facsimile (802) 864-3629 www.lisTmn.com Mr. Howard Goldberg March 18, 2008 Page 2 Policy," Exterior Door Installation Policy," "Rear Deck Modification and Installation Policy" and "Addition[s] at Rear of Unit Policy," dated various dates; (d) minutes of the September, October and December 2007 meetings of the Board of Directors. In addition, we have reviewed the Vermont Condominium Ownership Act (the "Act") and made further investigation of law as we have deemed appropriate. Background As is common with early condominium properties in Vermont, the original declaration defined the townhouses as being bounded by the upper surface of the unfinished subfloor (probably concrete), the lower surface of the drywall ceiling above the second floor, and the unfinished surface of the interior drywall of the exterior walls. It also designated terraces and patio spaces as limited common elements appurtenant to the townhouses to which they were attached. The original declaration was amended in 1997, in part, as follows: "An owner shall own and maintain the rear deck of the townhouse." That amendment also redefined townhouse boundaries. Though not as artful as it might have been, the 1997 amendment clearly transferred the ownership of the townhouse decks from all of the owners (as tenants in common) to each owner for the deck appurtenant to his or her townhouse. The Declaration requires approval of the Board of Directors for structural alterations to "within or affecting" a townhouse. The Rear Deck Modification and Installation Policy, revised in December 2006 (the "Modification Policy"), and the Addition[s] at Rear Policy, dated October 2007 (the "Additions Polic ') set forth guidelines adopted by the Board of Directors for modification or additions to the area of the deck. Consistent with the Additions Policy, you sought permission in December 2007 to enclose "the footprint of [the] current deck with one floor living space to the east and screened porch to the north." Applicable Law Most courts have concluded that the Act is essentially an enabling law, designed to allow Lisman. Webster, & Leckerling, P.C. S4 Pine Street, Burlington, VT 05402-0728 ?hone: (802) 864-5756 Facsimile (802) 864-3629 wwwJisman.corr, Mr. Howard Goldberg March 18, 2008 Page 3 banks and other regulated lenders to make first mortgage loans and to permit the tying of unit and common element ownership. As a consequence, courts have upheld documentation that deviates from the Act so long as the deviation is not inconsistent with the Act. See e.g., Tosney v.Chelmsford Village Condominium Association, 397 Mass. 683 (1986); American Savings v. Kosaka, 718 P.2d 1001 (Ariz. App. 1985). Courts have also — quite consistently — upheld amendments to condominium declarations so long as the amendment process has been followed and the process does not violate the statutory requirements. Here, it appears that the authorization given by the Board to your modification is consistent with the Act, the Declaration and the Additions Policy: 1. The Act clearly contemplates that boundaries between townhouses and common elements (including limited common elements) can be altered. That was done at Indian Creek by amendment to the declaration. 2. The Declaration now provides that owners own their townhouses and their decks. The amendment is unambiguous. 3. The Additions Policy was duly adopted by the Board of Directors and is within the Board's authority to manage the condominium for the benefit of the townhouses and the owners, including the authority to grant easements in the condominium. The enclosure of the decks — now owned by the townhouse owners — can be interpreted either as within the common law rights of property owners to make improvements to their properties or as, in essence, an easement to develop the airspace above the decks. It appears that you have complied with the Additions Policy, which is really a rule, in your application, and it appears that the Board applied the Policy as it was intended. Conclusion Board members have fiduciary duties. Among those duties is to act within the bounds of the governing documents. The membership voted to amend the original declaration to vest ownership of decks in the individual owners. The Board enacted rules dealing with modification. and additions to decks. You applied to improve the deck area and the Board, consistent with the Lisman, Webster, & Leckerling, P.C. 84 Pine Street, Burlington, VT 05402-0728 Phone: (802) 864-5756 Facsimile (802) 864-3629 www.lisman.com f Mr. Howard Goldberg March 18, 2008 Page 4 rules, approved your application. I believe that the Board acted within its authority. 25120\001 S Carl H. Lisman Lisman, Webster, & Leckerling, P.C. 84 Pine Street, Burlington, VT 05402-0728 Phone: (802) 864-5756 Facsimile (802) 864-3629 www.lisman.com SHLANSKY & CO., LLP A T T O R N E Y S A 7 L A W 360 MAIN STREET VERGENNES, VERMONT 05491 WRITER'S EMAIL: ddl@shlanskylaw.com May 5, 2008 " , Via Hand Delivery City of South Burlington Development Review Board 575 Dorset Street South Burlington, Vermont 05403 TEL: (802) 877-7001 FAX: (866) 257-9530 www.shlanskylaw.com Re: Appeal of Administrative Officer's grant of Zoning Permit #ZP-08-069, application for which was submitted by "property owner" Indian Creek Condominium Association Dear Development Review Board: I am writing on behalf of Kathleen Kelleher, an apartment owner at the Indian Creek Condominiums, to set forth the bases of her appeal of the Administrative Officer's grant of Zoning Permit #ZP-08-069, the Zoning Permit Application for which was submitted by supposed "property owner" Indian Creek Condominium Association ("Association"). The grant of the permit should be reversed, and the permit should be denied, because the Association is not the "property owner" of the land in question, as can be determined by simply looking at the record title to the land as it appears in your own South Burlington Land Records. The land in question is owned not by the Association, but by each of the 59 apartment owners at the Indian Creek Condominiums as tenants in common. South Burlington Land Records Volume 181, Pages 317-319; Volume 216, Pages 491-92 (attached hereto as Exhibit A). The representation of William (Bill) Masterson on the Zoning Permit Application that the Association is the "property owner" of the land in question is flatly untrue. Therefore, because the owners of the property in question did not file the Zoning Permit Application, it may not be granted. For the Development Review Board to grant the Zoning Permit Application would be to deprive the actual property owners of their property without due process of law, in violation of the U.S. Constitution and 42 U.S.C. section 1983. Overview The Zoning Permit Application seeks permission for one Howard Goldberg to make an "Addition to Unit." Zoning Permit Application p. 2. The place where the addition to Howard Goldberg's apartment unit was applied for is within a condominium development, on condominium property, on the "existing deck" outside his apartment. Zoning Permit Application p. 1. The existing deck, however, is part of the "common area" of the condominium, not part of Howard Goldberg's "unit." South Burlington Land Records Volume 181, Pages 297-300 0 City of South Burlington Development Review Board May 5, 2008 (attached hereto as Exhibit B). On that common area, Howard Goldberg wants to build his own personal 289-square-foot "living room addition" and a 280-square-foot "screened patio." Zoning Permit Application, "Proposed Floor Plan." The 59 tenants in common who actually own record title to the "existing deck" area each own approximately a 1.7% undivided interest in that real property. Exhibit A. The Association owns absolutely no interest whatsoever in that real property. The statement of William (Bill) Masterson on the Zoning Permit Application, that the Association is the "property owner," can be seen to be flatly untrue, as your own South Burlington Land Records conclusively establish. Statutory Provisions The municipal development statutes are intended to rp otect people's property rights, not to provide a vehicle to take other people's property by fiat: "In implementing any regulatory power under this chapter, municipalities shall take care to protect the constitutional rights of the people to acquire, possess and protect property." 24 V.S.A. § 4302(a). The Vermont Statute of Frauds states that both "[a] contract for the sale of lands, tenements or hereditaments, or of an interest in or concerning them," and "[a]uthorization to execute such a contract on behalf of another" are contracts that "shall be in writing," and "signed by the party to be charged therewith" (that is, the property owner who is supposedly conveying the property), or else the supposed transfer is invalid. 12 V.S.A. § 181(5). Suffice it to say that there is nothing meeting the Statute of Frauds with respect to transferring the 59 owners' tenant - in -common ownership interests in the deck outside Howard Goldberg's apartment. Condominium Ownership Condominium ownership is governed by statute, namely the "condominium ownership act." 27 V.S.A. § 1301 et seq. The condominium ownership act provides: (1) that "apartments" are "owned in fee simple absolute" by each "apartment owner"; and (2) that each "apartment owner" also owns "an undivided interest in the fee simple estate ... of the common areas and facilities." 27 V.S.A. § 1302(1) and (2). The governing statutes also make clear that the "title" dividing line between (1) each apartment, and (2) the common areas, is permanent, and may not be changed except by a deed executed by each of the 59 apartment owners: The percentage of the undivided interest of each apartment or site owner in the common areas and facilities as expressed in the declaration shall have a permanent character and shall not be altered without the consent of all of the apartment or site owners expressed in an amended declaration duly recorded. The percentage of the undivided interest in the common areas and facilities shall not be separated from the apartment or site to which it 3 City of South Burlington Development Review Board May 5, 2008 appertains and shall run with the interest conveyed or encumbered even though not expressly mentioned or described. 27 V.S.A. § 1306(b) (emphasis added). Thus, Section 1306(b) of the condominium ownership act provides that the ownership of common areas cannot be altered "without the consent of all of the apartment or site owners." Section 1308 of the condominium ownership act provides that the value of an owner's property cannot be reduced, and that an owner's hereditament rights cannot be impaired, "without the unanimous consent of all the other apartment or site owners." The Statute of Frauds further requires any transfer of an interest in real property to be embodied in a writing signed by the transferor, and authorization for another to act as someone's agent in transferring real property also to be embodied in a writing signed by the transferor. The combined effect of these statutory provisions is to indicate the falsity of the representation on the "Zoning Permit Application" that the Association is the "property owner" of the deck area behind Howard Goldberg's apartment. The Zoning Permit Application Does Not Comply with the Land Development Regulations The City of South Burlington Land Development Regulations ("LDR") are fully linked to the above law. Under the LDR, "[a]ny applicant for a zoning permit shall provide the administrative officer with any and all information the Administrative officer deems necessary to ascertain compliance with these zoning regulations." LDR art. 17.02. Here, the Zoning Permit Application itself requires that the "property owner" must "submit this application." Since under 24 V.S.A. section 4302(a) the municipal development statute is intended to rp otect property -ownership rights, not to divest them in violation of the Statute of Frauds, the requirement that the property owner submit the Zoning Permit Application is statutorily compelled. Here, the record -title owners to the area of real property in question did not submit the Zoning Permit Application. Exhibit A. Instead, the Association, which is not the owner of M property right in the deck area in question, submitted the Zoning Permit Application. The application therefore must be denied. The LDR make clear that: (1) that "Condominium is a legal form of real property ownership and not a building style"; (2) that "dwelling units are owned individually," and (3) that "common areas... are owned by all owners on a proportional, undivided basis." LDR art. 2.02 "Condominium." The Association's false statement on the Zoning Permit Application that it is the "property owner" is belied by the LDR, as well as by the South Burlington Land Records. And I repeat —to forestall the eventual filing of the stock McNeil, Leddy & Sheahan, P.C. "qualified immunity" brief on your behalf —if you take the real property at issue here away from 4 City of South Burlington Development Review Board May 5, 2008 the 59 tenants in common who own it, and attempt to afford dominion over it to Howard Goldberg and/or the Association (absent compliance with the Statute of Frauds), you will have deprived the 59 tenants in common of their property without due process of law, in violation of clearly established property law, and therefore in violation of 42 U.S.C. section 1983, and you will have created a significant liability for the City of South Burlington that is easily avoidable — all in a fashion that will then be demonstrably willful. We hope that you appreciate the seriousness of this situation, and wish to avoid unnecessary litigation in this matter. Please contact the undersigned if you should have any questions or comments. Thank you for your attention to this. Sincerely, Douglas Le Brun, Esq. Counsel for Kathleen Kelleher South Burlington DRB 05 05 08 EXV\\3 \ A c n nr�ri—o TO DECLARATION OF CONDOMINIUM INDIAN CREEK CONDOMINIUMS PERCENTAGE OF OWNERSHIP The undivided percentage interest as described hereon shall remain permanent in character, but upon the filing of any amendment to the Declaration for the purpose of annexing the land described in Exhibit A-1 to the property and subjecting it to the provisions of the Declaration and the Act, as Additional Phases, the undivided percentage interest shall become equal to a fraction, the numerator of which shall. always be the number 111" and the denominator of which shall be the total number of Indian Creek Condominium townhouses then included within the provisions of the Declaration. The maximum number of units shall not exceed fifty-nine (59) tow .nhouses. The percentage interest shall be automatically reallocated in accordance with this formula upon the filing of an amendment or amendments to the Declaration at such time as Additional Phases are made a part of Indian Creek Condominiums. The aforementioned power to expand the condominium by annexing land and premises as described on Exhibit A-1 is contained in the Declaration under Section 14. The value is based upon the approximate square foot area being of substantially similar area. PHASE I PERCENTAGE UNIT NO. VALUE INTEREST 1 $91,500.00 10.0000 2 91,500.00 9.0000 3 91,500.00 9.0000 4 91,500.00 9.0000 5 91,500.00 9.0000 6 91,500.00 9.0000 7 91,500.00 9.0000 8 91,500.00 9.0000 9 91,500.00 9.0000 10 91,500.00 9.00'00 11 91,500.00 9.0000 100.0000 L & ASSOCIATES P. O. BOX 115 TOPIGLD. VGIIMONT 00673 !01. 1°1 !7a 31^ Exhibit B - Page 2 In the event all fifty-nine (59) units are made a part of Indian Creek Condominiums, the undivided percentage interest shall appear as follows: 1 $91,500.00 1.6952 2 91,500.00 1.6949 3 91,500.00 1.6949 4 91,500.00 1.6949 5 91,500.00 1.6949 6 91,500.00 1.6949 7 91,500.00 1.6949 8 91,500.00 1.6952 9 91,500.00 1.6952 10 91,500.00 1.6949 11 91,500.00 1.6949 12 91,500.00 1.6949 13 91,500.00 1.6949 14 91,500.00 1.6949 15 91,500.00 1.6949 16 91,500.00 1.6949 17 91,500.00 1.6949 18 91,500.00 1.6949 19 91,500.00 1.6949 20 91,500.00 1.6949 21 91,500.00 1.6949 22 91,500.00 1.6949 023 91,500.00 1.6949 24 91,500.00 1.69119 25 91,500.00 1.6949 26 91,500.00 1.6949 27 91,500.00 1.6949 28 91,500.00 1.6949 29 91,500.00 1.6949 30 91,500.00 1.6949 31 91,500.00 1.6949 32 91,500.00 1.6949 33 91,500.00 1.6949 34 91,500.00 1.6949 35 91,500.00 1.6949 36 91,500.00 1.6949 37 91,500.00 1.6949 38 91,500.00 1.6949 39 91,500.00 1.6949 110 91, 500.00 1.69119 41 91,500.00 1.6949 )EL & ASSOCIATES 42 91, 500.00 1. 6949 n, o. uox 1l0 FIBLL). VLRMONT 43 91, 500.00 1.6949 00673 44 91 , 500.00 1.6949 Exhibit B - Page 3 45 91,500.00 1.6949 46 91,500.00 1.6949 47 91,500.00 1.6949 48 91,500.00 1.6949 49 91,500.00 1.6949 50 91,500.00 1.6949 51 91,500.00 1.6949 52 91,500.00 1.6949 53 91,500.00 1.691►9 54 91,500.00 1.6949 55 91,500.00 1.6949 56 91,500.00 1.6949 57 91,500.00 1.6949 58 91,500.00 1.6949 59 91,500.00 1.6949 d EL & ASSOCIATES P. 0. Box I I a TBFIELD. VERMONT 00673 100.0000 Vol. 216 Page 491 Qom'" COND30 CHL01 090886 FOURTH AMENDMENT TO DECLARATION OF CONDOMINIUM INDIAN CREEK CONDOMINIUMS PERCENTAGE OWNERSHIP _ The undivided percentage interest as described hereon shall remain permanent in character, but upon the filing of any amendment to the Declaration for the purpose of annexing the land described in Exhibit A-1 to the Property and subjecting it to the provisions of the Declaration and the Act, as additional phases, the undivided percentage interest shall become equal to a fraction, the numerator of which shall always be the number "1" and the denominator of which shall be the total number of Indian Creek Condominium Townhouses then included within the provisions of the Declaration. The maximum number of units shall not exceed 59 townhouses. The percentage interest shall be automatically reallocated in accordance with this formula upon the filing of an amendment or amendments to the Declaration at such time as . Additional Phases are made a part of Indian Creek Condominiums. The aforementioned power to expand the condominium by -annexing land and premises as described on Exhibit A-1 is contained in the Declaration under Section 14. The value is based upon the approximate square foot area being of substantially similar area. Unit No. Value Percentage Interest 1 $91,500.00 1.6952 2 91,500.00 1.6949 3 91,500.00 1.6949 4 91,500.00 1.6949 5 91,500.00 1.6949 6 91,500.00 1.6949 7 91,500.00 1.6949 8 91,500.00 1.6949 9 91,500.00 1.6949 10 91,500.00 1.6949 11 91,500.00 1.6949 12 91,500.00 1.6949 13 91,500.00 1.6949 14 91,500.00 1.6949 15 91,500.00 1.6949 16 91,500.00 1.6949 17 91,500.00 1.6949 13 91,500.00 1.6949 19 91,500.00 1.6949 LISMAN S LISMAN ATTORNEYS AT LAW V,O. Box 126 BURLINGTON. VT 05.4W COND30 CHLO1 090886 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 60 Units LISMAN & LISMAN ATTORNEYS AT LAW v.0. Box 728 BURLiNGTON. v2 0s402 91,500.00 )1,500.00 91,500.00 91,500.00 91,500.00 91,500.00 91,500.00 91,500.00 91,500.00 91,500.00 91,500.00 91,500.00 91,500.00 91,500.00 91,500.00 91,500.00 91,500.00 !11,500.00 91,500.00 !+1,500.00 91,500.00 91,500.00 91,500.00 !,1,500.00 91,500.00 !•1,500.00 91,500.00 11,500.00 91,500.00 91,500.00 91,500.00 !•1, 500.00 91,500.00 -01,500.00 91,500.00 91,500.00 91,500.00 c1,500.00 51,500.00 91,500.00 91 500.00 -`,400.00 -2- 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1:6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 1.6949 100.00000% Received for Record November 3, 1986 at 4:00 p.m. u Attest: CI CLERK C. DEL & ASSOCIATES P. 0. Box 1 1 B 1T6(1[LD. VHRMONT 06073 SECTION 3 DESCRIPTION OF INDIAN CREEK CONDOMINIUMS The structures upon the previously described land which are submitted to the Act as Phase I consists of three (3) buildings described as follows: 1. Two (2) of the buildings contain four (4) entryways, and one (1) building contains three (3) entryways. 2. All of the buildings are two (2) stories 3. There are no basements. 4. The principal materials of which these buildings are constructed are: wood frame for the structural system; concrete iL.,. a.. F h buildingFor f l l From ground level to at -the ends oL eat:ti LVL Li.rewal.i� i�vall ^yrvu��.. ev�� roof; clapboard over construction board sheathing, for the exterior; and sheetrock for the interior walls of the townhouses. 5. There is one (1) townhouse contained within each section of each of the three (3) buildings, with each section having its own entryway. 6. There are a total of eleven (11) townhouses; two buildings contain four (4) townhouses and one building contains three (3) townhouses. 7. There are five (5) accessory structures to be used as garages, the principal materials of which are: woodframe for the structural system and clapboard over construction board sheathing, for the exterior. SECTION 4 DESCRIPTION OF TOWNHOUSE 1. Each townhouse consists of the enclosed space of more than one room occupying more than one floor, each townhouse being two stories having a direct exit to a common area leading to a street. The lower boundary of any such unit is a horizontal plane (or planes), the elevation of which coincides with the elevation of the upper surface of the unfinished subfloor thereof, extended to intersect the lateral or perimetrical boundaries of any such unit. The upper boundary of any such unit is a horizontal plane (or planes), the elevation of which coincides with the elevation of the lower surface of the unfinished sheetrock ceiling of the second floor extended to intersect the lateral or perimetrical boundaries of any such unit. The lateral or perimetrical boundaries of any such unit Page 3 �e ?ng are vertical planes which coincide with the interior unfinished surfaces of the perimeter s,heetrock thereof, extended to intersect the upper and lower boundaries thereof and to intersect the other lateral and perimetrical boundaries of the unit. Mechanical equipment and appurtenances located within any unit and designed to serve only that unit, such as appliances, non -bearing partition walls, outlets, electrical receptacles and I outlets, fixtures, cabinets and the like, shall be considered a part of the unit. i 2. An owner shall not own the undecorated or unfinished surfaces of both of the perimeter walls surrounding the respective unit, the ceiling of the second floor or the subfloor; the window sashes and frames, the doors, door sashes and frames. An owner, however, shall own and maintain the glass in windows, the doors which do not open to A common -a-ca u�rL� or limited common area, the inner decorated or finished surfaces of both of the perimeter walls, floors and ceilings consisting of paint, wallpaper, carpet and other finishing materials. 3. An owner shall not be deemed to own the fireplace, the damper, the chimney, the flue, the throat or any other related equipment normally associated with the fireplace, except an owner shall own and maintain to the undecorated surface of the brick and mortar facing and the hearth of the within aforementioned boundaries of the unit, as well as to the 1 undecorated surface of the firebrick and mortar surrounding the firebox area being the back hearth and reflecting walls, to the undecorated surface of the lintel and the air space therein. 4. An owner shall not own the utilities, conduits, pipes, ducts, flues, cables, wires and wire outlets, utility lines and the like and any other elements located within or accessible only from within any particular unit which are utilized for or serve more than one unit. 5. Each unit shall be subject to an easement to the Association and an irrevocable right to enter units for repairs to the common and limited common facilities and for the unobstructed and uninterrupted use of any and all pipes, ducts, flues, conduits, cables, wires and wire outlets, utility lines and the like, and any other common elements located within or accessible only from within any particular unit, which are utilized for or serve more than one unit. 6. Further details relative to the description of the unit and the dimensions are more particularly described on the Floor Plans filed in the Land Records in the City of South Burlington at Map Book Page-,��; )'"L & ASSOCIATES ° 7. Within the building the units are the same, except as to IELO. VERMON7 layout and as- noted below: Page 4 IIDEL 8 ASSOCIATES 1j P. O. "OX Ito .ITSFIELO. VERMONT M 00813 A. There are eleven units. B. Eight units consist of a foyer, breakfast room, kitchen, living room/dining room and bathroom on the first floor; two bedrooms, two walk-in closets, laundry room area and a master bathroom on the second floor. Three units consist of the aforementioned rooms plus an additional bedroom and walk-in closet on the first floor. C. The area of the eight units with two bedrooms is approximately 1,450 square feet. The area of the three units with three bedrooms is approximately 1,670 square feet. D. The units are number 1-11; the three bedroom units are units 1, 8 and g. SECTION 5 DESCRIPTION OF COMMON AREAS 1. All areas other than those included in the boundaries of any unit as previously defined are common areas and common facilities, except those areas and facilities as.hereinafter defined and "limited" common areas and facilities. 2. Common areas and common facilities shall include, but not be limited to: A. The foundations, bearing walls, perimeter walls, main walls, footings, roofs, columns, girders, beams, supports, and parking areas not designated as limited common areas; B. Yards and storage lockers not designated as limited common areas, chimney flues and plenums; C. Compartments or installations for central. services such as: power for heat, light, gas, hot and cold water, compressors and related equipment, pumps, and the like, including, but in no way limited to, all pipes, ducts, flues, conduits, cables, wires and other utility lines; and D. All other elements of the Property rationally of common use or necessary to its existence, upkeep and safety. SECTION 6 LIMITED COMMON AREAS The limited common areas and facilities are common areas and facilities declared or designated for the use of certain owners or a certain owner to the exclusion of other owners. All areas I Page 5 r-- al 00 L1' designated as balcony, fireplaces and chimney, terraces, patio, storage, garage parking space and the like, are reserved to the; exclusive use of the owners of the townhouse or townhouses to which they are adjacent. Except as provided herein, any expense for the maintenance, repair or replacement relating to the limited common areas and facilities shall be treated as and paid for as a part of the common expenses. SECTION 7 UNDIVIDED PERCENTAGE INTERESTS 1. The value of the Property made subject to the Act hereby, and the value of each of the townhouses which is part thereto and the percentage of undivided interest in the common areas and facilities and the limited common areas and facilities appurtenant to each townhouse is set forth in the "Statement of Percentage of Ownership" attached hereto and made a part of this Declara tion as Exhibit- B- 2. The respective percentages referred to above and in Exhibit B hereto shall be of a permanent character and may not be changed without the consent of all of the owners or as otherwise provided for in this Declaration. The undivided percentage interests shall be determinative of all matters which under the Act, this Declaration, and the Bylaws are properly determinable by reference to the respective percentages, including but not limited to the weight of each owner's vote in voting on Association business and the allocation of common expenses. SECTION 8 RESTRICTIONS ON USE 1. Except for such temporary non-residential uses as may be permitted by the Board of Directors from time to time all townhouses shall be used for single family residential purposes only, and no trade or business of any kind may be carried on therein, provided, however, that rental of all or a portion of such townhouse for residential purposes shall not be a violation of this restriction. Notwithstanding the foregoing, nothing in this section, or herein elsewhere, shall be construed to prohibit the Declarant from using any one townhouse at any time for promotional or display purposes as a "Model Townhouse", a Sales Office or the like or for leasing. 2. No structural alterations within or affecting any townhouse shall be made without written consent of the Board of Directors. 3. Each owner shall be subject to and shall comply with the terms and conditions of all State and Municipal laws and regulations affecting the use of the townhouse and the common areas and facilities and the .limited common areas and facilities. 4. Until Declarant has completed and sold all of the Page 6 I SEVEN DAYS I april 16- ►►sevendaym.com [click Show and tell. �+ Open .24/7/365. -- --------- l View and post u to _��' p p � Post &.browse ads 6 photos per ad online. �" at your convenience. iS FOR PROG ROCK Need anced bass player to play iusic. Music is along the )ol, ISIS and Floyd. Gigs ast beginning this sum- : 802-395-0760, www. :om/thetowestoftides. 4TS TO ROCK!? Skilled/ ed guitarist looking to :tronic, effects/sample- ss and drum, break beat sic! Create original fta- tso cover -song friendly,! 'cians/DJ's/wild peeps nfo: 617-365-0767. ----------------------- Auditions/ ;ale Casting DRUMS 3/4-size Woods guitar, great for child/ $150. Dembek drum. Conga. $25. All in great no time to practice! 922-1589. 4AHA GUITAR, HELP!! iaha acoustic/electric odel FGX-413 SC single natural finish, hard on 3/18 around 71 N. ave. Reward!! Info: Eric, 007. DUIPMENT Taylor 450 $825. AKG C-10005 50/ea. or $275/both', 46 amp, $200. Fender eakers, $300/pr. Info: 355. ently used, great foir student, purchased at is Violin Shop. Excel- ition. $200/OBO. Info: 546. uction INSTRUCTION Berk(ee 5 years teaching expe- 'ers lessons in guitar, !ory and ear training: ized, step-by-step ap- \ll ages/styles/levels: A Guitar Studio, Rick )2-864-7195, rickbelf@ t, www.rickbetford. GET DISCOVERED TODAY!- We're looking for you. "Open Calls" every 1st and 3rd Wednesday of the month, 2:30-4:30 p.m. Could you be our next new face? Info: Fusion Management Group, Ltd., 802-865-2234, ' info@fusionmg- mtgrp.com, www.fusionmgmtgrp. com. -------,.--___--- Call to Artists CALL FOR VT AND NY ARTISTS Quebec's Largest outdoor art festival seeks VT & NY painters for juried exhibition, Labor Day weekend. Apply by May 1, 2008 at www.festivart.org Info: Eden Muir, 450-298-1212, edenmuir@ yahoo.ca, FESTIVART.ORG. CALLING ALL POTTERS Dynamite Clay Studio on Rt. 2 in Plainfield is offering Throwing and Hand - building Classes. Sign up today. Call for more info. Info: Dynamite Clay Studio, Katie Feddersen, 802-454-9947. ------------------------ For Sale ---------------- MONOTYPE PRINTS FOR SALE Local Burlington -area artist. Abstract, landscape scenery, sunsets. Waterbase prints. Ask for Brad. Info: 802-324-3113. The application and proposed permit may also be viewed on the Natural Resources Board's web site (www.nrb.state. vt.us/lup) by clicking on "Act 250 Database," selecting "Entire Database," and entering the case number above. No hearing will be held unless, on or before April 28, 2008, a party notifies the District Com- mission of an issue or issues requiring the presentation of evidence at a hearing or the commission sets the matter for hearing on its own motion. Any hearing request shall be in writ- ing to the address below, shalt state the criteria orsubcrite. ria at issue, why a hearing is required and what additional evidence will be presented at the hearing. Any hearing request by an adjoining property owner or other interested person must in- clude a petition for party status. Prior to submitting a request for a hearing, please contact the district coordinator at the telephone number listed below for more information. Prior to convening a hearing, the District Commission must determine that substantive issues requiring a hearing have been raised. Find- ings of Fact and Conclusions of Law will not be prepared unless the Commission holds a public hearing. Should a hearing be held on this project and you have a disability for which you are going to need accommodation, please notify us by April 28, 2008. Parties entitled to participate are the Municipality, the Munici- pal Planning Commission, the Regional Planning Commission, adjoining property owners, other interested persons granted party status pursuant to 10 V.S.A. § 6085(c). Non-party participants may also be allowed under 10 V.S.A. § 6085(c)(5). Dated in Essex Junction, Vermont, this 1st day of April, 2008. (1) through (472) As Written (473) On the south side of Insti- tute Road for a distance of (150] 2N feet west of North Avenue. (474) On [both sides] the north i& of Institute Road begin- ning from North Avenue and extending west to the entrance of North Beach. (475) through (503) As Written Adopted this 9th day of April 2008 by the Board of Public Works Commissioners: Attest Norman Baldwin, P.E. Assistant Director-Technicat Services Adopted 4/9/2008; Published 4/16/2008; Effective 5/7/2008 Material in (Brackets] delete. Material underlined add. NOTICE OF PUBLIC HEARING TO:AMEND THE CHARLOTTE LAND USE REGULATIONS The Charlotte Planning Commis- sionhwill hold a public hearing at the Charlotte Town Hall on Thursday, May 15, 2008 at 7:30 PM. for the purpose of receiving Public comment on an amend- ment to the Charlotte Land Use Regulations as proposed in a Petition submitted in January, 2008 in accordance with 24 V.S.A. §4441 (b). The two purposes of this amend- ment are: I. to allow retail and service businesses as permitted uses within the Village Commercial District in the portion of the West Charlotte Village located on the east side of Route 7; and 2. to reduce the minimum setback from Route 7 to 20 feet (from 100 feet). The.first proposed amendment will affect all land within the Village Commercial District on the east side of Route 7 in the West Charlotte village. The second Dr000sed amendment PUBLIC HEARING SOUTH BURLING.TON DEVELOP- MENT REVIEW BOARD The South Burlington Develop- ment Review Board will hold a public hearing at the South Burlington City Hall Conference Room, 575 Dorset Street, South Burlington, Vermont on Tuesday, May 6, 2008 at 7:30 P.M. to consider the following: 1. Preliminary plat application #SD".0.8-21 & final plat applica- tion #SD-08-22 of Verizon New England, Inc. for a planned unit development consisting of in- stalling two (2) utility cabinets on concrete pads, 75 Community Drive. 2. Appeal #AO-08-03 of Century Partners, LP appealing the deci- sion of the Administrative Officer to deny Certificate of Occupancy application #CO-08-26, 2 Market Street. 3. Conditional use application #CU-08-02 of Omnipoint Com- munications, Inc. to install: 1) three (3) panel antennas at a height of 91 feet on an existing telecommunications tower, and 2) four (4) equipment cabinets, 2026 Williston Road. 4. Appeal #AO-08-04 of Kathleen Kelleher, Dorene Quesnet & Me- linda Tate appealing the decision of the Administrative Officer to issue Zoning Permit #ZP-08-069 to Indian Creek Condominium Association, 911 Dorset Street #35. 5. Appeal #AO-08-05 of Wesco, Inc. appealing the decision of the Administrative Officer to deny a request for temporary Certificate of Occupancy #CO-08- 27, 1118 Williston Road. John Dinklage, Chairman South Burlington Development Review Board Copies of the applications are available for public inspection at the South Burlington City Halt. April 16, 2008 STATE OF VERMONT CHITTENDEN COUNTY, SS. CHITTENDEN SUPERIOR COURT DOCKET NO. S0719-07 CnC Wells Fargo Bank, N.A. as Trustee for Option One Mortgage Loan Trust 2005-3 Asset -Backed Certificates, Series 2005-3, Plaintiff V. Scott Francalangia, Option One Mortgage Corporation And Oc- cupants residing at 76-80 West Allen Street, Winooski, Vermont, Defendants NOTICE OF SALE By virtue and in execution of the Power of Sale contained in a certain mortgage given by Op- tion One Mortgage Corporation to Scott Francalangia dated May 13, 2005 and recorded in Volume 1Al P.— 71a ,.c.�,,, i — LISMAN, WEBSTER &LECKERLING, P.C. Attorneys at Law Post -it® Fax Note 7671 Date Q pagoes I• To From Co./Dept. Co. Phone # Phone # Fax # Fax # May 2, 2008 Mr. Howard Goldberg 911 Dorset Street - Unit 35 South Burlington, VT 05403 Indian Creek Dear Howard: Carl H.Lisman Direct dial: 802 865-2500 ext. 225 E-mail: clisman(alisman.com Thanks for forwarding a copy of the appeal to the South Burlington DRB as well as Doug Lebrun's letter, dated April 16, 2008. So far as I can determine, the appellants believe that no improvements can be made at Indian Creek without the consent of every owner. I believe that position is incorrect: Taken to its logical conclusion, nothing could happen at Indian Creek — or any other condominium in Vermont — without the express consent of every owner; one owner in a communal property could unilaterally prevent any improvement or alteration. Not only is there no reported court decision that reaches that conclusion, its absurdity is patent. Whether or not the amendments to the Declaration of Condominium are valid or invalid, your unit is benefitted by the deck, which is a limited common element. By law, a limited common element is a subset of the common elements — and therefore owned by all of the owners in proportion to their common element interest — but the use of a limited common element is only for the owner or owners of the unit or units to which the limited common element is appurtenant. Therefore, no other owner at Indian Creek may make any use of the deck which is appurtenant to your unit. Clearly and unambiguously, you have the exclusive use of the deck. You have been authorized by the Association to enclose it. I previously wrote you that Lisman, Webster, & Leckerling, P.C. 84 Pine Street, Burlington, VT 05402-0728 Phone: (802) 864-5756 Facsimile (802) 864-3629 www.lisman.com LAW OFFICES OF LISMAN, WEBSTER & LECKERLING, P.C. Mr. Howard Goldberg May 2, 2008 Page 2 the Board's authorization was within its authority. Nothing in Mr. Lebrun's letter alters that opinion.' SPP Carl H. Lisman 25120\001 ' Courts outside Vermont, when asked to interpret laws identical or similar to Vermont's Condominium Ownership Act, have ruled that the law is permissive and that governing documents may expand or modify the law in furtherance of the interests of the owners. Lisman, Webster, & Leckerling, P.C. 84 Pine Street, Burlington, VT 05402-0728 Phone: (802) 864-5756 Facsimile (802) 864-3629 www.lisman.com EXHIBIT C. TO DECLARATION OF CONDOMINIUM INDIAN CREEK CONDOMINIUMS BY-LAWS OF INDIAN CREEK CONDOMINIUMS ASSOCIATION, INC. ARTICLE I NAME AND LOCATION The name of this Association is as follows: INDIAN CREEK CONDOMINIUMS ASSOCIATION, INC. Its principal office is located at: Indian Creek Condominiums, 911 South Dorset, So. Burlington, Vermont 05401. ARTICLE II DEFINITIONS Unless it is plainly evident from the context that a different meaning is intended all terms used herein shall have the same meaning as they are defined in the Declaration or in Title 27, Chapter 15, Vermont Statutes Annotated, the so-called "Condominium Ownership Act." ARTICLE III MEMBERS 1. Every person, group of persons, corporation, trust or other legal entity, or any culmination thereof, which owns a townhouse within the Property shall be a member of the Association. 2. A member shall not be deemed to be in good standing nor shall he be entitled to vote in any annual meeting or special meeting if any assessments levied against the townhouse are delinquent or not current or both. 3• Except for those owners who initially purchased a townhouse from the Declarant, any person on becoming an owner of a townhouse, shall furnish to the Secretary of the Association or Board of Directors, a photocopy or certified copy of the recorded instrument vesting that person with an interest or ownership in the Property, which instrument shall remain in the files of the Association. A member shall be not deemed to be in good standing nor shall he be entitled to vote at any annual or at a special meeting of members unless this requirement, is first met. There shall also be & ASSOCIATES registered with the Secretary or the Board of Directors one mailing address to P. 0. Box Ila ITSFIEL0. VERMONT be used by the Association for the mailing of statements, notices, demands, and oee�3 all other communications, and such registered address shall be Page 1 J D. No structural alteration, construction, addition or demolition of any townhouse or the common areas shall be commenced or conducted, without the prior written approval of the Board of Directors. E. The maintenance, keeping, boarding and/or raising of animals, livestock, poultry or reptiles of any kind, regardless of number, shall be and is prohibited within any townhouse or upon the common areas, except that the keeping of small, orderly domestic pets (e.g., dogs, cats or caged birds) not to exceed one per townhouse without the approval of the Board of Directors, is permitted, subject to the regulations adopted by the Board of Directors; provided, however, that such pets are not kept or maintained for commercial purposes or for breeding and provided, further, that any such pet causing or creating a nuisance or unreasonable disturbance or noise shall be permanently removed from the Property upon ten (10) days written notice from the Board of Directors. Such pets shall not be permitted upon the common areas unless accompanied by an adult and unless carried or leashed. Any owner who keeps or maintains any pet upon any portion of the Property shall be deemed to have indemnified and agreed to hold all the owners and the Association and the Declarant free and harmless from any loss, claim or liability of any kind or character whatever arising by reason of keeping or maintaining such pet' within the Property. All pets shall be registered with the Board of Directors and shall otherwise be registered and innoculated as required by law. F. Except for such signs as may be posted by the Declarant for promotional or marketing purposes, traffic control or the like, no signs of any character shall. be erected, posted or displayed without the prior consent in writing of the Board of Directors. G. No junk vehicle or unregistered vehicle, trailer, truck, camper, camp truck, house trailer, boat or the like shall be kept upon any of the common areas, nor shall the repair or extraordinary maintenance of automobiles or other vehicles be carried out on any of the common areas. Notwithstanding the foregoing, campers, boats and unregistered vehicles may be stored in such area as is designated for that purpose by the Board of Directors. H. No outside television or radio aerial or antenna, or other aerial or antenna, for reception or transmission, shall be maintained upon any of the common areas without the prior written consent of the Board of Directors. ASSOCIATES °Ox"° LO, VERMONT I. There shall be no violation of any Administrative -73 Rules which may from time to time be adopted by the Board Page 13 1SOCIATES )X tic VERMONT ,73 managing, operating and maintaining the Property. 2. Association as Attorney -in -Fact - The Association is hereby irrevocably appointed as attorney -in -fact for all the owners, and for each of them, to manage, control and deal with the interests of such owners in the common and limited common areas of the Property. The foregoing shall be deemed to be a power of attorney coupled with an interest and the acceptance by any person or entity of any interest in any townhouse shall constitute an irrevocable appointment of the Association as attorney -in -fact as a aforesaid. 3. Management Agent - The Association may by contract in writing delegate any of its ministerial duties, powers or functions to a Management Agent. 11. Duty to Maintain - Except for maintenance requirements herein imposed upon the Association, an owner shall, at his own expense, maintain the interior of his townhouse and any and all equipment, appliances or fixtures therein situate, and its other appurtenances, in good order, condition and repair, and in a clean and sanitary condition, and shall do all redecorating, painting and the like which may at any time be necessary to maintain its good appearance. In addition to the foregoing, an owner shall, at his own expense, maintain, repair, replace any plumbing and electrical fixtures, water heaters, heating equipment, lighting fixtures, refrigerators, freezers, trash compactors, dishwashers, clothes washers, clothes dryers, disposals, ranges, range hoods, and other equipment that may be in or declared to be appurtenant to such townhouse. An owner shall also, at his own expense, keep any other limited common areas which may be appurtenant to such townhouse and reserved for his exclusive use in a clean, orderly and sanitary condition. 5. Association's Power to Grant - The Association through itE Board of Directors is authorized and empowered to grant such licenses, easements and rights -of -way, including, but not limited to, sewer lines, waterlines, electrical cables, telephone cables, gas lines, storm drains, overhead or underground conduits and other such purposes related to the provision of public or quasi -public utilities, to the Property, as may be considered appropriate by the Directors. ARTICLE XII AMFNDMFNT 1. Amendments - These By-laws may be amended by the affirmative vote of owners representing fifty-one (51,S) percent of the total votes of the Association, at any special or annual meeting of the owners duly called for such purpose, in accordance with the provisions and requirements of these By-laws. Any amendment to these By-laws shall be effective only upon the recordation of such amendments together with a certificate in writing of the President or Secretary stating Page 15 FROM THE DECLARATION: le r I :)N 1 r.le! "ire-l:cus+ r; .et'; 011 tr:e e^.cicsed ';i)vt-a of MQ're "flan xnc rr,+ltar ,r•o4u{�y r.y a1,)ec• L:,an one door, r*ch !ownhouse br.ina tw. n:-ivir:-1 et o —tv;:t r-r t to a commor• area leading to a ;r-s.ryt, The tcw,rr boundary Or 4:1f '-U h Jn:t Ll a noriwont3: ;71ar� :1r a^.==I, :nr e:cvcatiur a: w:;L_`: Co.. -,c Wes with tae r lr�v:•r-nn of tF�a upper rruttace of c.1:c- u:;far:7ahcP. c'aarioor theronf. extonred to i.nte•r.rct tt:r la.ctal or per:netr.cal :;ourd.rr ic•:s of any such unit. The ji:l:rtr Uourdary n: any Aulira a hor i rbnta l plane far c:' S 1'_.' tlrC E�.•.-Vd: L011 of-ralct. 4it" t"P of the lower stSl :31t' of tilt. Jn`.nLnh d shevtrocjc ri•ilirvj ,,f thfi second F:oc,a eac•_enotro m into:;+•Ct t ;e lateral or p-r:rc.t•tri^al :aokm.darir.-:+ r;t cny ;ueh No unit. The attral or rrc?rime-rr'Cal krc:urldaCir- -a or -.:1y auc-3: unit ar4, ver+ital p', which coi-nt.idc w:th t^^ :nt�rior un!ir.inhad uurC.:r:4"1 ol, t:1•• .r+-C.141Ct''r :n-�•etro::4t t,Lr.:'r_c f, ex+cr..,'er! to lr%tr^rt3C,ct tn•m ui'.,,-!r iYnd lowCr Itc-in :3r.es t;iez-cof ark to lr.!i?r ",^.'.:' t:t_ :^.!,91C•C Iat�tr3. 3n': 0$ 'he Median ic-a; c,rp:tl-mu.nt and rL,::1,::.c:V-r ++c•tt.r any in ,'f4rt: dr--.itj^.at! t'. -,"rve elM1,y t7::11. u:•.:.*, .1.:.-r1 .1. .1;..'.,ir'.4-r:, nur.-"caring parr P-:on w.,:`_c, o'.:t:eta , e.cc.r:;:a_ rr•i-cptacl+,,s and cat. e..ts. I xturrn. rahin,,rr arl tho 1;kc, r.hal. I.r .<:t1,:dF'"r'•A a p,.rt JL tt-u J:Sit. .An owner s`411 nct owr ''hr• -jr ur. .;r.ahed �5.:rraces of boar of the PetCi;M?tpr 4fa:::S Surround;— the "nit, the aeiliry of the r¢t.^t'•-�rvl floar do tk:c ubrloor, t: !:e window sashes and fraTP4, t1ne rl.o^Ls, door '..`*she P: onu tramr-G. An cwnezz, Iuw vJ? , sn?l] 7'wr nnt! :n irts:n In- glaa5 is w1ndvw:., thf+ doors which ev not open to a r.:amrr.n area or I rrl4.ecl COMTor. area, thr_ irr.er d?,^.::.)ft:r4 or fin+sted surfaces of t:4t.•r o` ;hv- pectrn:s: .r,3:.S. .loots and C.Ail:nq,^, Cn--n;gtrnG f Faint, x.illt gip, :, darks_"' arul other f1r.:s11inq (rater t.►: . Also see amendment # 2 that turned ownership and maintenance of a rear deck over to the owners. AM1lM ENDhlh.ti'1' to the DECLARXTIOr_A+' of ('0*40081INIUM of tire INl IAN CRE.k'.b: ASSOCIATION V1'llF:ltEAS. Aith none than ilr'a of [lie huntrowneri prect:nt at the'Novertthcr 1+K. attnnal mertinE, the luiluwink amx•ndmenly were ~steel on ruin passed. Being these ainendwerttta were nut recorded and with no nlinuttS of the 1992 arinual ettrrting 3v2ilahle, the present 8f)artl ur I)irrel+rrt hi rrveAei ,end signed tans 1 n+w1111*4 k•at . "HE BEFORE, pursuant to `relents I.A. (I1 of sad DiEvi2raltnn if t nn.l... ayinain. me Indian I, reek Ct-ndomintum hssneiarino. 6k hrrrh. rtmend m knows- DIA TAii 17 ON - SECTION- s; DVtit RIT t ION OF' TO11'NIRK51; ltrm q2 is atniendtd to read: 1,s +p"urr, sluill net or+n the undrewmk--i" an unrmishcd s.trfacc:, at tenth of the perimeter saki,. ♦ar ron—Cri j tree rrslw. tier unit. the ewaing fir rice %-vc—w (lrwr nr rha• cuhflner- tho %iieiet— aaahrs and Trance-, tier JVV7s. Jteerr +raster+. Jt0+1 francs. :1u ovrntr. huwrwe, %bull ttwn and nilnntatn the glass Ire w'iadok5, the duurs w:tich du nut qwn to a rotamon area or lime(c+! -nmtnon area. the inner dc"rated or finished 4urfaces of both ni tar prr'imr-er walks. floors turd ceiGntr eunsisling of paint, wallpaper, ca4wt and either finishing materials,,An owner tl1Wo*n and ntsietain the rrnr decw of tht townhouse. '0 CTION' 6: LIMITED iY)'► M111 a ARF AS trnendcd to read: the lirnited eea+Aawoi Ar.as and facilities are co4emun ar.:ae and facditiee dectarrd or designated for the u+r or errtain irwrrri or a tertair orrtrr t.r tlrr r0iviion of other o,+ner's. All area, drdievintrel a.s fireplace; zmd chimne%. +tnragr, getragr parksnE spare and the like, err rvIe ved to the radwo1v use eftht owners of the ter khmiev tn. !u-n'tuust3 tj -taich tt'e% art' Adtiitllt_ t'_lcefmi a9 pro:tdt:d herein. aiLN cspeusr fry ihv iniehi rnier:cr, rrpair ur replacm"t relating to the horned rommu,r are_d and farlhttes shtAll tw treated ar. and IrAid for as a part cif they nenmon P%ppnw. ar.t! .A•. ...re ,..s t,.nlow. mQ 4 �hjW) 0� Conirilo�y� �� See each Dec. amendment for the specific phase. This is the one in the first phase: "' C a ---a L r e 1. g YY ,,,s.u�iQiti'3 ra �3� f':)k r : � r fir � .?+A `'. i �re`-1f1i11lfiMlfl Ie tnree i, r. ., ,, w1+.. •t �,, !art' ..-3 is f if L`try ;i -t;!.r:1 c.,r•v:ort .creme and !":iei`..isa ;2-3, c4.??! >n arears ant r:nc:arod ar rum the. use o certain ownr•rn or a ^nits,',. ,.w,..e, t.., ;he rxcl;tN ern ! +r *: 1 t3 tt rl'• ::v-::••n. 4I1 •t-r.t S F,;t ra; par -c ng ja .a-'`. _hc '. -.e- , �r, rotor-.o4 tt r x 7'� ttm own ern o' * 'If, t OWjr,.o,,;.t- :,r t -ipi 1 M v y �4 r e --t to t- n t an nrvi4ezj ne,,.rf . ;jne Pxnenn., rrp.i- .Ir -eplaremert rvl:tt,nr to rii : ;, I k t I be trl.at., tai�.�kd oommor. nrenn itnel , n A- part p,! r,.%,, n 7el r 7t,,r value ::tr thr- rlr:;pr,ty mode mn,,jert, '.nv At hprellv �i r, f u v:x' tic a!' cac- -.- f tn z e 3 Wr, _, c"I 1 ar _ the - P*, and�-:dod 1. n r " 2 L -.4 a- tea m iannion areas ard. lacll.tLcts a ar 7.,, nnn 1. t. Pact 1-1 wn no j se is !',Pt h, "I atem-ar >r C:- :1 r r_Wrl. ol r- :l -1 rar Inem� �,o ro',:, an- a A, 1: C, 2. esre:l_-.ve :)ercenl.j;re5 r!,rrPl t- nhC%vp Sn.± in F x S he-el-i Cr ol.� pe-r-innett tharactor a-d "Y not 4 br! chnped witqQj'. i.` of ;a' I of �li � , wr-rft ��r a.9 /Lo `.,he w d -,l r...-- I r a! i on -'lift ur,4;Vleoc! e,,!* ' c,,!' it. ' matter !t -j- i n Act, t"i'm OpcLaralicn, *tri the Hy!nwn are b, ,, reforenze. t-, the rem;o-tttivo "',j" not, I mte,! to tno, wo6ipnt of e.*t,i ow-er's watt :F, husltni-%n ;,nd :.f eoirfrvr V.y 1 N LA � AL T e p!. t n 3 n e r, w e p r j t e I I., tnin c ' � r a r, te bf �.ne njndredl 'IrrIll per,-Pll' o 0 - &/D f..r te.nnica' i ar-r idne n-!i pf, ', ;r cc r, itnt ,an -, e z r, n,:", tl� 0 ampr .�me.-t ?k t zl R t K llIt n J 1, m g e F n P, i i o -r e� r C 3 C, r W . r P, c C r o i a n u r r 1 7 T t is 4- P —P c 3 r .3 i o n Act , and thF, :""j'jr !7J7 n�t te A!-C-rCjeC f I J-j' tVd C Pf J7:- J_g-�V X Pt ray th'! Del -'a -art.. Note this — for our own purposes: 3:MICN 1'j C14PLAUF ANE 70A A: r�inn owner nha.1 !lr% prDoprned by -vd :th;iL 1 campy w- �.tl te=a Qf Lr" Declaration, TyAan anj Mimi :jtraj.v. A",.q, a., 3y to a" 0; U fr a - t,) t. 1,P f,..^a: ',y 6 i r,1A It it T% an, e I :N 0 a I er nta h, :I al�' 0 fur Do j v 1 11, f ti- I ety ". 'torl ) I a V.n 'r '.Is L t ., it t. a I I , tmw I ;4WL ?%A; A*; as ip.-tim-?nti na-je liy tn- iia�i, at 1—r t,) miLi'z p.r r, , , , I -. .. 'I -4 (- :7 '. 4, ! 7 c. r m,, , % r.- v. I - e ,3. -;� s ; . f n �, He exponies of any r-aint7r.)rot, r*!jjj_r. or r-,--dermA nezesimy ty = owner's rjnzzrp: LIC2C W: tn tn' S trot 1,3r by! :us , .1.1ni n: -strat_ vr 11.;'j T7,, Z:•,- 1'. r 05L, RvKluat or vv bp L914 of C"y ""Mol 01 hiS . ". pa'tr-,:n.q , tc, t)ne not :Qverr!d by 1-t3urann- C.1rri -. t7 .,e 5�1 1 too!: AV Mal 1 nclune anv neranne in f%re ir:-Lo-nire! rite; acernoned by use, mimuse, OCCU"nry, W abanmmvrnl,� Qf n tuwntcL3e or Its )r of to,#- elommor arl !Ifn' ted ,7'-"flnol -'rear and fa(.-. :" . FLjj'.-,;r-C if .-i: kiwrer or ovior parr.,(-n .,o with ar4 i;r tro ter-nn vorLairrd il' DO-f:;Lr-jtior- or A-1-ir stret:vu Roln AM! enr:-tlP AnlsjctlafAo-. )r Owlerr ta one fn!MnA Wire, ir Wt=-�r, '-,� -Plie� Ar,,r jw•,,r 3 n ;st Y v th or p :s r,, v s hj i t) e t IhLe t,;, t Z) f. U a h 0 I!L c n ------------- - *. I I LM g r-1- ,` y -anal: ho er t i t 1 e J .o recov tr P -z-; 3 -3 )•'Q n, r ea sr.ni tille 4 '-1 J-* , ey•'.4 fza a! nay ne -Wnaed by tip ro vt 11 ' O• •3 r, t,5 7100, r L;2 0 'trait ra i r e! r w n i cn t -i- -jwn LC' .1' trC r;'Jt4" of ;)rne ;'.in twr pe"ccrt A '9.jnx L: Hr.,v York, r.;j(jred on Ist P - — I J s-1'4--rvft;-r ony 3F in wr.'-!rt tne wzpa-1 h t, a - I -.j r C- L) r t, t- - As n c , i a t n h r :1 . F D i -- e e t or 3 , tj r any owner tc; t-rft;rce nny --cvPn:tr-t., rest:rint•�,--, or othrr prov '-.i ton Jr tt,.P Act , tntS trAt i -�-n Imp ?v1 ;.wn or thr A ! -n 1 rL i 3 t r a t L v v- 1 e s . n r a r o'. n tt t,a s,,, 1n e , P n . FROM the BYLAWS: A R- :,-'L.F I MWERS r7.1 r sc n r- U U of ner f;,3 n r. a in, p.,- a 1. ic, n oust .>r L".er g V an I , cr n n y P u 1 rnt L -,r t re,,, f, c'oi r:,% .,I T r,'-1, nt-lbitr of !.�.0 4 ART:CI.i-. 6 1. W.:-lter ail t4ualifiea�iun - The =ffa?rs .s t-.F :ss,•,iat n_n mha l t::. gova-med ~' a Ownof 9.ratar5 =3 l rr in tr?von t.Lt'w =-i`"•S, 'i �(` yrp �r�R" rP fir'41 in°,,:+` uW arn, 3`ar. he OW." r.t f . 'r',)'r:ac3. Tt:- Wwd :f Di- :cto s ,Il, well i3 t*tr r !rtinr C' s ,"•�-- r:^=Fese'r by Pte-. aft the �.. •s riia3l mccti.re by n7 _7tr:' by ncel li... '..'e i..nej -t'ts :n:...I. '.irt•ct:.rs are join 14 ^sat:. , %.tt-r F. fliiiel ail-i *p. ,:t K. ":"Rnm. n,jw.7-:' n!ll :.t!Q4 f,.r' 1 .re..' . rs .shAV '' ss? gin: are m emxn" Vier wt. a. n t;f `h, Irffai-:4,f .h, �.,,.,r., ..^� Arc, 'ht'y :nry •^.o hh l�.k '1,I . r e - by !IwFh.•:s'• rr-1.iW• E. tt., ':C: tit it[? �.5., i"_ I-;1 rc.rr �,y �!tn .;4rarS rh.:-4, r. v el s^..,-- _.__:I_cl, !,it _e .. .taa trr, the f'r-l�uu,.-,t� i:vLI�CJ (I A To pruvidF Cor 't.ht- care, Jplcpen nrd htlrvei11inre of Au� t'ht, rorerty; /1✓Q is ¢1..�• 1 •; c.h , r•nl 1 not tJl'P :�n. r r �� -C(/rrr 1�1 +a.: •• oxlinnr.it-,tpR ., I ttaeI�-lent9r f1e '. and tr!f�-'rn 1 :ers roar iIr. :1'.�_Ir� i:.ymonrn 1!r'e f ^. MAP Lain , ci;mM replace and uppr3te the Wruperty and I� hire, denignnim rangy'./vr :!ismian toe p• -Sorre: nen-nm:i-y for t , wAmr; i� r•,-..lLa'... ,n! arrur:*2r auch rul-?.% and trn rir•7.::r1 nfreessary fur t,h,- so, o,,,:up.q r.0 anci myintel:nrce u!' :ne E. 'TC nave Vie sit.nr-r3'..y tv erter inta arret.ment.n wnereb the 's3cntat ior. ne uirrs 't,nnr+n.d., r•.emi,cr .hq"ps anal ,jl,'°tr pu nea;r_, y or tither jsn 1"".3, t.,.. : n real or Derst.n l Pruperty fir thn ?_rouse 4C ara.. ...nq t-:r. rr'e..prnY� !� r w-�-eaa wn:f nre or .re q,inern: :e t:. Iec-larn exner,-P1 ,r;:,;rred �i thieraxith, t-, l,w rrnmt,r exnorsns nF .'a•.-;-ince 3p.:r Vna Cori:,,-F-ty; t Lr, rP.9_-.,re or rr•Mr.i.^, 9'urrlt:�. r.' J^ an:4 lei" of ur :aM1". 7__y 1• 3 or amwe"Mc:r:: W;,se Aran. *:canoe:,rtnd riKMS or iinp fr. a_1 or any ^;;trt aF i':. cunmor arPan +ln fa.^._..f:.;P*. at �' P. •cp rr.,nR>•+ir +c, n.,tify a __ _p., SPoP of .try ' erm-,,.. Hrreuner.r . j under thet.mr'n.n ofhr ,'1ecjar-.':C", 'y a-. r.:;r.er who. :s 1 auh_,evt. VW:e burr.. aa,r• that tote2. ;nor ,�= ter ►.,:' ng» .tn l t; IlMase one gr fryere t.C•Wr°.n(.`"eS in rrUin W.k Kn,mir..i_YIS and ::3 lemP, RGr gH" c:r c"vr•v the q3.'.P.. I L,'�rt:=!TY ��'". *'I"F'14" "nT:Cti '.Ir �?� LS'i: �4� 3,-•,�tto _, �w• 1 '-rpa r.,�atrur. of 'rr.ccrs y, C: rcttr: hr ZSsccII n F=1' IndeTn:fy ever} orrice.r and Dire tv•. .3 p" rSt any ar!,'t all 1? pensas irr1Ld_.._-g coun3el +` Sp rc. i.•+tiinat'y r:uwrac = _^palod upon ary cifftc;!r ;r '1irer:• r)r in r'r.. ..-_t:. I w1 nn a'1 '! 4:: 1'. .. pr:-.r..P a.,-, a . w-)1.•.-ti- r ri -,y Pen! Q r a: nn zf ei^ ,. ".o1: , toar, .- , 1f''.. *r .Sr-.'+`cwr, ,5ucl': elpentia:, am it erred. 7ne .:' Mprar.lt ,-r�t.c MCI r t, lah 1 tc the own•?!-3 1'u n- r T,4ha f !°,rtorrr negligence, u: a a:_!e $xcaz' for hµir awn 1ndtwidji#1 Wtilful .,3ca.^auctr or bad SM. r.'.: P-s ": a ... ^, of s::aa, nave nc p•,^-sar.a. 11 i,.j_'�*_\ _th rosp- t. to .: ,:u .: u .. or C t l r .its -rent rndr!r t?y t.•re:I, tT va. d r"aj'h, :yn 7.1:t.r u: the kasc'...1.''G 1 .except to -.hr,s�e> off:rers ar Virmtor•:7 iwy i1ru he u:"r3 c:f C'.1-t "U es1 ani ..r,e ra_f .'1•r•':ni� "+; '.� f a. r, a+ :_.. O C.J. C :i". S'3t•. i5 `'t':tie'. Ir.. r r.• ,.. 4. .ii 0 7,.-r qr .3'"^.ut:1. of any sj:N ., Y_. w or conni.r,rnt. Any ripnt j to) inriinnit.r-at:�n rtruvldri fcr`met S"11 be in addition tc .3r1 nllt px•^Iton;. ee a!' :rry o.'i,�r r.g`+ta to e:,ch ir.y offi,,cr or :r •r'nr or t`- -6 er Mum or :}:"? :LCr .'clay he The following could be translated that Howard's could be allowed to vote on a motion related to his unit or self interest: �� r'..pre�• rf . irr r tc is tlo 7uCtraC', c:r nt )etr rn,• ,, ant1.on I.: C1 I Vii v .12C L.- R1J I_ GIf i t .a ai. reLcrs r ,;r:i.ie rr ',atwrrn .he Ainnntatio; 11`.k. a!r. :•arj}d^at_at: f_rr .,r issr;erz+igti.•n ,'i-ic:u='inr, t>}r "eeia-aak` _rl rrs :Ir 1-i :'[re t,3ra U:' U:�__... in Aresta,e SK:til k' elt,n P".,V kv. :4... vc I:I :eG1 P. h,caL; 18 5U 1" .!iI'cw mil" Or ..'.. ^ar•�..1-. C,r 3:r.^cr fir ;I:'Nrs are pr?se.r`- a'. 10t-� rreetirF, of th:P. ri,^.arr1 (if il;rart r" ,r c::y r.1er,t,;r wrS ;r )f!"oer Cr orf'^Prs nrp rr<-,5e '. -i :t•: r e :ng •li :.r.-� F.Qard C� �:rn.c•_ars or any .,ornittep tKer.,af tip, .I.YL . ::; ar M,..r v^ �t t.te8 a.ra �tiun_ ] .r a- sU^ir jllr,:ese, If t"le �,pvcif:eJ In -!: fcI)lsw`.rt, s'_1!+purattra�7s ex'st.: �. Tr:• fuc: ::! t:l^ lonrlun direct' rate cr .r.torez- i' tr,r_r !of and rcted in :rte r..tr.;.'..• ., ar,C the ocrlrH o^ fr+""ur3r9 nor zcz, approves. t::^ r*r.fract 1. tr 1r:_a3!t�: on t:J a v.3.Q SUfri-"t0r,t F", !:lit p: s:Y Yc]tn: 3 - J - 77:: vo n-.rac", ;sr igpr:3t`11` a'. L11r Am. :t ,5 ;it:.hp-i7ed, r:lt.l::€1, ap:-"1ane. C. .r:e ri!vL of Lrr- comrun di&ec.urate or :r,'nrest .. disc:33ed ...r krown tL -,*it- c•wnr_^:t, o- a rl^ iarity tnor.,Gf, —in tit$ 7!o-i.. ao:t f'r _-ans:,__. �; ,. v :4 su .._.e:. sW, "H' Purpose. r'r.!rw-M nP..,-.err•.^.h <:I 1L rC ±L. �tr5 r,,!y '�n it deft*rr.^,:rir;P, the pr ner-n of a jucrun :f ..- rnt.,,wt:,; c` .:e Loa- of r€ tars or ea pa i ,;; f .:t..:!: a ,�t . _ .. Rp.r.r,_ :os or ratifte;° any turtraut nor 'rarcac in--, MCC :nny vote tit author,.._ any c,ntrac . ar tr.ansaw-ion vs'..i' liko f--rce ane f!rr,rrt a^! it hr w,+rc rot. su-xh lre v ur nf'.''. •pi^ or _L:_.. r}"er u .Qrd:..'.` or WL-11) c, k.., .. j i. -i. ued'i 6 . 'a -. j L r"ju uomaa all .0 Aav Lro aq! APS00=1 S;M 63'4M if OJT VMAQL A, ;C &W U l d ySrr.",jM(N'i Auk! t.", is auap -in ku"Lt-. N .., ; ;. - .: ; 4 -. r :: . p i a -� r ..!: -, ;- r l a � � r � -- ! -,.. . ; -,, , . .. , - ; 0 - ; : jV ;.,"E a-41 zq D4: Jc Awu a4-& jo .1,.;e ;0 P.J7ci,: 63mr"Sl"W.- j, ;eda- 11-vwohn�A"! AQ4 4115 U511jo-VU00 "i ijqLUt-bk:.J.J �)q ol.'.i i;w '4d,-jxu 1>LL' WS7"71-A6 ivA-. Les"I 1:-1 d -';:] 8 31—A Xi rraj? rm;M17 PUB Jrl"Clt' 4441 JC V.L&WOLILM Pot Emwasu:ta; -.-;-,Edaj j,) , vr.D r--*;-.,4,,-s;, ;,Ll ..D puc j v;J a it Ir i; .4 t7 1 i r k4 I.J 7 I; n o 0 L, ri, L'? -, ;o ' 110 1 i ;� 3 Z) L 6 E J N L V c-0 J EE 3 !:Va3wa Aew wnTvnmvcj aqj pi;v 4j"j ;C, !A je ,if r-4 rit, a ., or a q -.ci w Lj;D I b;r 1-60 4-4 -44zl.%m A'.il! uw�'n -ic: :=ikt P4;Asj', VJ!: Si;XE-1 jr fit} �,rlvjv a-j. :.;-e o-. p:e.1 pu,; zliawj' uuctu 1—ugra.4u jL: dl;v A7j4ccid Jo cavuod;.. SuTjcadD !1c jr, eqi v L 41.1' -,'1 L I,*,' �-"q J 7 .1 ; 0 S ii S L;,-16 -d -. :,e.; J f! po*:L:-jjso wris ;sjj ;c,, .,C' !i AdN -'de,4uij;,,jad atJ'4 U11A 14 re. tJ ' j C I iD 1) 6 v v � q i. W4 i. E? J 6 a I q 7 -.7 u e E;,-4 Nq 17-4m 14—jm': pevvouce a;4 :-e4k; !;zt2Ljvu4) JT 1 FUt! MUM WNWAS! 7TIA 7731MV 4 - T X : r ?7 nD t i t e '7 2:ijr r I j - , - 7-iese By- :a ws ,!-p r ri , n n t e a n .4 s � b i e to al 1 kj-" the Cocla-atic, anc :o !!ii, P-ovisi*rs of :17 pter Vermont Statutes Armo,%tpd i *,4,-3'. All L)� Lle f. --n where clearly .L) the contextsnall hive thF, r.par i rp as in tne "o i -ir at on c,- t�k- z for e3i 11 -'r the pt co" i-I hwor nc-Se ky tI., Ir,4T " r. rni- pr-,v I - i onq .), t ! --4,,xt jor. cc -it r :I; !I t.,Ie evCr any bt-1—ieen 7 "ev. rali� it y :n tre ew vRwlt. .1 W w L S i L.1 ' VI-Vv i- 13 5 of er r: v a'.,... n Y o r- P'f,-r' . Wrsiv,-r ecrd;tion, abligation th-nr- lky-' aw, sra' I ne Rae —led t ) 'nave hren, ab-agat t-d ar waived Ty rPlson 3f Anz !-r f-Olt.ras t.) P.-force tne n,31p-!-. r Op L IN so th urlington PLANNING & ZONING June 19, 2008 Dorene Quesnel 911 Dorset Street #32 South Burlington, VT 05403 Re: Appeal #AO-08-04 Dear Ms. Quesnel: Enclosed, please find the Findings of Fact and Decision regarding the above referenced appeal. Should you have any questions, please contact our office. Sincerely, q'� W6� Betsy McDonough Brown Planning & Zoning Assistant Encl. cc: Kathleen Kelleher Melinda Tate CERTIFIED MAIL RETURN RECEIPT: 7008 0150 0003 6150 5713 575 Dorset Street South Bur,..;)gton, V7 05403 tel 802.846.4106 fax .1846.4101 www.sburi.com