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HomeMy WebLinkAboutAO-00-12 AO-00-13 - Supplemental - 0363 Juniper DriveCITY OF SOUTH BURLING'T ON October 30, 2001 DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 CITY CLERK'S OFFICE Received 20 IN at Reworded in Vol. •Sa_!�: on page-50r6 Of So. Burlington Land Records Attest: Donna S. Kinville, City Clerk Regarding the property located at 363 Juniper Drive, Michael Brace has corrected the violation alleged in the notice of violation dated July 19, 2000. Administrative Officer Td Post -it® Fax Note 7671 Date �� G� paogf To From Co./Dept. Co. Phone # Phone # Fax # Fax # END OF QO�UMFNT STITZEL, 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' E-MAIL(FIRM2555(aFIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL. (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE ('ALSO ADMITTED IN N.Y.) October 31, 2001 Ray Belai.r. City of South buriingzon 575 Dorset ,-street South Burlington, Vermont 05403 Re: Appeal of Brace Docket No. 30-2-01 Vtee City of South Burlington v.. Michael Brace Docket No. 60-4-01 Vte(7 Dear. Ray: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Enclosed please find the Stipulation and order, as signed by Judge Wright, in connection w:;tn the above --referenced matter. Thank you. Sincerely, Amanda S. E. Lafferty ASEL/myb Enclosure son469/.cor C VERMONT ENVIRONMENTAL COURT In Re: Appeal of Brace and South Burlington vs. Michael Brace Docket Numbers 30-2-01 & 60-4-OlVtec Dear Parties: (802)479-4486 255 North Main Street, Suite I Barre, Vermont 05641 - 4164 October 29,2001 Enclosed is a copy of the Stipulation and Order signed by Judge Merideth Wright on October 29,2001 in the above captioned cases. Sincerely, J alyn M. tevens E vironm entall Court cc: Francis Murray, Esq. Amanda Lafferty, Esq. Pv 1 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402.1507 2 9 200E STATE OF VERMONT ENVIRONMENTAL COURT V �ivlus,i EiJVIK�hIMEMiA! COURT IN RE: APPEAL OF BRACE CITY OF SOUTH BURLINGTON, Plaintiff, V. MICHAEL BRACE, Defendant. DOCKET NO. 30-2-01 VTEC DOCKET NO. 60-4-01. VTEC STIPULATION AND ORDER NOW COME Michael Brace, by and through his attorney, Francis X. Murray, and the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C., and hereby stipulate and agree as follows. As its Order on the above --referenced matters, this Court may enter the following. 1. No later than October. 31, 2001, 'C"ne itv of: So,jr:h Burlington (herei.:after the "City") shall record: in the Cite" 1-anal Records a writing stating that Michael Brace (hereinafter "Brace") has corrected the violation alleged in the notice of violation dated July 19, 2000. 2. No later than October 31, 2001, Brace shall make all necessary applications in order to obtain approval from the City for the bedroom that he has added to his condominium located at 363 Juniper Drive in the City. Brace shall pay all application fees and impact fees required at the time he submits said applications to the City. 1 3. Brace shall pay to the City the sum of Seven Hundred Fifty Dollars ($750.00) no later than May 15, 2002. Beginning on the date this Stipulation is entered as an Order of the Court, interest on the $750.00 shall accrue at a rate of one (1) percent per month until Brace makes payment in full. DATED at South Burlington, Vermont this may of October 2001. MICHAEL BRACE B y : /+�.--C -t-o rands X. Murray DATED at Burlington, Vermont this �p')'ay of October 2001. CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Its,,Attorneys Affnftda S. fit SO ORDERED: DATED at Bare, in the County of Washington, State of Vermont, this !?—q ray of October. oI ra e eri e rig��-- Son823.1it E� STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 2 BURLINGTON, VERMONT 05402-1507 �I STITZEL, 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* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y.) October 25, 2001 Carolyn Hutchinson, Clerk Vermont Environmental Court 255 North Main Street First Floor Barre, Vermont 05641 Re: Appeal of Brace Docket No. 30-2-•01 Vtec City of South Burlington v. Michael Brace Docket No. 60-4-01 Vtec Dear Ms. Hutchinson: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Enclosed for filing please find the original Stipulation and Order in connection with the above -referenced matter. If you have any questions, please feel free to contact me. Thank you. Sincerely, Amanda S. E. Lafferty ASEL/myb Enclosure cc: Raymond J. Belair Francis X. Murray, Esq. son,1689.cor STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT IN RE: APPEAL OF BRACE CITY OF SOUTH BURLINGTON, Plaintiff, V. MICHAEL BRACE, Defendant. DOCKET NO. 30-2-01 VTEC DOCKET NO. 60-4-01 VTEC STIPULATION AND ORDER NOW COME Michael Brace, by and through his attorney, Francis X. Murray, and the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C., and hereby stipulate and agree as follows. As its Order on the above --referenced matters, this Court may enter the following. 1. No later than October. 31, 2001, the City of South Burlington (hereinafter the "City") shall record in the City land Records a writing stating that Michael Brace (hereinafter "Brace") has corrected the violation alleged in the notice of violation dated July 19, 2000. 2. No later than October 31, 2001, Brace shall make all necessary applications in order to obtain approval from the City for the bedroom that he has added to his condominium located at 363 Juniper Drive in the City. Brace shall pay all application fees and impact fees required at the time he submits said applications to the City. 1 3. Brace shall pay to the City the sum of Seven Hundred Fifty Dollars ($750.00) no later than May 15, 2002. Beginning on the date this Stipulation is entered as an Order of the Court, interest on the $750.00 shall accrue at a rate of one (1) percent per month until Brace makes payment in full. 2001. DATED at South Burlington, Vermont this may of October MICHAEL BRACE B y : rands X. Murray zM DATED at Burlington, Vermont this `,"day of October 2001. CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. It ,Attorneys By: �l �.� Am a a e r y SO ORDERED: DATED at Barre, in the County of Washington, State of Vermont, this day of October. Son823.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 F[3­norabie Merideth Wright 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STEVEN F. STITZEL PATTI R. PAGE* ROBERT E.FLETCHER JOSEPH S. McLEAN TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y.) Francis X. Murray, Two Bedford Green South Burlington, (802) 660-2555 (VOICE/TDD) FAX (802) 660-2552 or 660-9119 E-MAIL(FIRM2555@FIRMSPF. COM) WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 September 25, 2001 Esq. Vermont 05403 Re: Appeal of Brace Docket No. 30--2-01 Vtec Citv of Soutr-1 tour-ingcor_ v. Brace Dock2-c No. 50... 4-01 'Vtec Dear Frank: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Enclosed please find for your review a draft Stipulation and Order in connection with the above -referenced matters. Once you have had an opportunity to review this document with your client, please call. me to discuss. Thank you. Sincerely, Amanda S. E. Lafferty ASEL/myb Enclosure cc: Raymond Belair., Administrative Officer-(w/out enclosures) Son4653.cor SEP-25-2001 TJE 11:36 AM ST?TZEL PAGE FLETCHER PC FAX NO, 8026602552 P. 02 STATE OF VERMONT ENVIRONMENTAL COURT IN REs ) APPtAL OF BRACE ) CITY OF SOUTR BURLINGTON, ) Plaintiff, ) V. ) MICHAEL BRACE, ) Defendant. ) DOCKET NO. 30-2-01 VTEC DOCKET NO. 60-4-01 VTEC 8_TIPULATION AND ORDER NOW COME Michael Brace, by and through his attorney, Francis X. Murray, and that city of South Burlington, by and th--ough its nttorneys, Stitzel, Page & Fletcher, P.C., and hereby stipulate V-qand agree as follows. � � AFT As its Order on the abovo-referencGd matters, this Court may on -ter the following. 1. No ]titer than October 31, 2001, the City of South u nurlin,ton (hereinafter the "City") shall record in the City Land Records a writing stating that Michael Brace (hereinafter_ "Brace") has corrected the violation alleged in the notice of violation dated July 19, 2000. 2. No later than October 31, 2001, brace shall make all necessary applications in order to obtain approval from the City i:or the bodroom that he has added to his condominium located at 363 �Tuniper Drive in the City. Brace shall pay all application 1 SEP-25-2001 TUE 11:36 AN STITZEL PAGE FLETCHER PC FAX NO, 8026602552 P. 03 "'Ges and impact fees required at the time he submits said applications to the City. 3. Brace shall pay to the City the ,tun of Seven Hundred Fitty Dollar's ($750.00) no later than May 15, 2002. Beginning on the- date this stipulation is entered as an order of the Court, interest oil the $750.00 shall accrue at a rate of one (1) percent per month until Brace makes payment in full. DATED at South Burlington, 'Vermont this _ day of oczober 2001. MICHAEL BRACE By: Fran isMurray ' DATED at Burlington, Vermont this day of October 2001, CITY OF' SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Its tA�""" s TX By: � ,� Amanda S. E. Lafferty SO ORDERED: DATED at Barre, in the County of Washington, State of Vermont, this day of October. Honorable Meri eth 'Wrig thth �trr,V, J .151 2 SEP-25-2001 TUE 11:35 AM STITZEL PAGE FLETCHER PC FAX NO. 8026602552 STITZI?l,, PACYE & FLETCHl R., P.C. A11ORNEYS AT LAW 171 DAT'Ir.ltYS1'RRET 1'A BOX 1507 r?'URLINGTON, vi.R oN'r 05402.1507 (802) M41.2553 (VOICFJT(jI)) C'1'i'VFN P. S'I 1 i 11.1. FAh 112) 00.24512 m MO-91 to DArn lk em;l.' L.-MAli �1.1RM1,3s(ri iRMSPF.CC�M) TtOitl':RI'1;1'1.O:ICIftit WPrTJ?lt'SEMAIL cnAri'LR7Ymi-mm.sn, ump JQSUMI SIALVAN WRI'iEWSFAX (901)660.2933 I IM0111Y M. l :11 ^(. C V Ate %r1 AD: ti t i l i 7 1 `7 '< Y j t,,ACSIMILI,'I'RANSMI^r'I'AI, SiIE;h'-I' Mac: September 25, 2001 To; R(ay Belair Fax: 846-4101 Rt;: Brace Selldt'r: Amanda Latferty Voo should roccivc 3 Pagc(s), including this cavcr sheet. If you do ---__-i10 cive all e: patres, please call (802) 660-2555. MESSAGE AMANDA £, V.1.AFITRTY kY)WAKt7 i1, ADRIAN Tra nsi-ktltled horcwith is at draft Stipulation and Order in connection with the above. rcalir.rcncccl luatttQ.r, Ancr you have had a chance to review it, plct"m call me to discuss. Thank you. 'Ihk nit wsqc i9 inlunc6l only lilt llw use of Iiic addtmeu and may, contain hlrurnwlion that is privileaud and coil fideoLlid. 1f y9a nu nDt tlic Illtcoka N16p;4:111, you 1w 110pol,y 1106111ed th d uny dismil'tn1l ion ahhi8 cOmmulli001ioll IS wictly limllibired. If you have rccciv�d ihih c6n1i1 milnxion 1rl &nr, plaq awfir'y uR inimediurcly by wivphono (02-660-2555). Thank you. STITZEL, 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* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COW JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE ('ALSO ADMITTED IN N.Y.) September 18, 2001 Honorable Merideth Wright Vermont Environmental Court 255 North Main Street, 1st Floor Barre, VT 05641 Re: Appeal of Brace Docket No. 30-2-01 Vtec City of South Burlington v. Brace Docket No. 60-4-01 Vtec Dear Judge Wright: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN I am writing to provide a status report with regard to the above -referenced matters. The parties have come to an agreement and will soon circulate a stipulation. Once the parties have agreed to its terms, Attorney Murray or I will file it with the Court. Thank you. Sincerely, Amanda S. E. Lafferty ASEL/jp cc: Raymond Belair Francis X. Murray, Esq. Son4647.cor nb02552 r, VL GAX K-P-14-2001 FRI 01�44 PM //STITZEL PAGE FLETCHER PC N0, 802 Y LAW t PAGE 01 09a1,8r2001 05:21 a 622937 F ItA.NCIS X MURRAY AlCny°r ,y rjnd l`ounselar ke Lm Two Bedford (ircgn, South-Uufiingwn, v'l' 05403 Offer: 802-86Z-3174 Fes; 8Q2-lx62-Z937 Sriatembor I�,2(wI 1'ttti!�ti�tI1'ril)Im'Ftars-rCt.ASS MAIL ANDTsLeizaxt 660-255.2 Amanda S, E. I. rffclZy', Fsc, SIa7.el, Ptrlae & Flutehtr, P.C. 171 Battery Strect PO .Box 1 S07 Borlingion. Vr 034f)2-1507 RE: City of South Burlington Y. Brace gear Alnanda: Yllnr3; you for your September 10, 2001 resporm to my client's offer to settle: the above matter. My client is cxtr•emrly disappoiratcri 01 tt your client has rMjccted his after and tailed to negotiate the terms of this sctticriycni Howct er. rmhcr than Cuithrr a+pend valuable time, energy, And resources, my client will agree to p,i), the $7iU line to I1w (' in plus the additional impact fat;. As you know From our Ociix consultations, my client does not have fends to pry the above fees to the City. In wrder to meet thr5 l inarivial obligation, he will need dear title to his Quarry fudge condominium to obtain addluollal flnanctll�g ' wr Fora, tie respectfully requests that the City draft a Stipulated Agreement for cx�'tullon by the III!), includes the following terms and conditions: M ar-,ccnerces to pay $7so to the City of South Burlington M Brace ,tiron to pay $375 Impact Foe to the City of South Burlington Pn+iimii In full for both of the above lusted financial obligations due to City out or before • City sit' South Burlington to remove Quarry fudge condominium violation from land records on or b0fore October 31, 2001 All > m irorfrmmial Court actions dismissed by mutual agtoenunt of parties i tn"St ►bc City will agrr,a to l)rc above and we can bring this matter to resolution, I look forward to receiving the Stipulated Agrccmollt Sinrcrely. Francrs �: Murray. �',, FKM r�url C hrli t34lh Hne� •:; SEEP-14-2001 FRI 01:43 PM STiTZEL PAGE FLHCHER PC FAX NO, 8028602552 P. 01 S'i ITZE.i,. PAGE, & FLETCHER, I]-.0 A I I01RNF•:YS AT 1..AW I?I HA'I 11;KY 5 FKIsFT P.O. ItUa 1507 It IM, INGMNL ,V1; It MONT 05.902.1507 (302) 661)• 1155 tvoic 1.111)0) K1t•V1:NF 8,1111FI, FAX (xtrr1660-2332or66D•9119 I'A'1'I I r2 PACT* MAI( (k111M1S1S;{(FII'tM5P1 CC1M) k0111;1i; f.1'tt•.I('ItrR Will 1'1K.1P-MAIL jALAF hid'IY(ijFLtIV1tiPF.COM) J1 SHIII!, MOXAN Will (Fit's1:AX(803)(i6U.2,i52 M401 t1Y ht t.VN i ACF t^,� I v0AWnln nl'S NY) FAC'SIMTLE TRANSMITTAL SHEET Date, September 14, 2301, rT,,O: Raymond Bolair, Administrator P-,ax : 846-4101 P.,: City at Sou -"I, 2urlington v. Brace sr; lndtzr: Amanda S. E. Lafferty, Esq_ AMANDANL IAH1NIY ('DWAR06 ADICAN You should receive ? _Page (s) , Including this "— coversheet. If you do not receive all the pages, please call. (80- ) 660-2555 MESSAGE Trnnsmittad herowith is our :letter from Francis X. Murray, Esq. in regard to the above -referenced muter. Thank yoa. This jnuti., ito is 1ulc,ndc.d only lill 111U uw Uf tllc +uldrecSCC and Wray Cnni.tin in lionnutim ilY,ll l5 privilq..Cd and cDnli(k ntiaf. 11'you xt: not old inlnll�G:d te�ijtiicnl, ytln ;uv ltcrchy Ittltili(d Ihat any ih,ticntinali(+n nPttlis r(nmm�+ticlttian is sllittly �rohibitud. p'yutt trove rt:c6wd thl, (viilnlunie:ilimi in error, plca:,n nolil'y us knmUQiutcly by Icicpbone tso)1-660-25$5), 1'liaA you. STITZEL, PAGE & F= I.ETO IER, P.C. NI TORNEYS A V LAW 171 BAITERY SIRI:I:I P.O. BOX 1 507 BURLINGTON. VERMON V 05402-1507 S I F.VFN F. STITZEL PAITIR.PAGE` RC)RF_RT E. FuruIfR IOSLPFI S McLEAN TIMOI IIY M EUSTACE i' ,1 1,0 ADNM ri7D IA N.Y I Francis X. Murray, Two Bedford Green South Burlington, (802) 660-2i55 (VOICI: I DD) FAX (802) 660-2552 or 660-01 19 E-MAIL(FIRM2555'u FIR\ISPF.C(�M ) WRITER'S E-MAIL (ALAFFLRTY a FIRMSPI: COM) WRITER'S FAX (&02) 660-255) Esq. VT 05403 September 10, 2001 Re: Appeal of Brace Docket No. 30-2-01 Vtec City of South Burlington Brace Docket No. 60-4-01 Vtec Dear Frank: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN I am writing in connection with our settlement negotiations in the above -referenced matters. It is my understanding that Mr. Brace offered to apply for and obtain the necessary approvals for the bedroom he has added to his condominium and to pay a fine totaling $500.00, from which the City will deduct all of the above -referenced applications fees. As I have stated before, the City has expended a great deal and time and money in attempting to obtain Mr. Brace's compliance with the Zoning Regulations. It is the City's position that Mr. Brace's failure to appeal the notice of violation should have made such expenditures unnecessary. Therefore, the City rejects Mr. Brace's offer and reiterates its offer that Mr. Brace pay a fine of $750.00 to the City. This fine shall be in addition to any application fees or impact fees that Mr. Brace must pay in order to obtain approval of the bedroom he has added to his condominium. I have informed the Court that we will provide an update regarding these matters no later than September 17, 2001. If I do not hear from you by noon on September 14, 2001, I will assume that Mr. Brace has rejected the City's offer and will inform the Court of the City's intention to file a motion for summary judgment. Thank you. Sincerely, Amanda S. E. Lafferty ASEL/myb cc: Raymond Belair SEP-07-2001 FRI 10:34 AN STTTZE. PAGE FLETCHER PC FAX NO, 8026602552 P. 02 S'f'ITZE' ,, PACiE & FLL, I,rc if::f:, 1'.c. All ORNEYS A 1 LA% 171 T1AT' 1I:RY%TR1`1;"1 P.O. BOX 1507 T1URLING i'0N. VERNION'I' A.102.13o7 (BO?)G6(r-^_iii (VOICE:�1'DUl B(I�Vf'ti'I,SiiI';l.I 1'A?((1+Y))16L0.), S3nYbL11A11y 1'AIT 1t, 11hrB," FiMAn.IFIRM?;SiG'uPII4A4til'I' COO O R� )W:T4'1 1'.11 1 1 ! 10 It Wltt I i.Jt'5 1'i•MfA[t. (.AI.AFFP .!t I Yle-N40I.M'I• C'thLq Jol"IxJ I S Nit( f=.A?i WRI 11JL .S VAX (401) 660 }.02 '1 IMr)'I f It' AI t ; ie I q( I- I-AlNO AI Z! it0r�r,vI September 7, 2.001 Francis X. Murrly, Fsq. 'liar? Bedford Green South F3ur.l„t.ngton, VT 05403 lzI_, : appeal of 13r ace Docket No. 30-2-01 Vtec City of South Burlington V. Brace Dol-aket No. GO-4-01. Vtec Dear Vrackz: AMANDA sx. I.:wn,N ry F:1)ti1'ARh 0. ADRIAN Iam writing in connection with our settlement negotiations in the above--reforconcod matters. It is my understanding that Mr. . Y3rar,.a offered to apply for and obtain the necessary approvals for the bodroon he 17as added to his condominium and to pay a fine totaling $500,00, from which the City will deduct all of the above -referenced applications fees. As I have stated t)aforo, the City has expended a great deal and time and money in attempting to obtain Mr. Brace's compliance with the Zoning Regulations. It Is the City's position that -Mr. Brace's failure to appeal. the notice of violation should have made such oxpcnditures unrtncr,? ,ary. Th(xco-f'oro, the city rejects Mr. Brace's offer and reiterates its offer that Mr. Brace pay a fine of $'250.00 to the City. This fine..) I hull be in addition to any application foes or impact fees that Mr. brace must pay in order to obtain approval, of, the bedroon he has added to his condominium. I have informed the C:ourl. 'thi it we will provide an update regarding these matters no ar+ter than September 17, 2001, If I do not hear frori you by optomb=:r 12, ;=I, I will. assume that Mr. 13race has rejected the City's offer and will inform the Court of the City'a intention to file a 'motion for ;:summary judgment. 'Thank you. cc:: 1. zlyn,ond Belai.r. Sinc110AFT Amanda S. E. Lafferty SE'P-07-2001 FRI 10:34 V F TZE. PAGE FLETCHER PC FAX NO, 8026602552 P, 0 PAGE' &; FUTCFIER, P.C. A E' 1't)i�mLYs ATLAW 171 BAITI:RYSTRI.-Ait r 0. rrax 1507 BURIA NO i ON, 'VCRMON(' 05.902-1507 SI1.ViiND.VIII/;�I. nil?) Gf,U= 555 (VOICVTUD) AM AM(RU2)2 520,C+�fi•91 9 1'11'1! N H.r\O! h "All fI IIIM? l�J ff't1RM51't>l'bb1) l+r)ritwrr:.Nrivii ok WWITIVSINAI AI•Arrt,ilfY(r�l'IftM51'r,claM� mirmi s. KITAN wm,rt;Irs rnx (.5n) u-2m I itrtryrs IY M 111N IAC4 (•d1.WC? rt1't�tl I Pln� L'V N i' ) I�fIC',S[MtI,E:'1'ittlNSMI"I"I'AL SHI;G'1` Date: Scptcinbcr 7, 2001 "i'o. lay 130air Fax: 846-410I I:o: Brace Sender: Amanda Lafferty WANI,A'.1. I.AFFI- 'I Y I-ttwAiocl a)MAIN You should receive M2 Page(s), including this cover sheet. 1['you do .�..�,....,�.��,���..�,�'.�:±YiY.S.,itil�IllS:.i'.1.=�;�L,p�..i� ��lll ,� - �S ,�.�._____._------•—__, MESSAGE 'I'rarisrniitcd herewith is a draft letter to Mr. Murray in connection with Oil abovc- rc+l XCUC-ed matters. 1110',IS ; ciiSCUss with C. ffifter and call me. In particular, flocs the City want to increa-w the Iinc, amount in this letter to S850 to rcimbiirse the City Cor the additional time spent can this matter since the hest offer? -Chank you. Sm146117sorro\ i7tis rieti.;.tta is intendod culy for (tic use erlhu addressk mid may uuntain inri mWOun aWt i§ privilecmd acid cunrideutial. If you am nut the lnlondud reniplent, ynu Ire ltere�y ruitifled Una any d1x!.um1nntinn ufllils ennmuuiirntion is striedy prohihhed. Iryou have r WNCd this cotluiiu iicntinn in vror, picax rio i ry ur himcdinicly by telephone (802 Gl t7-2S$a}. Thank you. FRANCIS X. MURRAY Attorney and Counselor At Law Two Bedford Green, South Burlington, VT 05403 Office: 802-862-3174 Fax: 802-862-2937 July 17, 2001 TRANSMITTED BY FIRST CLASS MAIL AND TELEFAX: 660-2552 Amanda S. E. Lafferty, Esq. Stitzel, Page & Fletcher, P.C. 171 Battery Street PO Box 1507 Burlington, VT 05402-1507 RE: City of South Burlington v. Brace Dear Amanda: Thank you for your July 11, 2001 letter regarding proposed settlement of the City of South Burlington's zoning issues with my client, Michael Brace. The proposed resolution is the compromise that Mr. Brace had been seeking from the City for more than one year, and he accepts the City's offer to cure the violation. Since my client lacked financial resources to defend the City's suit against him, he removed all appliances, cabinets, and countertops within the past few weeks. He welcomes inspection of the premises at any time and looks forward to receiving his permit and removal of the Violation. My client can not afford to reimburse the City's costs in the amount of One Thousand Two Hundred Dollars ($1,200). Over the past year, my client has incurred legal fees that exceed that amount and, in addition, suffered a great deal of emotional stress and substantial expenses to remove and dispose of the cabinets and appliances that he had installed in his Quarry Ridge condominium. I trust the City will authorize you to prepare a stipulation that contains the conditions outlined in your letter, except for the $1,200 fine, and to withdraw its Enforcement action in the Environmental Court to end this matter. Please send the proposed stipulation to me. Thank you. Sincerely, Francis X. Murray, Esq. FXM: mm c: Juli Beth Hoover AFR-23-2001 MON 03:00 PM STITZEL PgGE FLEX ER PC FAX 110. 8026602552 F. 0`l05 STITZEI,, PAGE & FLEi'CHER, P.C. ATTfORNGYS AT LAW 171 BATTERY STREET P.U. BOX 1507 BURLINGTON, VERMONT 05402.1507 (r,o.) 660.2555 (YUI(TVTDD) $11TUN STff/.t'!. R. PACits' FAX AV)) 660.2S3Z or 660-9119 PAT11 RGRERT1t I i1iTCl1llt I MA1L�FlkM1355GJF1RMSl'I ]o.5r i'I1 s, r CvrxAN WRiTER'S)i-MAIL((ALAF ]t'1'YGaFIItMS ir'"w) WRITER'S FAX (HOZ) 660•3552 't IMO THY M. V V51 AGE VAN 40 ADINUITH) IN N.Y.) FACSINTILE TRANSMITTAL, SIIEET Date: April 23, 2001 To: Ray Belair Fax: 846-41 U1 Michael B ace Scuder: Aniarida LafCeriy You should receive 5 Pagc(s), including; this corer sheet. If you do not receive till the pages. please call (802) 660-2555, MESSAGE MIA KARY0NIUI.S AMANDA S.R. LAFFLIUY Tralislnitted herewith is a draLl Complaint in the above -referenced matter. I'leasc call me to discuss, Thank you. Soal. 7.wrlar This nwol age iti intonJud only fur the uae or the Rddressoc a,id may contain infbrmaliou that is pi'ivilcatA and confidential, If you are not the iatunded rccipkut, you are herchy notified that nny dissemination of this communicatiun 13 strictly prohibited. If you have received this cvnimenicafan In error, phaISo nntify uS ImmedWely by telephone (1102-660.255S). Thank you. APR-23-2001 MON 03:01 PM ST?TZEL PAGE FLETCIER PC FAX NO, 8026602552 P. 02/05 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLING'TON, ) Plaintiff, ) DOCKET NO. V. j MICHAEL BRACE, ) Defendant. )DRAFT COM.PLAINT NOW COMES the City of South Burlington, by and through its at.torney8, Stitzel, Page & Fletcher, P.C., and for its Complaint states as follows; 1. The City of South Burlington (hereinafter the "City") is a Vermont municipality cituaced in Chittenden County. 2. At all times material to this Complaint, the City has had zoning regulations (hereinafter the "Regulations'r) in effect. 3. Michael Brace (hereinafter the "Defendant") owns and/or occupies real property located at 363 Juniper Drive in the Residential 4 District (hereinafter the "Property"). The Property is ono (1) of four (4) dwelling units in wilding #20 of the Quarry Ridge planned residential development. 4. Commencing on or before July 3.9, 2000, Defendant converted the Property from one dwelling unit to two dwelling units. 1 APR-23-2001 MON 03;01 PM STITZEL PAGE FLETCHER PC FAX NO. 8026602552 P. 03/05 5. At no time has Defendant obtained approval from the city to convert the Property in the manner described in paragraph 4, above. D S., IT 6. The conversion and/or alteration of the Property, in the manner described in paragraph 4, above, without first having obtained approval from the City, constitutes a violation of both Section 27.10 of the Regulations and 24 V.S.A. §4443(a)(1). 7. On or about Juyy 19, 2000, the City provided Defendant with a written notice of violation pertaining to the creation of an additional dwelling unit without approval of the City. A true and correct copy of said notice, marked as Exhibit A, is attached hereto. S. Defendant failed to appeal said written notice of violation to the city's Development Review Board (hereinafter the "DRB11�) within the required fifteen (15) day period and the time for taking such an appeal has now passed. 9. On or about November 9, 2000, Defendant made application to the City DRB appealing the decision of the Administrative Officer to issue the notice of violation dated July 19, 2000. In addition, Defendant mado application to the City's Administrative officer for a zoning permit for a `Finished Great Room in Lower Level." N APR-23-2001 MON 03!02 PM ST:TZEL PAGE FLETCHER PC FAX NO. 8028602552 P. 04/05 � FT 10. By decision dated December 8, 2000, the Administrative officer denied Defendant's application for a zoning permit, citing hj.s "%[1jack of authority to allow one (1) additional dwelling unit to 4 unit multi-farily dwelling." 11. By latter dated December 13, 2001, Defendant, through his attorney, Mr. Murray, made application to the DRB, appealing the decision of the Administrative Officer to deny Defendant's application for a zoning permit. 1.2. By decision dated January 16, 2001, the ORB denied Defendant's appeals of the notice of violation and the denial of the application for a zoning permit. 13. By Notice of Appeal dated February 14, 2001, Defendant appealed the decision of the DRB referenced in paragraph 12, above, to 'Environmental court, which assigned the matter docket nmmbGr 30--2-OlVtec. 14. In spite of said notice, dated July 19, 2000, Defendant has fai,lod and/or refused to comply with the requirements of the Regulations as of the date of this Complaint, WHEREFORB, the city of South Burlington requests that this Court grant it the following relief: 3 APR-23-2001 MON 03:02 PM STITZEL PAGE FLETCHER PC FAX NO, 8026602552 P, 05/05 1. Enter an Order granting the City mandatory injunctive relief requiring that Defendant remove from the Property one of the Fallowing` a. The bath facilities, including the bathtub/shower, the sink and the toilet, or; b. The kitchen facilities, including all appliances (ie, refrigerator,, dishwasher and full size cooking range), the sink and cabinets. 2. Award the City fines of One Hundred Dollars ($100.00) for each day Defendant has been in violation of the City's Zoning Regulations since July 27, 2000. 3. Award the City such other relief as the Court doems proper. DATED at Burlington, Vermont, this 24`1 day of April 2001. c1.3it CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. its Attorneys � Amanda S. E. Lafferty 4 STITZEL, 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' E-MAIL(FIRM2555�Ei,FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTYCFIRMSPF.COM) JOSEPH S McLEAN WRITERS FAX (802) 660-2552 TIMOTHY M. EUSTACE (-ALSO ADMITTED IN N Y.) May 29, 2001 Carolyn Hutchinson, Clerk Vermont Environmental Court 255 North Main Street, 1' Floor Barre, VT 05641 RE: City of South Burlington v. Michael Brace Docket No. Vtec Dear Ms. Hutchinson: MIA KARVONIDES AMANDA S.E. LAFFERTY Enclosed please find the Waiver of Service of Summons, executed on behalf of the defendant, to be filed in connection with the above -referenced matter. Thank you. Sincerely, Amanda S. E. Lafferty ASEL/bjl Enclosure cc: Raymond Belair, Administrative Officer (w/o encl.) Francis X. Murray, Esq. (w/o encl.) So ,4�.-.cor STITZEL, PAGE & FLEWFIER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/IDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y.) April 27, 2001 Francis X. Murray, Esq. Two Bedford Green South Burlington, VT 05403 RE: City of south Burlington v. Michael Brace Docket No. Dear Attorney Murray: MIA KARVONIDES AMANDA S.E. LAFFERTY Enclosed please find a copy of the Complaint and two (2) copies of the Notice of Lawsuit and Request for Waiver of Service of Summons and Waiver of Service of Summons for your signature in connection with the above -referenced matter. I also enclose a self-addressed, stamped envelope for your convenience in returning an executed copy to me. If there are any questions, please give me a call. Thank you. Sincerely, Amanda S. E. Lafferty ASEL/bj1 Enclosures cc: Raymond Belair Son4569.cor 01-6666 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) DOCKET NO. V. ) MICHAEL BRACE, ) Defendant. ) NOTICE OF LAWSUIT AND REQUEST FOR WAIVER OF SERVICE OF SUMMONS To: Francis X. Murray, Esq. on behalf of Michael Brace An action has been commenced against Michael Brace. It has been filed in the Vermont Environmental Court and has been assigned Docket No. Vtec. This is not a formal summons or notification from the court. To save the cost of serving you with a formal judicial summons and another copy of the complaint, I am requesting that you sign and return the enclosed waiver of service. That cost will be avoided if I receive a signed copy of the waiver by May 28, 2001. I enclose a stamped and addressed envelope for your use. An extra copy of the waiver is also enclosed for your records. If you comply with this request and return the signed waiver by May 28, 2001, it will be filed with the court and no summons will be served upon you. The action will then proceed as if you had been served on the date the waiver is filed, except that you will not be obligated to answer the complaint before June 26, 2001. If you do not return the signed waiver by May 28, 2001, I will have formal service made in a manner authorized by the Vermont Rules of Civil Procedure. In that connection, please read the statement concerning the duty of the parties to waive the service of summons, which is set forth on the enclosed waiver form. I affirm that this request is being sent to you on April 27, 2001. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT SOn768.11t 05402-1507 01-6666 u ; � Amanda S.E. Lafferty, E§q. Attorney for the City of South Burlington STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) V. ) MICHAEL BRACE, ) Defendant. ) DOCKET NO. WAIVER OF SERVICE OF SUMMONS TO: Amanda S.E. Lafferty, Esq. I acknowledge receipt of your request that Michael Brace waive service of a summons in the action of City of South Burlington v. Michael Brace, which is Docket No. in the Vermont Environmental Court. I have also received a copy of the Complaint in the action, two copies of this waiver form and a means by which I can sign and return this form to you without cost to me. On behalf of Michael Brace, I agree to save the cost of a service of summons and an additional copy of the complaint in this lawsuit by not requiring that Michael Brace be served with judicial process in the manner required by Rule 4 of the Vermont Rules of Civil Procedure. I will retain all defenses or objections to the lawsuit or to the jurisdiction or the venue of the court except for objections based on a defect in the summons or in the service of the summons. I understand that a judgment may be entered against Michael Brace if an answer_ or motion under rule 12 of the Vermont Rules of Civil Procedure is not served upon you by June 26, 2001. DATED this day of M STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 2001. MICHAEL BRACE Francis X. Murray DUTY TO AVOID UNNECESSARY COSTS OF SERVICE OF SUMMONS Rule 4 of the Vermont Rules of Civil Procedure requires certain parties to cooperate in saving unnecessary costs of service of the summons and complaint. If you and the plaintiff are both located in the United Sates and you do not sign and return this form waiving service as requested by the plaintiff, you will be required to bear the cost of such service unless you can show good cause for not doing so. Your belief that the complaint is unfounded or that the action has been brought in the wrong place or in a court that lacks jurisdiction of the action or your person or property is not good cause for a failure to waive service. If you do waive service, you retain all defenses and objections (except those relating to the summons or its service), and you may later object to the jurisdiction of the court or to the place where the action has been brought. If you waive service, you must, within the time specified on the waiver form, serve on the plaintiff's attorney, or on the plaintiff if he or she has no attorney, a response to the complaint, which should be an answer or motion as provided in Rule 12 of the Vermont Rules of Civil Procedure. You must also file a signed copy of the response with the court. If a response is not filed within that time, a default judgment may be entered against you. Note that by waiving service you are allowed more time to respond to the complaint than if a summons had actually been served upon you on the date that you received the request for waiver of service. Son767.1it 01-6666 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05401-1507 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERNIONT 05402 1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) DOCKET NO. V. ) MICHAEL BRACE, ) Defendant. ) COMPLAINT NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C., and for its Complaint states as follows: 1. The City of South Burlington (hereinafter the "City") is a Vermont municipality situated in Chittenden County. 2. At all times material to this Complaint, the City has had zoning regulations (hereinafter the "Regulations") in effect. 3. Michael Brace (hereinafter the "Defendant") owns and/or occupies real property located at 363 Juniper Drive in the Residential 4 District (hereinafter the "Property"). The Property is one (1) of four (4) dwelling units in Building #20 of the Quarry Ridge planned residential development. 4. Commencing on or before July 19, 2000, Defendant converted the Property from one dwelling unit to two dwelling units. 5. At no time has Defendant obtained approval from the City to convert the Property in the manner described in paragraph 4, above. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1607 6. The conversion and/or alteration of the Property, in the manner described in paragraph 4, above, without first having obtained approval from the City, constitutes a violation of both Section 27.10 of the Regulations and 24 V.S.A. §4443(a)(1). 7. On or about July 19, 2000, the City provided Defendant with a written notice of violation pertaining to the creation of an additional dwelling unit without approval of the City. A true and correct copy of said notice, marked as Exhibit A, is attached hereto. 8. Defendant failed to appeal said written notice of violation to the City's Development Review Board (hereinafter the "DRB") within the required fifteen (15) day period and the time for taking such an appeal has now passed. 9. On or about November 9, 2000, Defendant made application to the City DRB appealing the decision of the Administrative Officer to issue the notice of violation dated July 19, 2000. In addition, Defendant made application to the City's Administrative Officer for a zoning permit for a "Finished Great Room in Lower Level." 10. By decision dated December 8, 2000, the Administrative Officer denied Defendant's application for a zoning permit, citing his 11[1]ack of authority to allow one (1) additional dwelling unit to 4 unit multi -family dwelling." 11. By letter dated December 13, 2000, Defendant, through his attorney, Mr. Murray, made application to the DRB, appealing G STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 the decision of the Administrative Officer to deny Defendant's application for a zoning permit. 12. By decision dated January 16, 2001, the DRB denied Defendant's appeals of the notice of violation and the denial of the application for a zoning permit. 13. By Notice of Appeal dated February 14, 2001, Defendant appealed the decision of the DRB referenced in paragraph 12, above, to Environmental Court, which assigned the matter docket number 30-2-01Vtec. 14. In spite of said notice, dated July 19, 2000, Defendant has failed and/or refused to comply with the requirements of the Regulations as of the date of this Complaint. WHEREFORE, the City of South Burlington requests that this Court grant it the following relief: 1. Enter an Order granting the City mandatory injunctive relief requiring that Defendant remove from the Property one of the following: a. The bath facilities, including the bathtub/shower, the sink and the toilet, or; b. The kitchen facilities, including all appliances (ie, refrigerator, dishwasher and full size cooking range), the sink and cabinets. 2. Award the City fines of One Hundred Dollars ($100.00) for each day Defendant has been in violation of the City's Zoning Regulations since July 27, 2000. 3 3. Award the City such other relief as the Court deems proper. DATED at Burlington, Vermont, this 27th day of April 2001. Son763.1it 01-6666 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Its Attorneys 4 Amanda S. E. Lafferty 4 CITY OF SOUTH BURLINGTON DEPARTMuw OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 PAX (802) 846-4101 July 19, 2000 Michael Brace 363 Juniper Drive South Burlington, VT 50403 Re: Zoning Violation Dear Mr. Brace: Please be advised that based on information available to the City, you have comrr enced land development on your property at the above address without obtaining a perm t from the Gty as required by Section 27.10 of its Zoning Bylaws and 24 VSA 4443 a)(1). Specifically, you have initiated the following activities on the above -described pro I rty; Converted your dwelling unit into two (2) dwelling units resulting in five (5) dwellin units in a building approved for four (4) dwelling units without approval from the Development Review Board and a zoning permit. You have seven (7) days from the date of this letter to discontinue this violation a d take appropriate remedial action. Specifically, you must accomplish the following: Remove the illegally converted dwelling unit and return building #20 to its on finally approved. use as a four (4) unit muiti-family dwelling. If you do not accomplish the actions directed in this letter within seven (7) days of tf e date of this letter, the City may pursue this matter in court. In such court pmceedii�,- ^ City will be entitled to seek appropriate injunctive relief and fines of up to one hiindred ($100.00) dollars per day for each day your violation continues beyond the seven Q7) day period provided in this letter. EXHIBIT I A E m I Michael Brace Zoning Violation July 19; 2000 Page 2 If the violation described in this letter occurs again within twelve (12) months of the date of this letter, you will not be entitled to receive a further Notice of Violation from the City before the City pursues further enforcement proceedings. You may appeal this Notice of Violation to the Development Review Board b filing, a Y PPS p Y 9 written notice of appeal (see enclosed) and eighty five ($85) dollars within fifteen (15) da of the date of this letter with the Clerk of the Development Review B;,ard at the fnllowi address: 575 Dorset Street, South Burlington, Vermont 05403. Sincere - , Raym (1J. Belair, Administrative Officer i 1 End ca Amanda, S.E. Lafferty, City Attomey Certified letter #Z 395 693 820 STITZEL, 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' E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y) April 27, 2001 Carolyn Hutchinson, Clerk Vermont Environmental Court 255 North Main Street, 1st Floor Barre, VT 05641 RE: City of South Burlington v. Michael Brace Docket No. Dear Ms. Hutchinson: MIA KARVONIDES AMANDA S.E. LAFFERTY Enclosed for filing with the Court is the City of South Burlington's Complaint as captioned above. I also enclose a check in the amount of $150.00 representing the filing fee. Please note that I have also forwarded a Notice of Lawsuit and Request for Waiver of Service of Summons and Waiver form to Attorney Murray so that he may accept service on behalf of his client. Once those forms are returned to me executed, I will forward the same to the Court. Thank you. Sincerely, iy A Amanda S. E. Lafferty ASEL/bj1 Enclosure cc: Raymond Belair Francis X. Murray, Esq. Son4568.cor 01-6666 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) DOCKET NO. V. ) MICHAEL BRACE, ) Defendant. ) COMPLAINT NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C., and for its Complaint states as follows: 1. The City of South Burlington (hereinafter the "City") is a Vermont municipality situated in Chittenden County. 2. At all times material to this Complaint, the City has had zoning regulations (hereinafter the "Regulations") in effect. 3. Michael Brace (hereinafter the "Defendant") owns and/or occupies real property located at 363 Juniper Drive in the Residential 4 District (hereinafter the "Property"). The Property is one (1) of four (4) dwelling units in Building #20 of the Quarry Ridge planned residential development. 4. Commencing on or before July 19, 2000, Defendant converted the Property from one dwelling unit to two dwelling units. 5. At no time has Defendant obtained approval from the City to convert the Property in the manner described in paragraph 4, above. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 6. The conversion and/or alteration of the Property, in the manner described in paragraph 4, above, without first having obtained approval from the City, constitutes a violation of both Section 27.10 of the Regulations and 24 V.S.A. §4443(a)(1). 7. On or about July 19, 2000, the City provided Defendant with a written notice of violation pertaining to the creation of an additional dwelling unit without approval of the City. A true and correct copy of said notice, marked as Exhibit A, is attached hereto. 8. Defendant failed to appeal said written notice of violation to the City's Development Review Board (hereinafter the "DRB") within the required fifteen (15) day period and the time for taking such an appeal has now passed. 9. On or about November 9, 2000, Defendant made application to the City DRB appealing the decision of the Administrative Officer to issue the notice of violation dated July 19, 2000. In addition, Defendant made application to the City's Administrative Officer for a zoning permit for a "Finished Great Room in Lower Level." 10. By decision dated December 8, 2000, the Administrative Officer denied Defendant's application for a zoning permit, citing his 11[1]ack of authority to allow one (1) additional dwelling unit to 4 unit multi -family dwelling." 11. By letter dated December 13, 2000, Defendant, through his attorney, Mr. Murray, made application to the DRB, appealing 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 the decision of the Administrative Officer to deny Defendant's application for a zoning permit. 12. By decision dated January 16, 2001, the DRB denied Defendant's appeals of the notice of violation and the denial of the application for a zoning permit. 13. By Notice of Appeal dated February 14, 2001, Defendant appealed the decision of the DRB referenced in paragraph 12, above, to Environmental Court, which assigned the matter docket number 30-2-01Vtec. 14. In spite of said notice, dated July 19, 2000, Defendant has failed and/or refused to comply with the requirements of the Regulations as of the date of this Complaint. WHEREFORE, the City of South Burlington requests that this Court grant it the following relief: 1. Enter an Order granting the City mandatory injunctive relief requiring.that Defendant remove from the Property one of the following: a. The bath facilities, including the bathtub/shower, the sink and the toilet, or; b. The kitchen facilities, including all appliances (ie, refrigerator, dishwasher and full size cooking range), the sink and cabinets. 2. Award the City fines of One Hundred Dollars ($100.00) for each day Defendant has been in violation of the City's Zoning) Regulations since July 27, 2000. 3 3. Award the City such other relief as the Court deems proper. DATED at Burlington, Vermont, this 27th day of April 2001. Son763.1it 01-6666 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Its Attorneys Amanda S. E. Lafferty n v CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 PAX (802) 846-4101 July 19, 2000 Michael Brace 363 Juniper Drive South Burlington, VT 50403 Re: Zoning Violation Dear Mr. Brace: Please be advised that based on information available to the City, you have comrr enced land development on your property at the above address without obtaining a perm t from the OW as required by Section 27.10 of its Zoning Bylaws and 24 V5A 4443(a)(1). Specifically, you have initiated the following activities on the above -described pro rty: Converted your dwelling unit into two (2) dwelling units resulting in five (5) dwellin units in a building approved for four (4) dwelling units without approval from the Devet meet Review Board and a zoning permit You have seven (7) days from the date of this letter to discontinue this violation a d take appropriate remedial action. Specifically, you must accomplish the following: Remove the illegally converted dwelling unit and return building #20 to its on orally approved. use as a four (4) unit multi -family dwelling. If you do not accomplish the actions directed in this letter within seven (7) days of t�e date of this letter, the City may pursue this matter in court. In such court proceediRn_ , ^ City will be entitled to seek appropriate injunctive relief and fines of up to one h I ndred ($100.00) dollars per day for each day your violation continues beyond the seven �7) day period provided in this letter. EXHIBIT a A E m I Michael Brace Zoning Violation July 19; 2000 Page 2 If the violation described in this letter occurs again within twelve (12) months of the of this letter, you will not be entitled to receive a further Notice of Violation from the before the City pursues further enforcement proceedings. You may appeal this Notice of Violation to the Development Review Board by fil written notice of appeal (see enclosed) and eighty five ($85) dollars within fifteen (15) of the date of this letter with the Clerk of the Development Review e:;ard at the folic address: 575 Dorset Street, South Burlington, Vermont 05403. Will `_� cc:. Amanda, S.E. Lafferty, City Attorney Certified letter #Z 395 693 820 Sincere . , L Raym di. Belair, Administrative Officer a s CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 March 21, 2001 Francis X Murray, Esquire Two Bedford Green South Burlington, VT 05403 Re: Development Review Minutes of January 16, 2001 Dear Mr. Murray: Please be advised that the South Burlington Development Review Board at their meeting held on March 20, 2001 discussed your request to amend their minutes of January 16, 2001. The Board decided to let the minutes stand and not make the changes you requested. If you have any questions, please feel free to contact me. Sincerely, 46 Raymond J. Belair, Administrative Officer RJB/mcp 03/14/2001 17:26 90286229,37 MURRAY LAW OFFICE PAGE 01 F&A, cis X. MURRAY Attorney and Counselor At Law Two Bedford Green, South Burlington, VT 05403 Offiex: 802-862-3174 Fax: 802-862-2937 March 14, 2001 TRANSMITTED BV "-ELEFAX: 846-4101 Mr. Raymond Belair Administrative Officer City of South Burlington 575 Dorset Street South Burlington, %'rrrnont 05403 RE ; M1iinutrs of .Istnuary 16, 2001 Development Review Board Meeting Dear Ray Thank you for sendinu me a copy of your February 26, 2001 letter to Nfichael Brace with pages 3 - 4 5 of the .lanuary 16.. 2001 Development Review Board Minutes. My client wishes the Minutes to be aaicndL•d to include the following: 1v1r. M: Llrrati indicated that Mr. Brace contends that the lower level of his townhouse s not a dwelling unit as defined by South Burlington Zoning R.egulaitinn 2'* f 16 This regulation describes dwelling units as: i) One room or roorns connected together "_ 3 C instituting a separate, independent housekeeping establishment for owner uccuparicy or rental or lease on a weekly, monthly, or longer basis, and ► PhvNically separated from any other rooms or dwelling units which r!iav be ire the same structure. and -0 c ,,fvaining independent cooking and sleeping facilities and bath ta�ilit�u�. Mr. Murray stated that the Brace unit was not physically separated from any other rooms or dwelling units which may be in the same structure. Mr. Belair stated that it was his. position that the floor constituted the physical separation between Mr, Brace'5 t%so &1 ,ellina units, Please provide itie a � f py of the amended January 16, 2001 Minutes, Thank you, Very truly your,,, Francis X. k t,rray. FX'N torn DEVELOPMENT REVIEW BOARD 16 JANUARY 2001 Mr. Farley moved to continue the public hearing on appeal #AO-00-10 until 20 February. Ms. Quimby seconded. Motion passed unanimously. 6. Continued Public Hearing: Appeal #AO-00-12 of Michael Brace from the decision of the Administrative Officer to issue Notice of Violation #NV-00-17 dated 7/19/00 relative to property at 363 Juniper Drive; and 7. Public Hearing: Appeal #AO-00-13 of Michael Brace appealing the denial of zoning permit #ZP-00-420 by the Administrative Officer to add one dwelling unit to a four unit multi -family dwelling, 363 Juniper Drive: Mr. Murray, representing Mr. Brace, said Mr. Brace owns a 3-level town house off Patchen Rd. Mr. Murray acknowledged that Mr. Brace did not apply for a permit to finish the basement. He noted that the issue being challenged is whether the basement is separate from the rest of the house or whether it is all one unit. Mr. Murray said it is their contention that this is all one unit and meets the definition of a dwelling unit. It has only one tenant. Mr. Dinklage said that doesn't make a difference. He asked if the lower unit has an independent access to the outside. Mr. Murray said it does. Mr. Murray said all the utilities for the 3 floors are the same. Mr. Schmitt noted that separate utilities are not part of the definition for a unit. Mr. Dinklage asked if the door to the basement could be locked. Mr. Murray said it doesn't not have a lock now, but he acknowledged that it could. Mr. Murray also noted that when you go out of the basement, there is a deck, but there is no walkway around to the front entrance to the house. Mr. Dinklage said that a walkway could be put in tomorrow, and the Board would have no power to review it. Mr. Cameron said it seems to him that this meets the definition for a dwelling unit although it is not being used that way. Mr. Dinklage noted that by precedent the city has allowed "mother-in-law" apartments, but one of the stipulations for these is that the person/people occupying the units must be related. There is nothing to indicate that there are related individuals living here. Mr. Murray noted that Gerry Milot has been given permission to finish the basements in the other units. He felt that Mr. Brace should get the same consideration. Mr. Belair noted that he had been contacted by the State Fire Marshall who said this was definitely an apartment. He then sent a notice of violation. Several months later, Mr. DEVELOPMENT REVIEW BOARD 16 JANUARY 2001 Belair said he visited the apartment. He indicated it has a full kitchen (stove, refrigerator), full bathroom, sofa, etc. He then contacted the City Attorney's office, and agreed that it was a dwelling unit. Mr. Brace was living in that area at one time, and someone else was living in the rest of the house. Mr. Brace said he was living there just during the construction to be sure things were done right. Mr. Brace said he has been backed into a corner because of a divorce. Mr. Dinklage asked if another unit would be allowed if it were properly applied for. Mr. Belair said it would. Mr. Cameron asked Mr. Brace why he doesn't settle this by formally applying for an additional unit. Mr. Brace said he wasn't sure the neighbors would like that. He noted that the unit next to him has a finished basement and the owner and 4 other people live there. They have 4 separate vehicles. He asked why that is legal. Ms. Quimby asked what the other finished basements in the area are like. Mr. Belau said he has been assured that they are playroom, dens, etc, not dwelling units. Mr. Brace said the outside doors from the basement exist in all the other buildings, the stairs are in all the buildings and the doors to the basement are in all the other buildings. Mr. Dinklage explained why the rules are so stringent. He said the basement could be rented to students, and the city could wind up with 4 or 6 cars on the site. Mr. Boucher suggested the appellant come to the Board and asks to have the basement treated as a separate unit. Mr. Dinklage asked what would be required to have this not treated as a separate unit. Mr. Belair said removal of the kitchen. Mr. Murray noted that the Findings of Fact indicate that the owner delayed in responding to the notice. He said this was not true. Mr. Murray also asked whether the motion was prepared by the city's attorneys because they would challenge the right of attorneys to represent both the staff and the Board. Mr. Belair said the document was never seen by the City Attorney's office. He said he had only asked them if he could consolidate both appeals into one decision. Ms. Quimby moved that based on the Findings of Fact and Conclusions of Law, the Development Review Board deny the Appellant's request to overturn the Administrative Officer's decision of 7/19/00 that the Appellant's property is in violation of the zoning regulations and hereby denies the Appellant's request to overturn the Administrative Officer's decision of 12/8/00 to deny zoning permit V DEVELOPMENT REVIEW BOARD 16 JANUARY 2001 Belair said he visited the apartment. He indicated it has a full kitchen (stove, refrigerator), full bathroom, sofa, etc. He then contacted the City Attorney's office, and agreed that it was a dwelling unit. Mr. Brace was living in that area at one time, and someone else was living in the rest of the house. Mr. Brace said he was living there just during the construction to be sure things were done right. Mr. Brace said he has been backed into a corner because of a divorce. Mr. Dinklage asked if another unit would be allowed if it were properly applied for. Mr. Belair said it would. Mr. Cameron asked Mr. Brace why he doesn't settle this by formally applying for an additional unit. Mr. Brace said he wasn't sure the neighbors would like that. He noted that the unit next to him has a finished basement and the owner and 4 other people live there. They have 4 separate vehicles. He asked why that is legal. Ms. Quimby asked what the other finished basements in the area are like. Mr. Belair said he has been assured that they are playroom, dens, etc, not dwelling units. Mr. Brace said the outside doors from the basement exist in all the other buildings, the stairs are in all the buildings and the doors to the basement are in all the other buildings. Mr. Dinklage explained why the rules are so stringent. He said the basement could be rented to students, and the city could wind up with 4 or 6 cars on the site. Mr. Boucher suggested the appellant come to the Board and asks to have the basement treated as a separate unit. Mr. Dinklage asked what would be required to have this not treated as a separate unit. Mr. Belair said removal of the kitchen. Mr. Murray noted that the Findings of Fact indicate that the owner delayed in responding to the notice. He said this was not true. Mr. Murray also asked whether the motion was prepared by the city's attorneys because they would challenge the right of attorneys to represent both the staff and the Board. Mr. Belair said the document was never seen by the City Attorney's office. He said he had only asked them if he could consolidate both appeals into one decision. Ms. Quimby moved that based on the Findings of Fact and Conclusions of Law, the Development Review Board deny the Appellant's request to overturn the Administrative Officer's decision of 7/19/00 that the Appellant's property is in violation of the zoning regulations and hereby denies the Appellant's request to overturn the Administrative Officer's decision of 12/8/00 to deny zoning permit 4 DEVELOPMENT REVIEW BOARD 16 JANUARY 2001 application #ZP-00-420 and affirms said decisions. Mr. Boucher seconded. Motion passed unanimously. 8. Public Hearing: Final Plat application #SD-00-69 and Design Review application #DR-00-31 of Edgar Welch to amend a planned unit development consisting oh 1) a 12,900 sq. ft. retail building which includes one dwelling unit, 2) a 1,800 sq. ft. retail building, and 3) a 1,800 sq. ft. accessory building. The amendment consists of: 1) converting 2,594 sq. ft. of retail space to general office space in main building, 2) adding 599 sq. ft. of mezzanine space to main building, 3) fagade alterations to all buildings, 4) signage alterations and 5) site modifications to parking, landscaping, and lighting, 338-340 Dorset Street: Mr. Kennedy said the main concern of the Design Review Committee was the modification for offices. He noted he got a building permit for $30,000 worth of work on that end of the building. He is looking for approval for all the changes except landscaping and lighting. He also wanted to discuss the impact fee. Mr. Dinklage noted that the Design Review Committee will hear the landscaping and lighting application and then it will go to the Director of Planning & Zoning. Regarding impact fees, Mr. Kennedy said he had been told that the fee would be $15,400. based on the walk-up bank designation. Mr. Kennedy said this is a credit union, which is a closed organization with fewer than 2800 members. It is in a building, which is not very accessible. Most members use electronic transfer for deposits, etc. There is no drive -up facility ( not allowed in the district). It is actually more of an administrative arm. Mr. Dinklage asked if there would be an ATM. Ms. Caswell said not yet. She said they have 2 full-time tellers. She noted that in the entire year 2000 they waited on 18,000 members. That's less than 10 per hour. Their membership is comprised of Burlington Public Schools and 4 colleges, one of which (Trinity) will no longer exist in July. She said that if 20 people came in during an hour, it would be a lot. Members were concerned that if this tenant left, there could be a tenant with a higher trip generation. Mr. Dinklage said he would be comfortable with a compromise in the allocation to the Credit Union. Mr. Schmitt and Mr. Boucher were not inclined to compromise. Mr. Kennedy noted that only 500 sq. ft. of this building is dedicated to the same use as the Chittenden Bank across the street, and yet they are being charged on the same basis. CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 February 26, 2001 Michael Brace P.O. Box 4251 Burlington, VT 05402-4251 Re: Administrative Officer Appeals Dear Mr. Brace: Enclosed is a copy of the January 16, 2001 Development Review Board meeting minutes. If you have any questions, please give me a call. Sincerely, 17 Raymond J. Belair, Administrative Officer RJB/mcp 1 Encl cc: Francis Murray CI CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 February 27, 2001 Francis X. Murray, Esquire Two Bedford Green South Burlington, VT 05403 Re: Appeal of Brace Docket No. 30-2-01 Vtec Dear Mr. Murray: Pursuant to V.R.C.P. 76(e), as amended effective July 1, 1996, please be advised that to my knowledge there are no interested parties to the above referenced appeal. If you have any questions, please let me know. Sincerelv, Raymond J. Belair, Administrative Officer RJB/mcp cc: Vermont Environmental Court Amanda S.E. Lafferty, Esquire STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS A I LAW 171 BAT"IIL"RY STREET P.O. 13OX 1507 BURLINGTON. VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STI"TZEL FAX (802) 660-2552 or 660-9119 PAT"I'I R PAGE* F,-MAIL(FIRM2555(n FIRMSPF.COM) ROBF'RT E FLETCHER WRITER'S E-MAIL (ALAFFERTYCJFIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y.) February 23, 2001 Ray Belair, Administrative Officer City of South Burlington 575 Dorset Street South Burlington, VT 05403 Re: Appeal of Brace Docket No. 30-2-01 Vtec Dear Ray: MIA KARVONIDES AMANDA S E i.AFFERTY I have enclosed a copy of a letter from Environmental Court regarding the above -referenced appeal. Please note that in accordance with paragraph 2 of the enclosed letter, you should send notice of this appeal to all interested parties. Please call if you have any questions regarding this. Thank you. Sincerely, Amanda S. E. Lafferty ASEL/laf Enclosure Son9541.cor February 22, 2001 ---------------------------------------- Amanda Lafferty, Esq. Stitzel, Page & Fletcher PO Box 1507 Burlington VT 05402 ---------------------------------------- Appeal of: Brace FE~ Docket No. 30-2-01 Vtec Environmental Court docket number 30-2-01 Vtec has been assigned to the above - referenced zoning board/planning commission appeal. The notice of appeal was received at the Environmental Court on February 15, 2001. Please use the Environmental Court docket number when filing any documents or asking any questions concerning this case. Vermont Rules of Civil Procedure No. 74 and 76(e), as amended, set out the procedures to follow in this appeal, including the following: 1. A person filing the appeal is called an "appellant". Appellant has thirty (30) days from the date the notice of appeal was filed to file with this Court the statement of questions required by V.R.C.P. 76(e)(4)(B). This statement should be specific because it will govern the scope of the appeal. 2. V.R.C.P. 76(e), as amended effective July 1, 1996, requires the clerk of the zoning board/planning commission to provide to the appellant a list of all interested parties, with instructions to serve notice upon the interested parties that the appeal has been filed and to give them the address of the Court to allow them to participate in the case here. We request that the town/city send to the Court a copy of the list of interested parties it provided to the appellant. The appellant must send a copy of its notice to interested parties to this court. Within seven (7) days of the date of this letter, we request that the appellant also send us a list of the people who received the appellant's notice to interested parties. 3. A person with standing to oppose the appeal is called an "appellee". Appellees have twenty (20) days from the date the appellant serves them with the notice that the appeal has been filed, to file their entry of appearance (request to participate) with this Court. Failure to file an appearance within this time may result in the case proceeding to a merits hearing without them. All parties who are participating in this case are responsible for sending copies of their court filings to the other parties. The case will be ready for hearing when the time for filing the appellant's statement of questions has expired. The Court may extend that time if requested by written motion. The Clerk of the Court will contact the parties to arrange for a pre -hearing telephone conference with Judge Merideth Wright, and the case will be set for a merits hearing to be held in or near the county in which the case originated. Please note that under 24 VSA 4471 (1) these appeals are de novo, unless the municipality has adopted procedures to make them on the record. Sincerely, Joyce,;/L./Goulette, Assistant Clerk Vt. Environmental Court CC: Francis X. Murray, Attorney for Appellant, Michael Brace Amanda Lafferty, Attorney for Appellee, South Burlington, City of FAXED COPIES DO NOT MEET FILING DEADLINES. FAXED DOCUMENTS MAY BE AUTHORIZED IN EXTREME CIRCUMSTANCES. PLEASE DO NOT FAX WITHOUT AUTHORIZATION. IF YOU HAVE NOT PROVIDED THE COURT WITH A TELEPHONE NUMBER WHERE YOU CAN BE REACHED FOR THE PURPOSE OF TELEPHONE CONFERENCES, PLEASE DO SO. CITE( OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 February 16, 2001 Amanda S.E. Lafferty, Esquire Stitzel, Page & Fletcher, P.C. P.O. Box 1507 Burlington, VT 05402-1507 Re: Notice of Appeal, Michael Brace Dear Amanda: Enclosed please find the following: 1. Original Notice of AppcG, ul Michael Brace. 2. Check in the amount of $150 to the Vermont Environmental Court. Please forward the Notice of Appeal to the Court and enter an appearance on behalf of the City. Sincerely, j Raymond I Belair, Administrative Officer RJB/mcp FRANCIS X. MURRAY Attorney and Counselor At Law Two Bedford Green, South Burlington, VT 05403 Office: 802-862-3174 Fax: 802-862-2937 February 14, 2001 HAND DELIVERED Mr. John Dinklage, Clerk Development Review Board City of South Burlington 575 Dorset Street South Burlington, Vermont 05403 RE: Notice of Appeal re: Brace, 363 Juniper Drive, South Burlington Dear Clerk Dinklage: Enclosed is my client's Notice of Appeal and a $150 check for the filing fee. Thank you for your attention to this matter. Very truly yours, <; Z)(, Francis X. Murray, Esq. FXM:mm Enclosures (2) c: Environmental Court of Vermont Amanda S. E. Lafferty, Esq. FRANcis X. MURkAY Attorney and Counselor At Laws Two Bedford Green, South Burlington, VT 05403 Office. 802-862-3174 Fax: 802-862-2937 February 14, 2001 HAND DELIVERED Mr. John Dinklage, Clerk Development Review Board City of South Burlington 575 Dorset Street South Burlington, Vermont 05403 RE: Notice of Appeal re: Brace, 363 Juniper Drive, South Burlington Dear Clerk Dinklage: Enclosed is my client's Notice of Appeal and a $150 check for the filing fee. Thank you for your attention to this matter. Very truly yours, Francis X. Nlurray, Esq. FXM: mm Enclosures (2) c: Environmental Court of Vermont Amanda S. E. Lafferty, Esq. STATE OF VERMONT ENVIRONMENTAL COURT TO: Clerk of the Development Review Board or Appropriate Officer IN RE: Michael Brace AO-00-12 AO-00-13 NOTICE OF APPEAL NOW CONIES Michael Brace, by and through his attorney, Francis X. Murray, Esq., and hereby appeals the January 16, 2001 decision of the South Burlington Development Review Board upholding the Administrative Officer's decision to deny zoning permit application #ZP-00-420 and the Administrative Officer's July 19, 2000 notice of violation of zoning regulations against 363 Juniper Drive, South Burlington, Vermont. DATED at South Burlington, this l 4th day of February, 2001. LAW OFFICE OF FRANCIS X. MURRAY By: �'"'�''� • Francis X. Murray, Esq. FXM:mm c: Environmental Court of Vermont Amanda S. E. Lafferty, Esq. FRANCIS X. MURRAY EXPLANATION AMOUNT ATTORNEY & COUNSELOR AT LAW TWO BEDFORD GREEN SO. BURLINGTON, VERMONT 05403 (802)862-3174 Y 10UNT I-�,,I- 11�� {7 lb�,�Y �(P T A."J OoIloU _ DOLLARS DATE TO THE ORDER OF DESCRIPTION CHECK NUMBER 401 yrNv� �vN�, ,� ZZ0CF. r ss Drb '&k7 merchants RAHK 1)000468 7()' 1:0 L L6000 201: 11'0 3- 3 580 51118"' 58-2/116 4687 CHECK AMOUNT AUTHORIZED SIGNATURE 161 -- S1 iTZEL, PAGE & FLETCHER, P.C. ATTORNEI'S AT LAW 171 BA F FERY S1REE 1' P.O. BOX 1507 Bt RLI\GTO\. VERNIONT05402-1507 (802r660-? 5>(VOICbTDD) STEVEN F STITZEL I- AN iS0'1660-2S2 or 660-9119 PATTIR PAGE" E-MAILtFIRN1_'�4;�aFIRMSPF.C'O%I) RODERT E FLETCHER WRITERS F-MAIL (ALAFFERTY'_iFIRMSPF COM) OSEPH S McLEAN WRIT ER'S FAX (802) 660-2552 TIMOTHY M EUSTACE I' ALSO ADVII-LED 1, \ 1' February 20, 2001 Carolyn Hutchinson, Clerk Vermont Environmental Court 255 North Main Street, 1' Floor Barre, VT 05641 RE: Appeal of Brace Docket No. Dear Ms. Hutchinson: NIA KARVOAIDES AMANDA S E I-AI-I-ERTY Enclosed please find a Notice of Appeal dated February 14, 2001, along with a check in the amount of $150.00, as filed by Francis X. Murray, Esq., with the Clerk of the Development Review Board of the City of South Burlington. Enclosed for filing, please also find my Entry of Appearance in connection with the above -referenced matter on behalf of the City of South Burlington. Sincerely, Amanda S. E. Lafferty ASEL/laf Enclosure cc: Ray Belair, Administrative Officer Francis X. Murray, Esq. STATE OF VERMONT ENVIRONMENTAL COURT IN RE: APPEAL OF BRACE ) DOCKET NO. ENTRY OF APPEARANCE NOW COMES AMANDA S.E. LAFFERTY, of the firm of Stitzel, Page & Fletcher, P.C., and hereby enters her appearance in the above - referenced matter on behalf of the Cit,: of South Burlington. 2001. STITZEL. RAGE & FLETCHER, P.C. ATTORZNKYS AT I_-%W DATED at Burlington, Vermont, this 20' day of February, STITZEL, PAGE & FLETCHER, P.C. By: Amanda S.E. Lafferty TO: IN RE: STATE OF VERMONT ENVIRONMENTAL COURT Clerk of the Development Review Board or Appropriate Officer Michael Brace AO-00-12 AO-00-13 NOTICE OF APPEAL NOW COMES Michael Brace, by and through his attorney, Francis X. Murray, Esq., and hereby appeals the January 16, 2001 decision of the South Burlington Development Review Board upholding the Administrative Officer's decision to deny zoning permit application 4ZP-00-420 and the Administrative Officer's July 1 y. 2000 notice of violation of zoning regulations against 363 Juniper Drive, South Burlington. Vermont. DATED at South Burlington, this 14th day of February, 2001. FXM:mm c: Environmental Court of Vermont Amanda S. E. Lafferty. Esq. LAW OFFICE OF FRANCIS X. MURRAY Francis X. Murray, Esq. Vi! E ►� u4. Ui i it WAS STITZEL, PAGE & FLETCHER, P.C. A i LORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BI:RLINGI ON. VERNIONT 05402-1507 STEVEN F. STITZEL PATTI R PAGE* ROBERT E.FLETCHER JOSEPH S.McLEAN TIMOTHY M. EUSTACE ("ALSO ADMITTED INN Y ) (802) 660.2555 ( VOICE -I DD) FAX , 8021660-2552 or 660-91 19 E-MAII FIRM25551dFIRN1SPF COM) WRITER'S E-MAIL IALAFFERTY i FIRMSPF.COM) WRITER'S FAX I802) 660-2552 February 9, 2001 Francis X. Murray, Two Bedford Green South Burlington, Esq. VT 05403 Re: Appeals of Michael Brace Dear Frank: MIA KARVONIDES AMAND.A S F. LAFFERTY I am writing with regard to your letter to Ray Belair dated February 8, 2001, in the above -referenced matter. You have proposed that your client record an affidavit stating that he will not use his condominium located at 363 Juniper Drive as a two-family dwelling. While such an affidavit would address some of the City of South Burlington's concerns, it would not fully resolve this matter. For the following reasons, the City does not accept the resolution you propose in said letter. The City recorded the Notice of Violation that it issued to your client and the mere recording of the suggested affidavit will not adequately address said notice. Should your client appeal the City's decisions to Environmental Court, the City and your client may enter into a stipulation which the court could enter as an order. Such an order will better address the recorded notice of violation and provide greater assurance to the City regarding the future use of the basement of Mr. Brace's condominium. Moreover, the City still considers the mere existence of the basement level dwelling unit to be a violation of the Zoning Regulations. While I understand that this point is one with which you disagree, your client failed to appeal the notice of violation in a timely manner and is precluded from contesting that decision. Therefore, the City is not satisfied with a statement by your client that he will not use the basement as a separate dwelling unit. Please call me with questions or comments. Thank you. Sincerely, Amanda S. E. Lafferty cc: Ray Belair FRANcIs X. MURRAY Attorney and Counselor At Law Two Bedford Green, South Burlington, VT 05403 Office: 802-862-3174 Fax: 802-862-2937 February 8, 2001 HAND DELIVERED Mr. Raymond Belair Administrative Officer City of South Burlington 575 Dorset Street South Burlington, Vermont 05403 RE: 363 Juniper Drive, South Burlington Dear Ray: Enclosed is the draft Affidavit of Michael Brace regarding 363 Juniper Drive, South Burlington, that I discussed with you by telephone today. We propose making reference to the Affidavit and referenced restrictive conditions in your Permit for the finished lower level, attaching this Affidavit to the Permit, and filing the Permit and Affidavit in the Land Records. The Development Review Board expressed concerns that the lower level of this condominium could possibly be used as a separate living space in the future, and therefore expressed objections to granting a permit for the basement as finished. Mr. Brace does not intend to create a separate dwelling unit or an accessory living space. Therefore, he has no objection to a public record to this effect and maintaining such restrictions in perpetuity. Recording Mr. Brace's Affidavit with the Permit will forever restrict the use of the condominium at 363 Juniper Drive, even if the ownership changes. We believe that this is the alternate resolution that some Board Members appeared to be seeking and it provides notice and protection for the City that the unit has not been approved for, and can not be used as, two separate living spaces. While it protects the City, preserves the neighborhood community, and saves the City the cost to litigate the issue, it permits the owner legal use of his finished basement. If this proposed resolution is not accepted, my client must appeal the Development Review Board's actions to the Environmental Court early next week. If you have any questions or suggestions, please contact me immediately. I look forward to your prompt and timely response. Very truly yours, Francis X. Murray, Esq. FXM: mm Enclosure Post -it® Fax Note 7671 Date o Q pa°ges� To From Al Co./Dept. Co. Phone # Phone # Fax # Fax # To: CITY OF SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD In re: 363 Juniper Drive, South Burlington, Vermont AFFIDAVIT OF MICHAEL BRACE BEFORE ME, personally appeared Michael Brace, who, being duly sworn, stated as follows: I am the owner of a three -level Quarry Ridge Condominium located at 363 Juniper Drive. 2. This Quarry Ridge Condominium is my investment property and is currently leased to a single tenant through May 31, 2001. 3. During the past year (2000) I have finished the lower level "great room" of this condominium. The lower level includes a bath and wet bar/eating area. 4. At the expiration of the current lease, I intend to lease the entire condominium, including the great room, to a single family for use as a single family unit in accordance with the City of South Burlington Zoning Regulations. I do not intend to rent the lower level as a separate entity from the upper two floors of the unit. 6. If at any time, the above stated use should change, I will seek all required permits for any use other than described herein, and I agree that this condition shall be attached to the unit, recorded in the City of South Burlington Land Records, and shall be binding upon my heirs and assigns. Dated at South Burlington, this day of February, 2001. Subscribed and sworn to before me this Michael Brace Owner, 363 Juniper Drive, So. Burlington day of February 2001. Notary Public Commission Expires: 2/ 10103 FRANCIS X. MURRAY Attorney and Counselor At Law Two Bedford Green South Burlington. V'r 05403 Office: 802-862-3174 Fax: 802-862-2937 CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 January 17, 2001 Michael Brace P.O. Box 4251 Burlington, VT 054024251 Re: Administrative Officer Appeals Dear Mr. Brace: Enclosed please find a copy of the Finding of Facts of the Development Review Board meeting on January 16, 2001 (effective date January 16, 2001). You have the right to appeal this decision to the Vermont Environmental Court, pursuant to 24 V.S.A. § 4471 and V.R.C.P. 76, in writing, within 30 days of the date this decision is issued. The fee is $150.00. If you fail to appeal this decision, your right to challenge this decision at some future time may be lost because you waited too long. You will be bound by the decision, pursuant to 24 V.S.A. § 4472(d) (exclusivity of remedy; finality). If you have any questions, please give me a call. Sincerely, Sarah MacCallum Planning & Zoning Assistant Enclosure Cc: Francis Murray CITY OF SOUTH BURL,INGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOt71'H BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 January 12, 2001 Michael Brace P.O. Box 4251 Burlington, VT 05402-4251 Re: Administrative Officer Appeals Dear Mr. Brace: Enclosed is the agenda for next Tuesday's Development Review Board meeting and my comments to the Board. Please be sure someone is present on Tuesday, January 16, 2001 at 7:30 P.M. to represent your request. If you have any questions, please give me a call. Sincerely, t Raymond I. Belair, Administrative Officer RIB/mcp Encls cc: Francis Murray Good evening, I am Frank Murray. I am Michael Brace's lawyer. Mr. Brace owns a three level hillside townhouse at 363 Juniper Drive in the Quarry Ridge Development off Patchen Road, and rents this townhouse to his tenant. Mr. Brace finished the basement of this townhouse without a permit. This was a mistake that he regrets and for which he is sorry. He has since applied for a permit to finish his basement and Mr. Belair denied his request. This hearing is an appeal of this denial. The central issue before the Board is whether Mr. Brace's basement is physically separated from the first two floors of his home. The access to his townhouse unit is from the street, driveway, parking area and garage that are located at the front, street side of the unit. Mr. Brace's basement is neither physically separate nor an independent housekeeping establishment. Section 28.116 of the City's Zoning Regulations defines a dwelling unit as a room or rooms that are: ( I ) connected together, (2) constitute a separate and independent housekeeping establishment for owner occupancy or lease, (3) physically separated from other rooms or units in the same structure, and (4) contain independent cooking, sleeping and bath facilities. Mr. Brace's basement is connected to his townhouse. It is not a separate and independent housekeeping establishment for lease or occupancy. Mr. Brace's entire Quarry Ridge unit is leased by his single tenant. There are no separate utility services for the basement of his townhouse. The same heat, electric, water and phone service all three floors. As well, Mr. Brace's basement is not physically separated from the other floors of his townhouse. The basement is accessible by an interior stair case, and the interior door to his basement stairway has no lock. There is a sliding door from his basement to a small deck at the rear of his townhouse, but there is no walkway or access between this deck and the public street to his unit's driveway and the parking area off the first floor, front -street side of his unit. Zoning ordinances are in derogation of common law property rights, must be read strictly, and any doubts and uncertainties must be resolved in favor of the property owner. In Re Weeks, 167 Vt 551, 555 (1998) (Citing, In re Fitale, 151 Vt. 580 584 (1989); ... Secretary v. Handy Family 11"11te1's., 163 Vt. 476, 481-82 (1995) ... Ghibach v. S'ardelli, 132 Vt. 490, 494 ("This Court has previously held in a number of cases that zoning ordinances are to be strictly construed in view of the fact that they are in derogation of common law property rights ... ") ... Leo Motors, 111c. 1'. l rnvn of Manchester, 158 Vt. 561 (1992)), In re Shearer Variance, 156 Vt. 641 (1990), Town of Westford v. Kilhlu-n, 131 Vt. 120, 126 (1973). The City's definition of a dwelling unit requires finding all four elements: connected together, separate and independent housekeeping establishment, physically separated from other units for occupancy or lease, and independent cooking, sleeping and bath facilities. The only element that exists at Mr. Brace's townhouse unit is that his basement has a stove and a bath. However, pursuant to section 28.116 and the cited Vermont Supreme Court case law, a finished basement is not a separate unit simply because it has a stove and bath. Section 28.116 requires more. Before Mr. Brace's basement can become a unit separate from the rest of his townhouse there must be some showing that the basement and the rest of his townhouse are unconnected, physically separated and a separate, independent FFRANCIS X. MURRAY, ESQ. I ttorney and Counselor At Law l\co Bedford Green South Burlington. VT 0403 Office: 802-862-3174 Fax: 802-862-2937 housekeeping establishment. Since Mr. Brace's basement is connected by interior stairs to the other two floors of his townhouse, has the same utility services as the other two floors of his townhouse, is leased to the same tenant that leases the other two floors of his townhouse, and has no egress/ingress walkway between his rear basement door and his front street level townhouse, Mr. Brace's finished townhouse basement is part of and not separate from the other two floors of his 363 Juniper Drive townhouse. Therefore, Mr. Brace does not need a permit to add a dwelling unit to his townhouse, the Board should reverse the denial of his request for a permit to finish his basement, and the Board should order the issuance of the permit to finish his basement as he requested. There are four other issues First, Mr. Brace's failure to get a permit was not intentional. Second, Mr. Brace's permit violation was treated differently than the manner in which the City has treated other violations. Third, Mr. Brace was denied a modicum of due process, before the City Administrator determined that he added a separate unit to his townhouse. Fourth, the notice for tonight's meeting was totally inaccurate. First, Mr. Brace's failure to get a permit to finish his basement was not intentional. Mr. Brace is not a developer. He is a property owner who suffers from a disability. His Juniper Drive home is an investment property. Mr. Brace and his family have lived in South Burlington for most of his life. He was never aware that a property owner needed a zoning permit to finish an existing interior room. As well, prior to purchasing his home, Mr. Brace requested that Mr. Yandow, the builder, finish his townhouse basement. However, the builder informed Mr. Brace that it did not have the time to do this finish work. The builder pointed out that all utilities, including the plumbing, electric and heat were already present in the basement, and suggested that he do the finish work himself. Mr. Brace erroneously assumed that the building permit issued to the developer for his unit included all of the interior finish work, including his basement. Second, the City has denied Mr. Brace equal protection of the law that is guaranteed to him under the U.S. Constitution. Mr. Milot's firm has informed my office that last month Mr. Belair, the City's Administrative Officer, called and accused Mr. Milot's firm of finishing a number of other basements in the Quarry Ridge townhouse development without permits. According to Mr. Milot's firm, the only consequence of their oversight was for the Milot firm to apply and pay for the permits for the finished basements, and then the permits were issued without inspection of the premises by the City. This did not happen with Mr. Brace. The City gave Mr. Brace no opportunity to rectify this problem by securing a permit to finish the basement, and denied his permit when he applied. Third, last July the City Administrator concluded that Mr. Brace violated the zoning ordinance by creating a separate unit without providing him any opportunity to be heard. Without ever speaking to Mr. Brace or inspecting Mr. Brace's townhouse, Mr. Belair sent Mr. Brace a notice that he had violated the City's zoning law. The City's notification indicated that Mr. Brace could appeal this determination. The City required Mr. Brace to pay $85 to be heard regarding his appeal. This denied Mr. Brace notice and a fair hearing and thereby violated his constitutional right to due process. FRANCIS X. NIURRAN,, FsQ. Irrorner and C oun.celor.4l Lau• "I\Nu Bedford Green South Burlington. VT O5403 2 Office: 802-862.3174 Fax: 802-862-2937 The basis of Mr. Belair's decision, that Mr. Brace created a separate unit, was information from one of Mr. Brace's subcontractors who had complained to a state inspector. This subcontractor and Mr. Brace have been involved in a dispute over faulty workmanship in connection with finishing his basement. Essentially, this subcontractor tried to use the state inspector to collect money Mr. Brace allegedly owed him. This dispute still has not been resolved. However, the salient point is that the state inspector, who called Mr. Belair about Mr. Brace's basement, failed to speak with Mr. Brace as well. It is unfair and illegal to use the City's zoning enforcement procedures, even though unwittingly, to assist in the collection of this subcontractor's debt. Finally, the public notice for this meeting was totally incorrect. The notice stated that this was a hearing of a denial of Mr. Brace's zoning permit to add a dwelling unit. Mr. Brace never sought permission to add a dwelling unit in his townhouse. He does not want to add a dwelling unit to his home. Mr. Brace simply wants a permit to finish his basement and that is exactly what he applied to do. He is just as entitled to this permit as was Mr. Milot. On Friday, January 12, 2001, I requested that the City continue this hearing until the Public Notice had been properly warned, but the City denied my request. Due to the fact that there was no mail service yesterday, I have hand delivered a copy of my January 12, 2001 correspondence to the Chairman this evening. Thank you. Dated at South Burlington this 16th day of January 2001. Respectfully submitted, Francis X. Murray, Esq. Attorney for Michael Brace, Appellant Fwowis x. NIURRAV, EsQ. 1 ttorner and Counselor. -It Law l\%o Iiedfixd Green south Iiuiiington. VT 05403 3 Office: 802-862-3174 Fax: 802-962-2937 IDEVELOPMENT REVI W BOARD MEMO IDECEMBER 19, 2000 MEETING Dumpsters: The applicant should note the type of screening for the dumpsters on the preliminary plat plan. All existing and proposed dumpsters should be shown on the plans. Parkin: It is estimated that the proposal will require 167 parking spaces for customers and employees, 6 of which must be delineated as handicapped. A bike rack must also be provided. The preliminary plat application should depict these parking spaces as well as any proposed auto display areas. Wetlands: The preliminary plat application should include wetland boundaries. Bartlett Brook Watershed Protection Overlay District: In accordance with Section 23.101 of the Zoning Regulations, the applicant should submit applicable information regarding the development and storm water management to the City for inclusion into the City's stormwater and hydrology computer model prior to preliminary plat approval. Stormwater Pond: The City, with funds obtained from VTrans and many other partners, has been designing a stormwater pond on the applicant's property and the property to the south. The applicant has been very willing to work with the City to provide land for the construction of this stormwater pond. The pond is designed to take the most polluted portion of the runoff from Shelburne Road and some of the area along Green Mountain Drive. This runoff will be treated as it passes through the constructed wetland and discharge the treated water into the Bartlett Brook which flows into Shelburne Bay. The applicant's proposal does not impact the proposed pond. The applicant will be required to construct his own pond to treat the stormwater from the proposed development. Other: The preliminary plat application should include all proposed Shelburne Road improvements such as sidewalks, curb cuts, etc. 9) MICHAAEL BRACE - APPEAL OF ADNHNISTRATWE OFFICER'S DECISION, 363 JUNIPER DRIVE MICHAEL BRACE - APPEAL OF ADMINISTRATIVE OFFICER'S DECISION This is an appeal of the Administrative Officer's decision to issue Notice of Violation #NV-00-17 (see enclosed) dated 7/19/00 relative to property at 363 Juniper Drive. The zoning violation involves the Appellant converting his dwelling unit into two (2) dwelling units resulting in a building approved for four (4) dwellings units converted to five (5) dwelling units without approval from the Development Review Board and without a zoning permit. Staff was informed about this violation by a phone call from Assistant State Fire Marshall Joe Benard. The Notice of Violation, which is the subject of this appeal, was immediately sent to the appellant notifying him of the violation as required by 24 VSA 4442(a). IDEVELOPMENI' IL VIEW BOARD MEMO DECEMBER 19, 2000 MEETING On July 25, 2000 the Appellant's attorney Francis X. Murray delivered a letter (see enclosed) to the Administrative Officer and among other things asked for what infonnation was used to establish that Mr. Brace was in violation. Mr. Murray was contacted and informed that the information came from the Assistant State Fire Marshall. Mr. Murray indicated that his client had not added a dwelling unit. The Administrative Officer then asked if he could view the dwelling unit to determine for himself whether there was or was not a violation. Mr. Murray agreed to this and said he would get back to him to set up a time to view the property. Mr. Murray did not call back with a time and date to view the property. The 15 day appeal period from the date of the Notice of Appeal passed without a Notice of Appeal being filed by Mr. Brace. Approximately two (2) months after the last conservation with Mr. Murray, the Administrative Officer called his office to set up a meeting to view the property. He spoke to his legal assistant who indicated that they had been very busy and forgot to get back to him with a time to view the property. A meeting was setup for October 17, 2000. The property was viewed on that date. The Administrative Officer saw that the basement area was finished off with a complete kitchen which included a full set of cabinets, a double sink, a dishwasher, a full size refrigerator and full size cooking range. The basement area also included a full bath and a large room with a sofa. This area has direct access to the outside via a sliding glass door. It is staff s understanding that Mr. Brace was living in this area at the time the Notice of Violation was issued and was not living there when it was inspected on October 17, 2000. It is the Appellant's position that the finished basement as described above does not constitute a dwelling unit. Section 25.116 of the Zoning Regulations defines dwelling units as: "One room or rooms connected together, constituting a separate, independent housekeeping establishment for owner occupancy or rental or lease on a weekly, monthly, or longer basis, and physically separated from any other rooms or dwelling units which may be in the same structure, and containing independent cooking and sleeping facilities and bath facilities." It is the Administrative Officer's position that the finished basement area constitutes a dwelling unit for the following reasons:. 1. The space includes independent cooking, sleeping and bath facilities. 2. This space is physically separated from the main living unit by a stairway and doors and has direct access to the outside. 3. The space was used as a dwelling unit be the Appellant prior to the Notice of Violation. After inspecting the property on 10/17/00, Mr. Murray transmitted a letter dated 10/26/00 (see enclosed). A response was sent by the City Attorney by letter dated 10/31/00 (see enclosed). IR 01/16/2001 05:13 8028621179 DESLAURIERS CO PAGE 01 UesLauriers & Co. 100 Dorset Street S-15 So. Burlington. Vermont 05403 (802)863-1333 Fax (802)862-1.179 January 16, 2001 Mr. John Dinklage Chairman, Development Review Board City of South Burlington 575 Dorset Street So. Burlington, VT 05403 Dear John and members of the Development Review Board, This evening your are considering changes to the Final plat and Design Review application #DR-00.31 of Edgar Welch. As owners of the Beacon Row Townhouses and Hawthorn Suites Hotel on Dorset Street we are hopeful the City holds all developers and projects to the same standards. Aesthetic issues such as landscaping, parking, building facades and lighting are significant issues which must be responsibly designed and planned. We feel the Design Review Committee does a good job of evaluating proposals and hope that the Development Review Board follows their recommendations on these issues. We are concerned with any plan which proposes to reduce or change landscaping in a way that would lessen the green area around buildings or limit the natural screening benefits provided by trees between the street and buildings. Also lighting and Signage must be effective and aesthetically consistent with other new projects. Our buildings are enhanced by extensive landscaping and the planting of dozens of shade trees. We welcome your careful attention to the design details presented this evening to insure our efforts will become the example for future projects and not the exception. Thank you or your consideration. Sinter y , Charles DesLauriers F RANCIS X. MURRAY Attorney and Counselor At Law Two Bedford Green, South Burlington, VT 05403 Office: 802-862-3174 Fax: 802-862-2937 January 16, 2001 HAND DELIVERED Mr John Dinklage, Chair Development Review Board City of South Burlington City Hall South Burlington, VT 05403 Re Appeal of Michael W. Brace, 363 Juniper Drive Dear John Attached is a copy of my client's presentation of his position. I would like to address the Board and argue his position for approximately five minutes, and I respectfully request that the Board take the opportunity to review the attached presentation. After I have completed my client's argument, and the Board has had an opportunity to review my client's written presentation, my client and I are available for questions. I expect the total time for this agenda item will be no more than fifteen minutes. Also attached is a copy of my January 12, 2001 letter to Mr. Belair regarding the City's warning of this agenda item. I am sorry this could not have been delivered to you sooner, but the lack of mail service yesterday prevented me from mailing it to you in a timely fashion. Finally, Mr. Brace objects to the law firm for the City's Administration also serving as lawyer for the Board. It is critical for the Board's objective and legal review of this matter and to enable Mr. Brace to get a fair hearing that the Board seek independent legal advice regarding the issues in this matter. It would be unfair for the same lawyer to provide legal advice to the Administrator prosecuting this case and to the quasi-judicial board deciding the matter. Thank you for your attention. Very truly yours, p Francis X. Murray, Esq. FXM:mm Enclosures c Raymond J. Belair, Administrative Officer Development Review Board #AO-00-12 FAO-00-13 DEVELOPMENT REVIEW BOARD CITY OF SOUTH BURLINGTON Re: CONSOLIDATED APPEAL OF MICHAEL BRACE - DECISIONS OF .ADMINISTRATIVE OFFICER This matter came before the South Burlington Development Board pursuant to the provisions of 24 VSA § 4464(a) on appeal of Michael Brace, hereinafter "Appellant" from two (2) decisions of the Administrative Officer. Appeal #AO-00-12 from the decision of the Administrative Officer to issue Notice of Violation #NV-00-17 dated 7/19/00. Appeal#AO- 00-13 appealing the denial of zoning permit #ZP-00-420 by the Administrative Officer to add one (1) dwelling unit to a four (4) unit multi -family dwelling, 363 Juniper Drive. The Appellant was present at the public hearing held on 1/16/01 relative to these appeals. Based on the evidence submitted at the hearing and as part of these appeals, the South Burlington Development Board hereby renders the following decision: FINDINGS OF FACT 1. The owner of record of this property located at 363 Juniper Drive is Michael Brace. 2. The property owned by the Appellant consists of one (1) of four (4) dwelling units in building #20 of the Quarry Ridge planned residential development. This development consists of 92 residential units in 23 buildings. 3. One of the appeals is an appeal of the Administrative Officer's decision to issue Notice of Violation #NV-00-17 dated 7/19/00 relative to property at 373 Juniper Drive. The zoning violation involves the Appellant converting his dwelling unit into two (2) dwelling units resulting in a building approved for four (4) dwellings units converted to five (5) dwelling units without approval from the Development Review Board and without a zoning permit. 4. Staff was informed about this violation by a phone call 'From Assistant State Fire Marshall Joe Benard. The Notice of Violation, which is the subject of this appeal, was immediately sent to the appellant notifying him of the violation as required by 24 VSA § 442(a). 5. On July 25, 2000 the Appellant's attorney Francis X. Murray delivered a letter (see enclosed) to the Administrative Officer and among other things asked for what information was used to establish that Mr. Brace was in violatia, r. Mr. Murray was contacted and informed that the information came from the Assistant State Fire Marshall. Mr. Murray indicated that his client had not added a dwelling unit. The Administrative Officer then asked if he could view the dwelling unit to determine for himself whether there was or was not a violation. Mr. Murray agreed to this and said he would get back to him to set up a time to view the property. Mr. Murray did not call back with a time and date to view the property. 6. The 15 day appeal period from the date of the Notice of Appeal passed without a Notice of Appeal being field by Mr. Brace. Approximately two (2) months after the last conversation with Mr. Murray, the Administrative Officer called his office to set up a meeting to view the property. He spoke to his legal assistant who indicatsed that they had been very busy and forgot to get back to him with a time to view the property. 7. A meeting was setup for October 17, 2000. The property was viewed on that date. The Administrative Officer saw that the basement area was finished off with a complete kitchen which included a full set of cabinets, a double sink, a dishwasher, a full size refrigerator and full size cooking range. The basement area also included a full bath and a large room with a sofa. This area has direct access to the outside via a sliding glass door. It is staffs understanding that Mr. Brace was living in this area at the time the Notice of Violation was issued and was not living there when it was inspected on October 17, 2000. 8. It is the Appellant's position that the finished basement as described above does not constitute a dwelling unit. Section 28.116 of the Zoning Regulations defines dwelling units as: "One room or rooms connected together, constituting a separate, independent housekeeping establishment for owner occupancy or rental or lease on a weekly, monthly, or longer basis, and physically separated from any other rooms or dwelling units which may be in the same structure, and containing independent cooking and sleeping facilities and bath facilities. 9. It is the Administrative Officer's position that the finished basement area constitutes a dwelling unit for the following reasons: 1. The space includes independent cooking, sleeping and bath facilities. 2. This space is physically separated from the main living unit by a stairway and doors and has direct access to the outside. 3. The space was used as a dwelling unit by the Appellant prior to the notice of Violation. 10. after inspecting the properb/ on 10117100, Mr. 'Murray transmitted a letter dated 10/26/00. A response was sent by the City Attorney by letter dated 10/31/00. 11. On 11/9/00 the Appellant submitted a notice of Appeal and a letter to the Chair of the Development Review Board dated 11/9/00 from Mr. Murray. The Notice of Appeal was submitted more than three (3) months after the Notice of Violation was issued. 24 VSA 4464)a requires that a Notice of Appeal be filed within 15 days of the date of the decision. The appeal was not taken within the time period prescribed by the statutes and it is therefore untimely. 12. The other appeal is an appeal of the Administrative Officer's decision to deny zoning permit #ZP-00-420 to add one (1) dwelling unit to a four (4) unit multi -family dwelling. 13. This permit was denied because the Administrative Officer does not have the authority to approve adding one (1) dwelling unit to a four (4) unit multi -family dwelling. Approval must first be obtained form the Development Review Board and this approval has not been obtained. 14. The zoning permit application describes the proposed improvements as "finished great room in lower level."° The Administrative Officer has viewed the lower level with all the proposed improvements completed. The completed improvements constitute a "dwelling unit" and the Administrative Officer does not have the authority to approve this dwelling unit without prior approval from the Development Review Board. 15. The zoning permit application was received on 11/9/00. It was denied on 12/8/00. On December 13, 2000, the appellant's attorney, Francis X, Murray, appealed the Administrative Officer's decision without formally submitting a Notice of Appeal. CONCLUSION OF LAW 1. The Development Review Hoard concludes that appeal #AO-00-12 of the Administrative Officer°s decision to issue Notice of Violation #NV-00-17 dated 7/19/00 was untimely as it was received on 11/9/00 which is approximately three (3) months after the Notice of Violation was issued. 24 VSA, § 4464(a) requires that a Notice of Appeal be flied within 15 days of the date of the decision. 2. The Development Review Board concludes that the improvements made to the lower level of 363 Juniper Drive constitute a dwelling unit as defined by the zoning regulations. 3 3. The Development Review Board concludes that the Administrative Officer does not have the authority to issue a zoning permit to add one (1) dwelling unit to a four (4) unit multi- family dwelling. The Board concludes that the Administrative Officer acted properly in denying zoning permit #ZP-00-420. DECISION Based on the above Findings of Fact and Conclusions of Law, the South Burlington Development Review Board hereby denies the Appellant's request to overturn the Administrative Officers decision of 7/19/00 that the Appellant's property is in violation of the zoning regulations and hereby denies the Appellant's request to overturn the Administrative Officers decision of 12/8/00 to deny zoning permit application #ZP-00-420 and affirms said decisions. Dated this day of January, 2001 at South Burlington, Vermont Chairman or Clerk South Burlington Development Review Board 4 DEVELOPMENT REVIEW BOARD MEMO JANUARY 16, 2001 MEETING 61 1HCH EL BRACE - APPEAL OF ADYfMSTRATIVE OFFICER'S DECISION, 363 JUNIPER DRIVE The hearing was continued from the 12/19/00 meeting in order to consolidate this appeal with a later appeal filed regarding this same matter. Enclosed is staff s memo for the 12/19/00 meeting. 7) MICHAEL BRACE - APPEAL OF ADMIMSTRATIVE OFFICER'S DECISION, 363 JUNIPER DRIVE This is an appeal of the Administrative Officer's decision to deny zoning permit #ZP-00-420 to add one (1) dwelling unit to a four (4) unit multi -family dwelling. A copy of the zoning permit which was denied is enclosed. This permit was denied because the Administrative Officer does not have the authority to approve adding one (1) dwelling unit to a four (4) unit multi -family dwelling. Approval must first be obtained from the Development Review Board and this approval has not been obtained. The zoning permit application describes the proposed improvements as "finished great room in lower level." The Administrative Officer has viewed the lower level with all the proposed improvements completed. The completed improvements constitute a "dwelling unit" and the Administrative Officer does not have the authority to approve this dwelling unit without prior approval from the Development Review Board. The zoning permit application was received on 11/9/00. It was denied on 12/8/00. On December 13, 2000, the appellant's attorney, Francis X. Murray, appealed the Administrative Officer's decision without formally submitting a Notice of Appeal. 8) WELCH — FINAL PLAT & DESIGN REVIEW APPLICATIONS — SITE AMENDMENTS, 338-340 DORSET STREET This project consists of a final plat application and a design review application to amend a planned unit development consisting of: 1) a 12,900 sq. ft. retail building which includes one (1) dwelling unit, 2) a 1,800 sq. ft. retail building, and 3) a 1,800 sq. ft. accessory building. The amendment consists of 1) converting 2,594 sq. ft. of retail space to general office space in main building, 2) adding 599 sq. ft. of mezzanine retail space to main building, 3) fagade alterations to all buildings, 4) signage alterations, and 5) site modifications to parking, landscaping, and lighting, 338-340 Dorset St. The Design Review Committee reviewed this project at their December 18, 2000 meeting. The Planning Commission approved the final plat for this property on June 8, 1999 (minutes enclosed). This property at 340 Dorset Street is located within Central District Two and Design Review District Two. It is bounded on the west by Dorset Street, on the north by a mixed 4 DEYELOPMENTREVIEW BOARD MEMO DECEMBER 19, 2000 MEETING On 11/9/00 the Appellant submitted a Notice of Appeal and a letter to the Chair of the Development Review Board dated 11/9/00 from Mr. Murray (see enclosed). The Notice of Appeal was submitted more than three (3) months after the Notice of Violation was issued. 24 VSA 4464(a) requires that a Notice of Appeal be filed within 15 days of the date of the decision. The appeal was not taken within the time period prescribed by the statutes and it is therefore untimely. 11 CITY OF SOUTH BURLINGTON ZONING PERMIT APPLICATION Applicant: M l C 1,�-Aj; L -6 PAC L Application No: Address: 3 G S JL&.1 P� �Q c V t— Daytime Tel. No: / ,?5 ,31 D 0 Property Location: 36 3 J4 +J ' pE 1Zt VE. Property Owner: M "C, It ►� �L'2flC C P® fox 4z Address: 51 Tax Parcel ID No. �u eL VT- a s4nz-�{zSl Parcel Size: Present use of property (describe): Present structure,/imm ements on property (de cribe): �+ 3 L�1lEL �vws! N D t&V&L tsrLE.¢i oCs i✓1 �nI g1 rALLC a o-r--r s l e PL- c. c-. c� N P -% A Qd-* -D) Kn-SVZTA ► #Jmr,0cowl As LtkS-C C, /q-S --�k-*, Proposed use of property (describe): I L -4 r, S t IL1 C Proposed structures/improvements (including building dimensions): 1Q�5 Cr- -D P�-'A:T- KovW1 L rl to L,0 rc,12 L f u Attach sketch plan (see attached sketch plan instructions) or site plan. 4 Estimated cost of improvements: ZZ m 010 Adjoining property owned by applicant/property owner: Prope access (public road lf%ntage, public water frontage, approved right-of-way): U-U5 L-x C- 4 -i--> Applicant/Owner Certification The undersigned property owner hereby consents to submission of this application and understands that if the application is approved, the zoning permit and any attached conditions will be binding on the property. Property Owner Signature Date The undersigned applicant hereby affirms that the information presented in this application is true, accurate and complete. Applicant Signature Date ADMINISTRATIVE OFFICER ACTION Date Received: a� 00 Fee Received: $ Identification ', a 4A '�. fi(: ' y"�6" IT A,/ F . of zoning district: Identification of proposed use: p 1,J , 7 Proposed use type: Permitted Conditional Date of site plan approvaUdenial _ Approval Date Denial Date Date of subdivision approvaUdenial Approval Date Denial Date Date of conditional use approval/denial Approval Date Denial Date Date of appeal variance approvaUdenial: Approval Date Denial Date FINAL. ADMINISTRATIVE OFFICER ACTION ZONE,�iCf PERMIT , APPROVED " ! Date of Approval Administrative Officer's Signature This permit, shall expire on Fee: DENIED N Date k D4nial Reason for denial: G �4 s ' 1 A)( -in I is ive Officer's Signature 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 15 days of the date of this decision. The notice of appeal must be accompanied by a filing fee of $85.00. 01/12/2001 09:39 8028622937 r MURRAV LAW OFFICE PA6E 01 FRANcis X. MuRRAY Attorney and Counselor At law Two Bedford Green, South Burlington, VT 05403 Office: 802-862.3174 Fax: 802-862-2937 January 12, 2001 TRANSMITTHt) sY TELEFAX: 946-4101 Mr. Ravmond Belair Administrative Officer City of South Burlington 575 Dorset Street South Burlington. Vermont 05403 KE ',63 Juniper Drive, South Burlington Dear Pay: Michael Brace, my client, just delivered to me the copy of the Tuesday January 16, 2001 Notice of Puhlic Hearing that you sent to him, Item 44 is an inaccurate description of this Agenda item. Michael Brace never sought a permit to add a dwelling unit at 363 Juniper Drive, He applied for a permit to finish thv lower level of the townhouse located at 363 Juniper Drive and you denied this -equest. My client respectfully requests that you continue his appeal from January 16, 2001 until the appeal has been accurately warned. Thank you. I will be conducting depositions all day today. However, you may call to leave a message or respond by telefax. Very truly your. Francis X. Murray, FXM mn. John Dinklavc. Chair, Development Review Board Post -it® Fax Note 7671 rDateTo Co.iDept. Phone # 1111 LW' #ot_► '1JOu4 I ICffl,liu SOUTH BURLING TON DEVELOPMENT REVIEW BOARD The South Burlington Development Review Board will hold a pub- lic hearing at the South Burlington City Hall, Conference Room, 575 Dorset Street, South Burling- ton, Vermont on Tues- day, Januar• 16, 2001, at 7s30 P.M. to consider the follow- ing: 11 Final plat applica- tion #SD-00-71 of John Larkin to amend a planned unit devel- opment consisting of: 1,1 an 89room hotel building, 2] a 71 room hotel building, ind 11 a 275 Seat ;estawant. The amenument con- sist of. 11 landscapin modifications, and 2� designating 15 park- ing spaces for future expansion, 1 Dorset Street. 2 Final plat applica- tion #SD-00-72 of Wright/Morrissey Re- alty Corp. to subdi- vide a 4.91 acre par- cel into two (21 lots of 1.5 acres (lot#11 and 3.41 acres [lot#], 80 Farrell Street. 3] Final plat applica- tion #SD-00-70 of Mal- colm Willard to amend a planned unit development consis- ting of the construc- tion of an 18,456 sq. ft. two-story general office building: The amendment consists of: 1] minor site modl- fications including landscaping and park- ing, and 21 increasing the size of the build- ing to 21,690 sq. ft.. 1100 Hinesburg Road. 41 appeal #AO-00-13 of Michael Brace ap- pealing the denial of zoning permit #ZP-00- 420 by the Adminis- trative Offer to add one (1] dweling unit to a four (41 unit multi -family dwelling, 363 Juniper Drive. 5) Final plat appiica- tion #SDOO.69 and De- sign Review appplica- tion #DR40-31 of Edgar Welch, to amend a planned unit development consis- ting of: t) a IZ900 sq. ft. retail building which includes one (1] dwelling unit, 21 a 1,800 sq. ft. retail i budding, and 31 a 1. 800 sq. ft. accessory building. The amend- ment consists of: 11 converting 2;594 sq. ft. of retail space to general office space in main building 21 adding 599 sq. ft. of mezzanine retail space to main build- ing, 31 facade altera- tions to all buildings, 4) signage altera- tions, and 51 site mod- ifications to parking, landscaping, and lighting_ 38-340' Dor- set St. John Dinklage Vhairman. h South Burluigton Development Review Board, CITY OF SOUTH BURLINGTON DEPARTMENT OF PI ANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 December 15, 2000 Michael Brace 363 Juniper Drive South Burlington, VT 05403 Re: Appeal of Administrative Officer's Decision Dear Mr. Brace: Enclosed is the agenda for next Tuesday's Development Review Board meeting and my comments to the Board. Please be sure someone is present on Tuesday, December 19, 2000 at 7:30 p.m. to represent your request. If you have any questions, please give me a call. Sinc%ely, Raymond J. Belair, Administrative Officer RJB/mcp Encls cc: Francis Murray PUBLIC HEARING SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD Th uth "fon 'Development Review Board will hold a public hearing at the South Bur- lington City Hail Confer- ence Room, 575 Dorset Street. South Burlington, Vermont on Tuesday, December 19, 2000 at 7:30 P.M. to consider the following: 1 Final plat application SO-00-62 of the Schoolhouse, Inc. to amend a previously ap- proved planned residen- tial development consis- ting of 160 single family lots and 60 duplex units. The amendment consists of converting a 15,200 square foot barn to a 60 student private school, D, ,:t Street. U.Appeal #AO-00-12 of hael Brace form the 11 dect�Fn of the Adminsi- tlniflv,n Officer to issue Notice of Violation #NV- 00-17 dated 7/19/00 rela- tive to property at 363 Juniper Drive. 31 Final plat application #SD-00-57 of Martin's Foods of South Burling- ton, Inc. to amend a pre- viously approved planned unit develop- ment consisting of a 100,324 square foot shopping center. The amendment consists of: 1] constructing an ac- cess drive to connect to the property to the south, and 21 revise the parking layout to accommodate the access drive, 935- 947 Shelburne Road. 1 41 Application #CU-00- 27 of Haun Welding Sup- ply, Inc. seeking condi- tional use approval from Section 26.05, Condi- tional Uses. and Section 26.65, Multiple Struc- tures and Uses on Lots, of the South Burlington Zoning Regulations. Re- quest is for permission to convert 3600 square feet, of a 6,332 square foot building from ware- housing, storage, and distribution to wholesale use in, conjunction with 2732 square feet of warehousing, storage, and eistribution use, 5 Gregory Drive. JohnDinklage, Chairman South Burlington Development Review Board December 2, 2000 MICHAEL BRACE - APPEAL OF ADMINISTRATIVE OFFICER'S DECISION This is an appeal of the Administrative Officer's decision to issue Notice of Violation #NV-00-17 (see enclosed) dated 7/19/00 relative to property at 363 Juniper Drive. The zoning violation involves the Appellant converting his dwelling unit into two (2) dwelling units resulting in a building approved for four(4) dwellings units converted to five (5) dwelling units without approval from the Development Review Board and without a zoning permit. Staff was informed about this violation by a phone call from Assistant State Fire Marshall Joe Benard. The Notice of Violation, which is the subject of this appeal, was immediately sent to the appellant notifying him of the violation as required by 24 VSA§ 4442(a). On July 25, 2000 the Appellant's attorney Francis X. Murray delivered a letter (see enclosed) to the Administrative Officer and among other things asked for what information was used to establish that Mr. Brace was in violation. Mr. Murray was contacted and informed that the information came from the Assistant State Fire Marshall. Mr. Murray indicated that his client had not added a dwelling unit. The Administrative Officer then asked if he could view the dwelling unit to determine for himself whether there was or was not a violation. Mr. Murray agreed to this and said he would get back to him to set up a time to view the property. Mr. Murray did not call back with a time and date to view the property. The 15 day appeal period from the date of the Notice of Appeal passed without a Notice of Appeal being filed by Mr. Brace. Approximately two (2) months after the last conservation with Mr. Murray, the Administrative Officer called his office to set up a meeting to view the property. He spoke to his legal assistant who indicated that they had been very busy and forgot to get back to him with a time to view the property. A meeting was setup for October 17, 2000. The property was viewed on that date. The Administrative Officer saw that the basement area was finished off with a complete kitchen which included a full set of cabinets, a double sink, a dishwasher, a full size refrigerator and full size cooking range. The basement area also included a full bath and a large room with a sofa. This area has direct access to the outside via a sliding glass door. It is staff s understanding that Mr. Brace was living in this area at the time the Notice of Violation was issued and was not living there when it was inspected on October 17, 2000. It is the Appellant's position that the finished basement as described above does not constitute a dwelling unit. Section 28.116 of the Zoning Regulations defines dwelling units as: "One room or rooms connected together, constituting a separate, independent housekeeping establishment for owner occupancy or rental or lease on a weekly, monthly, or longer basis, and physically separated from any other rooms or dwelling units which may be in the same structure, and containing independent cooking and sleeping facilities and bath facilities." Post -its' Fax Note 7671 Date ,- u pages To From Co./Dept. Co. Phone # Phone # Fax # t�/ E' Fax # It is the Administrative Officer's position that the finished basement area constitutes a dwelling unit for the following reasons: l . The space includes independent cooking, sleeping and bath facilities. 2. This space is physically separated from the main living unit by a stairway and doors and has direct access to the outside. 3. The space was used as a dwelling unit be the Appellant prior to the Notice of Violation. After inspecting the property on 10/17/00, Mr. Murray transmitted a letter dated 10/26/00 (see enclosed). A response was sent by the City Attorney by letter dated 10/31/00 (see enclosed). On 11 /9/00 the Appellant submitted a Notice of Appeal and a letter to the Chair of the Development Review Board dated 11 /9/00 from Mr. Murray (see enclosed). The Notice of Appeal was submitted more than three (3) months after the Notice of Violation was issued. 24 VSA§ 4464(a) requires that a Notice of Appeal be filed within 15 days of the date of the decision. The appeal was not taken within the time period prescribed by the statutes and it is therefore untimely. CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 July 19, 2000 Michael Brace 363 Juniper Drive South Burlington, VT 50403 Re: Zoning Violation Dear Mr. Brace: Please be advised that based on information available to the City, you have commenced land development on your property at the above address without obtaining a permit from the City as required by Section 27.10 of its Zoning Bylaws and 24 VSA 4443(a)(1). Specifically, you have initiated the following activities on the above -described property: Converted your dwelling unit into two (2) dwelling units resulting in five (5) dwelling units in a building approved for four (4) dwelling units without approval from the Development Review Board and a zoning permit. You have seven (7) days from the date of this letter to discontinue this violation and take appropriate remedial action. Specifically, you must accomplish the following: Remove the illegally converted dwelling unit and return building #20 to its originally approved use as a four (4) unit multi -family dwelling. If you do not accomplish the actions directed in this letter within seven (7) days of the date of this letter, the City may pursue this matter in court. In such court proceeding, the City will be entitled to seek appropriate injunctive relief and fines of up to one hundred ($100.00) dollars per day for each day your violation continues beyond the seven (7) day period provided in this letter. Michael Brace Zoning Violation July 19, 2000 Page 2 If the violation described in this letter occurs again within twelve (12) months of the date of this letter, you will not be entitled to receive a further Notice of Violation from the City before the City pursues further enforcement proceedings. You may appeal this Notice of Violation to the Development Review Board by filing a written notice of appeal (see enclosed) and eighty five ($85) dollars within fifteen (15) days of the date of this letter with the Clerk of the Development Review Ecard at the following address: 575 Dorset Street, South Burlington, Vermont 05403. Sincerely, 17 Raymo d J. Belair, Administrative Officer RIB/mcp 1 Encl cc: Amanda, S.E. Lafferty, City Attorney Certified letter #Z 395 693 820 FRANcis X. MURRAY Attorney and Counselor At Law Two Bedford Green, South Burlington, VT 05403 Office: 802-862-3174 Fax: 802-862-2937 July 25, 2000 TRANSMITTED BY FIRST CLASS MAIL AND TELEFAX: 846-4101 Mr. Raymond Belair Administrative Officer Citv of South Burlington 575 Dorset Street South Burlington, Vermont 05403 RE: Michael Brace 363 Juniper Drive, South Burlington Dear Ray: I represent Michael Brace. Mr. Brace just received your July 19, 2000 correspondence regarding his dwelling at 363 Juniper Drive, South Burlington. He did not realize that he needed a permit to finish the interior of the basement of his home. He will comply immediately with this requirement. Please advise the amount of the permit fee. He is finishing approximately 900 square feet with a bath (previously plumbed by the developer) and great room/entertainment area with wet bar and appliances. You concluded that Mr. Brace acted illegally, without a hearing or identification of evidence that you relied upon. You provided him an option to pay $85 to appeal your Notice of Violation to the Development Review Board. Mr. Brace does not agree with your conclusions. It is unconstitutional for the City to conclude a homeowner violated the law without notice or a hearing and then place the burden on the homeowner to pay a fee to demonstrate that they did not violate the law. Before I can advise Mr. Brace further, I need to know upon what information the City relied to establish that Mr. Brace converted his dwelling into two (2) units without approval from the Development Review Board and a zoning permit. I look forward to your prompt response. Very truly yours, < 0 Francis X. Murray, Esq. FXM: mm Amanda S. E. Lafferty, Esq., City Attorney 1e/26/2038 2I:23 802862293-7 MJRRAV LAW OFFICE FA5E k'_ FRANcIS X. MURRAY Auar v* and Counselor At Law Two Bedford Green, Smth Burlington, VT 05403 Office- 802-862-3174 Fax., 802-862-2937 October 26, 2000 TRANSMITTED BY TEUFAX: 846-4101 Mr. Raymond Belair Administrative Offict,r City of South Buriin,�ton 575 Dorset Strcet South Burlington. Vermont 05403 RE, 363 Juniper Drive. South Burlington Dear Ray: As you know, 1 represent Michael Brace who owns the condominium located at 363 Juniper Drive, South Bt1rlin1t0n I understand that you called my office Wednesday afternoon, 6ctober 25, and left a niessa�ge that, based on advice of the City Attorney, you have determined that this property contains a "second dwelling." I also understand that counsel advised you that the time to appeal this determination expired. Please provide me a written statement confirming these positions and, more importantly, the legal and factual basis f'or Loth. Finally, my client i$ r8tiently waiting for your response to my July 25, 2000 letter regarding your July 19, 2000 :orres'j)ondence to Mr. Brace. Thank you for .wair hrcmipt attention to these requests. Very truly yours. Francis X Marra,, E %q. FXNI: rnm STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICETDD) - STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 JOSEPH S. McLEAN PATTI R. PAGE' E-MAIL (FIRM2555urFIRMSPF.COM) TIMOTHY M EUSTACE ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY Ca FIRMSPF.COM) MIA KARVONIDES ('ALSO ADMITTED INN Y) WRITER'S FAX (802) 660-2552 AMANDA S.E. LAFFERTY October 31, 2000 Mr. Francis X. Murray, Esq. Two Bedford Green South Burlington, VT 05403 Re: Notice of violation issued to Michael Brace Dear Mr. Murray: I am writing on behalf of the City of South Burlington with regard to the above -referenced matter. I have reviewed your letter, dated July 25, 2000, to Ray Belair, and it is unclear to me whether you intended that letter to be a notice of appeal. If so, I suggest that you submit to the City an application for a hearing before the Development Review Board, along with the appropriate fee. The Board will consider whether you have made a timely appeal and whether your client's actions have resulted in a violation of the Zoning Regulations. Please be aware that this letter in no way represents a determination as to the validity of any appeal filed by or on behalf of your client. In brief reply to your letter to Ray Belair, dated October 26, 2000, wherein you request further information as to the legal basis for the City's position, I suggest that you review 24 V.S.A. §§4464 and 4472, as well as the definition of "dwelling unit" in the Zoning Regulations. Please call with any further questions. Thank you. Sincerely, Amanda S. E. Lafferty cc: Ray Belair ...t A F RAINCIS X. MURRAY Attorney and Counselor At Law Two Bedford Green, South Burlington, VT 05403 Office: 802-862-3174 Fax: 802-862-2937 November 9, 2000 Mr. John Dinklage, Chair Development Review Board City of South Burlington City Hall South Burlington, VT 05403 Re: Appeal of Michael W. Brace Dear John: Please accept this letter and enclosures as part of my client's appeal of the City's administrative determination that my client's property contains a second dwelling. As I explain below, I filed notice of my client's appeal by letter to Ray Belair last July. My client has made every reasonable effort to resolve this matter without burdening the Development Review Board. My client has acknowledged that he finished his basement without a permit because he did not know that a permit was necessary. On July 19, 2000 the City's administration sent my client a letter that stated it had concluded "based on information available to the City, you have commenced land development ... without obtaining a permit... (and) converted your dwelling unit into two (2) dwelling units without approval ...." (Attachment A). This determination was troubling because it was in part erroneous, based upon undisclosed information, and made without even the courtesy of any attempted communication with my client. The City's July 19, 2000 letter also told my client that it could appeal its conclusion. By letter dated July 25, 2000, I immediately informed the Administration that my client had not realized that he needed a permit to finish his basement (Attachment B). My letter also informed the Administration that my client would immediately comply with the zoning permit requirement, and asked the Administration to notify me of the amount of the permit filing fee. My letter further noticed the Administration that my client objected to and disagreed with its two dwelling unit determination, and explained that my client had finished about 800 square feet of his basement with a bath, entertainment area with a wet bar and appliances. My letter also strenuously objected to and appealed the Administration's two unit notice because it was erroneous, without basis, and failed to provide any reasons for the determination. My letter further explained that the Administration's actions had denied my client due process, and registered my client's objection to the payment of an $85 appeal fee before the City complied with basic common courtesy and legal protections. Finally, my letter asked the City's administration to promptly provide my client with the information upon which it relied to conclude that he had converted his dwelling unit into two dwelling units. Mr. John Dinklage, Chair Page 2 November 9, 2000 As you know, the City's administrative decision must be supported by substantial evidence, be in accord with the law, and may not be arbitrary, capricious or an abuse of discretion. Fund For Animals v Babbitt, 89 F.3d 128, 132 (2nd Cir. 1996). As well, an administrative decision is arbitrary if it does not make sense to a reasonable person. In Re Town of Sherburne, 154 Vt. 596, 605 (1990). An administrative decision "must ... explain its reasons for finding as it does; if it does not give reasons, its decision (also) may appear arbitrary." Id. The City's administration failed to reply to my letter. During September, my assistant called the City's Administration to find out why it had ignored my July 25, 2000 letter regarding the amount of the permit fee and request for factual and legal reasons for its contention that my client had converted his unit into two dwellings. My assistant explained to Mr. Belair that my client's finished basement was connected with and not physically separated from the first and second floors of his unit. Mr. Belair responded that he had not yet seen my client's unit, but if he had an opportunity to see it, he could agree that it was not two dwelling units. My assistant arranged a convenient time for Mr. Belair to inspect my client's unit. Mr. Belair inspected my client's unit for the first time Tuesday, October 17, 2000. During this inspection, Mr. Belair observed my client's basement had a bath and an entertainment area with appliances and cabinets that were connected with and not physically separated from the first and second levels of his unit. On the afternoon of October 25, 2000, Mr. Belair stated in a telephone message to my office that, based on the advice of the City Attorney, he determined my client's property contained a second dwelling unit, and further advised that my client's time to appeal this determination had expired. On October 26, 2000 I again wrote to the City's administration and requested the legal and factual reasons for these determinations (Attachment Q. By letter dated October 31, 2000, the City's attorney sent me a letter that did not explain the factual and legal basis for the City's decision (Attachment D). This letter simply referred me to two sections in the Vermont Planning and Development Act that pertain to appeals of administrative decisions and the definition of "dwelling units" in the City's zoning regulations. There was no explanation of how my client's basement was a separate unit. I have given up hope of getting a reasonable response from the City's administration to my multiple requests for an explanation of the City's position that my client has two dwelling units. Section 28.116 of the City's Zoning Regulations defines a dwelling unit as "one or more rooms connected together ... and physically separated from any other rooms or dwelling units ... in the same structure ...." (emphasis added) My client's basement is connected with and not physically separated from the first and second levels of his unit and Mr. Belair observed this when my client facilitated his inspection on October 17, 2000. I have forwarded my client's zoning permit application and $110 filing fee to the City under separate cover. I have enclosed my client's "Application to the Development and Review Board" Mr. John Dinklage, Chair Page 3 November 9, 2000 and $85 fee. I hope that this matter will be resolved quickly. After you and the Board have reviewed the above statement of my client's case, and the attachments to this letter, would you order the administration to provide my client with a reasonable explanation of the facts and law it alleges is the basis of its decision that my client's unit was converted into two dwelling units. My client is entitled to this due process explanation under Vermont law and the United States Constitution, and this explanation is necessary so that he can effectively perfect his appeal. Specifically, as part of this explanation, does the administration contend that my client's basement is not connected with and physically separated from the first and second floors of his unit, and if so, what is the factual basis of this determination. As well, if the administration agrees that my client's basement is connected with and not physically separated from the first and second floors of his unit, what is the legal basis for its conclusion that he has converted his basement into a separate dwelling unit? In conclusion, the suggestion that my client has somehow waived his rights to have you intercede and protect his legal rights from the arbitrary determination of the administration is without any factual and legal basis as well. My client has hounded the administration to resolve this matter fairly, and has consistently objected to its failure to respond to requests for information and reasoning. He effectively noticed the City of his appeal of the Administration's July notice in my July 25, 2000 letter, and facilitated an inspection of his property. Furthermore, Mr. Belair's statements in September that he had not ever inspected my client's property, and his inspection could cause him to agree that the unit had not been converted into two units demonstrated that he had agreed to reconsider his July determination. If you or any other member of the Board need any further information, please contact me. I look forward to seeing you so that this matter may be resolved without further appeals. Very truly yours, Francis X. Murray, Esq. FXM: mm Enclosure Raymond J. Belair, Administrative Officer T.24 § 4463 MUNICIPAL AND COUNTY GOVERNMENT Ch. 117 § 4463. Expenditures for service A board of adjustment or a development review board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services. All members of the board of adjustment or the development review board may be compensated for the performance of their duties, and may be reimbursed by their municipality for necessary and reasonable expenses. —Added 1967, No. 334 (Adj. Sess.), § 1, eff. March 23, 1968; amended 1993, No. 232 (Adj. Sess.), § 15, eff. March 15, 1995. HISTORY Amendments-1993 (Adj. Sess.). Inserted "or a development review board" following "adjustment" in the first sentence and "of adjustment or the development review board" preceding "may be compensated" in the second sentence. § 4464. Appeals (a) An interested person may appeal any decision or act taken, by the administrative officer, in any municipality by filing a notice of appeal with the secretary of the board of adjustment or the development review board of that municipality or with the clerk of that municipality if no such secretary has been elected. If the appeal is taken with respect to a decision or act of an administrative officer, such notice of appeal must be filed within fifteen days of the date of such decision or act, and a copy of the notice of appeal shall be filed with such officer. If the administrative officer fails to act with regard to an application for a permit, within thirty days, a permit shall be deemed issued on the 31st day. (b) For the purposes of this chapter, an interested person means any one of the following: (1) A person owning title to property, or a municipality or solid waste management district empowered to condemn it or an interest in it, affected by a bylaw who alleges that such regulation imposes on such property unreasonable or inappropriate restrictions of present or potential use under the particular circumstances of the case. (2) The municipality in which the plan or a bylaw of which is at issue in an appeal brought under this 'chapter or any municipality which adjoins such municipality. (3) A person owning or occupying property in the immediate neigh- borhood of a property which is the subject of any decision or act taken under this chapter, who alleges that the decision or act, if confirmed, will not be in accord with the policies, purposes or terms of the plan. or bylaw of that municipality. Ch. 117 MUN. & iiEGIONAL PLANNING & BEVEL, T24 § 4464 (4) Any ten persons owning real property within a municipality listed in subdivision (2) of this subsection who, by signed petition to the board of adjustment or the development review board of a municipality, the plan or a bylaw of which is at issue in any appeal brought under this title, allege that any relief requested by a person under this title, if granted, will not be in accord with the policies, purposes or terms of the plan or bylaw of that municipality. (5) Any department and administrative subdivision of this state owning property or any interest therein within a municipality listed in subdivision (2) of this subsection, and the agency of commerce and community development of this state. (6) The municipal conservation commission if there be one for the municipality in which the plan or a bylaw of which is at issue. (c) In the exercise of its functions hereunder, a board of adjustment or a development review board shall have the following powers, in addition to those specifically provided for elsewhere in this chapter: (1) To hear and decide appeals taken under this section, including, without limitation, where it is alleged that an error has been committed in any order, requirement, decision or determination made by an administra- tive officer under this chapter in connection with the enforcement of a bylaw; (2) To hear and grant or deny a request for a variance under section 4468 of this title; (3) To hear and grant or deny a request for a zoning permit under section 4469 of this title. —Added 1967, No. 334 (Adj. Sess.), § 1, eff. March 23,1968; amended 1969, No.196 (Adj. Sess.), eff. July 1,1970;1971, No. 257 (Adj. Sess.),§§ 18, 22, eff. April 11, 1972; 1977, No. 250 (Adj. Sess.), § 2; 1979, No.174 (Adj. Sess.), § 17;1991, No.109, § 6, eff. June 28, 1991; 1993, No. 232 (Adj. Sess.), § 16, eff. March 15, 1995; 1995, No. 190 (Adj. Sess.), § 1(a). HISTORY Amendments-1995 (Adj. Sess.). Subdivision (b)(5): Substituted "agency of commerce and community development" for "agency of development and community affairs". —1993 (Adj. Sess.). Inserted "or development review board" following "adjustment" in the first sentence of subset. (a), in subdiv. (b)(4) and in the introductory paragraph of subset. (c). —1991. Subdivision (b)(1): Inserted "or a municipality or solid waste management district empowered to condemn it or an interest in it" following "property". —1979 (Adj. Sess.). Subsections (b)(3) and (4): Inserted reference to bylaw of that municipality. —1977 (Adj. Sess.). Subsection (b)(6): Added. 120 1 121 CITY OF SOUTH BURLINGTON ZONING PERMIT APPLICATION Applicant: M t C-AE L PC IL Application No:,%) Address: 3 LO3 34u % P� Q D4 i V �-- Daytime Tel. No: ?,?5 31 D e) Property Location: 36:S JtA Q I PEIZ PropertyOwner: Address: �� Tax Parcel ID No. ~ ---?-:X+ e L VT- a S4a2 47 51 Parcel Size: Present use of property (describe): n S I'IGLL rAMIL I`ESIDeg,QCC— Present structure/�im.1 r vements on property (dZOki:FP- cribe). LEvec Jotu i ,�&v&L G2�.4r h'1 �ni wt,- c Rot -Ts t o << c, PPL� u� 5 Kn-S►Z-r4 t irr S cry rn As /4s Proposed use of property (describe): Proposed structures/improvements (including building dimensions): if) O w r p— F-V I, Attach sketch plan (see attached sketch plan instructions) or site plan. 4 Estimated cost of improvements: ZZ 100 0 Adjoining property owned by applicant/property owner: ProperbL access (public road ljxntage, public water frontage, approved right-of-way): Applicant/Owner Certification The undersigned property owner hereby consents to submission of this application and understands that if the application is approved, the zoning permit and any attached conditions will be binding on the property. ,-� Aj' I I _q -old Property Owner Signature Date The undersigned applicant hereby affirms that the information presented in this application is true, accurate and complete. Applicant Signature Date ADMINISTRATIVE OFFICER ACTION f' Date Received: Fee Received: S Identification of zoning district: 11_ Identification of proposed use:i� Proposed use type: Permitted Conditional Date of site plan approval/denial _ Approval Date Denial Date Date of subdivision approval/denial Approval Date Denial Date Date of conditional use approval/denial Approval Date Denial Date Date of appeal variance approvaUdenial: Approval Date Denial Date FINAL ADMINISTRATIyE OFFICER ACTION ZONE,,yCr PERMIT , APPROVED Date of Approval Administrative Officer's Signature This permit shall expire on DENIED , L Fee: Date Lf D4nial Reason for denial: ,� i ti _—,, i M k d 1 7(.`t l L t t UTIL ,— ' Y1 1-Y 06 V 1, Amin [rative Officer's Signature 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 15 days of the date of this decision. The notice of appeal must be accompanied by a filing fee of $85.00. FRANcis X. MURRAY Attorney and Counselor At Law Two Bedford Green, South Burlington, VT 05403 Office: 802-862-3174 Fax: 802-862-2937 December 7, 2000 TRANSMITTED BY TELEFAX: 846-4101 Mr. Raymond Belair Administrative Officer City of South Burlington 575 Dorset Street South Burlington, Vermont 05403 RE: 363 Juniper Drive, South Burlington Dear Ray: As you know, Michael Brace, my client, submitted an application to you November 9, 2000 for a permit to finish the lower level of his Quarry Ridge townhouse, retroactively. Because he was unaware he needed such a permit to complete the work unfinished by the developer, he submitted his application after the work was completed. He calculated the actual cost of the lower level improvements at $22,000, and provided a $110.00 check with his zoning permit application. On the same date, my client submitted an Application to the Development Review Board and a check for the $85 fee. Since receiving the Applications, you contacted my assistant by telephone and advised that you would deny my client's application for a zoning permit based on your former opinion that his finished basement is a separate dwelling unit that increases the number of units to five in the building that is approved for four units. My client maintains that your ruling in conjunction with the City's Counsel, that he has created two dwelling units, is inaccurate. Pursuant to the City's Zoning Regulations, Section 28.116, a dwelling unit is physically separated from any other rooms or dwelling units in the same structure. You inspected this townhouse in October and physically witnessed that my client has finished the lower level of his townhouse with a great room/entertainment center and that there is no physical separation between the three levels in this townhouse. Therefore, my client has not created a second dwelling unit in his townhouse, and he applied and paid for a zoning permit for the finished great room in the lower level. A decision to deny my client's zoning permit application would not be supported by substantial evidence in accord with the law and would be arbitrary, capricious and an abuse of your discretion. My client's basement is "connected" with the remainder of his unit and "is not physically separated" therefrom, and you know this as you have observed it first hand. If you deny my client's zoning permit application, please explain the basis for your decision. Please state whether Section 28.116 of the City's Zoning Regulations provides the legal standard for your Mr. Raymond Belair Administrative Officer Page 2 December 7, 2000 decision to deny my client's application. Please also advise whether you agree that this section of the Regulations requires you to have a factual basis to conclude that my client's basement is physically separated from his unit before you can deny my client's permit application. As well, please advise the factual basis for your determination that my client's basement is not connected, but is physically separated from the first and second floors of his unit. If you deny my client's application for a zoning permit for the finished lower level of his townhouse, please accept this letter as my client's appeal of your decision and immediately process it. Thank you. Very truly yours, Francis X. Murray, Esq. FXM:mm John Dinklage, Chair, Development Review Board FRANCIS X. MURRAY Attorney and Counselor At Law Two Bedford Green, South Burlington, VT 05403 Office: 802-862-3174 Fax: 802-862-2937 December 13, 2000 HAND DELIVERED Mr. Raymond Belair Administrative Officer City of South Burlington 575 Dorset Street South Burlington, Vermont 05403 RE: 363 Juniper Drive, South Burlington Dear Ray: I have received your December 8, 2000 denial of my client's Zoning Permit Application for the above listed property. Please accept this as reaffirmation of my client's notice of appeal. You will recall that my client filed his appeal of your determination and paid the $85 filing fee November 9, 2000. However, the City's Attorney, Amanda Lafferty, called my office yesterday and opined that my client is obligated to pay this appeal fee again. Ms. Lafferty also stated that my client may request consolidation of his appeals. My client maintains that his appeals are one and the same - appeal of your determination that he created two dwelling units at 363 Juniper Drive. Under protest, my client hereby submits his appeal, his request to consolidate, an $85 check, made payable to the City of South Burlington, and a copy of your December 8, 2000 Denial. As you know, in my December 7, 2000 correspondence, I repeated my plea that you explain the basis for your determination and denial and state whether Section 28.116 of the City's Zoning Regulations provides the legal standard for your decision to deny my client's application. In that correspondence, I also asked you to advise whether you agree that this section of the Regulations requires you to have a factual basis to conclude that my client's basement is physically separated from his unit before you can deny my client's permit application; and that you provide the factual basis for your determination that my client's basement is not connected, but is physically separated from the first and second floors of his unit. These are essentially the same requests that I have posed to you several times since July 2000, but I have never received a response. Please provide a complete and detailed written response in advance of the Development Review Board meeting regarding this appeal. Thank you. Very truly yours, <A,,0-� K,, " Francis X. Murray, Esq. FXM:mm Post -it' Fax Note 7671 Date � � pages To From Co./Dept. Co. Phone # Phone # Fax # Fax # c: John Dinklage, Chair, Development Review Board Applicant/Owner Certification The undersigned property owner hereby consents to submission of this application and understands that if the application is approved, the zoning permit and any attached conditions will be binding on the property. Zj, JI_q-oa Property Owner Signature Date Theundersigned applicant hereby affirms that the information presented in this application is true, accurate and complete. Applicant Signature Date ADMINISTRATIVE OFFICER ACTION Date Received: 1 y +a Fee Received: S I `� � r Identification I I1 t11. 4A I of zoning district: 1 4 Identification of proposed use: 11/I1 7 _10 Proposed use type: Permitted Conditional Date of site plan approval/denial Approval Date Denial Date Date of subdivision approvaUdenial Approval Date Denial Date Date of conditional use approvaUdenial Approval Date Denial Date Date of appeal variance approval denial: Approval Date Denial Date FINAL ADMINISTRATIVE OFFICER ACTION ZONING PERMIT � / � t�, ` APPROVED Date of Approval Administrative Officer's Signature This permit expire on Fee: DENIEDC.anDate Lf Denial Reason for denial: L � c:' � , " �i t _ ` !I'' L' •=�, ' ` �� Gin-' �./) �i%/�/t� �jc �i �!� Lc:/.� 1 ar s •C/b t 'f (_'{, tit � ,�E�L F A ministrative Officer's Signature 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 15 days of the date of this decision. The notice of appeal must be accompanied by a filing fee of S85.00. 12/0?1' 0�0 13:15 60r28622937 MLFRA LAW 1 :E PAGE 01 1 F%%Ncis X. MURRAY Attorney and Cou#s , r At J cara Two Be4ferd Green, .South Burlington, VT 05403 FJfce:802-802-31?4 Fax. 6 -iI6 -2937 December 7, 2,*:OO TRA,NSMiTTi[) 13V 7-r;t,EFAX: 846-4101 Mr. Raymond Belair Administrative Officer City of South Burlinuton 575 Dorset Street South Burlington Verniont 05403 R.�: 363 Juniper Drive. South Burlington Clear Rai' As you know, Michael Brace, my client, submitted an application to you November 9, 2000 for a permit to finish she lower level of his Quarry Ridge townhouse, retroactively. Because he was unatitiare he needed ,wtih a permit to complete the work unfinished by the developer, he subntted his application after th4 work -was completed. He calculated the actual cost of the lower level improvements at S22,1K)0, and provided a $110.00 check with his :coning permit application On the same dare. my client submitted an Application to the Development Revicw Board and a check for the $8S tee Since receiving thy: Applications, you contacted my assistant by telephone and advised that you would deny my chenfapplication for a zoning permit based on your former opirilon that his finished basement is a ;e;parate dwelling unit that increases the number of units to five in the building that is appro,.! A for four units. My client maintains that your ruling in conjunction with the City's Counsel, that he has created two dwelling units, is inaccurate. Pursuant to the City's .Zoning Regulations, Soc6on 28, 1116, a dwelling unit is physically separated from any other rooms or dwelling units in the same structure. You inspected this townhouse in October and physically witnessed that icy client has finished the lower level of his townhouse with a great roonVentcrtainment center and that there is no physical separation between the three levels in this townhouse Therefo rL my client has not created a second dwelling unit in his townhouse, and he applied and paid liar a ;-om;ng permit for the finished great room in the lower level, A decision tci deny my client's zoning permit application would not be supported by substantial evidence in accord witli the law and would be arbitrary, capricious and an abuse of your discretion, My client's basement is "connected" with the remainder of his unit and "is not physically separated' therefrom, and you know this as you have observed it first hand. 1f you deny my client's 7onin!? permit application, please explain the basis for your decision. Please state whether Sectior = S t l P of the City's Zoning Regulations provides the legal standard for your Post -it" Fax Ngte 7671 PFrom GrG' IPages� r_ n,1EA XV Phone # IPhone # 7• RYPAV LAW 3E PAGE @2 1216i/2410�1 13:15 �'Q180..29.+7 Mr. Raymond Belair Administrative Officer Page ? December 7, 200'1 decision to deny my client's application_ Please also advise whether you agree that this section of the Regulations requires you to have a factual basis to conclude that my client's basement is physically separated from his unit before you can deny my client's permit application. As well, please advise the 6ctttal basis for your determination that my client's basement is not connt-cted, but is physical]\ sepaimed from the first and second floors of his unit. If you deny my client's application for a zoning permit for the finished lower level of his townhouse, pieaw accept this letter as my client's appeal of your decision and inunediately prtacesw ;t. 'shank �,n., Very truly yours. Francis X. Murray, Esc;. FXNI: ntm c: 7u' r. Dinklkge. Chair, Development Review Hoard CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 December 5, 2000 Michael Brace 363 Juniper Drive South Burlington, VT 05403 Re: Appeal Dear Mr. Brace: Pursuant to 24 VSA§ 4467, enclosed please find a copy of a public notice on your appeal. If you have any questions, please feel free to contact me. Sincer t'y, �ayrn� J. Belair,' � administrative Officer RJB/mcp PUBLIC HEARING SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD The South Burlington Development Review Board will hold a public hearing at the South Bur- fingtor City Hall Confer- erce Room. 575 Dorset Street. South Burlington, Vermont on Tuesday, December 19, 2000 at 7:;30 P M. to consider the following: 11 Final plat application #SD-00-62 of the Schoolhouse, Inc. to amend a previously ap- proved planned residen- tial development consis- ting of 160 single family lots and 60 duplex units The amendment consists of converting a 15,200 square foot barn to a 60 student private school, Dorset Street. 2j Appeal #AO-00-12 of Mtichael Brace form the decision of the Adminsi- trative Officer to issue Notice of Violation #NV- 00-17 dated 7/19,100 rela- tive to property at 363 Juniper Drive. 31 Final plat application #SD-00-57 of Martin's Foods of South Burling- ton, Inc. to amend a pre- viously approved planned unit develop- ment consisting of a 100,324 square foot shopping center. The amendment consists of, 11 constructing an ac- cess drive to connect to the property to the south, and 21 revise the parking layout to accommodate the access drive, 935- 947 Shelburne Road. 4j Application #CU-00- 2 of Haun Welding Sup- ply, Inc. seeking condi- tional use approval from Section 26.05, Condi- tional Uses, and Section 26.65, Multiple Struc- tures and Uses on Lots, of the South Burlington Zoning Regulations. Re- quest is for permission to convert 3600 square feet of a 6.332 square foot building from ware- housing, storage, and distribution to wholesale use in conjunction with 2732 square feet of warehousing, storage. and distribution use, 5 Gregory Drive. John Dinklage, Chairman South Burlington Development Review Board December 2, 2000 City of South Burlington Application to Development Review Board Official Use //��.�� APPLICATION # L� '-(.V r—_l HEARING DATE FILING DATE � / p'� b FEE AMOUNT 0 ,6 ,dam Name of applicant(s) I' ` l G 1-+ Pr F_ L, gA C, E, �1 Address .J3 G- u IV 1 e- Pe I V L Telephone # / Y6 3 /0 � Represented by "r7Z A 1J c- e- Landowner Leon and description of property Adjacent property owner(s) & Address Type of application check one: (L.�4peal from decision of Administrator Officer (includes appeals from Notice of Violation) ( ) request for a conditional use ( ) request for a variance ( ) other I understand the presentation procedures required by State Law (Section 4468 of the Planning & Development Act). Also that hearings are held twice a month (second and fourth Mondays). That a legal advertisement must appear a minimum of fifteen (15) days prior to the hearing. I agree to pay a hearing fee which is to off -set the cost of hearing. Pro m of z1nt ordinance in question Reason for appeal LJ L -1 Z. Other documentation ►�-q oy Date rli:3/�7��iaZe��'� rLlli SOUTH BURLINGTON ZONING NOTICE Signature 2 In accordance with the South Burlington Zoning Regulations and Chapter 117, Title 24 V.S.A. the South Burlington Development Review Board will hold a public hearing at the South Burlington Municipal Offices, Conference Room, 575 Dorset Street, South Burlington, Vermont on Tuesday, , at 7:30 P.M. to consider the following: Application of seeking a from Section of the South Burlington Zoning Regulations. Request is for permission to 41 ( ATTACHMENT A ( CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 July 19, 2000 Michael Brace 363 Juniper Drive South Burlington, VT 50403 Re: Zoning Violation Dear Mr. Brace: Please be advised that based on information available to the City, you have commenced land development on your property at the above address without obtaining a permit from the City as required by Section 27.10 of its Zoning Bylaws and 24 VSA 4443(a)(1). Specifically, you have initiated the following activities on the above -described property: Converted your dwelling unit into two (2) dwelling units resulting in five (5) dwelling units in a building approved for four (4) dwelling units without approval from the Development Review Board and a zoning permit. You have seven (7) days from the date of this letter to discontinue this violation and take appropriate remedial action. Specifically, you must accomplish the following: Remove the illegally converted dwelling unit and return building #20 to its originally approved use as a four (4) unit multi -family dwelling. If you do not accomplish the actions directed in this letter within seven (7) days of the date of this letter, the City may pursue this matter in court. In such court proceeding, the City will be entitled to seek appropriate injunctive relief and fines of up to one hundred ($100.00) dollars per day for each day your violation continues beyond the seven (7) day period provided in this letter. Michael Brace Zoning Violation July 19, 2000 Page 2 If the violation described in this letter occurs again within twelve (12) months of the date of this letter, you will not be entitled to receive a further Notice of Violation from the City before the City pursues further enforcement proceedings. You may appeal this Notice of Violation to the Development Review Board by filing a written notice of appeal (see enclosed) and eighty five ($85) dollars within fifteen (15) days of the date of this letter with the Clerk of the Development Review B;;ard at the following address: 575 Dorset Street, South Burlington, Vermont 05403. Sincere. , Ray d J. Belair, Administrative Officer RJB/mcp 1 Encl cc: Amanda, S.E. Lafferty, City Attorney Certified letter #Z 395 693 820 ATTACHMENT B FRANCIS X. MURRAY Attorney and Counselor At Law Two Bedford Green, South Burlington, VT 05403 Office: 802-862-3174 Fax: 802-862-2937 July 25, 2000 TRANSMITTED BY FIRST CLASS MAIL AND TELEFAX: 846-4101 Mr. Raymond Belair Administrative Officer City of South Burlington 575 Dorset Street South Burlington, Vermont 05403 RE: Michael Brace 363 Juniper Drive, South Burlington Dear Ray: I represent Michael Brace. Mr. Brace just received your July 19, 2000 correspondence regarding his dwelling at 363 Juniper Drive, South Burlington. He did not realize that he needed a permit to finish the interior of the basement of his home. He will comply immediately with this requirement. Please advise the amount of the permit fee. He is finishing approximately 900 square feet with a bath (previously plumbed by the developer) and great roorTVentertainment area with wet bar and appliances. You concluded that Mr. Brace acted illegally, without a hearing or identification of evidence that you relied upon. You provided him an option to pay $85 to appeal your Notice of Violation to the Development Review Board. Mr. Brace does not agree with your conclusions. It is unconstitutional for the City to conclude a homeowner violated the law without notice or a hearing and then place the burden on the homeowner to pay a fee to demonstrate that they did not violate the law. Before I can advise Mr. Brace further, I need to know upon what information the City relied to establish that Mr. Brace converted his dwelling into two (2) units without approval from the Development Review Board and a zoning permit. I look forward to your prompt response. Very truly, yours, <---' , Francis X. Murray, Esq. FXM:mm c: Amanda S. E. Lafferty, Esq., City Attorney I ATTACHMENT C FRANCIS X. MURRAY Attorney and Counselor At Law Two Bedford Green, South Burlington, VT 05403 Office:802-862-3174 Fax: 802-862-2937 October 26, 2000 TRANSMITTED BY TELEFAX: 846-4101 Mr. Raymond Belair Administrative Officer City of South Burlington 575 Dorset Street South Burlington, Vermont 05403 RE: 363 Juniper Drive, South Burlington Dear Ray: As you know, I represent Michael Brace who owns the condominium located at 363 Juniper Drive, South Burlington. I understand that you called my office Wednesday afternoon, October 25, and left a message that, based on advice of the City Attorney, you have determined that this property contains a "second dwelling." I also understand that counsel advised you that the time to appeal this determination expired. Please provide me a written statement confirming these positions and, more importantly, the legal and factual basis fd'r. both. Finally, my client is patiently waiting for your response to my July 25, 2000 letter regarding your July 19, 2000 correspondence to Mr. Brace. Thank you for your prompt attention to these requests. Very truly yours, Francis X. Murray, Esq. N FXM:mm ( TTACHMENT D STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON. VERMONT 05402-1507 (802) 660-2555 (VOICF/TDD) STEVEN F STITZEL FAX (802) 660-2552 or 660-9119 JOSEPH S. McLEAN PATTI R. PAGE* E-MAIL (FIRM2555a FIRMSPF.COM) JIMOfHY M. EUSTACE ROBERT E. FLETCHER WRITER'S E-MAIL (AI.AFFERTY@FIRMSPF.COM) MIA KARVONIDES ('ALSO ADMITTED IN N.Y.) WRITER'S FAX (802) 660-2552 AMANDA S.E. LAFFERTY October 31, 2000 Mr. Francis X. Murray, Esq. Two Bedford Green South Burlington, VT 05403 Re: Notice of violation issued to Michael Brace Dear Mr. Murray: I am writing on behalf of the City of South Burlington with regard to the above -referenced matter. I have reviewed your letter, dated July 25, 2000, to Ray Belair, and it is unclear to me whether you intended that letter to be a notice of appeal. If so, I suggest that you submit to the City an application for a hearing before the Development Review Board, along with the appropriate fee. The Board will consider whether you have made a timely appeal and whether your client's actions have resulted in a violation of the Zoning Regulations. Please be aware that this letter in no way represents a determination as to the validity of any appeal filed by or on behalf of your client. In brief reply to your letter to Ray Belair, dated October 26, 2000, wherein you request further information as to the legal basis for the.City's position, I suggest that you review 24 V.S.A. §§4464-and 4472, as well as the definition of "dwelling unit" in the Zoning Regulations. Please call with any further questions. Thank you. Sincerely, Amanda S. E. Lafferty cc: Ray Belair sar,7��.Iit FRANcis X. MURRAY Attorney and Counselor AtLaw Two Bedford Green, South Burlington, VT 05403 Office: 802-862-3174 Fax: 802-862-2937 November 9, 2000 Mr. John Dinklage, Chair Development Review Board City of South Burlington City Hall South Burlington, VT 05403 Re: Appeal of Michael W. Brace Dear John: Please accept this letter and enclosures as part of my client's appeal of the City's administrative determination that my client's property contains a second dwelling. As I explain below, I filed notice of my client's appeal by letter to Ray Belair last July. My client has made every reasonable effort to resolve this matter without burdening the Development Review Board. My client has acknowledged that he finished his basement without a permit because he did not know that a permit was necessary. On July 19, 2000 the City's administration sent my client a letter that stated it had concluded "based on information available to the City, you have commenced land development ... without obtaining a permit... (and) converted your dwelling unit into two (2) dwelling units without approval ...."' (Attachment A). This determination was troubling because it was in part erroneous, based upon undisclosed information, and made without even the courtesy of any attempted communication with my client. The City's July 19, 2000 letter also told my client that it could appeal its conclusion. By letter dated July 25, 2000, I immediately informed the Administration that my client had not realized that he needed a permit to finish his basement (Attachment B). My letter also informed the Administration that my client would immediately comply with the zoning permit requirement, and asked the Administration to notify me of the amount of the permit filing fee. My letter further noticed the Administration that my client objected to and disagreed with its two dwelling unit determination, and explained that my client had finished about 800 square feet of his basement with a bath, entertainment area with a wet bar and appliances. My letter also strenuously objected to and appealed the Administration's two unit notice because it was erroneous, without basis, and failed to,provide any reasons for the determination. My letter further explained that the Administration's actions had denied my client due process, and registered my client's objection to the payment of an $85 appeal fee before the City complied with basic common courtesy and legal protections. Finally, my letter asked the City's administration to promptly provide my client with the information upon which it relied to conclude that he had converted his dwelling unit into two dwelling units. Mr. John Dinklage, Chair Page 2 November 9, 2000 As you know, the City's administrative decision must be supported by substantial evidence, be in accord with the law, and may not be arbitrary, capricious or an abuse of discretion. Fund For Animals v Babbitt, 89 F.3d 128, 132 (2nd Cir. 1996). As well, an administrative decision is arbitrary if it does not make sense to a reasonable person. In Re Town of Sherburne, 154 Vt. 596, 605 (1990). An administrative decision "must ... explain its reasons for finding as it does; if it does not give reasons, its decision (also) may appear arbitrary." Id. The City's administration failed to reply to my letter. During September, my assistant called the City's Administration to find out why it had ignored my July 25, 2000 letter regarding the amount of the permit fee and request for'56tual and legal reasons for its contention that my client had converted his unit into two dwellings. My assistant explained to Mr. Belair that my client's finished basement was connected with and not physically separated from the first and second floors of his unit. Mr. Belair responded that he had not yet seen my client's unit, but if he had an opportunity to see it, lie could agree that it was not two dwelling units. My assistant arranged a convenient tirne for Mr. Belair to inspect my client's unit. Mr. Belair inspected my client's unit for the first time Tuesday, October 17, 2000. During this inspection, Mr. Belair observed my client's basement had a bath and an entertainment area with appliances and cabinets that were connected with and not physically separated from the first and second levels of his unit. On the afternoon of October 25, 2000, Mr. Belair stated in a telephone message to my office that, based on the advice of the City Attorney, he determined my client's property contained a second dwelling unit, and further advised that my client's time to appeal this determination had expired. On October 26, 2000 I again wrote to the City's administration and requested the legal and factual reasons for these determinations (Attachment Q. By letter dated October 31, 2000, the City's attorney sent me a letter that did not explain the factual and legal basis for the City's decision (Attachment D). This letter simply referred me to two sections in the Vermont Planning and Development.Act that pertain to appeals of administrative decisions and the definition of "dwelling units" in the City's zoning regulations. There was no explanation of how my client's basement was a separate unit. I have given up hope of getting a reasonable response from the City's administration to my multiple requests for an explanation of the City's position that my client has two dwelling units. Section 28.116 of the City's Zoning Regulations defines a dwelling unit as "one or more rooms connected together ... and physically separated from any other rooms or dwelling units ... in the same structure ...." (emphasis added) My client's basement is connected with and not physically separated from the first and second levels of his unit and Mr. Belair observed this when my client facilitated his inspection on October 17, 2000. I have forwarded my client's zoning permit application and $110 filing fee to the City under separate cover. I have enclosed my client's "Application to the Development and Review Board" Mr. John Dinklage, Chair Page 3 November 9, 2000 and $85 fee. I hope that this matter will be resolved quickly. After you and the Board have reviewed the above statement of my client's case, and the attachments to this letter, would you order the administration to provide my client with a reasonable explanation of the facts and law it alleges is the basis of its decision that my client's unit was converted into two dwelling units. My client is entitled to this due process explanation under Vermont law and the United States Constitution, and this explanation is necessary so that he can effectively perfect his appeal. Specifically, as part of this explanation, does the administration contend that my client's basement is not connected with and physically separated from the first and second floors of his unit, and if so, what is the factual basis of this determination. As well, if the administration agrees that my client's basement is connected with and not physically separated from the first and second floors of his unit, what is the legal basis for its conclusion that he has converted his basement into a separate dwelling unit? In conclusion, the suggestion that my client has somehow waived his rights to have you intercede and protect his legal rights from the arbitrary determination of the administration is without any factual and legal basis as well. My client has hounded the administration to resolve this matter fairly, and has consistently objected to its failure to respond to requests for information and reasoning. He effectively noticed the City of his appeal of the Administration's July notice in my July 25, 2000 letter, and facilitated an inspection of his property. Furthermore, Mr. Belair's statements in September that he had not ever inspected my client's property, and his inspection could cause hire to agree that the unit had not been converted into two units demonstrated that he had agreed to reconsider his July determination. If you or any other member of the Board need any further information, please contact me. I look forward to seeing you so that this matter may be resolved without further appeals. Very truly yours, Francis X. Murray, Esq. FXM: mm Enclosure c: Raymond J. Belair, Administrative Officer ATTACHMENT A CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 July 19, 2000 Michael Brace 363 Juniper Drive South Burlington, VT 50403 Re: Zoning Violation Dear Mr. Brace: Please be advised that based on information available to the City, you have commenced land development on your property at the above address without obtaining a permit from the City as required by Section 27.10 of its Zoning Bylaws and 24 VSA 4443(a)(1). Specifically, you have initiated the following activities on the above -described property: Converted your dwelling unit into two (2) dwelling units resulting in five (5) dwelling units in a building approved for four (4) dwelling units without approval from the Development Review Board and a zoning permit. You have seven (7) days from the date of this letter to discontinue this violation and take appropriate remedial action. Specifically, you must accomplish the following: Remove the illegally converted dwelling unit and return building #20 to its originally approved use as a four (4) unit multi -family dwelling. If you do not accomplish the actions directed in this letter within seven (7) days of the date of this letter, the City may pursue this matter in court. In such court proceeding, the City will be entitled to seek appropriate injunctive relief and fines of up to one hundred ($100.00) dollars per day for each day your violation continues beyond the seven (7) day period provided in this letter. Michael Brace Zoning Violation July 19, 2000 Page 2 If the violation described in this letter occurs again within twelve (12) months of the date of this letter, you will not be entitled to receive a further Notice of Violation from the City before the City pursues further enforcement proceedings. You may appeal this Notice. of -Violation to the Development Review Board by filing a written notice of appeal (see enclosed) and eighty five ($85) dollars within fifteen (15) days of the date of this letter with the Clerk of the Development Review B.-and at the following address: 575 Dorset Street, South Burlington, Vermont 05403. Sincere , lay d J. Belair, Administrative Officer RJB/mcp 1 Encl cc: Amanda, S.E. Lafferty, City Attorney Certified letter mZ 395 693 820 I ATTACHMENT B FRANCIS X. MURRAY Attorney and Counselor At Law Two Bcdford Grccn, South Burlington, VT 05403 Office.. 802-862-3174 Fax: 802-862-2937 July 25, 2000 TRANSMITTED BY FIRST CLASS MAIL AND TELEFAX: 846-4101 Mr. Raymond Belair Administrative Officer City of South Burlington 575 Dorset Street South Burlington, Vermont 05403 RE: Michael Brace 363 Juniper Drive, South Burlington Dear Ray: I represent Michael Brace. Mr. Brace just received your July 19, 2000 correspondence regarding his dwelling at 363 Juniper Drive, South Burlington. He did not realize that he needed a permit to finish the interior of the basement of his home. He will comply immediately with this requirement. Please advise the amount of the permit fee. He is finishing approximately 900 square feet with a bath (previously plumbed by the developer) and great rooriventertainment area with wet bar and appliances. You concluded that Mr. Brace acted illegally, without a hearing or identification of evidence that you relied upon. You provided him an option to pay $85 to appeal your Notice of Violation to the Development Review Board. Mr. Brace does not agree with your conclusions. It is unconstitutional for the City to conclude a homeowner violated the law without notice or a hearing and then place the burden on the homeowner to pay a fee to demonstrate that they did not violate the law. Before I can advise Mr. Brace further, I need to know upon what information the City relied to establish that Mr. Brace converted his dwelling into two (2) units without approval from the Development Review Board and a zoning permit. I look forward to your prompt response. Very truly, yours, Francis X. Murray, Esq. FXM:mm c: Amanda S. E. Lafferty, Esq., City Attorney ATTACHMENT C FR.ANCIS X. MURRAY Attorney and Counselor At Law Two Bedford Green, South Burlington, VT 05403 Oyu: 802-862-3174 Fax: 802-862-2937 October 26, 2000 TRANSMITTED BY TELEFAX: 846-4101 Mr. Raymond Belair Administrative Officer City of South Burlington 575 Dorset Street .,4 .. South Burlington, Vermont 0.5403 RE: 363 Juniper Drive, South Burlington Dear Ray: As you know, I represent Michael Brace who owns the condominium located at 363 Juniper Drive, South Burlington. I understand that you called my office Wednesday afternoon, October 25, and left a message that, based on advice of the City Attorney, you have determined that this property contains a "second dwelling." I also understand that counsel advised you that the time to appeal this determination expired. Please provide me a written statement confirming these positions and, more importantly, the legal and factual basis fQ:r. both. Finally, my client is patiently waiting for your response to my July 25, 2000 letter regarding your July 19, 2000 correspondence to Mr. Brace. Thank you for your prompt attention to these requests. Very truly yours, Francis X. Murray, Esq. FXM:mm I _TTACHMENT M STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON. VERMONT 05402-1507 (802) 660-2555 (VOICEtTDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PAM R. PAGE* E-MAIL (FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY r@FIRMSPF.COM) ('ALSO ADMITTED IN N.Y.) WRITER'S FAX (802) 660-2552 October 31, 2000 Mr. Francis X. Murray, Esq. Two Bedford Green South Burlington, VT 05403 Re: Notice of violation issued to Michael Brace Dear Mr. Murray: JOSEPH S. McLEAN TIMOTHY M. EUSTACE MIA KARVONIDES AMANDA S.E. LAFFERTY I am writing on behalf of the City of South Burlington with regard to the above -referenced matter. I have reviewed your letter, dated July 25, 2000, to Ray Belair, and it is unclear to me whether you intended that letter to be a notice of appeal. If so, I suggest that you submit to the City an application for a hearing before the Development Review Board, along with the appropriate fee. The Board will consider whether you have made a timely appeal and whether your client's actions have resulted in a violation of the Zoning Regulations. Please be aware that this letter in no way represents a determination as to the validity of any appeal filed by or on behalf of your client. In brief reply to your letter to Ray Belair, dated October 26, 2000, wherein you request further information as to the legal basis for the City's position, I suggest that you review 24 V.S.A. §§4464•..-and 4472, as well as the definition of "dwelling unit" in the Zoning Regulations. Please call with any further questions. Thank you. Sincerely, Amanda S. E. Lafferty cc: Ray Belair Son738.1it