HomeMy WebLinkAboutAgenda 05_CU-18-12A_30 Myers Ct_Washbur
575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburl.com
TO: South Burlington Development Review Board
FROM: Marla Keene, Development Review Planner
SUBJECT: CU‐18‐12A 30 Myers Court
DATE: February 4, 2020 Development Review Board meeting
Paul Washburn has submitted remanded conditional use application #CU‐18‐12 to amend previously approved
conditional use permit #CU‐18‐02 for construction of a 14’ X 17’ detached accessory structure to be used as a
186 sq. ft. accessory residential unit. The amendment consists of reducing the rear setback to five (5) feet,
increasing the height to fifteen (15) feet, and increasing the size to 248 sq. ft., 30 Myers Court.
On April 17, 2019, the Development Review Board denied the application on the basis of non‐compliance with
LDR 14.10E(2).
LDR 14.10E(2) The character of the area affected, as defined by the purpose or purposes of the zoning district
within which the project is located, and specifically stated policies and standards of the municipal plan.
The Board’s decision on #CU‐18‐12 stated the following:
The stated purpose of the Residential 4 District, which is “to encourage residential use at moderate
densities that are compatible with existing neighborhoods and undeveloped land adjacent to those
neighborhoods.” The Board finds that the requested height of 15 feet measured from existing grade, or
17 to 18 feet above average pre‐construction grade, is not consistent with the planned character of the
area.
The Board’s 4/17/2019 decision is included in the packet for the Board.
The applicant appealed the Board’s decision to the Environmental Court. On November 22, 2019, the Court
remanded the matter back to the DRB and dismissed the appeal without prejudice. The applicant’s cover
letter, included in the packet for the Board, briefly describes that during the court proceedings the applicant
proposed an alternative approach to meeting the LDR. Staff’s understanding is that the matter was remanded
to allow the Development Review Board to make a determination on the compliance of the alternative
approach, because the approach is new information not previously presented to the Board.
Staff encourages members not familiar with the history of this project to review the decision from application
#CU‐18‐12. In summary, however, the applicant received approval for the original application, #CU‐18‐02, to
construct a 12’‐9” accessory residential unit. The unit was constructed 17’‐18’ above preconstruction grade.
The applicant submitted application #CU‐18‐12 to amend the original approval (#CU‐18‐02) to allow the unit to
be 15’ above preconstruction grade, the maximum allowable under LDR 3.07E(1). During the course of the
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hearing on #CU‐18‐12, the applicant requested the Board grant an adjustment of pre‐construction grade so
that the building would be effectively considered 15’ high, without requiring any modifications to the structure.
The Board denied that request, thus requiring a denial of the application based on the constructed height of
the building.
Height is defined in the LDR as follows:
The vertical distance of a building measured from the average preconstruction grade level at the base
of the building to the highest point of the roof if the roof is flat or mansard, or to the average level
between the eaves and the highest point of the roof if the roof is of any other type.
The applicant is now proposing to reconstruct the roofline by creating a gambrel roof and lowering the eaves,
thus resulting in a lower calculated height. The applicant is not proposing to lower the apex of the roof. The
applicant has prepared a schematic elevation drawing how they propose to reconstruct the roofline. The
applicant has noted on their schematic that the building would be 15‐feet to the midpoint of the roof measured
from preconstruction grade.
1. Staff considers that if this roof is neither flat nor mansard, the Applicant’s proposal meets the allowable
standards for accessory structure height and thus recommends the Board conceptually approve the
request, with certain modifications described below.
2. Because only one rendering showing one façade has been provided, Staff recommends the Board ask
the applicant to describe the entirety of the roof structure.
The applicant currently has a row of small windows that open into the loft space above, which will be affected
by the proposed roof configuration. LDR 3.07B(1) place the following restrictions on dormers for buildings that
have the maximum number of stories.
(a) Dormers on such story shall not exceed the height of the roof peak
(b) The total width of the dormers on any single side does not exceed thirty‐three percent (33%) of the
horizontal distance of the roof line along that side. Vertical extensions that exceed thirty‐three
percent (33%) of the horizontal width (i.e., step dormers) are permitted, but are limited to a
maximum height of five (5) feet above the average height of the principal roof structure and shall not
exceed fifty percent (50%) of the horizontal width of any side.
3. Staff recommends the Board ask the applicant how they plan to reconfigure the windows, and if they
plan to add dormers, require the applicant to demonstrate with a plan how the dormers will be
configured to meet this standard. Staff also considers the addition of dormers would affect compliance
with conditional use criteria 14.10E.
Alternatives discussed at previous hearings were to reduce the height of the building by lowering the apex of
the roof, thus reducing the height of the interior loft space, and reducing the height of the basement crawl
space by removing the building, reconstructing the slab, and replacing the building. The applicant is no longer
proposing either of these alternatives.
One issue identified in previous hearings is that the applicant has performed significant earthwork in the
vicinity of the unit, thus making it difficult to determine without soil exploration the elevation of
preconstruction grade. The applicant has not proposed a methodology for determining preconstruction grade,
which Staff considers critical to determining the approvability of the applicant’s proposal.
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4. If the Board considers the applicant’s proposed roof reconfiguration to be conceptually viable, Staff
recommends the Board require the applicant to retain a professional engineer to determine the average
preconstruction grade based on test pits or soil augers.
5. Staff further recommends the Board consider whether to require the determination of preconstruction
grade be made prior to closing the hearing or if the applicant may submit such evidence as part of the
zoning permit application for reconstruction of the roof.
The applicant has also proposed to add a row of 11 pyramidal arborvitae at the rear of the lot to provide
screening of ARU from the adjoining property.
6. Staff considers that if the Board determines screening to be a requirement of their approval, the Board
should require the applicant to update the plan to allow review of the proposed screening, including
proposed size at installation, spacing, and planting details.
Recommendation
Staff recommends the Board work with the applicant to address the issues identified herein.
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CITY OF SOUTH BURLINGTON
DEPARTMENT OF PLANNING AND ZONING
PAUL JAMES WASHBURN – 30 MYERS COURT
CONDITIONAL USE APPLICATION #CU‐18‐12
FINDINGS OF FACT AND DECISION
Conditional use application #CU‐18‐12 of Paul J. Washburn to amend a previously approved
conditional use permit for construction of a 14’ X 17’ detached accessory structure to be used as
a 186 sq. ft. accessory residential unit. The amendment consists of reducing the rear setback to
five (5) feet and increasing the height to fifteen (15) feet, 30 Myers Court.
The Development Review Board held a public hearing on November 20, 2018 and January 29
and March 19, 2019. The applicant represented himself.
Based on the plans and materials contained in the document file for this application, the Board
finds, concludes, and decides the following:
FINDINGS OF FACT
1. Paul Washburn, hereinafter referred to as the applicant, is seeking to amend a
conditional use approval for an accessory structure by reducing the rear setback to five
(5) feet and increasing the height to fifteen (15) feet, 30 Myers Court.
2. The owner of record of the subject property is Paul James Washburn.
3. The subject property is located in the Residential 4 Zoning District.
4. The application was received on November 2, 2018.
5. The plan set submitted consists of a four (4) page set of plans, page one (1) entitled “30
Myers Court Current State”, prepared by the applicant and received November 2, 2018.
6. Structures on the property currently include a single family home and a storage shed.
The current structures conform with the dimensional standards of the district.
7. The applicant has separately received approval for construction of an attached garage,
extending the existing driveway and paving a parking area for three additional spaces
behind the existing principal dwelling unit (#ZP‐18‐030). Construction of these
improvements has not yet been completed.
8. The applicant received approval for construction of a similar structure on March 21,
2018 (#CU‐18‐02). Staff visited the subject property during construction and
determined that the structure as built exceeded the setback and height approved by the
Board in the 2018 decision. This application seeks approval for the height and setback
as built. The project is subject to conditional use review under Section 3.10E.
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A. ZONING DISTRICT & DIMENSIONAL REQUIREMENTS:
R4 Zoning District Required Existing Proposed
Min. Lot Size 9,500 SF 9,761 SF 9,761 SF
Max. Building Coverage 20 % 8.6% 17.4%
Max. Overall Coverage 40 % 14.5% 36.1%
Min. Front Setback 20 ft. 35 ft. No change
Min. Side Setback, Principal
Structure
10 ft. 13 ft. No change
Min. Rear Setback, Principal
Structure
30 ft. > 30 ft. No change
Min. Setback, Accessory 5 ft. side & rear 5 ft. side & rear 18 ft. side, 5 ft.
rear
Max. Building Height,
Principal (pitched)
28 ft. 23 ft. No change
@ Max. Building Height,
Accessory
15 ft. N/A 17‐18 ft.
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√ Zoning Compliance
@ Non‐compliance
During the hearing, based on measurements taken by Catamount Consulting Engineers,
PLLC, an independent technical reviewer, and summarized in their memorandum of
December 4, 2018, it became known that the applicant’s representation of the actual
height of the building at 14’ 3” and their request for a maximum height of 15 feet was
incorrect and the structure as constructed is in fact between 17 and 18 feet above pre‐
construction grade, and 16’ 5 3/4” above existing grade. The applicant testified that they
located the foundation of the building at existing grade and place fill around the structure.
Based on the corrected dimensions as measured by Catamount Consulting Engineers, the
Applicant verbally amended their originally submitted request to the Board and
requested instead the Board grant approval for the structure to be 15 ft. high measured
from a point higher than the average pre‐construction grade as allowed under Section
3.12.
#CU‐18‐02 granted a rear yard setback of 7 ft. for the accessory residential unit. The
applicant has requested a 5 ft. rear yard setback in this application. The Board finds a 5
ft. rear yard setback acceptable.
3.12 Alteration of Existing Grade
A. Permit Required. The removal from land or the placing on land of fill, gravel, sand,
loam, topsoil, or other similar material in an amount equal to or greater than
twenty (20) cubic yards, except when incidental to or in connection with the
construction of a structure on the same lot, shall require the approval of the
Development Review Board. The Development Review Board may grant such
approval where such modification is requested in connection with the approval of a
site plan, planned unit development or subdivision plat. This section does not apply
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to the removal of earth products in connection with a resource extraction operation
(see Section 13.16, Earth Products.)
Section 3.12 allows an applicant to seek approval for alteration of existing grade in
connection with site plan approval, planned unit development or subdivision. Outside of
site plan, planned unit development or subdivision, the Board may grant approval for
alteration of existing grade as part of a miscellaneous permit. Since conditional use and
miscellaneous approval may be reviewed as part of the same application, the Board finds
the application is eligible for review under this standard.
B. Standards and Conditions for Approval.
(1) The Development Review Board shall review a request under this Section for
compliance with the standards contained in this sub‐Section 3.12(B). and
Section 3.07, Height of Structures of these regulations. An application under
Section 3.12(A) above shall include the submittal of a site plan, planned unit
development or subdivision plat application showing the area to be filled or
removed, and the existing grade and proposed grade created by removal or
addition of material.
(2) The Development Review Board, in granting approval may impose any
conditions it deems necessary, including, but not limited to, the following:
(a) Duration or phasing of the permit for any length of time.
(b) Submission of an acceptable plan for the rehabilitation of the site at the
conclusion of the operations, including grading, seeding and planting,
fencing, drainage, and other appropriate measures.
(c) Provision of a suitable bond or other security in accordance with Section 15.15
adequate to assure compliance with the provisions of these Regulations.
(d) Determination of what shall constitute pre‐construction grade under Section
3.07, Height of Structures.
The applicant testified that he raised the grade of the accessory structure in order to allow
sewer to flow by gravity from the accessory structure to the existing sewer in the primary
structure.
B. ACCESSORY RESIDENTIAL UNITS
One (1) accessory residential unit constructed within or attached to a primary single‐family
dwelling or within an existing, permitted accessory structure shall be a permitted single family
use, in accordance with the following criteria:
(1) Floor space of the accessory residential unit shall not exceed thirty percent (30%) of
the total habitable area of the single‐family dwelling unit.
The habitable area of the existing dwelling unit is 634 square feet. In the initial
conditional use approval for the project, the applicant represented that the first floor
habitable area of the accessory residential unit is 186 square feet. As part of the
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current application, the applicant testified that the structure has a loft in addition to
the first story, and that the loft takes up approximately 1/3 the footprint of the unit,
providing an additional approximately 62 square feet. “Habitable area” is not defined
in the LDRs, therefore Standard 2.01F applies:
Any word or phrase that is not defined in this section or elsewhere in these
regulations shall have its plain and commonly accepted meaning.
The Board concludes that if the applicant wishes to request approval to keep the loft
area, the applicant must provide plans showing that he will make at least 193 sq. ft.
of the approved attached garage habitable space that is directly connected with the
habitable area of the existing dwelling unit. This will result in the accessory dwelling
unit, at 248 sq. ft., being exactly 30% as large as the primary dwelling unit at 826 sq.
ft. The Board finds this solution acceptable.
(2) The principal dwelling shall be owner‐occupied.
The applicant testified this would be the case. The Board notes that this is an ongoing
requirement under the Land Development Regulations.
(3) The accessory dwelling unit shall be an efficiency or one‐bedroom unit.
The accessory dwelling unit is an efficiency. The Board finds this criterion met
(4) Adequate wastewater capacity is available to service the accessory unit, as
demonstrated by issuance of a Wastewater Allocation or on‐site wastewater permit
pursuant to the South Burlington Ordinance Regulating the use of Public and Private
Sanitary Sewerage and Stormwater Systems.
The applicant has already obtained final wastewater allocation for the unit as part of
their prior approval. The Board finds this criterion met.
(5) Two (2) additional off‐street parking spaces shall be provided on the same lot, either
in a garage or in a driveway, and not in any areas required to meet coverage
limitations, or any front yard area other than a driveway, required by these
Regulations.
The Board finds the two additional parking spaces approved as part of zoning permit
#ZP‐18‐030 meet this criterion.
(6) If occupancy of the unit is to be restricted in the deed of the single‐family home to a
disabled person, no additional off‐street parking is required.
This criterion is not applicable.
(7) A zoning permit shall be required for each accessory residential unit.
A zoning permit is required to enact any approvals granted by this Board.
C. CONDITIONAL USE CRITERIA
Pursuant to Section 3.10E of the South Burlington Land Development Regulations (Accessory
Structures and Uses), the proposed structure shall be reviewed as a conditional use and shall
meet the following standards of Section 14.10(E):
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14.10(E) General Review Standards. The Development Review Board shall review the proposed
conditional use for compliance with all applicable standards as contained in these regulations.
The proposed conditional use shall not result in an undue adverse effect on any of the following:
(1) The capacity of existing or planned community facilities.
This project will have no adverse effect upon community facilities. The Board finds this
criterion met.
(2) The character of the area affected, as defined by the purpose or purposes of the zoning
district within which the project is located, and specifically stated policies and standards
of the municipal plan.
The stated purpose of the Residential 4 District, which is “to encourage residential use
at moderate densities that are compatible with existing neighborhoods and undeveloped
land adjacent to those neighborhoods.” The Board finds that the requested height of 15
feet measured from existing grade, or 17 to 18 feet above average pre‐construction
grade, is not consistent with the planned character of the area.
(3) Traffic on roads and highways in the vicinity.
This project will have no adverse effect on traffic on roads and highways in the vicinity.
The Board finds this criterion met.
(4) Bylaws and ordinances then in effect.
The Board finds this criterion met.
(5) Utilization of renewable energy resources.
This project will not affect renewable energy resources. The Board finds this criterion met.
CONCLUSIONS OF LAW
1. 3.12B(1) requires the applicant to submit a plan showing the area to be filled or removed and
the existing grade and proposed grade created by removal or addition of material. 3.12B(2)
allows the Board to determine what shall constitute pre‐construction grade but does not
obligate the Board to grant an adjusted pre‐construction grade. The Board concludes the
applicants desire for gravity sewer does not overcome the impacts of the structure being 17
to 18 feet above pre‐construction grade. The Board concludes that the sewer could have
been constructed differently and therefore does not concur with the applicant’s request for
an adjusted pre‐construction grade. Therefore the Board does not concur with the applicant’s
request for the structure to be 15 ft. high measured from a point higher than the average pre‐
construction grade.
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DECISION
Motion by Matt Cota, seconded by John Wilking to approve Conditional Use application
#CU‐18‐12 of Paul Washburn
Mark Behr Yea Nay Abstain Not Present
Matt Cota Yea Nay Abstain Not Present
Frank Kochman Yea Nay Abstain Not Present
Bill Miller Yea Nay Abstain Not Present
Jennifer Smith Yea Nay Abstain Not Present
Brian Sullivan Yea Nay Abstain Not Present
John Wilking Yea Nay Abstain Not Present
Motion failed by a vote of 0 – 7 – 0. The application is denied.
Signed this ____ day of April, 2019, by
_____________________________________
Bill Miller, Chair
Please note: An appeal of this decision may be taken by filing, within 30 days of the date of this
decision, a notice of appeal and the required fee by certified mail to the Superior Court,
Environmental Division. See V.R.E.C.P. 5(b). A copy of the notice of appeal must also be mailed
to the City of South Burlington Planning and Zoning Department at 575 Dorset Street, South
Burlington, VT 05403. See V.R.E.C.P. 5(b) (4)(A). Please contact the Environmental Division at
802‐828‐1660 or http://vermontjudiciary.org/GTC/environmental/default.aspx for more
information on filing requirements, deadlines, fees and mailing address.
The applicant or permittee retains the obligation to identify, apply for, and obtain relevant
state permits for this project. Call 802.477.2241 to speak with the regional Permit Specialist.