Okay, welcome to the South Burlington Development Review Board for Tuesday, January 29th, 2019. On the agenda, the first item on the agenda, Directions on Emergency Evacuation Procedures from the conference room. If there is an emergency, we will exit through these two doors, or you can go out through the other door that everyone came in through. But we should all meet in the South parking lot, which is right behind us here, to make sure everyone is safe. Additions, deletions, or changes in the order of agenda items, we would like to, some of us would like to move number seven to number six, but that's probably not possible. Number three, comments and questions from the public not related to the agenda? Any comments or questions from the public not related to the agenda? Hearing none, announcements. Do you have any announcements? We have two openings on the Development Review Board, coming up in July, so if anyone's interested, have a fun, sketch plan application, SD-18-35 of CCOM Federal Union, Federal Credit Union, to construct a one-story, 3,500-square-foot financial institution with three drive-through lanes and 20 parking spaces on one acre, 1680 Shelburne Road, who is here for the applicant? My name's Jeff Olesky with Cadmount Consulting Engineers, it's a one-engineer project. And Joe Bollister with PW Campbell, who's the design builder for the credit union. Great, and because it's a sketch plan, I don't need to square you in, but I do have a statement about sketch plans. The sketch plan is a high-level review and discussion where an applicant receives feedback from the board on the major elements of a project before it is fully designed. During this meeting, the board may provide oral guidance to the applicant, which constitutes our determination that the application meets the purposes of the land development regulations. These comments are to help guide the applicant to a later application that meets the LDR requirements and contributes to the goals of a comprehensive plan. It is not a formal hearing and does not result in a binding decision. There will be an opportunity for public questions after the board completes their initial discussion of a project. Members of the public are welcome and encouraged to ask questions or provide feedback at this very early stage of an application. Please direct all questions and statements to the board chair, that's me. The board may choose to continue the meeting to a later date if there are questions that remain to be examined. The future date will be announced prior to concluding this item for the meeting. Upon conclusion of the sketch plan meeting, an applicant who wishes to move forward with their project will have to submit a complete application. The next level of review includes additional public notices and a formal hearing. More detailed description of the sketch plan review is available at the back of the room. So go ahead and describe the project, please. Conference of interest. I don't consider it a significant conflict, but my former firm that I sold last time managed the apartment building that is at the rear of this property and I know a lot of them, but I bring it up in case any... I have none. Other conflicts of interest? And do you have any concerns about? I do not. Thank you very much. Go ahead. So we just laid off with a quick overview of the project. Let's go out of the property. You can see what we're talking about here is the development amounts to a one-acre undeveloped property that was previously kind of set aside as part of a planned unit development project that was associated with the Bart Le Broek apartment project. That's the large building directly to the east. That was a little kink in it there. That was a 64-unit, I believe, residential apartment building with supporting infrastructure and parking area to the rear. As part of that project, we constructed a curb cut on Route 7, northbound, that provides access to the apartment building, but also will serve as the primary or the only access for this development. As you can see on that shared right-of-way, about halfway between Route 7 and the building, there's a split-off in the dead-end road that's currently... was constructed and truncated there with the intent of providing access to any future development. So it was set aside as a potential commercial development, and the owner has been evaluating opportunities, and ones come along here that we're going to present to you tonight. Right now, the existing lot is undeveloped lawn for lack of a better term. There's a few existing mature trees and some clumps of boulders out there that were excavated out as part of the apartment building project, but really not too much there as far as existing development or infrastructure. There is a few utility stub-ups, which we're going to take advantage of, and we can take a look at when we get to the preliminary proposed site plan, but everything would be served by municipal water sewer and look to tie into the existing shared right-of-way on the south side and sidewalk network. Perhaps if we could go to the proposed site plan, I'll give a quick overview of what we're proposing at this time. So this is kind of a... Make me go back to Lila, yes, please, before I get into the proposed development. Just kind of to contextualize the project as a whole. What you see here is an overall existing condition site plan that kind of provides what was originally, I think, maybe 20 acres or so, of the PUD that was developed. So we have the Bartlett-Brook apartment complex in the northeast corner, but there's also the Bartlett-Brook that bifurcates the property from east to west, as well as some undeveloped property on the south side, and where you see these green and red dots are obviously the one-acre lot that was set aside that we're looking to develop. The reason I just want to stop on this plan briefly was to discuss the existing vegetation on the property, and not to get too far ahead of ourselves, but one of the staff notes commented on the potential kind of re-evaluation of the site layout to accommodate some existing mature vegetation on the property. And at Mrs. Keene's request, we had highlighted the trees that we were looking to potentially retain on property as well as remove as part of the project. So what you see here is the red dots kind of representing the existing mature vegetation that we'd be looking to remove, and the green dots being the ones we're looking to retain. In addition to the trees on site, there also is some trees staggered within the right-of-way on Shelburne Road 2 that were planted and put in place as part of the Shelburne Road reconstruction project quite a few years back. I'll get into the potential retainage of those when we get to the proposed site plan, but I think the two primary ones that was an interest in salvaging are the two on the left, as those are, I think, anywhere from, let's say, 18 to 24-inch-large, two large trees. There's a deciduous on the southwest corner and a pine tree a little further up. And I think discussing the client between the staff counterview and looking at this, we have some thoughts on it. We'll get to in the proposed site plan. If there's any comments on the existing conditions or what's out there, we'd be happy to take those now before we get into the proposed plans. So what we're proposing is I think it's a 3500 square foot financial institution banking facility with a significant drive-through component to it, obviously. And so the proposed building, which is the darker shaded area you see on the plan there, would be essentially as close to the building front yard setback as we could get it without encroaching into that front yard setback while also trying to accommodate the drive-through component to the facility. One of our original design schemes had the drive-through kind of circling around the building. But after kind of discussing and reviewing the regulations and discussing with city staff, we've kind of come to this alternate layout where vehicles would enter, obviously, again, from the south side of the property via the shared right-of-way. Kind of been immediately provided two options, and there may be some signage there to direct clients, but there'd be a double-loaded standard traditional parking area to the left for walking clients and employees. And then the alternative would be to bear to the right and go to a essentially one-way looped counter-clockwise traffic pattern where we'd be having three drive-through options. I'm not sure what the breakdown is of ATM versus Teller. Do you know that, Joe? Because of the reverse flow, the drive-through, the driver side's on the opposite side now because it's a counter-clockwise flow. So there's going to be, the ATM is going to most likely be on the last lane because of the lane width due to the columns. The other ones would be pneumatic tubes. So there'd be, yeah, essentially the three lanes nearest the building would be for, again, two for Tellers and one for an ATM, and then the far lane would be for bypass vehicles that were in the queue but either didn't want to wait or emergency came up trying to provide that access. And then all the lanes would emerge into a single exit lane and then leave the site to the south again. The sidewalk component of this is two-fold. We obviously have one on the north side of the double-loaded parking area for clients going to use the facility and going in the southwest corner of the proposed building would be the primary main entrance. And then we also extend the sidewalk as is required now 10 feet wide down to the Shubin Road frontage. There is some, unfortunately we weren't able to provide a detailed grading plan in conjunction with the sketch plan. We weren't quite there yet, but we have developed that a little further since. And there is going to be a significant grade change between the building and Shubin Road. We're thinking someone in the neighborhood of five or six feet. So that sidewalk down will have several steps in it. We're thinking of a terrorist step in handrail configuration, but there certainly be a direct pedestrian connectivity to this sidewalk that's on the east side of Shubin Road. Again, from utility standpoint pretty straightforward. We have an existing sewer service stub right in the middle of the property on the east side of Shubin Road. Water, sewer, gas, electric are all then stubbed up and or are on the right side of Shubin Road. So we don't have to really do any work out in the right away. That would be too impactful. Maybe some minor impacts to the sidewalk, but certainly nothing out into the roadway. From a drainage standpoint this, when we permitted this site understanding not only the scale of the plan unit development, but also understanding that Barlow Brook is an impaired watershed. There was some kind of stringent storm water requirements that we were required to design to in conjunction with that, though we had kind of over designed the storm water treatment system to effectively treat and account for a build out of this lot. And so ultimately the plans that come before you with a preliminary and final will take advantage of the existing storm water infrastructure. Primarily the large infiltration base in UC directly south of the parking lot. All storm water runoff from the drive through parking area building will be directed into that facility. And it's been sized as such to meet the treatment standards of both the city and the state. Trying to think about what else. Unfortunately we're not really at a point to discuss a proposed landscaping plan, but I did want to highlight again and I apologize. I don't know if the existing trees that we're looking to remove are on a plan that was provided by the city that showed the overlay of the two, but for reference sake the large pine tree that was the upper red dot on the previous plan. Yeah, right? I was on top of it. Pretty much sits right where that hand is now at the pointer. So it would really be kind of impactful in the building footprint. And understanding there's also about five or six feet of fill that go in there to accommodate the grading scheme. So we're not too confident to really manage or maintain that tree in any reasonable fashion. Again without a full redesign or relocation. And I know there was some interest in keeping the building at the forefront of the property and making that the focal point. So and I think the client would also prefer to keep that situation as well. So I think we prefer to have that tree removed. The other large trees more or less right at the very end of the west side of the parking area. Maybe just a little further right Lila. Yeah, somewhere in there. Again it's as it's designed now and graded now it's probably nothing we can retain. If it's something the city is adamant about trying to retain. Again it's a large deciduous tree. I'm not sure that health is kind of hard to tell these things in the winter, obviously. But we could certainly evaluate that and see if we can look back at some past photos. The one Marla provided looked like it was relatively mature. There may be some opportunity to reconfigure that park a little bit. Maybe swing it in towards the building to try to accommodate that. We can certainly evaluate that as part of the design process. But the trees along the north property line outside of payment limits we are looking to retain. And then there certainly would be a focus I think kind of three fold with any opposed landscaping would be at the northwest, northwest corners trying to screen the parking area. And what amounts to kind of the utility corridor on the north side of the building. And then at the same time, I understand we've got a residential component to the east behind the lot. I think the Barlow Brook apartment complex did a good job of screening it from knowing there was probably going to be a commercial use there. There's a fence and there's an existing vegetative row. I think we'd be looking to supplement that in some form or fashion with landscaping on the east side or rear of the adjacent to the drive in lane, so to speak. I think that's the summary in a nutshell. I guess I'll turn it over to the board with any questions. Any more comments? No, he covered everything. We typically would have you step through the staff comments at this point. Sure, yeah. And should I just stick to the red comments then, I guess, as far as things that were highlighted to take note of. I think from a setback coverage dimensional standard, I think we're in full compliance. I didn't see it. I don't think staff noted anything. I did want to highlight it was a little bit of a something to show on the plans. It was two coverages provided for the proposed building. We were just attempting to show the coverage without the canopy and with the canopy, understand the canopy is in a full enclosure. If you include the canopy, that represents the 11.5% of building coverage on the lot. Again, certainly well below the threshold, but that was the discrepancy in the two numbers. There's a comment to kind of discuss the urban design overlay district. And it sounds like this may be the first project within that district being reviewed by the board in a formal fashion. Unfortunately, I don't know if we're prepared from a building design standpoint to really provide a whole lot of detail at this point now. We do have some renderings of the projects that CCOM has done, but I don't think it's anything that is representative of what we're going to propose, necessarily understanding the design standards that we've got to meet. But if there's any specific guidance to direction the boards would like to relay to the design team at this point, we're certainly happy to take comment. So just to summarize the standards in the urban design overlay district they're pertaining to, there has to be one, this is from the staff comments, there has to be one optimal entry facing the primary road, which serves architecturally as the principal entry. There must be a direct separate walkway to the primary road at least eight feet wide. First stories must have a minimum of 40% glazing across the width of the building facade. And just wanted to bring those up as things that we're going to have to look for and understood that you're not at that point. And as currently the schematics we have drawn up, we're going through design development with the client now, but that's not a problem. As far as the building height, the 40% glazing will be able to accommodate that. The entrance is today is a corner entrance on the building. So it does face the main road and also a way it maximizes the visibility from the road and also from the parking lot. The adjacent parking lot. So we don't have any issue with any of that. Next comment. Recommends discussing the capability or compatibility of the plan development patterns in the area, specifically as the PUD pertains to the building scale and height. Again, as far as, you know, location certainly designated as a commercial type of use. We had always to kind of designate this as a planned mixed use with the residential and the rear and the commercial on the front. As far as the building height is concerned, I don't think there's any concerns as far as being above the maximum. I think it was 35 feet and the proposed overall building would be nowhere near that. From what I've seen from some of CCOM's other designs or PWCAML's designs, the front vestibule is a taller kind of facade. Maybe something similar to what Newlifiddle Credit Union put in a few years back on Shelburne Road. So there's that type of additional height to the entrance. But I think that would be a welcome addition as far as the characteristics of the building and what the board is looking for. But the overall majority of the building height would probably be in the 20, 24 foot range. The height 20's is under 30 feet. So again, I don't know, without having any building profile elevations or renderings to show you, I don't know how much conversation you can have about it. Board comments, I mean I like more height. It's, you know, it creates more of an urban feel I believe. And so I like the idea of the foyer or whatever, you know, you're going to have it slightly taller. So other, but I'm also not an architect. So I don't really have any knowledge in that area. It's just a feeling. Mark, who is an architect on the phone? John, anybody else that have comments? I'd love to hear them. I think that, I mean, obviously we don't want it to be just readers of very low single-story building, but it is for the area and for the P and D, you know, with the Bartlett-Babe requirements of, you know, I mean the right scale with some verticality to it without it getting out of scale for being like a small building for that site. You know, I think accentuating the front entry it's alluding to it with the way the layout is with the sort of the angular front entry and the sidewalk going down to the street. You know, because it's preliminary, it's sketch, but I think the building blocks are there to address the code and to come back to it with something that will fit. Yeah, also to keep in mind you do have an apartment building right behind it that wants to take advantage of views, so too much height is another issue. One additional comment on that too, we do have grade kind of working in our favor a little bit in the fact that what we're looking at theoretically right now of a proposed building for the banking facility, although it's five or six feet above the Shubin Road elevation, understand it's 30 feet from the front property line and 50 probably from the roadway, it's set far back, not where it's not a direct increase in height, but also the finished floor of even the basement level of the Barlow Brook apartment building is another six or seven feet above the finished floor of the bank so that the slope continues to work up. We're obviously cognizant of the idea, I'm not trying to screen any view of, and I don't think the banking facility be at a size or scale that would impact any of the distant views of the lake or radax from the existing apartment facility. Cool, with no other comments, let's move on to staff comment number three. Again we touched on this a little bit, I think you scrolled down a little further there, Delilah, so in theory ignore the tree in the direct front, I think the tree to the right and the tree to the left represent the two large trees that represent the existing vegetation, the two red dots that we were kind of looking at trying to salvage or not think we could. The one on the left is the pine tree and again understanding the scale of that tree and its location relative to the building and understanding there's not a whole lot of opportunity to push the building back even if we wanted to and I don't think that's the interest of the board or the city regulations with the intent being to make the building the prominent feature and the entrance and also understanding that the finished grade will be again probably four or five feet above the trunk of that tree, the base of it right now, we don't effectively see any way of retaining that. Again the clump to the right is I think one that's up for a little bit more debate and I think we still believe the scale of that is and the grading needs to occur there to make sure we get the proper drainage to the infiltration basin, it may still be difficult to accommodate and the preference I think would still be to remove it but if there's a strong interest on the board to find a way to accommodate that in lieu of understanding there'd be additional landscaping and significant landscaping in that corner that ties in well I think with the landscaping that's been put in relative to the Bartlett-Brook apartment complex you know we prefer to remove that as well but happy to discuss it further with the board if there's an additional point before the board gets into discussion of it, this project has not had a previous site plan approval so none of these trees are required to be retained. If I could add one point about the pine just from my past experience of a similar situation, pine's being such a shallow flat root system if we were to put any kind of retaining wall around it it would most likely crush the root system and kill it anyway which is exactly what happened on a project where the board wanted us to save the pine and killed it within a couple years. It was my understanding that if you're looking from root 7 to the east that the pine tree which probably can't stay would kind of be screening the building or part of the building. Is it correct to say that the deciduous tree would be more screening the parking lot? I guess two answers to that. One would be if that tree were to stay the parking lot would need to be reconfigured a little bit but I think in general that would be the concept. The problem a little bit of a problem with this site is that because we need to get all the drainage into the infiltration basin and there was only so far that we could give the size of the infiltration basin, we could only set it so low and bring it so close to the chub and row so it's not an ideal height. Ideally it would be another 20, 30 feet down the slope and it would be 4 or 5 feet deeper and we'd be able to easily get the drainage from this new development in there and again I apologize for not having a grading plan to present right now but with all that being said in order to effectively get the runoff from all the parking areas into this infiltration basin, this site itself, I understand there's also ADA and access requirements and the building could only be set so low and to accommodate the building and the parking at that certain elevation to drain it there it creates a significant grade change between the building, the parking area and then ultimately Shelbourne Road and these trees because if they were closer to Shelbourne Road it probably wouldn't be a problem because they'd be set far enough where the grading would be a problem but they're set so far back off the property line that we have really no way of grading down to them but without impacting the site layout so if those trees were to stay it probably would be some type of retainage necessary around them to get back up to the parking lot to a grade where we could still drain it and then just again not having evaluated it fully as far as the branches, whether they could be trimmed or how the trees would look if they look awkward or not awkward depending on how they had to be managed to accommodate the layout you know I don't really know but to answer your question was would they be screening that parking lot I think that they would be in line with it from certain viewpoints of Shelbourne Road yes and to be clear I was just talking about the deciduous tree on the right now yes yes yeah what is the deciduous trees it looks like an elder or a boxwood or something yeah and it should be told there's actually like there's two I think two major trunks there and maybe even one or two smaller trunks almost like a clump but the I honestly can't speak to the species I mean I just looked at it closer on Google and it appears to be a very soft wood and it appears to me that it's an elder or boxwood which tend to blow over in the wind it's not going to live through your construction either so it's not all growth it's not like it's 40 40 foot tree so I'm not a fan of you know reconfiguring the site you've got enough elevation issues drainage issues so I personally am not really a going to torque the design to make sure you keep it so I'm fine with the trees comments on the board I agree Bill yeah that's fine yeah right landscaping plan would be important your client always brings us a nice landscaping plan so I have no problem thank you good yeah okay I think that is it for staff comments so we will see you at preliminary final plan public comments hearing none we will see you at final or preliminary plan anything about traffic or septic or anything else well we talked a lot about a trash tree which should be cut out anyway because it's junk I mean just if you could Mr. Hammond identify yourself thank you very much project opposed to the method in which this panel is conducting business thank you very much see you at preliminary final thank you thank you for your time everyone thank you next on the agenda continued master plan application mp 1801 and preliminary plan application sd18-29 of Dorset metals associates for a continued for a planned unit development on two lots developed with one single family dwelling the planned unit development is to consist of 103 single family homes 26 dwelling units and two family homes 20 dwelling units and multi-family homes one existing family home conservation of 15.8 acres on site and conservation of approximately 55 acres off site through the purchase of 66.4 transfer development rights at 1505 Dorset street who is here for the applicant a peter con with Dorset meadows mike busher with T.J. Boyle associates Paul O'leary O'leary Burke civil associates Brian Currier O'leary Burke so we have several items for conversation you have responded to almost all of them let's see is robert rushford here yes robert rushford is here so I think one of the most important things for us to consider is mr rushford's response to the to mr sess request that we consider a large part of the development to be non-buildable off limits to development so I would like to hear Mr. Rushford walk us through just very briefly if you could please your memo and explain why you think the letter from mr. Seth is not applicable thank you so the provision that was discussed from Grebel and Shay for the applicant the prior hand out from the prior hearing was focused on a provision from the comprehensive plan which pointed to map 7 of the comprehensive plan and took a quote from the comprehensive plan about restricting development for areas shown on map 7 and we take issue with that for a number of reasons the first is that when we consider zoning laws they're taking away or they're in derogation of common law property rights and so they are strictly construed in favor of the applicant meaning that any ambiguity is construed in favor of the applicant and so there are two important cases one of which you're familiar with is the jam golf course case and the malgano case which describe what do we do when we have a comprehensive plan provision as it relates to zoning and keep in mind what a comprehensive plan is it's a policy document it's a planning document that's worked on by the planning commission and it has may have many goals and suggestions for the community as it works towards adopting a zoning ordinance but the malgano case makes it clear that a municipality does not have to adopt everything that's in a comprehensive plan and so what is actually in the zoning ordinance is what is the legal regulation and that partial adoption of the comprehensive plan is fairly common and so that's the first order of business here is that the quote from the comprehensive plan that was cited is not in the LDR's and so that did not become the ordinance or the law and that I would ask the board to be careful not to take the general master plan requirement to have a project be consistent with the comprehensive plan and turn that into giving every word in the comprehensive plan the effect of being an ordinance because it's not it's intended to be consistent with the comprehensive plan to the extent incorporated into the LDR's the next thing is that as we look at the LDR's themselves they were the adoption of that plan in map seven which is to say in fact the objective 60 from the comprehensive plan says that we want to encourage the preservation development space in these areas except those areas that have been designated for development and in the LDR's as we know there are in the southeast quadrant there are designated receiving zones and designated sending zones and our position is that the LDR's adopt this conservation plan from the comprehensive plan by specifically depicting where areas will be conserved in the descending areas and areas that will be developed which are the receiving areas and the next piece in this is the jam golf course case where the Supreme Court and in that case keep in mind the provision that the jam golf course case was dealing with was actually incorporated into the LDR's that's not the case here but even with it incorporated into the LDR's Supreme Court struck it down because one of the reasons is they noted this tension or conflict between the TDR sending area receiving area provisions in the LDR's and the blanket statements in the comprehensive plan to preserve open spaces and they said you can't reconcile those two it's ambiguous and therefore they said it could not be enforced to restrict so that's the background on the law piece the the next piece and I'd like to have our engineers speak more to this but essentially when we look at map 7 we believe that it's really a mapping tool to identify resource areas that are of importance and that it strictly has disclaimers on it saying that it is not to be relied on and that a field verification is really what needs to happen and that when this area was field verified by our engineers and with the consultation of the agency natural resources the areas that are worthy of protection and are where there is a legitimate state interest were designated and were protected and as are shown on the plans and our final point would be if when we talk about the Constitution there are areas of legitimate state interest where the state and municipality can say this is a type of area that should be protected and there's been cases that have tested the limits of what are these legitimate state interests and wetlands is a great example wetlands are legitimate state interests because of the environmental significance of those areas and so there is now a standard method for identifying wetlands for delineating the wetlands and that those areas can be restricted for development but there has to be a legitimate state interest to restrict so you can't simply say we feel like it should be much bigger in area of protection if you can't point to resources on the ground that are worthy of protection you can't really go further to restrict and that's sort of our position here is that when these areas were delineated they were identified and shown on the plan so I'm happy to take questions or we can discuss the delineation process and specifically it seemed to me from a demo that the Supreme Court was discouraging a standard discretion on the part of town zoning boards to expand areas that are unavailable for development so board comments Mark Frank I'm going to have a lot to say and a lot to ask for first to anybody else on the board first we asked you to come with a comprehensive memo and you delivered it, thank you for that I agree, I mean this is sort of the historical way we've always reviewed these types of conditions where a comprehensive map outlines an area of sensitivity and then further engineering and clarification is done by pretty honored engineers of record to solidify it and narrow it down and actually identify the actual constraints on it and the memos and investigation and presentation build spirit to do that Go Frank. Okay I beg your indulgence everyone, first by the way 9.30 is our cut off time for the whole meeting. First let me say I appreciate the diligence that went into the response this is not a blow off, it was a serious piece of work and I respect that secondly we have at least in this proceeding something of a difference of view of the scope of what the Supreme Court has disallowed let me be clear because I think this I'd like the board to at least have the benefit of this view whether or not it agrees with it it is true that a mere statement in a comprehensive plan that says we think a lot of land should be preserved or this area ought to be preserved as desirable in other words anything stated as aspirational has no binding effect unless it's somehow incorporated into the LDR and then it has to be incorporated definitely enough so it's enforceable. In those broad terms we are in agreement here and just by way of preliminary and it's bothered me not just in this case but in others we have whenever you do a PUD you have an explicit provision of the PUD rules that's now the PUD rules are in the LDR let's be clear they are a part of the LDR what they say is in part the plan the PUD must be consistent with what the goals and objectives of the comprehensive plan. Now it might be a fine stroke but I know Mr. Rushford understands it the original case dealt out with plans did not actually arise out of municipal stuff it arose out of Act 250 I believe where criteria 9 and 10 talk about in very broad terms compliance with the regional and municipal plans and the court I can't remember the name of the case said way too broad and that's when it set up the basic rule distinguishing aspirational goals so to speak of a plan as distinct from a regulation and mandatory goals and what it said what that Act 250 case said I'm paraphrasing was if the comprehensive plan says you shall not or you shall or it's imperative or if it's a command that's what the statute means to incorporate here we have something very similar we have a regulation the LDR that says your plan must be consistent with the goals and objectives so it doesn't say you have to be consistent with the plan it says you have to be consistent with the goals and objectives there are certain things in the plan that are identified as goals and objectives that includes conserving conservation areas now compellingly and you rightly cited as the core of the matter here the plan says that if you're on map 7 I'm paraphrasing again but I think it's a fair paraphrase land shown on map 7 is off limits for development and it says it is off limits for development regardless of their setting or context it's such an unequivocal statement of intent that given the cross reference from the LDR I find it compelling so your entire what I want to get to I hope does Mr. Seff have a copy of your memo thank you now because with the court board's permission because I asked you to come in and argue and I don't want to step into Mr. Seff's shoes I'm going to tell you what bothered me and I hope you'll have a chance to speak the entire section even though it's well done of your memo that deals with supreme court construction of mandatory or aspirational I think is not questioned because I think the cross reference from the LDR and the unmistakable language about what happens if you're on map 7 surmounts that argument I could be wrong but that's what I think at least at this level for the purposes of my vote what I find more compelling and that I don't know the answer to I'm going to ask Mr. Seff to address is if map 7 is in fact a mistake then that has forced for me and I also would like to hear what he has to say so can you tell me what you mean by that actually maybe it's not a question for you in what way exactly is map 7 mistaken thank you can we talk about map 7 a little bit could you bring up map 7 please it's in map 7 is the primary conservation area I appreciate you attaching here it was kind of hard to see well you're doing that I want to say one more thing I'm not insensible to the amount of time I'm taking up here I think it's I've thought about it a lot I think it's important for both sides of the equation if Mr. Seff is right or if the neighbors are right then killing the matter now saves everybody six figures if the neighbors are wrong and they're reasonably persuaded saves everybody six figures so I don't think because this is not a trivial matter I mean if Mr. Rushford is wrong his project is toast so it's a very very important issue with a whole lot of money and the interest of a lot of people at stake and that's my rationale for talking so long but at any event what's the error in map 7 alright so on the screen is map 7 exhibit that we prepared to go with Mr. Rushford's memo so it's actually the map 7 was created from the 2014 South Burlington open space report if you look on map 7 it's not reproduced on this one but there's a disclaimer actually on the bottom of the map and the disclaimer says that the maps for reference use only that the city doesn't guarantee the accuracy of the map so first of all we have a map that has a disclaimer on the bottom of it that says for reference use only right so the two items that we're concerned with is the wetland portion of the map and then the repair and connectivity portion of the map now if you read the 2014 open space report it tells you where the data came from the ANR GIS biofinder site so the ANR maintains a GIS site that we use on a regular basis the biofinder site is chalk full of information you can find out where the closest state park is you can find out where Indiana bad habitat is it shows the streams it shows wetlands it shows state highways it's chalk full of information and you can click the layers on and off and see what you get now when you look at the ANR's website so this is the data came from the website when you look at the website alright the website says that because of the accuracy issues at the local level site business and site specific data should be used and it states it should the map should only be used to gain a general understanding of components likely to be in play alright so that's the source of the data data came from the ANR ANR says hey it's for reference use only you've got a field verify all the data open space plan took the biofinder data put it on the open space plan the open space plan was adapted as map 7 for instance if you zoom in closer on the map to our project area and if we look at yeah that's good so if you look at the wetlands layer this is the Nolan farm road that goes across right here so this is our parcels down here the only wetland even shown on the map is a small dot right here what is the existing farm part now we know that there's extensive wetlands on the site so if you're going to rely on the map the map obviously isn't accurate it doesn't show the wetlands correctly so we will take Gilman Briggs wetland company to go out and delineate the wetlands if you look at our site plan you'll see this extensive wetlands along that stream so in this case we don't rely on the map because we know it's not right it's a reference map we actually hire someone to go out and look at it the other topic we're interested in is the repair and connectivity layer alright so where did that data come from what is the repair and connectivity layer again the data came from the ANR biofinder right if you go on to the biofinder website and you look it'll tell you that the repair and connectivity layer was derived from a model that identified areas of similar geology, landform, vegetation and other factors and the reason why it's such a jagged model is a jagged line is the model looked at a 10 meter grid and it said well this meets the requirements of a model so we're going to add it to the layer no field verification done I mean we're talking about statewide mapping so this is mapping for South Burlington the air and it mapped the whole state no field verification nobody went out and looked the model produced this layer and that's what shows up on the map so we deal with repairing areas on a regular basis with the ANR when we do different projects that involve the stream so in this case the river corridor and flood plain protection program is operated by the ANR Rebecca Pfeiffer is the person who runs that program that works this area for us so the ANR thinks of repairing areas in terms of river corridors not repair areas but a river corridor and if you look at the definition of a river corridor on the ANR website it describes the river corridor as an area of land surrounding a river or stream that provides for a meandering flood plain in the riparian functions necessary to restore and maintain the natural stability of the river stream alright so the river corridor includes the repairing area for small streams with a drainage area of less than two square miles this is about half a square mile the default riparian buffer is 50 feet from the top of bank and that's in Rebecca Pfeiffer's memo that we provided to the board in this case Rebecca Pfeiffer did a site visit with us July 17th 2018 we were out there and Rebecca noted that the wetland the average width of the wetland runs around 30 or 40 feet so when you add the wetland buffer to it the wetland buffer limit exceeds the width of the default riparian corridor for the stream so Rebecca in her memo concludes that provided that we get the necessary wetland permits and stream alteration permits we need for the culvert that we will comply with the ANR guidelines on river corridors and riparian buffers under active 50 criteria 1d and that memo is in your packet and so we would basically say that map 7 is a reference map the information on it is obviously not accurate the wetlands aren't even close the riparian buffers or the riparian connectivities really don't make that much sense you'll see other wetland areas where it's not a riparian connectivity area so therefore you rely just like the ANR data tells you to you don't rely on the map you rely on field verification that's what we've done we've had the ANR out there for both wetlands and both for the stream and riparian area and we believe that we're meeting all the state requirements to protecting those two functions on these two parcels what is it that prevents but you understand we're not here forcing state regulations I understand that we're here enforcing or purporting so I'll add to that that my office the actual we produced the maps for I'll confirm that you know as part of that process I think that's not relevant well if you let me continue I'll get to the point of what I'm saying is that part of the open space plan references a report done by Arrowwood environmental that specifically looks at riparian corridors in this area and that report specifically first out Burlington also references the 50 foot riparian buffer to either side atop of that what stops as a matter of law the planning commission that matter the city council the adopters of the LDR from establishing a broader protected area I think nothing that stops them but you need some you have to have some sort of method as how you establish it it can't just be a random line to say okay this is where we're going to put it there needs to be so that's your taking argument I'm going to ask Mr. Seff if I get a chance to respond to that I'm not going to argue it out with you because I'm not prepared based on a fuel verification we're not seeing an additional interest beyond the buffer and to sort of say won't we just feel like it but why is what is magic about 50 feet that's the state regulation both I'm saying what is magic about that why is there not a legitimate governmental interests beyond 50 feet 50 feet is kind of arbitrary I'm not saying there shouldn't be or there shouldn't be I'm just trying to find the principle that prevents the South Burlington Planning Commission from saying and the city council from saying as it says not in the plan but in the LDR now I'm looking at page 143 9.06 B3 of the LDR which is the regulation for the southeast quadrant existing natural resources on each site shall be protected paraphrase including conservation areas shown in the comprehensive plan I'm quoting from the LDR let me finish a second so my first question is is this area a conservation area shown in the comprehensive plan not accurately but well that's why I asked the question I'm kind of done but I'd like to hear from I really would and I think it's beneficial I really think it's beneficial to all parties if we can avoid what we're working up to here I want to reiterate it again I've been through and they're absurdly expensive if people can't come to agree if you litigate this out it's a killer expense on both sides of the equation and if it was one person who was obviously bluffing I'd say well it's not an issue I don't think they're bluffing or at least put it this way I think collectively they have the resources not to be bluffing and they're going to push this developer as far as he goes that's my read on the matter no offense to anybody intended so I think if we can aid both sides we're better I think it's worth the effort and for that reason I'd like to hear what Mr. Seth has to say in response and if it's not persuasive then the neighbors ought to go away and if it is persuasive then the developer ought to consider rethinking can we let Mr. Seth respond I appreciate your especially from a lawyer wanting to save everyone legal fees I don't think that's our role here I think our role is to look at the information we have before and deliberate I'm not here to barter a negotiation right now well this is not really a negotiation I actually want to be informed by what Mr. Seth has to say this is a very much illegal issue it's not a gut issue and I'd like to hear the other side of the issue from its advocate I see an issue I'm not persuaded one way or the other I don't mind breaking the normal chain of testimony to allow Mr. Seth to speak to the issues here because Mr. Seth has an additional memo that seems to make a very different argument from what was in the original memo that he passed out with the handout so my concern Frank is that because it's a different point being made that it's no longer a primary conservation area it seemed to me and I apologize for there's a shaking head it seems to me that it says it's a secondary conservation area that's what the memo seemed to say in addition the question is that Mr. Rushford may not be ready to respond to an assertion that it's in addition a secondary conservation issue and so we'd hear one and then we'd have to wait again for Mr. Rushford to come back and do the research and come back so that's my concern Frank and if that's the way it is then we should do that now. We should go ahead and do that in other words I don't mind. Jennifer, Matt, Mark. With Matt who said you're kind of feeling that we've gotten this information and we're kind of diverging away from the way our normal role is I think it's up to us to determine whether the applicant's information is satisfied with the board's needs for what we're doing and yes obviously we're going to have a lot of comment but that's something we just take as just as we've done in other projects that are controversial and have different sides and we take it under advisement and where it goes from there it's not our job to litigate it at this stage of the project Okay so there's two who say no Jennifer Yeah we'll be getting to hear from all sides anyway I really don't have a preference on the order Okay so we will continue with the board interaction with the applicant for now and wait to hear from Mr. Seff as part of public comment So thank you very much Mr. Rushford, I appreciate that and we can go back to staff comments Before we go to staff comments, could you bring up map 8? We'd like to just address that quickly, I believe that was in a memo that was sent to us So map 8 in the comprehensive plan is the secondary conservation area map That's fine On map 8, the secondary conservation area there is basically habitat blocks and the habitat blocks are shown in the dotted area so this is Nolan Farm Road This map actually shows the repairing corridor that goes along the brook and we're looking at these two parcels so there's a section of the habitat block right here that sticks out into a portion of our development and it was noted in the memo that we were developing a portion of the habitat block Now again, the habitat block came from and our biofinder materials and it actually came from a 2014 fishing and wildlife report entitled Vermont Habitat Blocks and Habitat Connectivity It was a GIS study that was done statewide and the map identified wooded parcels that were greater than 20 acres in size Any contiguous wooded area that was 20 acres was on the map Obviously the purpose of the study was to look at larger wooded blocks within the Green Mountain National Forest and the Northeast Kingdom The report talked a lot about bare habitat and connectivity and the habitat blocks were ranked from 1 to 10, 10 being the best and 1 being the lowest and the ranking had to do with the size of the block what the block contained were their wetlands within the block was the open water in the block, all those kind of things would raise the rankings of it was the block bisected by roads, you know, was the block continuous and there are a number of other factors that went into it The block in South Burlington that we're looking at was ranked 3 out of a possible 10 Now the mapping was done based on the 2004 OrthoPhoto so I really do need you to find one of those other documents if you can and bring it up Yes, that's correct Let's start with 4, why don't you just bring up 4? 4 is the habitat block over north of photo and you can see that in purple are all the blocks so essentially it's all the wooded pieces that are greater than 20 acres and so our parcel again falls So we've got Nolan Farm Road here that goes through and this is the block so this is that little piece that jets out this is the existing house, this is a little piece of the block that jets out and you can see we had shown a number of other blocks for instance South Village basically takes over two of the blocks the O'Brien Farm was built within one of the habitat blocks again it's just a mapping exercise, they looked at parcels greater than 20 acres, now if you go to the next exhibit you go to 5 and so the map was based on 2004 OrthoPhoto so this is the 2004 OrthoPhoto and of course the GIS guy is drawing this thing he's doing this statewide and so he follows the tree line down, you can see pretty closely and he comes out and then he kind of jogs around the existing house it's not real accurate but not too bad, he jogs around but in 2011 the previous property owner cleared a bunch of area and so now you see that audience please refrain from comment so they used the 2013 mapping or OrthoPhoto or mapped it today most likely that habitat block would come down and it would follow that tree line down and around and that whole portion of our parcel would not be part of the habitat block so it was mapped in 2014 using old data, using the 2004 data, when the study was done in 2014, likely the reason they didn't use 2013 OrthoPhoto has become available at different times in different parts of the state and they probably wanted to use the same set of OrthoPhoto's consistent statewide so that's likely why they used 2004 but if they had used the 2013 we think the mapping would have been completely different now secondary areas are allowed to be impacted under the comprehensive plan this block, if we assume the mapping is correct this block is around 220 acres give or take an acre or two and we'd be impacting 5 of the 220 so about 2.2% so our impact to that block is minor at best if the mapping was corrected obviously we think we'd have very little or no impact at all to the habitat block so just a little history on where the block information came from very good thank you very much so if we can go on to staff comments now so we've already dealt with question number one get back number two the applicant notes the provided coverages may change during building permit process depending on actual foot actual building footprints and lot layouts the coverage represented in the approval must represent the maximum coverage that can be constructed without master plan amendment staff considers the board should direct the applicant revise the coverages to reflect the maximum anticipated and that the table can be foot noted to indicate the values that are maximum so calculating coverage for a new development can be hard because you don't know exactly what kind of buildings, driveways are going to be put on so this was our kind of average and we did foot note it and say that the coverages may change depending upon what actually gets built so we've calculated that they want us to provide maximum values and we can definitely do that number three staff recommends the board provide clear guidance to the applicant of which if any of the committee's requests they are requiring them to address and whether those requests should be addressed prior to conclusion of the hearing or as part of the final plat application so this is going to be a request to the board I'm going to ask you to pay attention to the nine points that precede this comment and Mark we're going to ask the board to make a determination on which as staff says if any of these suggestions that we're going to require of the applicant and are we going to require them like now or a final plat so if we just step through those nine please number one that the applicant should prepare an overlay of the resources identified in the comprehensive plan the applicant has described to the committee that the resources the resource areas identified in the comprehensive plan are intended to be a guidance on where to perform site specific studies to evaluate resource areas staff recommends the board consider whether the applicant has met their obligations by preparing flood plane river corridor and wetland delineation as we stated we believe that these maps are guidance documents and that the boundaries should not be imposed accurately on our plan as they are overall guidance documents so we would not be in favor of providing those so sorry to jump in the middle a little bit I did just want to point out that these nine are paraphrasing the natural resources committee comments so would you like this committee here if I have paraphrased them inaccurately maybe the board would be willing to let them I just don't want to misconstrue anything accidentally so I read natural resources and I thought that you answered everything right but I will allow if there's a member the natural resources committee here I will allow as we go through these if you disagree with if you disagree with Marla's paraphrasing paraphrasing thank you if you disagree with Marla's paraphrasing of the natural resources committee suggestions please feel free so I can't disagree with the paraphrasing I'm chairman of the natural resources committee as the chairman just noted you have the document that we submitted in detail and I would say really the judgment goes back to that document the paraphrasing if you're happy with the paraphrasing fine but it's really the document that we submitted there would be the controlling thing I think Mr. Chairman can you state the name for the record my name is David A. Crawford I am chairman of the natural resources committee so go back to the document as you know you will as a board they've been paraphrased I have no strong feelings that there's anything wrong there I have a question based on the applicant's comment maybe it's my lack of comprehension I gather that the applicant has prepared floodplain river corridor and wetland delineations is that right but yet it doesn't want to be bound by those precise delineations that's actually my discussion with them is we have prepared those things so yeah we're good with number one because we believe we have prepared and you're willing to be bound precisely by those delineations correct yep all right that's the end of my exception to the wetland crossings where it's permitted except for the wetland crossing but other than that yes right I think the comment I was assuming they were talking about map seven it's the last line we have we have done that we have provided map seven already and directly through that other exhibit what they were saying they don't want to be bound by map seven we're not talking about maps that we have prepared you'll be bound by what we have provided yes and we have provided those last three items well if you're really bound by map seven it's irrelevant okay I got you thank you so why don't we take a quick look at those maps so the board can see them and this would be overlay maps well so that's what Mr. Crawford's memo says the overlay maps should be required as they assist in the evaluation of the developments effect on natural resources so if we take a quick look at those maps from the applicant so I'm confused are we talking about overlaying map seven and map eight over our project or what we're proposing as the river corridor and wetland boundary okay so you could just pull up the site plan would be fine and do I correctly understand this natural resources position if that's insufficient and what they should be bound by are the maps that's not the natural resources position that they should provide these maps that's my understanding they just want to see these maps and I'll direct approach to that the sorting out of the maps and what had been provided and what hasn't is much clearer tonight right now at this instant than it was when we were drafting that statement we're in the same spot you were what is the rule what are we supposed to be guided by our feeling was we should be guided by the comprehensive plan that says there's something out there and then specifically ask the developer to do the necessary required evaluation field studies in all these cases so these maps that the applicant is providing are the results of the field verification of map seven and map eight so are they natural so is there a place for showing natural resources so the wetlands have all been delineated they run north south along the eastern end of the property there's a finger there's a finger of the wetlands that come up near the multi-families another section of the wetlands that go underneath Thorcer Street there is an associated 50 foot buffer that is around all the wetlands that's been shown in red tonight they determined based on this size watershed that the appropriate river corridor boundary was 50 feet from the top of the bank as we discussed previously because the wetlands are so much wider than the concentrated flow in this area the wetland buffer is actually inclusive of the floodplain and of the river corridor boundary we're not impacting within the wetland area so that's the buffer that really holds for this project the only areas that we are proposing the impact is the stream crossing and there's a small, or there's a water line crossing by Nolan Farm and that's it. Yeah there's a new water main being proposed along Nolan Farm to loop the development. Board all clear on the maps that have been provided? Next. Next on the comments. Number two that the board required the applicant to include the natural resources committee in the Act 250 process. The city does party status in the Act 250 review. On the next page staff has noted that this might be over the outside of the DRB's authority and that it might be more of a city council issue so. Right. So I agree with that Mark. Everybody okay with that? It really is a city council issue. Very good. Okay next comment. Mr. Chairman. Yes please get near the microphone. We are close to the microphone. Real close. In our conversations with the developer the developer we talked about this and how it was going to be later in the game and we asked the developer if I'm misquoting him, he'll correct me I'm sure that he was willing to involve us when he was developing those Act 250 plans and that's what we were trying to speak to here. Okay. We were just trying to say yes we appreciate that that we could be involved. This is something that's going to be down the road it's not something here tonight but it's a natural resource issue. Okay and it's not our issue because we can't force them to do that so you or somebody should go make sure that the city council appoints you to be the city's representative in the Act 250 process or something like that because I'm sure the city engineer has to be involved, DPW and all those guys have to be involved as well. So it's not our issue. Yes but if the developer voluntarily does it then. True. True that's why I think it's a lot simpler. Very good. Next. That the applicant reconfigure the wetland crossing to allow passage for larger species. That was the wetland crossing that we were showing previously. Currently we're proposing a six foot pipe arch culvert is the recommendation of the rivers program and the Army Corps of Engineer. We're going to be required to obtain a stream alteration permit and the existing culverts on Nolan farm road is a 30 inch. On Dorset Street it's mapped by the state by 24 and the existing driveway that we're actually removing is a 42 inch culvert. So we're greatly increasing the passing. So Mr. Crawford if you'd step back up please. Another member of your committee Yes. Please identify yourself. Duncan Murdock. So six feet it's a big number to me Do you want it bigger than six feet? The issue as we understand it is that our sun animals that will go through underneath that six feet. Deer, larger animals will have to go up on the road and down. Six feet not a big enough for a deer. Big rack. It's submerged so it's about it's not a six foot it's submerged in the water so it allows aquatic species to pass through. Another shelf. Another side. This is a minimum requirement. What number would you like? We haven't arrived at number. We want to explore the possibility first and foremost that they are willing to establish a more than minimum size culvert to accommodate for species. Six feet is what Army Corps and the stream corridor folks requested that we put into allow for adequate aquatic passage and small animal passage. Obviously any deer has to go up over Nolan Farm Road has to go up over all the other roads. We are certainly not agreeable to size that culvert crossing to allow a large animal passing on it. So thank you very much. Moving on. May I ask a question Do deer have passage now without going across the road? Thank you. Next That the applicant grant a conservation easement over the SEQ NRP lands. So we feel that the area in the NRP is projected protected through city zoning. We're transferring the development rights from that NRP zone to the NRP zone and it's also protected through active 50 land use criteria. So we just feel that providing an additional conservation easement is redundant. Is there a reason why it's not redundant? It's my understanding that a conservation easement is in perpetuity and it has a stronger holds up better under law and any other kind of dominant future. Mr. Rushford, what's your address that? Certainly Whenever there's a transfer of development rights, we have to do a density reduction easement. Density reduction easement? Which is on a form that was established by the city attorney which actually conveys permanently the development rights off of the sending parcel onto the receiving parcel. So that is a recorded conveyance that is permanent. Okay. So it sounds as though this mechanism is permanent and that the conservation easement would be superfluous duplicative something. So that's our comment. We appreciate that you're going through these item by item and we're making recommendations to you and you're evaluating them and we certainly appreciate that role. Yep. Great. Next? Mr. Rushford allowed the committee the opportunity to review tree preservation plans. So we did provide the trees that we were looking to preserve. We'll actually talk about this more a little bit later in the staff notes about some opportunities but those plans have been submitted if the board wants. I think it's a great idea that the natural resources committee reviewed those plans. Right. Thanks. Next? Plant whips of native species trees at 10 foot spacing throughout the river corridor in wetland conservation area. So currently the wetland area is hayed all the way to the wetland boundary. We're establishing a 50 foot wetland buffer that is not there today. In order to re-vegetate this area faster with native species the conservation committee and the state wetlands program has said they're in favor of planning whip native species at 10 feet is the recommendation and we're okay with that. It's not on our current plans but it's something we can add for our final plan. That's great. Thank you. To no greater than 50 feet the 50 foot is a standard that the agency of natural resources dictates for class 2 wetland and less development is good and so on. Is there a scientific expert testimony kind of reason for going 200 feet? Reasoning behind other than the management plan and the application we've agreed created dog park on or nearby the property. So we are already providing a we are paying a lot of money and we're just not how strong is the board feel? I don't feel strongly at all. Prefer not. Okay Frank, Mark? I'm okay with the fact that there is quite a bit of amenities if during the course of further evaluations one gets added in by the rec fees or the impact fees and the applicant agrees to work with that's what I'd like to see mandated. Okay. I have a question will there be a a big common area over which the home owners as a co-activity will have control? Yes. Could you point that out to me? How big is that? It's in the ballpark of 15 acres. As far as it goes, there's an area that we'd like to retain of the current mode lawn area that's in the NRP so that's part of the NRP. There's also a portion of that that we would see as remaining open but having like a season mo job like through the land owners. So then there's probably more than two acres, two to four acres would be a home owner association. If they want to fence off in the area. I'm a cat guy. I'm going to figure out for people to have their animals and make a collective decision about what to do about it. There's one comment about the land management plan. So management is handled through pesticides which we against creating a plan to regularly spray pesticides on the site. The upper is going to have limited control over the site as far as they're going to develop it, it's going to be sold, it's going to go to the home owners association. Having a planting plan trying to foster the appropriate species would be our approach. An ongoing invasive management plan would be in our opinion overly onerous for us to continue and maintain. Natural Resources Committee, comments? That would be since you agreed to a management plan that is part of having a responsible land management plan is invasive control and pesticides that you speak of chemicals used for pests such as insects I think you mean herbicides but there are ways of controlling that don't require herbicides but if you could talk about non-toxic I don't think that's part of the developer's gig up to the home owners association I would think. And I have forgotten about management and conserving duties following the home owners and I wouldn't put that in there. Okay, Mark you good? Okay, so back to staff comments. Thank you very much everybody. Thanks very much Natural Resources Committee. Appreciate it. If you want to bring up the phasing plan for the next one. Staff considers this path may pose challenges during construction of phase 3 and recommends the board discuss the applicant with the applicant their attentions for this area It might be a little different because it's labeled cheap pee. I don't know if the letter's got in the front or the back Yeah, yeah Yeah, there you go second one No, I can see it. Yeah. So in our last hearing we were asked to designate the public areas or the amenity portions within the phasing plan. As it says in the staff report, it's basically done by how close they are to that phase. So phase one has this trail connection. It has the recreation path. It has this interior path. It has this path. Phase 2 goes out onto Dorset Street. It makes that 10 foot wide rec path to Dorset Street continues the recreation path has this interior trail and then what's in question here is this playground and trail has been included in phase 2 also We agree with staff that it might be premature for that phase. Phase 4 is the duplexes in this circle and it might be better move to phase 4. So we're fine moving it to phase 4 Okay, number 5 and 6 kind of go together Staff is concerned with the proposed configurations of units 88 through 91 directly abutting the SEQ NRP Staff recommends the board discuss whether the proximity to the SEQ NRP is appropriate and if there are no concerns at minimum consider requiring a permanent fence to be installed along the boundary to prevent encroachment into the NRP and requiring conditions protecting the NRP to be included in the homeowner association documents to be submitted as part of final plat and just keep going to 6 as they're related. To a lesser extent staff considers the configuration of lots 82 through 87 may also install encroachment into the NRP and recommends the board consider requiring a permanent fence to be installed along the boundary and to have the undeveloped status of these lands be included in the HOA documents to be submitted for final plat So if you pull up the site plan the next one down. One more The units in question here are these two duplexes and this row they're directly up against the NRP district and we are fine putting up a fence or some sort of hardscape to not allow creep as the units are. So here are the duplexes and this is the NRP zoning boundary so they are right up against the clearing limit and the zoning line keep in mind they're building envelopes so the units could potentially be smaller than what's shown there but we're fine by putting up a fence or whatever the board wants in that area. Could I ask Marla a question? Are the homeowners not going to have access to that area behind their units? Yeah that's a good point Frank. They are but they can't develop it so shouldn't we require any barrier to be gated or in some other way to allow ready access for the homeowner? I mean it's part of the amenity. I think that's part of the puzzle of this situation because those homes are so close to the NRP but we want people to passively recreate in that area you know should there be a physical offer to allow somebody a strip of tomato plants I'm not even saying that I'm just saying they ought to be able to get to it. We're not talking about a barrier though right? We're just talking about delineation right? Some sort of hardscape or a fence. Five feet away the steps off the back porch are five feet away from where thou shalt not touch is that really a good idea or should these people have a little bit more space behind their homes before they get to thou shalt not touch? So one thing I would say is those stairs were actually used on the ones on the other side of the road because we were specifically asked to give some sort of indication that those units would have some sort of a dual face so they addressed that public green space as well as addressed the road. I actually wouldn't see those stairs being on those units. Those are probably just decks off the back probably wouldn't have a lot of access. Take those away quite honestly it's nice to have a unit that's up close against the woods and some split rail fencing, some indicator species, a couple boulders to delineate that. We do have ten feet between the units and that space so there's lots of other examples in the city where you have a similar relationship between wetland boundaries or wetland buffer boundaries other items and those footprints are little illustrative so I think we could be we could take that into consideration when we're actually putting a unit onto that site is to orient it so you're not giving somebody a staircase that when they step off they're right onto the NRP district I also want them to be able to pass through into the NRP I mean could we have broken fence, 20 feet of fence and 3 feet of space. I think that would be the goal. I would also note that they're condos so that they don't own the land so the possibility for creep like if it was someone's backyard where you buy a single family house you expect to use your yard more than a condo so I think it's a... I think it's going to be important to have some sort of physical delineation whether it's just a bunch of boulders that can't be moved or some sort of split rail fence or something. I don't think it needs to be certainly not chain link or brick or anything like that to get to Frank's point. You do want people to enjoy the view out their back. I think the intent is not to mow into the NRP not to prevent access to it but just that they don't mow a little bit more every time and all of a sudden there's a lawn where there used to be woods. No barbed wire, no big beautiful concrete wall right. We'll get to staff at the top. Mark? Yeah, Mark. Anything? I like the idea that the splitting up of split rail fence but not having it be a complete barrier and I'm also not as worried about it along the condo project or the townhouse as the discussion is going. I'd like to see some openings in it just so it's a visual and physical barrier but not a solid wall fence. I'd like to point out the single family homes are backing up to this two to four acre open space that is mowed so that it's not an issue with those where you really aren't just talking about the condos. Very good. So that is the end of staff comments on the master plan application. We will go to Could I ask one more question? We went back to the immediately drawing you just had up. When you talk about the space behind the single family plans. Exactly. What is, how many, who participates in the ownership group? Of that open space? Yeah. The entire neighborhood. Not the entire development. What's the entire neighborhood? The entire doors and meadows. All doors and meadows. And that's why we have the two, if you actually get a landscape plan there is a buffer area to help screen these guys, provide privacy back and forth in between that open space but you know all our connectivity lines up to these two green corridors that accesses into that NRP and that what we're proposing as the maintained large field, informal field open space freezed by the rest of the developer. That buffer area will actually be closed off to the rest of the two people who are not the single family unit owners who back up on it. Is that right? What, the buffer right there? Yeah. It's a landscape buffer. It's not you know impenetrable but it's enough to provide a visual barrier. So as part of this agenda item, we'll move on to the preliminary plan application. So I don't see any reason not to dive into staff comments on SD 18-29, the preliminary plat. Number one, staff recommends the board discuss whether to close the hearing and make additional home types a requirement for final plat or to require the applicant to address this issue prior to closing the hearing. We would propose that we address this as part of the final plat. This comments in regards to at the previous hearing. We were asked to add a note to our design narrative stating that two homes of the same style, no more than two homes of the same style can be adjacent. Staff brought up that there were only one or two of our provided building elevations could be used in the smaller lots and they wanted to see a couple more examples of what could be possible through the design narratives and we'd like to provide those as part of final plat. Board, do you care, do you want to see them now? Do you want to see them final? Final's fine for me. I'd like to know what Mark thinks about that. I am, I actually am okay with them sort of preliminarily submitted now but I'd like to see more detail at final. Right now my discosance, I'm looking at my packet on my computer so I'm not sure what you guys are looking at on your screen right now. Just looking at the text. We're just looking at the text Mark. The elevation? No, we're just looking at the text where it says the staff recommendation. Staff recommends board discuss whether. Oh, I'm sorry. Oh yeah, so yeah, we're just looking at the text now. Oh no, I'm fine with it if I find something we've done at the final. Okay. The example that I saw, I like the directions going in but you know the number of home types definitely needs to meet the FECC guidelines and I guess. Very good. Final. I'm content if he's content on this. Very good. Okay, staff comment number two. Okay, staff recommends the board review that provided elevations to determine if they can find this criteria satisfied and this is in regards to the corner multifamily building. You asked us to provide an elevation showing entrances to both Trillium Street and Dorset Street and we provided that elevation. It's right here. If you want to go to the elevation. Yeah, let's go see the elevations. So this is so you have where it is. It's this corner right on Dorset. Yep. Yep. You wanted to see front and you know, so we have a porch now facing Trillium Street too. Yep. There we go. Thank you very much. So that's the front. Yeah, that's the side. Correct. We did both ends. I'm sorry. We did both ends. Both ends. Very helpful. Both ends have the front. So looking at a home Trillium or approaching southbound on Dorset you would see that same interview. Exactly. Right. Mark, you okay with that? Yeah. Okay. So if you're on Dorset Street and look immediately to your right, that's what you see, right? Well, when you're on Dorset Street going towards it, that's what you'll see. When you get to it and look right, you'll see the front, right? And then if you turn around and look back as you're driving. You'll see the back end. You'll see the back end. And that'll be the last time you look. Next. Okay. Number three, staff recommends the board consider whether to require the applicant to address the stormwater sections remaining comments prior to closing the hearing or as part of the final Platt application. We request that it be part of the final Platt application. The comments range from Culvert versus a footbridge relocating some abravity bushes away from a curb cut for maintenance details and minor revisions to some of the low flow orifices. We don't expect the footprints of the treatment facilities to change at all. So we'd like to. I'm fine with final. Yes. I'm fine with final. Very good. Thank you. Next comment. Frank, you okay, right? Okay. Thanks. Number four. Number four, staff recommends the board consider whether to grant the applicant's request to have revisions to the subdivision plans to show the restructuring easement to the west be part of their final Platt application. So this easement is shown on our master plan. It goes from the open space to the north. I don't know if you want to go to it. It'd be the last plan in the plan set as the master plan. So the first time the easement was incorrectly labeled on the subdivision plat. We just like to correct the labeling for master or for final plan application. That's all we need to do is add that easement to the plan. So you don't have a question about doing it just. We just like to do it for final plan. I'm okay with that final. Yeah, I'm okay with that. Very good. Number five. Staff supports the applicant's effort to retain the trees they have proposed to be retained but considers it is not realistic to require the applicant to maintain in perpetuity the one maple and nine pines on the single family home lots. Staff recommends the board consider a condition requiring these trees to be preserved but not require replacement should the trees reach the end of their natural lives. And that's totally fine with us. Next. Go ahead, Frank. I don't even think that that should be required to tell you the truth. Because again, we're talking about to extend the point made earlier. We're talking about burdens that fall on individual homeowners. Homeowners association most likely. This is on a single family lot. I just don't think we should reach out for that kind of control on a single family lot. So this is really in the control of the developer because this is asking them to preserve a tree. But eventually it won't go away. We don't require replacement. If you want to clarify that this is just while you're building the single family homes, that's fine. That's my intent. My intent is not to keep these, you know, to pass this on to the next. You'll write that language there would restrict a homeowner from ever cutting the tree down. So clarify it. And that should not happen. I agree with you. I think all the intent is for there. You just need to clarify the language. Can we do that? Number six. Staff considers the board has the ability to grant landscaping budget credit for existing trees to be retained and in court encourages the board to consider asking the applicant to take a closer look at whether some existing clusters of trees in the proposed open space between lot 60 to 66 and 67 to 63 could be preserved. If you want to go to the site plan, I can show you that area. And we are willing to relook at this area and maybe adjust some grading for the goal of preserving some of the more. So the area, and this is in an area that's controlled by the HOA. So it's not in anyone's backyard. It is in a open space. So it's this area right through here. All right. So that's an area entirely bounded by houses, right? Correct. But there's an internal green space that will be controlled by the community in between the backs. Right. And the issue of tree preservation again should be left, I think, entirely to the homeowners in that circumstance. And we shouldn't be sticking our fingers into it. I'm making essentially the same comment here as I was making about the single family lot. The only difference be that this is a collectivity of homeowners. It's their business. What happens within that enclosed green space, I think, and we shouldn't be overreaching. Now if we want to make sure they get to make the decision and not the developer, we can say the developer leaves the trees and everything, it shouldn't reach beyond that. So I think that's what staff was saying here was please leave the trees. Is that what staff was saying? They're asking us to re-look at it and see what we can save. Right. I don't think we took it as far as considering whether it would be to require perpetuity or as Frank is suggesting only that the developer retain them. And I'm saying it should be explicit that it doesn't reach beyond the development phase and is entirely in the discretion of the people who are most immediately affected. Just as a point of clarification, if we would then credit these as part of our landscape budget, that I would assume would be putting some sort of preservation requirement on it. But to simply do our best to save them, not count it as part of our landscape budget, wouldn't put any type of ongoing preservation. All clear. Very good. That's comment number seven. While appreciating that applicants concerned about, concerns about the building, staff considers the board may wish to consider a minimum translucent percentage for south facing sidewalls. Staff recommends the board discuss the applicant's request. This is in regards to the standard above requiring 35% translucent windows on the south facing side of the building. The applicant has proposed that this standard be used when the rear or the front of the house is facing south, not the side of the house. And it's due mostly to the proximity of the building envelopes that we're proposing. We're worried about shading and we'd rather see that standard only applied to the front and the back. Staff is requesting that we propose a standard to be used for the side walls when they do face south and we'd be comfortable with 20% translucent when the side wall faces south. And the shading issue is because you've got walls that are next to each other or you're just looking out at a wall. I mean this is, I'm presuming this is not a side of a house that you've got a grand vista, right? Right. You're looking at another house. Specifically those. Yeah. So 20% are you guys there? I'm fine. Mark? Yeah, I'm fine. Very good. Thank you. Next. Oh, sorry. Bill suggested a number and then everybody said I'm fine. Does that mean everybody's fine with? They suggested 20%. 20% for the side but you're 35% for front and back. Front and back of south, if facing south. So it's going to be different for every unit when we go in for a building permit. That's it. Board, more questions. Okay, so as we open it up to public comment, there is an appearance that I would like to avoid. I would like us all to help fight against the appearance that we have neighbors who live in expensive houses who don't want their views disrupted. And so, and the second appearance that I think is false because the neighbors are good people, kind, compassionate, caring people. And the second appearance that I would like us all to fight against is the appearance of neighbors in expensive homes who are opposed to affordable housing in their backyards. So you can go on the grand list. It's downloadable as a spreadsheet. You can take a look at the addresses of the people who are involved in the lawsuit. The average housing price is 550, between 500, 600,000. So I want us all to fight against what I'm sure is a false appearance that the neighbors don't want to simply move this development to somewhere else where people cannot afford a lawyer, like Mr. South, to fight against the development. And therefore there must be some scientific expert based professional expert based reasoning why this land is more important to conserve than other land near some other neighbors, which is what's going to happen because the 51% that's being conserved in the southeast quadrant if it isn't this land that's developed somewhere else in that 51%. The other thing I would like to ask neighbors as they come up and comment to, to combat what I'm sure again is a false appearance, is why you're in favor of affordable housing in your backyard, perhaps saying to the developers, gee if there was more affordable housing we'd be more in favor of the project, something like that. So I want us to all come together on what we agree, I think, because we're all kind, compassionate, caring people, on our statements in favor of affordable housing, our feelings in favor of affordable housing and the desire to preserve this particular property because it's better to preserve this property than some other property next to some other neighbors. So, we are ready for public comment. It looks like Mr. Seff is getting ready to comment. Okay, yep, I mean well so Mr. Seff and colleague can have, I'm sorry, we've got 20 minutes left, yeah. So Mr. Seff and colleague five minutes, okay. Yeah, just Mr. Chairman. Okay, what would you like? Good evening Mr. Chairman, we'd like at least as much time as the applicant had this evening. I've got multiple clients here who have different comments on different topics prepared to speak. I think the applicant went for roughly an hour and 40 minutes, we need at least that much time. So we're going to knock off at 9.30 so we'll stop, so but no, no, no. So to clarify, the board will continue the hearing as necessary until everyone has had a chance to make their comments. Okay, that's fine, but not two minutes of comments each, I mean they just went for an hour and 40 minutes. Well, so it's going to be two minutes each, you can have 15 minutes, you can have 15 of the 20 minutes and everyone else will have two minutes. This is not a judicial hearing where it's lawyer versus lawyer, it's city to applicant, public comment, it's in the presence of the public, it's not for the public. So those are the, that's what keeps us alive, that's what keeps us as volunteers on this development review board. Speaking of which we need to, there you go. And you're keeping track? I am. Okay. Mr. Daniel Seth from MSK Attorneys, I represent the 14 individuals who's including my January 24th letter. I want to say at the outset that Mr. Rushford's letter, which you gave him lots of time to go through, is dated I believe January 18th. That letter was not sent to me, which I find to be disappointing at best. And I submitted a letter on January 24th about the secondary conservation areas not knowing that Mr. Rushford's January 18th letter had been filed. I discovered it on the city website on Friday night, the 25th. And I, on Saturday emailed Mr. Rushford and I said what's the story here? And he apologized for not sending it to me. So that's pretty fresh in my mind. However, having said that, I did prepare a written response to it, which may save some time here. So with your permission, I'll hand it out. Permission granted for the audio. I'm just going to hand out another comment letter that we received over the weekend. It's not related to Mr. Seth's testimony, but I thought now was a good time. Thank you, sir. So the memo that I just handed out is basically a point-by-point refutation of Mr. Rushford's January 18th letter. And I don't want to use too much of my 15 minutes reading it to you because you can read it at your leisure. And since we're going to be continuing anyway, that way you can ask any questions that you have me at the next meeting, I suppose. But I will say that all of the arguments in Mr. Rushford's January 18th letter are baseless and that's laid out in this memo. I'll just go through it real quick so you have a sort of an overview or framework of what you'll see. The critical overarching point is that the Mr. Rushford's letter misses is that plan development regulations can incorporate municipal plans. And in fact, in the J.A.M. Golf case, and this is referenced on pages one and two, the Vermont Supreme Court stated explicitly that Vermont municipalities can mandate that development follow the city plan. That's in paragraph 16 of that case. That's exactly what the city of South Burlington did in multiple sections. Section 15.18A10 requires that plan unit developments be consistent with the goals and objectives of the plan. Section 9.06B3, which we've talked a lot about and has appeared in various submissions of mine, requires that existing natural resources on each site be protected including conservation areas shown in the comprehensive plan. And then section 12.01B says these regulations hereby implement the provisions of the city of South Burlington adopted comprehensive plan. And that's significant for reasons that will become apparent. Section 9.06B3 mandates that the DRB use the provisions of Article 12 relating to wetlands and stream buffers in making the finding that conservation areas shown in the comprehensive plan are protected. Section 12.01C4 of the regulations restricts new uses and encroachments in stream buffers. So what the city did, and by the way this was in direct response to the JAM golf case, in the JAM golf case the Vermont Supreme Court struck down a land development regulation that wasn't specific enough as to what natural resources were going to be protected. The way the city responded to that was to create maps seven and eight. So there would be no dispute and they say these are the areas and these are the types of conservation areas and natural resources that we want to protect and you can see them on the map. So it was to avoid any vagueness challenge which Mr. Rushford is now trying to make about this regulation. They made it specific. You can look on the map, you can see what's protected, it's either off limits to development completely, that's map seven, or there's very limited encroachment allowed in secondary areas on map eight. This development as we've seen encroaches on primary and secondary conservation areas. Mr. Chairman that was the point of my January 24th letter, it was in addition to the encroachment in the primary areas, there's an encroachment in the secondary area as well. Section 3A starting at page three explains that the TDR bylaw does not authorize development in protected conservation areas and any arguments to the contrary are baseless. This suggestion that because part of the Dorset Meadows site is a quote receiving district under the TDR bylaw means that there can be building in a protected conservation zone is to be polite is preposterous. I mean would the developer suggest that if there were a wetland in a receiving zone that they could build in the wetland, a protected wetland, of course not. It's the same thing with the conservation areas that are protected on map seven and eight. If you have a parcel in a receiving zone that has protected features on it, you can only develop around those protected features. You can't develop in them. So the whole argument that because it's a TDR receiving zone, it's therefore open to development as species. On page four address Mr. Rushford's suggestion that section 9.06B3 is unconstitutionally vague. First of all, this report doesn't have the authority or jurisdiction to ignore that section or the maps that are referenced by it. But anyway, the argument is baseless. 9.06B3 states that conservation area shown in the plan shall be protected. And the plan shows these protected conservation areas on map seven and eight. There's nothing vague about this scheme. In fact, the maps as I stated before were created to avoid the vagueness argument. In fact, if you look at the open space report on page 13, it states that in light of JMGolf it is now recommended that regulations clearly identify those resources to be protected e.g. through maps. So the recommendation was create a map of the resources to be protected. They did so in map seven and eight. The LDRs give those maps the force of law. You look on the map, you see what's protected, but that's where you can't build. There's nothing vague about this. Now, this is very interesting. You heard a lot of discussion from the developer about why there may be some problems with map seven and or eight. One of the things Mr. Rushford stated in his January 18th letter is that map seven of the comprehensive plan incorrectly identifies the riparian corridors as primary conservation area according to the developer, the riparian area should be classified as secondary conservation areas. This is what we lawyers would call a collateral attack. They can't come into the DRB and challenge a map that was created by the Planning Commission. If they have a problem with the map and obviously they have a problem with both of these maps, they've stated that they do they have recourse. They can go to the Planning Commission and say we think your map is wrong or maps are wrong and here's why and correct them in your next iteration of the comprehensive plan. Frank? I think that's a little unfair of their argument. What they're saying is the comprehensive plan itself references its source. In other words, the comprehensive, here's what I understand what they're saying, that map seven is really intended to be a function of the 2014, I forget what it was called. The open space report and it failed to be is in the nature, this is a little bit of an overstatement, of a clerical error, it failed to reflect the methodology that the open space report intended to impose and therefore for that reason can be disregarded. I'm sorry if I'm misstating your argument but it's something like that. I don't think there's not a failure. Everybody seems to be ignoring the disclaimer that's right on the map. I think that's really important to look at that. I get that. I don't care about the disclaimer. What I care about is whether if I'm trying to get away from an absolute, I reject the absolute that anything on the map has to be taken absolutely in face. Surely there could be some error so gross and so obvious that we could disregard it. Wouldn't you agree without going to the planning commission? I would respectfully disagree. Okay then you can continue with your argument. We're going to agree to disagree on that. We took that time off. You didn't get charged for that time. Okay. The point is the City Council through the LDRs decided to adopt map seven and eight and give them the force of law to say where you can't, it's off limits to development in the primary conservation areas on map seven which is a huge chunk of this proposed project. The portion of the project that is in the secondary conservation area is only subject to limited encroachment. I cite provisions in article 12 of the LDRs that list the types of limited encroachment that might be permissible in a secondary conservation area. Not in a primary. Primary is none. It certainly doesn't include for the types of limited encroachment in a secondary conservation area this type of residential density. It's limited agriculture, very limited encroachments. So what we're witnessing here in real time is an attempted collateral attack on the maps which are basically have the force of law by virtue of the LDRs. And with the utmost respect I do not believe that the DRB has the authority to disregard the maps. I mean I've been at so many meetings and I'm sure we could all think of meetings where neighbors were complaining about a particular regulation or rule and the guidance from the DRB to those neighbors was our hands are tied. If you don't like the rule you've got to get the reg change. You've got to go to the planning commission and start that process. If this developer does not like these maps they have recourse. They can go to the planning commission and try to get the maps changed. It's my understanding and I hope someone will correct me if I'm wrong. But I believe this landowner purchased this land since these maps were published. So they could have looked and seen before they bought the land if I'm right about that. They could have looked and seen that this land was off limits to development. They chose to purchase it anyway and they did so at their peril. Now even if the developer were correct this is out of Mr. Rushford's letter that the riparian corridor that shown on map 7 as a primary conservation area is really a secondary conservation area. We don't think that's correct but let's just assume momentarily that that is true and that they could convince the planning commission that that were true. In other words change it from a primary to a secondary so it's no longer off limits to development but only subject to very limited encroachment. It wouldn't matter. And this is explained in pages 5 and 6 of the memo that I handed out. What 9.06 B3 says is that conservation areas in the comprehensive plan must be protected. It doesn't distinguish between primary and secondary. So obviously the intent there was that both primary and secondary conservation areas need to be protected doesn't matter which they are. So even if you assume, and this is not the case for the purposes of the existing map 7, that what's shown on map 7 as a riparian connectivity area is actually just a secondary conservation area, the limited types of encroachment that are allowed in a secondary conservation area would not include anything like this at all. And that's discussed at the top of page 6. Finally this notion, and this is in point 4 on the memo at pages 6 and 7, this notion that if map 7 were to excuse me to be interpreted the way we suggest it should be interpreted which is literally that a literal interpretation of map 7 would constitute an impermissible taking of the developer's land. I've been practicing law for a long time. I view that as a thinly veiled threat against the city, that if this development isn't approved that the developer somehow could assume that there's some kind of impermissible taking going on. And I really hope that that's not the case, but couple points on that. One, the standard for whether there's an impermissible taking is whether the developer is deprived of an economically viable use of his land. In this case that is absolutely not the case. It's my understanding that this land has been a working hayfield and moreover not all of it falls in a protected conservation area. So Mr. Chairman you made a statement before we started about the perceived wealth of my clients and the neighbors. It's my understanding that this developer stated directly to one of my clients that they're hoping to make $18 million off this deal. So I take exception to the notion that this is wealthy people trying to deprive somebody of affordable housing or something like that. What this is about is a developer trying to destroy natural resources to make $18 million. And my clients are not NIMBYs. They're trying to protect the environment that the city council has said is protected. And they're standing up for that and they're spending money on it. And if that's playing the NIMBY card, well deal me in. I'd like Mr. Chalnik to speak. First time do I have left? Minut 25. I'm going to reserve the balance of my time. Actually I'll yield it to Mr. Chalnik. I'm Andrew Chalnik. I'm not an associate. I'm a resident. Mr. Chalnik is a client of mine. Obviously deferred to my attorney on the legal arguments, but Frank I want to address the substance of the question you had which I think is important in how to resolve this. What was the map intended to show? What was it? Correct. Now I'm going to say this with some humility because I'm not a professional engineer. But this is based upon information which you can find on Biofinder on the state website. So if you go to the open space plan, it defines this area of repairing connectivity as the surface water and repairing areas. And I take it we agree that that's what it says. It's from the open space plan. It's on page 17. That's what it defined as. When you go to Biofinder the state tool, what is that? What are surface water and repairing areas? I have a handout. This is from Biofinder. These are the surface water and repairing areas that are shown on doors and windows from 2016. This is the latest information. The state considers these areas the highest priority for conservation. This dark blue. And the state put out a document, a 2016 document which talks about why these areas are so important. It's not wetlands. This is surface water and repairing areas. And it says, and I'm reading from 2016 Biofinder Update Report published by ANR. It says that surface water and repairing areas includes river, stream, lakes and ponds and valley bottoms. It says these areas provide vital habitat for rich and slumbered species. It says the ecological integrity of river, streams, lakes and ponds is closely linked with the condition of the repairing areas and watersheds. Naturally vegetated repairing areas provide critical ecological functions. And goes on and talks about why the valley bottoms are so important. This is right from the state. There's nothing due to wetlands. And then it goes on to conclude it says these areas were mapped to high priority and highest priority. Dorset meadows sits on the highest priority area from the state map. And it goes on to conclude these areas of critical importance for water quality, flood attenuation, erosion prevention and wildlife movement. This is based on the very high value of this component in its contribution to wildlife diversity. This is nothing to do wetlands. Wetlands is a completely different layer. This is also from Biofinder. Wetlands is a little light blue layer within this layer. Let me ask a question. What do you say to their point that the map itself says these areas that we're demarcating can really be relied on without a field without field investigation? I'm not against it. Well, it doesn't say that. The map says it doesn't guarantee accuracy. The map speaks for itself. I don't know if it's a concept of accuracy around the protected areas. The town wants to protect. To me what that means is you can't rely on the streets and the houses and the GIS data that has a concept of accuracy. The map is a map. The town in its wisdom supported by the state data decided to protect this area. It's a really, really important area to protect. There's no concept of accuracy to that. This is the area the town set and it lines up with the state data. I don't know what that little bit of damage is, but it can't mean the town can't decide to protect this area. That's what the town said it wants to protect. Let's pick up a minute on their taking argument. I guess this is more directed to you. Could the town just take an unlimited area and say no building here we just want to protect it? I'll quote from Mr. Rushford's January 18th letter where he sets out the standard that he sees and I agree you don't meet that standard. What's that? They don't meet that standard. You don't have to argue that with me. He talks about legitimate state or municipal interest in the protection of sensitive ecological areas. He concedes on behalf of his client that if a municipality wants to protect sensitive ecological areas, that's not a taking. Mr. Chalmick just explained that it's exactly what the city did. So no, there's no taking. Here's, I guess, my point. If the map on its face says we can't guarantee the accuracy and there should be a field survey and they say we have a field survey then why should the field survey not control? Frank, how do you address that point? It's a matter of law. Why should the field survey not control what the limits of the affected areas? Let me just real quick and then chime in. So I think the answer to that, I believe the answer to that is found in the LDR. 9.06B3 says the areas shown in the comprehensive plan as conservation areas shall be protected. So then you look at the map and you find them and that's what's protected. The developer who doesn't like that doesn't get to say but we don't like the map DRB so you get to ignore it. Well that's not quite what they're saying. Don't you at least have an ambiguity if the map that is shown on its face says well we can't really guarantee the accuracy, you ought to have a field survey. The map says you can't guarantee the accuracy of the GIS data but in terms of field survey... I'm talking about ambiguity. In terms of field survey, the developer spoke a lot about wetlands that delineate the wetlands and indeed when you look at Bar-O-Find the ANR it says right in it, it says that site visits are needed to identify whether a wetland is present on a site and to determine the actual boundary of the wetland. But we're not talking about wetlands. If you look at the primary conservation map there's a separate layer for wetlands. This has nothing to do with wetlands, there's nothing to do with delineation of wetlands and when you go on Bar-O-Find for the area we're talking about it doesn't say that. Although partially a model, major portions of the valley bottom are based on soil mapping and wetland mapping by natural wetland inventory for which it has relatively high confidence in the accuracy. It doesn't say anything about having to do with site delineation. These are two different things. So your point is the mapping that is being recommended by the map only relates to wetlands but does not relate to the broader concept of the conservation area that the map is intended to protect before that the comprehensive plan is intended to protect. They're two different areas. And now I see if the chairman will permit me, that's an important enough point so if the developer wants to rebut it or has something to say about that I think they ought to be... Last comment for the evening on this issue, scroll. So the bottom of the plan doesn't specify wetlands. It says maps and GIS data, material made available by the city of South Burlington are for reference purposes only. The city does not guarantee accuracy. Users release the city from all liability related to the material and its use. The city shall not be liable for any direct incidental, consequential, or other damages. It says that the data was created by T.J. Boyle Associates, my company. I can clearly speak that if you go to the open space plans, it has a very similar disclaimer on the bottom. And if you go to the A&R biofinder data, it has another similar disclaimer on the bottom. We gave that the way you wanted to give it. We'll entertain a motion to continue to March 5th. Can I just say one more thing? We don't disagree that there are resources on the site. We do. And not only have we delineated the wetlands, but we've delineated the stream corridor, and the buffer, the riparian corridor is within the boundaries of the wetland buffer. That's the reality of it. Furthermore, there is a document available in South Burlington page 22 of the Arrowwood I forget the Arrowwood report for the QQ talks about streams and rivers. Again, they recommend 50 foot riparian buffer either side of the streams for a small stream. So we feel like we are meeting all these requirements. There is a riparian zone here. We're accommodating it. There's wetlands. We're accommodating it. If I could, Baffled Board, just to apologize to anyone that wanted to speak tonight and couldn't speak tonight. We have another agenda item coming up. We're volunteers. We have kids and spouses. But we are going to continue this meeting. There will be an opportunity for you to speak. There will be an opportunity for you to write. We will read what you write or what you say. We do care about what your thoughts are about this issue. Sure. Anything that you send tomorrow will be read and distributed to the board. Anything? But I'm going to make a motion to continue this hearing until March 5th. It's been moved and secondly continue to March 5th. All in favor say aye. Opposed? Abstain. Continue to March 5th. Thank you very much. Thanks to everyone in the audience. Next on the agenda continued conditional use application CU-18-12 of Paul J. Washburn to amend a previously approved conditional use permit for construction of a 14 by 17 detached accessory structure to be used as a 186 square foot accessory yes, vent unit. The amendment consists of reducing the rear setback to 5 feet and increase the height to 15 feet at 30 Myers Court. Who is here for the applicant? I think he might be out in the hall. I did see him. You know who you're looking for? Okay. Bill, can I suggest we take two minutes or let the room clear? Delilah is working on it. Delilah is showing her manhunt. Excellent. Perfect. Perfect. Thank you Delilah. Mark, you still with us? Mark, you still there? Okay. Paul Washburn. Thank you very much. And you have, so this is continued. So you've already sworn. Yep, previously yet. Yes. So we are good. And we've already discussed conflicts of interest and so on and so forth. So we understand that you have some ideas. Yes, we do. So basically in the interest of time I'll just kind of cut to the chase. There are four things we're looking for. One is an adjustment from the previous application of 12.75 feet to 15 feet. Another thing we're looking for is an adjustment of the grade from the current level or the pre-construction level to a grade that brings the building height to 15 feet which will be raised again from where it currently is based on the report about 14 inches. One of the things I think it was misunderstood by both the person who came out to measure and the staff was that we didn't consider the grade finalized as yet. We considered that still in process but when this all came up we curtailed grading in the interest of transparency. We didn't want to make it look like we were doing anything. So there's that. We'd asked that you approve the five foot setback versus the seven in the application based on the bump out of the utility box and then the last thing is it's come up a couple of times when we got the building permit for the tiny house. I also at the same time got a building permit for a garage. One of the things we'd ask is that based on the living space concern that the board allows that we dedicate at least 100 square foot of the garage space to living space to accommodate for the 30% issue of the loft space. So those are the four things I'm asking for. So picture of the garage is not included because it's not done yet. The foundation is in. I don't have one here but the foundation is complete. Our priority was to get the tiny house up first and then the garage was going to be a project for this year. So there's a photo of principal north elevation that looks like it has a little gray foundation coming off it. That's probably it. Yeah principal north elevation is there you go. No accessory north elevation. Go ahead principal north elevation that's what I'm looking for. Yeah you can see it in principal north elevation for sure. Yeah right there. You can see the wall that comes off the back and then there's cars actually parked on the foundation right now. The foundation is complete. The foundation is in. So that's where the garage will go. Right correct yeah. And then so this is this photo is kind of taken from the accessory structure. No this is taken from the road. The accessory structure you can actually see it picking out in the back. Peaking out in the back. So how close is the garage going to be to the accessory structure? It's about 10 feet. I don't know the exact number. Yeah so kind of close 10 feet. Pretty close. But keep in mind he has approval administratively for the garage. And the garage is also one of the other concerns that staff had brought up was the primary structure height. The garage application is for 19 feet which would be higher than the current structure which was a concern when the buildings were measured and its foundations are attached so the what is there will be considered part of the primary structure. So staff has written out our options. So it seems like and I don't have a staff member open. I'll open that right now. But the his proposal about the garage is sort of a new thing that we didn't talk about and that addresses that talks about the or speaks to the issue of the interior space and whether the upper area is habitable. Right. So if we make the upper area the loft of the accessory structure not inhabitable the 100 feet 100 square feet in the garage replaces it. Well if you make it habitable right you would define that we would have to lower the head space to four feet or less so that it would be considered not habitable. Right. To keep it as is we would propose that we add 100 square feet of living space in the garage so that we have the 30% requirement which is part of the effectively increasing the denominator of my house. Making my house's square footage larger sufficiently larger to allow for that 30 square feet. It's not going to be used as a garage. Well most of it will be used as a garage but that portion will not be yet. Right. It's a big it's 42 feet long the garage so cutting out 10 feet on one end which is going to be a workshop. Would it actually be heated I think we'd turn it into like a third bedroom for the primary house. That's sort of my plan I mean until we decide we're going to go that route I haven't really decided exactly what it would be but it would be heated living space yes. So little walk away from the house to the garage. Well I think where we're going to I was planning on putting a staircase into the garage anyway so probably it'll maybe do like some sort of bifurcated stair where one goes down and one goes up into the into that it would be enclosed I would think off from the garage but those are again just as detached garage though. No it's not it's not detached it's attached it's physically attached in fact in the if you could see the foundation we actually dug a stairwell into the well you can't quite see it but in front of that blue car on this side of it there's actually a stairwell down to the basement that has not yet been cut into the basement. We have it open because we knew we weren't going to get it this year and with thong we didn't want to create a big ice cube tray there so it's just open to the ground but there is a built in area that we're going to have a staircase down into and so my thought would be that we'd have a corresponding staircase out at the same location. Okay board comments. Mark you're the architect. Yeah so one issue I have is the measurement of the height of the building by bringing the grade up doesn't change the height of the building it just changed the perception of an elevated grade standing on the site you're not changing the height it's just a way of tricking the measurements I'm not in support of that. The question I'm curious what do you mean by the added hundred square feet in the garage is that because of the loss in the accessory structure? Yes, yes there was in the last meeting there was a concern that that extra 30 feet created an issue with the 30% livable space because the primary house is so small so in effect this would be increasing the size of the primary house living space non-garage space to account for that. So it isn't a swamp? Your garage you're proposing including doing some thinner space in there and by that I think the 30% includes the loft space? Yes right that would cover the loft space. Okay I understand that. I mean once we call the height issue which is for me the big concern I don't have an issue with that because it's really meant to be one third of the primary space I know it hasn't been done yet but we are dealing with an after the fact situation so that will part of it I'm more inclined to be supportive of because you are then creating a larger primary structure which supports a larger accessory structure but we have to solve the height issue that I think you've seen in the staff comment and the height is measured from pre-instruction grade not post-instruction and throwing another 14 inches of fill up against the side of the house A isn't good for the house because you need to have a certain amount of concrete exposed but B it doesn't change the height of the building it changes how we measure it. There is concrete exposed currently because we have not actually finished grading yet when the measurement was taken Right you want to have concrete exposed you don't want the dirt to come up right up to the underside of your siding. Well we can pull the siding back a couple of courses was actually what we talked about. How you measure is not how much dirt you can push up against the side of the house you know that's the reason they measure pre-construction grade for height of a building not post-construction grade So in the previous hearing one of the issues we discussed was the situations in which the board is allowed to or in which the LDR say the board should consider granting an adjustment of pre-construction grade and one of those reasons is technical reasons it can't work unless they adjust the grade to be something else say for groundwater issues or in this case what the applicant brought up with sewer. In order to get positive sewer flow they did have to raise the grade. The board has always avoided the situation where an applicant asks to increase the pre-existing grade for the purposes of getting a better view or having better aesthetics or that sort of thing. Because then you're creating a house on a fiefdom. We actually would have preferred it to be lower if it was possible because the aesthetics are not as pleasing as they would have been had it been able to be constructed at a lower level. You need this increase for technical reason? Well we need this positive sewer flow. If you look at the houses on the east side of Myers Court which my house is on the east side almost all of them look like houses on a hill. I'm assuming the sewer is higher in that area or something I'm not exactly sure what the reason is. But to get this sewer especially when you're back 130 feet from the road ish to get it to positive flow to the sewer higher. The foundation had to be higher than it couldn't be dug down in other words it had to be sort of closer to the surface. So if we chose to it was out of sufficient technical ground under our precedent Mark? The under your precedent yes. The specific standard if I may read it out loud is in the staff notes from the prior hearing on this matter. The Development Review Board may grant such approval being alteration of existing grade. Where such modification is requested in connection with the approval of a site plan, plan unit development or sub-division plat? Standards are Development Review Board shall review request under subsection blah blah blah. There we go. Yeah it's very, there's very little actually. Delilah if you don't mind if I drive for a second it might be easier if I just pull up these standards. It's okay I can just reach over your shoulder. Sorry guys. I think this is probably the fastest way to get it to you because I'm reading it. It's just not, there's not a strong statement in the LDRs. Myers Court. Alteration of grade. Permit is required if you're moving more than 20 cubic yards. Standards for conditions for approval. Start here and go, and that's it. That's the whole thing. That's it. There's no E. There's no E. So the board has exercised this to allow situations where a applicant wants to build two and a half story high building and they need to raise it a little bit above existing grade for steward purposes. The board has not executed this when somebody wants to build a little fiefdom. I'm sorry the last thing you said, ma'am. The board has chosen not to grant new pre-construction grade when someone's reason is they want to build a fiefdom for their house to sit on. Amound. Is that what we have here? Do we just need room for to get a positive flow? Sounds like a positive flow to me. Need positive flow. So what I think a lot of us are struggling with is the roof. The roof, it seems like could be flatter and would obviate the need to grant a big variance or waiver. And I'm sure I'm... Where's the height limitation coming from for this structure? It's under Article 306 Accessory page 60. That's a hard and fast 15 feet. Correct about that? I'm just going to let Delilah answer you. Accessory structures in all districts. Accessory structures shall not exceed 15 feet in height except for industrial non-residential districts. For residential uses, accessory structures up to 25 feet in height shall be permitted where the structure is located at least 30 feet from all property lines. Which is not the case. I'm not going to read the rest. And then the third is accessory structures exceeding the height of the principal structure require approval as a conditional use. So that sounds like the 15 feet is a hard and fast limit. And the only way to approve something above that would be to grant a variance. Which would include having to find that there's unique physical conditions that create an unnecessary hardship for the landowner. Maybe, maybe not. But crucially that the landowner did not create the unnecessary hardship. I don't know how you could make that finding. And the one that usually dooms variance applications is that without the variance there's no reasonable use that can be made of the property. And that's clearly not the case here. So if we're talking about just the 15 foot height limit, I think there's no authority for us to waive that. So what we felt and what we discussed in the previous hearing is we thought a potential alternative path forward was to grant an adjusted post construction grade as the pre-construction grade. So basically change your measurement point. And what evidence do we have that that adjustment is needed for sewer purposes? Statement of the applicant. And if it's 14 inches, and we're finding that the current measurement is between 17 and 18 feet, you still don't make it.  Our measurements right now, according to the plan I thought said 17 to 18 feet. I think what he's asking is 14 inches above what exists on the ground today. What exists on the ground today is already been disturbed and is already higher than pre-construction grade. And aren't you talking about adding 14? Maybe I've got the math wrong. I think you've got it correct. It sure looks like what was measured is currently there's about a 17 to 18 foot peak on your building. Compared to pre-construction grade. So maybe it's 6 inches lower than that? Yeah, I don't think it's 18. It's probably 17. So if it's 17 minus 14 inches, you're still not there. I think what we're asking for is... You're looking for a variance of about 10 inches. Right, because we're asking for the adjustment from where it is currently not from pre-construction grade. So take into account whatever is currently there and so whatever that distance is, which is sort of an arguable point at this point, whatever that is, plus what we need to get it is what I'm asking for. That's what we're asking for. So 24 ish total from pre-construction. Let me ask you a question because I'm confused. I apologize to those who aren't. Suppose you built your accessory structure on the true exact pre-construction grade on unadjusted. Would you have a proper angle for sewage flow? So that's a yes or no? Well, I'm trying to understand the question. So are you asking, could it have been built at 15 feet? No. I'm saying, if it was, would you have been able to install a subsurface pipe that would have the correct angle to give you proper sewage flow? So my understanding is the sewer pipe currently comes up into the foundation. So it comes up above the pre-exis