2026-10-06 - Development Review Board

00:00Calling this meeting to order. This is

00:02the development review board meeting for

00:04October 6, May 6. We have three items on

00:10our agenda. Um, and we will go through

00:13them in the order they appear on in the

00:16agenda. Um, any communications that

00:19we've received should have been posted.

00:23Um, with that up first, we have

00:26CFP-36-1392.

00:30Street which is a appeal of an

00:33administrative denial. Do we have the

00:36appellent here?

00:38>> Y

00:39>> and then is there anyone else here to

00:42speak on this item?

00:46>> I have um the city attorney here and if

00:50she wishes to speak she'll

00:52>> Okay, great.

00:54Um,

00:56so usually with an appeal we have this

00:59vote first. So you're welcome to come up

01:01here. We'll have this be open and then

01:03I'll swear you in and go from there.

01:06>> Uh, I'm going to apologize first for

01:08having I know I need to apologize for

01:11this, but I have a hearing deficit. So I

01:14may have to ask someone who asks me a

01:17question to repeat the question because

01:21even though you're articulating as well

01:23as you can I'll miss it.

01:25>> Yes, happy to repeat ourselves. So um

01:28we'll start with the city and this is

01:33>> uh I will represent the city on this.

01:36This was Scott's project but he's um out

01:38of office right now. I can't be correct.

01:41So, this is an appeal of an

01:42administrative denial of a 15-year

01:45statute of limitations.

01:49Um, it's relative to unpermitted rear

01:51yard parking.

01:53It was depicted in a 1983 site plan

01:56zoning permit for the property. There

01:58was a parking lot approved for eight

02:00spaces in 1983,

02:03but has been expanded without zoning

02:06approval.

02:08We do have evidence from the gentleman

02:10that installed the parking lot that

02:12incurred in 2005.

02:15The appellant represents that this work

02:18was done more than 15 years ago and

02:21therefore exempt from zoning enforcement

02:24under statute.

02:26The statute of limitations is is

02:29identified in the staffing board. Though

02:32the determination subject to this appeal

02:34does not contest the time period of more

02:36than 15 years since the commencement of

02:39the violation. Rather, the staff report

02:42and the decision to uh issued

02:45administratively

02:47points to the fact that the violation

02:49was first discovered by the city within

02:51the past 15 years and that the parking

02:54area has subsequently been expanded

02:58without zoning review and approval. So,

03:01we do not contest the fact that it's

03:03been there more than 15 years or the

03:05expansion has continued and it wasn't

03:08discovered

03:09until within the 15-year allowance.

03:13The staff report has in has uh made

03:18reference to two case laws where

03:22determinations were made based on

03:25discovery discovery of facts and also

03:30utilizes the

03:32uh zoning administrator's handbook that

03:35defined a violation

03:38can be enforced upon discovery, not upon

03:42the first time it occurred. So there's

03:45also case law for that too.

03:49Uh staff has provided GIS aerial

03:53photographs documenting the increase in

03:56the size of the parking lot uh since

03:591983.

04:01And uh it might simply be a case of

04:04parking lot creep. However, this amount

04:07of parking and the subsequent law

04:10coverage has never been reviewed and

04:12approved. So, it is remains a violation.

04:17So, staff will assume that the 15-year

04:22determination was properly issued and

04:25that it was denied because the discovery

04:28occurred within the last 15 years. I do

04:32have a statement to refute some of the

04:36uh appellants

04:37um assertions within their submittal,

04:41but I will wait until you hear their

04:44case if that's acceptable.

04:50>> Um just a question on on clarification.

04:54Are you saying there's evidence of

04:55expansion since also since 2005?

04:59>> Correct. And that's where you're not

05:01sure if it is just people driving it. It

05:05naturally kind of expands and compacts

05:08the ground.

05:09>> Would you like me to show you the images

05:13that were captured?

05:14>> I I did see the images. Have we done any

05:16on-site measurements or just relying on

05:19the GIS? Because I know sometimes we've

05:21had issues in the past with like

05:24artifacting or aliasing on those images.

05:28Have there been any on-site measurements

05:30taken?

05:31>> We have um photographs of what's there,

05:34but what I do have is a site plan that

05:37was submitted on behalf of the property

05:40owners in 2022 showing existing

05:44conditions and the measurements on that

05:46site plan exceed what was approved in

05:491983.

05:52So I could I could illustrate that for

05:55you if you want to see what was provided

05:57in the 2022 review. I can um provide a

06:02footnote here that I did the two permits

06:04in 2022.

06:06One was denied for uh its level of

06:10incompleteness

06:12and one was approved subject to

06:16uh restoration of the parking lot to

06:19what was approved in 1983.

06:22Um that permit remains open. There was

06:26conversion of the upper floors to two

06:28residential units. The development

06:31review fee has not been paid. the impact

06:33fees have not been paid and the

06:35certificate of equivalency has not been

06:37issued. So that permit is expired and

06:41still open.

06:42>> Sure.

06:43>> So the aside from the postal

06:47improvements of 2022 it's the discovery

06:51of 2012.

06:56>> I think it might be helpful if I showed

06:58you those plans with your agreement.

07:02Just a minute. It's hard to It's hard to

07:04drive a bus and talk at the same time.

07:06I'm sorry.

07:08Let me see where I want to go.

07:28So, this is the 2012 permit that was

07:31administered by the zoning

07:33administrator.

07:38And I'm sorry, it's sideways. It was for

07:42a fence on the west side of the

07:43property. Here is the property here. Uh,

07:47fronts Adams Street. Uh, this is the

07:50south of the lot.

07:53We no longer have this permit database

07:56anymore. We when we converted to open

07:58gun, so I don't have the electronic

08:01copies of this application, but we see

08:05that the parking lot has been crossed

08:07out and the annotation on it is for the

08:11fence only. So what whatever

08:13communication happened between the

08:15zoning administrator and the property

08:17owners I don't have any information on

08:20that but this is when it was first

08:23discovered that there was an

08:26abnormality I'll say in the site plan

08:29the original in 1983 site plan approved

08:32eight parking spaces

08:34um and there were measurements on it 38t

08:38wide by 70 73 feet long So, um, this is

08:44the 2012

08:47approval when we first recognize that

08:49there was an issue.

08:52Okay.

08:54Escape from this.

08:59What I would like to show you though,

09:03and thank you for your patience,

09:11is that four versions of a site plan

09:13were submitted in 2020 2012.

09:28And this is the first version that was

09:29submitted showing existing parking.

09:37This clearly exceeds the 1983 site plan.

09:42I can um assure you that in 2020 2022

09:47when I reviewed these permits my first

09:49comment and the assessment is whoa

09:52what's going on in the backyard

09:54because it's so far exceeds the 83 site

09:57plan. So [clears throat]

10:02that's uh you can see existing and

10:05proposed site plan.

10:06>> She said that's from 2012.

10:08>> No, I'm sorry.

10:102022 Mr. Henley.

10:15Then we had version two that was

10:17submitted by by Mr. Benoy on behalf of

10:21the

10:23on behalf of the applicants.

10:33Make this so you can see it.

10:36also proposed existing parking which

10:39immediately abuts two property lines. It

10:42is now

10:45double lane parking, double stacked

10:48parking.

10:50Again, the 1983 permit was for eight

10:53parking spaces.

10:56So, these dimensions

10:58far exceed what was approved in 83.

11:05again in 2022.

11:14Oh, let me see.

11:20This was version three that was provided

11:22to me.

11:34There should be a quicker way to share

11:36these.

11:45And it's showing 16 parking spaces

11:49in 2022.

11:57The purpose for me showing you these is

11:59that sta this is when discovery of facts

12:02occurred for staff in 2012 and in 2022

12:06both of those within 15 years.

12:12[clears throat]

12:14And just to clarify this has come up not

12:16through

12:18a compliance

12:21officer issue. This came up through this

12:25application for the determination.

12:27>> For the determination. Yes.

12:31Are you interested in seeing the north

12:33photographs or do you feel confident?

12:36>> We've seen them all.

12:37>> You have seen them all.

12:39>> Meeting material. Yes.

12:41>> Yeah. Okay.

12:42>> Other questions for staff.

12:48>> I guess I have a question about um what

12:51is the current use of How many tenants

12:53do you have right now in the building?

12:55>> There are no tenants, so we have to

12:57>> We're not This is at staff, so we

13:00haven't thought of the yet.

13:01>> Thank you.

13:03>> I haven't brought them in yet.

13:04>> With a 2022 permit requested the upper

13:07floor be converted to two residential

13:09units with psychotherapy practice on the

13:11first floor, which had been the

13:14permitted use in ' 83.

13:16Um, as far as we know that conversion

13:20happened, but since there was no CO for

13:22that permit,

13:24>> I think

13:25>> I don't know what the current

13:26>> Can I say something or not?

13:36>> Any other questions for staff?

13:43Okay, with that, um, we'll now come to

13:47the felons. And I just I know there's

13:49been some more people that have come.

13:51So, I'd like to swear everyone in at

13:53once that you're here to speak on this

13:55item. If you would raise your right hand

13:57and swear that the testimony you give

13:59today is true and correct under pay the

14:02penalty of perjury. So, swear. Yeah, me

14:05too.

14:08Um,

14:10we have reviewed all of the materials

14:12that you submit online. Um, I know that

14:15some of these you have printed out here.

14:17Is this first section new or was

14:20>> uh the only thing that's new is the

14:23summary meeting.

14:24>> Okay.

14:24>> But I I'd like to address this in

14:29my own words. I see this as a very

14:32simple

14:34matter. Uh there is no dispute as to the

14:37essential facts.

14:41Um Marsha, my wife, acquired this

14:43building in her own name in 1983

14:46and ever since then it has been used

14:49exclusively as offices for

14:52psychotherapy.

14:54There are uh nine offices.

15:00The property has since been transferred

15:02to an LLC, but it's effectively still

15:06Marsh's building.

15:10in 2005, and there's no there's no

15:13dispute about this. It appears in

15:16several of the city submissions, which

15:18I've noted,

15:20the uh parking space in the back was

15:24expanded

15:26from

15:28something in the order of 2700 ft to

15:31something in the order of 3,800 ft. It

15:34has never contrary to what the city is

15:37now suggesting and and and this is a

15:40very recent suggestion and I explain why

15:42I think it was made.

15:46Contrary to the city's suggestion, it

15:48has never been changed since 2005. It

15:52has remained exactly the same way and

15:55the measurements

15:57are still 388

16:00ft. And I know that because I went there

16:04and measured it both with a tape measure

16:07and a digital viewfinder. There's just

16:11absolutely no question about it that

16:14that is the dimension and it has never

16:16changed since 2005.

16:19The city's initial argument was, well,

16:22that doesn't matter as far as

16:24enforcement is concerned because there

16:25is a so-called discovery rule.

16:30And just if you just allow me for a

16:34moment, I'm an attorney, so I I know all

16:37about discovery rules.

16:40The statute of limitations

16:42establishes a period within which an

16:44enforcement action must be taken.

16:48or a lawsuit must be filed. More

16:50commonly,

16:52in this case, there is a statute which

16:54is 24 VSA 4474A.

16:59It very clearly announces that there is

17:02a 15-year statute of limitations. There

17:05is no ambiguity in it. The Vermont

17:07Supreme Court has never expanded that.

17:11In fact, to the contrary, it has in the

17:13cases, and I've made reference to that

17:15in my argument. It has articulated that

17:20that statute is to be literally applied.

17:26The city has

17:30placed in its

17:32zoning administrators handbook something

17:35that is not been accepted. It's

17:37basically just I mean I don't want to be

17:40porative about this but it's made up.

17:43There is no discovery rule as applies to

17:464474A.

17:48It simply doesn't exist. It's never been

17:50established. And the cases which I've

17:52cited

17:54which um are the only there are four

17:57cases which the city cited

18:01two and and they left out the most

18:03recent cases. But those all four of

18:06those cases establish clearly that there

18:08is no discovery rule. So the question

18:10becomes

18:12when was the expansion and when was the

18:15enforcement and that's all there is to

18:17it. The expansion was in 2005 and there

18:20was no secret about it. It wasn't done

18:22in the cover of night. I mean there was

18:24an excavator. It was done and

18:29the city did not take any action until

18:32now 2026 which is 21 years later. And in

18:36fact in one of the submissions that Mr.

18:38Augustine made he muses

18:43as to why there was no enforcement

18:45earlier. He says he doesn't know why

18:48there was no enforcement earlier.

18:50Subsequently, he has said two different

18:52things. One is that there is a discovery

18:55rule. There is no discovery. The second

18:57thing he has said is very recently in a

19:00submission that was made just a week or

19:02so ago for the first time that the lot

19:05was expanded in 200 and 19 or something

19:11like that. I don't the data is preceded

19:13in here but much much more recently

19:15within within 15 years. Um and for that

19:20he relies on these aerial photos which

19:23are absolutely not the best evidence and

19:26they are indecipherable. I've looked at

19:28them all. Most of them are obscured.

19:30They're just not they're just not good.

19:34So, as I say, the answer to this lies in

19:38there being no discovery rule and an

19:41expansion that occurred more than 15

19:43years ago. And that's the end of it. And

19:47we we we have submitted two

19:51declarations.

19:53One from Marshall which will give an F

19:56and one from Mr. Benoy which is both

20:00stand for that proposition. There has

20:02been no expansion since 2005.

20:05And exhibit number or letter B is the

20:10email from the excavating company which

20:14is not in contest which establishes that

20:16the expansion was done in 2005.

20:20So that that's really all there is to

20:22it. uh if you are looking for a reason

20:25for why there was an expansion in 2005

20:28which is not really on point but it's of

20:32interest um at that time there were a

20:36number of

20:38disabled people being seen by different

20:41therapists the practice changes over

20:44time but there were just a lot of

20:46disabled people which was requiring the

20:48SSTA

20:50vans to come in they didn't have enough

20:51to

20:53And there were also

20:55therapists who were catering to large

20:57family groups because they were they

21:00were addressing postpartum depression

21:02issues that affected the entire so there

21:05were more cars. So because of that

21:07Marsha expanded

21:10now question of whether or not the city

21:13discovered it or when it discovered it

21:15is beside the point because there is no

21:17discovery goal.

21:18If if we were to look at that

21:22um the question in a discovery rule as

21:26applied it's not when the city discovers

21:28it. It's when the violation is

21:31discovered or reasonably should have

21:34been discovered. That's actually the way

21:37the discovery rule even as a as promoted

21:39by the city uh is expressed. So when

21:43should the city have

21:45have uh discovered this? at any time.

21:48Frankly, Joe McNeel's office is one door

21:51away from this. There's a lot of travel

21:54back and forth. That's right. You can

21:55see the from the offices that Jim Civan

21:59used to used to occupy.

22:05In addition, the city fire department

22:07made annual or

22:10inspections of the premises and was in

22:13and out of the place. We we we I we

22:16can't testify for certain roads. Some

22:20fire department guy parked his car in

22:22the back, but there's no other place to

22:24park. That's you you would expect that.

22:27And there were inspections made and I I

22:30have also attached as exhibit C. A

22:33permit was provided for electrical

22:37improvements which included

22:42may who knows what. what the city

22:45actually did, but it was available for

22:48inspection at any time. So, they

22:51reasonably do have the notice that this

22:54lot was bigger. There was no secret of

22:57that. So, for those reasons, now the

23:00other only other point I want to make is

23:02that this residential unit application

23:05that's been withdrawn, Mar says she's

23:07withdrawn that there was no intention of

23:09using this. That was something that we

23:12were what Maria was thinking. decision.

23:14>> Mary, I just want you to know there was

23:17no conversion um ever and I withdrew

23:20this from the city because I didn't pay

23:23anything because I said why do I

23:25withdraw it? Someone spoke to me. I

23:27can't remember who and I withdrew that

23:30application entirely and never went

23:32forward the project. So I don't want you

23:34to think anybody if I snuffing some

23:38conversion there without

23:40>> so

23:41>> going through the proper process because

23:42I didn't

23:44>> in any event that that also in my view

23:46and is besided point the only thing that

23:49the board should be concerned about in

23:51my view is when was the expansion

23:54and when did the enforce rate

23:57there is no discovery rule even if there

24:00were a discovery rule the board should

24:02find said that he reasonably should have

24:06noticed this expansion. It's no secret.

24:08I mean, this is not like in somebody's

24:10basement.

24:12Now, incidentally, also,

24:15I don't even know why the city would

24:17care about this at all because it

24:20benefits everybody,

24:22including city. I don't know if you've

24:24been up and down Adam Street. It's the

24:26narrowest street. Only one car can pass

24:28at time. Cars have to pull over

24:30regularly for a while and of course the

24:33access park most of the street is mostly

24:36occupied by college students. Cars all

24:39over the place. There would be no way to

24:42to serve

24:44people who come to this building for

24:45therapy services if they didn't know a

24:48place to park.

24:51That's the best. Any questions?

24:55Um

24:57just curious why so the parking was

25:01expanded in 2005. Why was a permit not

25:04sought for that work?

25:06>> I don't think I I wasn't

25:09>> think um

25:10>> I don't think we were honest we needed

25:12>> an impulse in oh my god SSTA can't these

25:16people are disabled the man was there to

25:19pave it and I just said we need more

25:22space here. So that is honestly lie. Um

25:27and also I had something in my mind. I

25:29don't know if it's accurate about the

25:31percentage that seems that you're

25:33allowed to cover a green space.

25:36Um I don't know if that still exists. Is

25:38there anything where you're allowed to

25:40cover 40% in hardcape and not have it be

25:44green? So anyway, I I think that existed

25:47back then and this would still have kept

25:50me under the 40% allowable coverage.

26:00You know, I measured the size of the lot

26:02and the expansion and the percentage of

26:04coverage.

26:07>> Yeah, I I feel really confident about

26:11this discovery ruling. I mean, I've

26:14having read the cases, I I I just see

26:16beside I can't understand how the city

26:19can't even think about coming to a

26:21different conclusion. And if we have to

26:23go to the to the environmental court or

26:26even beyond, I mean, if that's the

26:28issue,

26:30I

26:32very

26:33confident that succeed on this should

26:36just stop you.

26:41>> Thank you. And

26:42>> yes sir

26:43>> and more than one location of the

26:47information that we've read

26:50possibly on the permanent cases and then

26:52other places within

26:54>> he can't hear.

26:55>> I can't tell. I'm looking at two

26:57different places where at least where I

27:00read the language about whether uh the

27:05clock starts um

27:08statute of limitations

27:10um when it's discovered or should have

27:13been discovered. So

27:17it's not that link which doesn't exist.

27:19Where is where is that language?

27:21>> Okay. So let [clears throat] let me

27:25I mean I know I'm talking to a lawyer so

27:28I'm I'm going to be very respectful

27:30about this.

27:32The statute of limitations

27:35establishes the period within which an

27:38action must be taken. So for a personal

27:41injury for example you have to start it

27:43within three years of the of the injury.

27:45This there are exceptions of course. If

27:48it's about money it's six years. If it's

27:53about a zoning violation, it's 15 years.

27:56And the Supreme Court has said that's a

27:58long time. That's what the Supreme Court

28:00has said in two Burlington cases. It's a

28:03long time.

28:05And property owners should be secure.

28:08That's the reason for statute of

28:09limitations and not have to worry about

28:12getting violations imposed upon them

28:16decades later. a city should act.

28:21Now one exception which is written into

28:25certain statutes but not 44 BSA 4474A

28:33the one that applies here

28:36and in the case that you'll see cited

28:38called the towns case which involves an

28:41environmental

28:43violation.

28:45There's a six-year statute and expressed

28:49specifically in that statute is a

28:52discovery rule or it says 6 years or

28:56when the violation is or reasonably

28:59should be discovered that's absent from

29:0324 BSA 4474A

29:06the statute that applies here and as I

29:09said when the Supreme Court looked at

29:12that in the two Burlington cases one is

29:14called

29:15904 North Street. The other one is is

29:18Burns.

29:20Two very different cases where they were

29:23frankly

29:26much better cases for a discovery rule

29:28because they were interior to the

29:30building. Somebody was converting the

29:32building to multiple apartments.

29:34Couldn't see it from the outside unlike

29:36this case. In that case, in those cases,

29:39the Supreme Court said, "Nevertheless,

29:42we're not reading into this 44 PSA

29:4724 VSA 4474A. We're not reading into it.

29:52A discovery rule doesn't apply.

29:54Legislature can can alter this rule if

29:58they want. They can write a new statute.

30:00They can amend the statute if they think

30:02that that's good policy, but right now

30:04it doesn't exist. And so in this case,

30:08they had until 2020,

30:11the city did, to bring a violation. They

30:15didn't.

30:17That's the end of it. There isn't any

30:19should

30:21have noticed it in this case. It's

30:24absolutely

30:26the curtain comes down. That's the end

30:28of the discussion. What I'm saying is

30:30even if you did have a discovery rule in

30:33this case, they should have discovered

30:34it because it was wide open and they had

30:38inspectors coming to the building.

30:42We can't help it if they No, no one was

30:43trying to see if anyone here. They were

30:46one block away from the city, one

30:48building away from the city attorney's

30:51office.

30:52It's a lot of a lot of traffic. Okay.

30:55Thank you.

30:56>> Any other questions?

30:59Mary, I know you said you wanted to

31:00respond to some things.

31:02>> Um, thank you.

31:06I um have not attended law school. My

31:10apologies for that. How you quoted the

31:14application though of the statute does

31:17allow provisions if there are hazards.

31:20So, an environmental hazard would allow

31:23more time to respond.

31:26Just as a caveat,

31:28this is in the backyard of a very large

31:30lot.

31:32We had we being the zoning staff had no

31:37knowledge of this expansion.

31:39There is a significant great change from

31:43the street that he that uh Mr. Hemley's

31:47made a reference to from Joe McNeel's

31:50office down at Plateaus to his parking

31:53lot. There's a lot of bushes there. And

31:55then this sits on a lower plane.

32:00We did not have we being zoning did not

32:04have access visual access to recognize

32:08this. It was only when we were asked to

32:10look at the parcel for various zoning

32:13applications that we recognize the

32:15expansion of parking.

32:18And in the photographs, you may judge

32:22how the parking lot expands to the west

32:25as the aerial photographs prog progress

32:28in date. And then the submission on

32:31behalf of the Hemlley's by Norm Benoy

32:36gives measurements that are clearly

32:39clearly much larger than the 1983

32:44application for the approved plan.

32:46>> Thank you. So, we don't have a zoning

32:49permit for the expansion. We did not

32:51have knowledge which would have provided

32:53us with the information to pursue this.

32:56And contrary to what the appellants

32:58said, the fire department does not have

33:01the jurisdiction for zoning enforcement.

33:04They're not looking for dimensional

33:06changes. They're not looking for any

33:09irregularities in prior plans because

33:11they don't have them. So the city

33:14overall

33:16can't be responsible for the discovery

33:19part of this, but our office, which does

33:23was not aware of this until 2012, and

33:25that was 14 years ago.

33:27>> Thank you.

33:28>> Um Kim, I see your hand up.

33:33>> Yes, thank you. Uh Kim Sturan, assistant

33:36city attorney. Um and if it's

33:38appropriate now, I just wanted to to add

33:40a couple comments on this case. Um,

33:44first of all, just for the factual,

33:46there was references to McNeel's office,

33:47the city attorney's office being a

33:49couple buildings away. Um, yes, I did

33:51work there. I worked there for over a

33:52decade. And honestly, I don't recall

33:54ever being able to see that parking lot

33:56or noticing that parking lot from any

33:58because there are large hedges that go

34:01around McNeel's um parking lot areas. Um

34:07second I just away from the factual but

34:09into the legal um

34:12it's the city attorney's office opinion

34:14my opinion um and I I have done zoning

34:18work for a bit now um that there does

34:20exist this and I guess it's a so-called

34:23discovery rule um but you know the 15

34:26years start from when the uh violation

34:30should have you know was known or should

34:32have been known Um, and that, you know,

34:36I looked at Burns. I was the attorney in

34:38Burns. Um, and what the court said there

34:41was that that, you know, there was

34:43discovery because there were people in

34:44and out of the building. Um, so they

34:46aren't specifically saying that

34:48terminology, but that that was in the

34:50language of that that decision um that

34:53with the continuous people going in and

34:55out that the city should have known um

34:58about the how many units were at the

34:59property. Um

35:03it similar like Tecum he talks about in

35:05that case you know that the that town

35:08shouldn't have known because until there

35:09was an application that brought them

35:11attention to that area um and the

35:14dumpster. Um

35:16so the case law I would have to disagree

35:20with the interpretation that's been

35:21given. Um I do think that based on the

35:25case law and um the policy behind the

35:29case law that there is a uh you know

35:31so-called discovery rule um for the 15

35:34years and I mentioned you know policy um

35:39basically

35:41zoning non-conformities there is a

35:42policy um that you know to promote the

35:45phasing out of non-conformities

35:47um there's also

35:50a policy about not allowing or promoting

35:53clandestine

35:55uh zoning violations. Um you know to

35:58promote having a violation that is not

36:02seen um and continues you know for the

36:0615 years and and then be able to be like

36:08oh gotcha like you couldn't see it you

36:10didn't know about it but it was

36:11happening. Um

36:14so that is another policy behind the

36:16interpretation as far as not promoting

36:18the clandestine.

36:20um violations occurring.

36:28Oh, and there's also just a reference um

36:30to the zoning administers handbook. That

36:33is not a city document. That's actually

36:35from put out by the state of Vermont. Um

36:38so the references to that are are a

36:40state document.

36:42And I think that's all I had. Um

36:44certainly if there's any questions that

36:45I can help with, uh I'm here.

36:48>> Thank you. One one of the um cases that

36:51you mentioned the discovery was because

36:54people were coming in and out of the

36:56building. Can you just explain how

36:58that's different than bars coming in and

37:01out of the lot for example?

37:05>> Sure. So that one um like burns the one

37:08of the questions was how many units it

37:10was and there were a number of different

37:13um inspections based on the number of

37:15units in that property. Um, so that was

37:18very clearly kind of on point of them

37:20seeing that. Um, as far as cars going

37:23out in out of this lot, I mean, I don't,

37:26you know, there was no zoning

37:28application or other application that

37:29would have brought uh a zoning

37:31administrator to that property from my

37:34understanding um

37:37before the the 2012 between 1983 and

37:412012.

37:48That's hopefully helpful. So,

37:50>> so in terms just to be clear, so the

37:53people going in and out were zoning

37:56administrators.

37:59>> There were different city officials. Um,

38:02but the records and the people going in

38:04and out, it was within the

38:07documentations of the city that there

38:09were, you know, more than one unit.

38:14when you had minimal housing, you had

38:16you had um if my memory serves me right

38:18on this one, um and building inspectors

38:21and there were, you know, numerous city

38:24officials going in in the document trail

38:26did, you know, show the the more than

38:30one unit

38:37>> if I recall. So,

38:40um, my question is just kind of on the

38:43So, the statute of limitations in the

38:45zoning administrator's handbook, it does

38:49specifically call out 24 BSA 44 54, but

38:54the the looking through the town's

38:56decision, the town's decision only cites

39:0010 BSA 8015, which does clearly say from

39:05the discovery like it has that

39:07>> language. in it whereas the 24 BSA 4454

39:12did not. It just says 15 years. And so

39:15that's

39:16>> um so

39:19what makes you like for your opinion on

39:24that the discovery rule is still

39:25applicable to 24 PSA 4454

39:30under what like circumstances or

39:33language do you like

39:37make that assertion?

39:40So, I make it. Um, and yeah, the towns

39:42is a, you know, looks to be act 250 and

39:46it has a six-year statute of limitation.

39:47So, it's a different statute of

39:48limitation. It's not the zoning statute

39:50of limitation. Um, the zoning statute of

39:53limitation uh based on the discussion of

39:56it in a number of cases talks about the

39:59should have known discovery references.

40:03Um

40:05there's prior lower court discussions

40:07about you know clandestine violations

40:09plus there's a policy about phasing out

40:11nonconformities

40:13um and and not you know having

40:15clandestine.

40:16So it's it's a statary interpretation

40:19based on um you know not absurd results

40:23not um and looking at you know the

40:25totality of the the

40:2820 the state statute.

40:32>> Which other lower court cases have we

40:35seen the discovery

40:38like question around the zoning

40:40enforcement?

40:42>> Yeah, there's been a couple. the there

40:44was a Richardson case that was

40:46overturned on other by the 2004 because

40:50that had to do with use. Um not the

40:53discovery question but the the use

40:55question because for a number of years

40:58courts upheld that use the lower courts

41:00were upholding that use could be was

41:03exempt from the 15 years based on every

41:07day a new violation. Um

41:10so that case you the 2004 uh North

41:15Avenue case found that uh the 15 years

41:19didn't apply to use

41:21um but it didn't directly address the

41:24the the um discovery.

41:35Any other questions for you?

41:39>> Leah.

41:40>> Yeah, I just want to clarify a few

41:42things here. Um, first of all, as far as

41:45the actual dimensions are concerned and

41:47norm did or did not do what is known, he

41:51has a declaration that's exhibit G. And

41:55he makes very clear that there has been

41:58no change since 2005. So that's that's

42:01the state of the evidence on that. Um,

42:04as far as Sturdivan's representations of

42:08the law, I just want to be clear. Um,

42:13the only case that it appears that she

42:15was directly involved in as council for

42:17the city was 204 North Avenue.

42:20Chief Justice Ryberers said based on the

42:22plain language of the statute, that's

42:244454.

42:26Behold, the statute of limitations does

42:28bar the notice of violation and reversed

42:33the trial court's decision. That was a

42:36case in which the city tried to argue

42:38that the use of the building

42:43should have an extended statute of

42:45limitations because it wasn't obvious.

42:48as opposed to a structural violation

42:51where things were more obvious because

42:54there were buildings there were changes

42:56and the state the state the Supreme

42:58Court said in that case no that's that's

43:01not a distinction that is in the statute

43:04we're not going to read it into the

43:05statute we're going to read it literally

43:08in the town's case as as Mr. called

43:11noted there was a different um there was

43:14a different statute alto together that

43:17was the uh environmental enforcement and

43:21I heard Miss O'Neal make reference to

43:23environmental

43:24hazards there's no environmental hazard

43:27in this case but it's not an

43:28environmental enforcement and we're of

43:30course entitled to due process and we

43:32have to have notice of what it is that

43:33we're being accused of that's never been

43:36the issue in that in that town's case

43:39under 10VSA

43:418015.

43:43It provides that environmental

43:45enforcement actions shall be commenced

43:47within the later of six years from the

43:50state of the violation, date of the

43:52violation, excuse me, or

43:56the date the violation is or reasonably

43:58should have been discovered.

44:00It's clearly articulated in the statute.

44:04That's what makes this case different

44:06because zoning violations, however much

44:08the city would like to write it into the

44:10zoning administrator's handbook, there's

44:13no legal basis for it. And um Mr. Duran

44:17hasn't hasn't suggested that that there

44:20is a legal basis for it. And suggesting

44:24that unnamed lower court cases make a

44:27difference. First of all, everyone knows

44:30or or or or should know that the Supreme

44:33Court of the state of Vermont states the

44:37presidents and it's binding on the lower

44:40courts. I don't know when when these

44:43lower court decisions are supposed to

44:45have been made. If it was in 2004,

44:48then the decision by the Vermont Supreme

44:50Court and Enray Burns, which said that

44:52there is no expansion in 2021,

44:57would trump it. It doesn't make any

44:59difference what some lower court said

45:01before that. No lower court is going to

45:03dare say that because the clearly stated

45:07by the Supreme Court is 4454A is to be

45:11read literally. There is no extended

45:14sagations.

45:17>> The thing about the size

45:21the size was not what someone said it

45:23was.

45:24>> No, I've already I've already addressed

45:26that. The size is the same now as it was

45:28in

45:28>> No, I meant that from Mo Dubo measured

45:32incorrectly, I guess.

45:34>> No, no, that's

45:35>> No. Well, Norm repeated something that

45:37was incorrect and made it sound

45:39>> norm has since corrected his separation.

45:48>> Mary, do you have anything else to add?

45:53>> Okay.

45:55>> Any last questions before?

45:56>> Thank you for your time. I appreciate

45:58it.

45:58>> Thank you.

46:00>> Okay. And the next item on our agenda is

46:05uh ZP 2612

46:08um 281 Pearl Street Sisters Brothers.

46:13Do we have

46:15any

46:22um again this is an appeal um this is an

46:27appeal of a notice of violation. So when

46:29there's appeal we just the city go

46:32first.

46:34Um

46:38hi

46:41city of zoning code enforcement officer

46:46was the one.

46:50Um

46:54>> uh our findings on the matter are uh

46:59it's being used as a parking lot. It's

47:02not an approved use of the zoning

47:04ordinances.

47:07Um it was originally a service station

47:11uh which was an acknowledged uh

47:16continuation of a nonconformity. Um that

47:18last several years previously. Um at

47:22this point it is zoned as a vacant lot

47:26uh subject to any use other

47:29submitting a zoning permit or

47:31development.

47:32um that has not been successfully done

47:35up to this point.

47:39Um

47:43and

47:45most recently

47:49in 2026 a uh as per ZP26165

47:56um a permit was applied for just to as a

47:59proposed change of use to a park loss.

48:02um that was denied because that's not a

48:04recognized use

48:06principal use rather.

48:09Uh in 2022, another zoning permit was

48:12applied for uh ZP22631

48:16at birth service station to a cafe that

48:20would have been approved use. Um the

48:23permit was denied as incomplete. Um the

48:26sufficient details were given after

48:30Again

48:34the previous non-conformity conforming

48:37uses anes automotive service lapsed

48:40that we serve in 2017.

48:44Um

48:46the pre the city has also taken previous

48:48zoning enforcement against this property

48:50under very similar circumstances.

48:52Um

48:55and uh again that zoning enforcement was

49:00uh

49:02nominally settled under court order

49:04stipulation payments and now it is

49:07continuing to be used as a parking lot.

49:10Any

49:12questions for

49:17the 2024 initial dart violation like

49:21this and then that was appealed and then

49:24it was appealed again.

49:25>> Correct.

49:26>> Uh that made it up to the Supreme Court

49:29of Vermont uh court case number 24 AP26

49:34which was ruled in favor of CSU law

49:37enforcement.

49:39Any

49:48questions? Matt,

49:50>> um I'm assuming you're here to speak as

49:53the appellent. Is there anyone else

49:54online here to speak on this item?

50:00Uh do you want to speak on part of the

50:03city now to be a bill?

50:06probably appropriate to add at least one

50:09more comment.

50:10>> Yeah.

50:11>> So, I'm Bill Ward and I'm the director

50:13of the permitting inspections

50:15department. Um I think the pictures that

50:17you have in evidence are of tow trucks

50:21and personal vehicles. It's our

50:23understanding that the personal vehicles

50:26are the vehicles of the tow truck

50:28operators when they're out jobs or

50:30things like that. But I wanted to point

50:32out that in addition to the photos that

50:34you've been uh you've seen in evidence,

50:37I go by the property regularly on a

50:40weekly basis and it's regularly

50:42consistent to have um two, three or four

50:45tow trucks there. And the tow trucks

50:48identify themselves as HIes tow trucks.

50:52the signage that's on them and the phone

50:54number that goes with them are actually

50:56for the business at 75 South Wiski

51:00Avenue um not for any permitted use at

51:04this property and that's why the zoning

51:06notice of violation was issued because a

51:09primary use of a parking lot is not a

51:12permittable use and that's that's

51:13exactly what's happening currently and

51:15ongoing even as late as uh this morning

51:18just after 8 o'clock I saw similar

51:21conditions to the conditions that you

51:22see here.

51:24>> Yes.

51:26>> Um so before we pass it over to um the

51:29appellent team, I just need to swear you

51:31in if you would raise your right hand

51:33and swear that the testimony that you

51:35give today is true and correct under the

51:38penalty of perjury.

51:42>> The attorney doesn't

51:45>> anyway. Is it our turn now?

51:47>> Yes. If you would just um yeah state who

51:50you are and give us a I'm Brian here for

51:53Sisters Brothers Investment Group LLP.

51:57They're the owner of the property.

51:59Joe Andy or the principles sisters and

52:02brothers. Um

52:06just uh to clarify the uh

52:10the previous enforcement case involved

52:15paid parking. There's Burlington Health

52:17and Rehab across the street.

52:19[clears throat] Excuse me. And the the

52:22lot has no available parking. So, they

52:25had an arrangement uh with the sisters

52:28and brothers. They'd pay I think it was

52:30$125 a month to to park their cars

52:32there. So, um that's not the case at

52:36this point. There's no paid parking.

52:38There's no public parking. You can't

52:41just decide to park your car there, go

52:43shopping downtown. This is all parking

52:46that's strictly related.

52:48uh to the owner of the property and

52:51their and their towing business. Um

52:59the

53:01you know what this

53:03it may not be

53:05the best comparison but if you have a

53:08house and a lot in Burlington

53:12and

53:13you leave the state you own the house

53:15the house is vacant you leave your car

53:18on the property is that is that a zoning

53:21violation I don't think anybody would

53:23argue that it is and this is very much

53:26akin to that where have the owner of the

53:29property parking the owner's vehicles on

53:33the property. There's no money changing

53:35and um like I said it's not publicly

53:39accessible. So it's it's very much

53:42distinguishable from the previous

53:45circumstance. Um,

53:48you know, basically what we have is with

53:50this property, and you're probably all

53:52familiar with it. We see the picture.

53:54It's uh the gas station use was

53:56abandoned. The repair uh uh car repair

54:00use was abandoned. Um

54:06there there's no allowable use, but a

54:09residential use. um

54:14parking the owner's vehicles there

54:17wouldn't be a zoning violation in any

54:20other circumstance I can think of. Maybe

54:22people could think of some, but um like

54:25I said, it's not open to the public.

54:28It's not paid parking. And as I think

54:30Joe will mention, there are many

54:32occasions where the city

54:35the city parks its own vehicles there.

54:38Um maybe you want to take it from there

54:40Joe.

54:41>> Yeah. Um

54:44one other thing is

54:46to truck. We don't tow cars in or out

54:49out of there. There's no drop cars. The

54:51only reason we have these, we park them

54:54there at night

54:57and when the guys get off work, comes

54:59back next morning, brings his car, parks

55:02his car there,

55:04drives out the truck.

55:07On a lot of occasions,

55:09um,

55:12the city, the street department, they

55:15parked their vehicles there and they do

55:16work on the streets. They're always

55:18there.

55:19Uh we don't call somebody else come in

55:23park there. We don't we don't sell sell

55:26out. Um

55:30the police go there and parks their

55:31vehicles and um

55:34somebody's doing the paving on the

55:36street. They dropped

55:39a a paver around the yard. It's been

55:41there. It's there.

55:44Um

55:46I just need to know is that harm or not?

55:50They shouldn't drop it pay the city

55:51shouldn't drop part their contracts

55:53there or the city or uh the paper guy,

55:56the construction guy or anybody you know

55:58anyone else. Um or maybe sometimes

56:03the the people the nurses across the

56:04street they have no might parked their

56:07car there. You see it's not you know and

56:11I'm not correcting any they might not

56:14charge on that

56:16the park family use the parking lot

56:19there's always been used yeah I

56:22understand you guys took away the the

56:25the [clears throat]

56:26zoning on the service station and the

56:29gasoline all that stuff would pull her

56:31out you don't that that happened that

56:35but the parking lot was never mentioned

56:39as you cannot has always been there.

56:44And as long I'm not charging anybody,

56:47I'm allowed to park there.

56:49And another thing is if I cannot use

56:52that parking lot, I shouldn't be paying

56:54my tax to you guys. I pay over $25,000 a

56:58year on propert that building

57:02and I'm not generating money back on it

57:05to use it.

57:12Um, what would you describe the use of

57:17the property right now? Just, you know,

57:20to related to the example your attorney

57:22has given a house that someone goes out

57:25of town and they park in the driveway.

57:27That's not primary use of the property.

57:30How would you describe the

57:32>> I would say as a a parking lot

57:35for my

57:37for the equipment or to trucks or

57:41translate in and out you know I mean now

57:45the the driver who came when we change

57:47shift they have night drivers and day

57:50drivers and usually switch shift in the

57:54morning they come in at 6:00 in the

57:57morning

57:59they pick up They'll they'll take the

58:02the uh the blue bear truck or the red

58:06truck or the yellow stone horn and the u

58:12and they leave their cars there. Some or

58:14someone will bring another truck and

58:18park their cars.

58:21It's this is what you see probably four

58:24trucks the most

58:27there. four cars once more. It's now

58:32sparkling.

58:36>> Any other questions?

58:39>> Plus to be honest with you there and

58:42stuff. We get lots of graffiti on the

58:45building.

58:46>> The building gets every time there's

58:48nobody there, it gets graffiti in the

58:50stuff.

59:03with that. I think

59:07>> Thank you.

59:08>> Thank you.

59:09>> Sorry, Kim. Did you have your hand up?

59:11>> I did. Thank you.

59:13>> Uh Kim Sturan, assistant city attorney.

59:16Um and just wanted to chime in on this

59:18one. um as uh I was the attorney

59:21representing the city um for the

59:24litigation of the property previously um

59:28and that litigation did result that

59:29there is no approved use currently for

59:31the property. Um certainly they can come

59:33in and apply but they have not um they

59:36did I believe apply for a use to have

59:39parking and it was denied. Um so there's

59:44some finality already attaching there.

59:46Um but as well as that there's uh

59:51also the fact that this there's no

59:54allowed you know there's no approved

59:55use. The uh parking lot is being used as

1:00:00a parking lot use. Um they've testified

1:00:02it's accessory to their business use.

1:00:04There's no business use approved for

1:00:06this lot. It specifically was found, you

1:00:10know, to be discontinued previously. Um,

1:00:14so there's no there's no allowance for

1:00:16for this to be occurring at the

1:00:18property.

1:00:19The the lot certainly can, you know,

1:00:21owner can apply for a new use at the

1:00:24property, but that's not what is

1:00:26occurring here.

1:00:29>> Thank you.

1:00:30>> Thank you,

1:00:36>> Jess. Quickly, the ordinance doesn't

1:00:39prohibit the owner of property from

1:00:42parking vehicles on property he or she

1:00:46owns. It's just not there.

1:00:51>> So, I did see that in the argument there

1:00:54was a staff response to that and that

1:00:57parking lot is not defined by whether

1:01:00there's payment or not. Do you have a

1:01:02response to that? Right.

1:01:04>> Um,

1:01:07previously the city, this previous case

1:01:10which has come and gone, the city

1:01:13categorized it as a private parking lot.

1:01:17Um,

1:01:19the implication being that you would pay

1:01:20to park there. Private parking lot was

1:01:24not and is not defined in the ordinance.

1:01:26Um,

1:01:29and

1:01:30to bring that current, like

1:01:33repeating myself, the ordinance doesn't

1:01:36prohibit

1:01:37a property owner from parking property

1:01:40owners vehicles on site. Now, maybe I

1:01:43didn't get your question. If if you

1:01:45think I can understand it better, ask

1:01:47again.

1:01:48>> Yeah, I think that the assertion is

1:01:49right like the the ordinance doesn't

1:01:52prohibit a parking like parking on

1:01:56a lot when it is secondary to the

1:02:01primary use. So

1:02:03>> it doesn't say that. Um

1:02:04>> it it doesn't but the use table is for

1:02:06primary use, right?

1:02:09>> And so parking lot is defined in the use

1:02:12table. And so, um, there's an assertion

1:02:16in your argument that parking lot needs

1:02:19to be paid for, but staff has said in in

1:02:24their response to that argument that

1:02:26there's no definition that says that the

1:02:27parking lot use requires any form of

1:02:30payment. And so my question was, you

1:02:33know, where where does your assertion

1:02:35come from that the parking lot requires

1:02:38like payment to be a parking lot primary

1:02:41use or not? Like I said, that was a case

1:02:45was disposed of. Um

1:02:49uh

1:02:51you you know can I find something in the

1:02:52ordinance or statute that says

1:02:56an owner of a piece of property cannot

1:03:00park their cars there. I I can't find

1:03:03that. So it's a case of what's not in

1:03:06the ordinance. Um there's nothing

1:03:08prohibiting the owner of property from

1:03:11parking vehicles on their property. Uh

1:03:16the only reason I mentioned the paid

1:03:18parking is that was really the gist of

1:03:21this previous litigation. Uh this was I

1:03:25don't want to repeat myself about the

1:03:27nurses needed parking and whatnot.

1:03:29That's this is this is a whole different

1:03:31set of facts. It's the owner of the

1:03:33property parking owners vehicles

1:03:37on the property and I don't see anywhere

1:03:41in the ordinance where that's

1:03:43prohibited.

1:03:44So

1:03:46probably didn't answer your question

1:03:48very well if I by the look but that's

1:03:51that's what I I appreciate it.

1:03:55>> Any question

1:03:57with that? I'll now close the public.

1:04:00Thank you.

1:04:00>> Thank you.

1:04:05Um yeah. So the last item here that was

1:04:09prompt will not be hearing 637

1:04:1367.