May 8, 2019 DRB Minutes

May 21, 2019

REVIEW BOARD                                                                                              May 8, 2019

 

Members Present:    Tim Maxham (Chair); Doug Patterson (Vice Chair); Ross Brown, Nate Hayward; Liza Kilcoyne, Bob Krebs (alternate)

Others Present:          Martha Taylor-Varney (Zoning Administrator)

Members Absent:      Sherry Corbin; Gareth Hunt

Public Present:          Joe Farnham, Brian Monaghan

Call to Order:              Meeting was called to order by T. Maxham at 7:00 p.m.

Changes to Agenda:   None.

Public Input:               None.

 

Hearing:                      19-44-RT071 – Zlotoff Appeal of 2 Notices of Violation

  1. Maxham opened the hearing at 7:02 p.m.

Appearing on behalf of the appellant: Brian Monaghan of Monaghan Safar Ducham

Appearing on behalf of the Town: Martha Taylor-Varney, Zoning Administrator

Notice & Oath

  1. Patterson read the hearing warning.
  2. Monahan advised that it was not appropriate for him to take the oath as he is an officer of the court. Representing his client, he will be making a legal argument but not offering testimony.
  3. Maxham administered the oath to attending member of the public Joe Farnham and Zoning Administrator Martha Taylor-Varney.

Hearing Notes

  1. Maxham confirmed that board members had copies of the violation.
  2. Monaghan said that he represented the Zlotoff Foundation in the two appeals which are subject of the hearing.

The first appeal discussed was for the Z Motorsports Collection at 71 U.S. Route 2 (the museum building).

Statement by B. Monaghan – N.O.V for Tool Museum

  1. Monaghan said that the Z Motorsports Collection is a brand or nickname for vehicles owned by the Zlotoff Foundation. The Zlotoff Foundation is a 501c(3) charitable foundation which is recognized by the IRS and is also registered in the state of Vermont.

The Zlotoff Foundation operates the Arnold Zlotoff Tool Museum at the Apple Island Resort. The upper floor of the museum houses a collection of 19th and early 20th century hand tools collected by Arnold Zlotoff. The lower floor is a rotating collection of classic automobiles that are all owned by the Zlotoff Foundation.

The operation as a museum came before the South Hero Planning Commission and the Zoning Board of Adjustment. The museum most recently received approval by the Planning Commission and Zoning Board of Adjustment on December 7th, 2016. In particular, Finding #2 of the Planning Commission’s decision states that the lower level of the structure is empty and is used by the museum. There is a restroom on the lower level for use by employees. Public restrooms are in the office. For the Planning Commission, that’s the operative language that’s at issue tonight.

There’s also a ZBA decision dated November 30th based on a hearing November 16.th   At paragraph 9 the Finding states that the lower level of the structure is currently empty and is used by the museum. There is a restroom in the lower level for employee use only. A public restroom is in the resort office.

  1. Monaghan stated that both of these decisions approved the use of the museum, specifically the lower floor of the museum, pursuant to Table 2.2 of the development regulations. So, the museum’s operation in the bottom floor was approved by both the Planning Commission and the Zoning Board of Adjustment. It is now used by the museum in furtherance of that decision.
  2. Patterson asked what the application was for and what was approved. B. Monaghan said for the Planning Commission the application was for a site plan review for a tool museum in the existing barn on the resort property. For the Zoning Board of Adjustment, the application was for a conditional use for a tool museum in the barn on the resort property.
  3. Monaghan said that he didn’t think that the decision regulates the content of the museum – the things that are on display. The museum has tools, and it has cars. B. Monaghan said he would analogize it to an art museum. Art museums have to get conditional use and a site plan approval. Once they get that approval the municipal zoning regulations are not concerned with what goes on inside the museum – what is displayed there. Whether it is paintings, movies, sculptures or anything else the zoning regulations are not concerned with that. The question is really does the museum have the right to use the bottom floor for museum purposes. These two decisions make very clear that the use of the bottom floor is permitted.

An important part of that paragraph to point out is that it says there is a restroom on the lower level for employee use only; a public restroom is in the resort office. A couple of months ago, the Zoning Administrator Martha Taylor-Varney issues a notice of violation and in that notice of violation she states prior conditional use and site plan approval granted by the Zoning Board of Adjustment and the Planning Commission was for use of the 2nd floor of the museum only. Testimony included Finding #9 that the lower level was for use by employees only. That statement is simply incorrect; it is simply at odds with the two approvals that I just read to you. As a part of your decision making in this process, I want you to carefully review the Planning Commission decision and review finding #2 that I read to you, which is the same exact condition as Finding #9 in the ZBA decision. Those decisions both say that use of the lower level of the barn is permitted, yet the Zoning Administrator interprets it differently. In fact she says that the lower level is for use by employees only, and that’s not what the decision says. It says that the restroom in the lower level is for employee use only. And that’s what continues to be the case today that the restroom in the lower level is still for employee use only. So, the Zlotoff Foundation is in exact compliance with this decision. I find it hard to believe that the Zoning Administrator could stretch that statement this far, it just does not make sense to me. The rest of the N.O.V. says that although the entire structure is owned by the foundation, Z Motorsports use of the bottom floor constitutes an enlargement of the original conditional use, and therefore requires additional conditional use review. That statement also is not true. There is no enlargement of the use. The Foundation is continuing with the same exact use. Z Motorsports is not a separate entity; it is a nickname, effectively. This is the Zlotoff Foundation that is responsible for everything that happens in the museum. Z Motorsports is just a brand or nickname. It’s the museum that’s operating on the bottom floor in accordance with the PC and ZBA decisions. So, I don’t think there’s any other thing for the Board to do but to deny the violation requested by the Zoning Administrator in this case and effectively to reverse it and to leave the Zlotoff Foundation to be in its use of the property as a museum. That’s my spiel if you have any more questions I’m happy to hear them.

  1. Maxham asked if the Board has any questions at this point.
  2. Krebs asked which Planning Commission finding was referred to. B. Monaghan said #2.
  3. Kilcoyne asked if the collection was open to the public. B. Monaghan said yes, the collection was open to the public.
  4. Brown asked if this included Landon Road. B. Monaghan replied no, we’re talking about the museum.
  5. Brown said I’m going to read that decision over, but I do remember the testimony from whomever was here and they were very clear as the Board questioned them that they weren’t going to use the downstairs, but they were going to use it as storage only, because there was concerned about access, lighting, and things along that line. That’s the testimony that I remember and I was here for that testimony. And don’t, in front of me, as a Board member, say, I almost found derogatory what you said about our Zoning Administrator and stretching the truth, OK, because I listened to your spiel you repeated yourself three times and it’s pretty clear, your argument, but that was uncalled for. This isn’t a court, this is a South Hero DRB Board with citizens that volunteer their time, that’s what I’ll say about that.
  6. Monaghan said I respect that very much, and the fact of the matter is that the Zoning Administrator has an obligation to apply the law directly.
  7. Brown said we may not be as versed in the law as you.
  8. Monaghan said allow me to finish my point. The zoning Administrator has an obligation to enforce Vermont Law literally. This is a quasi-judicial board. I recognize this is not a court. I recognize that I’m a guy who comes in from Burlington who comes in here with a suit on and you are all lay people, and I want to be clear that I respect the heck out of what you guys do. I know you worked out there in the real world and you bust your butt and you come in here to volunteer for the Town. I appreciate that, I am grateful for that. And, everybody is required to tell the truth – that’s why I’m here today. Because the Zlotoff Foundation has constitutional rights and has rights pursuant to Vermont Law and pursuant to the South Hero Zoning Bylaws that I’m here to protect and defend. And, we have a right to do that before this board.
  9. Brown said you absolutely do.
  10. Maxham said we’re here to listen to the appellant and I don’t want to get into any back and forth about what you believe and don’t believe. We have the records in front of us, we have the minutes, we have the decisions, we’re getting his point of view and his take on how he’s interpreting and I’m going to leave it at that tonight. We’ll take all this into our deliberations and discuss this but we’re not going to get into back and forth tonight.
  11. Brown said I get it.
  12. Kilcoyne said my question revolves around the fact that nothing was ever said about another collection or car collection within this structure. And I think it was a simple request from the Town that we get it put into the documentation for the building that we’re adding this car collection to the museum and it will be housed there, it’s on the record. I’m not quite sure if I understand the perspective of not wanting to come back to us to just have a conversation about that. And I understand that you’re defending your client’s rights etc. but it’s also that it would have been a very neighborly thing to do and also a legal thing to do. I don’t see anything referencing using that space for collections of any kind. I see it just referenced to the bathroom being used. And maybe they had no idea for that space yet at that point they didn’t know they could put the car collection in here. I think it’s also important because it’s a car collection there and oil and petroleum products are involved with cars. Questions come up about the safety of the building with something like that. And certainly that’s a quasi DRB thing but it is a public safety thing. In my personal opinion it’s worth a conversation.
  13. Monaghan said I take all of those points to heart and I understand what you’re saying.
  14. Kilcoyne said then you understand why you’re here. It’s not because Martha had nothing to do on a Tuesday and decided to give somebody a hard time. And I think we’re so appreciative of Martha’s work and find her so very fair and equitable.
  15. Monaghan said I think what you’re saying, those things are all possible. They’re just not what’s required under zoning approval. The museum is already approved and if the Foundation were to bring in, for example, a really big tool, I don’t think that’s something that would be regulated by this decision or by the zoning regulations. And I think the same goes for putting a vehicle in. It’s just not required under this decision. And I understand what you’re saying but we have to live and die by the approvals of these boards and by the regulations, and that’s just not regulated by the Town.
  16. Kilcoyne said sometimes it goes beyond regulations.
  17. Monaghan said I have to disagree with you on that.
  18. Kilcoyne said that also the idea of making a suggestion to someone – is this really regulated, maybe we should have a conversation about it, and let the Board decide whether it would have been important to put into the record somewhere. We don’t have to debate it right now, I’m just making my point.
  19. Monaghan said I understand that, I just want to be clear I think that folks on any Zoning Board have to remember how far our legal authority stretches because we have to abide by Vermont Law. We have a narrow set of authority. Our ability to regulate things is confined to things that the Vermont Legislature has allowed us to regulate and also that the Town of South Hero – the Selectboard – allows us to regulate when they adopt regulations. And that’s the extent of this Board’s authority. Anybody on this Board has to be careful about what issues you wade into if they’re not authorized by your zoning regulations because everybody in this town is entitled to a fair review under the zoning regulations and only what is required by the zoning regulations.
  20. Maxham said OK thank you, Martha do you want to weigh in.

 

Statement of M. Taylor-Varney – N.O.V for Tool Museum

  1. Taylor-Varney said I absolutely agree that the Zlotoff Foundation has the right to question me and all of this does come down to interpretation. It’s my responsibility to interpret our regulations and if you disagree with that interpretation you have the right to come in and appeal that.
  2. Monaghan said thank-you.
  3. Taylor-Varney said my question first of all is that the evening that we had the combined ZBA-PC hearing for conditional use and site plan review for the Tool Museum, the application was called the Tool Museum, the representative who came in to represent the Foundation was Teddy Ingraham, the director of the Tool Museum. I’ve actually been there – it’s fascinating. I’m in awe of this collection. However, the discussion was only of the tools, only of the second floor. When asked who owns the building he didn’t know, he said I’m assuming Apple Island Resort. He wasn’t aware that the Foundation was leasing the entire building. He represented only tools. Some of the information he gave us we needed for site plan review because depending on how many visitors were they expecting per day. I remember asking him that and he laughed and said most would be from the resort and they may only get one. We based parking on the fact that there would not be a lot of visitors. Now with a car museum and especially with the type of cars that Mr. Zlotoff has I would assume that there would be a lot more visitors to that museum when they become aware that there is the fabulous car collection. Had we known that there was going to be an expanded use of the types of things on display, I believe that there is a different level of interest in centuries’ old hand tools than there are in multi-thousand dollar cars, and the number of people coming in to seem those would not just be from the resort. I’d be fascinated to see them myself. Knowing that type of information could have changed the site plan, what additional parking, where would it be, things like that. Mr. Ingraham did a fabulous job for the Tool Museum but introduced absolutely nothing about additional things that would be on display. After the initial decision was done and they sent emails that made clear that the Zlotoff Foundation was leasing the entire building. I took that back to the Planning Commission / ZBA they agreed it was fine to clarify that in the decision but that did not change the fact that only part of the building that was reviewed for display and public use was the second floor. I think that the cure to this is to come back for a conditional use and site plan review if it’s required.   Are the hours, the dates, the times the same? We don’t know any of that. It’s a simple thing to come back, I see nothing in our regulations that would prevent this board from agreeing. To require him to go through the exact same review as anybody else in this town that comes before the Board, to have a thorough review, and allow the Board to ask questions on the larger scope of this rather than just the tools upstairs. I have to comment on the fact that you said that the Zlotoff Foundation did not respond to my warning notice which is required by state statute to be sent at least 7 days before the notice of violation. I sent the required warning letter, you’re stating that they did not respond because I was incorrect. I think perhaps they could have responded that I was incorrect and then we would have had an opportunity to have the discussion that Liza was talking about earlier. That is always better than going straight to the notice of violation. I was given no choice. I did not respond with these notices in retribution for the Town’s current court dealings with the Zlotoff Foundation. I did not. And I very much resent the fact that I’m accused of that.
  4. Patterson said that I would reiterate what Martha said regarding testimony about only using the second floor. I had the privilege of sitting through these hearings, and it was specifically stated more than once that we were dealing with the second floor of the Tool Museum, and that’s what a lot of this decision was based on, parking, occupancy, the whole bit. The bottom floor was used for storage.
  5. Krebs asked if there were two separate applications, one for Zoning and one for the Planning Commission. M. Taylor-Varney said yes.
  6. Krebs asked how many square feet were on the second floor.
  7. Monaghan said that he didn’t feel that square footage was relevant to the notice of violation and so had no relevance to this hearing, which is limited to the issue of whether site plan approval and conditional use was required.
  8. Krebs said I was just trying to get clarity. If you came in for 10 floors that would be what the application was for. It doesn’t say what floor it was for here. I’m just trying to find it.   The Zoning Board Adjustment was November 30th?
  9. Monaghan said yes November 30th for the ZBA and December 7th for the PC.
  10. Krebs said the application talks about the Tool Museum located on the second floor. Being a lay person I would assume that’s what he application is for.
  11. Monaghan said it says that and the decision also says that the lower level of the structure is currently empty and is used by the Museum.
  12. Krebs said it seems to me that someone brings something in and I guess that this is probably Martha’s writing but I would assume that somebody would object to it if they had any inclination that it was just for the second floor.
  13. Krebs said I want to see what people are thinking, would it give anybody pause if some of the findings talk about it being empty, and if you had any intention of doing something else down there you might have brought that forward at the time?
  14. Monaghan said it says that it’s currently empty and is used by the museum. So I don’t know exactly what was said in that hearing so I can’t say, but I assume that somebody made a representation beyond what’s in the written application to say this is what it’s used for. It is used by the museum, and the Board ended up incorporating that into its decision, so that’s why we’re here today.
  15. Krebs asked if there was any audio of those hearings.
  16. Taylor-Varney said that far back I would have to look. My recollection is that it was used for storage, but that’s probably not admissible.
  17. Monaghan. And if it said that it was used for storage in the decision, it would be a different conversation tonight. It doesn’t say that, and it comes down to what the Board’s decision says.
  18. Kilcoyne said I think what we’re trying to pull from this is how much public space was available for display, for the public. To me that makes a difference how many people you could have in the building at a given time, and how much parking would then be needed.
  19. Brown said there was a discussion about parking, there was a discussion about walkways coming in, there was a discussion about lighting, which was all part of a site plan review.   I’ve heard the whole spiel, are we going to hear anything more?
  20. Maxham said I wanted to try to keep this as close to the points as possible without our ideas of what we thought about it at the time or what we’re getting out of the documents. Brian is representing the applicant and he is stating his position – the way they interpret legally.
  21. Brown said I get that. Quite often we are interpreting the regulations. This is like a slight of hand where perhaps the wording isn’t quite right in the decision, so I get that argument.
  22. Maxham said the way I look at it right now is that we have all of the documentation in front of us that we can look at any time during the deliberation. Brian has made his pitch. He’s making his interpretation about what he’s reading here. If you don’t have anything else to say then I think we’re done with it. We’ll take it under advisement and make a decision one way or another.
  23. Monaghan said at the risk of too much hot air from a lawyer, I just wanted to say one of the things I heard is parking, and whether parking is an issue. I want to be clear that parking is not part of the notice of violation. There’s nothing in the notice of violation that says you have too many people parking there. It’s just whether the first floor is able to be used under the approvals. They’re acting in accordance with the approvals, and there’s no allegation by the Zoning Administrator that there’s too much parking happening there. The other issues I’m hearing about, the same thing. They’re all important issues that you folks raised, as part of the review process, I agree with you, I think those are questions that ought to be raised in the initial review, but that’s in the past. That’s already happened. The Board has approved this use. The sole very limited question now is can the Foundation use the first floor.
  24. Brown said quite actually we didn’t have the opportunity to review a car museum, because that was never brought to the table.
  25. Monaghan said again, that’s not the question in the notice of violation. That’s the only reason we’re here.
  26. Maxham said Martha would like to respond.
  27. Taylor-Varney said the question of parking is inherent in conditional uses. According to section 303B in order for the permit to be granted the proposal shall adhere to the development standards of Article V, and within Article V we have section 507 Parking Requirements, so it is part of the umbrella of a conditional use, and my argument is that this did not have proper conditional use here.
  28. Monaghan said I disagree because this is not part of the notice of violation, but I am happy to leave it to the Board.
  29. Monaghan said would you like to move on to the other notice of violation.
  30. Krebs said we wouldn’t be here if it was really clear. Have you had any conversations with people who were involved in the original application? What was their intention?
  31. Monaghan I sure have. I appreciate you asking that question but the only thing that this Board can adjudicate is what was in the decision.
  32. Krebs said to me it makes a difference as to whether they fully intended to bring cars in there. I have a sense of fairness as to what’s right. I’m not going to make you jump through hoops if in fact they did all of what they intended to do, but if something else came up, if these cars came up, I’d like to know about it. If you don’t want to answer that I understand.
  33. Monaghan said I can’t answer that. Thank-you though for the opportunity.
  34. Patterson said I guess I don’t understand your point that we don’t have a leg to stand on because you say you have the conditional use, but you don’t. You have a conditional use for a tool museum of a certain size which the site plan was based on, which the approval was based on. You had no additional room specified in testimony or in presentation about utilizing the basement floor for a designated use of a car museum, whereby if that was part of a conditional use, the parking requirement and other items in the ordinance would have been discussed and specified. Nowhere in your testimony presented by your representatives was the use of the basement floor stated other than storage, which requires no parking, no real investigation by the PC or the ZBA. But if it was specified at the time, it would have been included. My point is that your argument is not correct.   Sure the building was approved, and it was approved to start with the second floor, and when this notice came through that the whole building was leased, the finding was changed, but the permit, the conditional use still stands for the second floor Tool museum, period.
  35. Monaghan said you’ve touched on a really interesting issue that I want to bring up. The phrase that you said was we don’t have a leg to stand on.
  36. Patterson said you said we don’t have a leg to stand on. I’m interpreting what you’re telling us is that we don’t have a leg to stand on.
  37. Monaghan said I didn’t use that term. I have a lot of colloquialisms that I use…
  38. Patterson said no that’s my term, but I’m interpreting that you’re telling us that we don’t have a leg to stand on.
  39. Monaghan said I understand that it’s an important point. I want to really respectfully remind you of what your role is here. You’re sitting in a quasi-judicial capacity. That means that you’re a lay person but you’re acting as a judge. So a really important thing is to hear the evidence that we’ve presented to you in writing, and hear the arguments that I’m presenting now, and also to hear the testimony and arguments that Martha’s providing. When I hear you say we don’t have a leg to stand on, that concerns me that the Zlotoff Foundation is not going to get a fair shake in the decision. What I want to understand is that you can issue a fair decision based totally on the evidence that we’re hearing tonight and not on any particular decisions that you’ve made outside of this hearing tonight. Is that something that you can do as a Board member?
  40. Patterson. Certainly.
  41. Monaghan. OK, alright, I just wanted to understand that.
  42. Patterson. I just like don’t like being told … I stand by what I said. You’re just telling us we don’t have any legal right to support this violation. That’s your point that you’re making, is it not?
  43. Monaghan. My argument is that the notice of violation should be dismissed.
  44. Patterson. OK, thank-you.
  45. Maxham. With that, let’s proceed to the other notice of violation.
  46. Monaghan. As we get going, I just want to make something clear. I’ve said it before tonight. I really appreciate your service as board members. One of the things that makes our country great, is that we can disagree with one another. I can disagree with Martha as the Zoning Administrator, and we can rely on you to provide a fair decision based on the evidence that you hear tonight. I understand that its contentious, I understand there are emotions involved, and I respect the work that you do, and it’s part of why I love being a lawyer. I can make a spirited argument on behalf of my client and I can rely on the system whether it’s a judge sitting in a robe or a group of laypersons who have regular jobs and sit in judgement of their neighbors, I really appreciate that. I just want to make that clear that while I make spirited arguments on behalf of my client, I respect the work that you’re doing.
  47. Brown said we do not judge our neighbors, we’re not a jury. We interpret our regulations the best we can and we apply them to the application that comes before us, and we use common sense, and we have the values of our community in mind.
  48. Monaghan said I’ll strongly encourage you to go to a training provided by the Vermont League of Cities and Towns. I used to work there and give workshops to board members and I explain that you are actually sitting as judges. You’re sitting in a quasi-judicial capacity. You are adjudicating the rights of your neighbors. It’s part of your role as a DRB member.
  49. Brown said OK, I’m going to stop here.
  50. Maxham said Brian, understand that this is difficult for us, this is the first time we’ve dealt with a situation like this. We usually hear applications for site plans and conditional use. Here you’re presenting a case, Martha’s defending the Town in her position as Zoning Administrator. You’re throwing stuff at us that we don’t contend with every day. We try to do the best we can. Doug and Ross were in on some of it, I was in from the beginning, it’s just like anything else, and people change their mind. They have a different idea. Where we’re coming from as a Board, the way I look at it, we heard it initially, they came back and wanted a modification. We have found plenty of times that our wording sometimes lacks specificity and someone comes in and tries to hang us on that. To be honest with you, we don’t appreciate that when they come in and try to hang us on what we tried to do, what we looked at the time. The window back then is different than the window we got today. We’ve got an 80-page document that we’re trying to work with, that we’re trying to interpret and we look at it the best we can every time we sit down. Sometimes we interpret it a little bit differently, that’s human nature. We’re just doing the best we can.
  51. Monaghan said I get it and that’s why I’m grateful.
  52. Maxham said, OK, go ahead.

 

Statement of B. Monaghan – N.O.V. for Foundation Garage

  1. Monaghan. Number two. This is the Zlotoff’s Foundation’s garage. It’s on Landon Road, #166. This building is a garage building, or as Mr. Zlotoff called it, a foundation support structure. Essentially it’s a large garage that houses vehicles for the Foundation and it also has some small office space. This building received approval from the Town. A site plan approval is all it received from then the Planning Commission on March 4 of 2015. The important component of that decision is in the Findings of Fact #2 and #3. In the Findings of Fact the PC found specifically that the structure is defined in the South Hero development regulations as an independent structure that required a zoning permit and site plan approval. The Board went on to find that the applicants testified that the proposed independent structure will be used to store and display the landowner’s private car collection.   The proposed structure will not be open to the public for any purpose, nor will it be used as a retail business to sell cars. Those findings are all still the case today in terms of the use of that building. The ZA issued a notice of violation, also on February 26th, and in that notice she states that under the definitions in the development regulations, an independent structure cannot be associated with any principal or conditional use. The garage’s association with Z Motorsports’ museum at Apple Island Resort violates its definition as an independent structure. For the structure to be associated with the car museum there must also be a conditional use review by the DRB. To be clear, that’s not something that the Foundation agrees with. The Foundation received approval from the Planning Commission in 2015 because it met the substantive requirements of the Town’s land use regulations, in particular, Table 2.2. That table said the facility only needed to get Site Plan approval, and the PC made a finding that this was an independent structure, which is a defined term in the South Hero development regulations, and the definition for an independent structure is that it is a free-standing structure the use of which is not residential, nor commercial, nor associated with any principal or permitted conditional use. Examples of such a structure include but are not limited to a garage, workshop, toolshed, greenhouse, or storage building which does not meet any other definitions in these regulations. And in this situation the facility is not a residential facility, not a commercial facility, and for zoning purposes it is not associated with any principal permitted or conditional use. In this situation the PC issued a site plan approval. The site plan approval is in effect and the structure continues to exist in accordance with the site plan. It is not as the ZA states associated with another use, at least in the eyes of the zoning regulations. Maybe on a monthly basis there are 6 automobile trips between the garage and the museum building and that is not what the zoning regulations envision. I know that maybe there will be strong feelings what the zoning regulations intended. My view is structure independent and as it is defined in the zoning regulations it just does not characterize this building as associated with any other use. If it were associated with another use there would be another principal structure on the property that it would be associated with. That’s what the zoning regulations are calibrated toward. It doesn’t regulate this situation. That’s our view of the zoning regulations. I don’t know if this board agrees with it. I’m fairly confident in my view. What does the word associated mean? It’s not defined in the zoning regulations. So I went and looked at the Merriam Webster dictionary on line, and it defines that word associated as joined together, often in a working relationship.
  2. Kilcoyne said so you don’t consider that a storage facility for the museum? That is a working relationship.
  3. Monaghan said it is a relationship but for the purposes of the zoning regulations it doesn’t rise to the level of associated with, at least not in the eyes of the zoning regulations.
  4. Kilcoyne said so you don’t store vehicles there that might be shown in the museum?
  5. Monaghan said well, we do, and we fairly state that.
  6. Kilcoyne said there you go.
  7. Monaghan said that for zoning purpose that’s not what the zoning regulations intended.
  8. Kilcoyne said it’s the way it’s being used.
  9. Monaghan said that’s your view.
  10. Maxham said anything else, Brian?
  11. Monaghan said no I think I’ve made my argument.
  12. Maxham said Martha?

 

 

 

Statement of M. Taylor-Varney – N.O.V for Tool Museum

Martha Taylor-Varney said that Mr. Monaghan began by describing this as a Foundation support structure. One thing I did not intend to get into when this first began is the relationship between this structure and the car museum and the ongoing litigation between the town and the Zlotoff Foundation disputing the tax-exempt status. Again I will stress this had nothing to do with it. But because the letters I received from Mr. Monaghan brought that up the Board needs to be able to discuss that. In court documents, the structure, the garage, is referred to several times as being related to the museum. In the application for both site plan review and the subsequent building permit for the garage both times it was described as a private garage. But in court documents it is represented as an integral part and very related to the museum itself. So the argument that there is no relationship between the two, I understand we can argue association with another use, my argument is that because of its association with the museum, it changes the use from a private structure to a commercial structure which would require conditional use review. It is associated with another use, there is nothing that I can find in the regulations that require the use to be on the same lot. I agree that is the primary structure on the property. But I don’t find that the association has to be with a conditional use on the same lot.

  1. Monaghan said as to the point as to whether it is a private garage – it is a private garage, nobody from the public is allowed to go there. And it is indeed associated with the museum. But that doesn’t make it regulable under the zoning regulations. The zoning regulations still do not define a private structure. The definition of independent structure clearly includes this. We totally recognize this as a private structure and there is a relationship with the museum. And for the purpose of property tax there is a clear relationship there. For the purpose of the Town zoning regulations, the Town zoning regulation does not regulate this structure as the Zoning Administrator would interpret that. And so, we’re asking you, your job, is to make a decision as to what does the zoning regulation mean. You’ve heard Martha’s view, and you’ve heard my view, and we’re asking you to make a decision as to what it means.
  2. Maxham. I guess if we were to go around the table we’d hear somebody else’s view, but that’s not what I want to get into, that’s for the deliberative session. Does anybody have any questions?
  3. Krebs asked for a timetable as to when the museum was approved.
  4. Taylor-Varney replied that the museum was approved November-December 2015. The private garage was approved April 2015.
  5. Krebs asked if there was anything said in the garage hearing about using cars to show them someplace.
  6. Patterson replied that there was not.
  7. Krebs said so there were two independent things – we had the museum approval and we had the garage approval. When did the cars start to be shown and the museum start to be used for that?
  8. Monaghan said that he believed it was last summer, after approvals from the ZBA and PC.
  9. Krebs said so it was summer 2018 when they started using cars down there.
  10. Monaghan said correct.
  11. Taylor-Varney said there was already a sign on the barn for the Zlotoff tool museum since last summer or previous to that. This winter I noticed an additional sign on the building for Z Motorsports. Our regulations for building mounted signs allows one sign per business on the building.   Seeing that, that raised the question of what else was going on in there.
  12. Krebs said so in all your experience with zoning boards and stuff when people come in with a certain proposal and a couple of years later they’re doing something else does that give you any pause at all? Or is it a strict reading of the regulations that allows that to happen?
  13. Monaghan said that in this case he didn’t think anything different was happening.
  14. Kilcoyne said not in this case, but in general.
  15. Krebs said in general, if someone comes in with an application that really doesn’t, for sake of argument, completely tell of a use that’s going to be more intense, isn’t that cause for some pause? And possibly for someone to say we based on decision on what you told us.
  16. Monaghan said I think what I would do in that case is for the ZA to go back and look at the original decision that was granted. Sometimes decisions are really wide open and sometimes they’re really circumscribed. If the original decision is permissive enough and allows the use I think the ZA should not issue any notice of violation.
  17. Krebs said a car display and a tool museum are the same thing?
  18. Monaghan said it’s a museum, and whether its paintings or tools or cars, it’s a museum. I don’t think there’s anything in the regulations that regulates what’s in the museum.
  19. Taylor-Varney. I still contend that one type of museum will draw more people than another type. I stand by my decision to issue this notice because we were not told the full use of the structure and what would be in there so we could then base conditional use and site plan questions on the number of people, etc.
  20. Kilcoyne said so both levels of the museum are open to the public?
  21. Monaghan said yes. Its weekends and holidays – high traffic times on Route 2. Probably Memorial Day through Labor Day. Also there have been some school events.
  22. Kilcoyne said that when the museum is open, are both levels open to the public?
  23. Monaghan said yes.
  24. Taylor-Varney said there are a lot of school groups that go between May 15th and whenever school is out.
  25. Maxham asked is that part of the reason why they are allowed six special events outside of operating hours?
  26. Taylor-Varney said yes, the historical society goes there, school things, stuff like that.
  27. Maxham said were are able to open up six times outside of those hours.
  28. Monaghan said yes, that’s what they’re doing today.
  29. Taylor-Varney said my final argument would be that a simple remedy to both of these violations is for the applicant to come in for conditional use review and site plan review if it is warranted.
  30. Maxham asked if there were any more questions. There being none, T. Maxham thanked all for attending and closed the hearing.
  31. Monaghan said he wanted to make one procedural point that it would not be appropriate for the Board to talk to Martha for her insight into the decision or for her to write the decision.
  32. Taylor-Varney said I am not writing the decision or participating in the deliberations.
  33. Monaghan said he just wanted to make sure we’re all on the same page.

The hearing adjourned at 8:10 p.m.

 

 

Review of Minutes

  1. Patterson moved to accept the minutes of September 12th, L. Kilcoyne seconded. The motion passed by acclamation.

Administrator’s Report

The Administrator’s Report was delivered by Martha Taylor-Varney (Zoning Administrator).

  • The Lavin final plat is postponed. Mr. Lavin wants to attend final plat hearing and wants to recess to 26 June.
  • The continuation of Eagan will be on May 22nd.
  • A conditional use and site plan hearing for Matt Bartle’s brew pub on Route 2 is scheduled for June 12. Nate, Bob, and Liza have indicated they will need to recuse, so everyone else is on deck.
  • There is a Spring planning and zoning forum at Lake Maury on June 18th – Tuesday. The Town will pay for it. Anyone interested in going contact Martha.
  • On May 23rd there is a ZA’s roundtable in St. Albans open to PC and DRB members. Let Martha know if you wish to attend.

Adjournment

  1. Kilcoyne move to adjourn the business meeting; the motion was seconded by D. Patterson and carried by acclamation at 8:55 p.m.

Respectfully submitted,

 

James G. Brightwell

Clerk for S. Hero Development Review Board

 

 

Signed: ____________________________________________ Date: __________________

                        For the Development Review Board

These minutes are unofficial until approved at the next regularly-scheduled meeting. All motions were unanimous unless otherwise indicated.

 

 

 

 

Categories: DRB, DRB minutes

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