MINUTES OF FRANKLIN PLANNING COMMISSION

TUESDAY, SEPTEMBER 18, 2007, AT 7:00 P.M .

HOMESTEAD DINING ROOM

 

 

PRESENT:   Richard Gadbois, David Lucey, Dan Larivee, Doug Bradford, Jamie Boudreau, Bill Mayo and Doug Clark.

 

MEMBERS OF THE PUBLIC: Claudette Carswell, Enosburg Falls, Vt.

                                                        Karen Quintin, North Hero, Vt.

                                                        Susan Clark, Franklin Town Clerk

                                                        Robert Irish, Franklin Zoning Administrator

                                                        Norman Kern, Franklin, Vt.

 

     Dick called the meeting to order at 7:05 p.m.

 

MINUTES OF THE AUGUST, 2007 MEETING:

 

     Motion by David/Dan to approve the minutes.  Dick asked for discussion and there was none.   All members voted in favor except for Doug Bradford who abstained because he was not present for the August meeting.  Minutes accepted as presented.

 

LAROSE SUBDIVISION:

 

     Claudette Carswell asked to speak before the Commission started review of the subdivision.  She informed Dick that it pertains to him and asked him to recuse himself from the Board because he is an abutting landowner.  Dick informed her that he would not vote on anything, but would preside over the meeting.  Ms. Carswell responded that they think that Dick should be here as an interested party only and Dick responded that he will not vote on anything.  Ms. Carswell stated that for the record she would like to see Dick follow through with their request to recuse himself. 

 

     Ms. Carswell stated that she would like to discuss some developments with the Commission prior to looking at the site plan and read the following: “I am here again tonight to try to clarify exactly what is required of us to fulfill our legal and moral obligations to the town.  These obligations are what I believe we have attempted to serve by the thought process that we have used thus far.  The recent planning board hearings have prompted us to review how we have evolved to this point.  We studied the path that has led us to tonight’s proceedings and I think that it is important that we review our thought process and facts that led us here.

 

     #1.  Our family decided to investigate the possible subdivision of this unused pasture land.  Not knowing exactly how to proceed, we first contacted our septic design engineer in order to see if these proposed parcels were able to meet the new state minimum guidelines for waste water disposal.  Our logic was to first determine whether these lots met the new state of Vermont septic design guidelines prior to possibly wasting the town’s as well are our time.  This decision was based on the fact state guidelines would have to be accepted in order to develop any land.  We started the permit application process and realized quickly that this required that we submit to the state engineers a complete subdivision design proposal including: lot sizes, slope of land, soil data, State highway curb application, storm water/run off erosion control design, current land use and proposed building sizes as well as the septic testing and complete site design.

 

     #2.  Complying and receiving the State’s approval for all of the above, we then contacted the town to apply for the required local permits.  We were told to fill out a certificate of compliance application.  We did as instructed and supplied all the submittals approved by the State to the ZA.

 

     #3.  The ZA approved the Certificate of Compliance for the subdivisions on 6/12/07 conditional only to review and approval by the planning board of the proposed right of way.

 

     #4.  15 days elapsed from the ZA approval and public notification, thus binding his decision.

 

     #5.  Upon review of the approved conditional permit, we applied for a hearing to the Planning Commission as required for review of the specified ROW.

 

     After stating the above facts, I will skip to the last meeting where we were told we needed to have a sketch plan in place to initiate Planning Board review.  At that point, I brought up again the ROW stipulation on the Certificate of Compliance.  We were told we could not apply to have the ROW discussed.  The reason cited was the Certificate of Compliance does not give us the necessary approval needed to proceeded.  Further stating that we first needed to obtain the planning board’s approval for the proposed sites again, and just because the State and the ZA gave us the conditional approval, it does not mean the town has approved this subdivision.

 

     It is my understanding from legal counsel that any Certificate of Compliance signed by the Town of Franklin ZA after the 15 days for appeal is in fact a legal permit subject to listed conditions on it.  The ZA decisions (right or wrong) have consistently been upheld in Supreme Court rulings as binding documents after an elapsed 15 day appeal period.

 

     As I mentioned in the opening statement, our intention was NOT to bypass any local permitting processes or cause undue hardship.  In fact, the permits granted to us by the State of Vermont are very clear that we must apply for and receive all necessary local permits in order to proceed.  This is exactly what we have attempted to do so far, however, it now seems this Board is overruling our prior approved Conditional Certificate of Compliance and requiring that we repeat the entire process.

 

     In light of these facts, I now formally ask that we proceed with this hearing regarding our approved subdivision as it pertains to the ROW access stipulation.  There seems to be conflicts between the responsible parties of the town, as well as, applicable State law, therefore, we would prefer not to be involved in or unduly penalized by what is clearly heading toward a municipal administrative procedure debate.

 

     Thank you for your time.”

   

     Ms. Carswell stated that the Certificate of Compliance is in fact a legal document and she has given the site plan to the Planning Commission.  She stated we need to figure out what to do next.  When Bob signed that Certificate of Compliance they were told they were granted their subdivision.

 

     Bob Irish stated, with all due respect to the Planning Commission, in April of 2005, he brought the question of how you count the number of lots to the Commission with regard to the Rice Hill Road subdivision and was told that the primary subdivision would not be counted.  He stated he spoke with the Vermont League of Cities and Towns and “you may try to take it to Court, but they have a legally binding subdivision”.  He stated they have never counted the original subdivision and he spoke with a couple of the prior Zoning Administrators and they stated they never counted them either.  He stated they have never counted the first one and this is a three lot subdivision.  Bob stated he was well aware of the rules.  He stated he made the decision that this is a three-lot subdivision and if this Board would like to change the way lots are counted, he would like a written change submitted to the Selectboard.  Until them, he stated he would continue.

 

     Dick stated that if the ZA continued to violate Section 106, we will continue to have this kind of problem.  He stated he does not care what previous Zoning Administrators have done.  We have to follow the law.  Bob responded this was brought up with the Dodd subdivision and Dick responded that Bob should have dug out the minutes so everyone could see to what he is referring.

 

     Section 106 says three and that includes what is left (mother lot).  That is the way the State counts them and that is the way we are counting.

 

     Ms. Carswell stated she has her Certificate of Compliance.  Dick asked if she wanted to proceed tonight with the site plan review.  Ms. Carswell stated she needs to find out what she has to do or take this further.  Dick responded that she cannot proceed until she gets a site plan review.  Both Ms. Carswell and Bob Irish stated they would like to hear the opinion of the entire Board. 

 

     Dan Larivee stated that the main lot stays with the house, you are not creating a lot.  Dick pointed out that it is an existing lot and that is the way it is counted.  You now have created four lots with a different configuration.  Dick stated we would go around the table to see what members think.

 

     Jamie stated that he agrees with Dick.

 

     Bill stated he wanted some clarification on the compliance with the 15 day appeal period.  He questioned why the Planning Commission is not notified when something comes up which they may not agree with or may need to deal with.  Bob Irish responded that any concerned citizen can go into the Town Clerk’s office and review the permits issued.  Bill responded that we are not “concerned citizens”, but the Planning Commission and there should be lines of communication open to at least look at it.  Bill stated he feels that Bob Irish should let us know, we should have some kind of notification.  Bob Irish responded, “Put it in the rules and I will notify you.”  David Lucey stated that it is only common sense that the ZA should let the Planning Commission know when something is approved. 

 

     David Lucey stated he agrees with Dick.

 

     Bill stated this basically involved a right of way and we should have an opportunity to look at it.  The question is whether we should look at the right of way exclusively or all encompassing. 

 

     Dick stated it came to us exclusively for approval of the right of way.

 

     Bill stated that based upon what he sees on paper, he would approve the right of way.

 

     Doug Clark stated it is in writing that you are allowed three subdivisions in five years.   Dick responded Section 106 of the Subdivision and they are asking for four.  We are counting the land that is left because that is the way that everybody does it.  Doug said that irregardless of that, they came to the Board for a right of way,  not approval for a subdivision and why shouldn’t they get the right of way.  Dick responded that the subdivision has to be approved.  The subdivision was improperly approved.  Ms. Carswell responded that she has checked into it with her legal counsel and it has been consistently upheld even if the ZA is in error.  She asked that she not be penalized because there is a mix up. 

 

     Doug Bradford questioned if this wasn’t the issue of three versus four lots would this go through as it stands.  He stated he does not look at the Planning Commission as a blocker and he, personally, can’t see what difference it would be to the Planning Commission if the right of way looks acceptable whether it is a three or four lot fine, let’s go through with it.  If it meets all of what it should meet.  Get the paperwork problem done for the future.  It was noted that we do not know whether or not the Subdivision would be approved as we have not had the opportunity to look at it for anything glaring that would be a problem.

 

     Doug Clark stated that counting the home lot as a subdivision doesn’t even make common sense to him.  Dick noted they have a permit from the State of Vermont that clearly states four lots.  We have never counted the mother lot.  The Planning Commission is not changing the precedence.  Doug Clark stated he thinks it should be corrected.

 

     Doug Bradford stated he’s asking people here,  if they were to look at what they know, is there any reasons we couldn’t approve it, anything about it that is questionable, anything about it that would impinge upon this community. 

 

     Doug Clark stated he feels precedence should dictate what we do.  He questioned if we want the State of Vermont to run the Town of Franklin.

 

     Norman Kern attempted to become involved in the discussion and was told this is a matter for the Planning Commission and not an observing member of the community.  He responded that he is thinking of subdividing and a precedent has been set.

 

     Sue Clark, Franklin Town Clerk, asked to speak.  She asked members if they had received her e-mail which she sent to the Planning Commission as well as to members of the Selectboard as the result of her concerns over comments in the August minutes inferring that wrong information was given out.   Sue stated that her office has to provide information and answer questions on a daily basis and she feels it is time we work together to make this work for the community.  She stated that their understanding has been that you cannot create more than three lots in five years and they assumed this subdivision was the same.  She stated if she is in error and her office is giving out bad information to the public, they need clarification of 106 to help all of us.   Dick stated that perhaps she should not be giving out that advice.  Sue responded that they give out copies of approved forms and a lot of things.  Dick said that giving out forms is one thing, but once you start telling them what it says or doesn’t say is when we get into trouble.  You cannot create more than three lots in five years and anyone knows that you count the parent lot.  Dick expressed his concern that we do not follow the regulations.  He stated it’s like saying that Act 250 doesn’t apply, that an 800 foot driveway constitutes a lot.  Sue stated that she will continue to provide information and  she feels we should give out good information and we should get clarification.  It was pointed out that many subdivisions have been approved without counting the mother lot and a precedence has been set and we need to get these bylaws amended.  Dick stated there is nothing to amend; they speak exactly as they should.  Doug stated that we should try to help these people through the mess that has been created by who knows who.  I think there are people who are caught in a mess that wasn’t their doing or our doing, unless there is something that makes it non-conforming.

 

     Dick stated he needs a motion.  Motion by Doug/Dan that we approve the right of way.  Dick asked if there was any more discussion and there was none.  Bill, Dan, Doug Clark and Doug Bradford voted in favor and David and Jamie voted against/motion carried. 

 

     Ms. Carswell stated that the Planning Commission needs to check this out, if they need to go to the Selectboard.  Four people of the seven people on the Board are for reviewing it.  She stated that you (Dick) are still saying that the Certificate of Compliance was improperly issued.  She stated it has nothing to do with fault,  that she is being thrown into the middle of the town debate and she did not ask for it.  She stated the issuance of the Certificate of Compliance has gone before the Courts and has been consistently upheld and it is clear to Bob at least.  It was noted that three of the Board disagree and four agree.  She stated she totally understands what Sue is trying to do.  Even if the Certificate of Compliance was given to her improperly, it is not her fault.  Dick responded that it does not mean that they have a valid Certificate of Compliance.  Ms. Carswell responded that it is.  Her legal counsel said so.  Dick responded that if she believes that she has a valid Certificate of Compliance, then she should go forward.  Doug Clark interjected that this is a democratic process and Dick is in the minority.  He stated they voted on the right of way and that is the only thing we voted on. 

 

     Doug Bradford questioned how we fix this problem so that it doesn’t happen again.  We weren’t made privy to this during the 15 day waiting period.  If the Planning Commission feels we should get involved, we should get involved and then it wouldn’t have been confusing.

 

     Dick asked if we are agreed that when you count subdivision lots, you count the parent parcel just like everybody else does.  It was noted that the State has been right along counting the remaining (mother/parent) lot.

 

     Motion by Bill/David that the mother (parent) lot be counted when determining the number of lots in a subdivision.  Dick asked if there was any further discussion.  Doug Clark stated it defies common sense and he doesn’t care what the State says.  To count the mother lot as a subdivision is just raw nonsense.  David stated it may be nonsense, but we all have to be on the same page.  Bill stated you have to look at the lot because you can change the nature of the original lot.  The State has always looked at it as a lot.  Doug Clark stated if you are a State man, if you want the State to run the town of Franklin, abide by their decision.  The State is approving everything.  I don’t want to reinvent the wheel by bureaucrats and lawyers.  I am here to challenge it.  Doug Bradford asked if we decide to go a different route, if you are going to ignore that particular principle.    Dick asked if there was any more discussion and there was none.  Jamie, Bill, David and Doug Bradford voted in favor.  Doug Clark and Dan Larivee voted against.  Motion passed.

 

     Bob Irish informed that he will continue to follow precedence of not counting the parent parcel regardless of what the Commission just voted.  He stated he would count the parent parcel only if that was approved by the Selectboard. Dick informed him that it is not the job of the Selectboard to interpret the rules.  That is the job of the Planning Commission. 

 

HUBBARD SUBDIVISION:

 

     Dick advised that the Act 250 documents have been in the Town Clerk’s Office for some time and he assumes that members have reviewed them.  He asked if there was a motion to approve the Hubbard Subdivision.  Motion by Jamie/David to approve.  Dick asked for any discussion and there was none.  Bob Irish pointed out that if the subdivision is approved at this time, it will bring an automatic review by the listers of the value of the property.  Dick questioned if that means this Commission should not approve the subdivision.  All members voted in favor/motion passed.

 

WILLIAMS RIGHT OF WAY:

 

     Dick informed members that an agreement has been reached between the parties in the Matt Williams/Roger & Brenda Wright matter.  He spoke with the Williams’ attorney and informed him that the right of way needs to be approved and he expected them to be here tonight, but they are not.  He noted that rights of way to properties that have no road frontage must be approved by the Planning Commission.  Discussion was held on the right of way and how quickly it was done.  It is not known if the agreement was approved by the Court.

 

PERMIT:

 

     David Lucey asked Bob Irish about a new construction where he has not seen a permit posted.  Bob advised that a permit was issued for the project.  It was noted that we follow the State procedure and permits are posted only during the appeal period.  Some members feel that the permit should remain posted until the ZA determines that it can be removed. 

 

     Motion by David/Bill to adjourn.  All members voted in favor/meeting adjourned at 7:55 p.m.

 

                                                                        Respectfully submitted,

 

 

September 19, 2007                                                                            Barbara M. Varin

NOTE: These minutes are not final until approved by the Planning Commission at their next regularly scheduled meeting. 

Note: These minutes were approved by the Planning Commission at their October 16, 2007 meeting.

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