land development regulations these comments are to help guide the applicant to a later application that meets the l d r requirements and contributes to the goals a comprehensive plan it is not a formal hearing and does not result in a binding decision there will be an opportunity for public questions after the board constrictor missional discussion of the project members the proper members of the public are walking the courage to ask questions or provide feedback at this very early stage of an application please direct all questions and statements to the board chair that's me the board may choose to continue the meeting to a later date if there are questions that remain to be examined the future date will be announced prior to concluding this item for the meeting upon conclusion of a sketch plan meeting an applicant who wish to move forward with the project will have to submit a complete pretty can see we're talking about here is the development amounts to a one acre undeveloped property that was previously kind of set aside as part of a plan due to developing projects that was associated with the bartlett brook apartment project  that's the large be a building directly to the east looking to get there that was a sixty four unit i believe residential apartment building with supporting infrastructure and parking area to the rear as part of that project we constructed a curve cut on route seven northbound that provides access to the apartment building but also will serve as a primary are the only access for this development as you can see on that shared right of way about halfway between route seven in the building there's a split off and a dead end road that's currently was constructed in truncated there with the intent of providing access to any future development and  so was set aside as a potential commercial development and the owner's been evaluating opportunities and ones come along here that we're going to present to you tonight right now the existing lot is undeveloped lawn for lack of a better turn there's a few just in the church trees and some clumps of boulders out there that were excluded out as part of the apartment building project but really not too much there's as far as existing development infrastructure there is a the property from east to west as well as some undeveloped property on the south side and where you see these green red dots are obviously what we're the one acre lot that was set aside that we're looking to develop  reason i just want to stop on this play and briefly was to discuss the existing vegetation on the property and not to get too far ahead of ourselves but one of the staff notes commented on the potentially retain our property as well as removed as part of the project so what you see here is the red dots kind of representing the existing vegetation that we'll be looking to remove and the green dots being the ones we're looking to retain addition to the trees on site there any comments on the existing conditions what's out there have to take those now before we get into the proposed  also trying to accommodate the drive through component to the facility whenever original design schemes have the drive through kind of circling around the building but after a kind of discussing and reviewing the regulations in this cussing with city staff we've kind of come to this alternate  layout where vehicles would enter obviously again from the south side of the property via the shared right away kind of unit mediately provided two options and then maybe some signage there to direct clients but it would be a double loaded standard traditional parking area to the left for walking clients employees and then the alternative would be to better the right and go to a centrally one way loop counterclockwise traffic pattern where we'd be having  three drive through options i'm not sure what the breakdown is of a t m versus teller do you know that because of the reverse flow of the drive through the driver side on the opposite side though would be for and two for tellers and one for me and then the far lane would be for bypass vehicles that were in the queue either didn't want to wait or emergency came up trying to provide that access and then all the lanes would a single exit lane and then and leave the site to the south again the sidewalk component of this is is two fold we obviously have one on the north side of the double loaded parking area  client's going to use the facility going in the southwest corner of the proposed building would be the primary main entrance and then we also extend the side walk as is required now ten feet wide down to the shop and road  frontage there is some force we were able to provide detail grading plane in conjunction with a sketch plan weren't quite there yet we have developed that a little further sense and there is going to be a significant change between the building and shelburne road we're sidewalk that's on the east side of shelburne road from against me till the standpoint pretty straightforward we have an existing sewer service right in the middle of the property on the east side of shelburne road water sewer gas electric parking area building all be directed into that facility and it's been size as such to meet the treatment standards of both the city and the state try to think about what else forcing we're not really the point to impact in the building footprint and understanding there's also about five or six feet of fill that go in there to accommodate the grading skiing so we're not too common we can really manager maintain that tree and in  any reasonable fashion again without a full redesign or relocation and i know there was some interest in keeping the building at the forefront of the property making that the focal point so and i think the client would also prefer to keep that situation as well so  i think we prefer to have that tree removed the other large trees more or less right at the very end of the west side of the parking area maybe just a little further right somewhere in there  again it's as it's designed now and graded now it's probably nothing we can retain their man if it's something the city is adamant about trying to retain again it's a large deciduous tree i'm not sure that swing it in towards the building to try to accommodate that we can certainly evaluate that as part of that the design process but the trees along the north property line outside of peanut limits we are looking to retain and then there certainly would be a should just stick to the read comments then i guess as far as things that were highlighted take note of i think from a setback coverage dimensional standard i think we're in full compliance and i didn't see and i don't think stuff enclosure so that if you include the canopy that represents eleven point five percent of the building coverage and a lot again certainly well below the threshold but that was the discrepancy in the two numbers there's a comment  kind of discussed the urban design overly district and it sounds like this may be the first project within that district being reviewed by the board from a fashion unfortunately i don't know if if we're prepared from a building design standpoint to really provide a whole lot of detail at this point now we do have some very some renderings of the projects as he comes down but i don't think it's anything that is representative we're going to propose s s a really understanding the design standards that we've got to meet if there's commercial type of use we hadn't always kind of designated this it's a planned mixed use with a residential memory and a question on the front as far as the building height is concerned i don't think there's any concerns as far as being above the maximum i think was thirty five feet in the proposed overall building would be nowhere near that i from what i've seen from some of the cons other designs are repeatedly camel's designs from vestibule is a taller kind of facade maybe something similar to what new official credit union put in a few years back on shelving road so there's that type of dish and height to the entrance but i think that would be a welcome addition as far as the characteristics of the building and what the board's looking for but the overall majority wants to take advantage of the views so too much hype is another one additional comment and that we do have read kind of work in our favor little bit in the fact that what we're looking at left is a pine tree and again understanding the scale of that tree and its location relative to the building and understand there's not a whole lot of opportunity to push the building back even if you wanted to and i don't think that's the in the interest of the board of the city regulations is with the intent being to make the building the prominent feature and the entrance and also understanding that the finished grade will be again probably four or five feet above the trunk of that tree at the base of it right now we don't effectively see any way of retaining that again the clump to the right is i think one that's up for a little bit more debate and i think he's still believes it's the scale not is in the grading it needs to occur there to make sure we get the proper drainage the infiltration basin may still be difficult to a comedy and that preference i think would still be to remove it but if there is a strong interest on the board to find a way to accommodate that and lou of understanding would be additional  so if i could add one point about the pine just from my past experience of similar situation pines being such a shallow flat root system if we were to put any kind of retaining wall around it it would most likely crush root system and kill it anyway which is exactly happen on a project where the board want to save the pine you kill it within a couple years as it was my understanding that if you're looking from seven to the east that the pine tree which probably can't stay would kind of be screening the building or part of the building is it correct to say that the deciduous tree would be more screening the parking lot and to answers to that one would be if that tree were to stay the parking lot would need to be reconfigured a little bit but i think in general that would be the concept the problem ideally be another twenty thirty feet down the slope and it would be four or five feet deeper and we'd be able to easily get the drainage from this new development in there but then again i apologize for not having a greeting plan to present right now but with all that because the beef set far enough where the grating would be a problem but they're set so far back off the property line that we have really no way of grading to grade down to them you know without impacting the site layout so if that those trees were to stay it probably would be some type of routine is necessary around them to get back up to the parking lot to a grade where we can still drain it and i am just again not having evaluated fully as far as the branches whether they can truth be told there's actually there's two i think two major trunks there but in maybe even one or two smaller some within a clump by the i don't i honestly can't speak to the species but i just looked at it closer on google and it it appears to be a very soft wood and it appears to me that it said that it's an elder box work which tend to blow over in the in the wind there it's not going to live through your construction either so already planned unit development on two lots development developed with one single family dwelling the planned unit development is to consist of one hundred three single family homes twenty six dwelling units in two family homes twenty dwelling units and multi family homes one existing family home conservation of fifteen point eight acres on site and conservation of approximately fifty five acres off site for the purchase of fifty six point four transfer development rights at fifteen zero five  seth's request that we consider a large part of the development to be non buildable off limits to two development so i would like to hear mr rushfor a map seven of the comprehensive plan and a took a quote from the comprehensive plan that about restricting development for areas shown on  construed in favor of the applicant meaning that any ambiguity is construed in favor of the applicant and so there are two important cases one of which you're familiar with is the jam golf course case and the case which describe what we do and we have a comprehensive plan provision as a relates to zoning and keep in mind you know what a comprehensive plan is it's a policy document it's a planning document that's worked on by the planning commission and it has may have many goals and suggestions for the community as it works towards adopting as only ordinance but the mughal case makes it clear that a a miss of how he does not have to adopt everything that's in a comprehensive plan and that a and so what is actually in the zoning ordinance is what is the legal regulation and that partial adoption of the comprehensive plan it is fairly common and so that's the first order of business here is that the the quote from the comprehensive plan that was cited is not in the l d r's and so that did not become the ordinance or the law and that i would ask the board to be careful not to take the general  masterplan requirement to have a project be consistent with the comprehensive plan and turn that into giving every word in the comprehensive plan the effect of being an ordinance because it's not it's intended to be consistent with a comprehensive plan to the extent incorporated into the l d r s the next thing is that as we look at the l d r's themselves they were the adoption of of it which is to say in fact the objective sixty from the comprehensive plan says that we want to encourage the preservation of open space in these areas except those areas that have been designated for for development and in the l t r as we know there are in the southeast quadrant there are designated receiving zones and designated sending zones and our position is that the l d r's adopt this conservation plan from the conference a plan by specifically depicting where areas will be conserved which are going to be the sun the areas and areas that will be developed which are the receiving areas and  the next piece in this is the g m golf course case where the supreme court and in that case keep in mind the provision that the jam golf course case was dealing with was actually incorporated in yars that's not the case here but even with it incorporated into the l t ours the supreme court struck it down because the the one of the reasons is they noted this tension or conflict between the d d r sending area receiving area provisions in the old yars and the blanket statements in the comprehensive plan to preserve open spaces and they said you can't reconcile those two it's ambiguous and therefore they say that it cannot enforced to restrict so that's kind of the background on the law piece the the next piece and then will i'd like to have our engineer speak more to this point but  sentially when we look at map seven we believe that it's really a mapping tool to identify resource areas that are are of importance and that it specifically has disclaimers on it saying that it is not to be relied on and that a field verification is really what needs to happen and that when this area was field verified by our engineers and with the consultation of the agency natural resources the areas that are worthy of protection and are where there is a legitimate state interest were designated and were protected and as are shown on the plan so our final point would be if when we talk about the constitution there are areas of legitimate state interest where the state and municipality can say this is the type of area that should be protected and and there there's been cases that have tested the limits of what are these legitimate state interest and wetlands as a great example wetlands are legitimate state interest because of the environmental significance of those areas  and so there is now a standard method for identifying wetlands for delineating the wetlands in that those areas can be restricted for development but a there has to be a legitimate state interest to restrict so you can't simply say we feel like it should be much bigger an area of protection if you can't point to resources on the ground that are worthy of protection you can't really go further to restrict and that's sort of our position here is that when these areas were delineated they were they were identified and shown on the plan so i'm happy to take questions or we can i'm going to have a lot to say a lot that yes so i'd like to defer first to anybody else on the board first we ask you to come with a comprehensive memo and you did you delivered thank you for that say i appreciate the diligence that went into the response this is not a blow off it was a serious piece of work and i respect that secondly we have at least in this proceeding something of a difference of view of the scope of what the supreme court has disallowed let me be clear because i think this i like the board to at least have the benefit of this view whether or not it agrees with it is true that a mere statement in a comprehensive plan that says we think a lot of land should be preserved or this area or to be preserved as desirable  what they say is in part the plan the p u d must be consistent with what the goals and objectives of the comprehensive plan now it might be a fine stroke but i know mr rich from rufford understands the original original case down with plans was did not not actually arise out of municipal stuff it arose out of act two fifty i believe but criteria nine and ten talk about in very broad terms compliance with the regional and municipal plans and the court i can't remember the name of the case that way too broad and that's when it's set up the basic rule distinguishing aspirational goals so to speak a point and as this thing from a regulation and mandatory goals and what it said what that act to fifty k said i'm paraphrasing was if the comprehensive plan says you shall not or you shall or it's imperative ever so or if it's a command that's what the statute means to incorporate here we have something very similar we have a regulation the l d r that says the your plan must be consistent with the goals and objectives so it doesn't say you have to be consistent with a plane that says you have to be consistent with the goals and objectives there are certain things in the plan there are then a fight as goals and objectives that includes cock cunt conserving conservation areas now compellingly and you rightly cited as as well as the core of the matter here the plan says that if you're on map seven i'm paraphrasing again but i think it's a fair paraphrase land shown on map seven is off limits for development and says it is off limits for development regardless of their setting or context it's such an unequivocal statement of intent that given permission because i asked you to come in and argue that i don't want to step into mr step shoes i'm going to tell you what bothered me and i hope you'll have a chance to speak the entire section even though it's well done of your memo that deals with supreme court construction of mandatory or aspirational i think is not relevant to the question because i think the cross reference from the  unmistakable language about what happens if your primary cause if you're on the map seven surmounts that argument i could be wrong but that's what i think at least at this level for the purposes what i find more compelling it than i don't know the answer to and when i asked mr self to address is if not seven is in fact a mistake then that has forced for me and i also would like to hear what he has to say so can you can you can you tell me what you mean by that actually maybe it's not a question for you in what way exactly where you're doing that i want to say one more thing i'm not insensible to the amount of time i'm taking up here i think it's i've thought about it a lot i think it's important for both sides of the if the neighbors are wrong and they're reasonably persuaded it saves everybody six figures so i don't think because the because this is not a trivial matter either i mean if mr rushford is wrong his project is toast so it's a very very important issue with a whole lot of money and a levy interest of a lot of people at stake and that's my rationale for actually the maps of it was created from the two thousand and fourteen south but i'm going to open space report if you look on maps we produce on this one but there's a disclaimer actually on the bottom of the map and so the two items we're concerned with is the wetland portion of the map and then the apparent connectivity portion of the map now if you read the two thousand and fourteen open space report it tells you where the data information and you can find out where the closest state park is you can find out where in the end of that habitat is it shows the streams it shows wetlands it shows state highways it's chalk full of information and you can click the layers on and off and and see what you get now when you look at the errors website so this is the data came from the website when you look at the website right the website says that because of the accuracy issues at the local level site business and site specific data should be used it states should the map should only be used to gain a general understanding of components likely to be  play so that's the source of the doubt that it came from the air an r and r says a it's for reference use only you gotta feel verify all the data open space planned took the bio find  or put it on the open space plan the open space plan was adapted map seven for instance if you zoom in closer on the map to our project area at so if you look at if you look at the wetlands layer this in the hole in farm road that goes across right here so so this is our our persons down here the only wetland even shown on the map is a small little dot right here where there's existing farm park now we know that there's extensive wetlands on the site so if you're going to rely on the map the map obviously is inaccurate it doesn't show the wetlands crip correctly so we ha company to go out and delineate the wetlands if you look at our site plan you'll see this extensive wetlands along that streams on this case we don't rely on the map because we know it's not right it's of reference maps we actually hire some that go look at it the other topic are interested in is there a parent connectivity layer right so where'd that data come from what is the apparent connectivity layer again the data came from the air in our file finder and if you go onto the bio finder website and you look it will tell you that there were apparent connectivity layer was derived from a model that identified areas of similar geology landform vegetation and other factors and the reason why it's a jacket model is jagat line is the model looked at a ten meter by ten meter grid and i said well that this meets the well current server model so we're going to add  to the layer no field verification done i mean we're talking about statewide mapping so this is mapping for south burlington the error map the whole state no feel verification nobody went out and looked the model  this layer and that's what shows up on the map so we deal with repairing errors on a regular basis with the n r when we do different projects that involve a strain so in this case the river on the an our website if the scribes the recorder as an area of land surrounding a river or stream that provides for me entering floodplain in the right parian functions necessary to store and maintain the natural stability of the river stream so the record or includes the repair an area for small streams with a drainage are of less than two square miles this is about half a thousand and eighteen we were up there and rebecca noted that the wetland the average with of the wetland runs around thirty or forty feet so when you add the wetland buffer to it the wetland buffer limit exceeds the with of the  current quarter for the stream so we're back her and her memo concludes that provided that we get the necessary wetland permits and stream alteration permits we need for the culver that we will comply with n r guidelines on recorders and repair and buffers under active fifty criteria one d d and that memo is in europe packet and so we we would basically say that map seventy s is so so there for you you with law i just like the air no data tells you to you don't rely on the map you will lie on field verification that's what we've done we've had the end out there for both wetlands and both for the stream of apparent area and we believe that we're meeting all the state requirements to protecting those two functions on these two parcels what is it that prevents but you understand we're not here beyond fifty fifty feels kind of arbitrary i'm not i'm not saying there should be or there shouldn't be i'm just trying to find the principle that prevents the cell phone to play the commission from saying and the city council saying as it says not in the plan but in the l t omar now i'm now i'm looking at page one forty three nine point zero six the three of the  law which is the regulation saying use it for the southeast quadrant existing natural disease resources on each site shall be protected paraphrase including conservation areas shown in the comprehensive plan i'm quoting from the l t or i think answering let me let me finish second so so my first question leaves his this area a conservation area shown in the comprehensive plan experience on both sides of the equation and if it was one person who was obviously bluffing i'd say the book's not an issue i don't think they're bluffing or at least put it this way i think collectively they have the resources not to be bluffing and they're going to push this developer as far as he goes that's my read on the matter no offense to anybody intended so i think if we can persuade both sides were better i think it's worth the effort and for that reason i've liked to hear what mr stephens to stay in response said if it's not persuasive then the neighbors ought to go away and if this persuasive that the developer want to consider rethink a very much a legal issue it's not you know i've got issues and i'd like to hear the other side of the issue from a sceptic i see i see an issue my concern frank is that because it's a different point being made that it's no longer a primary conservation area it seemed to me and i apologize for there's a shaking head it seems to me that says it's a  addition a secondary conservation issue and so we hear one and then we have to wait again for mr rush for to come back and do the research and come back so that's my concern frank and if that's the way it is then we here that sticks out into a portion of our development and it was noted in the memo that we were developing a portion of the habitat walk now again the habitat block came from and our bio finder materials and it actually came from a two thousand and fourteen fish and wildlife report and title from on habitat blocks and habitat connectivity it was a g i a study that was done statewide and the map identified with parcels that were greater than twenty acres in size so not a particular par any contiguous wooded area that was twenty acres was on the map and obviously the purpose of the study was look at larger large wooded blocks particularly within the green mountain national forest and the northeast kingdom  talked a lot about bear habitat and connectivity and the habitat blocks were ranked from one to ten ten being the best and one being the lowest in the ranking had to do with the size of the  block what the block contains where they're wetlands within the block was the open water in the block all those kind of things would raise the rankings of it was the block bisected by rose you know was a block continue with or and the number of the factors that went into it to the block in south roic and that we're looking at what's ranked three out of a possible ten now the mapping was done on based on the two thousand and four or so  that are greater than twenty acres and and so our parcel again falls they looked at parcels where the twenty acres now if you go to the next  exhibit yeah you go to five and so the map was based on two thousand and four so for oh so this is the two thousand and four so photo and of course the g i s guy is drawing this thing he's doing the state wide and so you know he follows the tree line down you can see pretty closely and he comes up and then he kind of jobs around the existing house and you know it's not realize but not too bad he jogs around but in two thousand and eleven the previous property owner clear most likely have a tower block would come down and i would fall that tree line down around and that whole portion of our parcel would not be part of the habitat block so it was mapped in two thousand and fourteen using data using the two thousand and four doubter went with the study was done in two thousand and fourteen likely the reason i didn't use two thousand and thirteen also photos is for photos become available at different times in different parts of the state and they probably want to use the same set or photos to be consistent statewide so that's likely why they used these thousand and four but if they had used two thousand and thirteen we think the mapping would have been completely different now secondaries are allowed to be impacted a comprehensive plan this block if we assume the mapping is correct this block is around two hundred twenty acres give or take an acre or two and we'd be impacting five of the two twenty so about two point two percent so our impact of that walk is minor at best if if the mapping was corrected obviously we think we'd have very little or no impact at all to the habitat  guess you know a little history on where the block information came from thank you very much so if we can go on to staff comments no building footprints and lot less outs the coverage represented in the approval must represent the maximum coverage that can be conducted or constructed without master plan and without a put master plan amendment stuff considers the board should direct the applicant revise the coverages to reflect the maximum anticipated and that the table can be footnoted to indicate the values that are maximum so calculating coverage for a new development can be hard because you don't know exactly what kind of buildings driveways are going to be put on so this is this was our kind of average thing we did for no to say that the coverages may change depending upon what actually gets built staff is indicated that they want us to provide maximum values and we can definitely do that number three staffer commands the board provide clear guidance to the applicant of which if any of the committee's requests that they are requiring them to address and whether those requests should be addressed prior to conclusion of the hearing or as part of the final pl application this is going to be a request to the board and i ask you to pay attention to the nine points that preceded this comment and mark we're going to ask the board to make a determination on which as staff says if any of these require of these suggestions that we're going to require of the applicant and are we going to require them like now committee that the resources the resource areas identified in the conference of plan are intended to be a guidance on where to perform site specific studies to evaluate resource areas staff recommends the board consider whether the applicant has met their plan as they are as we said you know overall guidance documents so we would not be in favor of providing them so sorry to jump in the middle little bit i did just want to point out that  but i will allow if there is a member of the natural resources committee here all i will allow as we go through these if you disagree with all if you disagree with m committee ok as the chairman just noted you have the document that we submitted in detail and i would say really the judgment goes back to that document the paraphrasing if you're i have no strong feelings that there's anything wrong there i have a question based on the other it's continuity it's more like a time i gather that the applicant has be overlay maps yeah well so that's what mr crawford's memo says the overlay maps should be required as they assist in the evaluation of developments that the sorting out of the maps and what had been provided and what hasn't is much clearer tonight right now at this instant than it was when we're drafting that st because i mean it was really where we were in the same spot you were what is the rule what are we supposed to be guided by our feeling was we should be guided by the comprehensive plan it says or something out there and then specifically asked the developer to do the necessary required for a way to shield studies and all these cases met with the rivers program on site they determined based on the size watershed that the appropriate record or boundary was fifty feet from the top of the bank as we've discussed previously because the wetlands are so much wider than the holds for this project the only the only areas that we are opposing the impact is the stream crossing and there is a small or there's a water line crossing lines on farms and that's it one of the last yeah there's a new water ma were close to the microphone real close in our conversations with a developer that elop or we we talked about this and how it was going to be later in the game and we asked the developer fine misquoting him you'll correct me i'm sure that he was willing to involve us when he was developing those act to fifty plans and that's what we're trying to speak to here ok we're just trying to say yes we appreciate that that we could be involved  is something that's going to be down the road it's not something here tonight but it's a natural resource issue ok and it's not our issue because we can't force them to do that so you or somebody should go about make sure that the city council appoints engineer were going to be required to obtain a stream alteration permit and the existing culverts unknown farmer owed is a thirty inch on dorset street it's not by the state by twenty four in the existing driveway they were actually removing it's a forty is that the sun animals that will go through underneath that sixty deer marger animals will have to go up on the road and down the road big enough for a deer big wreck it's it's a merge that's about it's not a six foot it's summers in the waters and allows aquatic species to pass through you know there's no shelf and on our side this is a measure you would lower and what number would you like we haven't arrived at number we want next that the board allowed the committee the opportunity to review the tree preservation plans assume we did provide the trees that we were looking to preserve and watching talk about this more a little bit later in staff no applicant plant lives of native species trees at ten foot spacing throughout the record or in wetland conservation area so currently the well and areas heda all the way to the  fifty foot one buffer that is not there today in order to revegetate this area faster with native species on the conservation committee and the state weapons program has said they're in favor of no greater than fifty feet reasoning behind other than other than that approach an ongoing invasive management plan would be in our opinion overly onerous for us to continue and maintain natural resources committee or comment that the would be since you agreed to a management plan and that is part of having a responsible land management plan is invasive and base of control and pesticides they speak of require herbicides and so it would be but if you could talk about non toxic i don't think considers this past may pose challenges during construction phase three and recommends the board discuss the applicant with the applicant there are tensions for this area  goes out on to dorset street it makes that ten foot wide rock path to dorset street continues the recreation path has this interior trail and then what's in question here is this playground and might be better moved to face four so we're we're fine moving it to fish for is appropriate and if there are no concerns at minimum consider requiring a permit fence to be installed along the boundary to prevent encroachment into the n r p and requiring conditions protecting the owner pete to be included in the  p and recommends the board consider requiring a permanent fence to be installed along the boundary and to have the undeveloped state status of these lands be included in the a t o way documents to be submitted for final plot so if you row there directly up against the n r p district and we are fine putting up a fence or some sort of hard skate to not allow creep you know and as the units are are the homeowners not going to have access to that area behind their units yeah that's a good point frank they are but they can't develop it so no it right should we require any heavy barrier to not i mean to be gated or in some other way to a while ready access for the homeowner on his part of the amenity and i think that it's part of the puzzle of the situation because those homes are so close to the  p we want people to passively recreate in that area you know should there be a physical buffer to allow somebody a strip of tomato plants i'm not even i'm not even five feet away the steps off the back porch are five feet away from where thou shalt not touch is that really good idea or should these people have a little bit more things in their home before they get to that shall not touch so so one thing i would say is those stairs were actually used on the ones on the other side of the road because we were specifically asked to give some sort of indication that those units would be would have some sort of a dual face so they addressed that public green space as well as address they were actually wouldn't see those stairs being on those units those are probably just decks off the back probably wouldn't have a lot of access take those away you know quite honestly it's nice to have a unit that's up close against the woods and you know some split real fencing and some indicator species a couple boulders to delineate that we do have ten feet between the units and that space so you know there's lots of other examples in the city where you have a similar relationship between what buffer branch boundaries yeah yeah twenty feet of fence and three feet of space it's you know i think that would be the goal i would also know that there condos so that they don't own the land you know so the possibility for creep like of someone's backyard where you buy single family house you know you expect to use your yard more than a condo so i think it's a yeah i think it's going to be important to have some sort of physical delineation whether it's just a bunch of boulders that identified the limits of it and i'd like to point out the single family homes are backing up to this two to four acre open space that is moat so that it's not an issue with those we really are just talking about the condos talk about the space behind a single family place exactly what is how many who participates in the in the in the in the ownership group of that open space the entire neighborhood is a buffer area help screen these guys provide privacy back and forth and between that open space but you know all our connectivity lines up to these two green corridors that access is into that and r p that that what we're proposing as a maintained large field informal field open space freeze by the rest of the developed buffer area will actually be closed off to the rest of the two people who are not the single  or what the buffer right there it's a landscape buffer it's not you know penetrable but it's enough to provide a visual barrier so as part of this agenda item will move on to the plan or a plot up location so i don't see no reason not to dive into stuff comments on platt number one staffer commands the board discussed whether to close the hearing and make additional home types a requirement for final plat or to require the applicant to address this issue prior to closing the hearing we would propose that we address this is part of the final plot this is comments in regards to at the previous hearing we were asked to add a note to our design narrative stating that two homes of the same style  no more than two homes of the state same style can be adjacent staff brought up that they were only one or two of our of our provided building elevations could be used in the smaller lots and they wanted to see a couple more examples of what could be possible through the design narratives and we'd like to provide those as part of final plan board you clearly want to see him now you want your final bottle five i'd like to be no one mark thanks we're just looking at the text mark no we're just looking at the text where it says the stuff recommendation stuff recommends board discuss whether provided allegations to determine if they can find this great tyria satisfied and this is in regards to the corner multifamily building you asked us to provide an elevation showing entrances that's what you see when you're on dorset street going towards it that's what you'll see when you get to it and look right you'll see the frog right and then if you turn around and look back there's your driv want of our stormwater details and minor revisions to some of the low floor of who says we don't expect the footprints of the of the treatment facilities that change at all so we would like to i'm fine the phone yes replacement should the trees reach the end of their natural lives and that's totally fine with us right next time you know a good friend i don't even think that that should be required t still asking them to preserve a tree but eventually it won't when you do the way we don't require replacement if you want to clarify that this is just while you're building a single family homes that's fine and i say that's my intent my intent is not to keep these you know  consider asking the applicant to take a closer look at whether some existing clusters of trees in the proposed open space between lot sixty to sixty six and sixty seven to sixty three could be preserved if you want to go to the site plan i can show you that area and we are willing to relook at this area and maybe just some grading for the goal of preserving some of the more so the area and this is this is an area that's controlled by the h l a so it's not in anyone's backyard it is in a open space so it's this area right there are so that's that's an area entirely bounded by houses right correct but there is there is an internal green space l b controlled by the community and between the right and the issue of tree preservation again should be left i think entirely to the homeowners in that circumstance and we shouldn't be sticking our fingers and well you know i mean i make an essential descent come on here as i was making about the single family the only difference be that this is a collective body of homeowners it's very business what happens within that enclosed green space i think and we shouldn't be overreaching explicit that doesn't do it doesn't reach beyond the development phase and is entirely in the discretion of the people who are most immediately affected purchases of a point of clarification of who would then credit these as part of our landscape budget that i would assume would be put in some sort of preservation requirement on it but someplace to do our best to save them not counted as part of our landscape budget wouldn't put any type of ongoing preservation well appreciating the applicants concerned about concerns about shooting staff considers the board may wish to consider a minimum translucence percentage for south waist south facing sidewalls staff recommends the board discuss the proposed that the standard only be used when the rear or the front of the house is facing south not the side of the house and it's due mostly to the proximity of the building and lopes that we're proposing  worried about shading and we rather see that standard only applied to the front and the back staff is requiring us to is requesting that we propose a standard to be used for that for the side walls when they do face south and we'd be comfortable with twenty percent translucence when the sidewall faces and the shading issue is because you've got walls that are next to each other or you're just looking out  ok so as we open it up to public comment there is an appearance that i would like to avoid i would like us all to help fight against the appearance that we of neighbors who live in expensive houses who don't want their views disrupted so and the second appearance that i think is false because the neighbors are good people kind compassionate caring people and the second appearance that i would like us all to fight against is the appearance of neighbors  expensive homes who are opposed to affordable housing in their backyards so you can go on the grand list it's downloadable as a spreadsheet you can take a look at the addresses of the people who are involved in the lawsuit the average housing price is five fifty between five six hundred thousand so i want us all to fight against what i'm sure is a false appearance that the neighbors want to simply move this development to somewhere else where people cannot afford a lawyer like mr self to fight the development and to fight it and therefore there must be some scientific expert based professional expert based reasoning why this land is more  important to conserve then other land near some other neighbors which is what's going to happen because the fifty one percent that's being conserved in the southeast quadrant if it isn't this land that's developed somewhere else in that fifty one percent the other thing i would like to ask neighbors as they come up and comment to to come back when i'm sure again is a false appearance is why you're in favor of affordable housing in your backyard perhaps saying to the developers gee if there was more affordable housing we'd be more in favor of the project something like that so i want to stay to all you know come together on what we agree i think because we're all kind compassionate caring people on you know are our statements in favor affordable housing for feelings and favorable for housing of affordable housing and the desire to preserve this particular property because it's better to preserve to conserve this property than some other property next to some other neighbors for so we are ready for public comment  different comments on different topics prepared to speak i think the applicant went floor and roughly an hour and forty minutes me at least that much time so we're going to knock off at nine thirty so we'll stop  and forty minutes well so it's going to be two minutes each you can have fifteen minutes you can have fifteen of the twenty minutes and everyone else will have two minutes this is not this is not a judicial hearing where it's lawyer versus lawyer it's city to applicant public comment it's in the presence of the public it's not for the public so those who go that's what keeps us alive january eighteenth that letter was not sent to me which i find to be disappointing at best and i submitted a letter on january twenty fourth about the secondary conservation areas not knowing that mr rushfor january eighteenth letter had been filed i discovered it on the city website on friday night the twenty fifth and i on saturday emailed mr rushford and i said what's the story here and he apologized for not sending it to me so that's that so the memo that i just handed out is basically a point by point refutation of mr rush for its january eighteenth letter and i don't want to use too much of my fifteen minutes reading it to you because you can read it at your leisure and since we're going to be continuing anyway that we can ask any questions that you have of me at the next meeting i suppose but i will say that all of the arguments in mr rush towards january eighteenth letter are baseless and that's laid out in this month ok i'll just go through it real quick so you have a sort of an overview or framework of what what you'll what you'll see but the critical overarching point is that the rushers letter m the land development regulations can incorporate municipal plants and in fact in the j m golf case and this is referenced on pages one and two of the months pre court stated explicitly that mommy to suppose these can mandate that development follow the city plan and that's a paragraph sixteen of that case that's exactly what the city of south burlington did in multiple sections requires that existing natural resources on each site be protected including conservation areas shown shown in the comprehensive plan and then section twelve point  one b says these regulations hereby implement the relevant provisions of the city's south burlington adopt a comprehensive plan and that's significant for reasons that will become apparent section nine point zero six p three mandates that the rb use the provisions of article twelth relating to wetlands and stream buffers in making the finding that conservation areas shown in the comprehensive plan are protected section twelve point zero one c four the regulations restricts new uses in so what the city did and by the way this was in direct response to the j m gulf case in the j m gulf case the supreme court struck down a land development regulation that wasn't specific enough as to what natural resources were going to be protected the way the city responded to that was to create maps seven and eight so there would be no dispute and they say these are the areas and these are the types of conservation areas and natural resources that we want to protect and you can see them on the map so it was it was to avoid any vagueness challenge which mr rushford is now trying to make about this regulation they made it specific you can look on the map you can see what's protected it's either off limits development completely that's map seven or there's very limited encroachments allowed in secondary areas on mapi this development as we've seen encroaches on primary and secondary conservation areas mr chairman that was the point of my january twenty fourth letter was in addition to the encroaching on the primary areas there's an encroachment in the secondary area as  well section three a on page three starting at page three explains that the t d r bylaw does not authorize development in protective conservation areas and any arguments the contrary are baseless this suggestion that because part of the dorset meadow site is a quote receiving district under the t d r by a law means that there can be building in a protected conservation zone as is with to be polite is preposterous i mean with the developer suggest that if there were a wet wind in a receiving zone that they could build in the wet winter protected well and of course not it's the same thing with the conservation areas that are protected on map seven and eight if you have a parcel  receiving zone that has protected features on it you can only develop around most protected features you can't develop in them so that the whole argument that because it's a t d r receiving zone it's therefore open to development  doesn't have the authority or their jurisdiction to ignore that section or the maps that are referenced by it but put any weight the argument is baseless nine point zero six b three states that conservation areas shown in the plan shall be protected and the plan shows these protected conservation areas on map seven eight is looking vague about th fact the maps as i stated before were created to avoid the vagueness argument in fact if you look at the open space report on page thirteen it states that in light of j m golf quote it is now recommended that regulations clearly identify those resources t protected e g through maps so the recommendation was create a map of the resources to be protected they did so in maps seven and eight the hell the r s give those maps the force of law look on the map you see what's protected because that's where you can't build is nothing vague about this now this is very interesting you heard a lot of discussion from the developer about why there may be some problems with one of the things mr rushford stated in his january eighteenth letter is that map seven of the comprehensive plan correctly identifies the right period carders as primary conservation area according to the developer the area should be classified as secondary conservation areas this is what we would call we lawyers call collateral attack they can't come into the d r b and challenge a map that was created by the planning commission if they have a problem with the map and obviously they have probable from these maps they've stated that they do they have recourse they can go to the planning commission and say we think your map is wrong our maps are wrong and here's why and correct them in your next iteration of the comprehensive plan i've frank and i think that's a little and it failed to be it it is in a nature this is a little bit of an overstatement of a clerical error if you fail to reflect the methodology that the open space report in tended to impose and therefore for that reason can be disregarded i mean i'm sorry if i misstated your argument but it's something like i don't think there's a there's not a failure there were i'm trying to get away from an absolute i reject the absolute that anything on the on the map has to be taken absolutely to face surely there could be some errors so gross and so obvious that we could disregard it wouldn't you agree without going to the planning commission i would respectfully disagree ok then you can continue with your we're going to agree to disagree on that we took the time off you didn't get charged for that the point is the the city council through the l d r decided to adopt maps seven and eight and give them the force of law to say this is where you can't it's off limits to development in the primary conservation areas on the top seven which is a huge chunk of this proposed project and the portion of the project that is in the secondary conservation area is only subject to limited encroachments i cite provisions in article twelve of the all the r s that say that list the types of limited encroachment that might be permissible in a secondary conservation area not in a primary primary is not and it certainly doesn't include for the types of limited encroachments secondary conservation area this type of residential density it's limited agriculture very very very limited encroachments so what we're witnessing here in real time is an attempted collateral attack on the maps which are basically have the force of law but by virtue of the all the r s and w utmost respect i do not believe that the d r p has the authority to disregard the maps i mean i've been at so many meetings and i'm sure we could all think of meetings where neighbors were complaining about a particular regulation or rule and the guidance from the to those neighbors was our hands are tied if you don't like the rule you've got to get the reg changed got to go to the planning commission start that process if this developer does not like these maps they have recourse they can go to the planning commission and try to get the match changed it's my understanding and i hope someone will correct me if i'm wrong but i believe that the landowner purchased this land since these maps were published so they could have looked and seen before they bought the land if i'm right about that they could have looked  that this land was off limits to development they chose to purchase it anyway and they did so at their p now even if the developer were correct this is out of mr rush letter that the right perry and carter that shown on map seven as a primary conservation area is really a secondary conservation or we don't think that's correct but let's just assume momentarily that that is true and that they could convince the planning commission that that were true in other words change it from a primary to a secondary so it's no longer off limits to development but only subject to very limited encroachments wouldn't matter and this is explained in pages five and six of the memo that i handed out what nine point zero six b three says is that conservation areas in the comprehensive plan must be protected if it doesn't distinguish between primary and secondary so obviously the intent there was that both primary and secondary conservation areas need to be protected doesn't matter which they are so even if you assume and this is not the case for the purposes of the the existing map seven that the what's shown on maps finally this notion and this is in point we're in the middle of pages six and seven this notion that if maps seven words excuse me to be interpreted the way we suggest it should be interpreted which is literally that it seven would constitute an impermissible taking of the developers land i view that i've been practicing law for a long time i view that as a thinly thinly veiled threat against the city that if this development isn't approved that the developer somehow going to sue that there's some kind of impermissible taking going on and i really hope that that's not the case but couple points on that one the standard for whether there's an impermissible taking is whether the developer is deprived of an economically viable use of his land in this case that is absolutely not the case it's my understanding that this land has been a working hay field and moreover not all of it falls in a protected conservation area so you know mr chairman you made you made a statement before we started about the wealth of the perceived wealth of my clients and the neighbors it's my understanding that this developer stated the directly to one of my one of my clients that they're hoping to make eighteen million dollars off this deal  so i take exception to the notion that this is wealthy people trying to deprive somebody of affordable housing or something like that with this is about is a developer trying to destroy natural resources to make eighteen million and my clients are not nimby's they're trying to protect the environment that the that the city council has said is protected and they're standing up for that and they're spending money on it and if that's playing the n fire on the state website so if you go to the open space plan it defines this area repaired it repairing collectivity as a surface water and repairing areas and i take it we agree that that's high priority and highest priority dorsett motos sits on the highest priority area from the state map and it goes out to conclude these areas of critical importance for water quality flood attenuation erota prevention and wild life movement this is based on says it doesn't guarantee accuracy the map speaks for itself either i don't know that's a concept of accuracy around the protected it was these are the areas the town was to protect to me what that means to caroline in the streets and houses in the g p s data that argument i guess this is more and more directed to you is it could could the town just take an unlimited area and say no building here we just want to protect a quote from wants to protect sensitive ecological areas that's not a taking this is the challenge just explained that's exactly what this city did so no there's no taking here's i guess my point if if the map on its face says we can't guarantee the accuracy and there should be a field survey and they say we have a field serv so i think the answer to that i believe the answer to that is found in the l d r's nine point zero six b three says the areas shown in the comprehensive plan as conservation areas shall be protected so then you look at the map and you find th wetlands and how they delineate the wetlands emptied when you look at power for the n r it says right in it it says that site visits are needed to identify whether a wetlands presidents site and to determine the actual boundary wetland areas now i see if the chairman will permit me that's an important enough point so if the developer wants to rebut it or has something to say about that i think they're going to be last comment for the evening on this issue so the bottom of the plan says maps and g i s data material made available by the city's south burlington are for reference purposes only the city does not guarantee accuracy users release the city from all liability related material and its use this edition not be liable for any direct indirect incident consequential or other damages says that the data was created by t j boyle associates my company i can clearly speak that if you go to the open space plant has a very similar disclaimer on the bottom and if you go to the a in our bio finder data has another thing ok we don't disagree that there are resources on the site we do and not only have we have we delineated the well and but we've delineated the stream corridor and the buffer the riparian co or is within the boundaries of the buffer that that's the reality of it furthermore there is a document available in south burlington page twenty two of the arrow  anyone that wanted to speak tonight and couldn't speak tonight we have another agenda item coming up we're volunteers we have kids and and spouses but we are going to continue this meeting there will be an opportunity for  discussed the conflicts of interest and so on and so forth there were instead that you have some ideas yes we do so basically in the interest of time i'll just kind of cut to the chase there are four things we're looking for one is an adjustment from the previous application of twelve point some five feet to fifteen feet another thing we're looking for is an adjustment of the grade from the current level or the pre construction level to a grade that brings the building height to fifteen feet which will be raising it from where it currently is based on the report about fourteen inches one of things i think was misunderstood by both the person who came out to measure and the staff was that we didn't consider the grade finalized as yet we consider that still in process but we when this all came up we curtailed grading in the interest of transparency we want to be and make it look like we're doing anything so there's that we've asked that you approve the five foot setback versus the seven of the application based on the bump out of the utility box and then the last thing is as i did as a really it's come up a couple of times when we got the building permit for the tiny house i also at the same time got a building permit for a garage one of things we'd ask is that based on the living space concern that you allow that the board allows that we dedicate at least one hundred square foot of living of the garage space to living space to accommodate for the thirty percent issue of the of the loft space so those are the four things i'm asking for up first and then the garage was going to be a project for this year so there's a photo of principal north elevation that looks like it has a little grey foundation coming off that is that probably that's probably back of them there's cars actually parked on the foundation right now but the foundation is completely ok so that's where we're grubs will go right correct yeah and then so this is this photo was taken from the accessory structure those taken from which would be higher than the current structure which was a concern when the buildings are measured and its foundations are attached so what is there will be considered part of the primary structure and so it seems like and i don't have the staff know an album that right now but the his proposal about the garage is sort of a new thing that we didn't talk about  and not address is that talked about the speaks to the issue of interior space and whether the upper areas habitable right so if we make the upper area the considered not habitable to keep it as it is we propose that we add one hundred square feet of living space to the garage so that we have a thirty percent requirement which is part of the the actively increasing the denominator  house or making my house is foot square foot it's larger sufficiently larger to allow for that thirty square feet it's not going to be used as a garage while you most will be used as a garage but that portion will not be yet right it's a big it's forty two feet long the garage so cutting out ten feet on one end which is going to be able to actually be heated you know sure yeah i think i think would turn into like a third bedroom for the primary house that's sort of my plan i mean and tell it's how we decide we're going to go that route i haven't really said exactly what it would be but it would be it would be heated living so little walk away from the house while i think where we're going to i was planning on putting a staircase in a garage anyway so probably will maybe do like some sort of bifurcated stairwell goes down along goes up into the into that it would be enclosed i would think off from the actually a stairwell down of the basement that has not yet been cut into the basement we have it open because we knew we were going to get it this year and with thawing we don't want to pretty big ice cube tray in there so it's just open to the ground but there is a built in area  down into and so my thought would be that we have a corresponding staircase out at the same  yet when the measurement was taken you want to have concrete come up right up to the underside of your side well we can pull the siding back a couple of courses grade so in the previous hearing one of the issues we discussed was the situations in which the board is allowed to or in which the l d r say the board should consider granting  adjustment of pre construction grade and one of those reasons is technical reasons it can't work unless they adjust the grade to be something else say for gra the preexisting grade for the purposes of getting a better view or you know having you know better aesthetics or that sort of thing because then you're creating a house on a on a f we actually would have preferred it to be lower if it was possible because the aesthetics are not as pleasing as they would have been had it been able to be constructed at a lower level with it so you're claiming for tech you need this increase for technical reasons what we need that there's positive circle if you look at the houses on the east side of mars court which my house is on the east side almost all of them look like houses on a hill they are all big and i don't i'm assuming the store is higher in that area or something i'm not exactly sure what the reason is but to get the sewer especially when you're back a hundred and thirty feet from the road to get it's a positive flow to the sewer the building had to be up higher the foundation had to be higher then it couldn't be dug down in other words it had to be sort of closer to the surface so if we chose to resign sufficient technical ground governor president the under your president yes the specific standard if i may read it out loud is in the st notes from the prior hearing on this matter development review board may grant such approval being alteration of existing grid where such modification is requested in connection with the approval of a yeah it's very there's very little actually while if you don't mind if i drive first second it might be easier if i just pull up the standards that's ok you just reach over your shoulder sorry guys think this is probably the fastest way to get it to you because i'm alteration permits required if you're moving more than twenty people guards standards for commissions for approval start here and go and that's it that's the whole thing that's it there's no there's not be so but the board has exercised this to allow situations where the applicant wants to build a two and a half story high building and they need to raise it so that sounds like the fifteen feet is a hard and fast limit in the only way to approve something above that would be to grant a variance which would include having to find that there's unique physical conditions that create an unnecessary hardship for the landowner maybe maybe not but crucially that the landowner did not create the unnecessary hardship i don't know how you could make that finding and the one that usually dooms varian's applications is that without the variance there's no reasonable use that can be made to the property and that's clearly not the case here so if we're talking about just the fifteen foot height limit i think there's no authority for us to waive that so what we fell in the more we discussed in the previous hearing as we thought on potential alternative path forward was to grant an adjusted post construction grade as the pre construction great so basically change your measurements and what evidence do we have that they had it just been is needed for super purposes and if it's fourteen inches and we're finding that the current measurement is between seventeen and eighteen feet you still don't make it you're still off by more than half a foot fourteen inches is a foot to fifteen plus a foot two and sixteen to our measurements right now your your building compared to pre construction grid so so maybe it's maybe it's six inches lower than you know it and yeah i mean i don't think it's a i don't think it's eighteen  is looking for a variance of ten inches right because we're asking for the adjustment from where it is currently not from pre construction great so take into account whatever's currently there and so whatever that distance is which is sort of an  at this point whenever that is plus what we need to get it is what i'm asking for that's that's where us work so twenty four total from pre construction libya's key question because i'm confused as to those who are suppose you built your excess restructure on the true exact pre construction agree on the just would you have a proper  congo for sewage flow so that that's a yes or no while on that and trying to understand the question so are you asking could it have been built at fifteen feet no i'm saying good i'm saying if it was would you have been able to install subsurface pipe that would have the correct go to give you a give you key to give you proper sewage was so my understanding is that the sore pipe currently comes up into the t i don't think you meet the super flow i think that's an example of self created hardship i think there's no doubt you don't get a vari at least to the criteria and i think we just three are questioning we just established that the amount of adjustment that he needs for the pre construction grade to not need a variance for the fifteen feet of height is more than what's really needed to make the sewer work properly that was what i where i was trying to figure out yes well it's all about the peak of the roof because the roof been done at a lower or lower level and obviously it would have made your loft impossible but had it been done at a more reasonable pitch you wouldn't have this problem that obviously the proof if if the current grade if the if the sewer line is coming up and meaning or seeding the current grade that it's at right now in order to make it i mean a sewer line ought so so it has i mean otherwise you'd think four feet right but but they actually could be fairly fairly close to the surface but if he's if that's the case and if you really are could only get positive pitch and he's basically  argument that he's foot eighteen inches from from from are you willing to could to get you have a technical person who could come in and make make your make you right there are some pictures that of the sewer basically lying more or less at the ground level before construction i'll have with me that would be where they put it because they are great so we can contact the people put in based on pitch they did it at the lowest pitch possible i think i would think you know keeping this open and having a mechanical contractor come until is what they've done you know might help with that level listen i'm inclined to try to find a way to make this all work for everybody but but i think i think all you've given us so far is something that we have to come back and say your roof is coming  based on what we regard as adequate evidence of what is needed for a positive sewer flow and if the answer to that is yes then he can send them off to try to get that evidence if that's good enough for him it still might and you can chase that down understand he still might come up with six inches short and we seem compelled by the language of the ordinance with doesn't have much wiggle any wiggle a nice little bullet right right that's why we don't really want to change is that all finished with wood and everything else i mean it would be i mean we don't see a lot and it's probably cost more to do what i proposed it may not be that much more in the bigger picture so right fifteen so if the number comes back from the mechanical engineer that six inch increase or eight inch increase was what had to happen then we would be willing to grant a variance of fifteen six or fifteen eight depending on the right right there it needs to be a foot deeper than the minimum because we've actually got a picture of where the sewer line enters the house and you can because we have this hole there you can you could you could measure where the bottom of the foundation of my current house is which is sort of his under that and we've got a photo of that and we also have a photo of where you could measure in the back and they can determine the grief and i think it's i don't want to be hard to get a credible measure so resurrection of access of our house right now with the board  like for mr washburn to bring his witness i'm supposed to provide her with written within yes because i feel like we're just going to have generally more questions right yes i think it's very important to have the witness hears of that we can ask questions and go back and forth as we need to oppose the original application based on the actual application itself and clearly we're here because the actual application was not followed the last time we were here there were some questions about whether we were what the actual measurements of the roof was so the board in its wisdom came up with the idea to have a neutral third party engineer come up and measure as we discussed tonight is as you discuss tonight that measurement is still over the fifteen and the applicant is now looking to have a conditional use permit granted to essentially amend the original permit and the figures that he had given in this new permit are still inaccurate  either at sixteen plus or minus if you're using the pre construction grade or seven hundred eighteen if it's the post construction grade my client's position is that it should be based on the pre construction grade just because of that was the basis for it to begin with i do agree with the analysis that a variance is not not proper for this and i think getting another sense of what that  measurement would be for the the drainage as it were but we would also ask if the board would allow to have another independent person do that work still have them come in today are come in the next time the hearing is  set but part of the issue is my clients feel like the applicant has acted in bad faith and is actually attempting to do an end run around the development regulations and end up with something that i suggest or choose the engineer this way it's not a choice of my client's not a choice of the applicants and it truly is an independent third party who would be doing just like we did for the engineering height the only potential i see with that is if there is some information that the person who actually did the construction what have the name one in person couldn't credibly discover and i'm not a builder and i don't know for anybody to do it and somebody you know if you if you had a larry burke i mean i've got a guy there that would do this and very little time  that just to refresh the board recollection as well last time we were here and i don't have other copies i had to mill pictures from my client's home to see this building and my clients understand the time expense that went into this and it's not ideal for them for the entire building to come down the understand that they don't want that to specifically happen but they would like to keep it at the measurements it was meant to be even if it is a fifteen feet to mark that their concern is the height as well other than taking the entire thing down and maybe lowering were taking down the second the second story as it were the living space  right right so that was actually discussed what we did and the problem is you have the it would have to go about in the in the canopy of those canopy trees there those are pretty big oaks because of the garage foundation of had it on a run that side and we were worried that they would potentially kill those trees because of how big they have to be for a little house like this really at brook at the bank they were talking about was on all three hundred gallons or something but it was like three by three force what is your client's interest in other words a practical difference for them in real life between a fifteen foot building and eighteen oh my vicinity is i believe it line of sight i believe that  the property of the building is closer to their fence line than they had really thought it was and i think frankly there is a certain feeling of being put over on him being duped at least the perception of that based on it and it's just a lot actually if you go to the the front view where we look at the garage that i think you call the north elevation from the road he's gone down now so you can see there the tiny house on the right and if you're standing looking there's at least fifteen feet parallel side to side between where the tiny house where they're from you can see the house actually at a bit of an angle that faces away from the tiny house and there's a significant delta there between the line of sight from the windows but the board does have photos taken from my clients back porch or backyard i don't know if that was going to be the case i would actually invite the board out of the site to take a look because there they had been creating their heads quite a bit to take their picture the grave is there still any way to impose some sort of penalty now the city works towards compliance in all cases the thing even in the case of a issued zoning violation if the applicant is working to remedy the situation