speaking testing one two three welcome to the south bronx in development review board for tuesday november twenty eighth two thousand and eighteen and first item on the agenda is directions on emergency evacuation procedures if there's an emergency we're all supposed to meet in the south parking lot which is right behind us and so those two doors there are the best ways to get out but you could go out the same way we came in if pressed so additions reminds me that i should make sure everyone knows that one of our board members is attending by telephone tonight he's on the go to meeting so he can see what's going on the little i have some on there lets him know what's people are been on the board i notice that another board member was refused from this very item and sat in the back of the room but ok at least it should be the practice the i'm sorry it should be the practice if you could just be very brief in presenting what you'd like to see than i don't actually have a handout that's ok in addition to what you submitted yeah good evening everybody happy holidays my name is daniel seven attorney in burlington and i represent the appellants to save time i won't list them all but there are fifteen times on the notice of appeal and those are the balance in this matter so this is an appeal from an appellants are all considered interested persons with standing to appeal and i've quoted the two statutory sections under which we maintain that we have standing to prosecute this appea now the main argument as you know from the notice of appeal and mr chairman i assuming an understanding that this appeal is concerning or this hearing is concerning both appeals the appeal concerning this keen and  asian meets the purposes of the land development regulations and in a recent case from the environmental court which was actually cited by news keene in one of her nov ninth memos this is the saxon partners case particular it is quoted there in the third bullet point on page two twenty four vermont statutes annotated four four six one a and basically what that section says in the bowl the portion is the panel chil keep minutes of its proceedings and showing the vote of each  member upon each question so the questioning for the d r v in a sketch hearing or sketch meeting is whether the proposed application meets the purposes of the when development regulations and pursu the saxon case be and there are i didn't bring them and i can provide them if asked but there's a lot of cases out there from d r b's around the state court cases that indicate that the d r b's need a decision on on sketch one way or the other so that's that's the practice in the state and as it should be it's because it's required by state law so i have studied the minutes of the aug seventh  meeting and i've studied the c c t v video of that meeting i studied that video like it was the ship hooterville and there is there has was no determination that the sketch up location met the requirements of r there was no vote to accept or reject the proposed sketch plan as required by the state statute in the saxon case so what is the significance of that and by the way that's not a criticism of this board at all it's just a statement of what we believe to be the legal state of affairs the sketch hearing was not closed and there was no final decision on whether or not to approve the legal significance of that is in section d  on page two which is that a developer or an applicant cannot file a masterplan application or a pulmonary plan application until after the sketch proceedings have concluded and once the formal final decision on schedule proceedings is concluded the applicant then has six months in which to file the winner gladder master plan so that's one of the important reasons why a formal roll call vote is why it's so important why there's a policy behind the law that there has to be a vote on sketch and it is that the public has a right to know where a project is in the permian process as well as the right to know how the rb members are voting on particular project hardworking dedicated public servants assumes inadvertently and we say respectfully incorrectly that the sketch hearing had been closed that a decision had been made to buy this board to approve it fact is that those applications were not ripe to be approved and therefore were asking this board to reverse those approvals now we have a second argument which is let's assume for the sake of this discussion  that the d r be did close the sketch hearing on august seventh and did approve the sketch outlook ation as being just discussed and as detailed in our notice of appeal we don't think that's the case but let's assume for the moment that that's what happens then the question is who has the authority to approve the applications that is this the master plan and preliminary plot applications what happened here was and i suspect i don't know but i  have a suspicion that the may have been some confusion here because this happened in the vicinity of the time that ripple where retired so this is the chronology as i understand it and you know i hope that paul or marlowe or anybody here will date by the city council august sixth and again i think my guess is the reason that that happened at that time was that ray was in the process of phasing out of not having retired as that the however according to the minutes of the  i'm reading into this a little bit that perhaps what happened here is that paul was appointed to cover the interim period in between ray's retirement and the arrival of delilah but as of september that's that's from the minutes so it's our position that on september twenty sixth and october twelfth which were the dates that marlo and paul respectively attempted to deem the  master plan applications as complete they were respectfully not the administrative officer with the power to do that so ms hall as far as i know we have not seen any documentation that she approved either application which frankly is a bit of a head scratcher to me because if she started on the seventeenth she was in position on the on the seventeenth of september on that september twenty sixth had to be able to do that so assistant administrative officer and the other one as assistant zoning administrative officer so i'm going to assume that miss keim was the quote assistant administrative officer on september twenty sixth which was the date that she signed the applications is complete it's unclear whether she had even assuming that's the case it's unclear whether she had the authority to do that because according to state law and i've got a quote from the statute here it's twenty four for ma statutes annotated fo municipalities that establish the position of administer assist in administrative officer and at least on the surface it appears that south burlington is one of those municipalities there should be clear policies regarding the authority of the administrative officer in relation to the acting were system officer so just to summarize quickly it's appellants position that this board never closed the sketch hearing that the sketch hearing was still open and therefore approvals of those two applications was not timely or right and even assuming for the sake of argument that the board did close the hearing we submit with the utmost respect that neither paul nor marla were the  is it your contention that the application was not in fact complete on september twenty six or that whoever said that it was didn't have b application to try to get in under the wire of to beat administrators in terms only so it's quite possible that the applications themselves house some deficiencies in terms of their completeness because know if the staff member said for example this application complies with the setback requirements then we'll all if it's not contested does not comply with setback require this and that and then make a ruling are we required in the absence of any challenge to inquire further into our staff members filing and i think that decision and if they rely on erroneous advice whether it's from a staff member a city attorney an applicant's attorney neighbor opposers attorney and it turns out to be wrong on the law  voluminous papers come in the very hard work of staff we correctly call a very hardworking staff right spends a lot of time reviewing it and we get memoranda that says what the staff things usually the applicant gets a copy of that memorandum where i think virtually all the time and can challenge what's in it and then either we do or don't look more deeply past what the staff member has formally has found depending on what the applicant has to say or the unless we see something suspect or fishy or not quite right what with the staffer said mean that's the way it works you're familiar with it you know so what i'm saying is a staff member says well the application is complete you can go ahead with the preliminary plot unless there's some overriding reason a wall we're going to rely on it so so four point two with the reason i it not a serious argument to be clear is that they don't need any authority to tell us the application is complete you need to come in and show us why the application is not complete that's my view o that we are correct that neither paul nor moral were the administrative officer with the authority and that's on the fact that they signed the application is ultra vires reason it has no legal significance and that's that's the point to the argument as far as i know this word has not legal authority to approve the applications and if you're saying we have the burden of proof to show that they didn't have legal authority you may be correct but they don't they don't approve the application we approve as complete what you're talking about is there's only one and then there's the quite there's the question of whether it was complete and whether the individuals involved had the authority to deem it complete well we were going to reject that they had the authority to tell us what they thought and you have every right to tell us that they were wrong and you're here with nothing on that point so far so that takes care of issue number two for me and for me you know i don't know if anybody else officially issue number one is a different kettle of fish you understand this board has always taken the position that it doesn't make formal findings on sketch plans it tells the applicant informally what it thinks and the applicant you know action on that or not and if it doesn't want to come to it with if it ignores what the board is thinking which is pretty open about right and in public then if it doesn't incorporate those thoughts into its preliminary application then it perceives that  peril we will always regarded that as notice and that's our president am i correct about that so it's unlikely because of that precedent that this board rightly or wrongly i mean i see what you're citing and i don't think it's a trivial argument but rightly or wrongly this board has a well established president that z l the r s which is what we followed don't require us to make the kind of formal finally you're talking about and to quote close the sketch plan here comes in for sketch plan we say what we have to say the applicant says what he has to say he said anything else he look what we're going to rule on your own or when when you're when your appeal right but i think i'm forecasting for you what is likely what the result is likely to be we could be wrong but it's like we will follow our president on that point because if you are right then everybody what four years not necessarily not necessarily because as as i tried to tried to look we're all neighbors here i've tried to present this decision on the sketch i'm saying based on our review of the minutes and video no decision was made that's not a criticism well this was the question is first one is section fifteen point zero seven see one and what that says it is that the master plan application must be filed who within six months after the final day or be meeting on the sketch plan yes i've read both of those ok and i don't think either of them have the effect that you say they have now going back to your first point whether we were acquired to make a formal decision if you're right about that then you're right but if you're wrong about that your argument has no further force because everybody do say and this is at the first bullet point on the top of that same page in section fifteen point zero five c three the d r v show quote shall determine if the proposed application meets the purposes of the all the r s and that's why your appeal not trivial and i concede i concede that that is an arguable point what i'm telling you is the reason it loses at this level is likely to lose at this level i don't speak for the board but i'm guessing is that the president is so well established here what is the harm i understand and i've been there that's happened all the meetings but what is the harm of saying at the end of the meeting something to the effect of ok do i have a motion to close the sketch application because the application me arms motion motion second in all in favor i am i to say there's any harm that's what i'm saying is that to ratchet up for us retroactively to say gee you're stuck for the next nine months or the next year to this applicant because we followed our precedent is unfair that the applicant i'm not going to speculate speculate on that you understand what the force are you perfectly well understand what the force are because it is the applicant comes in with certain expectations of the board in part because of its president the board could be wrong a lower court could be wrong and the administrative body could that i understand it didn't happen and it never happens in my three years i think of experience and in the experience of those who have been in war that's not what happens that's what i mean by respect i think that we could overturn our president i'm predicting for you that we're not going to overturn a professor that's my guess but i'm only one voice and you will be free to raise that particular argument when you want by the way i haven't read the case paul cited in his memoir and i'd like to hear actually from paul about his  i'd like to briefly address two main points raised in the peel we're going to point eight as to whether the sketch plan review was properly concluded i'd like to make two brief notes  first is importantly sketch plan review is the board has noted in its practice is not a public hearing in the all the orders it nowhere it's a public hearing it says it's a meeting it is with no public hearing open there's no public hearing to close the action of completing in item and or concluding in the evening barring a continuance choice by the board is the is the perp meets the purposes of these regulations and shall where deems necessary make specific suggestions to be incorporated by the applicant in subsequent submissions the board has always treated this as suggestions the purpose of sketch plan is to provide non binding guidance the question the couple of notes were just raised that i want to speak to briefly one in there is regarding state law and different communities around the state have employed that tool differently somehow binding elements some like ours have nothing by me to come from it the purpose of sketch plan is to give all guidance to the at a very broad level or guidance was provided by the board on two meetings in july seventh the seventeenth and aug seventh question was also raised on with there be any harm in the board taking a vote that the project meets the regulations sketch all the way that the regulations are written would suggest yes that there would be harm associated with that because that would create an appealable action which could then be appealed into the environmental court the board would have would have made a formal voted decision upon whether the regulations of the net without having seen anything more than a single page application that's why it's just a sketch and why vesting takes place at a later  just covered but first staff doesn't agree that the action of deeming an application is complete as necessary and for mamma and application containing all the required submission elements is complete when it submitted were girls of whether we determine that it is if it is complete palin is indicated this evening that they're not appealing on the basis of anything not being their second and regardless of the first  zoning ministry of officer pursuant to the city charter i did want to speak to the question of september seventeenth and whether there was any confusion in the minutes attached to the minutes that are posted on the web site is the staff memo that was provided to the council on that date going to read a brief section of that this is a memo that i drafted to the city council that's included in the minutes through if you click on the hyperlink in order to provide the public with the greatest customer service and to help bring delilah up to speed staff is seeking that she be appointed an acting zoning ministry of officer acting code officer and acting telecommunications officer for the time being at least staff is requesting that she be appointed under the under the title acting under the overall authority of zoning administrative officer paul f e m a rose in marla kean will also retain their authority as acting zoning ministry of officers and acting code officers to be able to issue permits etc the appointment would be effective until the council's next round of any points in which that's what the council took its action on with that staff and that's essentially all we have to see or questions rusher should be invited to present testimony and not required to but if you'd like to say something thank you i'll be very brief and we certainly agree with that staffs memorandum and the rationale that was provided i would say from my own personal experience that  to the board's president on sketch is something i've experienced before and i've been i was in the saxon case so i understand that and was in the sphere mentos case where this persuasive argument came up did rights we've talked a little bit about that there's a there's a classic case under vermont law which is smith versus when all planning which is a case in one thousand nine hundred one and in that case the supreme court set up the rule which  supposed to be a bright line rule about when does an applicant get vested under the law and there have been a number of cases before then where an applicant would file an application and the community would try to change the regulations while the application was pending and the supreme court had a decision to make are they when when would somebody who is a landowner seeking a permit when would they have a vested right supreme court determine that that vested right would occur when a complete application was filed and the policy behind that i think is important to keep in mind the supreme court said they chose that rule because it serves to avoid a great deal at least of extended litigation it makes for greater certainty in the law and it's a without changing and i o to my statement of the board president can you refute his proposition or comment on his proposition that there's an obligation to take a formal vote in other words do you agree with mr doing which are very wise you have a view of fifteen that mr denk was your side you have a view with fifteen point zero three c well i i think it's consistent with the goal of sketch plan which is provide feedback to the applicant and so part of that feedback is determining whether you meet the meet the purposes of the l d  and one of the kind of the catch twenty two is when we were doing the saxon case the feedback was you don't comply with the regs and the applicant had a difficult situation because what do you do with that it's not a final decision that you can appeal  because it's a meeting with feedback and so they that that's where that got caught but it was an opportunity for the applicant to understand where where are you headed here and are you heading towards troubled waters because you're seeking something that's not going to get  the actual language is in the sense on the schedule when it is his whether the sketch play meets the purposes of these regulations it doesn't say whether it meets the criteria of the regulations it's not a prejudgment of the ultimate statement of purpose in the front i think it's fifteen point zero want it says it has to be innovative or whatever the heck else it was and that's what i relate that to avoid statement well there's nothing innovative here so we doubt this will be a piece we would say informally based on her press that's all i think it means but i have another question for you you were involved in saxon that's cited here by paul mistress of seems to feel it stands for something other memo but what's the what's the ultimate holding in the case this is not that the sketch was not a final decision that the that is appealable that was in at least in south burlington that the determination by the board that you do you determine whether a project isn't allowed to use at the sketch plan phase is there anything in the case that in fact supports mr cephus contention that the board is supposed to take a formal vote on what is supposed to determine that sketch plan didn't prevail in that argument you are making it in other words we were trying to argue that we had a right to appeal as a applicant i'm not talking about whether it's a final decision i'm talking about just a pure matter of procedure whose or anything in that case that says board urged or should have taken a formal vote regarding whether the application complied with the purposes that i'm aware of and i don't i don't think was procedurally the posture of it wasn't in a way that that issue came up i don't believe how come you can reserve the right to comment on that because i want to get to something else what whether or not to do it let's assume the board just blew it and has been blowing it for years and sketch plan or does that control  do you have a copy of mr session and yes take a look at page two i asked him whether it mattered with the only thing that issue here is whether there's a complete application and therefore a vest that's really what's going on and the grab them none of what he seems to be saying is well if you messed up the sketch plain hearing then the could not have been but this needs to be the grabbing that of his argument whether it is or it isn't if you messed up the sketch plan here and there could not have been no way no how a completed application as of september twenty six and when i asked him the question he cites to fifteen point zero yes oh seven she wanted fifteen point eight which simply said that you have a certain amount of time after the final d r v meeting now we think it's pretty clear when when we've had the final the ib meeting cause excuse me the final sketch play a meeting we think is always pretty clear because you say we 're done with sketch play we look for the right here application do you read either of these sections as precluding the firing of application assuming that we messed up the sketch plan here you understand the question early but let's assume we messed up the sketch plan here but you went ahead filed a masterplan application anyway excuse me a pulmonary application plan package anyway and it was complete is there any relation between the two events that is we messed up we had we had a a legally messed up sketched claim hearing but you filed a timely pulmonary plot application is that quote legal is your objection on those grounds to the effectiveness of the of your application believe so and for the following reasons so as we know his own ng is in derogation a common law property rights and the supreme court has created standards on how you interpret zoning ordinances and so zoning ordinances are supposed to be strictly construed in favor of the landowner applicant if there's an ambiguity it's construed in favor the applicant in addition to staff's interpretation of the regulations that work on drafting is given a fact on appeal and given a fact by this board which you've already indicated and so to the extent that there's an ambiguity in the ordinance about when you can fi plot any of those ambiguity is to be construed in favor of the landowner to be able to do what they did in addition to that the the actual words used here in the fifteen zero seven c one talk about it here be meeting not here in which it's been pointed out that sketch sketch is a meeting and i think that the precedent that's occurred here the applicant reasonably or line you have to reserve so if anyone has cuts or questions from interested persons ask that this be about the specific item on the agenda and that it not be repetitive that it not duplicate what's already been said but if yeah my question is really very simple and my our attorney may actually be surprised because my question is i've just been reading in the other paper and i read these things about what the d r p is telling or whatever and it seems like they're taking votes at cetera and i think what i'm hearing tonight is you never take a vote on a sketch plan is that correct so the things that i'm reading in the other paper where you actually take a vote on other things like plat or whatever this plan why is it that you never take a vote may i ask that paul pointed out in the  trees over here we want more trees over here we want to you know bigger setbacks more setbacks so we're providing general guidance to so when the actual hearing takes place on the site plan application or the all those things so that they could be guided so they don't waste time trying things that we've already told them that it's not going to i see but the clock starts ticking at this point at which you haven't taken a vote it's all wondering what happened we don't know how to communicate what happened because we don't really know what happened and i guess it it just strikes me as a matter of process and policy that there's a reason why there should be a vot very quickly on the supposed distinction between meetings in hearings if you look at the police page two of the handout section c third bullet point i quote the state's statute twenty four vermont statutes annotated section four four six one eight quote meetings of any appropriate municipality municipal panel shall be held with a call the chairperson of those and speak in terms of hearings it speaks in terms of meetings so if we want to call the sketch this sketch proceedings a meeting so be it state law says meeting at a meeting the quote meeting the panel shell keep minutes of its proceedings and show the vote of each member upon each question so i think the distinction between a meeting we attempted to stick to between a meeting and hearing it for the purposes of the legal issue on this appeal is that this thinking without a difference as far as the that's an accurate quote that i don't think he's quoting from the case actually there is a reference in his quote to the entry order and it's the entry order i think that governs it's the entry order that i quoted and see entry order that i have here so all so that's not a quote from the court i don't believe it's a  from the from the decision of the court i think it's the judgment order but you just oh it's in the judgment order i think that's what they said it's from the judgement or because the way it's i'm not looking at it right now but the well says and says as more fully explained in the company entry or rejecting that appeal as not allowed is and this is the top of page three of the entry for the d r b s comments in this case do not fall into any of the categories of final decision the d r b is allowed to make at sketch plan review so the comment the attack the comment that this doesn't meet the l the r s was not appealable because he was not one of the categories of quote final decision unquote that the d r b is allowed to m sites you ask about fifteen zero five c three here's the quote the d r b's comments in this case do not fall into any of the categories a final decision of the year by the rbs law to make it sketch when review see regulation section fifteen point zero five c one comma three so he reads judge walsh reads and that the president from equal it is binding on this board that under fifteen going to the three the board does need to make a final decision to pass somebody out of sketch it didn't happen in the saxon case and with the utmost respect don't believe it controls whether someone can file a complete application i just had read it i've heard it i just don't think so because think about why it should go ok and this  classic example of why it should this is what happened here in this case more so than sachs ok people knew people in the film community in the rb community in the neighbor community knew that interim zoning was being discussed there was no final decision and that's a quote from the quick it was on sketch the applicant an applicant in that situation would be concerned that if the interim zoning goes into effect sketch approval so that's not that's not appropriate that's not appropriate that's a bet we would we would consider that to be a bad faith while you don't get to rush to the from the to the d r b but that's but that's not what happened here we all knew quote we all practiced law for years he didn't know you may have known collectively subconsciously but the people in the room didn't know i can tell you i'm not going to get into specific communications but i had multiple people inform me that they didn't know what happened the intelligent well meaning smart people did not know what happened in that meeting and we got supposed to consider changing that practice going forward but it doesn't it's not there for your benefit you're arguing  two sides your mouth you say the applicant deserves to know when it's over right i'm saying that there are policies for the rule that there needs to be a final decision some of which are designed to help the applicant so it knows when to file its next that we cation and some of which are there to help neighbors know what's going on in the process it's not two sides of it as a matter of policy you know i don't necessarily argue with you i think it's been clear in our in ours at our schedule plans when it's over now if it wasn't in particular cases you know i regret that of course it doesn't matter much if you're just a voter because you can appeal the decision anyway really he said matters is and you've identified this you understand it completely the reason it matters is that you need your ticket punched in sketch before you can file your master plan and preliminary plan though you have been happier no you don't you can few can foolishly proceed if your tickets not punched but but but i don't think you need punched out to do whatever you want but for the be valid not you an applicant can do whatever it wants but for it to be valid they need as judge walsh refers to the final decision from scratch i don't i all i think we disagree on  deliberate based on that information directly right so i'd recommend that we not look at this not their time on this now is read me who's killer point it didn't kill him exactly but so i recommend that we move on to the applicant's responses and i'm not a lawyer but there's clearly procedures that should be followed in my reaction to this is just because you haven't been following the procedure doesn't make a right you need to follow the leaving leave me so just to kind of preface this i was here back in i believe was mark for my initial we've now gone through the destruction phase and there were some minor changes and some misinterpretations on my part of what right so we'll talk about that later so let's go on so you have a copy stuff comment i do yes ok so if we'd like to start with number two is a sort of a section if you will of the last space the ceiling height maximum height is six foot five inches that covers an area of fifty one and a half inches in the middle and then it slopes down to the sides where the height is thirty six and a half inches i've looked online to try to find a definition of living space i found some that say six foot five inches constitute living space or above i found some that say seven feet or above constitute living space i do have  website that i found it's from the it's like a home inspection site where they show that you can hand this to you guys i didn't make a copy of this i wasn't sure how this  solar versus a basement based on that like a basement can be taller and that's considered living space but in the way i read it i would say it is also an attic which is within reframing this space entirely within the reframing  does not meet the maximum reality eyes because because mr washburn has a small house to begin with well the r s the limit the maximum size of an accessory drawing unit access or residential unit to thirty percent of the size of the primary structure so if the board determined that law is part of the habitable area of the accessory residential unit then your successor the residential unit is too large and new space it's a storage area i mean it's a small house where you put stuff right because there's close up there there's you know yeah but you know i had a loft is that the building has been minimal you know he started with a very small house with which to measure his thirty percent and he sort of made his tiny house a small as he could to have it be habitable and he's really up against a hard place because his primary house is so small so the consequences of determining that the access to residential unit is over the thirty them and i had never considered that as even part of the part of the process because i considered it not having a space based on everything i've read about six foot five at the six six foot six at the lowest and seven feet generally regarded  so just to back up a few more steps from time to time projects are not built the way they were approved typically it's something like a failed to install a parking space they put the dumpster somewhere else typically those sort of changes don't rise to the level of coming back before the board of their minor amendments we do the ministry of late this the self determined have to come before the board because the two issues are high and setback  this is something i mentioned a little bit earlier today in our deliberate session when the board specifically reviews something sas position is that to amend it and it's a come back from the board minutes from the the meeting that mr washburn was here for talked  about i remember john asking a question about it which is why the stuff felt it is important that this come back in front of the board but this isn't out of the ordinary for somebody to come in and say mayor called i want to just kind of a foot because i'd misunderstood n sewage doesn't flow uphill it needs to go downhill so that had the base of the foundation had to be high enough to allow that gravity there was some talk of maybe putting a cistern in but there's a few sort of there they're huge huge trees and those cisterns are five or six feet by five or six feet by five or six feet and the hole is going to be ten feet deep and so we decided that we would rather use gravity than basically kill those trees and we thought that was a reasonable thing to do so the foundation again this is were i made a total mistake when i was putting it all together i thought final grade height was based on the frontage against the road not the preexisting grade so the way it was built was the slab was core basically the top of the slab was agreed and then there was a sixteen inch space so that's additional space so the building to the top of the crawl space measures about fourteen feet three inches but we have the do result based decision making it's not it's not good greg stan i totally understand and i want to send i i totally misinterpreted i probably should i answer money whenever we just didn't and it just didn't happen so a remedy that stuff suggests as we see in some other reason applications the board has the ability to as part of an alteration of grade approve a new pre construction grade  effectively meaning if the applicant needs to change the pre construction agreed for whatever reason president is that board approves it planets or board tends to look favorably on it when it's because the physical necessity then they can use that new newly defined preexisting grade from which to measure their height if the board looking at that figure again please if the board were to grant where paul so the big question to me is the habitable space quest in this i don't have a problem with this something we'll hear from the barbers and see if there's other issues that we're not thinking of but i don't have a problem with this anybody else have a all who is at twenty six suburban square in the butt or just on the exact other side of the fence now the issues that my clients have is that they did not contest the original permit based on the plan as submitted and the language as intended to be approved whether it was a simple mistake an actual misrepresentation is relatively moot for these purposes  but it is our position that the conditional use permit that has been submitted is also actually in accurate and that the midpoint as measured is closer to eighteen feet rather than fifteen feet my clients have had hired t c to do them a measurement and i apologize i don't have enough copies for the entire board they do have some copies for the board  so my clients seek a denial of the permit based on it accuracy is in this subsequent permit but at the very least would seek third party confirmation of the actual numbers that exist right now because there has been discrepancies in the measurements as first proposed and then as proposed now so the idea is to actually have all of the facts and have the board have all of the facts before it made its decision i can understand when you say ok what what what what don't you understand so she wants to do so wait a minute they understand what you said that's working but i'd like you to understand if i if i can make it clear the our issue part of it of course is that we didn't have a chance to contest something to begin with because we had no problem with it anyway waiving he came in he asked for the permit you didn't contest it because you didn't object to what he was asking for correct so you had an opportunity to object to what he was asking for but i didn't because you thought he would build it the way years for and as permitted that he got a permit to get what he was asking for ect and he c e did a leave laser measurement they did not get on the property and but the measurements that mr washburn is presented for this application is that correct yes in the alternative i mean our first is just to deny the permit for the conditional use permit in and of itself to not allow him to amend it i recognize that that will mean that he is not in compliance with the other permit and i understand the consequences there but to the extent that the board is not comfortable doing that at the very least have a third party independent person who neither side to actually confirm the measurements that he is now submitting because of whatever misunderstandings that he had to begin with from that position ok so with regard to it's a bit of a nuanced issue because it a suggestion for you not to tell me what the answer is but do they have a plan for dealing with how to evaluate what the preexisting grade was not that i'm aware of at this time ok so would you have been taught me if i'm not putting words in the board's mouth i'm just asking the questions that i think are important to me for the board to make a decision if the board indeed chooses to establish a new pre construction grade that we would agree that that's the point from which i have a week we could beat this pretty hard right here my sense of the matter is going to be continued and the reason i think it ought to be continue i want to see how the board feels about the issue of an advertisement here you know on the one hand it's a real hardship we understand the hardship of a tear down at the same time we understand the bad policy  result oriented decision and i think we ought to be way in that in a deliberative session continue to hear it for that purpose decide whether we're going to grant this idea of a third party can i make one more just one more point on to the the pretty great the top of the foundation which is where we would probably request a new grade me from is still at least eighteen inches lower than the grade on the main house so this house is still would be measured from a lower point than the main house even even with an adjustment so from the standpoint of the a but it's a different perspective but mostly there's a lot of stuff on the on the on the talk from the perspective of the street so that's where that's where i got kind of i guess caught up i just don't understand how seven six inches could make a difference their next door neighbor on the other side of them is closer to my third their house than my house is when we play in the location of this house we were very respectful about the neighbors we could have put it dead center in the backyard but we put it out on the corner so we weren't next to anybody there's a big fence there's two he mentioned the two big oak trees so all the windows are low on the back side of the house we have done everything to make sure about our neighbors work setting up this our other neighbors can't we become over and see it because they think it's so cool so i just really confused on how something like that could affect somebody else's life not drastically and i guess the other thing is i'm not sure when the picture with the green morning was taken but this frame went up on june twenty third so they will have all this news for six months and we've been nonstop instruction notice  been better thank you i don't think we'd be asking the african to do that well i think that i think the idea of having an accurate measurement made by a competent engineer and firm this is a good idea fifteen point eighteen point two i mean it looks like you're there are two tenths of a foot difference from what he says he says it's eight hundred feet you say it's you're d c he says it's twenty one point two at the top and you say it's twenty one so this is point two difference i mean so that's one searing is like the two inch two and a half inch you say is twenty one of the peak well it depends on what you're to of the overall structure yes but not from pre one that was there who's been there i've lived the house for twenty six years i don't know why it was there but water would collect in the middle so somebody at some point must have done so if it's from their perspective of their backyard actually slopes down into their backyard a little bit there so you know there could be twelve or sixteen inches of difference if they're using that as the height i don't know so that that could explain some of that eighteen versus twenty what is the height of the natives i do the main house is eight it's seventeen when i do it but on the back it does it is exposed by four sets of bricks that's another forty so twenty one and that's accurate measurement of a wall everything you know what the existing grade is what the revised pre construction grade might be a sweet agreed to bring up to the slab so just accurate measurements that's good and then we can talk and from that back to the halfway point it's fourteen feet three upcoming trip to india for at least two weeks now not sure if it's going to be the fifth the twentieth or it's going to be the second two weeks of january but i think i could send her as a delegate no matter what we wind up so if i have to postpone it would that be a years they were running some financial troubles and up racial struggles and so about ten years ago they gave it to and if i am with the agreement we will continue to run it as it had been operating we've been able to successfully do that for the part we had to make some changes with funding for the program comes from the state we go through this and m r i the private non medical institution rate setting funding process so our funds are limited by the rate setters through the legislature statement of the program serves eight kids in the past it's been since we've taken over got feedback from licensing the bedrooms are very small so they're so small that there's really not much closet in these rooms so they meet the minimum requirements we've boys and would four girls in the other the kind of kids were having referred now are different than the kids that had been referred historically in the past the kids referred strictly after bed time they mostly stayed  room you have to worry too much about the kids receiving now they come to us with an awful lot more problematic experience before they get us often times significantly experiencing  significant amount of developmental trauma so we find we need to staff the bedrooms we need a staff member all night more actually watching making sure that the boys stay in the boys in the girls in the girls room with nobody to anybody else's room so because of that it's going to be much more efficient when we're going out for us to have all the kids and one for so we can one person can see all the bedrooms and make sure be from the main road comes back to the building there is a sidewalk there or where adding on the west side of the property the sidewalk and some of the grading  there's no use issue whatsoever just a pure building issue you know i think in the preamble is just give you a feel for what the property is and you know understand that it's a nonprofit and that certainly you know cost is a major consideration when they do any sort of expansion expect in the existing building there's two floors and the bedrooms are kind of someplace on a like off off to the west or in the main mountain west yes not yesterday two floors up for and we're fine with condition i'm with you number three stuff considers the standard to represent the minimum landscaping requirement and recommends the border part of a more robust landscaping as discussed above in order to meet the as well and we currently have overhead power that comes in from the street as two poles and then it runs through a weatherhead on the building and that would be a sizable investment for us to have to put all that on the ground and again being a nonprofit you know budget is very important to us we would ask the board to allow us to continue to have the building served by the existing overhead power house board feel about that my view is three types of cabling in the ground the rest of the board so they didn't care and they would not insist on a miniature oven took we're going there comment don't care to mean that you don't really need to see these things it ok so given that cost which i thought i heard was in the range of twenty five to thirty thousand dollars yes given that car is it your i didn't see this regulation i read in the you are reading fifteen thirteen feet we all agree that that's what applies here new electric telephone outdoor lighting cable t v distribution  the opportunity to use a portion of the required budget for site plan prove meant other than tree planting as long as the objective of the landscaping standards to result in a mix of large canopy crispe she is met were agreeable  seven for a second because it occurs to me this is about the landscaping and the curse me that the poor probably can't close until they see the revised plan sweeping plan because the board can't be specific enough about that once given plan would be have a landscaping plan but it doesn't it's have the power to short four thousand it's short by four thousand dollars yeah it was and they said they will amend to address staff comment number seven but and bridge over a on the road there is not very wide it's just wide enough to carry a road so over here i actually know that pretty well because i run down to that corner in front of the apartments there pretty often and there's a