ok welcome to the self delusion development review board for tuesday october second two thousand and eight the first item on the agenda directions on emergency evacuation procedures from the conference room if there is an emergency we can either go  items not led to the agenda or three years ago you must have approved it but it's a sort of underground gravel based wetland structure that treats runoff and filters it through a in a rover condition basin it has a very high phosphorus removal rate and a sediment removal rate we typically assume that if it's capturing sediment it's capturing most but not all of the pollutants that would and i just to give the board some history on it as well the the whole sighting in designing of this system was based on years we've been out doing this since two thousand and twelve my team i was the only designer from the start when we were hired by the d e c to look at this so we started this process by alternatives analysis to look at several different options and we went into detail in terms of lining out several different options for treatment looking at doing this system looking at doing the system plus doing work downstream on the other side of the railroad tracks looking at potentially diverting this water out of the the watershed to the looked at those options and in detail we develop plans we developed costs and looked at all the permitting implications of that the different options and we arrived at this option being the best option in terms of water quality and also feasibility related to the permitting constraints so that's where we arrived with this right now and this is construction date would be next summer fall proposal we were just reviewing the stuff come yes we'll we're talking about two different properties they believe rates right now are on m s c eighteen and four so what is can you direct me to the specific comment here that is age three come and wanted to  to get the proposed impacts permanent through army corps of engineers so i mean the well in itself is is small and isolated and of low value this is you know based on the feedback that i received from the weapons state weapons person and so i think that you know replacing this this isolated one with a much larger more robust treatment system would with to come up with a disposal plan for that material and also to make sure we avoided any there is on the velcro property they're supposed to be a rear species of rush we did have the state biologist look for the plant we couldn't find it but they've given us a clearance that the construction area is not where they believe the plant is and there is a sign on the property think it's up to the board to determine whether to accept the impacts this wasn't intended to be a value judgement either way from it's from the board on whether to see this kind of impact on this  land is i should clarify the email was brief and not particularly when the meeting which is why i didn't include it for the board it basically just said what i'm told that we need to also include jim having jim here from the state want to shit i mean these are the guys we normally count on that tell us whether we're exactly the right direction so i have no problem with accepting this is a recommendation was the outcome of the corps so it was a it was like their class one permit which is basically the lowest risk permit so we filed the application and you don't hear from non it's basically just a self occasion because the impacts are so small that was filed i believe last year with the army so would you like to respond to the points in the letter sure i guess you know i think one one of the most important points to to bring to the boards attention is that the project as i is not bringing in any additional runoff to this area there's already a lot of uncontrolled storm water runoff flowing down this strange way once it flows through where we're building the facility it flows under the railroad and it continues down a very a road it gully pass in this nasties home and into shelburne bay as a part of the initial feasibility we actually looked at doing some work down in that next to her house and it was determined that down there there was a concern of having it be more of a a naturalized watercourse and so it was not feasible to actually do work in that in that drainage way itself we also looked extensively at bringing the water out of the watershed to the north which would bring it into an unpaired watershed barlett brook and we did a plan we did a detailed plan showing the engineering of what that would look like and i talked with the person and in the the watershed division about the implications of doing that and we have a memo from only shelley who is the technical person who's deals with the pair of watersheds revising us against doing that for a number of different reasons mainly because the whole intention of with the city has to do under their stormwater permit is to reduce flows and barlett brooke this would be actually be increasing flows to a stormwater unfair watershed that already has way too much flow so just right off the bat it was not a good idea to divert the water out so really i think this is only a benefit to the  nesis property because we're basically just controlling all this existing water flow and slowly releasing it inch in treating it without bringing additional flow in and so it's it's the way i see it's just totally  mitigation measure you know there's there's no doubt that there would be a reduction in the frequency of runoff events going across francis's property as well as into shomron bay and it will be cleaner water as well but we can't eliminate the water from doing what it's currently doing i don't think even as i understand i don't know if it's problematic to divert it to martin brook for i'm sure you're familiar with the problems in part brooke but it's equally problematic from the army corps of engineers point of view because because even though when frances moved there i believe or when they purchased the land there wasn't a stream there there is a stream of sorts there now and they consider it water in the state or federal water and so which is why we had to get the army corps permit we actually had to have fish and wildlife  the road they're less concerned so it would have been difficult to permit a relocation of that stream because we would essentially drying up the stream even if it wasn't a stream thirty years ago that is the stream today says that she will not accept the flow which this plan shows to discharge in the southeast section of her property moving westward and what you're saying is that there the flow is already there  the green the rate will be changed isn't an infiltration type feature which actually would remove the water because the soil or heavy enough to where we're not going to be infiltrating the native soil i mean there's going to be a lot of plants in the water's going to be sitting in that well and so some of that will be taken up by the plants and removed so i mean to an extent they'll be a small amount of volume reduction but really this is about rate reduction so reducing not be increased a lot or this is just his letter shows that business is what it shows that the plant show discharge conduit to be a large from twenty four thirty six inches pipes are undersized presently and so you know as part of the engineering practice of designing the house we want to make sure that the pipes leading into the structure and properly sized to handle the storms so yes that's true but pretty much everything is backed up behind one concrete control structure so all that flow even though we're upsize in those pipes it's all being held back in that well and controlled through this this one control structure you have minimal authority over that you know i think there is authority over whether the flow is directed onto your property mostly it's a state we don't know from impaired so i mean we don't really have to restore that right ok number three discharging impaired water into shelburne bay is circumventing the law so once again i don't think we have that's a state function and there must be i'm saying there must be scheme you know agencies that you could make those two points to that would be better for a means to hear those things than us but the first thing we can address which is the flow and it sounds to me as cold a flow is already going from this area onto your property and that the construction plan fact is that now today all that stuff is going through your property and this project is going to reduce it and clean it up if i interpret the trans discharge point which is the railroad call for and all of the flow is being held back restricted by that one final outlet structure that we have from the ground well so yes there's definitely more play because we're  back and you know tried to where we could address the runoff from other sources so the pepsi facility as you saw and you may remember we didn't do such a great job of forcing  permits for a long time and some of those facilities kind of went by the wayside even though they were built in the a d c you know by ten years so we went back to see they've all been recruited and then hill has been recruited there's a pretty substantial behind the jolly yes station that belongs to pepsi we've tried to decrease the erosion there as you know we sheltered road when it was white and really is well summer has required some additional controls and some of the other properties so we have been trying to get back at some of the sources that were maybe you know unfortunately misaligned in or one else think of the conflict i don't it doesn't sound like it is to me ok please describe this just the same as the previous right sure so the reason that  parcel is wrapped up with this application is that the the drainage from this parcel currently drains into this whole area that we've been describing with the gravel well and and basically we're we're improving that discharge by creating a four bed on the b s s property which is basically going to serve as a pretreatment area so that when that water flow runs off of the storage facility it's going to go into this four bay trap creating basically doing away with this a smaller kind of defunct little pocket for bay on the on the property making a larger stone line for a bit more of it to find out right so we we talked with the owner about that and he he had a specific question because we to his knowledge i guess there was a he floated and so we were just curious if you other so the bike rock apparently that the bike rock was hit by the plow and removed and he knows where the bike rack is and can put it back to its permanent location  so the bike rack doesn't need to meet the current standards i don't know what type of bike rack he has but he only needs to provide two bicycle parking spaces so there are some provisions for using reus parking for two bicycles in a location the previously approved graphic and then we can work with him when we go out for a c r inspection if that makes sense you guys i think don't make sense  stabilization within the limits that we were allowed to to by the army corps and the fish and wildlife and also i noticed on the construction slams the floorboards figure it's not going to take care of o system that will be built on the parking lot at disproving sound and that will have a pretreatment structure which will then discharge into this well so all of the runoff from upstream of the it was willing to basically give this korean two to the town shelter and basically give a license to the town to show over on they actually wanted to give the land but neither community wanted the land off their tax rolls so  there you know they have high tension carolina right here which is kind of a strategic piece of property but they didn't see any need to own it but they've been willing to give us a license to thirty give the town show over the thirty year license to m ok so we have i thought the purpose of tonight's meeting was to hear any reaction there may be to positions that we've taken i couldn't quite tell from the information that we got whether you got a reaction and were not and we considered it  and we have briefly discussed it is that we just don't think it's a it's it's a good project because and frank has the exact frank and john have the exact warded off not going to try to get it because their wording is much better than mine use problem exactly you have conforming use issues and i don't see a way i don't see a way i will i don't think the board as a whole believes there's a good way to get around these non conforming use problems and are not swayed by your arguments to date but i feel something of a moral duty to go a little further because i made a commitment to you to read your letter and consider your cases which i did i have specific reasons that i don't think the project is viable i have a memory of specific reasons that i don't think the project is viable i'm willing to share with you if you want to know i look i'll take all the information i can get i focused after considering everything including i read your kick well i read you from on cases i got far enough along so i didn't think that the out of state cases were all going i didn't read them i read the memo itself very carefully and i read all the wrong cases and both you and the cases you cite for the most part focus on the meaning of expansion of non conforming use with think that's in principle categorically there's no percentage limitation or anything like that i have two other problems with the project that's the central one i don't think it qualifies for p u d review at all although the board never got that far i think the board is obliged if you'll recall if it were interested in going forward and making a determination whether it qualifies for p u d review i think it's mandatory that we make that  e and finally your proposal for overcoming your lot covers just strikes me as a nonstarter put a flower pot on a concrete you know i don't care how big flower pot is it's still  e but i thought i owed you the work and there's the there's there's the work there's my work product and it doesn't i want to emphasize something it doesn't speak for the board it speaks only for  me the board also has confidential information from another source privileged information that is not sharing with you but i'm under not under that constraint they don't necessarily take my advice usually they don't and i don't know whether they have in this case or not well i understand the limit let me try to if i can try to take i have many questions and i'd love to take them up are you i understand that you may have gotten an opinion from the city attorney is are you are you willing to share is the board willing to share that i understand that that is probably needs a vote  of the board to share that i'm wondering if the board would would be willing to share that we had the advice of the city tech journey is not to share that is privileged information and we do not typically shows ok so then and and let me see if i understand you are saying that the ordinance is as i understand it the ordinance says that we can reconstruct a structure up to one hundred percent of the structure are you saying that you took that into account you think that doesn't allow us to i don't think that has anything to do with what i'm talking about the gas the service station is the islands as far as i'm concerned  b two of the regulation take a look at it because that's the heart of that objection that's independent of the other two navy objections i mean i may be i could be convinced they were within a p u d resent you know that you qualify for p u d review i don't see it myself but we never haven't heard that argued and finally your law coverage issue i don't think you could ever convince me and the ship stuck a supreme court opinion in the face that said so you know ok i'll leave i have to present options to the client based on what you're saying if we weren't adding pumps then it would be ok ok much ok well so i guess question is on behalf of oral valley i think what the what i understand valley is they would like to consider the memo take a step back and think about it so i don't know if it makes sense to continue the sketch plan and that way we can add to what you what your interest in me is it almost seems that to me rather than rather than closing sketch plan and then having our of alice miller primary plan you guys look at it it doesn't make sense it be clear that memo doesn't represent the board no yeah that's the memo the frank has put together we we've reviewed i mean i think all of us have read it we i think we all come i'm speaking out of turn here its peak up if you disagree but but i think the board feels like what you prevent presented us with is a nonstarter i mean the non conforming problems here  significant enough that there's no point in going further in less you're planning to change the plan if you're going to come back to us again and you think that there's a likelihood that you'll change the plan so that the non conforming problems disappear like you build something conforming or you don't expand upon structures that are not conforming then we're i think we're all happy to see it yes but if all you want to do is come back and argue some more about what we've already been arguing we were were were there are i'm there at least clearly in my head that it's not working you're out a non starting point and can i can i just say th what i'm trying to as much information as i can and your ip i believe that the attorney client privilege is yours to wait and see not true it's not the attorney's to to claim or or wait for if i had that information though i might be able to do a better job of advising my client how to give you guys a conforming project if without that information i'm sort of playing twenty you know twenty quite i don't mean to be flip but i'm sort of playing twenty questions you're really not i mean we you have the you have the all the r s and you can read the l d r as in see we've been dancing around this from day one right john i mean the this this this non the non conforming issues of these price of these two sites have been significant from day one and you've tried to find some i don't know memo or in addition do you not see it working because the you receive legal advice that my argument all of the advice we have received leads to the same conclusion we have non conforming issues and problems we have not as a group spoken spoken about the p d so what you're saying from frank there is again frank's opinion and we we haven't discussed here as a as a group or or in private and and coverage coverage is an issue generally we all understand that one but that that may be solvable in a in another way  so but i think again i'm speaking for myself i disagree if you disagree but i think the the real nonstarter here is the not conforming problems that you're facing and we've we've seen two directions on why that's the time you come to that we were looked we're just trying to find creative ways around it and it's it's not it's not working for me it doesn't seem to be working for the board so sketch band plan is for you to hear a prop here our issues here our concepts what you've come to us with so far is not likely to get off the ground and that's what we're telling it so i think i think if you want to come back if you want to continue and come back with a revised plan so that your sketch stays open look i i'm speaking with authority from morrow valley but from what i'm hearing i'm there i'm aware of now three where four or five problems three are in frank's memo there is a  there is another issue associated with whether we're expanding the non conforming use and there's another issue as to whether our office use works so it what i think i have heard you say is that you think we're expanding the non conforming use because we're adding pumps who a i think you are expanding the non conforming structures ok because  think i think the non conforming use in the structures that are the pumps are being expanded the pumps the pump stations the structures themselves which are non conforming today would be expanded to add for additional stations i need to correct some cause i'm sorry john i know you go ahead you know is much more practiced that what was confusing about this again speaking for me i got to be careful about is the constant reference to expanding non conforming use i look back at this because that eleven three b two is written kind of funny syntax of the  senses peculiar kind of deal with double date but only flexion is clear what it means and in particular it becomes clearer her if you look at the statue of authorizing statue for that at the time it was originally invented that statue was cited in pro street mobile it's former twenty four the s a forty four zero eight and that statue says what you can do about nonconformity you can say you can regulate to forbid the expansion or large be non conforming use that's what the heck you know well reprint reproduce it but but separately from that it says you can prohibit the enlargement of a structure containing and not conforming use and it's categor not one inch not twenty five percent not two percent not sixty two percent as i read the ordinance specific to south burlington which not your cases touch you know that's what we have here we have structures that contain a non conforming use that is quite distinct from the other uses a whole lot and you want to expand those structures and that all by itself violates would violate three eleven b two independent of three eleven b six which forbids the expansion or enlargement of a non conforming use so there's nothing non conforming about these structures that i know that's where the stumbling to some extent as far as i know the islands as structures are not non conforming structures they is we have argued that accepting payment on the what's now the hotel law is an office use have you that's not in your memo is how do you feel about that issue i was i was fine with that it did in fact it as far as i'm concerned from where i was coming from the cuts against your case you were very clear that you're saying hey what's going on in there in the office it's not one one person saying with the office concept is fine and the guy says the convenience stores collecting money for the service station says no you're crossing about the problem he's got wisco that kind of roles with much but let's just break down if if we're expanding structures and that's why you have a problem with what we're doing there's and hearing that that's pretty broadly shared but if it's so if we're not if we're not expanding structures on the gas station law then there's the why is there an additional problem that we're taking payment for further sales on the gas station law at the store well it's interesting because the answer to suggestion of the answer is in west go where they went back and i think wesco is pretty close to that situation and the supreme court decided not to interfere with the discretion of the environmental court on that point which went kind of your way in wesco whether we have  discretion to disregard that i don't know it was in the determinative issue for me so i didn't focus it on it that tightly i was willing to accept argue window that the office use was independent but not you know it's not conclusive what i wanted to from the project description we need to rewind so we may be able to i mean it's pretty it's pretty broad right we didn't itemize every tree bush in trouble but if the product if the application differs it's not  if we continue with say and are all valid sides to withdraw and smiting new applications different we can just send you guys a memo will you know that the next biggest can open and close the same meeting and we'll spend about occasion it seems like from our perspective there's no harm in in discuss items further then they can you know we'll have a date set for them to make sense so is the sixteenth possible i mean do we want that soon can you do anything but that soon you have to have stuff done by this friday that would be tough yeah right so it would be the six and on page three sue i have a question there was in the fourth line down there is a mr marshall showed a landscape plan and indicated vegetation to the retained it