OFFICE OF THE ZONING BOARD OF ADJUSTMENT
Town of Halifax, Vermont
ZBA MEETING MINUTES
C.A. DENISON CONDITIONAL USE PERMIT HEARING
June 9, 2015
Call to Order
The meeting was called to order at 7:25 p.m. at the Town Office. When it became evident that seating and space were insufficient to accommodate the public, a recess was called, a notice was posted on the Town Office door, and the assembly moved to the Halifax Community Hall, reconvening at 7:45 p.m.
C.A. Denison Conditional Use Permit Hearing
Zoning Board of Adjustment (ZBA) members Sirean LaFlamme, Bill Pusey, Brian McNeice, John Brimmer, and Stephan Chait were present, as were Town Attorney Robert Fisher, Jerry Pratt (Ashfield Stone), Lee Kahn (Ashfield Stone), Attorney David Grayck (representing Susan Kelly and a group of interested parties), and Robbin Gabriel. Other attendees, as recorded on the sign-in sheets, were Rick Gay, Doug Grob, Chris Mays (Brattleboro Reformer), Anthony Blackett, Debra Foster, Norman Fajans, Deborah Fajans, James Keithline, Bonny Hall, Nicholas Bartenhagen, Margaret Bartenhagen, Susan Kelly, Janet Eldridge-Taylor, Paul Taylor, Marilyn Allen, Justina Gregory, Patrick Gregory, David Brown, Peter Silverberg, Liz Laona, Jesse Ferland, Bonnie Brown, Chris Parkins, James Coughlin, Virginia Fleet, Donald Fleet, Melvin Osborne, David Brewster, Loretta Palazzo, Matt Maranian, Donna Silverberg, Milton Bickle, Judith Kotanchik, Penfield Chester, Linda Lyon, Carl Barmen, Elizabeth Martin, Mary Horne, Jack Rossetti, Liam Wheeler, Craig Stone, and Jane Barron.
Attorney Fisher introduced himself as moderator and read the hearing notice for the record:
Pursuant to 24 VSA §4464(a)(1)(A) notice is hereby given that the Halifax Zoning Board of Adjustment will conduct a public hearing on Tuesday, June 9, at 7:30 PM in the Town Office at 246 Branch Road, West Halifax, Vermont, to consider the following: Request of C. A. Denison Lumber Co., Inc., for Conditional Use Permit approval to allow a stone extraction project at 5076 Jacksonville Stage Road; Conservation District; Tax parcel JCS.5076. A copy of the application and map is available for review at the Town office during regular office hours. Participation in the public hearing is a prerequisite to the right to appeal.
Fisher explained this hearing was a quasi-judicial procedure; the Zoning Board would be taking evidence from the applicant and interested parties who participate in the hearing. Once the hearing closes the ZBA will have 45 days to issue a written decision. The hearing is not anticipated to close tonight, said Fisher, for several reasons. The applicant’s attorney was unable to attend tonight, so applicant’s testimony and presentation will be heard at the second hearing. Also, due to time constraints, expert witnesses called by Attorney Grayck and his clients will not appear until a later hearing. Finally, given the large number of participants at this first hearing, the ZBA would like to assure adequate time for all interested parties to testify. The Board will set a date and time certain for the next meeting before recess this evening, added Fisher.
Fisher asked all those present who expect to testify to stand while he put them under oath, requested that everyone sign the attendance sheets, and invited procedural queries from the Board. Bill Pusey asked whether everyone present was a town resident or close abutting neighbor. Jerry Pratt then confirmed he and Lee Kahn were representing the applicant, and David Grayck explained that in addition to direct participants, there were individuals taking part under the Group of Ten statutory provision which allows ten or more town residents and voters to be represented by a single person—in this case Susan Kelly. Grayck is representing Kelly. Grayck submitted the Group of Ten petition with supporting affidavits to the Board, with the understanding these could be updated throughout the course of the hearing. He also submitted a series of letters from persons unable to attend the hearing, and further explained that as the law requires participation from interested parties, the Board may hear similar testimony from more than one person. Fisher marked these exhibits as follows: Petition, Exhibit A; affidavits (taken together), Exhibit B; letters, Exhibit C, Joyce Burland; Exhibit D, Sasha Burland; Exhibit E, Jan Ham; Exhibit F, Michaela Harlow; Exhibit G, Kathleen Mclean; Exhibit H, Leslie Pollitt; Exhibit I, Donald Pyskacek; Exhibit J, Mariette Sanders; and Exhibit K, Stephen Sanders. The letters, he advised, would either be read into the record at some point during the hearing process, and/or would be made available for review. Stephan Chait asked that abutters be identified, and Fisher took a poll with the following people identifying themselves as abutters: Debra Foster, 2378 Deer Park Road; Sue Kelly, 557 Old Stage Road; Melvin Osborne, 2980 Deer Park Road; Nicholas Bartenhagen, 3658 Jacksonville Stage Road; Margaret Bartenhagen, 3658 Jacksonville Stage Road; Peter Silverberg, 7082 Jacksonville Stage Road; Donna Silverberg, 7082 Jacksonville Stage Road; Mary Horne, 760 Old Stage Road; Paul Taylor, 442 Josh Road; Janet Eldridge-Taylor, 442 Josh Road; Judi Kotanchik, 3874 Jacksonville Stage Road; Jack Rossetti, 5231 Jacksonville Stage Road; Liam Wheeler, 5156 Jacksonville Stage Road. Sue Kelly then identified abutters among those who had submitted letters: Joyce Burland, Sasha Burland, Jan Ham, Michaela Harlow, Kathleen McLean, and Leslie Pollitt.
Norman Fajans asked about the status of close neighbors who are not abutters. Fisher advised talking to the representatives of the Group of Ten, and Grayck added the law makes provision for participation by persons in the immediate neighborhood who can show physical or environmental impacts. Fajans said he would submit something in writing for the next hearing. Debra Foster asked whether her sister, who co-owns their house but is presently out of town, could submit a letter; Fisher said yes.
Fisher now asked Pratt to speak to a question Grayck had raised concerning the absence of the Ashfield Stone name on the conditional use application. That application was signed by property owner Russell Denison. Pratt said the permit application was from Ashfield Stone and Russell Denison and Grayck requested that Pratt sign the application. Fisher advised postponing the signature to allow the applicant to consult with his attorney. The signature issue, he said, does not have an effect on the evening’s proceeding. Debra Foster had concerns about the fact that Denison had signed and dated the application form on April 28, 2014, but the application was filed with the ZBA in May 2015. The date of the signature is prior to the date of submission, said Fisher, so the application is in order in that respect.
Fisher requested an overview of the proposed project from Pratt, who briefly outlined the plan to operate an 11-acre stone quarry on the Denison property and remove stone blocks to his Ashfield facility for processing. The Act 250 process has been going on for some time, he said; all the information submitted during the course of that action is on record and available for review, and the conditional use permit request is for the same project as presented for Act 250. Pratt also noted that questions from the ZBA had been received just a few days previously and more time was required to compile responses. LaFlamme advised the Zoning Board would prefer to receive testimony from the applicant at the next hearing, when applicant’s legal counsel could be present. Grayck requested that copies of the ZBA questions be emailed to him and to Kelly, and Fisher suggested posting them on the town web site. Brian McNeice made a notion to post the ZBA queries to the applicant on the town web site. Chait seconded the motion, which passed, 5-0. Would each topic addressed in those questions require a response from each individual participant, asked Pratt. Fisher responded that his presence as moderator, coupled with the Group of Ten mechanism allowing one representative to speak for a number of people, should allow for better efficiency in the hearing process and minimize redundancy. Speaking for the applicant, Lee Kahn said the 32 questions had been forwarded to their consultants—should the responses be in written or oral form, she asked. After some discussion, during which Chait noted that further questions might be forthcoming, Kahn agreed the responses would be provided in written form. Fisher then explained that the applicant’s testimony will be heard first. The burden of proof is on the applicant to present evidence showing their proposal is consistent with the town’s zoning bylaws; the Zoning Board’s queries should also be answered. Fisher said he would give Attorney Grayck and interested parties the ability to ask questions, within reason. Once the applicant’s attorney has presented all the evidence in support of the application, Attorney Grayck will have an opportunity to give testimony, present evidence, and respond to the questions from the applicant. The goal is to give the Zoning Board all the evidence it needs to make a decision. When do we hear from individuals with concerns, asked Pratt. That won’t be tonight, answered Fisher. I don’t think it makes sense to hear evidence from folks who might be opposed to the project before hearing the applicant’s evidence in support of the project. Anyone who is submitting written materials should provide those documents to the ZBA in advance of the next hearing, so everyone has an opportunity to review. We will have an email list for all who signed the attendance sheets, said Fisher.
LaFlamme requested discussion of a date and location for the next hearing. As Grayck is not available on June 23rd, Wednesday, June 24th was proposed for the next hearing session. In response to a question from Chait, Pratt said that would give the applicant enough time to prepare answers to ZBA queries. The ZBA will check availability of either the school multi-purpose room or the Community Hall, to accommodate the large number of people who wish to attend. Chait made a motion that tonight’s hearing would recess at its conclusion and reconvene on Wednesday, June 24, at 7:00 p.m., location to be determined and announced. Bill Pusey seconded the motion, which passed, 5-0. Grayck asked for a decision on when specific issues would be considered, to assure expert witnesses are invited only to sessions in which they would be giving testimony. We have a traffic engineer, a noise consultant, a geologist, and we may have someone addressing the character of the area, continued Grayck. Fisher asked the ZBA whether they would like to assign topics to be heard at specific hearings. Chait listed major issues—noise, traffic safety, stormwater and well water, and impact on wildlife and habitat. Pratt agreed that setting an agenda for specific topics would simplify the proceeding. LaFlamme proposed addressing the noise issue at the June 24th meeting. Questions 7, 8, 9, 10, 11, 12, 13, 18, and 19 will be addressed on June 24th. Fisher mentioned again that the full question list will be posted on the town web site so all interested persons can review. Two further hearings will be held on Tuesday, July 14th, and Tuesday, July 28th, 2015. The applicants and Attorney Grayck will ascertain expert witness availability and communicate their findings to the ZBA secretary.
LaFlamme recessed the public hearing at 9:04 p.m., to be reconvened on June 24th at 7:00 p.m.
Fisher briefly itemized for the Board those zoning regulations applicable to conditional use permitting. ZBA questions 1 through 5, 7, 14, 15, and 16 were suggested for consideration at the July 14th hearing, with the remainder of the queries to be heard on July 28th.
Hearing of Visitors
LaFlamme made motion to adjourn at 9:40 p.m. Pusey seconded the motion, which passed, 5-0.
Interim ZBA Secretary