FINDINGS OF FACT

On the 24th day of February 2016 the Colchester Development Review Board approved the Preliminary Plat application of J. Brooker, LLC for a 5 lot subdivision of a 4.36 acre parcel to be developed with six (6) residential units.  1) Lot #1 to be 1.66 acres for a duplex unit to be accessed off of a private road; 2) Lot #2 to be 1.01  for a single family residence; 3) Lot #3 to be .49 acres for a single family residence; 4) Lot #4 to be .55 acres for a single family residence; and 5) Lot #5 to be .66 acres for a single family residence located off of Jen Barry Lane, Tax Map 47, Parcel 001012.  The approval is based upon the following facts:

1.      DISCUSSION

This project consists of a Preliminary Plat of John Brooker for a 5 lot subdivision of a 4.36 acre parcel to be developed with six (6) residential units.  1) Lot #1 to be 1.66 acres for a duplex unit to be accessed off of a private road; 2) Lot #2 to be 1.01  for a single family residence; 3) Lot #3 to be .49 acres for a single family residence; 4) Lot #4 to be .55 acres for a single family residence; and 5) Lot #5 to be .66 acres for a single family residence located off of Jen Barry Lane, Tax Map 47, Parcel 001012.

The property is located in the R3 District.  It is bounded on the south by Holy Cross Road and single family dwellings on small lots, on the east by Jen Barry Lane and a common lot that is wooded and undeveloped, on the north by a single family dwelling on a similarly sized wooded lot, and on the west by a single family on a larger wooded lot.

As the project is a PUD with new public infrastructure, it is deemed a major subdivision.  A site plan should also be submitted with the final plat to allow for minor changes.

As of the date of issuance of the Findings of Fact and Order the following person(s) have been granted interested party status:

1.      Jerry Tarrant, 972 Holy Cross Road, Colchester, VT  05446

The following is an excerpt from the minutes of February 24, 2016:

David Burke of O’Leary-Burke was present on behalf of the Preliminary Plat application. 

The presentation included, but was not limited to, the following:

• The property is 4.36 acres in size.
• The application is for 1 duplex and 4 single family residences.
• The parcel is zoned R3.
• The 4 single family residences will be served by a portion of Jen Berry Lane that will be    public.
• The property will be served by municipal water and on-site septic.
• The plan represents 30% open space.
• The applicant will keep the existing street light private.
• This development is not tied to the common land across the street.

The Board reviewed the Preliminary Plat application.

Jerry Tarrant, 972 Holy Cross Road, addressed the Board and discussed his concern for the fact that there are going to be wastewater shields on his property.

A motion was made by M. Palmer and seconded by A. MacDonald to close the public hearing.  The motion passed with a vote of 5 – 0.

In deliberative session a motion was made by M. Palmer and seconded by A. MacDonald to approve the Preliminary Plat application, with conditions.  The motion passed with a vote of 5 – 0.

II.        FINDINGS OF FACT

The Development Review Board has found that the project will not have any adverse effects as defined by the criteria listed in the Town of Colchester Zoning Regulations and the Subdivision Regulations.

ZONING REGULATIONS

Section 9.01C General Standards:  The project, a Planned Unit Development, is meeting the minimum overall size of 1.5 acres.  The 50 foot PUD buffer is shown with all lots meeting the buffer except lot five as it abuts the property to the north.  A 25-foot waiver of the buffer along the north property line of lot five was requested and approved.  Additionally, the PUD buffer should be waived along Jen Barry Lane to zero to allow for driveways.  The PUD buffer will also need to be waived on Lot One down to zero for the existing Hazen-Lyon Road.  The applicant requested a 25-foot PUD buffer waiver however should request waivers for Jen Barry and Hazen Lyon Roads as well.  The applicant proposed using the PUD buffer for 1.29 acres of open space (30% of the project area).  Generally open space should be contiguous and previous applications to the Board that have proposed such open space configurations have been requested to amend and put the open space in one larger solid area.

Section 9.01D Specific Standards:  The plan shows building envelopes.  All lots are meeting the minimum lot size.  Lot three will require a frontage waiver of approximately 10 feet to 90 feet and lot two will require a frontage wavier of approximately three feet to 98 feet from the required 100 feet.  Lot five will require a complete frontage waiver.  All internal setbacks are being met.

Section 9.01D (4) Varied Types of Dwellings: Identical replication of structures, textures and color are strongly discouraged in PRD/PUDs as well as the proposed building should blend with the existing character of the area.  As the project is for three single family dwellings and one duplex, the structure will vary and will not be identical.

SUBDIVISION REGULATIONS

Section 301 Required Improvement List: The project shall be expected to comply with this section of the Subdivision Regulations as part of the Final Plat approval.

Section 302 Suitability of Land: The density for the property would allow up to 12 units and the applicant is proposing 6 units. 

Section 303 Lot Layout:  Generally newly created lots should have side lot lines at right angles to the road right-of-way.  Lot one will front Hazen-Lyon Road as well as Holy Cross Road and will have two front yards.  Since sketch, the applicant revised the lot configuration so that Hazen Lyon Road is contained within lot one therefore making lots three through five only have one front yard as requested.

Section 304 Building Envelopes: Building envelopes are depicted on the plans that meet setback requirements of the R3 District

Section 305 Monuments and Lot Corner Markers: The proposed lots shall be expected to comply with this section of the Subdivision Regulations as part of the final plat approval.

Section 306 Energy Conservation:  The applicant shall enroll the new homes in the Vermont Energy Star program prior to the issuance of a Certificate of Occupancy.  The applicant shall file a Vermont Residential Building Energy Standards (RBES) Certificate for the new residences in the Town Clerk’s Office within 30 days of completing the project.

Section 307 Water Supply: The project shall be expected to comply with this section of the Subdivision Regulations as part of the Final Plat approval. See Section 318(B) below. 

Section 308 Sewage Disposal: The project shall be expected to comply with this section of the Subdivision Regulations as part of the Final Plat approval. See Section 318(A) below. 

Section 309 Site Preservation and Landscaping: The plans do not show existing conditions with relation to vegetation.  While the sites are mostly wooded, an existing conditions plan should be submitted.  The applicant has noted the proposed limits of clearing on the plans showing the woods to be preserved in the setbacks and PUD buffer areas.

Section 310 Streets: The applicant  proposed a new public street to serve the project as required as part of a previous waiver granted for the construction of Jen Barry Lane.  Since sketch, the proposed turnaround was shifted northerly to allow better access for lot five.  Corner sight distance easements exist for corner lots at Jen Barry/Holy Cross intersection containing restrictions on the planting of private landscape or the erection of structures within the sight triangles. 

On street parking shall be restricted to one-side only.  An Ordinance amendment shall be completed along with Stop Sign Warrant Analysis and Speed Study prior to acceptance or transfer of a portion of Jen Barry to the Town.  Prior to acceptance of a portion of Jen Barry Drive as a public street, as-built record documents in support of compliance with town roadway standards will be required.  To the extent possible, documentation shall include inspection and testing records, construction photos, D-size Mylar record drawing, and electronic copies of record drawing in both CAD and scanned (.pdf) file formats.

Section 311 Pedestrian Access: The project site is served by an off-road multi-use path along Holy Cross Road.  The plans shall be revised to provide a 5’ concrete pedestrian sidewalk along one side of proposed public portion of Jen Barry including connection to existing multi-use path and proposed turnaround or tie in to street.  Given that the existing roadway with drainage swale takes up most of the existing right of way, additional easement may be required for sidewalk construction.

Section 312 Utilities: All utilities shall be underground.  The project shall be expected to comply with this section of the Subdivision Regulations as part of the Final Plat approval.

Section 313 Storm Drainage & Erosion Control: The project shall be expected to comply with this section of the Subdivision Regulations as part of the Final Plat approval. See Section 318(C) below.

Section 314 Excavation & Grading: The project shall be expected to comply with this section of the Subdivision Regulations as part of the Final Plat approval.

Section 315 Outdoor Lighting:  No new street lights are proposed.  The existing street light at the intersection of Holy Cross Road will remain private.  Sufficient evergreen screening shrubs shall be provided such that the street light disconnect is not visible from the street. 

Section 316 Recreation Areas: The applicant has not proposed a recreational amenity.  The project is located along the bike path and near public parks.  Staff did not recommend additional recreation areas at this time.

Section 317 Open Space & Common Land: Up to 25% of the project may be required to be restricted as open space by the Development Review Board.  The applicant stated that the PUD buffer will be used as an open space set aside of 1.29 acres or 30% of the project area.  Generally open space should be contiguous and previous applications to the Board that have proposed such open space configurations have been requested to amend and put the open space in one larger solid area.

Section 318(A) Pollution:  All proposed and existing facilities should comply with current on-site septic regulations and setback requirements.  Wastewater disposal systems shall conform to the Environmental Protection Rules.  Wastewater design calculations shall be submitted with Preliminary Plan drawings.  Prior to recording the mylar, the applicant shall submit and receive approval for all necessary State Wastewater Permits for the property.

Section 318(B) Water Supply:  The applicant shall receive confirmation of the ability to serve the subdivision from the Fire District prior to preliminary plat.  Prior to the issuance of a building permit, the Fire District shall also review and approve all water supply plans.

Section 318(C) Soil Erosion:   The proposed project will disturb in excess of 1 acre of land, and therefore a State Construction General Stormwater Permit (3-9020) shall be required.  The preliminary plat application shall include stormwater calculations to address partitioning of public and private maintenance areas including necessary applications for co-permittee status for maintenance of stormwater facilities.  Include updated runoff volumes based on proposed impervious surface increases. 

The applicant shall amend State Stormwater Permit 6872-9015 to reflect changes in amount of impervious surfaces.  The Developer/Homeowner’s Association shall enter into a storm water maintenance agreement with the Town of Colchester prior to the issuance of any new building permits for the proposed lot additions.  The storm water maintenance agreement shall be noted on all individual lot deeds.  Upon acceptance of the roadway by the Town, the Town and the Developer/HOA, if different from current permittee, will become Co-applicants on General Permit 6872-9015.  It will be the responsibility of the Developer/HOA to initiate the process for co-applicant addition, usually at the next permit renewal cycle.  The Town of Colchester will only be responsible for the stormwater infrastructure constructed within the Town Right-of-Way.  The Developer/HOA will be responsible for all stormwater infrastructure constructed outside of the Town Right-of-Way including but not limited to private driveways, walkways, and roof areas.

Section 318(D) Traffic: The proposed six new units will generate approximately 60 total daily vehicle trip ends.  Only 30 additional will be added to Jen Barry Lane and this will be upgraded to a public road.  Stopping of traffic on adjacent public roadway shall not be permitted without necessary traffic control measures in accordance with MUTCD including approach signing and flagmen.  Deliveries and hauling operations shall be coordinated not to occur during times of peak traffic volumes (7:30am -8:30am & 4:30pm – 5:30pm.)

Section 318(E) Natural Areas:  The project is adjacent to a known natural community and care should be taken to identify any rare, threatened, or endangered species present on the site.

Section 318(E) Historic Sites:  There are no known historic sites on the property.

Section 318(F) Streets & Public Facilities: The proposed roadway shall conform to the Colchester Public Works standards.  

Section 318(G) School Review:  Prior to preliminary plat, the applicant was asked to submit the proposed project to the Colchester School District Superintendent’s Office for review and comment on student population projections.  The applicant stated that this information will be submitted with the final plat application. 

Section 318(H) Governmental Services:  The Colchester Building Inspector has consulted with the two fire departments that service Colchester. Their comments are as follows:

1.      The 911 numbers shall be installed on each residence in accordance with Chapter 17 of the Colchester Code of Ordinances prior to the issuance of a CO.

TOWN OF COLCHESTER

COUNTY OF CHITTENDEN

STATE OF VERMONT

In Re:              J. Brooker, LLC

c/o John Brooker

347 Oak Hill Road

Shelburne, VT  05482

Jen Barry Lane

Colchester, VT  05446

Tax Map 47, Parcel 001012

Account #47-001012-0000000

ORDER

Based upon the aforesaid Findings of Fact, the Colchester Development Review Board hereby approved the Preliminary Plat application of J. Brooker, LLC for a 5 lot subdivision of a 4.36 acre parcel to be developed with six (6) residential units.  1) Lot #1 to be 1.66 acres for a duplex unit to be accessed off of a private road; 2) Lot #2 to be 1.01  for a single family residence; 3) Lot #3 to be .49 acres for a single family residence; 4) Lot #4 to be .55 acres for a single family residence; and 5) Lot #5 to be .66 acres for a single family residence.  Subject property is identified in Book 780, Page 306 of the Colchester Land Records.  The subject property is  located off of Jen Barry Lane, Tax Map 47, Parcel 001012.  The approval is per a seven (7) page set of plans titled “Holy Cross Bay” prepared by O’Leary-Burke Civil Associates, PLC dated 1/22/15 with the following conditions:

1.      All previous approvals and stipulations which are not superseded by this approval shall remain in effect.

2.      The applicant requested and the Board granted the following waivers:

a.       A 25 foot waiver of the PUD buffer along the north property line of Lot #5.

b.      A 50 foot waiver of the PUD buffer along Jen Barry Lane to allow for driveways.

c.       A 50 foot waiver of the PUD buffer on Lot #1 to 0 for Hazen-Lyon Road.

d.      A 25 foot waiver of the PUD buffer for Jen Barry Lane and Hazen-Lyon Road.

e.       A 10 foot waiver of the frontage requirement to 90 feet for Lot #3

f.       A 3 foot waiver of the frontage requirement to 97 feet for Lot #2.

g.      A 100’ frontage waiver for Lot #5.

3.      The applicant shall provide the following as part of the Final Plat submittal:

a.       An existing conditions plan with relation to vegetation.

b.      The plans shall be revised to provide a 5’ concrete pedestrian sidewalk along one side of proposed public portion of Jen Barry including connection to existing multi-use path and proposed turnaround or tie in to street

c.       Stormwater calculations to address partitioning of public and private maintenance areas including necessary applications for co-permittee status for maintenance of stormwater facilities.  Include updated runoff volumes based on proposed impervious surface increases. 

d.      Project review from the Colchester School District Superintendent’s Office with regards to student population projections.

e.       Revised plan to extend the PUD buffer to the eastern property lines of Lots #2, #3 and #4. 

f.       The sidewalk shall be located on the same side of the road as the driveways.

4.      The residential units shall be constructed to the Vermont Residential Energy Standards and enroll the homes in the Vermont Energy Star Program. 

5.      The entire length of the fence shall be constructed as part of construction of the 1^st residence being constructed. 

6.      Corner sight distance easements shall be provided or deeds for corner lots at Jen Barry Lane/Holy Cross intersection shall contain restrictions on the planting of private landscape or erection of structures within the sight triangles.

7.      On street parking shall be restricted to one-side only.

8.      The proposed roadway shall conform to the Colchester Public Works Standards.

9.      An Ordinance amendment shall be completed along with Stop Sign Warrant Analysis and Speed Study prior to acceptance or transfer of a portion of Jen Barry Lane to the Town.

10.  The existing street light at the intersection of Holy Cross Road should be turned over to the Town with the new public road.  Prior to acceptance of any of the existing street lights for Town maintenance, a separate power supply stanchion with disconnect must be provided.  Power stanchion shall be provided outside of the ROW in an easement provided to the power provider.  Sufficient evergreen screening shrubs shall be provided such that the street light disconnect is not visible from the street.  Documentation showing power feed from meter to public lights as well as manufacturer information for fixtures and posts shall be included with above as-built records.

11.  The street lights shall be in accordance with the Colchester Public Works Specifications and Standards.  55 watt Induction Post-Top fixtures on 12’ poles, 400’ o.c. and at roadway intersections shall be installed.  The street light disconnect shall be located outside of the public ROW.  An easement shall be given to the power provider for the placement and maintenance of the street light disconnect. Sufficient evergreen screening shrubs shall be provided such that the street light disconnect is not visible from the Street/Road and the screening shall in no way interfere with necessary minimum sight distances.  All proposed street lights within public rights-of-way shall be constructed so as to become the property of the Town upon acceptance of the street.  Should the Public Works Specifications for street lights change prior to issuance of the building permit, the applicant shall amend the plans to reflect the new street lighting standard.

12.  The stormwater maintenance agreement shall be noted on all individual lot deeds.  Upon acceptance of the roadway by the Town, the Town and the Developer/HOA will become Co-applicants on a General Permit 3-9015.  It will be the responsibility of the Developer/HOA to initiate the process for co-applicant addition, usually at the next permit renewal cycle.  The Town of Colchester will only be responsible for the stormwater infrastructure constructed within the Town Right-of-Way.  The Developer/HOA will be responsible for all stormwater infrastructure constructed outside of the Town Right-of-Way including but not limited to private driveways, walkways, and roof areas.

13.  Post development stormwater runoff flows shall be equal to or less than pre-development stormwater runoff flows for a minimum of 25-year, 24-hour storm event.

14.  The developer shall be responsible for all storm water infrastructure constructed outside of the Town Rights-of-Way and the impervious surface associated with private driveways, roofs.

15.  The stopping of traffic on adjacent public roadway shall not be permitted without necessary traffic control measures in accordance with MUTCD including approach signing and flagmen.  Deliveries and hauling operations shall be coordinated not to occur during times of peak traffic volumes (7:30am -8:30am & 4:30pm – 5:30pm.)

16.  Prior to recording the Final Plat plan, the applicant shall submit a copy of the survey plat in digital format (Colchester Plane Coordinate System) meeting the Town of Colchester “Specifications for the Submission of Survey Plats, Final Plat Plans & Boundary Line Adjustments in Digital Form”.   Upon certification by the Chairman or Clerk, the Mylar copy shall be submitted to the Town Clerk to be filed in the Town Land Records.

17.  The Final Plat plan shall be recorded in the Town of Colchester land records within 180 days or this approval is null and void.  The final plat plan shall be in the form of a Mylar copy (18" by 24") depicting meets and bounds survey of the approved subdivision and shall identify a minimum of three witness monuments located, or to be located on, the property with boundaries referenced to the Colchester Plane Coordinate System (coincident with the Vermont Plane Coordinate System) based on the 1983 North American Datum.    Such monuments shall be established at a minimum survey error of closure of 1:10,000.  All plans to be recorded shall meet the requirements of the Town of Colchester’s “Specifications for the Submission of Survey or Boundary Line Adjustment Mylars to be recorded in the Town Land Records” Policy. The plan shall be signed by the Development Review Board Chair or Clerk prior to recording. 

18.  Prior to the issuance of any Building Permits the property front line corners for each lot shall be established with witness stakes or iron pins.  Prior to issuance of a Certificate of Occupancy said property line corners shall be established with permanent monumentation.

19.  All utilities shall be underground.

20.  Prior to recording the Plat for the proposed development the applicant shall submit and receive approval of the following:

a.       Executed warranty deeds for all rights-of-way and easements to be dedicated to the Town, and a Certificate of Title showing the title to be free and clear of all encumbrances.  All proposed deeds, easements, association documents and Certificate of Titles shall be submitted to the Planning and Zoning Department in digital Word format.  Deeds and certificates shall be approved by the Town Attorney. Approval of deeds by the Town does not constitute acceptance.

b.      Submit all covenants, homeowner’s documents,  legal restrictions, including but not limited to open space,  restricted no-build and no cutting areas and proposed Bylaws to the Town Attorney for review and approval   The Declaration of Bylaws shall clearly state that the Association shall own and maintain proposed common open space and recreational amenities. The Association shall be structured so that the proposed Association Board has the authority to convey common land to the Town without signoff from each Association member.

c.       The applicant shall execute a Public Improvement Agreement with the Town of Colchester and the Town’s Attorney shall review and approve the offer of dedication.  

d.      The applicant shall submit and receive all necessary State Wastewater and Potable Water Supply Permits for the project.

21.    Prior to issuance of a building permit:

a.       Fire District Two shall review and approve the water service to the project.

b.      A State Construction General Stormwater Permit (3-9020) shall be required.

3. The applicant shall amend current State Stormwater Permit 6872-9015 to reflect changes in amount of impervious surfaces. 
4. The Developer/Homeowner’s Association (HOA) shall enter into a stormwater maintenance agreement with the Town prior to the issuance of a building permit. 

e.       A Quitclaim Easement Deed for Private Utility (across public road) shall be required for all locations where private force main sewer main lines cross under the public road.

22.  Prior to the issuance of a building permit for the proposed development and after the requirements of conditions #19 and #20  have been met and all requisite legal documents recorded (including but not limited to offers of dedication and easements), the applicant shall complete a pre-construction meeting with Town Staff.  The applicant is responsible for ensuring the project engineer and contractors attend this meeting.

23.  A sign application must be submitted by the applicant and must be reviewed and approved by the Zoning Administrator prior to the erection of any signs.  No signage is approved at this time.

24.  Prior to issuance of a Certificate of Occupancy:

1. Prior to the issuance of a Certificate of Occupancy the applicant shall file a Residential Building Energy Standards (RBES) Certificate for each new residence in the Town Clerk’s Office within 30 days of completing the project.
2. Each residence shall have the E-911 number of the building displayed so as to be seen from the road if a porch light is on.  If the house cannot be readily seen from the road the number must also be placed at the start of the driveway such as on a mail box.

25.  In accordance with Colchester’s Fee Ordinance Chapter 6 ½ - 4 (9) the applicant is responsible for payment of all permit fees as well as for the costs of reviews conducted by third-party consultants/experts requested by the Town.  All fees shall be paid prior to or at the time of obtaining a building permit.

26.  Per Section 18-23 (b) of the Colchester Code of Ordinance:  Earthwork shall be scheduled for completion and the site stabilized no later than October 15^th.  By the end of the growing season, perennial cover shall be established and non-vegetated protection measures installed by October 15.  There shall be no land disturbance activities allowed between the dates of October 15^th and April 30^th.  A waiver of this requirement may be granted by the Director of Public Works, or his designee, following the submittal and approval of a winter construction erosion control plan consistent with the Vermont Handbook for Soil Erosion and Sediment Control on Construction Sites.

27.  No excavation, site development, or building construction shall occur until the applicant has obtained all necessary permits from the Town of Colchester in accordance with the Building, Zoning, Health and other applicable ordinances that may be required.

28.  Disposal of excavated earth material, stumps, brush, or other material removed from this site shall take place at a location properly permitted for such activity.  Placement of fill material in Colchester requires a permit to be obtained by the owner of the land to be filled.  Improper placement of material from this site shall constitute a violation of this approval.

29.  By acceptance of these Findings of Fact and Order the Permittees agree to allow representatives of the Town of Colchester access to the property covered by the approval for the purpose of ascertaining compliance with all local regulations and with this Order.

30.  The project shall be constructed and operated in accordance with the submitted application documents, the stamped approved plans, the Findings of Fact and Order, the Colchester Zoning Regulations and Subdivision Regulations.  There shall be no change in the proposed use or approved plans without prior approval of the Town.  The Development Review Board reserves the right to review and issue supplementary Findings of Fact and Order for any substantial change in the project approved herein.  Any unauthorized change from the approved plans shall be grounds for revocation of the Order and approval pursuant to 24 V.S.A. § 4455, as may be amended.  The Town reserves the right to petition the Environmental Division of the Vermont Superior Court for revocation of this approval and any permits granted hereunder, or to seek other enforcement action, if the Town believes the applicant/permittee has violated the terms of approval, or has obtained approval based on a misrepresentation of material fact.

31.  The Final Plat application shall be submitted within 12 months or said approval shall become null and void.

IV.       APPEAL RIGHTS

The owner of the project property and interested persons have a right to appeal this decision, within 30 days of the date this decision is issued, to the Vermont Environmental Court, pursuant to 24 V.S.A. § 4471 and V.R.E.C.P. in writing to the Vermont Environmental Court, 32 Cherry Street, 2^nd Floor, Suite 303 Burlington, VT 05401 and a copy to Colchester Development Review Board at P.O. Box 55, Colchester, Vermont  05446.  The fee is $262.50 made payable to Vermont Environmental Court.  If you fail to appeal this decision, your right to challenge this decision at some future time may be lost because you waited too long.  You will be bound by the decision, pursuant to 24 V.S.A. § 4472 (d) (exclusivity of remedy; finality).  This also applies to any interested person(s) who may have had a right to appeal.