town of bennington zoning board of adjustment minutes 1 veterans memorial drive, bennington, vt 05201 January 26, 2000 @ 7:30 p.m. Present: Ron Alderman, Gale Wisher, Richard Owens, Jim Gulley, Bill Congdon, Bill Barney, and Kevin Goodhue. Excused: Edith Prandini. Also present: Zoning Administrator Daniel Monks, Tim Clark, Elizabeth Hunt, Mike Bernardine, Tom Whittaker, Deborah Berg, Harvey Yorke, Randy Maxon, Jim Secor, Tom Jacobs, Mike von Ouhl, Keith Armstrong, Jenny Kimberly, Patrick McArdle, Robyn Baker and about twelve members of the community. The meeting was called to order at 7:30 p.m. 1. Minutes of January 12 and January 19, 2000. Mr. Goodhue moved to accept the minutes of January 12, 2000 as presented. Ms. Wisher seconded the motion. The motion passed unanimously. Ms. Wisher moved to accept January 19, 2000 minutes as presented. Mr. Goodhue seconded the motion. The motion passed unanimously. 2. Reading of witness' oath. Mr. Gulley explained that there is a witness sign up sheet that must be signed if someone wishes to give testimony or submit evidence to the Board. He read the oath: "I solemnly swear and affirm under the pains and penalties of perjury that the statement I make, the testimony I give, and other evidence I submit to the Zoning Board of Adjustment at the Board's public hearing held on this date shall be true and correct to the best of my knowledge and belief." 3. Tim Clark, 219 Depot Street, seeking a variance of living unit density requirement to convert an existing three-unit apartment building to a four-unit apartment building and an existing single family dwelling to a duplex at the above address, a MR District. Sections of the Bylaw applicable: 3.4, 4.3, and 8.5. Mr. Gulley reported that they made a site visit because of the parking requirement. Mr. Barney asked if there was an ADA handicapped parking requirement and Mr. Clark felt that there was a handicapped parking requirement for one unit. Mr. Alderman asked if the parking had been made handicapped accessible, and Mr. Clark felt that it would not be difficult to do, but was not currently done. Mr. Goodhue asked if the apartments are completed, and Mr. Clark noted that they are not. Mr. Goodhue also asked what arrangements are made for snow removal, and Mr. Clark explained that it is pushed to both sides, as was tested this morning. He explained that there are currently three cars in the lot, and does not feel that they will have nine cars parking there right away. There are no plans for a dumpster at this time. Mr. Barney explained that Mr. Clark gave them an alternative plan. Mr. Barney asked if the area designated for parking (currently grass) on the original plan would be retained for children's' play. Mr. Clark explained that was at the Board's discretion, but he would like to see some more of it gravel in order to back around. Mr. Barney asked if he would consider adding a concrete curb for vehicles to stop before the grass, and Mr. Clark said that he would be willing to do so. Mr. Alderman felt that parking was a big issue, and felt that they should stipulate that there be no structures at all in the area, so that the cars could turn around and drive out. Mr. Gulley felt that the parking as proposed (nine spots required), would prevent children from playing and people coming to visit. Mr. Gulley feels that Depot Street is well traveled, and therefore favors the second plan, but then there is no room for the children to play. Mr. Clark felt that there would be children around. He felt that if the back house were split, it would be limited, as they are one- bedroom apartments. Ms. Wisher asked if the parking places on the right were on a slant on the second plan as well, and felt that you could not back out of the spaces that way. Mr. Clark felt that the slant was the most natural flow. He felt that if you back into the spots, it is more accessible. Ms. Wisher felt that many people do not back up well. Mr. Owens felt that they should chose the first option, because it allows more play area and backup space. Mr. Alderman moved to grant the living density variance with the stipulation that no structure be erected in the area, with the original parking plan, ADA handicapped parking requirements as necessary, and approved by the building inspector. Mr. Owens seconded the motion. The five facts were read and voted on: 1. There were five in favor. Mr. Gulley and Ms. Wisher were opposed. 2. There were five in favor. Mr. Gulley and Ms. Wisher were opposed. 3. There were four in favor. Mr. Gulley, Mr. Barney and Ms. Wisher were opposed. 4. There were five in favor. Mr. Gulley and Ms. Wisher were opposed. 5. There were five in favor. Mr. Gulley and Ms. Wisher were opposed. Without five positive votes on all five facts, the matter cannot be approved, unless the Board would like to continue. Mr. Alderman felt that this would be an automatic denial. The Board consensus was that the matter was denied. 6. Putnam Memorial Health Corp., Henry Randall, Murphy Road, seeking amendment to previously granted conditional use approval for residential care facility to allow a change from municipal water source to on-site water supply at the above location, an RCON District. Sections of the Bylaw applicable: 3.4, 4.1. Mr. Owens excused himself from the hearing as his wife is employed by the applicant, and he feels that there might be a conflict of interest. Mr. Barney reported that he has been a subcontractor for MacDonald Secor, but felt that he could make a fair and unbiased decision. All parties present indicated that they were comfortable with Mr. Barney's presence. Mr. Goodhue reported that he has been involved in the fire protection matter for the project, and the Board agreed the Mr. Goodhue could maintain his position as well. Jim Secor was present to represent the applicant. Elizabeth Hunt and Mike Bernardine from the Agency of Natural Resources were also present. Mr. Secor explained the reasons for the amendment request, and noted that they could not tie into the municipal water system. He noted that a small building has been relocated closer to the structures. The well yield is the same as what they anticipated drawing from North Bennington. Fire suppression is as was previously applied for. Mr. Secor noted that the water system would be classed as a public water system. Ms. Hunt reviewed the site and the wellhead protection area. She indicated the location of Well D on the map. She reported that a public community water system has to develop a source protection area and plan. She noted that a source protection area is required to have three zones. (Same as wellhead protection area, or aquifer protection areas). She noted that Zone 1 is a 200- foot radius centered on the well. The applicant needs to own or have legal control of that Zone. Zone 2 is the area that responded to pumping. Zone 3 is the watershed that feeds into the well. She noted that the watershed is split, and indicated the locations. Mr. Gulley asked why it is shaped like that, and Ms. Hunt noted that it was because of the way the water was feeding to the well. She noted that if a spill would occur in Zone 2, they would assume that it would eventually get to the well. She also reported that there is a two- year time of travel zone, which is an area that they look at for bacterial protection. She indicated the pink area that represents that zone. Mr. Secor felt that you could not place a septic system in the pink area, which is within the confines of the property in question. Ms. Hunt also reviewed the source protection plan requirements: ¨ Source protection area identified. ¨ Inventory within the area of all potential sources of contamination, historic and existing risks to the water system. ¨ Assessment of risks identified ranked as high medium or low (professional judgement). ¨ Create management plan. Notifying homeowners that they are in a source protection area. ¨ Develop contingency (emergency) plan. For short term and long-term water outages. Broken pipe, well contamination. Who to call, how supply water. Ms. Hunt explained that the source protection plan has to be periodically reviewed and updated. The plan is reviewed and approved by the Agency of Natural Resources. Ms. Wisher asked who does all of the work. Ms. Hunt noted that it is the water system's owner's responsibility to prepare the plan. Mr. Secor noted that it was Hydell and Noyes from Burlington, and reported that they are a reputable firm. Mr. Alderman asked about land uses not permitted, and Ms. Hunt reviewed them. She explained that activities allowed in Zone 1 are hiking, biking, tennis, mowing (or not), pump house, distribution lines. Prohibited activities are septic, sewage treatment, roads, etc. Mr. Alderman asked, and Ms. Hunt and Mr. Bernardine reviewed the language of the regulation. Mr. Secor reported that the original plan was for open meadow in the field. Mr. Goodhue asked to hear about the contingency plan. Ms. Hunt noted that the source protection plan was approved, and summarized the plan in detail. She explained that Section 3.4 of the Source Protection Plan addresses system failure due to bacterial contamination, and the steps that would be taken to correct that, chlorinate the water, which would be typically directed. The users would be notified, and the water system would take necessary samples and purchase bottled water for consumption. Names and addresses of suppliers are part of the plan. The second possible problem is system failure due to catastrophic loss of supply, and prolonged cessation of service. She explained that water conservation measures would be employed, alternative supplies would be obtained, and the water supply division would be notified. Water could be imported and pumped into reservoirs. A boil water notice would be issued. Three additional promising well sites have been identified, and emergency wells could be drilled. The applicant would work with water supply division. Mr. Gulley asked where they would access bulk water supply. Mr. Secor noted that they could pump into the underground holding tanks. He noted that another tank is hydraulically disconnected. The secondary holding tank would be filled for onsite storage, which is isolated from the water system. Mr. Alderman felt that it behooves the people who are running the system to protect it. Ms. Hunt noted the fourth item, in the event of a total loss of supply water system would reopen negotiations with Bennington for extension of a municipal water line. She also reviewed the potential loss due to a hazardous spill, and noted that the plan includes a list of agencies, the Bennington Health Officer, Fire Dept, Hazardous Materials, Police, etc., and outlines actions to be taken immediately deactivate well. The water in the reservoir could still be used. The plans for loss of supply include notifying Mr. Yorke, the Town Clerk, a plumber, electrician, etc. Mr. Gulley asked about Zone 3, and why it is shaped the way it is. Mr. Bernardine explained that this is a bedrock well, demand 30 gallons per minute. Criteria were a 72-hour pump test, with 2000 foot monitoring radius. No unacceptable interference with neighboring wells was noted. He explained that they extrapolate information to get the shapes displayed on the plan. Mr. Bernardine noted that there were two wells affected, the applicants' Well Site E, and the Hilliard residence, and a resolution has been mitigated with that homeowner. The applicant will provide the resident with an upgraded well system. Mr. Secor explained that the well was drawn down about twenty more feet than the pump could extract, but the well could provide five times the daily demand of the house. Mr. Secor noted that they upgraded the well casing, and provided the resident with a new holding tank and updated pump. Mr. Barney asked about Zone 3, and the historic sources of contamination, and asked about future or potential sources of contamination. Ms. Hunt noted that those would be addressed when the source protection plan is revised (for example when the Bypass goes through). They would have to rank the source of risk. Mr. Barney asked about the course of construction, blasting ledge, etc., and what happens if they lose the well. Ms. Hunt explained that she was involved with the Rutland Bypass, and noted that if they cause damage, then the Federal Highway Administration is responsible for replacing the water supply. Mr. Secor noted that they are 2000 feet away from the bypass. Mr. Gulley asked what affect Zone 3 would have, for example if a neighbor wants to develop their property within zone 3., and what different requirements would they face. Ms. Hunt explained that the rule only applies restrictions to Zone 1. The wastewater rules prohibit septic systems within the two-year time of travel zone (also in applicant's property). Ms. Hunt noted that Vermont Statutes 10VSA 1672 addressed the authority of Agency of Natural Resources, and she read from the Statute. She explained that the water supply rule would not prohibit building in Zone 3. Mr. Secor explained that they are not on their property and their septic system will not affect their two-year time of travel. Mr. Gulley asked if someone went to build, the same procedures would apply. Mr. Secor explained that they question might come up, but they have provided the necessary studies. Mr. Gulley was concerned about future development, and asked if there would be any more restrictions on neighboring landowners, and Mr. Yorke reported that there was no impact at all. Ms. Hunt noted that the burden is with the water system, not neighboring homeowners. Mr. Secor noted that the burden of protection is with the applicant. Mr. Yorke noted that if a farmer used chemicals that somehow leached into the water supply, it would not be the farmers' responsibility. Mr. Yorke explained that they have agreed to provide Mr. Armstrong a letter to reassure him that he would not be held liable. Mr. Yorke noted that it would also be an Act 250 stipulation. Ms. Hunt noted that the requirement was in 10 VSA 1676A. Mr. Goodhue noted that they would use over 7 million gallons per year, and asked if this source could provide that much. Mr. Bernardine noted that it was a bedrock aquifer in limestone 600 feet deep. Water bearing fractures were encountered from 350 feet down to. Many low yielding fractures that each produce five to ten gallons per minute. A 72-hour constant rate pump test was extrapolated over 180 days, and there was still water left in the well bore. A normal pumping day is 12 hours. The data is reviewed with no recharge. Mr. Bernardine noted that this was done last summer. Mr. Secor noted that this testing regime has been done since 1992. Mr. Gulley asked how they extrapolate the data of a 72-hour test over 180 days. Mr. Bernardine noted that they monitored 25 neighboring wells. Mr. Gulley asked if 72 hours was adequate, and Mr. Bernardine explained that it met their requirements. Mr. Barney asked about the 30-gallon per minute demand. Mr. Secor noted that it would be filling their tank. They might need 200 gallons per minute sometimes of the day, and nothing during the evening. Mr. Gulley explained that they are present for the amendment for the well, because the Board granted the approval as long as they connected to village water and septic. They are present only for the amendment for on site water supply. Keith Armstrong addressed the Board. He explained that his concern has been addressed in that Mr. Yorke has provided him with a written document guaranteeing him protection. He felt that the well eliminates the use of the land for agricultural purposes. He would like to see the land available because it is such high quality. He noted that there is only 8/10 of a percent of that type of soil in the town of Bennington. The property has not been used in the last few years, but the present owner has not allowed it to be used. The present owner has been approached by several farmers to lease or purchase the land. Mr. Armstrong indicated the location of his properties on the site plan. Mr. Alderman reviewed the project before the Board when someone wanted to build on prime agricultural land. The project was turned down by the Zoning Board, the applicant went to superior court with it, and the judge found in the applicant's favor and overturned the Zoning Board decision. Mr. Alderman felt that the courts do not hold agricultural land in the same esteem as others do. Mr. Barney asked Mr. Secor how much of an area would be left for farming after the footprint and the well. Mr. Secor noted that the field would still be a meadow. The total impact was about 49 acres, about 50% of the property. The field that Armstrong referred to is about six acres, partially located in the flood plain area. Mr. Barney asked if something could be organically grown, and Mr. Secor felt that it was possible. Mr. Maxon addressed the Board. He explained that his well was in zone three and it was affected. Mr. Bernardine explained that it did not exceed his daily demand. Mr. Maxon explained that he had to change his filters every day when they were pumping. Mr. Bernardine explained that there is ochre water in the area. Mr. Beckerman called with the same problem, turbid water shortly after the pumping test was completed. He reported that the consultant replaced some filters. There is some disturbance during the monitoring of the well. He felt that sometimes disturbs the sediment around the well. Mr. Bernardine explained that he was not aware Mr. Maxon was having trouble, as the comments were not made to them. Ms. Hunt noted that the quantity of the water was not affected. Mr. Bernardine noted that Mr. Maxon brought the matter up too late for them to address. He would relate Maxon's problem could be related to the ochre water problems that he has. Mr. Gulley asked if the lab technicians could determine what was on the filter. Mr. Bernardine felt that it was related to the iron in the water. Mr. Maxon explained that he had to change his filter every day while they did the pump test. Mr. Secor explained that Mr. Maxon did not notify them that he had to change his filter twice, and would have addressed the problem had they been notified. Ms. Wisher asked Mr. Maxon if he was still having the problem. Mr. Bernardine felt that he was concerned about recurrence, but did not know if it would or not. Mr. Bernardine would address the question to the hydrogeologist. Ms. Wisher asked if ochre water was useable. Mr. Bernardine noted that it was an aesthetic problem. Mr. Secor noted that it would filter out. Mr. Gulley asked if ochre water has a milky odor to it. Mr. Bernardine did not know. Mr. Secor noted that it was fine reddish pink silt. Mr. Bernardine agreed. Mr. Yorke commented that it is their commitment to do something positive for the community. He felt that the attorney could address a letter to Mr. Maxon agreeing to have the engineer review and provide financial responsibility for whatever problems they create. Mr. Barney reported that he has ochre water, and at times he has more than at other times of the year. Mr. Alderman felt that the engineer should be of Mr. Maxon's choice. Mr. Yorke felt that a mutually agreeable decision would be acceptable. Mr. Armstrong asked Jenny Kimberly to review the projects in acreage, size, and soil qualities that in consideration at Laumeisters. Ms. Kimberly noted that it was the same soil type as is on this parcel. Laumeisters' parcel is about six acres. Mr. Barney asked who oversees the agricultural practices, and Ms. Kimberly and Ms. Hunt noted that as part of the water permit. The Vermont Department of Agriculture is responsible for the accepted agricultural practices. Ms. Hunt noted Food and Markets has enforcement authority. The requirement relating to public water supplies is in the statute 1676A. Mr. Secor noted that on the LESA evaluation noted it was up to 217, still under the 225-town requirement. Mr. Alderman noted that they also have a mitigation agreement. Mr. Secor noted that Monks asked for the agreement just a few days ago. Mr. Alderman noted that $112,700 would be put into escrow to be disbursed by the environmental commission. Tom Jacobs explained that the mitigation agreement was between the Health Corporation and the Department of Agriculture to be sure there would be funds available for development rights. Mr. Alderman noted that the disbursement is triggered by an application through District 8. They determine where, and it does not have to be in Bennington. Mr. Jacobs noted that there is a two-year time limit on holding the funds in escrow. Mr. Jacobs noted that they have a responsibility to hold the funds for about two years, pending direction to disburse. Mr. Alderman asked if not disbursed, they would go to Department of Agriculture. If the funds are not in Bennington after two years, they can go back to the Department of Agriculture to purchase land for farming anywhere in the state. Mr. Gulley asked if the Corporation would be willing to take this money and rehabilitate farmland so that we know it will be in Bennington area. Mr. Jacobs noted that they would do anything to pursue protection of lands, but do not have control, the Department of Agriculture does. The District Environmental Commission has jurisdiction. Mr. Jacobs noted that once the agreement is signed they lose control over the funds. Mr. Secor recommended that they address the Commissioner through the Select Board. Ms. Kimberly explained that Vermont Housing and Conservation have a development rights program after the two year wait. Mr. Yorke felt problem addressed that Holden was selling 460 acres to the trust, and feels that there will be plenty of land, as they are looking for 100 acres. He feels that there is a pretty good chance to purchase land and development rights in Bennington County. Ms. Kimberly noted that they are still talking, and the agreement is not final yet. She noted that District 8 is Bennington County. Mr. Barney asked Ms. Kimberly about development rights, and Ms. Kimberly noted that there is a right to develop a piece of land, and the promise to keep it agricultural is worth something, and the Department of Agriculture calculated the value. Ms. Kimberly noted that land is appraised. Mr. Jacobs agreed, and noted that the state determined $1150 as per acre value. Ms. Kimberly noted that it was the average value of farms in the area. Mr. Gulley suggested that they continue the matter and deliberate on the matter. He felt that when it was presented in the past, he thought that that the back acreage would be available for agricultural purposes. Ms. Wisher would also like to continue, as there are a lot of things they need to go over and look at. Mr. Goodhue was ready to act, but felt that they should have all questions answered, but before two weeks. Mr. Monks felt that the Board could deliberate this evening. Mr. Barney, Mr. Alderman, and Mr. Congdon agreed. Mr. Alderman moved to discuss the matter during a deliberative session. Ms. Wisher seconded the motion. The motion passed unanimously. 3. Other Business ¨ Findings of fact and minutes were passed around and signed. ¨ Mr. Monks read the warning for the next meeting: The Town of Bennington Zoning Board of Adjustment will hold a regular meeting on Wednesday, February 9, 2000 at 7:30 p.m. in the District Court, located at One Veterans Memorial Drive, Bennington, Vermont. The purpose of the meeting will be to conduct regular business and to hold a public hearing on the following: Cynthia Wyman, South Stream Road, seeking variance of side yard setback requirement to construct a storage shed at the above address, an RCON District. Sections of the Bylaw applicable: 3.4, 4.1. Watering, Inc., Dermody Road, seeking conditional use approval for four recreational/sports fields at the above location, an RCON District. Sections of the Bylaw applicable: 3.4, 4.1. William H. Morse, Paul Dolmetsch, 327 Northside Drive, seeking conditional use approval for used auto sales/auto repair at the above address, a CI District. Sections of the Bylaw applicable: 3.4, 6.0, 6.1, 8.5. Mr. Monks explained that there would be a seminar on February 3, 2000 on Access Management presented by the Bennington County Regional Commission. The Board took a brief recess before the deliberative session. ¨ As there was no further business Mr. Gulley moved to close the public hearing. Ms. Wisher seconded the motion. The motion passed unanimously. The meeting was adjourned to deliberative session at 9:26 P.M. Mr. Goodhue moved to reopen the hearing at 10:42 P.M. Mr. Barney seconded the motion. The motion passed unanimously. Mr. Gulley moved to grant the amendment to the conditional use in concept, with the following stipulations: (Exact wording and findings to be determined and signed at the next meeting). ¨ Applicant shall encourage farmer to use open space outside 200-foot area as hay crop in accordance with AAP. ¨ Zone 2 and 3 landowners shall pay additional expenses with regard to development as a result of the wellhead protection area. Obtaining and complying with permits if the protection area were not there. ¨ With regard to existing wells, adversely affected according to well owner, applicant shall hire a state appointed or mutually acceptable hydrogeologist to determine if it was adversely affected. If so applicant shall pay to remedy. If determined that it did not, then cost shall be split 50% between applicant and landowner. Ms. Wisher seconded the motion. The motion passed with five in favor. Mr. Gulley was opposed. As there was no further business to come before the Board, Mr. Goodhue moved to adjourn. Mr. Barney seconded, and the meeting was adjourned at 10:47 P.M. Respectfully submitted, Robyn C. Baker Dated this 3rd day of February 2000. _______________________ ____________________ _______________________ ____________________ _______________________ ____________________ _______________________ ____________________ _______________________