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The Town of Hinesburg


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									                              TOWN OF HINESBURG

                                           October 16, 2007
                                    Approved November 6, 2007

DRB Members Present: Tom McGlenn, Ted Bloomhardt, Dick Jordan, Dennis Place, Zoë
Wainer, Greg Waples.

DRB Members Absent: Lisa Godfrey, George Munson.

Also Present: Alex Weinhagen (Director of Zoning and Planning), Peter Erb (Zoning
Administrator), Karen Cornish (Recording Secretary), Carrie Fenn, Louis Prue, Brent Francis,
Richard Francis, Fiona Fenwick, Gary Fenwick, Paul MacCluskey, Jim Collins, Kristi Brown,
Tim Brown, Tonia Bouchard, David Bouchard, Judy LaBerge (Charlotte), Louis LaBerge, Judy
LaBerge (Hinesburg), Matt Laberge, Lisa Foley, Bill Snyder, Todd Morris, Tony St. Hilaire,
Brock Francis, Pam Francis, Richard Goldsborough, Matt Francis, Diane Moore.

The meeting began at approximately 7:30 p.m.

Stormwater System Maintenance discussion
Millie Archer, Water Quality Coordinator with the Vermont League of Cities and Towns, gave a
presentation on the subject of stormwater, “where state regulations begin and end, and where the
gaps are and where the local communities can fill the gaps.” Materials outlining the presentation
are available for review in the Planning and Zoning office. Topics covered were:

- Construction vs. operations permits
- Stormwater discharge associated with construction activities, new development
- Erosion prevention and sediment control guidelines
- The adoption of low impact development strategies for stormwater control
- Riparian buffers, landscaping standards for riparian buffers
- Act 250 guidance and jurisdiction

Millie explained a rain garden is a bowl shaped, constructed depression where plant varieties that
do well in wet or dry locations are planted. Ted asked how a low risk vs. high risk site is
determined; Millie said there is a decision-tree method that is available from the state. Dick
asked why a mowed lawn was not a suitable riparian buffer. Millie said it does not allow for the
benefits a riparian buffer will offer (the absorption of phosphorous and sediment run-off; does
not allow for habitat). Tom asked how many other towns are getting involved with this issue.
Millie said she is assisting with bylaw review and revision for quite a few towns. Ted asked
about hay bales; Millie said they are no longer typically used.

Tom asked about recommendations for the ongoing monitoring of a stormwater system. Millie
said although she had not worked specifically with towns on that issue, she thought terms could
be written into homeowners associations’ bylaws. She also described inspection requirements of
more complex systems that would fall under state permitting. She described South Burlington’s
unique stormwater utility, a function overseen by the town to inspect and maintain systems.

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Alex noted a recent DRB discussion on whether to include in all DRB decisions, a boilerplate
provision addressing stormwater system failure. He said he and Peter agreed projects requiring a
state permit don’t need such a provision (because their proposed stormwater systems require
regular state inspection), but that the issue is less clear with other projects. Ted said he liked the
language drafted for the Francis decision, noting the Francis proposal included an engineer-
designed system. Alex described that applicant’s concerns including a benchmark assessment
for a land area, who would determine stormwater damage, its source or cause, and whether a
system was not working. Greg thought requiring a system to perform to a certain standard
seemed appropriate as a condition of approval, but that enforcement was the issue. Tom said he
would like to see a public works official from the Town get involved in those situations.

Peter thought it was easy to assess how a new system may be failing but that no baseline
information exists to determine if that new system created a new problem or made an existing
problem worse. Greg thought engineers should be responsible for establishing a baseline.

Alex said he would like to understand to what extent the town can be proactive on the review
side, rather than reactive on the zoning violation side. He talked about the possibility of
retaining a consultant with stormwater expertise on a routine basis. Peter thought a baseline
study of an area’s conditions would offer a recorded public statement but noted such a process
would be complex. Millie offered to look at other towns’ bylaws and review decisions dealing
with stormwater systems from a development review standpoint. She suggested a stormwater
review checklist, both for the Planning Commission and the DRB.

Revision of Approved Final Plat – Hinesburg Auto Sales – Route 116 – Applicants: Paul
and Lisa MacCluskey and the Giroux Family Trusts
Paul MacCluskey said he had reached an agreement with the neighboring property owners
regarding the boundary. Greg asked Paul whether a revised site plan would be submitted to the
DRB; Paul said yes. Zoë noted a typo in FOF #2. Ted MOVED to close the public hearing and
to approve the draft decision as amended. Greg SECONDED the motion. The motion PASSED

Appeal of Notice of Violation – Hayden Hill Road West – Appellants: Matt and Judy
Alex passed out correspondence he received regarding the issue. Rick Goldsborough, an
attorney, spoke on behalf of the LaBerge’s. He said they do not agree with the violation
regarding Section 5.12 of the Town Bylaws, that noise from dirt bikes on an 18-acre property in
a rural district does not constitute a non-conforming use nor is it unreasonable. He said the
Hinesburg Town Plan states a goal to “maintain and embrace rural small town character”; he said
the LaBerge’s believe this use on one’s own property fits in with that objective.

He described the LaBerge 18-acre property (Hayden Hill Road West, Rural Residential II) as
open but surrounded by trees, with a track built to the north (closest to Hayden Hill Road). He
described typical use of the track as follows: it is used by the LaBerge children and an invited,
select group of friends and relatives; it is not a racing track; it is for personal use only; the public
can’t use it; and there are no fees nor are there races there. He said the family has limited the
time and frequency of riding to Tuesdays and Thursdays from 5:30 pm to 8:00 pm, with sporadic
weekend use, in use from May to September. He noted the family is normally not home on
weekends as they travel to Derby to use a track there. Greg asked if it was in use now; Matt said

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not during the week due to light conditions, and only occasionally on weekends in October due
to weather, leaves and mud.

Rick noted that Gary and Fiona Fenwick have a home 1000 to 1200 feet away from the track.
He said the Fenwicks (the party who raised the issue) describe this case as similar to the
Ackerman appeal (a decision on file in the town of Fairfax). Rick pointed out what he thought
were differences in the cases, stating they are different procedurally, the precise question before
the town of Fairfax was not the same question in this matter, and the facts were different, such as
the difference in neighbors’ house sites.

Rick said the LaBerge’s felt motorbike riding constituted usual and customary residential
activity. He said the RRII district does not have dense residential neighborhoods. He said the
LaBerge’s welcomed a site visit to the property, stating visitors would see that the track was not
professionally constructed but is a small dirt track. He said the children would ride bikes in
order for visitors to assess noise. Greg asked if current ground conditions were similar to those
when bikes are used in the summer, for comparison’s sake. Rick said yes, but that tree
conditions (foliage) would change and suggested doing a site visit soon. Matt said conditions
may be muddy and was not sure if bikes could be ridden in the same way.

Ted said he wished to understand if any limitations on the use of the bikes existed, noting the
limitation of the number of hours and riders offered by the LaBerges was voluntary. Judy felt
neighbors could work together to agree on a schedule; Ted noted that does not always work, as
evidenced by the hearing. Greg thought the issue needed to be based on “reasonableness”. Dick
Jordan thought a site visit would provide the most objective evidence. Judy said riders are the
homeowners and their kids, that they are not holding riding schools or clinics.

Greg thought defining the threshold of “a customary residential activity within the meaning of
the bylaw” was important; if that question could be answered, the question of reasonableness
may not have to be answered. He said he did some research and found the approaches taken by
various towns in the New England region to be inconsistent. He asked Rick if he knew of any
specific ruling on a similar issue. Rick said he needed more time to research the issue, but a
preliminary search turned up nothing in the state of Vermont.

Rick said regardless of other cases, this appeal pertains to this property owner. He passed out a
statement signed by most of the abutting neighbors around the LaBerges, with the exception of
the Fenwick and Foley/Snyder households, and possibly others. He read from the statement,
which supported the LaBerges in their appeal.

Tonia Bouchard, who lives on Birchwood Drive, said her son rides his motor bike at the LaBerge
house. She said because her own home is on less than one acre of land within a 52-house
development, her son can’t ride on his own property. She said the kids ride as an enjoyable
hobby. She noted that with 800 motocross members in Vermont, it is reasonable to expect ATV
and off-road motorcycle use on private property. She said her son’s bike is not made for racing.

Gary Fenwick said bikes are designed and engineered for racing, emitting noise not comparable
to that of a farm tractor which emits a more monotone sound quality. He described the constant
revving of the vehicles as a unique aspect of motorbike noise. He said he counted 37 different
days between June 10th and September 30th during which he could hear the bikes. He said if 20%
of a town’s households engaged in an activity, one could reasonably call that activity “usual and

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customary”. If one applied that statistical reasoning to the current number of households in
Hinesburg (1800), the number of households riding dirt bikes would have to be 360 to constitute
“usual and customary”.

Greg asked if there were other dirt bike tracks in town. Tim Brown of Magee Hill Road said a
track has existed on his family’s 175 acres for 20 years. He thought people who did not like the
noise should either close their doors or move into town. He said dirt bikes were admittedly noisy
but they only ride them a few hours a day, even though they are allowed from 6 am to 10 pm.

Lisa Foley, a nearby resident on Chickadee Lane, said although she moved from a metropolitan
area, she has lived in rural areas before and is used to the sound of chainsaws, ATV’s, farm
equipment, etc. She said she thinks it’s reasonable for the kids to ride, but is concerned that
more people could come. She is also concerned that the size of the bikes will grow as the kids
grow and love their sport and hobby. She said she does not want to close her doors and windows
in July. She said Judy and Matt have been open to limiting the noise by request (for certain
events taking place at the Foley house, for instance). She said she would not expect their kids to
not be able to do this, that it is a matter of limiting the number of riders and hours. She said a
resident from Lincoln Hill (a hill road south of Hayden Hill) called her asking about the sound.

Bill Snyder, a nearby resident on Chickadee Lane, said Matt had proposed creating a formal
agreement between neighbors that set up a riding schedule, although (Bill) did not see that come
to fruition. He asked who would be responsible for monitoring/enforcing something like that.

Greg noted decibel measurements taken at the property line, and asked if any neighbors could
provide decibel readings at the house site or inside the house. Gary Fenwick said he took decibel
readings of 75 at his house and 96 at the property line, which he noted was 8 times the acceptable
level in Williston. Judy said they also took readings and found spikes of 55 at the property line
near the back of the parcel. There was some question whether readings at this location could be
compared to the Fenwick reading taken at another location. She said at time the noise disappears
altogether, when bikes go around a corner. She suggested taking an average of readings over one
hour; readings between 0 and the 55 decibel spike would average to a low number.

Matt Francis, an adjacent neighbor, said Matt LaBerge came to his house to take noise
measurements while one adult on a mid-size bike rode alongside the kids’ bikes; he said the
noise meter registered 76 decibels. He questioned how the Fenwicks could get a reading of 96 if
their house (at 1200 feet) is further from the LaBerge’s track than his own (400 feet). He said
the noise doesn’t bother him and he hears it only occasionally. Greg said he reviewed traditional
decisions from other states and found statements that indicated hearing over motocross activity
can be a problem.

Brock Francis, an area neighbor, said he had no problem with the track. He said he has visited
the track, carried on conversations there during motorcycle activity, and had no problem hearing.
Kristi Brown of Magee Hill Road said sometimes 15-20 adults riding larger bikes at their house
at the same time, but she has no issue with noise.

Dick Francis, an adjacent neighbor, said noise traveled uphill in the area. He questioned how
there could be a decibel reading higher than what is allowed under federal motorbike production
regulations. He asked if anyone knew what those federal requirements for decibel limits were.

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Fiona Fenwick agreed that noise traveled uphill, noting her house is located directly uphill from
the LaBerge’s. She said the noise is loud and unreasonable, and called the bikes “race-ready”.
Although she did not have an answer to Dick’s question, she thought she had read that
regulations had recently been decreased from 98 to 96.

Tonia Bouchard said her son’s bike is a 100 % regular-stock bike, describing exhaust and
carburetor details, and measures she had taken to bring the bike noise emission to a stand-still
standard rate of 72. She said she measured a neighbor’s trumpet playing at 110 decibels, but has
not pursued a noise issue with him.

Lisa Foley said the LaBerges have taken measures to try to improve the situation. She thought if
a decibel reading was done by a third party it would be hard to measure for a number of reasons
(# of bikes, types of bikes). Matt Francis said a special license is not needed to ride the bikes,
which he said are stock dirt bikes anyone can buy. He said they do take stock bikes and go to
race in Derby. Peter Erb said he took the first decibel readings which measured in the 70’s, with
spikes in the 80’s. Jim Collins, a resident at the lower end of Hayden Hill, said he has lived there
thirty years, and has seen/heard a range of vehicles including mud-bogging trucks without
mufflers and dirt bikes. He thinks Peter has some reservations about the normal use of these

Brent Francis said he thought the decision should be based on whether this activity was
considered normal use in a rural residential area. He thought that could be decided without a site
visit, as people know essentially know what dirt bikes are.

Tony St. Hilaire noted the use of other equipment and off-road vehicles that he felt was
acceptable. He said he was concerned about the board making a subjective decision. Tim
Brown said he attended the previous night’s Select Board meeting, and noted the chief of
police’s comments. He said Chief Morrell said he received about 5 calls a year to address noise
in the village, mostly complaints about music. Gary Fenwick said it was Deputy Chief Silber
who visited their property, and noted that Chief Morrell did not say the LaBerge issue was not an
issue, only that noise complaints in general are low for the town.

Matt LaBerge said he has made corrective provisions on his own bike, installing an after-market
exhaust. He said he invited Peter to make a second visit to re-test decibel readings, but he did
not come (and thus the 1st readings by the Fenwicks remained un-challenged.) Matt Francis
thinks Gary may have been hearing his motorcycle in the 37 days he recorded. Tonia noted
riders in the town forest may have also been recorded in Gary’s notes.

Brent Francis said the board should be careful about information that has been provided, as data
may be erroneous. He suggested steering the issue back to the reasonable use of dirt bikes in a
rural area, not whether the sound level is appropriate. Greg said he thought a site visit was
important, recognizing there are constraints in truly replicating what goes on in periods of
arguable objectionable use.

Tom MOVED to schedule a site visit for October 27th at 9:00 am, and to continue the public
hearing until the November 6th meeting. Greg SECONDED the motion. The motion PASSED

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Ce Variance – Garage Construction - Hidden Pasture Road – Applicants: Louis and
Jennifer Prue
Louis Prue explained he purchased land and built his house 10 years ago. He would now like to
build an attached garage with a finished space above. He described a large easement ROW of
250 x 50 feet, described other natural and legal property constraints, including wetlands, grade
and setbacks. He said he thinks the only suitable location for a garage is the one proposed.

The group discussed the large ROW and its significance for the neighboring Neu property,
stating it was more a benefit for the Prue’s. Tom asked Louis to explain map lines. Ted
questioned whether the ROW could be truncated to eliminate that particular setback issue.

It was agreed that even if the issue related to the large ROW were resolved, an issue with the
property line could not be resolved. Louis said he told neighbors of his plans at an association
meeting, and that all were agreeable to them (he noted none were at the DRB meeting). The size
of the garage was discussed; Ted thought a thought a 16 ft garage was possible.

Ted said he thought the problem at hand was created by the siting of the house by the present
owner/applicant. Greg noted variance criterion #2 regarding whether the property has already
been reasonably developed. He thought that if this passed by the DRB and appealed by a
neighbor, criterion #2 could not be satisfied. Board members then voted on variances criteria,
with the following results:

#1:     Tom Y; Ted Y; Dick Y; Zoë Y; Greg N; Dennis Y
#2:     Tom Y; Ted N; Dick Y; Zoë N; Greg N; Dennis Y
#3:     Tom N; Ted N; Dick N; Zoë N; Greg N; Dennis N
#4:     Tom Y; Ted Y; Dick Y; Zoë Y; Greg Y; Dennis Y
#5:     Tom N; Ted N; Dick N; Zoë N; Greg N; Dennis N

Tom MOVED to close the public hearing and to deny the variance request. Greg SECONDED
the motion. The motion passed 6-0.

Minutes of the October 2, 2007 Meeting:
Greg MOVED to approve the October 2, 2007 meeting minutes as amended. Zoë SECONDED
the motion. The motion PASSED 6– 0.

Other Business:

Baldwin subdivision sketch plan
Greg proposed an addition to Conclusion #3 regarding a unique family situation but group
agreed to leave the statement as written. Dick discussed language in Order #3d. Ted asked
whether decision language should more clearly tie the applicants to their interest in the
neighboring parcel. Dick had concerns about the house location for Lot #2.

Tom MOVED to approve the draft decision as written (approval). Greg SECONDED the
motion. The motion PASSED 6-0.

Bedard subdivision sketch plan

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Regarding FOF #6, Greg thought the fact that the original parcel had already been extensively
subdivided previously should be recorded in the decision; group discussed previous subdivisions.
No further action was taken.

Blittersdorf subdivision sketch plan
Order #3a and the precise location of the soil line referred to in the decision were discussed.
Tom MOVED to approve the draft decision as written (approval). Ted SECONDED the motion.
The motion PASSED 6-0.

Ketcham subdivision sketch plan
Tom MOVED to extend the sketch plan review for 6 months. Greg SECONDED the motion.
The motion passed 6-0

The next DRB meeting is November 6th. A site visit to the LaBerge property is scheduled for
October 27th at 9:00 am and is open to the public. The meeting adjourned at 10:30 p.m.

Respectfully Submitted:

Karen Cornish
Recording Secretary

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