Zoning changes are questioned in Addison

ADDISON — The Addison Planning Commission on Feb. 21 will review changes allegedly made to town zoning laws last summer by Addison’s interim zoning administrator Jeff Kauffman — also chairman of Addison’s selectboard.
Some Addison residents believe Kauffman overstepped the bounds of his authority and made major changes to the zoning laws, alterations that were not approved by planners at their Aug. 16, 2010, meeting.
Lakefront residents Barbara Ernst and Barbara Supeno said they consulted with then Secretary of State Deb Markowitz, who told them the changes were improper.
“We confirmed with the secretary of state’s office that these changes were never authorized, they were never enforceable. They did not follow the law, and the November 2007 laws are still the current enforceable version for the town,” Supeno said.
Furthermore, Supeno said, Addison is not in a good legal position if the changes are allowed to stand.
“The secretary of state said … the town would be vulnerable to lawsuits because the town is presenting regulations that did not follow proper procedures,” she said.
Two of the central changes in question have to do with new “waiver” criteria that would allow the town’s development review board to give homeowners relief from setback requirements in some cases, and the addition of a 50-foot setback to private roads in the Shoreland Protected District along Lake Champlain.
The new waiver language may be found in italics on Page 83 in the online version of the new regulations available at www.addisonvt.us. The changed setback language may be found on Page 15 in the new version; the old language is on Page 15 in the previous version.
Planners’ Aug. 16 minutes indicate they were through making changes at that point. Minutes read, “finished making final adjustments/revisions with ‘Zoning Regulations’ and will be printed/reprinted as they are and will send a copy to the Selectboard for their approval. Motion made by Tim Davis, seconded by Clifford Douglas, to leave ‘Waivers’ & definition as is, since we aren’t allowed to make any major changes without going through a public hearing. All voted in the affirmative.”
Major changes, per state law, require a public process. Minor, technical wording changes to clarify language, for example, are permissible under law without public hearings.
The agenda of the planners’ Feb. 21 meeting includes: “Will revisit the definition addition for ‘Private Road’ and ‘Setback Requirement’ as currently listed in appropriate tables,” and “Will work with Zoning Administrator Jeff Kauffman on areas of concern,” although it is not clear whether those concerns include this issue.
All members of the planning commission were all contacted by email with questions about the changes and their origins. Three responded, including chairman Frank Galgano.
“We are currently aware of the allegations and are in the process of reviewing all pertinent data relating to the allegations, at which time we will advise all of our findings,” Galgano said in an email. “Should there be reason to, corrections will be made.”
Commission member Charles Kelly said he would not comment on specifics other than to say planners were carefully researching their notes from meetings leading up to August, and would also go back and listen to tapes to determine authorship of the changes.
“We need to review our notes … and get it out on the table and talk about it,” Kelly said.
Planner Tim Davis said commission members would take the issue seriously.
“We are checking into this,” Davis said. “This is not going unseen.”
Kauffman did not respond to an email request for comment; that email contained the same questions as sent to the planners, another on a possible conflict of interest from his dual role as zoning administrator and selectboard chairman, and a request for his opinion of whether the changes were major or minor.
Addison County Regional Planning Commission Director Adam Lougee said not all the Addison changes necessarily rise to the level of major alterations. The new waiver section, for example, could be seen as essentially clarifying the earlier section, which would of necessity refer to dimensional requirement waivers such as setbacks.
“I couldn’t tell you how a judge would rule,” Lougee said.
The lakefront property owners who said they brought the changes to planners’ attention — Ernst and Supeno — have no doubt how a ruling would go.
In a Nov. 8, 2010, letter to Galgano, they allege that Kauffman made “numerous major changes that were not authorized and expressly voted on 8/16/2010 to stay as is in the November 2007 Major Rewrite Version of the Addison Zoning Regulations.”
Ernst and Supeno have attended planning and selectboard meetings since August and have urged residents to protest the changes and insist that town officials make sure 2007 zoning remains in effect. They said in emails that allowing building too close to roads along the lakefront — which waivers could allow — could harm property values and strain the septic capacity of soils there.
They also called the addition of “private roads” to the setback list “essentially ‘A Taking of Their Land and Land Rights’ from Shoreland District property owners.”
In an email to other Addison residents that was shared with the Independent, they also said that Galgano has refused to take steps to correct the changes that they said were made against planners’ will.
“Instead of correcting these unauthorized major zoning regulation changes the Planning Commission Chair, Frank Galgano, has instead decided to try to retro-actively rubber stamp these unauthorized major changes by holding a hearing on some of the changes,” they wrote, citing the setback and private road issues.
CONFLICT OF INTEREST?
Ernst and Supeno also believe that Kauffman should not have served as zoning administrator while chairman of the selectboard. Although Lougee and the Vermont League of Cities and Towns both said the arrangement is not illegal, the VLCT recommends against it.
“VLCT does not recommend that selectboard members serve as zoning administrator as it creates potential conflicts that could stand in the way of effective administration of your municipality’s zoning program. For example, conflicts may arise due to the employer/employee relationship between the zoning administrative officer and the selectboard,” states one VLCT document.
According to Supeno, “This is a huge conflict of interest.”
The town has been trying to find a new zoning administrator, but that effort has lagged.
Another question of conflict of interest has risen.
Some, including Rob Hunt, a former zoning board member and  current Addison Central School director, have also questioned whether Kauffman, an Addison Central School employee, should step away from discussions involving ACS issues.
Hunt, a current selectboard candidate, attended the selectmen’s January meeting, when the board tabled a conflict-of-interest policy without signing it.
Hunt said selectmen should move more quickly toward such a policy.
“They were not willing to sign it. As a taxpayer, that makes me wonder why,” he said. “Nobody had an answer.”
Andy Kirkaldy may be reached at andyk@addisonindependent.com.

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