STATE OF VERMONT
ENVIRONMENTAL COURT
} In re: Kaminsky - South Cove Road } house replacement application } Docket No. 269-11-06 Vtec (Appeal of Stuono and Suiter) } }
Decision and Order
William Stuono and Catherine Suiter appealed1 from a decision of the Development
Review Board (DRB) of the City of Burlington, approving Appellee-Applicants (Applicants)
Gary Kaminsky and Krystyna Kaminsky’s application to demolish an existing single-family
house at 125 South Cove Road in the Waterfront Residential Low Density zoning district
and replace it with a new, larger single-family house, garage, and swimming pool and
associated site modifications. Appellants represent themselves; Interested Persons Martin
Kuehne, Robert Fiorenza and Ann Fiorenza also appeared and represent themselves;
Appellee-Applicants are represented by Carl H. Lisman, Esq.; and the City of Burlington
is represented by Kimberlee J. Sturtevant, Esq.
After pretrial motions had been resolved, Question 4, Question 8 and a portion of
Question 1 of the Statement of Questions remained for trial. An evidentiary hearing was
held in this matter before Merideth Wright, Environmental Judge, who took a site visit at
the conclusion of the hearing, alone by agreement of the parties. The parties were given
the opportunity to submit written memoranda and requests for findings. Upon
consideration of the evidence as illustrated by the site visit, and of the written memoranda
and requests for findings filed by the parties, the Court finds and concludes as follows.
1 Several other appellants and interested persons were dismissed from the appeal or withdrew.
1 Appellee-Applicants own a 22,106-square-foot2 lot with the address of 125 South
Cove Road, on the westerly leg of South Cove Road in the Waterfront Low Density zoning
district and the Design Review overlay zoning district of the City of Burlington. An
existing house is located on the lot.
Appellee-Applicants propose to replace the existing house with a larger house
having a larger footprint, but meeting all of the dimensional criteria for a single-family
residence in this zoning district. They do not request any waivers of or variances from the
requirements of the Zoning Ordinance.
In this district the Zoning Ordinance requires a minimum lot size of 9,900 square
feet; the subject lot is 22,106 square feet in area. The Zoning Ordinance allows a lot
coverage of up to 35%; the lot coverage of the proposal is 34%. The Zoning Ordinance
requires a fifteen-foot front setback, a ten-foot side setback, and a fifty-foot shoreline
setback; the proposed house has a forty-foot front setback, has fourteen-to-fifteen-foot side
setbacks, and has a shoreline setback of ninety feet. The Zoning Ordinance allows a height
of thirty-five feet as calculated by a measurement method specified in § 5.3.19(b); by that
method the height of the proposed house is 25' 4½".
Austin Drive is a “collector street” running in an east-west direction towards Lake
Champlain, centered on a shallow peninsula of land extending into the Lake. Just to the
2 The tax listing for the lot describes it as .71258 acre, although the square footage of the lot calculates as just over half an acre. As Appellee-Applicants have used the square footage in their calculations, which is consistent with the apparent size on the tax map of some neighboring half-acre lots, the square footage is used in this decision for the size comparisons. Appellants sought at trial to rely on the image of the lots as portrayed on satellite or aerial maps available on the internet. However, without a foundation as to the source of the underlying data for this area as portrayed on those maps, and, in particular, whether it has been orthographically corrected for the angle at which it was photographed, the Court cannot consider this as evidence of lot size, although it is useful to orient the Court to the configuration of the neighborhood.
2 south of the peninsula is a cove (presumably the “South Cove” of the nearby road name),
with a beach maintained by the South Cove association, including the homeowners on
South Cove Road, Dunder Road, Shore Road/Oakledge Drive, and Eastman Way.
At the westerly end of Austin Drive, a roadway shown on the tax map as Shore
Road (but shown on the tax assessor’s listings and on commercial maps as “Oakledge” or
“Oakledge Drive”) extends a short distance towards the west and then turns to the north,
serving approximately seven large residences on relatively large lots. At the point at which
Shore Road/Oakledge Drive turns to the north, a new roadway known as Eastman Way
extends towards the south and west, serving a new development of houses on six or seven
relatively small lots on the southern end of the peninsula. These lots are approximately
half the size of the subject lot. The most southerly of these houses is an existing large older
house which has been renovated (the Eastman House), adjacent to the South Cove beach,
four of the Eastman Way houses are newly-built in the last few years and are very large in
volume, especially in relation to their small lot sizes.
At the westerly end of Austin Drive, a loop road known as South Cove Road
extends from Austin Drive towards the south to the South Cove beach, and then follows
the shoreline farther to the south, serving part of a development apparently originally
called the Redstone Park3 Development. This westerly leg of the South Cove Road loop
serves lots with frontage on Lake Champlain, as well as the lots across the street from those
3 Although this area was also referred to at trial as the South Cove development, to avoid confusion by repeated uses of “South Cove,” this decision will refer to the original development as the Redstone Park Development. Appellants and Interested Persons own homes within the Redstone Park Development, a subdivision of approximately seventy houses along the South Cove Road loop and Dunder Road created in the 1960s and early 1970s. Any issues relating to enforcement of the original covenants of this development are neither within the jurisdiction of the Environmental Court nor within the scope of this appeal.
3 lakeshore lots (including Appellant Stuono’s lot). The most northerly of the lakeshore lots
within the original Redstone Park Development is operated as a beachfront park by the
South Cove Association. The southerly end of the South Cove Road loop road adjoins city
park land. The easterly leg of the South Cove Road loop rejoins Austin Drive. The other
road serving the Redstone Park Development is called Dunder Road; it runs north to south
from Austin Drive, parallel to and farther to the east than the easterly leg of the South Cove
Road loop, and is not generally visible from or accessible from the South Cove Road loop.
The houses in the original Redstone Park Development are an eclectic mix of styles,
ranging from the contemporary (as that term was understood in the 1960s) to the colonial;
the area was not a development of tract homes. Due to the age of the development, its
landscaping has matured. The lots in the development vary in size; many are similar in
size to the subject lot. Within the original Redstone Park Development, the lakeshore lots
on the west side of the westerly leg of South Cove Road have lot valuations that are high
in comparison to their house valuations, presumably due to their Lake views. Prior to the
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STATE OF VERMONT
ENVIRONMENTAL COURT
} In re: Kaminsky - South Cove Road } house replacement application } Docket No. 269-11-06 Vtec (Appeal of Stuono and Suiter) } }
Decision and Order
William Stuono and Catherine Suiter appealed1 from a decision of the Development
Review Board (DRB) of the City of Burlington, approving Appellee-Applicants (Applicants)
Gary Kaminsky and Krystyna Kaminsky’s application to demolish an existing single-family
house at 125 South Cove Road in the Waterfront Residential Low Density zoning district
and replace it with a new, larger single-family house, garage, and swimming pool and
associated site modifications. Appellants represent themselves; Interested Persons Martin
Kuehne, Robert Fiorenza and Ann Fiorenza also appeared and represent themselves;
Appellee-Applicants are represented by Carl H. Lisman, Esq.; and the City of Burlington
is represented by Kimberlee J. Sturtevant, Esq.
After pretrial motions had been resolved, Question 4, Question 8 and a portion of
Question 1 of the Statement of Questions remained for trial. An evidentiary hearing was
held in this matter before Merideth Wright, Environmental Judge, who took a site visit at
the conclusion of the hearing, alone by agreement of the parties. The parties were given
the opportunity to submit written memoranda and requests for findings. Upon
consideration of the evidence as illustrated by the site visit, and of the written memoranda
and requests for findings filed by the parties, the Court finds and concludes as follows.
1 Several other appellants and interested persons were dismissed from the appeal or withdrew.
1 Appellee-Applicants own a 22,106-square-foot2 lot with the address of 125 South
Cove Road, on the westerly leg of South Cove Road in the Waterfront Low Density zoning
district and the Design Review overlay zoning district of the City of Burlington. An
existing house is located on the lot.
Appellee-Applicants propose to replace the existing house with a larger house
having a larger footprint, but meeting all of the dimensional criteria for a single-family
residence in this zoning district. They do not request any waivers of or variances from the
requirements of the Zoning Ordinance.
In this district the Zoning Ordinance requires a minimum lot size of 9,900 square
feet; the subject lot is 22,106 square feet in area. The Zoning Ordinance allows a lot
coverage of up to 35%; the lot coverage of the proposal is 34%. The Zoning Ordinance
requires a fifteen-foot front setback, a ten-foot side setback, and a fifty-foot shoreline
setback; the proposed house has a forty-foot front setback, has fourteen-to-fifteen-foot side
setbacks, and has a shoreline setback of ninety feet. The Zoning Ordinance allows a height
of thirty-five feet as calculated by a measurement method specified in § 5.3.19(b); by that
method the height of the proposed house is 25' 4½".
Austin Drive is a “collector street” running in an east-west direction towards Lake
Champlain, centered on a shallow peninsula of land extending into the Lake. Just to the
2 The tax listing for the lot describes it as .71258 acre, although the square footage of the lot calculates as just over half an acre. As Appellee-Applicants have used the square footage in their calculations, which is consistent with the apparent size on the tax map of some neighboring half-acre lots, the square footage is used in this decision for the size comparisons. Appellants sought at trial to rely on the image of the lots as portrayed on satellite or aerial maps available on the internet. However, without a foundation as to the source of the underlying data for this area as portrayed on those maps, and, in particular, whether it has been orthographically corrected for the angle at which it was photographed, the Court cannot consider this as evidence of lot size, although it is useful to orient the Court to the configuration of the neighborhood.
2 south of the peninsula is a cove (presumably the “South Cove” of the nearby road name),
with a beach maintained by the South Cove association, including the homeowners on
South Cove Road, Dunder Road, Shore Road/Oakledge Drive, and Eastman Way.
At the westerly end of Austin Drive, a roadway shown on the tax map as Shore
Road (but shown on the tax assessor’s listings and on commercial maps as “Oakledge” or
“Oakledge Drive”) extends a short distance towards the west and then turns to the north,
serving approximately seven large residences on relatively large lots. At the point at which
Shore Road/Oakledge Drive turns to the north, a new roadway known as Eastman Way
extends towards the south and west, serving a new development of houses on six or seven
relatively small lots on the southern end of the peninsula. These lots are approximately
half the size of the subject lot. The most southerly of these houses is an existing large older
house which has been renovated (the Eastman House), adjacent to the South Cove beach,
four of the Eastman Way houses are newly-built in the last few years and are very large in
volume, especially in relation to their small lot sizes.
At the westerly end of Austin Drive, a loop road known as South Cove Road
extends from Austin Drive towards the south to the South Cove beach, and then follows
the shoreline farther to the south, serving part of a development apparently originally
called the Redstone Park3 Development. This westerly leg of the South Cove Road loop
serves lots with frontage on Lake Champlain, as well as the lots across the street from those
3 Although this area was also referred to at trial as the South Cove development, to avoid confusion by repeated uses of “South Cove,” this decision will refer to the original development as the Redstone Park Development. Appellants and Interested Persons own homes within the Redstone Park Development, a subdivision of approximately seventy houses along the South Cove Road loop and Dunder Road created in the 1960s and early 1970s. Any issues relating to enforcement of the original covenants of this development are neither within the jurisdiction of the Environmental Court nor within the scope of this appeal.
3 lakeshore lots (including Appellant Stuono’s lot). The most northerly of the lakeshore lots
within the original Redstone Park Development is operated as a beachfront park by the
South Cove Association. The southerly end of the South Cove Road loop road adjoins city
park land. The easterly leg of the South Cove Road loop rejoins Austin Drive. The other
road serving the Redstone Park Development is called Dunder Road; it runs north to south
from Austin Drive, parallel to and farther to the east than the easterly leg of the South Cove
Road loop, and is not generally visible from or accessible from the South Cove Road loop.
The houses in the original Redstone Park Development are an eclectic mix of styles,
ranging from the contemporary (as that term was understood in the 1960s) to the colonial;
the area was not a development of tract homes. Due to the age of the development, its
landscaping has matured. The lots in the development vary in size; many are similar in
size to the subject lot. Within the original Redstone Park Development, the lakeshore lots
on the west side of the westerly leg of South Cove Road have lot valuations that are high
in comparison to their house valuations, presumably due to their Lake views. Prior to the
present application, one other such lakeshore lot has had an older house torn down and
replaced with a much larger house, while at least one other has been remodeled and
enlarged within its existing footprint. The houses on Eastman Way and the southerly end
of Shore Road/Oakledge Drive, as well as the houses on the westerly leg of South Cove
Road, have a visual relationship to subject property.
In addressing the issues raised by the remaining questions in Appellants’ Statement
of Questions, the Court is required to apply the substantive standards that were applicable
before the DRB. V.R.E.C.P. 5(g); 10 V.S.A. § 8504(h).
4 Question 8 - Whether the lower level of the proposed house should be “removed from the
design plan” if “there is no intent to finish” it.
The amount of finished living space in a single-family house is not restricted in any
way by the Zoning Ordinance applicable to this case. The lot and the proposed house meet
all of the dimensional requirements of the Zoning Ordinance.
Appellants are free to seek changes in the Zoning Ordinance that would implement
policies differing from those now contained in the ordinance, regulating house size,
volume, finished living space, lot coverage, or any other parameter, either in general or
specifically with respect to lakeshore properties. However, as applied to the present
proposal, the Zoning Ordinance does not prohibit an unfinished lower level or regulate
house size in terms of finished living space. Therefore, the Court has no basis to require
the elimination of the proposed lower level simply because it is not now proposed to be
finished, or because it might become finished living space in the future.
Question 1: Whether the “long term trend” of “teardowns and extremely large home
development on the shores of Lake Champlain” will “negatively impact both the water
quality of the Lake, and the scenic views from the Lake?”
Similarly, the Court does not have before it the larger policy question about whether
the Zoning Ordinance should regulate teardowns or extremely large houses on the
lakeshore, however those terms may be defined. The Court must apply the Zoning
Ordinance, as it now exists, to the application at issue in the present appeal. Appellants are
free to raise this policy issue in the ongoing ordinance amendment process and to seek such
regulation, but it is not before the Court in this appeal unless it is reflected in the current
Zoning Ordinance.
To the extent that the effect of this proposed house on the water quality of the Lake
is even regulated by the Zoning Ordinance, it will not negatively affect the water quality
5 of the Lake. First, with respect to the construction of permitted-use single-family homes
in the Waterfront Low Density zoning district, which do not require conditional use review,
site plan review, or major impact development review, only § 6.1.10(j) addresses the effect
of the house construction on the water quality of the Lake. It requires that the proposal
“shall endeavor to minimize, insofar as practicable, any adverse impact on . . . water
resources.” Because the house will be connected to the municipal sewer system and the
municipal stormwater system, as required by other City ordinances, it will not discharge
into the Lake and therefore the proposal will meet § 6.1.10(j) with regard to the potential
for affecting the water quality of the Lake. If other state regulations also regulate
construction on the site with respect to water quality, no such regulations are before the
Court in this appeal.
To the extent that the effect of this proposed house on views of the shoreline as seen
from the Lake is regulated by the Zoning Ordinance, it will not negatively affect such
views. The Zoning Ordinance does not regulate the view from the Lake of residential
houses in this district, as contrasted with the additional criteria applicable in the Central
Business and Waterfront Core zoning districts under § 6.1.11(b) and (c). As seen from the
Lake the existing house has the appearance of a wide two-story contemporary house with
a hipped roof. The proposed house has been designed with a low wall surrounding the
sunken swimming pool on the Lake side of the house, which sufficiently masks the walk-
out basement level of the house from the Lake, so that when seen from the Lake, the house
will have the appearance of (will “read” as) a wide two-story contemporary house, with
multiple hipped roof segments. In any event, even though it is not regulated by the Zoning
Ordinance, the view from the Lake through the lot towards anything inland of the lot will
not be changed by the proposal, as it is now substantially blocked by a combination of the
existing house and the existing vegetation. The proposal will result in that view’s being
blocked by somewhat more house and somewhat less vegetation.
6 Question 4: Whether the proposed project fails Design Review Criterion 6.1.10(a) “Relate
Development to its Environment,” and specifically whether the following six listed features
of the proposed project are out of scale with the neighborhood development pattern: (a)
the size of the house footprint; (b) the full 2-story (road side) and 3-story (lake side) house
construction; (c) the overall square footage and volume of the house; (d) the lot coverage;
(e) the size of the additional garage footprint; and (f) the height of the top of the roofline.
Section 6.1.10(a) is entitled “Relate development to its environment,” and requires
in full that:
[t]he proposed development shall relate appropriately to its context. It shall relate harmoniously to the terrain and to the use, scale and architecture of existing buildings in the vicinity which have a functional or visual relationship to the proposed structure(s). Proposals that deviate from established neighborhood patterns should be discouraged.
Appellants ask the Court to limit the comparison to the houses in the original
Redstone Park Development to determine the “established neighborhood pattern” for
comparison with this proposal. Appellants argue eloquently for the preservation of the
distinction between the character of the more modest original Redstone Park Development,
and that of the more recent development of more imposing houses on smaller lakeshore
lots as exemplified by the Eastman Way development. However, this is a policy distinction
that is not reflected in the City’s present Zoning Ordinance, which the Court is required to
apply. At present, the Zoning Ordinance allows the smaller lots, greater lot coverage,
smaller side setbacks, and shallower front yards that result in the more recent type of
development. Moreover, even if we were to restrict the comparison to the original
Redstone Park Development, at least two of the other houses on the west side of the
westerly leg of South Cove Road have been replaced or substantially remodeled.
In any event while § 6.1.10(a) requires that the development relate appropriately to
its context and harmoniously to the terrain and surrounding building scale and
7 architecture; it merely discourages, but does not prohibit, deviation from established
neighborhood patterns. This distinction in the language of the ordinance is presumed to
be “inserted advisedly and not intended to create surplusage.” In re Estate of Cote, 2004
VT 17, ¶13, 176 Vt. 293, 296.
The Zoning Ordinance requires that the comparison be made to the scale and
architecture of existing buildings which have a functional4 or visual relationship to the
proposal. As described above, context of the proposal, and the neighborhood houses with
a visual relationship to the proposal, include the Eastman Way houses and lots, as well as
the houses in the original Redstone Park Development along both sides of the westerly leg
of South Cove Road. The southernmost houses along Shore Road/Oakledge Drive at the
turn onto the westerly leg of the South Cove Road loop also provide an aspect of the
neighborhood context.
Size of house footprint
The size of the house footprint is within the range of the larger houses along the
lakeshore side of the westerly leg of South Cove Road, along Eastman Way, and the first
two houses visible from the southerly end of Shore Road/Oakledge Drive.
Number of stories as seen from the road and from the Lake
As seen from the road, the proposed house has two visible stories plus the hipped
roof, within the range of the houses along both sides of the westerly leg of South Cove
Road, along Eastman Way, and the first two houses visible from the southerly end of Shore
Road/Oakledge Drive.
As seen from the Lake, the number of stories will “read” as two, as the walk-out
basement level will be masked by the swimming pool wall. However, even if it were seen
4 No functional relationship is claimed to exist among any of the residences.
8 as three stories, it is well within the range of the houses along the lakeshore on the
westerly leg of South Cove Road, along Eastman Way, and the lakeshore houses on Shore
Square footage/volume of the house
The older houses in the South Cove Road development, including the existing
house, are generally smaller in volume than the more-recently constructed houses in the
area, and generally have smaller garages. Nevertheless, the square footage and volume of
the proposed house is within the range of the houses along the westerly leg of South Cove
Road, along Eastman Way, and the first two houses visible from the southerly end of Shore
Road/Oakledge Drive. A visual comparison of the proposed house with the houses on
Eastman Way and at 99 South Cove Road, 80 South Cove Road, 104 South Cove Road show
that the bulk or volume of the proposed house is not out of scale with the larger nearby
houses. Further, because of the contemporary design, the stone cladding of the ground
floor, and the shallow profile of the hipped roofs for each segment of the proposed house
and garage, the volume or bulk of the house will be broken up visually and will not appear
out of scale with the neighboring lakeshore houses
Lot coverage
The lot coverage is within the range of the houses along both sides of the westerly
leg of South Cove Road, and especially along Eastman Way.
Footprint of new garage
The older houses in the South Cove Road development, including the existing
house, have smaller garages than do the more-recently constructed houses in the area. The
proposed new garage is large, but its entrance is proposed to face the north rather than to
face the street, so that it will not be as noticeable as garage space rather than as part of the
house. In any event, the footprint of the new garage is within the range of the houses along
the westerly leg of South Cove Road, along Eastman Way, and the first two houses visible
9 from the southerly end of Shore Road/Oakledge Drive.
Height to ridge of roof
The apparent height is well within the range of the houses along the lakeshore on
the westerly leg of South Cove Road, along Eastman Way, and the houses visible at the
southerly end of Shore/Oakledge Road. The height of the house relates more harmoniously
to the terrain than some of those other houses, especially those on Eastman Way, as it is
tucked into the slope of the shoreline and does not have the appearance of its full height
when seen from the public road.
Considering all of the issues remaining from the Statement of Questions, as
discussed above, the proposed house satisfies the provisions of the current Zoning
Ordinance. Based on the foregoing, it is hereby ORDERED and ADJUDGED that the
proposed project is approved with conditions as approved by the DRB, concluding this
appeal.
Dated at Berlin, Vermont, this 29th day of November, 2007.
______________________________________ Merideth Wright Environmental Judge