On Monday, November 7, the room at the Warren Town Hall was packed for a development review board (DRB) hearing of local zoning issues and 25 people attended virtually, which chair Peter Monte said was the biggest crowd he remembered in many years. At issue were zoning appeals for Shane and Kelley Elwell of Elwell Excavating located at 251 Doe Road and Jared and Amantha Rouleau of A&J Recycling at 143 Buck Road in Alpine Village in Warren. First up was an “Appeal of Violation issued to Shane and Kelley Elwell for an unapproved use of the property and the large addition of fill on a steep slope at property that lies between Fern/Raspberry and Rabbit Roads consisting of approximately 1.79 +/- acres in the Alpine Village Residential District.”
Shane and Kelley Elwell appeared to appeal a zoning violation letter they received on October 10, 2022, for the trucking, dirt work, ditching, excavating and road building/repair business they run out of their home. The letter stated that “you are in violation of the Warren Land Use and Development Regulations for several items in the ordinance,” citing Article 2, which states that “Alpine Village Residential District prohibits Commercial Uses” and Article 3, which says “Erosion Control and Development on Steep Slopes, disallows the addition or removal of earth without a permit.” The Elwells had recently put in a 10-foot berm on their property for the purpose of protecting neighbors’ privacy, according to the couple. The letter also said, “It appears that a structure has been built without a permit on your property on Doe Road. This is a violation which needs to be remedied.”
‘CEASE AND DESIST’
The letter asked the Elwells to “cease and desist, all commercial operations and the movement of earth and trees, immediately” and stated that a fine of up to $100 per day could be issued under the Warren Land Use and Development Regulations and state statutes as long as the violation was in place.
The Elwells responded with an appeal to the town’s Residential Land Use Prohibits Commercial Use regulation, stating “Shane C. Elwell Excavating has been conducting business over the last 7.5 years at 251 Doe Road and would like to continue doing so. . . We were issued a permit for a garage 29 feet by 40 feet with dwelling above in 2015. The zoning administrator was aware of the intent to run a home-based excavating and logging business from the building and surrounding property. . . In 2017, an additional permit was secured for an adjoining 18-by-60-foot garage, again, with intent for business use. We were not advised to obtain further permitting for the business and certainly would have done so in the beginning. Tacit consent was assumed as the town was aware of the business since the permitting process and has brought fill material to expand the land’s usable area for the business over the last several years.”
The Elwells alleged at the hearing that former zoning administrator Miron Malboeuf had verbally consented to them building the original garage for business purposes with a dwelling above and to expand to a second garage, with the original garage then used for a residence. They said that Malboeuf told them they did not need to apply for additional permits. Current zoning administrator Ruth Robbins said that the Elwells do have zoning permits but they do not indicate a home-based business or home occupation. According to Kelley Elwell, the land on Buck Road is used for storage of equipment and trucks, as well as an area for logs and firewood. She asserted that the business operations are hidden from view of neighbors.
At Monday’s DRB hearing, Kelley Elwell read from an eight-page letter that she had provided to the board earlier that day. The letter said, “In an effort to keep costs down and limit use of commercial businesses outside of the community, [businesses] must operate without adequate commercial zoning land in the town of Warren. Home-based businesses allow for locals to live and work in the community, as it is cost prohibitive to have both a place of business and a residence to call home.
“In an attempt to avoid Buck and Rabbit Road near Glenn [Acker] and George [Abad]’s Houses, a driveway was built on our own property two weeks ago to avoid passing them. We now know that due to land development regulations, it is not able to be utilized.
“We were led to believe by the zoning administration that up until this point we were following regulations. Under “Nonconforming Use” we ask that this existing business be allowed to continue to run as it has been. We have made every effort to limit interference with daily living of our neighbors. We are asking the board to determine that we are not in violation.”
The Elwells presented 14 letters signed by Warren residents to show support for their home-based business and a petition on change.org received 400 supporters. Several people spoke at the DRB hearing in support of the Elwells, though chair Peter Monte reminded folks multiple times that the character of the individuals or benefits of the business involved was not for the DRB to decide. “The only question before us is ‘was work done on a property for which a permit was required but not obtained?’ Whether the rules are fair, that’s not our job. Our objective is to learn whether there was a violation.”
According to DRB member Jeff Schoellkopf, “Home occupation is allowed as conditional use. A permit is required. Cottage industry is not allowed in this district. At a minimum, they would have to come to us and ask for a permit for home occupation.”
Monte said the Elwells had to prove that Miron Malboeuf had approved the permit, despite no record of such approval. “The only thing I have to go on is the actual documentation presented and approved,” Robbins said. “We are not here to punish anyone; we are here to administer rules put in front of us,” Monte said. He said the DRB could give the Elwells the opportunity to contact Malboeuf and ask him to either appear virtually before the DRB or issue a written affidavit asserting he had, in fact, approved the permit verbally. Malboeuf is known to be experiencing health issues. “If he’s unable, you can get legal counsel,” Monte said. “How does that sound to you?”
“Devastating,” Kelley Elwell replied.
“We’re trying to allow you to build the best case you can build,” Monte said. He explained that, if the DRB made a decision at the hearing that the Elwells did not agree with, they could appeal the decision in Vermont Environmental Court presided by a judge, “Not by a board of neighbors.” The Elwells agreed to try to get proof of the approval of a home occupation permit and to return in front of the DRB at an upcoming hearing.
At its November 8 meeting, the Warren DRB also heard an appeal of a zoning permit for the construction of a 60-by-22-foot accessory structure for the purpose of storage/a small workshop space and personal vehicles at 143 Buck Road in Warren issued to Jared and Amantha Rouleau of A&J Recycling on October 6, 2022. Neighbors Glenn Acker and George Abad submitted letters of appeal to the Warren DRB to reconsider the permit issued to the Rouleaus; Abad was represented at the hearing by attorney Harold Stevens. “My specific areas of contention with the building itself are that it might not meet property line setbacks, it might not meet setbacks from the septic system/tank, it is built on a pile of fill which has been brought in without a permit on what could be a greater than 15% grade,” Abad wrote in his letter. The DRB voted to grant the appeal, only to the extent of the fill being applied to steep slopes without a permit, and provided that Mr. Rouleau apply to the DRB for the filling of steep slopes and provide proper sediment and erosion control plans associated with the placement of that fill.