Boundary issue raises questions

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MANCHESTER — Uncertainty regarding the definitive location of the Manchester-Dorset boundary line has complicated a zoning enforcement case, prompted a school district to pause an effort to sell a vacant parcel and led municipal leaders to consider hiring an outside firm to survey the approximately 6-mile-long border — though not without wondering how the findings of that potential effort might affect their towns' grand lists.

Manchester's Development Review Board next week will consider an appeal of a determination by the town's top zoning official that "unpermitted contractor's yard activities" allegedly have been occurring on land off Squires Road, near — and at least partially in — the adjacent town of Dorset.

A notice of violations sent in late September by Manchester Planning and Zoning Director Janet Hurley to the property owners, Brent Herrmann and Thomas Ouellette, includes a satellite image obtained from a state agency's online atlas featuring a Manchester-Dorset boundary line that, Hurley acknowledges in the notice, "is not precisely depicted" but nonetheless "is a more accurate depiction than the stone wall along the Herrmann driveway" closer to the end of Squires Road that has been "previously misunderstood to represent the town line."

The image's purportedly inexact boundary line "does not change the fact that the unpermitted contractor's yard activities are occurring on lands within the Town of Manchester, although some of the activities extend into Dorset," Hurley wrote. "Use of Squires Road by various heavy construction vehicles is also occurring in both towns, as is soil and stone sorting activity on the Ouellette property."

In the image, red circles around the two sites at issue appear to be mostly, if not wholly, within Manchester. Driveways connecting the sites to Squires Road appear to be in Dorset, as does part of the road itself.

Manchester's zoning ordinance defines a contractor's yard as an "establishment that provides storage for vehicles, machinery, equipment and materials used by a contractor in the construction-related trades, which may include a shop for maintaining or repairing the contractor's vehicles, machinery or equipment or the contractor's business office." The Herrmann and Ouellette parcels — or at least the portions of them located in Manchester — fall within the town's Rural Residential Zoning District, where such a use is not allowed.

"To the extent that these uses are occurring in the Town of Manchester, I determine that they constitute zoning violations," Hurley wrote in the notice, dated Sept. 27. Hurley shared the notice and other documents related to the case with the Journal on Monday upon

request.

Reached this week, Herrmann and Ouellette denied wrongdoing and suggested that the uses have been grandfathered in because they commenced more than 15 years ago, placing the activity outside the reach of a state law that governs municipal land-use enforcement proceedings.

Herrmann, who appealed the determination on behalf of himself and Ouellette, said he hoped to prevail in the case.

The matter is slated to be considered by the Development Review Board at 7:30 p.m. Nov. 6 at Manchester Town Hall.

TOWN LINE LOCATION

Hurley's notice of violation was preceded by a letter complaining about Herrmann "operating and garaging a sizable commercial excavation/contracting business," dated Sept. 23 and addressed to her and Tyler Yandow, the town of Dorset's zoning administrator, that was signed by Michael Powers and James Liles, nearby property owners.

Yandow replied about a month later. "In order to determine if a zoning violation exists, I need to determine if the alleged activity is taking place within the Town of Dorset," he wrote in a letter dated Oct. 24. Based on Dorset's tax map, Manchester's online map and the Vermont Agency of Natural Resources' online atlas, he continued, "I am unable to determine the location of the town line, and therefore if the alleged violation is in the Town of Dorset."

In an email on Tuesday, Yandow declined to comment further, citing the upcoming hearing in Manchester.

Though an attorney, Powers and Liles also declined to comment for this story.

The town of Dorset meanwhile is "supportive" of a proposal it solicited from Daniels Survey, P.C., of Manchester Center, to survey the two towns' boundary line, Town Manager Rob Gaiotti said in an email. The towns would share the cost of that effort, projected to total about $30,000.

Neither town has "direct knowledge of the location and status of their mutual town line boundary," the project outline, prepared in September, states. "Boundary surveys by others have depicted the approximate town line boundary location in different locations based on best available information at the time of their surveys." Compilers of tax maps and "other authorities" have also depicted approximations.

Those efforts "have been sufficient for past purposes," the proposal says, but there "now exists a need to be able to say with certainty just where the the town line boundary exists on the ground."

The towns' select boards separately discussed the proposal during respective meetings on Oct. 15. Members of both boards wondered about the ultimate impact the survey might have on their respective grand lists. That seems to be unclear, though Gaiotti told the Dorset board that digital maps indicate there are several parcels in the vicinity of Squires Road that appear to be in Dorset, despite appearing on Manchester's grand list.

Dorset board members encouraged Gaiotti to pursue an intergovernmental agreement with Manchester related to the survey proposal. But Manchester's board appeared to be less convinced of the proposal's urgency and took no action that night.

"It seems that Dorset is really interested in getting this done," Manchester Select Board Chair Ivan Beattie said at the meeting, according to video. "And I wonder why it's such a big deal to them."

One issue that has cropped up in Manchester recently — mentioned by Town Manager John O'Keefe at the meeting and later elaborated on by Hurley in an email to the Journal — is that a couple who own acreage near Squires Road have sought to obtain a permit to build a house on lands that Hurley says are not in Manchester, "and the town attorney has counseled that I should not issue a permit for lands that I know to be in Dorset," she wrote.

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Another property owner affected by the town line ambiguity is the Taconic & Green Regional School District, which acquired a two-acre parcel in the area from the Dorset School District after absorbing that entity last year. Jacquelyne Wilson, superintendent of the Bennington-Rutland Supervisory Union, of which Taconic & Green is part, said this week that the district had sought to sell the vacant land but now, for clarity, is waiting for the boundary line survey to be conducted.

"We're just in limbo on it," she said.

Hurley said she thinks the district property "is fully within Dorset" based on recent surveys submitted to her as part of applications by other parties for lot line adjustment permits.

O'Keefe said on Oct. 21 that "Manchester does not have a position at this point" on partnering with Dorset on the full boundary line survey. Asked about the proposal again on Tuesday, O'Keefe replied that "intergovernmental agreements aren't as simple as one might think" and shared a five-page agreement from 2013 between the two towns related to public safety and emergency services that addresses cost sharing, liability and other matters.

"At this point I don't have anything along these sorts of lines" pertaining to the more recent proposal, O'Keefe wrote.

Gaiotti wrote in an email Tuesday that "we await Manchester to decide on how/when they would like to move forward." 

NOT PERMITTED

It's unclear to what extent the fuzzy boundary line might affect the outcome of Herrmann's appeal in Manchester, but Powers and Liles, the two people who signed a letter complaining of Herrmann's activities in September, have made plain their requested outcome.

"There may be debate about the exact location of the Town Line in this area but there should be no debate that the ongoing commercial operation of this excavation/contracting business is NOT PERMITTED," they wrote in the letter. "We are requesting that the necessary steps be taken to enforce the existing zoning by law [sic] and to shut down this illegal operation."

Powers complained about Herrmann's activities to the town of Manchester as far back as 2013, the letter states.

In an October 2015 letter, Hurley, the town's planning and zoning director, invited Herrmann to participate in a mediation session "as an alternative to my initiating violation proceedings against you" and other parties related to "unpermitted activities" on Squires Road properties. "My goal is to have us all avoid potential costly litigation and further aggravation for everyone involved," she wrote.

Later that month, the town and Herrmann reached an agreement that states the town and Herrmann "will pursue an agreement by which Mr. Herrmann will purchase approximately 5 acres of town owned property adjacent to the Airport Industrial Park." The parties agreed "to move diligently to determine the feasibility of this agreement" before the end of the year.

If the land-sale deal was reached, Herrmann was to move his business from Squires Road "to the Airport Road location" in phases. Herrmann would be allowed to continue some activities — "sorting and storage of materials" and "storage of trucks and other business related materials and equipment" — at Squires Road sites until "the end of the summer of 2016" and to continue "excavation vehicle maintenance" until October 2018, when all business operations would cease.

The town never sold Herrmann its land, though it eventually — in May of this year — issued a request for proposals for entities interested in purchasing an up-to-five-acre portion of town land off of Richville Road.

Herrmann submitted the only proposal — a one-page offer to purchase a 5-acre parcel for $30,000; construct a 6,500-square-foot office space and a 9,600-square-foot, six-bay garage for construction equipment; use a portion of the site as an "aggregate staging area for materials used in conjunction with projects in the Manchester and surrounding areas"; and build "a standard concrete stockpile bunker onsite to be used for smaller stockpiles of aggregate."

"We feel this site is perfectly suited for our existing commercial operation associated with Herrmann Construction and H & H Homes," Herrmann wrote in the proposal.

The Manchester Select Board, however, determined that it "did not receive any qualified responses" and took no action on the RFP, according to meeting minutes from September.

Town Manager John O'Keefe wrote in an email that Herrmann's proposal contained "several deficiencies" and did not include a required deposit. The board "was hoping for (a lot) more detail on the use and economic and community benefit of the sale of land, as well as how impacts to the town aquifer and complies with the town zoning bylaws," he wrote.

O'Keefe said that, "from my perspective," the RFP process and the adjudication of zoning complaints related to Herrmann's property represent separate governmental processes.

The Select Board's decision to issue the RFP, according to O'Keefe, was partly due to the board receiving interest from more than one party and partly because of the mediation process years ago.

"An RFP does not guarantee some outcome, though," he wrote.

At the same time, the town's zoning administrator and Development Review Board "are handling a complaint about alleged activities on ... certain parcels," a process in which O'Keefe and the Select Board are not involved, he said.

"There is some overlap, but the decision making processes are not combined by design," O'Keefe wrote.

Contact Luke Nathan at lnathan@benningtonbanner.com.


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