                                 STATE OF VERMONT
                      SUPERIOR COURT - ENVIRONMENTAL DIVISION

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In Re Bjerke Zoning Permit Denial                   {            Docket No. 72-5-11 Vtec
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                                         Decision on the Merits

       Alan A. Bjerke (Appellant) seeks a zoning permit to make certain modifications to
property he owns in the City of Burlington (the City). Appellant submitted a zoning permit
application (the Application) to the City of Burlington Zoning Administrator (the ZA) on July 7,
2010. On March 4, 2011, the ZA denied the Application. Appellant appealed the ZA’s decision
to the City of Burlington Development Review Board (the DRB), which also denied the
Application on May 3, 2011. Appellant’s timely appeal of the DRB’s May 3 decision is currently
before this Court.
       In support of his appeal to this Court, Appellant submitted a Statement of Questions
containing three questions. In an April 17, 2012 Entry Order and associated March 22, 2012
Decision, we disposed of Appellant’s Question 1 by granting summary judgment on that
Question in favor of the City.1 Thus, the remaining scope of this appeal is limited to Appellant’s
Questions 2 and 3, which relate to whether he should receive a permit for his proposed
modifications pursuant to the Burlington City Development Ordinance (the CDO). Questions 2
and 3 are stated as though this were an on-the-record appeal;2 however, this is a de novo trial. In
this proceeding, we are not concerned with what the DRB did below. Rather, we must consider
anew whether the Application complies with the CDO. We therefore interpret Appellant’s
Question 2 to ask whether CDO § 5.4.8 applies to the Application and Appellant’s Question 3 to
ask whether the Application complies with the CDO as a whole.
       The Court conducted a site visit to the subject property on July 26, 2012, followed by a
merits hearing.      The hearing was held at the Vermont Superior Court, Chittenden Civil




1
 Question 1 asks whether the Application was deemed approved under CDO § 3.2.5 and 24 V.S.A. §
4448(d).
2 Appellant’s Question 2 asks, “Did the City of Burlington inappropriately apply Burlington Zoning

Ordinance 5.4.8 in a mandatory fashion?” (Appellant’s Statement of Questions, filed June 6, 2011.)
Appellant’s Question 3 asks, “Did the City of Burlington inappropriately deny Appellant the permit
applied for July 7, 2010?” Id.

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Division, Burlington, Vermont. Both Appellant, appearing pro se, and the City, represented by
Kimberlee J. Sturtevant, Esq., participated in the site visit and the hearing.
           During the July 26, 2012 hearing, the Court admitted a certified copy of the CDO
pursuant to Vermont Rule of Evidence (V.R.E.) 902, which provides that certified copies of
public documents can be admitted without foundation as self-authenticating.              Appellant
retained a standing objection to the admissibility of the CDO. After the close of evidence, the
City filed a letter with the Court stating that a portion of the CDO had been omitted from the
copy admitted and received in evidence at trial. In response, Appellant renewed his objection
to the admissibility of the CDO and filed a motion to strike. Because Appellant met his burden
under V.R.E. 902 by proving that the admitted copy was not what it was certified to be—a true,
accurate, and complete copy of the CDO—the Court granted his motion and struck the CDO
from the record.
           Appellant specifically cited the CDO in his Statement of Questions, however. In light of
this fact and because Appellant, as the Applicant, bears the burden of proving that his
application complies with the CDO,3 the Court, on its own motion, held a subsequent hearing
on November 8, 2012 on whether to reopen the evidence in this matter. At this hearing, the
Court concluded that it should reopen the evidence and immediately conducted a partial new
trial pursuant to V.R.C.P. 59(a) and (d) on the limited issue of whether the CDO, referenced by
both parties in their filings and trial testimony, may be admitted into evidence.          At this
subsequent hearing, the City produced a second certified copy of the CDO and, at the Court’s
request, checked it to make sure that no pages were missing before offering it into evidence.
Because submission of a certified copy comports with V.R.E. 902, the Court admitted the CDO
into evidence. See V.R.C.P. 44.1 (establishing procedures under which a court may take notice
of municipal ordinances).
           Based upon the evidence presented at trial, including that which was put into context by
the site visit, the Court renders the following Findings of Fact and Conclusions of Law.

                                              Findings of Fact
1.         On July 7, 2010, Appellant submitted an application for a zoning permit to make certain
modifications to a duplex residential structure (the duplex) he owns at 145 Lakeview Terrace,
Burlington, Vermont.

3    During this appeal, Appellant did not challenge the existence of the CDO.

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2.     Appellant resides on the first floor of the duplex and rents the second floor to one or
more tenants.
3.     At the time of the filing of the Application with the City, July 2010, the subject duplex
was 50 years old or older.
4.     The location of the duplex on the subject lot is unchanged since its original construction.
5.     The design of the original house remains intact, although an addition and a deck were
subsequently added to the structure.
6.     The duplex’s original roofline is still discernible, and an observer can still see the
original house massing, height, and scale.
7.     Significant original architectural details of the duplex remain, including but not limited
to, the slate roof and its original pitch, small irregularly spaced windows, and hipped roof
porticos at secondary entrances on the south side of the duplex.
8.     Appellant seeks to extend the roofline of the duplex’s rear addition fifteen and a half feet
towards the east end of the original structure. The Application also proposes to replace and
reconfigure the hipped roof porticos at secondary entrances on the south side of the duplex
with gable roof canopies in an effort to replicate the primary entrance on the east side of the
duplex. Finally, the Application requests approval to replace some of the duplex’s original
small, irregularly spaced windows with larger, more evenly spaced windows.
9.     The proposed modifications to the duplex will eliminate a knee wall and improve the
functionality of living space within the two units.
10.    The roof eaves of the original roof are notably different than the newer and proposed
roof eaves.
11.    The subject property is located within the City’s Medium-Density Residential District
and the City’s Design Review Overlay District.
12.    The overall character of the neighborhood surrounding the duplex is residential,
although there are a few commercial uses nearby.
13.    A new single structure housing 25 condominium units at 237 North Avenue, Burlington
adjoins the subject property to the north.
14.    237 North Avenue was formerly a commercial building and fronts on North Avenue,
which is a Class II highway.
15.    145 Lakeview Terrace is a residential property fronting on a Class III residential street.


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                                      Conclusions of Law
       Appellant appeals the DRB’s denial of his application for a zoning permit to make
certain modifications to property he owns in the City. Appellant’s Statement of Questions in
this appeal raises three Questions, two of which remain for this Court’s review. Appellant’s
Question 2 asks whether CDO § 5.4.8 applies to his application. Appellant’s Question 3 asks
whether his application for a zoning permit complies with the CDO.               We address these
questions in turn, and conclude, as a matter of law, that CDO § 5.4.8 does apply to the
Application and that the Application fails to comply with CDO §§ 5.4.8 and 6.3.2. Accordingly,
we DENY Appellant’s request for a zoning permit.

I.   The Application is Subject to CDO § 5.4.8.
       CDO § 5.4.8 applies to buildings or sites that are eligible for listing on the National or
State Registries of Historic Places. To be eligible for listing, a building must display the three
following conditions. First, the building must be 50 years old or older. CDO § 5.4.8(a)(1).
Second, the building must possess “significance in illustrating or interpreting the heritage of the
City, state or nation in history, architecture, archeology, technology and culture because,”
among other considerations, it maintains “an exceptionally high degree of integrity, original site
orientation and virtually all character defining elements intact.” CDO § 5.4.8(a)(2). Finally, the
building must “possess a high degree of integrity of location, design, setting, materials,
workmanship, feeling, and association.” CDO § 5.4.8(a)(3). Appellant contends that CDO §
5.4.8 does not apply to the duplex and that the Application should not be subject to the City’s
development standards for historic properties. In light of the three conditions in CDO § 5.4.8(a),
however, we conclude that the duplex at 145 Lakeview Terrace is eligible for listing on
Vermont’s Registry of Historic Places and is therefore subject to CDO § 5.4.8.

       1.   The duplex is 50 years old or older – CDO § 5.4.8(a)(1).
       During the July 26 merits hearing, two witnesses testified credibly that Appellant’s
duplex was at least 50 years old at the time of the filing of the Application with the City. First,
Ms. L. Diana Carlisle credibly testified to her personal knowledge of the homes on Lakeview
Terrace. Ms. Carlisle moved to 107 Lakeview Terrace approximately 10 years ago and continues
to reside there.   In 1958, Ms. Carlisle’s mother moved to and subsequently lived at 117
Lakeview Terrace. Ms. Carlisle visited her mother at 117 Lakeview Terrace in 1958, and at that
time, Ms. Carlisle observed the structure at 145 Lakeview Terrace.

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        Second, Mary O’Neil4 testified that she is the City’s project manager for Mr. Bjerke’s
Application and, as such, she was responsible for looking into the duplex’s history and
reviewing the City’s file for Appellant’s property. Once the Application was assigned to Ms.
O’Neil, she completed a preliminary review of the City’s file to determine which sections of the
CDO might apply to the Application. She also talked with the Appellant regarding compliance
with the CDO.       With Appellant’s approval, Ms. O’Neil ultimately ordered review of the
Application by the City Design Advisory Board (DAB).5 As part of this review, and considering
the architecture of the Appellant’s duplex, Ms. O’Neil determined that the structure was
constructed in the early 20th century. Additionally, Ms. O’Neil reviewed the City Lister’s card
for the subject property and noted that the duplex was sold or transferred in 1941. Based upon
this information, Ms. O’Neil offered her credible opinion at the merits hearing that, at the time
Appellant filed the Application with the City in July 2010, the duplex was older than 50 years.
        Based on the testimony of these two witnesses, we conclude that at the time Appellant
filed the Application to modify 145 Lakeview Terrace, the duplex was 50 years old or older.

        2. The duplex possesses significance in illustrating or interpreting the heritage of the
           City because the building maintains an exceptionally high degree of integrity,
           original site orientation, and virtually all character defining elements intact – CDO §
           5.4.8(a)(2)(d).
        The duplex at 145 Lakeview Terrace possesses significance in illustrating or interpreting
the heritage of the City and its architecture for the following reasons. First, the location of the
duplex on the subject lot is unchanged since its original construction. Second, the design of the
original structure remains intact, although an addition and deck were subsequently added.
Even with the addition on the west side of the duplex, the original roofline is still discernible,
and one can still observe the original house massing, height, and scale. Third, significant
original architectural details remain, including but not limited to, the slate roof and its original


4 Mary O’Neil is currently a Senior Planner with the City. From 2001 to 2004, Ms. O’Neil worked with
the City’s Assessor’s Department as a land records and property transfer research associate. Beginning in
2004, Ms. O’Neil became an Associate Planner and Coordinator for the Certified Local Government
Program with the City’s Planning and Zoning Department. As set forth in the City’s Exhibit B which is
Mary O’Neil’s multi-page resume, Ms. O’Neil has considerable education, training, and experience
qualifying her as having expertise with historic properties. See V.R.E. Rule 702 (stating requirements for
expert testimony).
5 The DAB is an independent board established by CDO § 2.5.1. Upon request, the DAB will review
certain applications, including those involving historic buildings or sites, and provide written advice and
recommendations. Ordinance § 2.5.1(b).

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pitch, small irregularly spaced windows, and hipped roof porticos at secondary entrances on
the south elevation.
       We therefore conclude that the duplex possesses significance in illustrating or
interpreting the heritage of the City because the building maintains an exceptionally high
degree of integrity, original site orientation, and many architecturally defining elements intact.

       3. The building possesses a high degree of integrity of location, design, setting,
          material, workmanship, feeling, and association – CDO § 5.4.8(a)(3):
       The duplex possesses a high degree of integrity of location as the original building
footprint on the lot is unchanged, and the lot itself maintains its original location with respect to
Lakeview Terrace and the neighborhood. The integrity of the design of the building remains
intact with the exception of an addition to the west side of the building. The setting of the site
has remained predominantly residential, with smaller sized homes. While there has been some
change to the original building materials used on the duplex, such as replacement vinyl siding,
a significant amount of original materials remain, such as the slate roof and wood shingled
porch canopies. The overall feeling of this residential site and the building itself remain intact.
Lastly, the building and the site retain their original integrity of association, especially
pertaining to the residential use on the small residential street.
       We therefore conclude that the duplex and the site possess a high degree of integrity of
location, design, setting, material, workmanship, feeling, and association.
       Based upon the evidence presented by the City, described above, and the fact that
Appellant failed to provide any evidence contradicting the City’s claims, we conclude that the
duplex at 145 Lakeview Terrace is eligible for listing on Vermont’s Registry of Historic Places.
Therefore, we find that CDO § 5.4.8 applies to the Application to modify the duplex.

II.   The Application Does not Comply with the CDO.
       Appellant’s Question 3 asks whether his application for a zoning permit complies with
the CDO.     Pursuant to the CDO, no development may be commenced within Burlington
without a zoning permit issued by the ZA. See CDO § 3.1.2. Development includes additions
to existing buildings, alterations to building elevations, and window replacement or other
changes that alter trim details or otherwise change the building’s exterior appearance. CDO §
3.1.2(a). As addressed above, the duplex is eligible for listing on the State Register of Historic
Places, and therefore the application to alter the duplex is subject to review under CDO § 5.4.8 –


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Historic Buildings and Sites. Because the duplex is located within the City’s Medium-Density
Residential District and the City’s Design Review Overlay District, in addition to the fact that it
is subject to historical building standards, the application to alter the duplex is also subject to
Design Review. See CDO §§ 3.4.2, 3.4.2(b)(3), 4.5.1(b)(1(B) & 5.4.8.

       1. Section 5.4.8 Historic Buildings and Sites
       As concluded above, the Application must comply with CDO § 5.4.8. Thus, we next
consider whether the application complies with the Standards and Guidelines (Standards)
contained within CDO § 5.4.8(b), which govern the review of permit applications involving
historic buildings. The Standards, created to preserve the distinctive character of a historic
building and its site, are a series of concepts on maintaining, repairing, and replacing historic
features, as well as designing new additions or making alterations. CDO § 5.4.8(b).
       Before applying the Standards to the Application at issue, we note that, according to the
CDO, the Standards are “intended to be applied in a reasonable manner, taking into
consideration economic and technical feasibility.” CDO § 5.4.8(b). Parties in this case disagree
as to the interpretation of this provision. Appellant asserts that the Standards of CDO § 5.4.8(b)
are to be applied with a consideration of the economic and technical feasibility of the utility of
the structure itself.   Stated anther way, Appellant suggests that we should consider the
economic and technical feasibility of his goal of improving the functionality of the internal
living space through the proposed modifications, including improving the standing height in a
shower and providing better internal lighting and ventilation.
       In contrast, the City asserts that consideration of economic and technical feasibility, as
required by CDO § 5.4.8(b), relates solely to the materials involved in the proposed
modifications.   In support of this argument, the City notes that it only reviews internal
structural issues or considerations in permit applications seeking a change in use or a change in
the intensity of use. Thus, because Appellant is not proposing a change in use or a change in
intensity of use, the City’s review of this Application only entails consideration of the external
implications of the proposed modifications.
       We find the City’s interpretation correct. In construing a zoning ordinance, we use the
same rules as in the interpretation of a statute. Blundon v. Town of Stamford, 154 Vt. 227, 229
(1990). We construe words according to their plain and ordinary meaning. See Slocum v. Dep’t
of Soc. Welfare, 154 Vt. 474, 478 (1990) (citing In re Hydro Energies Corp., 147 Vt. 570, 573


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(1987)). We consider the whole of the ordinance and try to give effect to every part. Id. at 481.
Based upon these principals, we find nothing within CDO § 5.4.8 relating to or requiring
consideration of internal use or the functionality of living space. All of the Standards relate to
external features and material considerations. Thus, in reviewing the following Standards, we
do not consider the economic and technical feasibility of the internal functionality of the duplex.
        CDO § 5.4.8(b) sets forth ten Standards numbered one through ten. We address each
Standard applicable to the Application.
               a. Standard 2
        Standard 2 states that “[t]he historic character of a property will be retained and
preserved. The removal of distinctive materials or alteration of features, spaces, and spatial
relationships that characterize a property will be avoided.” CDO § 5.4.8(b)(2).
        The Application’s proposal to extend the roofline of the rear addition fifteen and a half
feet towards the east end of the original duplex structure will extend the newer dormer roofline
and either cover up or eliminate the original structure’s roofline and slope. This will remove
the existing distinction between the original structure and the new addition. It will no longer be
possible to discern the original structure’s historic size and character from the new addition and
Appellant’s proposed further modifications.
        The Application also proposes to replace and reconfigure the hipped roof porticos at
secondary entrances on the south side of the duplex. These hipped roof porch canopies are
historically significant characteristics of the structure. The Application proposes gable roof
canopies in an effort to replicate the primary entrance; however, such replacement would
eliminate rather than retain and preserve this distinctive feature of the south side of the duplex.
        We therefore conclude that the proposed alteration of the roof and replacement of the
hipped roof porticos on the south side of the duplex are in conflict with Standard 2.
               b. Standard 3
        According to Standard 3, “[e]ach property will be recognized as a physical record of its
time, place, and use. Changes that create a false sense of historical development, such as adding
conjectural features or elements from other historic properties, will not be undertaken.” CDO §
5.4.8(b)(3).
        The Application does not propose to add features from other historic properties to the
duplex, but it does seek to expand on the more modern features of the duplex. The proposal to


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extend the roofline of the rear addition fifteen and a half feet towards the east end of the
original duplex structure does not reflect the historic appearance and massing of the original
structure, but is rather an enlargement of a newer building feature that does not have historic
significance.   Additionally, the reconstruction of the porch canopies from hipped to gable
would be an alteration of the historically-significant entrance on the south side of the duplex
that is not consistent with the duplex’s historical record. Thus, we conclude that the proposed
modifications are in conflict with Standard 3.

                c. Standard 5
       Standard 5 requires that “[d]istinctive materials, features, finishes, and construction
techniques or examples of craftsmanship that characterize a property will be preserved.” CDO
§ 5.4.8(b)(5). During the merits hearing, the City raised the possibility that the proposed roof
modification might result in the loss of the original slate roof, a distinctive and character-
defining material feature of the building. Appellant provided no evidence, either at trial or in
his Application, of what the roof replacement materials will be. Without such information, we
are unable to determine whether the proposed project will preserve the historic characteristics
of the duplex, including its original slate roof. Because Appellant, as the Applicant, bears the
burden of proving that his application complies with the CDO, we conclude that the
Application fails to comply with Standard 5.

                d. Standard 6
       Standard 6 states:
               Deteriorated historic features will be repaired rather than replaced.
       Where the severity of deterioration requires replacement of a distinctive feature,
       the new feature will match the old in design, color, texture, and, where possible,
       materials recognizing that new technologies may provide an appropriate
       alternative in order to adapt to ever changing conditions and provide for an
       efficient contemporary use.       Replacement of missing features will be
       substantiated by documentary and physical evidence.
CDO § 5.4.8(b)(6). Based on the evidence offered by the Appellant, the proposed modifications
to the duplex are not designed to remedy building material failure, but rather to facilitate
improved functionality of the internal living space. Although Standard 6 was raised at trial, we
conclude that it is not applicable to the proposal.




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                  e. Standard 9
        Standard 9 requires that:
               New additions, exterior alterations, or related new construction will not
        destroy historic materials, features, and spatial relationships that characterize the
        property. The new work shall be differentiated from the old and will be
        compatible with the historic materials, features, size, scale, and proportion, and
        massing to protect the integrity of the property and its environment.
CDO § 5.4.8(b)(9).
        The proposed modification to the roof is an exterior alteration that destroys the historic
spatial relationship of the duplex. The existing structure appears as primarily an older dwelling
with a steep pitched roof and south facing hipped roof porticos at two secondary entrances.
The existing structure also includes an addition with a more gently sloped roof added to the
west end of the duplex. Some of the original windows are small and irregularly spaced. As
illustrated by Appellant’s Exhibit AA1, page 011, the totality of the proposed modifications
results in a structure that appears to have a more gently sloped roof, larger, more evenly spaced
windows, and more modern entrance canopies with a small addition added to the east end of
the structure. Thus, the overall effect of the modifications is to lose the historic features and
characteristics of the duplex.       Much of the original structure would be consumed by the
addition, and the distinction between old and new would be lost. The scale and proportion of
the already existing west side addition, in combination with the proposed modifications, would
dominate the old historic structure.
        The integrity of the duplex’s historic features and spatial relationships would be
destroyed by the proposed modifications, and therefore, we conclude that the Application is in
conflict with Standard 9.
                  f.   Standard 10
        Standard 10 provides that “[n]ew additions and adjacent or related new construction
will be undertaken in such a manner that, if removed in the future, the essential form and
integrity of the historic property and its environment would be unimpaired.”                    CDO
§ 5.4.8(b)(10).
        During the merits hearing, Appellant asserted that the new roof would simply cover the
existing roof; meaning the original roof would remain intact. This assertion seems illogical, as
we understand that the new section of roof is proposed to increase the interior ceiling height
and improve the functionality of the duplex’s interior. Further, if it is true that improvements to

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the functionality of the duplex’s interior can be accomplished without removing the roof, there
would appear to be no need to modify the original roof, which is the most significant
modification proposed in the Application.
        Even if the original roof is retained in place underneath the new roof, however, we find
it unlikely that the roof would be returned to its original character and design following
substantial investments in time, resources, and money for construction of the new section of
roof. We also find it unlikely that the proposed replacement of small windows with larger,
better functioning windows would ever be reversed.            Having raised these concerns, we
understand Standard 10 to ask whether, if the proposed modifications are carried out, it would
be possible to return the duplex to its original essential form and integrity. Although we
believe it would be highly unlikely for the duplex to be returned to its original form and
integrity, we conclude that it would be possible. As such, the Application complies with this
standard.
        Having concluded that the Application is in conflict with Standards 2, 3, 5 and 9, we
conclude that the Application does not comply with CDO § 5.4.8.

        2. Section 6.3.2 Review Standards
        Pursuant to CDO § 3.4.2(b), Design Review is required for all development within the
Design Review Overlay District (DROD), which includes 145 Lakeview Terrace. Accordingly,
Appellant’s project must comply with the principles and standards contained in Article 6 of the
CDO. See CDO § 3.4.4, and specifically CDO § 6.3, Architectural Design Standards. Several of
the design standards contained in CDO § 6.3.2 apply to the Appellant’s proposed project; we
omit discussion of those standards not relevant to the Application. Based on the discussion
below, we conclude that the Application fails to comply with two of the architectural design
standards of CDO § 6.3.2: Protection of Important Architectural Resources (CDO § 6.3.2(b)), and
Quality of Materials (CDO§ 6.3.2(e)).
               a. Section 6.3.2.(a) Generally
        At the outset, Section 6.3.2(a), entitled “[r]elate development to its environment,” directs
that:
                Proposed buildings and additions shall be appropriately scaled and
        proportioned for their function and with respect to their context. They shall
        integrate harmoniously into the topography, and to the use, scale, and
        architectural details of existing buildings in the vicinity.


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Appellant asserts that in considering his Application for compliance with the CDO, this Court
must take into account the property immediately adjoining 145 Lakeview Terrace. Appellant
offered, and the Court admitted, Exhibit AA 2, which includes a site plan and several elevations
for a new single structure with 25 condominium units on this adjoining property at 237 North
Avenue, Burlington. Appellant argues that the mass and scale of his modification should be
considered in light of this new adjoining development. Although Appellant did not specifically
direct us to a section or subsection within the CDO to support his argument, we consider
Appellant’s assertion with respect to CDO § 6.3.2(a) and the terms “context” and “existing
buildings in the vicinity.”
       In response to Appellant’s assertion that we must consider the condominium building at
237 North Avenue, the City argues that 237 North Avenue was formerly a commercial building
and that the subject lot fronts on North Avenue, a Class II highway. Thus, the City contends
that the condominium building differs from the context of 145 Lakeview Terrace, a residential
property fronting on a Class III residential street with a more intimate scale and setting.
Lastly, the City notes that Lakeview Terrace was originally developed as a predominantly
residential neighborhood with a few commercial uses and that the street overall remains
predominantly residential.
       In reviewing the CDO and specifically CDO § 6.3.2, we conclude that although 145
Lakeview Terrace and 237 North Avenue share a small section of common boundary, these two
properties were developed at different times, for different purposes, and with different
intensities of use. Thus, as we “relate” Appellant’s proposed modifications to the duplex at 145
Lakeview Terrace, we look more to the context and setting of Lakeview Terrace and its homes
than to the context and setting of 237 North Avenue.

               b. Section 6.3.2(a)(1) – Massing, Height and Scale
       Design Review standard 6.3.2(a)(1) directs that in medium density residential districts,
the height and massing of existing residential buildings is the most important consideration
when evaluating the compatibility of additions and infill development.       CDO § 6.3.2(a)(1).
Furthermore, buildings should maintain consistent massing and perceived building height at
the street level, regardless of the overall bulk or height of the building. Id. Buildings should
maintain a relationship to the human scale through the use of architectural elements, variations
of proportions and materials, and surface articulations. Id.


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       The Application’s proposed modifications to the duplex will not appreciably increase
the height or scale of the duplex, or bring the duplex out of conformity with the surrounding
structures along Lakeview Terrace. Accordingly, we conclude that the changes proposed by the
Application comply with CDO § 6.3.2(a)(1).

               c. Section 6.3.2(a)(2) – Roofs and Rooflines
       Design Review standard 6.3.2(a)(2), Roofs and Rooflines, directs that large expanses of
undifferentiated roof forms shall be avoided by incorporating some variation in the roof form to
lessen the impact of the massing against the sky. CDO § 6.3.2(a)(2). This standard further
directs that roof eaves should be articulated as an architectural detail. Id.
       The Application’s proposal to extend the roofline of the rear addition fifteen and a half
feet towards the east end of the original duplex structure has the effect of extending the newer
roofline. The duplex’s roof will remain differentiated, however, as the new and old roofs will
continue to have different slopes. See Exhibit AA 1, page 011. Additionally, the entire roof will
continue to have eaves overhanging the structure’s walls. While the Application, if granted,
will result in a change in the current character of the duplex, we conclude that the proposed
changes to the building comply with CDO § 6.3.2(a)(2).

               d. Section 6.3.2(a)(3) – Building Openings
       Design Review standard 6.3.2(a)(3), Building Openings, directs that window openings
shall maintain consistent patterns and proportions appropriate to the use. Importantly, the
window pattern should add variety and interest to the architecture. CDO § 6.3.2(a)(3).
       Under the Application, Appellant will alter the duplex’s window openings to better suit
interior use. The duplex’s original windows are small and irregularly spaced. As illustrated by
Appellant’s Exhibit AA1, page 011, the proposed modifications would result in larger, more
evenly spaced windows. Although such a change would affect the historic characteristics of the
original duplex structure, the new windows would be appropriate to the duplex’s use and
maintain consistent patterns and proportions to the duplex.           Thus, we conclude that the
Application complies with CDO § 6.3.2(a)(3).

               e. Section 6.3.2(b) – Protection of Important Architectural Resources
       Design Review standard 6.3.2(b), Protection of Important Architectural Resources,
directs that Burlington’s architectural and cultural heritage shall be protected through sensitive
and respectful redevelopment, rehabilitations, and infill. Where the proposed development

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involves buildings listed or eligible for listing on a state or national register of historic places,
the Appellant shall meet the applicable development and design standards pursuant to section
5.4.8. CDO § 6.3.2(b). As discussed above, the Application fails to comply with CDO § 5.4.8.
Thus, we find that the Application fails to comply with CDO § 6.3.2(b).

               f.    Section 6.3.2(e) – Quality of Materials
       Design Review standard 6.3.2(e), Quality of Materials, mandates “the use of highly
durable building materials that extend the life cycle of the building, and reduce maintenance,
waste, and environmental impacts” in all development. Furthermore, this standard encourages
owners of historic structures to consult with an architectural historian before choosing building
materials. In this case, the Application provides no information on the materials Appellant
plans to use in the proposed modification of the duplex, other than identifying the new
windows to be used. Without such information, we cannot find that the Application complies
with this design standard. Again, because Appellant, as the Applicant, bears the burden of
proving that his application complies with the CDO, we conclude that the Application fails to
comply with CDO § 6.3.2(e).

                                               Conclusion
       For the reasons detailed above, we conclude that:
       1. CDO Section 5.4.8 applies to the Application.
       2. The Application fails to comply with the applicable portions of the CDO, including
           the Architectural Design Standards of Article 6; specifically § 6.3.2(b) and § 6.3.2(e),
           and fails to comply with the regulations pertaining to historic buildings and sites in
           CDO § 5.4.8; specifically Standards 2, 3, 5 and 9.

       A Judgment Order accompanies this Decision. This completes the current proceedings
before this Court.
       Done at Berlin, Vermont this 14th day of February, 2013.




                                                                Thomas G. Walsh,
                                                                Environmental Judge




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