                                      State of Vermont
                           Superior Court—Environmental Division

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                   ENTRY REGARDING MOTION
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In re Whiteyville Properties, LLC                                   Docket No. 179-12-11 Vtec
(Appeal of City of Burlington DRB decision)

Title: Motion for Summary Judgment (Filing No. 2)
Filed: May 15, 2012
Filed By: Whiteyville Properties, LLC
Opposition to Motion filed on 6/18/12 by City of Burlington
Response to Opposition filed on 7/2/12 by Whiteyville Properties, LLC
Reply to Response to Opposition filed on 7/24/12 by City of Burlington
Response to Reply to Response to Opposition filed on 8/3/12 by Whiteyville Properties, LLC


    Granted                      X Denied                        Other

        Currently before the Court is Whiteyville Properties, LLC’s (“Applicant”) motion for
summary judgment on its own Statement of Questions related to its property at 26 Summit
Street in the City of Burlington (“the City”). This property is located in a Low Density
Residential Zoning District (“RL District”) and it contains two duplexes, for a total of four
dwelling units. At issue is one of these four units, for which the City of Burlington
Development Review Board (“DRB”) denied conditional use approval to exceed the residential
occupancy limit of four unrelated adults per dwelling unit. The DRB additionally denied
Applicant’s request to expand onsite parking. Applicant desires to have and rent out six, rather
than four, bedrooms in one of the dwelling units.
         In asking whether the DRB erred by requiring a management plan and by ultimately
denying its request, Applicant mistakenly frames the legal issues in its Statement of Questions
as if this Court were reviewing the DRB’s decision on-the-record. Burlington is not an “on-the-
record” municipality, thus our review here is de novo.1 In a de novo review, the Court does not
consider the propriety of any previous decision; rather, we review the application anew as to
the specific issues raised in the statement of questions. See Chioffi v. Winooski Zoning Board,
151 Vt. 9, 11 (1989) (quoting In re Poole, 136 Vt. 242, 245 (1978)) (“A de novo trial ‘is one where
the case is heard as though no action whatever has been held prior thereto’”).




1  See 24 V.S.A. § 4471(b) (detailing the steps a municipality must take to afford its land use
determinations on-the-record appellate review) and 10 V.S.A. § 8504(h) (requiring the Environmental
Division to conduct a de novo hearing of the issues appealed except in the context of on-the-record
appeals); V.R.E.C.P. 5(g).
In re Whiteyville Properties, LLC, No.179-12-11 Vtec (E.O. on Mot. for Summ. J.) (12-13-12)   Pg. 2 of 4.


       A court conducting a de novo review may hear issues on summary judgment; de novo
review is not, as Applicant appears to conceptualize it, an alternative to summary judgment.
(Applicant’s Resp. to City’s Opp. to Summ. J. at 3, filed Jul. 2, 2012). 2
         We will grant summary judgment to the moving party (here, Applicant) if the party
shows that “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” V.R.C.P. 56(a); V.R.E.C.P. 5(a)(2). We must give the non-moving
party (here, the City) the benefit of all reasonable doubts and inferences and “accept as true the
[factual] allegations made in opposition to the motion for summary judgment.” Robertson v.
Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356; see V.R.C.P. 56(c). In claiming that a material
fact is undisputed or disputed, parties must support their assertions with citations to admissible
evidence. V.R.C.P. 56(c)(1). See Reporter’s Notes—2012 Amendment, V.R.C.P. 56 (“Rules
56(c)(1)(B) and (c)(2) clarify that all asserted facts must be based on admissible evidence”).
        We understand Applicant seeks to present the legal question of whether its request “to
make one [duplex] unit . . . a 6-bedroom unit and [to expand] the parking lot” complies with the
City’s required conditional use standards.3 Applicant’s Statement of Questions at 1, filed Dec.
19, 2011. The purpose of conditional review is “to provide for a more detailed consideration of
development proposals which may present a greater impact on the community” and to ensure
that “projects of major significance or impact receive a comprehensive review under established
criteria” and that “the city’s natural, physical and fiscal resources and city services and
infrastructure are adequate to accommodate the impact of such developments, both
individually and cumulatively.” CDO § 3.5.1. Conditional use approval may be granted only
upon a determination that the proposed use will not result in an undue adverse effect on
several factors, including the character of the area affected (here, a specific neighborhood within
a zone “intended primarily for low-density residential development in the form of single
detached dwellings and duplexes,” CDO § 4.4.5(a)(1)) and other standards set forth in existing
City bylaws and city and state ordinances, such as nuisance standards.
       Applicant has failed to present sufficient undisputed material facts for this Court to
conclude as a matter of law that Applicant is entitled to summary judgment. In order to gauge
a project’s impact upon the community in which it is proposed, we must begin with evidence
describing that community. Applicant’s original filings included insufficient evidence of the
character of the affected area and whether the proposed six-bedroom unit would have an undue
adverse effect on that character or violate nuisance standards or other regulations. Applicants’
subsequent affidavits purporting to describe the surrounding neighborhood (Aff’s of Michael
Johnson and Eric Hanley, filed July 2, 2012), contain assertions that the City, in turn, disputes
with evidence of its own (Aff. of Scott Gustin, filed Jul. 24, 2012; Attachment C, filed Jul. 24,
2012). Given these disputed material facts, we may not render summary judgment in

2  We encourage Applicant to include page numbers in its future filings. Also, a party need not, when
making a supplemental filing, repeat the factual representations and other statements made in its initial
filing.
3 Subject to conditional use approval, more than four unrelated adults may occupy a dwelling unit in the
RL district if the unit meets minimum dimensional and parking standards. CDO § 4.4.5(d)[emphasis
added]. The DRB found that Applicant’s six-bedroom proposal, with its proposed additional parking,
does meet these basic dimensional and parking requirements. Although Applicant spends considerable
time emphasizing its compliance with these criteria, such compliance does not automatically entitle
Applicant to approval. The project must additionally pass conditional use review.
In re Whiteyville Properties, LLC, No.179-12-11 Vtec (E.O. on Mot. for Summ. J.) (12-13-12)   Pg. 3 of 4.


Applicant’s favor on the question of whether the project complies with the conditional use
standards.
        Additionally, in considering a project under conditional use criteria, the review by the
DRB—and this Court acting in its place4—is not limited to dimensional standards and
submission requirements. Rather, applications subject to conditional use review “shall provide
any additional information necessary for the adequate review of the proposal under [applicable
criteria].” CDO § 3.5.4. Moreover, the reviewing body “may attach such additional reasonable
conditions and safeguards, as it may deem necessary to implement the purposes of this chapter
and the zoning regulations.” CDO § 3.5.6(a)(15). We “may require suitable mitigation
measures” where necessary “to maintain the property in a character in keeping with the
surrounding area.” CDO § 3.5.6(a)(10). These provisions guide and give us the authority to
require, among other things, a management plan for the property. Once we receive the
evidence presented at trial both for and in opposition (if any) to the application, we will
determine whether to require Applicant to provide and follow a management plan that
provides a specific explanation of how Applicants intend to ensure that the improved property
meets the conditional use criteria within the RL district and specific neighborhood at issue.
Given the concerns that have been thus far presented, we recommend that Applicant be
prepared to submit a management plan at trial and to explain how that plan will assure that the
impact from its expansion will not be adverse to the surrounding area. Satisfying such a
standard is required for conditional use review approval in this case.
        Finally, we briefly address Applicant’s plan to expand parking. From the plan
submitted, it appears that the current lot contains six spaces with ground coverage of 2,663
square feet and that Applicant proposes to devote an additional 2,844 square feet to parking, so
that a total of 13 spaces may be accommodated. (Exhibit 4, filed May 15, 2012 with Applicant’s
Mot. for Summ. J.). Applicant and the City disagree as to whether the proposal to expand
parking should be considered independently or in conjunction with Applicant’s proposal to
increase the bedrooms in one of the dwelling units. Based upon the facts Applicant has
presented in support of its summary judgment, we cannot conclude that Applicant’s proposed
parking expansion complies with the CDO as a matter of law. We conclude that this legal issue
can only be resolved through a trial.
         The CDO mandates that parking spaces in the Neighborhood Parking District may not
exceed 125% of the minimum required spaces for all enumerated uses in Table 8.1.8-1.
CDO § 8.1.9. That table requires two spaces per dwelling unit for duplexes. This property
contains two duplexes: four dwelling units. Thus, the CDO mandates a minimum of eight and
maximum of ten (that is, 125% of eight) parking spaces for the property in its current
configuration. Applicant’s proposal of 13 spaces for the property with its current configuration
and uses would therefore not conform to the CDO. Applicant argues that because the CDO’s
discussion of maximum parking spaces includes the statement, “In no case shall the maximum
number of required spaces be less than one (1) per unit of measurement (beds, units, 1000 gross
sq ft, etc.) for the use,” the property should be allowed to have fourteen parking spaces “since
there are currently fourteen bedrooms.” (Applicant’s Resp, to City’s Opp. to Summ. J. at 3, filed
July 2, 2012). The unit of measurement for duplexes is clearly “per unit unless otherwise


4 A court conducting a de novo review of a DRB decision stands in the place of the DRB; it possess the
same authority as the DRB. In re Torres, 154 Vt. 233, 235 (1990).
In re Whiteyville Properties, LLC, No.179-12-11 Vtec (E.O. on Mot. for Summ. J.) (12-13-12)              Pg. 4 of 4.


noted.” Table 8.1.8-1. Applicant’s contention that the property as currently configured could
have fourteen parking spaces is based upon an incorrect interpretation. The “unit” upon which
the CDO calculates parking spaces is dwelling units, not beds. As explained above, and unless
the material issues are resolved differently at trial, it appears to the Court at this stage that the
CDO will not authorize the property in its current configuration to host more than ten parking
spaces.
       As to the legality of Applicant’s proposal for parking expansion in conjunction with
Applicant’s proposal to increase the bedrooms, we will consider that issue along with the
conditional use review at trial.
       For the reasons stated above, we DENY Applicant Whiteyville Properties, LLC’s motion
for summary judgment.




_________________________________________                                        December 13, 2012
       Thomas S. Durkin, Judge                                                       Date
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Date copies sent: ____________                                               Clerk's Initials: _______
Copies sent to:
  Attorney Michael D. Johnson for Appellant Whiteyville Properties, LLC
  Attorney Kimberlee J. Sturtevant for City of Burlington
  Interested Person John Douglas
  Interested Person Eleanor Lanahan
  Interested Person Amanda Phillips
  Interested Person Briggs Phillips
