                                         STATE OF VERMONT
                                       ENVIRONMENTAL COURT

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In re: Appeal of Union Bank                              }              Docket No. 299-12-06 Vtec
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                  Decision on Appellee’s Partial Motion for Summary Judgment

          This appeal arises out of a denial by the Town of St. Johnsbury Development Review
Board (“DRB”) of an application to construct a handicap access ramp on the exterior of the
Union Bank building in the historic downtown district. Appellant Union Bank (“Bank”) is
represented by Robert A. Gensburg, Esq.; and the Town of St. Johnsbury (“Town”) is
represented by Edward R. Zuccaro, Esq. and Kristina I. Michelsen, Esq.
          Now pending before the Court is the Town’s motion for partial summary judgment,
which the Bank opposes. The Town’s motion is now ripe for this Court’s consideration.

                                                 Factual Background1
1.        Union Bank, a Vermont banking institution, owns what is known locally as the former
Citizens Bank building (“Building”) at the corner of 364 Railroad Street and Eastern Avenue in
the Town of St. Johnsbury.
2.        The Building is located in both the Commercial Zoning and Design Control Districts. It
is also listed as a “contributing building” in the National Register Historic District.
3.        The Building was designed by the 19th Century architect Lambert Packard and was
constructed in 1893. The Building is four stories high on Railroad Street and slopes down to five
stories on Eastern Avenue. The entire first floor, fronting on Railroad Street, consists of the
Bank’s principal St. Johnsbury office, including a customer lobby, teller facilities, loan offices,
safe deposit boxes, a vault, administrative offices, an ATM and a board room. The second and
third floors are used as professional and business offices by tenants2 and the fourth floor is
vacant.
4.        The primary entrance to the Bank is located on Railroad Street; the entrance consists of
three granite risers with double doors that open and close in the middle and swing out onto the


1
   All facts are undisputed unless otherwise noted. For purposes of this motion only, we view the material facts in a
light most favorable to the Bank, since it is the non-moving party. V.R.C.P. 56(c).
2
  The second and third floor tenants are not a party in this action.


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top riser. The first riser, on street level, is three and one-half inches high, the second riser is
seven inches and the third riser is seven and one-half inches high. Access to the Bank’s ATM is
through a similar but separate entrance on Railroad Street. There are two flights of stairs inside
the ATM entrance that lead to the professional and business offices on the second and third
floors. Thus, there is no wheelchair access to the Building off Railroad Street, and inside the
Building, there is no wheelchair access to the second, third or fourth floors.
5.         The basement floor of the Building, which fronts on Eastern Avenue, is accessible by
wheelchair, but there is no interior wheelchair access from the basement to the rest of the
Building. There is one handicapped parking space near this Eastern Avenue entrance.
6.         Intending to increase the handicapped accessibility to the Building, the Bank applied to
the St. Johnsbury DRB for site plan approval to construct a ramp on Railroad Street to the
primary entrance of the Bank on the first floor. The Bank also plans to install an elevator inside
the Bank lobby on the first floor so that the second, third and fourth floors will be accessible to
handicapped persons.3
7.         The proposed ramp on Railroad Street is to be twenty-eight feet long and four feet, five
inches wide. The Bank owns the portion of the sidewalk on which the ramp will be constructed.
In 1984, the Bank conveyed an easement over the sidewalk to the Town for pedestrian and utility
purposes, subject to the right of the Bank to construct its own improvements along the sidewalk,
once it received approval from the Town. The Town Selectboard approved the construction of
the proposed ramp within the easement-encumbered sidewalk, subject to approval by the Town’s
Highway and Water Departments. The Water Department has given that approval; the Highway
Department has not responded to the Bank’s request.
8.         The State Division of Historic Preservation reviewed the ramp proposal and approved it,
subject to conditions that the Bank has pledged to incorporate into its final design.
9.         The Town DRB denied the Bank’s application for site plan approval on November 19,
2006, and refused to grant a motion for reconsideration. The Bank thereafter appealed to this
Court.




3
    The plan to install an elevator is not a component of the pending application.


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                                                    Discussion
           In their most recent filings, both the Town and the Bank appear to have conflated the
issue of the Court’s jurisdiction with the requirements of the Americans with Disabilities Act
(“ADA”).4 We view the pre-trial issue now before us as whether the Environmental Court has
jurisdiction to consider the requirements of the ADA5 in the course of determining whether a
permit application is in compliance with a local zoning ordinance. The Town has also raised the
secondary issue of whether the Bank has standing to raise the requirements of the ADA in a
municipal zoning application proceeding. These issues implicate Question #1 from Appellant’s
Statement of Questions, but are not directed to the merits of the Bank’s application for a zoning
permit.
           Summary judgment is appropriate “when there are no genuine issues of material fact and,
viewing the evidence in a light most favorable to the non-moving party, the moving party is
entitled to judgment as a matter of law.” In re Carter, 2004 VT 21, ¶ 6 (citation omitted);
V.R.C.P. 56(c). We review the Town’s pending motion in this light.
Environmental Court’s Jurisdiction under the ADA
           When reviewing a municipal site plan application de novo, this Court’s jurisdiction is as
broad as the jurisdiction of the appropriate municipal panel. In re John A. Russell Corp., 2003
VT 93, ¶ 29, citing In re Torres, 154 Vt. 233, 235-6 (1990). Therefore, we may take whatever
action on the appealed application as the municipal panel could have taken on the application
before it. Torres, 154 Vt. at 235. Thus, to the extent that a municipal panel below can consider



4
   Appellant’s Amended Statement of Question #1 asks “Did the St. Johnsbury Development Review Board fail to
make a reasonable accommodation in its zoning rules as required by the ADA to allow the Bank to make its building
accessible to handicapped people?” This question, in its current form, is not within this Court’s jurisdiction. In a de
novo appeal, such as we are required to conduct in this case, whether the municipal panel below erred is immaterial
to our review. Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 11 (1989), citing In re Poole, 136 Vt. 242, 245 (1978).
We apply the substantive laws applicable to the tribunal below, de novo, and then make an independent evaluation
on the issues preserved in the appeal, without regard to the appealed-from decision.
     Statement of questions drafters often make this error. We will consider the Bank’s Question #1 here as
requesting, to the extent necessary, due to non-conformance of its proposed ramp to the applicable zoning ordinance
provisions, that this Court make “reasonable accommodations” in its application of the By-Laws, so that the Bank
may accomplish its goal of coming more into compliance with the ADA.
     Similarly, the Town’s partial motion for summary judgment frames the issue as “whether the Environmental
Court has jurisdiction to rule on whether the ADA requires the Town to grant Union Bank’s application for a permit
to build a wheelchair ramp at the front of its historic building . . ..” MSJ page 1. This issue, as framed by the Town,
does not properly address the matter before the Court, as discussed more fully below.
5
    42 U.S.C. § 12101 et seq.


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the implications of the ADA upon the applicable zoning regulations, we can similarly consider
the ADA implications when the zoning application is appealed to this Court.
        The Bank has applied for site plan approval to construct an access ramp for use by
handicapped individuals, so as to improve the Bank’s conformance with the ADA.6 Although
the ADA is frequently cited by both parties, it is not an appropriate first step in our analysis. The
fact that construction of the ramp may have been motivated by the ADA in no way negates the
Bank’s duty, as applicant, to show conformance with the zoning ordinance.
        Discussion of the ADA is only appropriate where an applicant asserts that this Court must
read the ADA as superseding a compliance requirement in the zoning regulations. Applicant
here has not yet made such an assertion. Only if we find no possibility of the proposed ramp
here, or a reasonable alternative, being in compliance with the St. Johnsbury Zoning By-Laws
(“By-Laws”) do we then address a suggestion that the ADA supersedes a specific provision of
those By-Laws.
        In arriving at this conclusion, we are guided by the general notion that applicable
municipal, state and federal laws should be read, where possible, as in concert and not in
conflict. “In possible preemption areas where common federal and state interests exist, courts
should seek, if possible, some reasonable and uniform accommodation which does not frustrate
either full congressional purposes and objectives or state policies in determining the relationship
between federal and state laws. [I]f that is not possible, and state law interferes and conflicts
with federal law, then federal law must prevail.” Abdu-Brisson v. Delta Airlines, Inc., 128 F.3d
77, 86 (2d Cir. 1997). Thus, in our analysis of the pending application, we first seek site plan
conformance with the local By-Laws prior to delving into any analysis of whether the
Supremacy Clause of the United States Constitution (Article VI, Clause 2) requires a
determination of whether the ADA intrudes upon the local zoning regulations.
        On this point, we emphasize that we do not regard the Bank’s Question #1 as asserting a
“claim” under the ADA. Were the Bank asserting an ADA claim here, be it for monetary
damages or injunctive relief, we would readily agree with the Town that such claims were
beyond the scope of this Court’s jurisdiction. We would then be compelled to grant the Town’s
pending request for partial summary judgment.

6
 We do not view Union Bank’s appeal as a disability discrimination claim against the Town, pursuant to 42 U.S.C.
§ 12101. This will be discussed in further detail below.


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        The Town correctly notes that the Vermont Supreme Court has yet to address the
appropriate intersection of the ADA and municipal zoning regulations. Ironically, the family
court case referenced by the Town as offering an analogous precedent — In re B.S., 166 Vt. 345
(1997) — itself makes reference to a zoning appeal, albeit from the State of Pennsylvania:
Aquaro v. Zoning Bd. of Adjustment, 673 A.2d 1055 (Pa. Commw. Ct. 1996). The Town
summarizes the holding of Aquaro and the analogous precedent of B.S. by stating “that the ADA
did not compel a zoning board to permit construction of a ramp simply because a property owner
sought to comply with the ADA.” Town Memorandum in Support of its Motion for Summary
Judgment at 3, citing to Aquaro, 672 A.2d at 1061.
        The case law concerning the appropriateness of considering the ADA when addressing
municipal land use applications has evolved since 1996. While this specific question has still not
been presented to the Vermont Supreme Court, multiple decisions from our Federal Circuit have
spoken to the issue. While no precedent revealed itself to specifically overrule the Aquaro
holding, as stated by the Town here (i.e.: the ADA cannot be read to mandate zoning approval of
any proposed handicap ramp), several Second Circuit cases provide us with more direct
guidance. Specifically, in the appeal of Tsombanidis, et. al. v. West Haven Fire Department, et.
al., 352 F.3d 565 (2003), the Federal Second Court of Appeals noted that “[b]oth statutes [i.e.:
the ADA and the FHAA (Fair Housing Amendments Act)] apply to municipal zoning decisions.”
Id. at 574, citing Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 45-46
(2d Cir.), cert denied, 537 U.S. 813 (2002); Forest City Daly Hous., Inc. v. Town of North
Hempstead, 175 F.3d 144, 151 (2d Cir. 1999); and Innovative Health Systems, Inc. v. City of
White Plains, 117 F.3d 37, 44 (2d Cir. 1997). This precedent stands for the general proposition
that a municipal board has a duty under the ADA to make a “reasonable accommodation” in the
application of its zoning regulations “when such accommodation may be necessary to afford [a
handicapped person] equal opportunity to use and enjoy a dwelling.” Tsombanidis, 352 F.3d at
578.7
        The ADA states: “[N]o qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services, programs
or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C.


7
  The “reasonable accommodations” provisions of the ADA cited by the Tsombanidis court can be found at 42
U.S.C. § 3604(f)(3)(B).


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§ 12132. The Second Circuit in Innovative Health Systems v. City of White Plains, 117 F.3d at
44, concluded that zoning decisions are “services, programs or activities” covered by the ADA’s
anti-discrimination provisions. “[T]he ADA . . . clearly encompass[es] zoning decisions by the
City because making such decisions is a normal function of a governmental entity.”             Id.
(referencing the federal district court’s determination in Innovative Health Systems v. City of
White Plains, 931 F.Supp. 222, 232 (S.D.N.Y. 1996), quoting the definition for “activity” found
in Webster’s Third International Dictionary (1993)).
        Consistent with the Department of Justice regulations implementing the ADA, specific
provisions are set forth to require “public entities to make reasonable modifications to their
policies, practices, and procedures, where such modifications are necessary to avoid
discrimination on the basis of disability.” Innovative Health Systems, 117 F.3d at 45 (quoting 28
C.F.R. § 35.130(b)(7)). Further, “[z]oning enforcement actions, including the enactment of
ordinances, and any administrative processes, hearings and decisions by zoning boards, fall
squarely within the category of ‘policies, practices or procedures’ mentioned in the [ADA]
regulations.” Innovative Health Systems, 931 F.Supp. at 232 (footnote omitted).
        For all these reasons, we conclude that the activities of the DRB fall within the ambit of
the ADA.        Where the application of municipal zoning regulations is the direct source of
discrimination against a disabled person, the appropriate municipal panel in the first instance,
and this Court on appeal, should consider making “reasonable modifications” in its interpretation
of that zoning regulation to accommodate the disabled person.
        However, we emphasize that at trial, the Bank here must first exhaust all efforts to show
that its proposed ramp, or a reasonable alternative, can comply with the By-Laws, before we
consider some “reasonable modifications” in our application of those By-Laws. As an entity
obligated to accommodate disabled persons under the ADA, the Bank “must incur reasonable
costs and take modest, affirmative steps to accommodate the handicapped as long as the
accommodations sought do not pose an undue hardship or a substantial burden.” Tsombanidis,
352 F.3d at 578; Shapiro v. Cadman Towers, Inc. 51 F.3d 328, 334 (2d Cir.1995).
        In the appeal at bar, the By-Laws do not explicitly prohibit ramps. Instead, they require
that the five considerations from By-Laws § 401.2 be satisfied. We will not be making a
determination at trial of whether the ramp conforms to the ADA, as that is not within our
jurisdiction.    But recognizing the Bank’s attempt to comply with the ADA, we anticipate



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receiving evidence and rendering a determination on whether there can be a handicap access to
the Bank constructed in conformance with the zoning regulations.
        It may be undisputed that the ADA requires construction of a ramp so that handicapped
members of the general public may access the Bank Building. However, whether the size,
location and design of the proposed access ramp, or a reasonable alternative, can comply with
the By-Laws will be determined at trial.        The Bank’s obligation at trial will be to show
conformance with the By-Laws first; the Bank may only bring up the ADA if it shows
conformance with the ADA necessitates non-compliance with specific provisions of the By-
Laws.

Union Bank’s Standing to Raise ADA
        The Town challenges the Bank’s standing to make a reasonable accommodation claim
under the ADA. Although the Town does not contest that the Bank can meet the constitutional
standing requirements of injury-in-fact, causation, and redressability, Innovative Health, 117
F.3d at 46 (citations omitted), it asserts that prudential standing requirements bar the Bank from
asserting a claim under the ADA. See Warth v. Seldin, 422 U.S. 490, 499 (1975) (generally, a
party “must assert his own legal rights and interests, and cannot rest his claim to relief on the
legal rights or interests of third parties).
        We first respond to this contention by the Town by repeating that in these proceedings,
the Bank is not, and cannot, assert a “claim” under the ADA. As noted above, such a claim is
beyond the scope of this Court’s subject matter jurisdiction.
        We next note that the ADA Title II enforcement provision extends relief to “any person
alleging discrimination on the basis of a disability.” Innovative Health, 117 F.3d at 47; 42
U.S.C. § 12133 (1994). The use of such inclusive language “evinces a congressional intention to
define standing to bring a private action under . . . Title II as broadly as is permitted by Article
III of the Constitution.” Id.; (citations omitted). The Court in Innovative extended prudential
standing to the plaintiff, relying on the broad language from Title II. Id. at 48.
        The Bank is a place of public accommodation and has an affirmative duty to make its
Building accessible to handicapped members of the general public. If the Bank can not provide
that access, it may become liable under the ADA. Therefore, we find that the Bank has standing
to raise the requirements of the ADA in this proceeding, subject to the burden of first proving
that its proposed ramp, or a reasonable alternative, cannot conform to the By-Laws without some


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“reasonable modification” in our interpretation of the By-Laws to accommodate the disabled
person who may visit the Bank.
                                         Conclusion
       Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that the
Town’s motion for partial summary judgment is DENIED. The Environmental Court has the
jurisdictional authority to consider the requirements of the ADA in the course of determining
whether a permit application is in compliance with St. Johnsbury Zoning By-Laws, and the Bank
has standing to raise the requirements of the ADA in this proceeding, subject to the burdens of
proof noted in this Decision.


       Done at Berlin, Vermont, this 5th day of December, 2007.




                                           __________________________________________
                                               Thomas S. Durkin, Environmental Judge




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