                                     State of Vermont
                          Superior Court—Environmental Division

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                   ENTRY REGARDING MOTION
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In re Regan Accessory Use Permit Application                         Docket No. 117-7-10 Vtec
(Appeal from City of Burlington Development Review Board)

Title: Motion for Summary Judgment
Filed: 3/29/12
Filed By: Applicant Ute Regan
Response in Opposition filed on 6/26/12 by Appellants Friends of Chittenden Drive
Response filed on 6/28/12 by the City of Burlington (commenting on MSJ and on Opposition)
Reply to Friends’ Response in Opposition filed on 7/11/12 by Applicant Ute Regan


 X Granted                   ___ Denied                    ___ Other

       Currently before the Court in this appeal is Ute Regan’s (“Applicant”) motion for
summary judgment on the legal issues that several individuals, collectively known as Friends of
Chittenden Drive (“Appellants”), raise in their Statement of Questions. Appellants appealed a
decision by the City of Burlington (“City”) Development Review Board (“DRB”) granting
Applicant a permit for an accessory apartment at her property located at 46 Chittenden Drive in
Burlington.
        The DRB granted Applicant an accessory use permit to bring her single family dwelling
– which she had already divided to create a separate efficiency apartment within the building –
into compliance with the City of Burlington Comprehensive Development Ordinance (“CDO”),
which requires a permit for such uses under § 8.1.12(c). Applicant had been using the efficiency
apartment herself while renting out the rest of the building. The efficiency apartment has its
own entrance; an internal fire door separates it from the rest of the house. Applicant proposes
no physical modifications to the residence. The property is served by a single access drive
leading from Chittenden Drive to a garage within the structure and a carport that adjoins the
garage.
         The CDO requires four parking spaces for Applicant’s proposed arrangement: a
residence with attached accessory apartment. The DRB found this requirement met by counting
one parking space in the garage, one in the carport, and two in the driveway: one in front of the
garage and the other in front of the carport. The DRB granted a permit with conditions, stating
that it concluded that the project complied with all applicable zoning criteria.
        The City of Burlington Zoning Administrator (“Zoning Administrator”) originally
approved the application and issued a zoning permit. Appellants appealed the Zoning
Administrator’s decision to the DRB, claiming that the parking spaces in the driveway, in front
of the carport and garage, encroach into the front yard setback area and therefore were a basis
for denying the permit application. Appellants noted that while parking in a driveway is
allowed, it is restricted if the parking encroaches into a front yard setback, except where the
driveway is “no more than eighteen feet (18’) . . . in width.” CDO § 8.1.12(c). Appellants
Regan Accessory Use Permit Application, No. 117-7-12 Vtec (EO on Mot. for Summ. J.) (12-14-2012)        Pg. 2 of 5.

argued that because Applicant’s driveway exceeds 18 feet in width,1 the two driveway parking
spaces are prohibited under the CDO and thus the proposed accessory apartment lacks
adequate parking. The DRB upheld the permit, conditioned upon Applicant not allowing more
than an 18-foot wide portion of the driveway to be used to park two cars. In re 46 Chittenden
Drive (Ward 6, RL) (Tax Lot No. 054-1-121-000), No. 10-0836CA-AP, Findings of Fact, at 2
(Burlington Dev. Review Bd. June 24, 2010) [hereinafter “DRB Decision”].
          Summary judgment, when granted, disenfranchises a litigant from their right to a trial.
We are therefore directed to only grant a summary judgment request when a moving party
(here, Applicant Ute Regan) has shown 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 “accept as true the [factual] allegations made in opposition to the motion for summary
judgment” and give the non-moving party (here, Appellants Friends of Chittenden Drive) the
benefit of all reasonable doubts and inferences. Robertson v. Mylan Labs., Inc., 2004 VT 15,
¶ 15, 176 Vt. 356; see V.R.C.P. 56(c). Nonetheless, both the party claiming that a material fact is
undisputed and the party seeking to establish a dispute of material fact must support their
factual 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”). The Environmental Division follows the Vermont
Rules of Evidence, except that we may admit evidence otherwise inadmissible under those rules
“if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their
affairs.” V.R.E.C.P. 5(e)(1). We review the evidence represented by both parties here with these
legal standards in mind.
        Appellants present no actual evidence that the driveway exceeds 18 feet in width, but as
Applicant does not contest this allegation, we consider it undisputed for the purpose of this
motion and base our determination on an assumption that Applicant’s driveway exceeds 18 feet
in width by some unknown amount. We also consider it undisputed that the two spaces at
issue are the ones in front of the garage and the carport. This leaves us simply to answer the
legal question of where within the setback area, if at all, cars may park in an access drive over
18 feet wide.
        When interpreting municipal bylaws, courts must give effect to the intent of the relevant
legislative body. See Town of Killington v. State, 172 Vt. 182, 188 (2001); In re Vt. Nat'l Bank,
157 Vt. 306, 312 (1991). Where the plain language of the law is unclear or ambiguous, or if
applying the ordinary meaning makes the statute or bylaw ineffective or leads to irrational
results, courts look beyond the wording at issue to ascertain legislative intent. See In re Susan
P, 169 Vt. 252, 262 (1999); Town of Killington, 172 Vt. at 189. Courts examine “the general
context of the statutory language, the subject matter, and the effects and consequences of our


1
  Appellants also contend that Applicant’s driveway was widened without a permit, but they provide no evidence
to support this contention, as required by V.R.C.P. 56(c)(1). The DRB found – “based on orthophotos” – that
someone had widened the driveway “between 1978 and 2000.” However, neither party submitted orthophotos to
this Court. In support of her pending motion, Applicant submitted three affidavits (including her own affidavit, as
well as a “Corrective Affidavit”; see Exhibit 1 to Applicant’s Reply Mem., filed July 11, 2012), asserting that the
driveway has remained at its current width since prior to Applicant’s purchase in 1987.
   These affidavits meet the standards of V.R.C.P. 56(c)(1); Appellants submitted no evidence to the contrary. In
sum, no evidence suggests that any driveway modification occurred during Applicant’s ownership term.
Furthermore, no party submitted evidence suggesting that the alleged driveway modification was done without a
needed permit or that, if a modification ever occurred, the pre-modification driveway did (or did not) exceed 18
feet in width.
Regan Accessory Use Permit Application, No. 117-7-12 Vtec (EO on Mot. for Summ. J.) (12-14-2012)      Pg. 3 of 5.

interpretation.” Shea v. Metcalf, 167 Vt. 494, 498 (1998). Purpose provisions in municipal
bylaws particularly assist in understanding the regulatory provisions to which they apply. See
In re Meaker, 156 Vt. 182, 185 (1991); In re Bibby, No. 189-11-10 Vtec, slip op. at 8 (Vt. Super. Ct.
Envtl. Div. Mar. 2, 2010) (Durkin, J.). In close cases, interpretation by municipal staff and
zoning boards may be relied upon for guidance. In re Maple Tree Place, 156 Vt. 494, 499-500
(1991). When our analysis does not fully dispose of ambiguity in the applicable law, we are
counseled to rule in favor of the landowner. In re Weeks, 167 Vt. 551, 555 (1998).
        The current version of the CDO prohibits parking in residential zone front yard setback
areas “extend[ing] from the edge of the public right-of-way into the required front yard setback
for the entire width of the property with the exception of a single access drive no more than
eighteen feet (18’) or less [sic] in width.” CDO § 8.1.12(c). We conclude that this language is
ambiguous. First, even assuming the words “or less” to be mere surplusage,2 it is not clear from
the plain language whether cars may not park at all in the setback area of a driveway over 18
feet wide, or whether, in such driveways, cars may park within the setback only in an 18-foot
wide portion of an access drive that extends from the edge of the public right-of-way. We
endorse the latter interpretation.
        The purpose section at the beginning of CDO Article 8 (Parking) assists in interpreting
that section’s remaining provisions. The first purpose is to “[e]nsure there are adequate parking
and loading facilities to serve the use or uses of the property.” CDO § 8.1.1(a). Interpreting
CDO § 8.1.12(c) to completely eliminate parking within front yard setbacks in driveways over
18 feet wide contravenes CDO § 8.1.1(a) by limiting rather than ensuring the potential for
adequate parking facilities. In contrast, interpreting the rule to allow parking in driveways over
18 feet wide but only within an 18-foot wide area aligns with CDO § 8.1.1(a). Another purpose
provision states the City’s desire to “[r]educe congestion in the streets and contribute to traffic
safety.” CDO § 8.1.1(c). It makes little sense to imagine that the City would prefer that where a
driveway is over 18 feet wide, cars should not park there at all, but should instead add to
congestion in the streets by seeking on-street parking or driving to some other parking location.
        Although CDO § 8.1.12(c) may have the effect of discouraging landowners from
installing access drives over 18 feet wide and from installing multiple access drives, it prohibits
neither. There are various reasons why a landowner might desire a wider access drive or
multiple access drives, aside from the ability to park in the over-wide area or in the additional
access drive(s). Had the drafters of the CDO wanted to limit the number or width of access
drives, we conclude that they knew how to draft such a prohibition, using clear language.
        Here, we have interpreted ambiguous language in a municipal regulation in its context,
looking to the document as a whole and in particular to purpose provisions directly applicable
to the contested language on parking. We conclude that the City’s regulations allow the
parking spaces in front of Applicant’s garage and carport to count towards the four spaces
necessary for her property, provided that these parking spaces do not exceed an 18-foot width.
Our mandate to resolve ambiguities in favor of landowners supports our conclusion. Weeks,
167 Vt. at 555–556. Therefore, with the restriction in place that no more than two vehicles may
park in front of the garage and carport in an area not to exceed 18 feet, we conclude that
Applicant’s parking plan conforms to CDO § 8.1.12(c) and enter summary judgment in
Applicant’s favor as to Appellants’ Questions 3 through 6.


2
  A technical reading of the phrase “no more than 18 feet or less” would allow parking within front yard setback
areas only in driveways exactly 18 feet wide: an absurd reading of the regulation in its context.
Regan Accessory Use Permit Application, No. 117-7-12 Vtec (EO on Mot. for Summ. J.) (12-14-2012)   Pg. 4 of 5.

        We next turn to the remaining issues raised by Appellants in their Statement of
Questions, all of which are addressed by all parties in their legal memoranda offered in support
of or in opposition to Applicant’s summary judgment motion. By the first and second
Questions in Appellants’ Statement of Questions, Appellants challenge whether Applicant’s
proposal satisfies the general requirements for an accessory dwelling (codified in CDO
§ 5.4.5(a)) and the owner-occupancy requirement for an accessory dwelling (codified in CDO
§ 5.4.5(e)). For the reasons stated below, we conclude that the evidence presented causes us to
conclude as a matter of law that Applicant’s proposed accessory dwelling conforms to CDO
§§ 5.4.5(a) and (e).
       By CDO § 5.4.5(a), the City has established several requirements for a lawful accessory
dwelling, including that the accessory dwelling is “located within or appurtenant to” a single
family residence on property Applicant owns; that the accessory dwelling “is clearly
subordinate to the primary dwelling, and has facilities and provisions for independent living,
including sleeping, food preparation, and sanitation.” Id. Appellants have not filed affidavits
or made reference to other forms of admissible evidence that specifically contradict Applicant’s
factual representations that her accessory dwelling satisfies the general requirements
enumerated in CDO § 5.4.5(a).
        Appellants appear to challenge the legal sufficiency of Applicant’s accessory dwelling’s
“food preparation” facilities, but Appellants offered no legal definition for that term and our
own review of the CDO and the enabling statute (24 V.S.A. § 4412(1)(E)) has revealed no such
definition. In the absence of a more specific definition, we conclude that the sink and
microwave oven located in Applicant’s accessory dwelling are sufficient to satisfy the phrase
“food preparation facilities” found in CDO § 5.4.5(a). We reach this legal conclusion by relying
on the common understanding that a sink and oven may be regarded as adequate for food
preparation. We also rely upon the general proposition that since zoning regulations are in
derogation of property rights, we interpret such regulations narrowly and in favor of the
property owner seeking to use her property. Weeks, 167 Vt. at 555–556.
        Appellants additionally express concerns about Applicant’s claims that she occupies the
accessory dwelling as her residence and that she satisfies the requirements of CDO § 5.4.5(e)
that the owner of the property occupy the principal or accessory dwelling. A prior deed listed
Applicant and another individual as the titled owners of the property, but Applicant confirmed
that a subsequent deed, recorded in the City of Burlington Land Records, lists her as the sole
owner of the property.
        Appellants assert that the Court should not consider Applicant’s property as her
principal residence. However, Appellants provided no admissible evidence to support their
claims, as required by V.R.C.P. Rule 56. Applicant, in contrast, provided sworn affidavits
attesting that she spends sufficient time living in the accessory dwelling (over 183 days per
year) to qualify it as her primary residence, and that that she uses Burlington as her primary
address and files her taxes as a Burlington resident. (Applicant’s Aff’s, filed May 29, 2012 and
July 11, 2012).
       When a moving party presents material facts in support of her summary judgment
motion and the opposing party fails to refute those facts with admissible evidence, this Court
may consider the movant’s factual representations as undisputed for the purpose of considering
the pending motion. V.R.C.P. 56(e)(2). With this procedural directive in mind, we regard
Applicant’s assertion that she, as the current sole owner of the property, occupies the accessory
dwelling as her principal residence, as undisputed and uncontested. These undisputed facts
cause us to conclude that Applicant has satisfied the requirements of CDO § 5.4.5(e).
Regan Accessory Use Permit Application, No. 117-7-12 Vtec (EO on Mot. for Summ. J.) (12-14-2012)           Pg. 5 of 5.



       We therefore conclude that Applicant’s proposal conforms to the residency and food
preparation facilities requirements of CDO§ 5.4.5 and enter summary judgment for Applicant as
to Appellants’ Questions 1 and 2.
        Finally, Appellants allege that a recommendation report submitted to the DRB was
authored – according to metadata embedded in the document – by the Zoning Administrator,
and that such communication between an administrator and the development review board
charged with considering an appeal from that administrator’s determination constituted
“inappropriate participation in the deliberations of the DRB.” (Appellants’ Opp. to Mot. for
Summ. J. at 9, filed Jun. 26, 2012). Even if this were true,3 we do not agree with Appellants’
reasoning and do not see a sufficient legal foundation for it. In fact, we understand that zoning
administrators and their staff often provide summaries and reviews when a board is reviewing
a land use application, even when conducting a de novo review on appeal from that
administrator’s determination, and do not recall such a practice as ever having been found to be
improper. Moreover, there is no provision in 24 V.S.A. Chapter 117 or in the CDO preventing
the DRB or Planning Office staff members from submitting comments to the DRB. We see no
legal basis for concluding that such procedures are inappropriate.
        The City employee responsible for reviewing Applicant’s accessory use permit
application, who is a DRB staff member, submitted an affidavit representing that he regularly
makes recommendations to the DRB as part of his job, that he authored the report, and that he
sent it to Appellants in advance of the hearing. (Aff. of Scott Gustin, Filed Jun. 28, 2012). We
agree with Appellants that municipal bodies must follow fundamental principles of fairness
and statutory authority, but we see no evidence that those principles were violated here. We
therefore conclude that Applicant is entitled to summary judgment on Appellants’ remaining
Questions: Questions 7 and 8.
        Having reviewed the all applicable requirements in CDO § 5.4.5(a) and the evidence
submitted, we are satisfied that no dispute of material fact exists and that Applicant is entitled
to judgment as a matter of law that her proposed accessory use complies with the applicable
City regulations. We therefore GRANT Applicant’s motion for summary judgment as to all
legal issues presented in this appeal.
       A Judgment Order accompanies this Entry Order. This concludes the current
proceedings before this Court concerning the pending application.



_________________________________________                                          December 14, 2012
       Thomas S. Durkin, Judge                                                         Date
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Date copies sent: ____________                                                 Clerk's Initials: _______
Copies sent to:
    Attorneys Liam Murphy, Esq. and Damien J. Leonard, Esq. for Applicant Ute Regan
    Attorney Kimberlee J. Sturtevant for the City of Burlington
    Attorney Claudine C. Safar for Appellants Friends of Chittenden Drive




3
    The record contains no evidence verifying Appellants’ claims concerning metadata.
