                                  STATE OF VERMONT
                       SUPERIOR COURT - ENVIRONMENTAL DIVISION

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In Re Blasdel & Koch Constr. Permit                 {          Docket No. 155-10-11 Vtec
                                                    {    (Appeal from Burlington DRB decision)
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                                           Judgment Order

         Greg Blasdel and Jennifer Koch (“Applicants”) own a small lot at 5-11 Mill Street in
Burlington, Vermont. Their property is near the southerly banks of the Winooski River, which
serves as the boundary line between the Cities of Burlington and Winooski. Mill Street is east of
Colchester Avenue, which follows a gradual slope of the land from south to north as it descends
towards the Winooski River.
         Just south of Applicants’ property is the property of their abutting neighbors, Steven
and Sharon Litwhiler (“Neighbors”).              Neighbors’ property is higher in elevation than
Applicants’, which necessitates a retaining wall that is on or near the parties’ dividing property
line. A small portion of Neighbors’ land is to the north of this retaining wall and is generally of
similar elevation to Applicants’ property. Applicants’ and Neighbors’ properties are depicted
on the various pages of Applicants’ site plan, admitted at trial as Applicants’ Exhibits A
through D.
         Both properties lie within the Neighborhood Mixed Use Zoning District1 and are subject
to the Design Review and Historic Preservation Overlay Districts, pursuant to the City of
Burlington Comprehensive Development Ordinance (“CDO”) §§ 4.5.1 and §5.4.8.                   Both
properties host buildings that still include some historic characteristics. Applicants’ property
currently is improved with a single building that serves as Applicants’ residence, their single-
room bed and breakfast, and a small commercial framing shop. Neighbors’ property is also
improved with a single building that serves as a multi-unit apartment complex and provides
retail/commercial space that is currently occupied by a Domino’s Pizza restaurant. Neighbors’
property also hosts a free-standing ground sign, used to advertise the restaurant.
         Applicants submitted an application for a zoning permit to construct a two-story
accessory building in their rear yard that would serve as a garage/carport for four passenger


1   See CDO § 4.4.2(a)(2) and CDO Map 4.4.2-1.

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vehicles, with an artist’s studio on the second floor above the carport. When the City of
Burlington Development Review Board (“DRB”) approved Applicants’ request, Neighbors filed
a timely appeal with this Court. The parties endeavored to resolve their disputes through both
direct negotiations and with the assistance of a mediator. The Court commended the parties on
their efforts at voluntary resolution, even though their negotiation sessions caused several
postponements of the pre-trial discovery and trial. When the parties were unable to reach a
voluntary agreement on all of their disputes, the Court conducted a trial over three days (March
19–20, and April 30, 2013) at the Costello Courthouse in Burlington. The undersigned also
attended a site visit with the parties prior to the first day of trial that provided helpful context
for the evidence that was admitted at trial.
        Once the parties completed their presentation of evidence, the Court took a recess to
review its trial notes and conduct some legal research. The Court then reconvened the hearing
to announce its Findings of Fact and Conclusions of Law, based upon the evidence admitted at
trial and the legal arguments presented by the parties.
        This Judgment Order is not intended to substitute or supersede the Findings of Fact or
Conclusions of Law announced at the end of trial on April 30, 2013; any individual wishing to
review the Court’s Findings and Conclusions should review the trial record. This Judgment
Order is issued to provide a memorial of the Court’s legal conclusions and to satisfy the Court’s
obligations under V.R.C.P. 58. In that light, the Court offers the following summary of its
factual findings, legal conclusions, and order:
1.      At the time of trial, thirteen questions remained from the original seventeen that
Neighbors proposed in their Statement of Questions. These questions, all of which this Court
addressed, were Questions 2, 3, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, and 16.
2.      The proposed project consists of a garage/carport structure with a concrete exterior and
open ends, such that the structure only partially covers two tandem rows of parked cars, with
two cars in each row. See Applicants’ Exhibits A through D.
3.      Above the concrete garage structure will be an enclosed studio area with elongated
horizontal windows near the top of the side walls. Both the studio walls and roof will be
finished on their exterior with corrugated metal with a galvanized metal finish.
4.      Applicants’ proposed structure will serve as an accessory to Applicants’ residential use
of their existing historic structure. Applicants will use the accessory structure as an artist’s


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studio and garage, but in no other way will the structure be used in connection with Applicants’
commercial use of their existing structure, other than for the parking of vehicles.
5.     Applicants’ property currently contains spaces for up to four parked vehicles. Their
proposed development will not increase the number of vehicle parking spaces available on
Applicants’ property.
6.     The proposed accessory structure will be shielded from most public views by
Applicants’ existing structure, several tall concrete block walls in the rear of their lot, and the
generally sloping topography of the neighboring lands.
7.     Applicants’ proposal to add an accessory structure is governed by the CDO, including
its Site Plan Review and Architectural Design Review Standards. See CDO §§ 6.2.2 and 6.3.2.
8.     We first answered Neighbors’ Questions 2, 3, 5, and 6 in regards to the parking
requirements established in CDO Article 8.           We concluded that the proposed accessory
structure will not require additional parking and that the proposed realignment of Applicants’
parking spaces, including their size and shape, conform to the applicable provisions of CDO
Article 8, provided, however, that Applicants shall not allow or cause vehicles to encroach onto
Neighbors’ adjoining property.
9.     We next answered Neighbors’ Question 7 in the negative, concluding that the facts
presented do not warrant conditioning any approval on Applicants assuming the responsibility
to maintain the concrete block retaining wall that separates the parties’ properties; CDO
§§ 6.2.2(b) and (g) do not provide a legal foundation for such a condition. We leave the parties
to determine, independent of this land use appeal proceeding, their respective rights and
responsibilities to maintain the concrete block retaining wall.
10.    Applicants and their expert proposed several conditions concerning the construction of
the proposed accessory structure and how that construction may impact the existing concrete
block wall that divides the parties and their properties. Those conditions are imposed below in
paragraphs C(1) through (5), inclusive.
11.    We responded to Neighbors’ Question 9 by concluding that the proposed parking is
sufficiently screened and therefore conforms to CDO § 6.2.2(l).
12.    We rejected the suggestion made in Neighbors’ Question 10 that the Court condition
approval upon Applicants placing and maintaining curb stops, landscaping, and other physical




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barriers on their property, so as to prevent vehicles from encroaching onto Neighbors’ adjoining
land.
13.      In response to Neighbors’ Question 12, we concluded that the planned new lighting
conforms to CDO § 6.2.2(o).
14.      Lastly, in response to Neighbors’ Questions 13–16, we concluded that the proposed
accessory structure conforms to the applicable Architectural Design Standards contained in
CDO § 6.3.2. The parties both offered credible expert testimony on this point. However, we
found Applicants’ expert more convincing and concluded that within the context of its
surrounding neighborhood, the size, mass, and materials proposed, and the roofline,
fenestration, and other characteristics of the proposed accessory structure evidence a sufficient
effort to propose a conforming structure that will not deviate from or contradict the historic
characteristics of this important neighborhood.

                                            Conclusion
         Based upon the evidence presented, the Court concludes the following:
      a. In regards to the realigned parking spaces, Applicants shall not allow or cause vehicles
         to encroach onto Neighbors’ adjoining property.
      b. When the parking spaces on Applicants’ property are being used for visitors to their
         frame shop or bed and breakfast establishment, at least one attendant must be on site to
         assure that vehicles exit safely and that no vehicle encroaches onto Neighbors’ property.
         Either or both of Appellants may serve as the parking attendant.
      c. In regards to the possible impacts upon the existing concrete block wall that could occur
         from the construction and use of the proposed accessory structure, this approval is
         conditioned upon the following:
         1. Prior to the commencement of construction, Applicants shall cause a survey to be
            conducted of the concrete block wall, as recommended by Applicants’ expert. See
            Applicants’ Exhibit 3. Once construction is complete, the recommended survey shall
            be repeated, so that reference points on the concrete block wall can be compared to
            determine whether Applicants’ construction has caused a material change in the
            elevation or integrity of the concrete block wall. Applicants shall report the results
            of this analysis to Neighbors and to the City of Burlington Planning and Zoning
            Department.
         2. The new structure shall be no closer than ten feet from the base of the concrete block
            wall.
         3. The area between the concrete block wall and the new structure, once completed,
            shall be sodded and the sod must be maintained.
         4. Once construction is complete, the area between the concrete block wall and the new
            structure shall be graded in such a way that the grade and profile of the sodded area

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           shall be as before, with the exception of a minor swale, located approximately six
           inches outside of the new structure.
       5. All drainage systems must be constructed and maintained as shown on Applicants’
          Exhibit A.
   d. The conditions imposed by the DRB in its September 20, 2011 decision that are not
      superseded by the additional conditions imposed above shall remain in full force and
      effect. See Specific Conditions 1–7 and Standard Permit Conditions 1–18, noted on page
      6 of the DRB decision.


       This matter is remanded to the City of Burlington Planning and Zoning Department,
solely to complete the ministerial act of issuing a zoning permit in conformance with this
Judgment Order and all provisions of the DRB’s September 20, 2011 decision that were not
disturbed by this appeal. This completes the current proceedings before this Court on this
application.


       Done at Newfane, Vermont this 5th day of July, 2013.




                                                    Thomas S. Durkin, Environmental Judge




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