                                            STATE OF VERMONT


                                         ENVIRONMENTAL COURT


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Appeal of Fisher                           }        Docket No. 207-11-03 Vtec
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             Decision and Order on Cross-Motions for Partial Summary Judgment

       Appellant Kevin Fisher appealed from a decision of the Development Review Board

(DRB) of the City of Burlington, granting Major Impact Development approval and site plan

approval for an addition to Appellee-Applicant Lund Family Center, Inc.’s existing building,

and for related site work. Appellant is represented by Lisa B. Shelkrot, Esq.; Appellee-

Applicant Lund Family Center, Inc. (the Center) is represented by Andrew R. Strauss,

Esq. and Robert F. O’Neill, Esq.; and the City is represented by Kimberlee J. Sturtevant,

Esq.




       Both Appellant and Appellee-Applicant have moved for summary judgment on the

issue of whether the proposal is eligible for consideration within the use category of

“community house.” The Court issued an informal, preliminary ruling at a conference, but

advised the parties that an additional breakdown of the usage numbers provided by
Appellee-Applicant would be required before the Court could complete its work on the

pending motions, and that certain issues would require an evidentiary hearing. The parties

agreed to bifurcate the evidentiary hearing. A June 9, 2005 hearing was set for disputed

factual issues relating to whether certain categories of activities conducted at the Center

are considered within the Center’s principal use (or uses[1]), are accessory to that use or

uses, or are separate uses which are not eligible for approval in this district and which

must be conducted at another location. If the ruling resulting from these motions and that

hearing allows the Center to proceed with the application on its merits before this Court,

the merits hearing has been scheduled for June 23 and 24, 2005.




       The following facts are undisputed unless otherwise noted.          The Lund Family

Center operates a residential treatment program for parenting or pregnant women and girls

between the ages of 12 and 27, who have a mental health or a substance abuse

diagnosis, or both. It has operated its program in its current building at 76 Glen Road for

many[2] years; this property is in the Residential Low Density (RL) zoning district.

       The Center provides a residence for a maximum of 20 clients at any time. The

Center provides meals to the residents, their children, and staff from a central kitchen and

dining room, and provides lunches to day students and to children in the on-site childcare

program.
       The Center provides an on-site school program for residents, former residents, and

for approximately three day students per year who qualify for the program under state

guidelines, serving approximately 25 students per year, with a maximum of 12 students at

any given time.

       The Center provides counseling, classes and programs on-site to residents and

former residents on a variety of related issues, including childbirth, adoption and parenting,

living skills, substance abuse treatment, and smoking cessation. Material facts are in

dispute, or at least have not been provided in these motions and should be presented at

the June 9, 2005 hearing, as to the extent to which the Center provides similar classes

and programs away from the Center to other similar populations, including a teen

pregnancy outreach program at Vermont middle and high schools. Material facts are in

dispute, or at least have not been provided in these motions and should be presented at

the June 9, 2005 hearing, as to the extent to which the Center provides any of these

programs on-site to individuals who have never been residents of the Center.

       The Center provides welfare-to-work and transitional living services, adoption

assistance, and parent support to former residents after they have moved back into the

community, and provides these services to other similar populations in the Chittenden

County area. Material facts are in dispute, or at least have not been provided in these

motions and should be presented at the June 9, 2005 hearing, as to the extent to which
the Center provides any of these programs at the Center to individuals who have never

been residents of the Center.


       The Center provides an on-site child care center licensed for up to twenty-nine

children[3] as young as two weeks of age. The children attending the on-site child care

center are the children of residents, former residents and current staff of the Center, and

as space allows, children of the public not in those categories.        Material facts are in

dispute, or at least have not been provided in these motions and should be presented at

the June 9, 2005 hearing, as to whether the inclusion of children in the child care

program from the wider community has a therapeutic or programmatic purpose.

       The Center maintains on-site business and administrative offices to support all its

services and an on-site development office to bring in funding, donations and volunteer

assistance for all its programs.

       The parties dispute how certain uses of the new addition and existing space in the

facility should be categorized as principal or accessory uses with respect to this facility, or

as uses which are not allowed in this district under the Zoning Ordinance. The parties

agree as to the square footage (total 18,130) allocated to each proposed use, as follows:

Residential (except kitchen & dining)        8041

Kitchen & Dining                                    1669

On-site Education                                   2123
Childcare                                          2080

Adoption                                           1560

Child & Family Services                          918

Parent Education                                 453

Administration and Business office         892

Development Office                   394




       Because of the unresolved factual questions that will be the subject of the June 9,

2005 hearing, we cannot now definitively determine the percentages of uses that are

allocated to principal and accessory uses. Based on the revised usage chart filed on May

11, 2005, we can make a preliminary estimate as follows. We must allocate certain staff

functions proportionally to the ‘former and present resident’ category, on the one hand,

and to the ‘never-resident’ category on the other. Until the facts are established at the

June 9, 2005 hearing, we provisionally make this calculation exclusive of the adoption and

child and family services program, other than as it serves residents and former residents,

and provisionally count the administration, business, and development offices as accessory

to the principal use. Those portions of the adoption program and the child and family

services program that serve persons other than residents and former residents, while they

may be programmatically related to the Center’s mission, are not uses that are allowed to
be conducted at the subject property, as neither general office uses nor medical

(counseling) offices are allowed in the district, and community centers are only allowed on

a ‘major or collector street.’ At the June 9, 2005 hearing, Appellee-Applicant may wish to

present evidence as to how the space for the adoption waiting room, meeting rooms, and

the adoption and child and family services counseling rooms will be re-allocated if those

programs may not be run from the subject property.

       A total of 15,900 square feet remains after the adoption and child and family

services space allocated to never-resident programs is removed. The Court understands

that this will have to be added back in and recalculated based on the June 9, 2005

evidence. If day care for children of staff and never-residents is excluded, then 13,659

square feet or 85.9% is allocated to the principal use, that is, serving residents and former

residents. If day care for children of staff and never-residents is included, then 14,285

square feet or 89.8% is allocated to the principal use, that is, serving residents and former

residents. Material facts are in dispute as to whether the on-site education of never-

residents, and the associated meals and staff time serving them, and the administration,

business and development office functions should all be counted as accessory, or whether

some of them, like the adoption and child and family services, must be conducted off-site.

Even if they are all counted as accessory, it appears that the Center will qualify for

consideration as a “community house” on the merits of its application.
      Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that

both Motions for Summary Judgment are denied at the present time in that material facts

remain in dispute. However, at the close of the June 9, 2005, hearing, it should be

possible to resolve all the legal issues posed by the motions. We will hold a further

conference at that time or on June 10, 2005 by telephone, so that all parties can prepare,

if necessary, for the hearing scheduled for June 23 and 24.



      Done at Berlin, Vermont, this 7th day of June, 2005.




                            _________________________________________________
                                  Merideth Wright
                                  Environmental Judge



      [1]
            The question of whether the Zoning Ordinance allows more than one principal
use per lot is also before the Court in these motions. Nothing in the Burlington ordinance
precludes multiple uses on a single lot. Unlike the cases cited by Appellant, the DRB has
not interpreted the ordinance to preclude multiple uses on a single lot. However, each
proposed use must be within an allowed category for the district. In the present case, the
child care program may qualify for consideration as a separate principal use; however,
depending upon the evidence to be presented at the hearing on June 9, 2005, Appellee-
Applicant may wish to proceed with it under the present application.

            [2]
                  The question of whether any of the proposed uses for the building may be
eligible for analysis as a pre-existing, non-conforming use is not before the Court in the
present motions.

            [3]
                  A child care center for over twenty children is categorized under the Zoning
Ordinance as a “large” child care center that is a conditional use in any Residential zoning
district.
