                                                    STATE OF VERMONT


                                                 ENVIRONMENTAL COURT


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Appeal of McGrew, et al.                               }           Docket No. 199-10-04
                                          Vtec
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                     Decision and Order on Appellants= Motion for Summary Judgment

         Appellants Barbara McGrew, Daniel Fivel and Jowall Limited Partnership appealed

from a decision of the Development Review Board (DRB) of the City of Burlington

regarding a project involving property at 114 College Street, 126 College Street and 95 St.

Paul Street.    Appellants are represented by Andrew R. Strauss, Esq. and Norman

Williams, Esq.; Additional Appellant Leonora, LLC is represented by Robert C. Roesler,

Esq.; Appellee-Applicant Investors Corporation of Vermont is represented by Carl H.

Lisman, Esq. and Christine A. Jensen, Esq.; and the City is represented by Kimberlee J.

Sturtevant, Esq. Appellants have moved for summary judgment on all but Questions 1 and

9 of the Statement of Questions . The following facts are undisputed unless otherwise

noted.
       Appellee-Applicant owns three adjacent parcels of property at 114 College Street

(with frontage on Pine Street and on College Street), 126 College Street (with frontage on

College Street) and at 95 St. Paul Street (with frontage on College Street and on St. Paul

Street), in the Central Business District zoning district. Appellant proposes to construct a

ten-story mixed-use building on the 114 College Street parcel, including a bank automatic

teller machine drive-through and two other commercial office spaces on the ground floor,

fifty residential units, with parking located within the building on the ground floor and

extending two floors below the ground floor.




Question 2:

       The essential issue regarding this proposal is whether Appellee-Applicant may

merge three adjacent lots and construct an additional building on one of the three former

lots using the density calculations applicable to the resulting lot.

       The Court can find no prohibition in the Zoning Ordinance against the merger of

lots by an applicant, regardless of whether some of the lots are already built upon. That

is, we find no provision in this particular Zoning Ordinance requiring only one principal

building or use per lot. To the contrary, the Zoning Ordinance provides for mixed uses in

the Central Business District.
       In the present case, Appellee-Applicant proposes to combine the lots for the

purposes of the present application and to be bound by that treatment in any future

planning and zoning applications or decisions. This proposal is neither a Planned

Residential Development nor does it represent a transfer of development rights. Rather,

the combined lot as a whole will not be entitled to any greater level of development than

that allowed under the Zoning Ordinance for that combined lot and its existing and

proposed uses and buildings. Accordingly, Appellants= motion for summary judgment must

be denied and summary judgment must be granted to Appellee-Applicant on this issue.




Question 5:

       The proposed project meets the requirements for a height bonus under

'5.3.15(a)(1) if at least 20% of the units (that is, ten of the fifty units in the proposed

building) are affordable to low and moderate income households as defined by state and

federal regulations.   The project as proposed meets those requirements if moderate-

income households are defined as having income at 110% of median income, but not if

moderate-income households are defined as having income at 100% of median income.


       The definitions of low-income and moderate-income households in Article 30 of the

Zoning Ordinance refer to income not exceeding 80% and 110%, respectively, Aof the

median income for the Burlington MSA [Metropolitan Statistical Area], as set forth in
regulations promulgated from time to time by the U.S. Department of Housing and Urban

Development pursuant to [federal statute].@ If these definitions are read together with the

definition of Amedian income@ in Article 30 of the Zoning Ordinance, it is apparent that the

phrase Aas set forth in [federal] regulations@ refers to the methodology for calculating the

median income in the Burlington Metropolitan Statistical Area, and not to which percentage

of median income is used by state or federal regulations to define low-income or

moderate-income households.      The Zoning Ordinance uses 80% and 110% of median

income; it does not incorporate by reference either the state or the federal definitions[1] of

low-income or moderate-income households. Moreover, even if it had incorporated those

definitions by reference, we would have to look to the federal and state definitions as they

had existed at the time of the last revision of the Zoning Ordinance, rather than at the

latest revision of the federal and state definitions.    Accordingly, Appellants= motion for

summary judgment must be denied and summary judgment must be granted to Appellee-

Applicant on this issue.




Question 6:


       The project meets the requirements for a height bonus under '5.3.15(a)(2) if it

provides public parking spaces in an amount no less than 10% above the total parking

requirements of the new building, as this section is written to analyze the height bonus on
a building-by-building basis. Also see '10.1.4 with reference to existing structures. The

total parking requirements for the new building, without regard to any requested waivers,

are 113 spaces, so that 11 public parking spaces must be provided to qualify for the

'5.3.15(a)(2) height bonus. Appellee-Applicant proposes to provide 11 spaces in the new

building for public parking, so that the project meets the requirements for the

'5.3.15(a)(2) height bonus. As Appellee-Applicant is not proposing to use any of the

parking in the existing buildings to meet this requirement, we need not analyze whether

the existing buildings conform or not to the current parking requirements in the Zoning

Ordinance. Accordingly, Appellants= motion for summary judgment must be denied and

summary judgment must be granted to Appellee-Applicant on this issue.




Question 7:

       Material facts are in dispute as to the design and materials of the structure to

enclose the rooftop mechanical features; and as to whether the rooftop structure is being

designed or whether any other rooftop features are being added or redesigned to qualify

as a rooftop greenhouse or an ornamental feature. In presenting this issue at trial, the

parties should be prepared to address all three of the following sections of the Zoning

Ordinance: '30.1.2; '5.3.13(d); and '6.1.11(g), as the Court will have to reconcile them

to the extent possible.
Question 8:

       Material facts are in dispute as to whether the project meets the standards for a

parking waiver under '10.1.19, including facts as to the usage patterns for the existing

buildings, the usage patterns of the parking provided in the existing buildings, and the

usage characteristics of affordable residential units as distinguished from full price

residential units.




Question 9:


       The question of whether the layout and design for the proposed parking garage

meets the design review, site plan approval, major impact development review, and

conditional use standards relating to its effect on traffic, access and on-site circulation

(''6.1.10(d); 7.1.6(a) and (b); 13.1.6(e) and 17.1.5(a)(3)) was not submitted on

summary judgment, and remains for the hearing on the merits of the application.




Questions 3 and 4:
       The project is entitled to calculate its density by applying a floor area ratio (FAR) of

3 to the entire project parcel if more than 50% of the parking spaces for the project (that

is, the entire combined property) are Alocated in an underground structure.@

       Material facts are in dispute as to how many of the existing parking spaces and

how many of the spaces proposed for the new building are located how far below the

finished grade, to allow the Court to determine how to interpret the undefined term:

underground structure.    It appears that the City=s Planning and Zoning Department

interprets it to count any space whose pavement is below grade, but nothing has been

provided to indicate how or whether the City=s DRB has interpreted this provision, or

whether it should be interpreted instead to mean that the entire volume of a parking space

must be below the finished grade for it to be considered below grade, or whether some

percentage of the structure itself must be below grade. Material facts are in dispute, or at

least have not been provided, regarding whether any nationally-recognized association of

planners, or architects, or commercial garage designers, or any other relevant institution,

uses a recognized definition of Aunderground structure.@ Most importantly, no evidence or

argument has been presented regarding the policy underlying this provision, to assist the

Court in applying '1.1.2 of the Zoning Ordinance to the interpretation of '5.2.6(e)
         Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that

Appellants= Motion for Summary Judgment is DENIED and summary judgment is granted to

Appellee-Applicants on Questions 2, 5 and 6; and Appellants= Motion for Summary

Judgment is DENIED as to Questions 3, 4, 7 and 8 as material facts are in dispute as

discussed above. Summary judgment was not requested for Questions 1 or 9; material

facts remain disputed as to those two questions.

         Accordingly, the trial will proceed as scheduled on Questions 1, 3, 4, 7, 8 and 9.

As discussed at the March 24, 2005 telephone conference, the trial is not expected to

take more than a single day. As provided in the March 23, 2005 entry order regarding

the motions to compel and for protective order, the trial remains scheduled for the full day

of April 8, 2005, unless the parties agree to or the Court orders the rescheduling of the

trial.

         In considering these scheduling issues in preparation for the telephone conference

now scheduled for 4:00 p.m. today, the parties should consider the following. Normally, if

the trial were held as scheduled on April 7 or 8, we would provide for the filing of

requests for findings and memoranda of law on about April 20, and for the filing of

responsive memoranda on about April 29 or May 2. Given the extensive preparation this

case has had, if we were to hold the trial on April 28, we would require requests for

findings and memoranda of law to be filed at trial, with any necessary responses (not
already addressed in the summary judgment motions or in the initial trial memoranda) to

be filed on May 4. We would also require these documents to be provided in electronic

form by email to the Court. Using this schedule, the appeal would be under advisement

with the Court at approximately the same time under either scenario.



      Done at Berlin, Vermont, this 25th day of March, 2005.




                           _________________________________________________
                                  Merideth Wright
                                  Environmental Judge



      [1]
            Appellants assert that the 2005 federal and state definitions of moderate-
income households are set at 100% of median income.
