                                      STATE OF VERMONT

                                   ENVIRONMENTAL COURT

                In re: Appeals of Roman             }
                Catholic Diocese of Burlington      }
                                                      Docket Nos. 146-7-00 Vtec
                                                    }
                                                      and 165-8-00 Vtec
                                                    }
                                                    }



               Decision and Order on Appellant= s Motion for Summary Judgment

Appellant Roman Catholic Diocese of Burlington appealed in Docket No. 165-8-00 Vtec from a
decision of the City of Burlington Zoning Board of Adjustment (ZBA) denying Appellant= s
application for a conditional use permit for the demolition of the buildings at 76-78 Cherry
Street. In Docket No. 146-7-00 Vtec Appellant appealed from a decision of the Planning
Commission denying Appellant= s application for a certificate of appropriateness for the
demolition of the buildings at 76-78 Cherry Street. Appellant is represented by Joseph P. Bauer,
Esq.; the City is represented by Kimberlee J. Sturtevant, Esq. Appellant moved for partial
summary judgment in Docket No. 165-8-00 Vtec only.

The following facts are undisputed unless otherwise noted.

On June 5 and June 28, 2000, the ZBA issued preliminary rulings in this matter regarding
whether Appellant had provided proof that replacement housing units would be provided. On
July 8, 2000, Appellant entered into an agreement with the Burlington Community Land Trust
(BCLT) to replace the two units which would be lost from the demolition of 76-78 Cherry Street.
On July 24, 2000, in the decision on appeal in Docket No. 165-8-00 Vtec, the ZBA denied
conditional use approval on the basis of criterion 2 (that demolition will adversely affect the
character of the area for two reasons: its historic detailing and its residential use) and on the basis
of criterion 4 (that demolition fails to meet the design review criteria per the Planning
Commission decision of June 8, 2000).

Section 15.1.6 of the Burlington Zoning Ordinance requires that, A in addition to applicable
requirements for a conditional use, the zoning board of adjustment shall require, as a condition of
approval, that an owner shall replace any housing units that are demolished or converted to a
nonresidential use.@ Appellant maintains that it has provided the replacement housing and is
therefore entitled to judgment as a matter of law on that issue. The City agrees that the BCLT
agreement, so long as it is effective, meets the requirements of ' 15.1.6. Accordingly, Appellant=
s Motion for Partial Summary Judgment is GRANTED that it has provided housing replacement
as required under the Zoning Ordinance.

However, the grant of this partial summary judgment motion does not resolve the case.
Conditional use approval was denied on two other grounds: the effect of the proposed demolition
on the character of the area, and whether the proposal for demolition meets the design review
criteria. Appellant has not sought summary judgment as to those grounds for denial.
Accordingly, it appears to the Court that these consolidated matters should be set for a hearing
on their merits. We will hold a conference on Thursday, April 5, 2001, at 9:00 a.m. to discuss the
scheduling of this matter. Attorney Sturtevant and Judge Wright will be at the Costello
Courthouse on Cherry Street in Burlington at that time for another matter. Judge Wright will
telephone Attorney Bauer at his office for the conference, unless he would prefer to participate in
person, in which case he should call the Court= s Barre offices by close of business on
Wednesday March 4, 2001, to let us know.



Done at Barre, Vermont, this 30th day of March, 2001.




___________________
Merideth Wright
Environmental Judge
