                                    STATE OF VERMONT

                                 ENVIRONMENTAL COURT

               In re: Appeal of Ben Kernan        }
                                                  }
                                                  } Docket No. 121-6-00 Vtec
                                                  }
                                                  }



   Decision and Order on Appellee-Applicant=s Post-Decision Submission and on Appellant=s
                                 Motion to Alter or Amend

Appellant is represented by Carl H. Lisman, Esq. and Christina A. Jensen, Esq.; Interested
Person Jack Long, Esq. appeared and represented himself; Appellee-Applicant is represented by
Gordon C. Gebauer, Esq.; the City of Burlington is represented by Kimberlee J. Sturtevant, Esq.

This Court=s August 20, 2001 Order approved Appellee-Applicant=s application on the project
plans as submitted in evidence, with the following conditions:

1. Appellee-Applicant shall ensure that the materials used for the greenhouse or any other
rooftop windows will not create obtrusive glare within the view from either direction.

2. Appellee-Applicant shall reduce the roofline extensions presented by the roof and cupolas
above the black box theater and by the square gable end extensions above the cinema theater, to
the minimum necessary to accomplish the design needs of the project in making the building
segments distinct from one another and compatible with the City= s nineteenth-century vernacular
architecture, in achieving design excellence, and in concealing necessary mechanical structures
within the roof.


Mr. Long and Appellant each moved to alter or amend the judgment. Appellee-Applicant
submitted the specifications for the reflectivity of the materials addressed in paragraph 1 above,
and submitted the reductions in roofline extensions presented by the roof and cupolas above the
black box theater and by the square gable end extensions above the cinema theater. Appellee-
Applicant also submitted the architect= s affidavit that these reductions are the minimum
necessary to accomplish the design needs of the project in making the building segments distinct
from one another and compatible with the City=s nineteenth-century vernacular architecture, in
achieving design excellence, and in concealing necessary mechanical structures1 within the roof.

Mr. Long= s and Appellant= s motions to alter or amend are DENIED. The Court fully considered
all the evidence and concluded that the project achieves design excellence, as well as meeting the
other requirements of the ordinance. In the Decision and Order, the Court declined to add the
southernmost roof to those which must be reduced, based upon the evidence as to the proposed
height, location and shape of each roof segment; it remains unnecessary, based on the evidence,
to add the southernmost roof segment to that portion of the order.

Appellee-Applicants also request that the Court enter a further final order in this matter. The
Court has already approved the application in a final order in its August 20, 2001 Decision and
Order. The conditions imposed by the order are simply permit conditions like any other permit
conditions. Normally, it is the municipal zoning and planning department or municipal board
which must determine in the first instance whether a permittee has met the conditions of an
approved permit, just as if it had been that board which had imposed the conditions on the permit
in the first place. The Court does not ordinarily retain continuing supervisory jurisdiction of a
project, although from time to time parties do return to Court for enforcement of a final order.
Accordingly, the August 20, 2001 order was and remains the final order in this matter. That is,
Appellee-Applicants= submittals appear to show that the conditions of that order will be met by
the plan revisions, but those submittals are not required to be submitted for a further ruling by
this Court. However, for the purposes of achieving closure, if a further final order is required, it
is hereby issued, concluding this matter in this Court.

Dated at Barre, Vermont, this 7th day of November, 2001.




___________________
Merideth Wright
Environmental Judge



                                            Footnotes
1.
     Again without showing what mechanical structures are located within the roof; see footnote
10 of the August 20, 2001 decision.
