                                      STATE OF VERMONT

                                  ENVIRONMENTAL COURT

                In re: Appeal of Daniel Clark,       }
                Cherry Clark, Julie Marshall         }
                and P. Dermot Cosgrove               } Docket No. 2-1-01 Vtec
                                                     }
                                                     }

                                         Decision and Order

   Appellants Daniel Clark, Cherry Clark, Julie Marshall and P. Dermot Cosgrove appealed
from a decision of the Development Review Board (DRB) of the City of Burlington granting
final plat approval and a Certificate of Appropriateness to a Planned Residential Development at
the corner of Manhattan Drive and Rose Street. Appellants appeared and represented themselves;
Appellee-Applicants Chris Blondin (project developer) and Bancroft and Elizabeth Dwinell
(landowners) are represented by Christopher A. Micchiche, Esq.; the City of Burlington is
represented by Kimberlee J. Sturtevant, Esq. An evidentiary hearing was held in this matter
before Merideth Wright, Environmental Judge, who also took a site visit by car to the
neighborhood alone, by agreement of the parties. The parties made oral argument on the record
and, after issuance of the preliminary notice of decision, were given the opportunity to submit
supplementary written requests for findings and memoranda of law. Upon consideration of the
evidence, the site visit, and oral arguments and Mr. Clark= s written submittal, the Court finds
and concludes as follows.

   Appellee-Applicants propose a Planned Residential Development of eight units of affordable
housing on a 14,786-square-foot (approximately .34 of an acre) corner lot known as 106 Rose
Street, at the corner of Rose Street and Manhattan Drive, in the Residential Medium Density
zoning district. The lot contained two units of housing in an existing house, plus a lawnmower
repair business in a separate building, with associated driveways and paving. The lawnmower
business was a nonconforming use in the zoning district, entitled to continue under Article 20 of
the Zoning Ordinance. The existing house had a 1,226-square-foot footprint. Together with the
two other buildings to be demolished as part of this proposal, the total existing building footprint
was 4,966 square feet. The existing lot contained a curb cut onto Manhattan Drive, a busy
collector or arterial street, east of its intersection with Rose Street, a local residential street. The
existing lot contained 5,150 square feet of pavement or concrete walkway coverage. The total lot
coverage of the existing lot as calculated under the definitions in the Burlington Zoning
Ordinance was therefore 68%.

   The proposed project consists of retaining the existing house, and building three other two-
unit buildings, two of which each have a 1006-square-foot footprint, and the third of which has a
1296-square-foot footprint, making the total proposed building footprint 4,576 square feet. The
buildings do not exceed the 35-foot height limit applicable to this zoning district. The project
proposes to close the curb cut on Manhattan Drive, and to create a driveway and curb cut onto
Rose Street between the existing building and one of the new buildings. The project proposes to
preserve two existing street trees and to plant six additional ones, as well as the planting
proposed on the property on Exhibit 8, the planting plan.

   The project proposes to construct a nine-space parking area (eight regular spaces and one
handicapped space) in the interior of the lot, with a single access onto Rose Street through the
driveway. The proposal contains 3,740 square feet of pavement or concrete walkway coverage.
The total lot coverage of the proposal is therefore 56%. The lot is sufficiently small so that
adequate fire protection service to all portions of the lot can be achieved from Rose Street or
from Manhattan Drive, should the driveway to the interior parking area be blocked. Moreover, a
12' wide corridor in the location of the former driveway is being kept clear of structures; if
proposed trees for that corridor were replaced by smaller plants, that corridor could function for
emergency access if necessary.

    A Planned Residential Development is a permitted residential use in the Residential Medium-
Density zoning district. Under the density bonus of ' 14.1.14 for affordable housing, the density
allowed on this site would be 24 units per acre, or 8 units for this site. The new buildings meet
the required front yard setbacks on Rose Street and Manhattan Drive, based on the average
setback of existing structures on adjacent lots (' 5.3.6(g)) and the required side or rear yard
setbacks on the other two sides. The maximum allowable lot coverage in this district would be
40%, except that under the density bonus of ' 14.1.14 for affordable housing the maximum lot
coverage is 48%. The proposed coverage is a reduction (improvement) in lot coverage from the
prior non-complying structures under ' 20.1.6(b).

   The neighborhood surrounding this proposal is an older urban residential neighborhood, with
some mixed commercial uses. It is bounded by Manhattan Drive which is a busy arterial or
collector street serving commuter through traffic as well as local traffic. Existing houses are on
relatively small lots; some of the older houses were originally worker housing dating from the
mid-nineteenth century. Most of the houses are located relatively close to the street line, with
small back yards and no off-street parking. The existing house on the lot and other older
neighborhood structures are characterized by Italianate style scrolls and related trim features.

   The proposed buildings relate appropriately to their environment, in that they echo the
apparent density, the setback and the Italianate scroll trim1 of the older housing in the area. The
cluster development of this planned residential development is more consistent with the scale
and appearance of the neighborhood than a single 8-unit building would have been. The
condominium ownership of the units may promote owner-occupation and better stewardship of
the units.

    Appellants are concerned that the on-site circulation will be inadequate and will result in
congestion on Rose Street once the Manhattan Drive curb cut is closed. The on-site circulation
will be adequate, although a design with better on-site circulation could have been developed for
a property with two curb cuts. However, the City= s policy to reduce curb cuts to one per lot will
improve the overall neighboring traffic flow on Manhattan Drive. The proposed curb cut is
narrow but is of adequate width for the neighborhood and the vehicles that will use it, and there
is an adequate sight distance when pulling out of the curb cut onto Rose Street, as long as the
driveway width and curb cut onto Rose Street is not blocked by snow. The circulation within the
parking area is adequate for the nine spaces provided, as long as the parking area is not
constricted by piles of snow.

    The six new proposed units will have little effect on traffic on roads and highways in the
vicinity, beyond that generated by the two existing units, even without accounting for any traffic
that may have been generated by the lawnmower business. The new units will generate three new
vehicle trips in the morning peak hour and four new vehicle trips in the afternoon peak hour. No
traffic study is required by the zoning ordinance for this small an increase in traffic. Left turns
from Rose Street onto Manhattan Drive already experience delays during rush hour traffic;
however, the additional traffic will not increase these delays appreciably. In addition, the street
pattern allows traffic to proceed along Rose Street in the other direction to reach the street
network when Manhattan Drive is busy.

   The City has adequate water supply (including adequate water pressure) and sewage disposal
capacity to serve the proposed additional units.

   Appellants are concerned that the plan provides inadequate open space on site and inadequate
space for any children living on site to play. The plan provides more unpaved open space than
the previous lot coverage, and provides a degree of play space consistent with urban residential
housing.

   Appellants are concerned that there is contamination of the site from past practices of
lawnmower business. The Phase I Environmental Site Assessment in evidence as Exhibit 9
disclosed no such contamination of concern, and Appellants did not present evidence to the
contrary. In addition, regardless of ownership the site must meet and continue to meet the state
standards regarding hazardous waste and contamination.

    Appellants are concerned that runoff from the site will not be absorbed within the ground and
will flood nearby basements. Erosion controls will be in place during construction to avoid any
such problems. After construction, the site is designed so that little if any rainwater will leave the
site. There will be more permeable surfaces than under the existing conditions. The soils on the
site are a loamy sand with high permeability, allowing rainwater to soak into the ground, and the
site is designed with two drywells located in the parking lot to enable infiltration and to prevent
runoff from leaving the site.

   Appellants are concerned that residents will maintain more than one car per unit and will park
the excess cars on Rose Street, thereby exacerbating the problem with finding on-street parking
for other existing buildings without off-street parking. However, the Zoning Ordinance allows
waiver of up to half the normally-required parking, to reduce dependence on automobiles within
the downtown areas of the City. Thus, even if the project were not an affordable housing project,
the City= s parking policies would suggest having one space per unit rather than the two
otherwise required. To promote affordable housing, all the otherwise-required parking could be
waived. In the present application, one parking space per unit, with an additional handicapped
parking space, is appropriate for the neighborhood and its location within the City with access to
good public transportation. However, to avoid creating a burden on the on-street parking on Rose
Street, the condominium association regulations should address that each unit is only entitled to
one space in the project= s parking area.

   Appellants are also concerned that snow will not be properly stored on-site or properly
removed from the site, but instead will be plowed illegally onto Rose Street. The adequacy of the
snow removal directly affects the adequacy of the access driveway to the interior of the site.
Accordingly, snow removal from the paved areas of the site must also be required as a condition
of approval and must be required in the condominium owners= association bylaws as the owners=
responsibility.

    Appellants are concerned that this project will A impose sociological disruption@ on this
community, especially if the units are rented out and are not owner-occupied. Appellants
disagree with the policy found in Article 14 of the Zoning Ordinance to reduce the parking
requirements for affordable housing and to allow greater density and lot coverage than would be
allowed for conventional market rate housing. Essentially, the Burlington Zoning Ordinance
contains a policy choice, adopted by the City= s voters, to provide housing opportunities for all of
Vermont= s citizens as required by state law, to mitigate the effect of the market on the limited
supply of land within the City suitable for housing, and to prevent overcrowding and
deterioration of the existing stock of affordable housing. ' 14.1.1. As well as promoting
affordable housing, the density provisions promote development of available sites in the
downtown area (so-called A infilling@ ) and the parking provision promote the use of alternatives
to the automobile in downtown Burlington. The courts cannot rewrite the policies or provisions
found in any municipality= s zoning ordinances or in state law. Citizens who disagree with
ordinance provisions may seek to have them changed in the ordinance amendment process; the
courts must apply the ordinances as they exist at the time an application is filed.

   Based on the foregoing, it is hereby ORDERED and ADJUDGED that the proposal is
approved, as shown on the plans in evidence and subject to the conditions imposed by the DRB
except as changed by the following additional conditions necessary to implement the purposes of
the zoning ordinance. ' 17.1.5.

   Snow shall be removed from the site so as to retain the full width of the driveway and the full
use of all the parking spaces throughout the winter season. Any snow that cannot be plowed off
the pavement on site must be removed from the site. No snow shall be plowed from the site onto
Rose Street and snow shall be plowed or shoveled, if necessary by hand, so as to remove it from
obstructing drivers= visibility of the area from the front of the buildings onto Rose Street. The
condominium owners= association bylaws shall contain a provision making compliance with this
condition a responsibility of the owners, and requiring the inclusion of this condition in any lease
of any of the units.

   The condominium owners= association bylaws shall contain a provision establishing that only
one parking space is provided for each unit, and that parking on Rose Street may be restricted or
regulated under a permit program by the City, and requiring the inclusion of this provision in any
lease of any of the units.
   A twelve-foot-wide corridor in the location of the former driveway onto Manhattan Drive
shall be kept clear of structures, trees and large shrubs, to allow emergency access to the central
parking lot if necessary. The area which was to have been planted with two Serbian spruce trees
may be planted with tall grasses or other perennials or suitable plant material, and a breakaway
chain or low fencing sufficient to provide a visual indication that it is not available as a
driveway. The planting plan shall be revised and a copy shall be filed with the Development
Review Board to reflect this requirement.

   The Court also urges the Rose Street Association and the applicant to explore with the City
the use of mediation to address and perhaps to prevent future disputes regarding development on
the street, including consideration of whether this neighborhood is suitable for an on-street
parking permit program. The Court has included a list of mediators working in the Burlington
area and a handout on the mediation process.



    Dated at Barre, Vermont, this 4th day of January, 2002.



___________________
Merideth Wright
Environmental Judge



                                            Footnotes
1
    The three new buildings are proposed to have covered entries, scrollwork under the door
overhangs and window trim consistent with the Italianate style of the existing building but not
shown on the building elevations in evidence.
