                               STATE OF VERMONT
                    SUPERIOR COURT - ENVIRONMENTAL DIVISION

                                                {
In re Whiteyville Properties, LLC               {            Docket No. 179-12-11 Vtec
Conditional Use Application                     {      (Appeal from Burlington DRB denial of
                                                {         Application No. 12-0470CA/CU)
                                                {

                                    Decision on the Merits
        Whiteyville Properties, LLC (“Applicant”) seeks conditional use approval to increase the
maximum occupancy from four to six unrelated tenants for one of the four existing apartments
at its property at 22–26 Summit Avenue in the City of Burlington (“City”). Applicant also seeks
approval to increase the authorized parking on its property to a total of thirteen parking spaces.
When the City of Burlington Development Review Board (“DRB”) denied Applicant’s requests,
Applicant filed a timely appeal with this Court.
        Pursuant to the Court’s initial Scheduling Order of February 14, 2012, the parties sought
to resolve the pending legal disputes through negotiation, including with the assistance of a
mediator.    When those efforts failed, Applicant requested that the Court enter summary
judgment in its favor; the Court denied Applicant’s motion for summary judgment by Entry
Order. In re Whiteyville Properties, LLC, No. 179-12-11 Vtec, slip op. at 4 (Vt. Super. Ct. Envtl.
Div. Dec. 13, 2012) (Durkin, J.). The parties thereafter prepared for trial, which was conducted
on August 6, 2013. The Court granted the parties’ request for permission to file proposed
Findings of Fact and Conclusions of Law; those filings were submitted and this matter came
under advisement on September 17, 2013. Other writing obligations caused a delay in the
Court's completion of its research and writing of this Decision, and the Court offers its apology
for this delay.
        Pursuant to the parties’ joint suggestion, the Court visited the site alone, without the
parties or their attorneys. This site visit provided helpful context for the testimony and other
evidence that was admitted at trial. The Court only relied upon the site visit for context and did
not rely upon any observations made during the site visit as evidence.
        Present at trial were Eric Hanley and Michael Johnson, Esq., a Vermont-licensed
attorney, both of whom are the only members of Whiteyville Properties, LLC (a Vermont
limited liability company), as well as Applicant’s attorney, Edward D. Fitzpatrick, Esq. Also


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present at trial was the City’s attorney, Kimberlee J. Sturtevant, Esq., who was accompanied by
Scott Gufston, the City of Burlington Senior Planner.
        Based upon the evidence admitted at trial, including that which was put into context by
the site visit, the Court renders the following Findings of Fact, Conclusions of Law, and the
Judgment Order that accompanies this Merits Decision:
                                         Findings of Fact
1.      Applicant’s property is located at 22–26 Summit Street and is improved with a main
house, a former carriage house, and a shed, all of which are depicted on Applicant’s proposed
site plan, admitted at trial as Exhibit 33. A copy of Exhibit 33 is attached to this Decision for the
readers’ reference. We caution, however, that this photocopy may not represent an accurate
scale of the site.
2.      The main house on Applicant’s property has a street address designation of 26 Summit
Street; the former carriage house has a designation of 22 Summit Street. The property consists
of one lot, even though the buildings have been assigned separate street addresses.
3.      The property was previously owned and occupied by Mr. Hanley’s grandparents. Mr.
Hanley’s grandparents sometimes rented 3 bedrooms on the third floor of the main house to up
to 10 tenants, most of whom were students attending Champlain College, which has a main
campus several blocks west of the property.
4.      Mr. Hanley’s grandparents always occupied a portion of the main house as their
residence while they were renting the third-floor bedrooms. Their ownership and rental of
rooms continued for several decades. Trial testimony did not evidence an occasion during the
grandparents’ room rental when there was a substantial noise disturbance that caused adjoining
residents to complain.
5.      Mr. Hanley, his wife, and his children have previously lived together in the carriage
house on his grandparents’ property.       Mr. Hanley is very familiar with the property, the
neighborhood, and the rental of rooms by his grandparents.
6.      The property is located in the Low Density Residential Zoning District (“RL District”), as
identified in the City of Burlington Comprehensive Development Ordinance (“CDO”). See
CDO § 4.4.5(a)(1). The RL District is bordered on the north, east, and west by the Institutional
Zoning District (“I District”). Portions of the campuses for the University of Vermont (“UVM”)
and Champlain College are located within or adjacent to the RL District.


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7.     The portion of the RL District hosting Applicant’s property is bordered to the north by
Main Street, to the west by Summit Street, and to the east by South Prospect Street. The RL
District continues to the south, across Maple Street, and beyond the neighborhood that includes
Applicant’s property.
8.     The properties abutting or near Applicant’s property are mostly developed with
residential dwellings. The dwellings along Summit Street to the north and south of Applicant’s
property were at the time of trial owner-occupied, single family dwellings, as was the property
at 195 South Prospect Street, which is at the rear of Applicant’s property and abuts the southeast
corner of Applicant’s property.
9.     Some of the remaining properties in Applicant’s neighborhood contain one or more
dwelling units, some of which are occupied by student-tenants enrolled at UVM or Champlain
College. Many, though not all, of these rental properties are also occupied by the property
owners.
10.    The neighborhood surrounding Applicant’s property is accurately depicted on an aerial
photo that was admitted at trial as Exhibit 31. Exhibit 31 includes text identifying some of the
buildings and streets in the surrounding area.
11.    As depicted on Exhibit 31 and through the credible trial testimony, the area surrounding
Applicant’s property is almost entirely developed, although there are some open and green
areas. Nearly all of the nearby properties are used for residential purposes.
12.    This neighborhood also includes a college dormitory and a fraternity, located at 56
Summit Street and 215 South Prospect Street, respectively. The dorm and fraternity have each
been permitted to serve as living quarters with up to 14 dwelling units.1
13.    Another property near Applicant’s property, located at the corner of South Prospect and
Main Streets (identified as 153 South Prospect Street) hosts a UVM educational building; this
building does not serve as a residence.
14.    The surrounding area has the qualities of a quiet residential neighborhood, even though
a college and a university are located nearby. Our conclusion is based upon and supported by
the lister’s cards Applicant put into evidence, describing the twenty-nine properties in the
Neighborhood around Applicant’s property. See Exhibits 1 through 29, inclusive.

1 Trial evidence did not make clear whether one or more students occupied each of the “units” in the
dormitory and fraternity. See Exhibit 41. It was therefore unclear whether these structures served as a
residence for 14 or more students.

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15.     The area surrounding Applicant’s property is not, as suggested by Applicant’s
witnesses, a densely-populated area.
16.     The property was acquired in Applicant’s name in July 2010.                Applicant’s agents
completed certain improvements to the property’s buildings so that the main and carriage
houses could each host two dwelling units with multiple bedrooms.                   While the interior
renovations may have been extensive, no significant renovations were made to the exterior of
the property.     No additional improvements were made or required in connection with
Applicant’s pending application to host two additional tenants in one of its dwelling units.
17.     Once the 2010 improvements were completed, the property consisted of the following:
        Main House:
              Unit #1: six bedrooms (1st and 2nd floors)2
              Unit #2: four bedrooms (3rd floor)
        Carriage House:
               Unit #3: four bedrooms (1st floor)
               Unit #4: three bedrooms (2nd floor)

18.     Applicant thereafter rented the property to up to 15 individuals, mostly students.3
19.     Shortly after Applicant began renting out the improved rental units, one or more
neighbors began experiencing noise disturbances that emanated from Applicant’s property,
including loud conversations late at night that were sometimes laced with profanities. One
neighbor credibly testified at trial that debris and other items of personal property sometimes
littered Applicant’s property and that some tenants or their visitors would sometimes urinate in
the narrow area between the rear of the carriage house and the neighbor’s rear boundary line.
20.     Trial testimony revealed that few disturbances from Applicant’s property were reported
to City authorities or Applicant’s agents. A neighbor credibly testified that she did not want to
cause trouble by reporting these disturbances to City officials and could not contact Applicant’s



2  While Unit #1 contains six bedrooms, Applicant only rented this unit to four tenants as of the date of
trial, due to the CDO restriction on the rental of dwelling units to no more than four unrelated adults.
See CDO § 4.4.5(d)(5). A dwelling unit may be rented to more than four unrelated adults, if the landlord
receives conditional use approval and satisfies other specified dimensional standards.             CDO
§ 4.4.5(d)(5)(C).
3  Undisputed testimony revealed that Applicant, through its members, sometimes rented out the two
extra bedrooms in Unit #1, thereby increasing the total number of tenants on the property to 17.
Applicant’s members conceded at trial that they did so without the necessary approval; they have now
agreed that conditional use approval and a permit are required before 17 tenants may lawfully be
allowed to occupy the property.

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agents because they had not introduced themselves to her or provided her with their contact
information.
21.     By its pending application, Applicant seeks authority to increase the total tenants on its
property from 15 to 17 by having 2 additional tenants occupy the 2 extra bedrooms that are
currently not used in rental Unit #1 (occupying the first and second floors in the main house).
22.     The Court surmises that Applicant’s two members recognize that the disturbances to
their neighbors caused by their current tenants were out of character for this neighborhood,
although the members dispute the intensity and frequency of these past disturbances. The
Court concludes that the past disturbances emanating from Applicant’s property, while not
entirely unique to the neighborhood, have not been in keeping with the low-density, often quiet
characteristics of this neighborhood. The fact that Applicant’s members had not advised the
neighbors of who they may contact when disturbances occurred has contributed to the
disturbances experienced by the neighbors.
23.     With 15 tenants, Applicant’s property currently hosts more student-tenants than most of
the other properties in the neighborhood. Their application seeks authority to increase the total
number of student-tenants to 17.4
24.     Applicant and its members have not previously seen fit to employ a management plan
for the property or its tenants or to employ an on-site manager for the property.
25.     In response to the DRB’s denial and neighbors’ concerns about Applicant’s existing
rentals and the prospect of increased disturbances that may result from authorizing the increase
to 17 tenants, Applicant proposed to establish a written management plan for the property and
its tenants. Applicant initially disagreed with the DRB’s assessment that a property with as
many tenants as Applicant’s needed a management plan and an on-site manager. However, at
the time of trial, Applicant’s members submitted a revised Property Management Plan, a copy
of which was admitted as Exhibit 36.




4   We are unsure of whether three other properties in the neighborhood host more tenants than
Applicant’s property. Applicant provided an itemization of the neighborhood properties’ size, use, and
number of “units.” See Exhibit 41. But it is unclear how many student-tenants occupy the Champlain
College dorm at 56 Summit Street, the fraternity at 215 South Prospect Street, or the rental property at 205
South Prospect Street. Applicant’s Exhibit 41 lists the number of “units’ for each of these properties—14
for the dorm, 14 for the fraternity, and 10 for the rental property—but do not specify whether any of these
“units” have more than one tenant.

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26.    Applicant’s revised Property Management Plan includes property and tenant
management provisions; identification of Applicant’s LLC members; procedures for the
selection of a tenant to serve as an on-site manager; and disclosure to City officials and
neighbors of the contact information for the property management team (i.e.: the two LLC
members) and the on-site manager.
27.    The responsibilities of the on-site manager include monitoring compliance with the
terms of the management plan and the individual leases and reporting non-compliance and any
neighborhood complaints to the two-member management team. The management team is
responsible for responding to any neighborhood complaints.
28.    Applicant’s revised Property Management Plan also includes a reference to the City of
Burlington Noise Ordinance (“Ordinance”), specifically Ordinance § 21-13, and an attached
copy of Ordinance § 21-13.
29.    The Court found it difficult to read the copy of Ordinance § 21-13 that Applicant
included as part of its Exhibit 36 and also found several typographical errors or confusing
phrases in the proposed Management Plan. The Court has therefore reproduced a copy of
Ordinance § 21-13 and attached it to a copy of Exhibit 36, which is attached to this Decision.
The Court has also noted where certain typographical corrections need to be made to the
Management Plan on the attached copy of Exhibit 36. The Court directs Applicant to make
those corrections, incorporate the attached Ordinance § 21-13 into a revised Management Plan,
and distribute copies of this revised Property Management Plan to the City, the Court, and all
tenants at the property.
30.    The property currently has six parking spaces, depicted on Applicant’s site plan (Exhibit
33) as parking spaces numbered 2–7. The current parking spaces encompass an area of 2,663
square feet.
31.    As noted by the DRB, Applicant has sufficient space behind the main house and to the
side of the carriage house to construct and maintain seven additional spaces, numbered 1 and
8–13 on Exhibit 33.     These additional spaces will not encroach into the setbacks from the
property boundary lines. The proposed new parking spaces will encompass an additional
parking area of 2,844 square feet, thereby increasing the parking area on the property to a total
of 5,477 square feet.




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32.        The driveway and existing parking spaces on the property are asphalted. Applicant
proposes to asphalt all additional parking spaces, if its application is approved.
33.        Applicant’s property consists of 0.75± acres.        With the additional parking spaces
Applicant proposes, the building and other site development will cover approximately 10,552
square feet of the property, which will constitute 33% lot coverage. See Applicant’s site plan
(Exhibit 33).
34.        The carriage house has a row of shrubs along a portion of its exterior front wall.
Applicant proposes to plant and maintain similar shrubs along the remaining portion of that
front wall, to provide some screening from vehicle headlights disturbing the tenants of the
carriage house.

                                          Conclusions of Law
      I.      Overview
           As noted in our pre-trial Entry Order,5 this appeal presents two principal issues to the
Court: whether Applicant is entitled to (1) conditional use approval to increase the number of
tenants in Unit #1 on its property from four to six and (2) increase the total parking on its
property from six to thirteen parking spaces.
           We begin our analysis with a review of the DRB decision, since the DRB, while denying
the pending application, rendered positive findings on some of the necessary criteria for the
requested approval. Since no party appealed those positive findings, they have become final
and may be relied upon by Applicant and this Court. 24 V.S.A. § 4472(d) (upon failure to
appeal a decision all interested persons are bound by that decision); V.R.E.C.P. 5(f) (parties may
not raise “any question on the appeal not presented in the statement [of questions] as filed”).
We therefore focus our analysis on the criteria for which the DRB rendered adverse findings,
since an applicant must receive affirmative findings under all applicable conditional use criteria
in order to receive approval. CDO § 3.5.6(a); see also 24 V.S.A. § 4414(3)(A) (“the proposed
conditional use shall not result in an undue adverse effect on any” of the applicable criteria)
(emphasis added).
           The DRB noted that CDO § 4.4.5(d)(5)(C) permits a property owner to rent a dwelling
unit to more than four unrelated adults, provided the increase in occupancy conforms to the


5 In re Whiteyville Properties, LLC, No. 179-12-11 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Dec. 13,
2012) (Durkin, J.).

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applicable conditional use criteria of CDO Article 3 and certain minimum dimensions,
specifically that the dwelling unit must have at least 2,500 square feet (not including any attic
and basement) and, in the case of properties in the RL District, that “the dwelling unit [must]
also contain[] at least an additional two hundred fifty (250) square feet and one (1) additional
parking space per adult occupant in excess of four (4).” CDO § 4.4.5(d)(5)(C)(i). The DRB
interpreted these provisions to require that for Applicant’s Unit #1 to be occupied by six
unrelated adults, that Unit must have a minimum of 3,000 square feet and two additional
parking spaces. In RE: 26 Summit Street (Ward 6, RL)( Tax Lot No. 050-015-000), App. No. 12-
0470CA/CU, slip op. at 4 (Burl. DRB Dec. 6, 2011). The DRB concluded that Applicant had
satisfied these dimension provisions, since Unit #1 contains 3,470 square feet and Applicant
proposed to install several additional parking spaces. Id.
         The DRB concluded, however, that Applicant’s proposed occupancy increase does not
conform to several applicable conditional use criteria and therefore denied the pending
application. Since Applicant preserved that legal issue for our review in this de novo appeal,
we next address whether Applicant, through the evidence presented at trial, has provided a
sufficient basis for this Court to conclude that the increased occupancy in Unit #1 conforms to
the applicable conditional use criteria.

   II.      Conditional Use Review
         We first note that the pending application does not concern a new development, but
rather an increase in occupancy to one of four dwelling units already on Applicant’s property.
Other than the proposed increased parking, which we discuss in the following section,
Applicant’s proposed occupancy increase does not require any changes to the interior or
exterior of the existing buildings or a change of use. In fact, were it not for the concerns
expressed by the neighbors regarding noise and other disturbances, it is unlikely that this
application would have been the subject of an appeal or the resulting trial. Furthermore, had
Applicant not revised its positions and the evidence it presented to the DRB, specifically its
position on the need for a management plan and an on-site manager, it is likely that the Court
would have also denied the pending application because of these legitimate concerns.
         Article 3 of the CDO governs review and approval of proposed conditional uses. In
light of the DRB’s adverse findings, we focus principally on the question of whether the
increased number of tenants proposed by Applicant is likely to cause an undue adverse impact


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upon (a) the character of the surrounding area (CDO § 3.5.6(a)(2)) or (b) any standards or factors
contained in municipal ordinances or state statutes (CDO § 3.5.6(a)(4)).
       In considering whether there will be an undue adverse impact on the character of the
area we must first define this character. Nearly all of the individual lots in the area surrounding
Applicant’s property are developed, although nearly all of that development is residential in
nature and many of those residences are owner-occupied.               Many of the neighborhood
properties include duplexes, some or all of which are rental units. Most of the neighborhood
tenants are students at the nearby colleges and universities.6
       The impact of Champlain College and UVM on the character of the area is confirmed by
activities on properties within the same block as Applicant’s property. These include a
Champlain College dorm, a fraternity, and a UVM educational building. Most properties in this
neighborhood host fewer tenants, and some properties are only occupied by their owners.
Applicant’s property hosts a large number of tenants at present, but several other properties in
the neighborhood have as many or more tenants. Increasing Applicant’s total occupancy to 17
will not cause it to have more tenants than several neighboring properties. Thus, we conclude
that Applicant’s proposed expansion is not out of character with the surrounding
neighborhood.
       Even though we conclude that a 17-tenant rental property is not out of character with
this neighborhood, we have concerns that Applicant’s operation and management of this rental
property may be adverse.       First, we note that Applicant’s property and its surrounding
neighborhood are located in the RL District, which the City has designated to be “intended
primarily for low-density residential development in the form of single detached dwellings and
duplexes [and] . . . typically characterized by a compact and cohesive residential development
pattern reflective of the respective neighborhoods’ development history.” CDO § 4.4.5(a)(1).
The purposes of the residential zoning districts are generally defined as “intended to control
development . . . in order to create a safe, livable, and pedestrian friendly environment [and] . . .
intended to create an inviting streetscape for residents and visitors.” Id. at § 4.4.5(a). In order
for us to conclude that Applicant’s proposed occupancy expansion is not adverse to the




6 While our Findings only specifically mention Champlain College and UVM, the Court is aware that
there are a total of five higher education institutions in and near the City.

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character of this neighborhood, we must be confident that the proposed expansion respects and
is aligned with the purposes and goals expressed in the CDO.
       We were inclined to conclude that, if unconditioned, Applicant’s proposed expansion
may be adverse to the neighborhood’s character, principally because of the manner in which
Applicant has managed the property in the past. This neighborhood evidences a delicate
balance between its residential history, past and present, and the increasing influences of the
surrounding institutions. These competing types of development can co-exist, provided all
occupants maintain respect for the quiet, peaceful setting that this neighborhood represents.
       Tenants, especially student tenants, may sometimes be unable to recognize and respect
the important character of this neighborhood, either because they have just recently moved to
the area, or because their youthful nature causes them to focus more on their academic and
social pursuits. Thus, the principal responsibility toward the neighborhood must fall upon the
owners who rent out portions of their residences. The credible evidence at trial showed that
Applicant has not been vigilant in showing respect for this neighborhood. Specifically, loud
noises and profanity have disturbed a neighbor late at night. The LLC members’ admission that
they had not introduced themselves to their neighbors and provided them with their contact
information increased our concerns. Anecdotally, the fact that the LLC members stated that
they had lease provisions prohibiting barbecues within ten feet of their buildings, and yet a
barbecue grill was located on the main house porch, indicates Applicant’s failure to attend to
the property. Furthermore, the City put in to evidence multiple photos showing debris on the
front lawn and an unkempt yard that appeared to last for some time, not merely during the
“move-in” or “move-out” days, as the LLC members suggested. See City Exhibits I through S.
Any expansion of these types of impacts would certainly be adverse to the character of this area.
       We are cautious, however, about rejecting the pending application, for several reasons.
First, Applicant seeks a small increase in the current lawful occupancy. Second, while we reject
Applicant’s assertion that this is a “high density” residential neighborhood, we note that the
CDO defines “low density” as having up to seven dwelling units per acre. CDO Table 4.4.5-2.
Applicant’s property contains three-quarters of an acre; we therefore surmise that the CDO
allows for up to five dwelling units on a property of this size within the “low density”
definition. We also note that we are directed to interpret zoning regulations narrowly, with an




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eye toward an applicant’s use of their property, since zoning regulations are in “derogation of
common law private property rights.” City of Rutland v. Keiffer, 124 Vt. 357, 360 (1964).
       While we are encouraged by Applicant’s recent acknowledgment that its property needs
a formal management plan and an on-site manager, we share the City’s regret that Applicant
and its LLC members chose not to acknowledge this need sooner. Because Applicant continued
to argue during trial and in post-trial filings that a plan and on-site manager are unnecessary,
we remain concerned about Applicant’s and its members’ commitments to effectively
administering the management plan. Applicant and its members also seem to have composed
their draft management plan with less than stellar conviction. Indeed, the draft plan contains
several typographical errors and confusing references.
       Despite these shortcomings, the proposed management plan has the substantive
provisions necessary to quell the disturbances that have occurred in the past, provided that
Applicant and its members adhere to the management plan and maintain an effective on-site
manager for the property. We therefore attach a copy of Applicant’s management plan (Exhibit
36) to this Decision on which we have noted our suggested revisions. We also recommend that
Applicant’s members read the draft plan thoroughly when making the necessary revisions and
submit a corrected management plan to this Court and to the City prior to increasing the
occupancy for Unit #1 beyond four unrelated adults.
       Our decision to conditionally approve the pending application is motivated by a hope
that with the management plan in place and with dedication to the plan from Applicant, its
members, and its tenants, Applicant may operate its rental property while respecting its
neighbors and the character of the neighborhood. We therefore conclude that, subject to the
conditions expressed below, Applicant’s request to increase its total lawful occupancy for Unit
#1 from 15 to 17 unrelated adults will not have an adverse impact upon the character of the area
or the standards and factors articulated in the CDO. We therefore conclude that the proposed
occupancy increase, as conditioned below, conforms to CDO §§ 3.5.6(2) and (4).
       The DRB rendered additional adverse determinations when reviewing the conditional
use criteria and how the proposed occupancy increase may impact on those criteria. For the
same reasons expressed above, we conclude that Applicant’s proposed occupancy increase, as
conditioned below, (a) provides for appropriate mitigation measures; (b) complies with the
expressed intent and purposes for the RL District; and (c) complies with the applicable nuisance


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and performance standards. We therefore conclude that the proposed occupancy increase,
provided Applicant abides by the conditions below, conforms to CDO §§ 3.5.6(a)(10),
§4.4.5(a)(1), and §5.5.1. With these final determinations, we conclude that Applicant’s requested
occupancy increase, as proposed and conditioned, is entitled to conditional use approval.

    III.      Requested Parking Increase
           We have previously interpreted the applicable provisions that govern parking spaces
and Applicant’s proposal to increase the number of spaces on its property.                See In re
Whiteyville Properties, LLC, No. 179-12-11 Vtec, slip op. at 3–4 (Vt. Super. Ct. Envtl. Div.
Dec. 13, 2012) (Durkin, J.). Applicant’s proposed parking plan has not changed from the plan
presented in support of its summary judgment motion. We therefore rely upon the legal
analysis in our prior Entry Order, specifically that the CDO requires at least two parking spaces
for each dwelling unit on a property and limits the parking to no more than 125% of that
amount. CDO Table 8.1.8-1 and CDO § 8.1.9. Thus, as currently operated, Applicant is entitled
to maintain no less than eight and no more than ten parking spaces on its property.
           A further increase of parking spaces is allowed when the DRB or this Court authorizes
an increase in the number of unrelated adults that occupy an individual dwelling unit. CDO
§ 4.4.5(d)(5)(C)(i) (providing that when approval is granted to increase the number of unrelated
adults occupying a dwelling unit, the development must include “one (1) additional parking
space per adult occupant in excess of four”). Therefore, since we have approved Applicant’s
proposal to increase the maximum number of unrelated adults that occupy Unit #1 from four to
six, Applicant is required to have two additional parking spaces. This addition increases the
maximum number of allowable parking spaces to 12. We therefore conclude that Applicant’s
request to expand its parking may be approved, conditioned upon the expanded parking being
limited to a maximum of 12 spaces.
           Applicant asserted, both at trial and in its pre- and post-trial filings, that the DRB
approved its parking expansion plan. Applicant is mistaken. In fact, the DRB specifically
denied Applicant’s expanded parking request, pursuant to the DRB motion made and approved
in response to the pending application.7       Applicant is correct that the DRB made certain




7 In RE: 26 Summit Street (Ward 6, RL)( Tax Lot No. 050-015-000), App. No. 12-0470CA/CU slip op. at 6
(Burl. DRB Dec. 6, 2011).

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affirmative findings in response to its parking expansion proposal,8 but those affirmative
findings do not constitute a legal determination to grant the parking request. In fact, Applicant
appeared to acknowledge the DRB’s denial of its parking plan when Applicant filed its
Statement of Questions, which included a challenge to the DRB’s denial of its “expansion of the
parking lot.”     (Applicant’s Statement of Questions at ¶ 1, filed Dec. 18, 2011).        Because
Applicant presented the question for our review, we have responded by conditionally
approving its parking expansion request.

                                                Conclusion
          For all the reasons detailed above, we conclude that Applicant’s proposal to increase the
occupancy of Dwelling Unit #1 in the main house of its property at 26 Summit Street conforms
to the applicable provisions of CDO Article 3 (governing conditional use review and approval)
and CDO Articles 4, 5, and 8 (governing residential uses in the RL District, nuisances, and
parking), conditioned upon the following:
     1. Applicant shall revise its proposed Property Management Plan to include the
        revisions and corrections noted on the attached marked draft and shall review the
        draft again for accuracy and clarity of references. Applicant shall then provide
        finalized copies of the Property Management Plan to the Court, all existing and
        future tenants of 22–26 Summit Street, and the City of Burlington Office of Code
        Enforcement.
     2. Whenever Applicant makes any revisions to its Property Management Plan,
        Applicant shall provide copies of the revised Plan to the City of Burlington Office of
        Code Enforcement and all existing and future tenants of 22–26 Summit Street.
     3. Applicant shall provide all tenants with a copy of the current Property Management
        Plan and require all tenants to acknowledge receipt of the Plan by having the tenant
        sign an acknowledgment on either their lease agreement or a copy of the Plan.
     4. Applicant shall abide by and require its tenants to abide by all terms and conditions
        of the Property Management Plan.
     5. Applicant shall be responsible for identifying an on-site manager who shall be
        available for all tenants, neighbors, and City officials to contact concerning events or
        disturbances occurring at 22–26 Summit Street. Applicant shall confirm that its on-
        site manager has provided his or her contact information to all tenants, abutting
        neighbors, and City officials.
     6. Applicant’s use and operation of the Property Management Plan and an on-site
        manager are material terms of the Court’s conditional approval of this application.
        Applicant’s failure to employ a Property Management Plan or on-site Manager will
        therefore be a violation of the Court’s order and conditional use approval.

8   Id. at 5.

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   7. Applicant shall revise its site plan (Exhibit 33) to reflect that no more than twelve
      parking spaces may be developed and maintained on the property.
       A Judgment Order accompanies this Merits Decision.         This completes the current
proceedings before this Court on this application.

       Done at Berlin, Vermont this 19th day of December, 2013.




                                                     Thomas S. Durkin, Environmental Judge




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