                                 STATE OF VERMONT
                               ENVIRONMENTAL COURT

                                             }
       In re 316 Main Street, LLC            }          Docket No. 65-5-11 Vtec
       Variance Application                  }          (Appeal from Burlington DRB
                                             }          variance determination)
                                             }

                                 Decision on the Merits

       Applicant 316 Main Street, LLC (“Applicant”) owns property in the City of
Burlington, Vermont, at the address that its name indicates, that is improved with a
multiple apartment residential dwelling. Applicant appeals a decision by the City of
Burlington Development Review Board (“the DRB”) denying its zoning variance
request. The sole issue presented in this appeal is whether Applicant may be allowed
to maintain an already-installed paved driveway that encroaches approximately three
feet into the five-foot setback from its eastern property boundary line.     When the
parties were unable to resolve their dispute through negotiation, despite their best
efforts, the Court proceeded to conduct a site visit and trial.
       Appearing at the site visit and trial were Applicant’s principal, Kristen P.
Anderson, who was joined by Applicant’s attorney, Mark G. Hall, Esq. The City of
Burlington (“the City”) was represented at both the site visit and trial by Kimberlee J.
Sturtevant, Esq. and Kenneth Lerner, the City of Burlington Zoning Administrator.
       Based upon the evidence presented at trial, including that which was put into
context by the site visit, the Court renders the following Findings of Fact and
Conclusions of Law.

                                        Findings of Fact
1.     Applicant’s property at 316 Main Street (“the Property”) is improved with a large
residential building originally used as a single-family residence and now used as a six-
unit residential apartment building. The structure’s use as a multi-family dwelling
dates back to the 1930s; several structural characteristics do not conform to the
current zoning regulations.
2.     Applicant’s property has been the subject of several prior permit proceedings
and zoning violation allegations.     While some of those prior proceedings are not
material to the legal issues presented in the pending appeal, others are and thus we
note them here:


                                             1
    a) Applicant previously applied for a zoning permit to add two residential
       apartments in the basement of the existing structure in order to have a total of
       six apartments in the building.1 The DRB denied that application by its
       decision dated July 22, 2008. Applicant appealed the DRB’s decision to this
       Court, and that appeal was assigned Docket No. 171-8-08 Vtec.
    b) In its 2008 decision, the DRB based its permit denial upon a finding that the
       existing site improvements had “too many constraints to accommodate
       additional living space in the basement. These include tight constraints on
       parking in the driveway and around the building, the inability to find a
       reasonable location for the [trash] dumpster that is safe and healthy, and the
       difficulty of providing safe access for trucks to the rear of the property.” In re
       316 Main Street Request to Add Basement Apartments, Findings of Fact, at 3, ¶
       13 (City of Burlington Dev. Review Bd. July 22, 2008).
    c) At the time of the DRB’s 2008 decision, the Property included a gravel driveway
       parallel to the Property’s eastern boundary. The driveway was approximately
       twenty-one feet wide, and a portion of the eastern edge of the driveway was
       used for parking. The driveway ran from the curb cut on Main Street along the
       eastern property boundary and to the rear of the property, where a six-bay
       garage was and is located, and also wrapped around the rear of the apartment
       building, in front of the rear garage. (This pre-existing driveway is shown on a
       site map admitted at trial in the current docket, Docket No. 65-5-11 Vtec, as
       Exhibit 3. As shown on Exhibit 3, the eastern edge of the Main Street curb cut
       lined up with the eastern edge of the twenty-one-foot-wide gravel driveway.)
    d) As noted on Exhibit 3, Applicant’s principal (Ms. Anderson) understood, at the
       time that Applicant applied for approval to develop additional basement
       apartments, that the eastern edge of Applicant’s twenty-one-foot-wide gravel
       driveway was five feet from the side yard property boundary shared with the
       neighbor to the east.
    e) As Applicant’s appeal of the DRB’s denial of its application to develop additional
       basement apartments proceeded to trial, the parties, with the help of a
       mediator, reached a voluntary resolution that provided Applicant with a permit
       to create two additional apartments. The parties signed their Settlement
       Agreement on February 9, 2009 and filed the agreement with the Court on June
       11, 2010. (A copy of the parties’ Settlement Agreement was admitted at trial in
       this appeal as Exhibit 2.)
    f) As part of their Settlement Agreement, the parties agreed that Applicant would
       install a paved driveway in the same area as the pre-existing gravel driveway.
       Exhibit 2 at 2, ¶ 2(D). That is, the parties agreed that “[t]here will be 18-foot
       wide paving in an area extending from the southeast corner of the [apartment]
       building to the Main Street intersection. Paving will be 20-feet in width from
       that point back to the north and meet five-foot side and rear setback
       requirements.” Id.2

1
   This permit application was preceded by a threatened zoning enforcement action based on the fact that work to
convert the basement to add up to three residential bedrooms in two new apartments began without permit authority.
Those actions ultimately led to an agreement that only two one-bedroom apartments would be created in the
basement and the remaining basement area would not be used as residential space.
2
   Another site plan, labeled as “Revised Site Plan” and marked as Exhibit 1 and attached to the Settlement
Agreement (trial Exhibit 3), shows the driveway as having a width of twenty-one feet rather than eighteen to twenty
feet. The slight discrepancy between the width indicated in the Settlement Agreement and that indicated in the site


                                                        2
     g) The Settlement Agreement also required Applicant to complete a survey of the
        Property, with the particular goal of discerning the location of the Property’s
        eastern boundary. That survey revealed that the eastern property boundary
        was approximately ten feet closer to Applicant’s apartment building than
        originally recognized by the parties.
     h) Ms. Anderson testified that, after the survey was completed, she was shown an
        iron pin approximately one foot from the northeastern corner of the six-bay
        garage. During her trial testimony, Ms. Anderson drew the approximate
        location of this iron pin on a copy of the prior site plan; the site plan with her
        iron pin marking was admitted at trial as Exhibit 3(a).
     i) As a consequence of the boundary line corrections that the survey prompted,
        the parties sought to revise some terms of their Settlement Agreement,
        specifically in relation to the width of the driveway. On June 11, 2010, the
        parties presented a proposed Order to the Court, with attached exhibits, which
        the parties represented reflected their revised settlement terms. The Court
        adopted and issued that Order on June 15, 2010. (A copy of the Court’s June
        15, 2010 Order was admitted as Exhibit 1 at the trial in this appeal.) Pursuant
        to paragraph 8 of that Order (Exhibit 1, at 4), the Court directed the following:

            Paving: the driveway and parking spaces will be paved as shown on
            Exhibit 1 [attached to the 2010 Order3]. Paving of the driveway shall
            be limited to the setback, that is, it shall not encroach into the five
            foot side and rear yard setbacks. There shall be curbing around the
            edges of the paved surfaces to prevent encroachment onto the grass
            areas, except for the eastern side of the driveway which shall be
            striped with yellow paint, or shall include another barrier acceptable
            to the City. By May 1, 2010, Owner shall reseed with grass the area
            along the driveway from the edge of the pavement to the property line.
            Owner shall maintain the grass areas of the property and reseed as
            necessary to maintain the grass areas.

3.       After the Court adopted and issued the June 15, 2010 Order, Applicant
contracted to have the paving completed.                  The paving contractor installed a paved
driveway, but it was not eleven feet wide, as directed by this Court’s June 15, 2010
Order.      Instead, the contractor installed a sixteen-foot-wide driveway, which
essentially brought the new driveway adjacent to the eastern property boundary and
within the entire five-foot side yard setback.
4.       No clear explanation was provided at trial for why Applicant installed a sixteen-
foot paved driveway instead of a driveway with the width agreed to by the parties and
ordered by the Court.            Applicant’s attorney offers a summary of Ms. Anderson’s


plan attached to the Agreement was not explained at trial. However, we do not understand this discrepancy to be
material to our analysis of the legal issues raised in the pending appeal.
3
  Exhibit 1 to the 2010 Order shows an eleven-foot-wide paved driveway running from Main Street to the rear of
the property.


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testimony in his Post-Trial Memorandum by stating that Applicant “simply
misapprehended the impact on the property of narrowing the driveway to 11 feet.”
(Applicant’s Post-Trial Memorandum 5, filed Dec. 29, 2011.).
5.    In any event, Applicant asserts that the unique circumstances and unique
physical layout of the Property, including the pre-existing apartment building and the
proximity to the eastern property boundary line, requires a paved driveway wider than
eleven feet. Ms. Anderson credibly testified about the historical use of the driveway,
the manner in which both the garage and Main Street curb cut encroach into the side
yard setback, and the practical reality that, if the driveway is only eleven feet wide,
tenants and visitors to the property will simply drive on the setback area.
6.    Applicant proposes to have the installed paved driveway reduced to fourteen
feet in width, thereby allowing for a two-foot-wide grass setback area to be maintained
between the pavement and the eastern property boundary line.
7.    The Court finds Ms. Anderson’s testimony as to the necessity for a wider
driveway credible.    Because the driveway is intended to serve six residential
apartments, some units having more than one bedroom, the driveway must serve
consistent traffic, including from tenants, fuel and other delivery vehicles, and trash
disposal haulers. Ms. Anderson convincingly provided one example of this necessity
with photographs of the trash hauler’s truck barely fitting between the apartment
building and the illustrated eleven-foot edge of the driveway. The images show that
the truck had to come within inches of the side of the apartment building in order to
stay within the eleven-foot demarcation and that the truck may not have been able to
pass the steps that extend from the rear of the building into the driveway.
8.    The Court finds it difficult to accept the suggestion by the City’s witness that
Applicant could either contract with a trash hauler that has a smaller truck or use
smaller, individual trash receptacles. What will more likely occur, if Applicant were
required to reduce the paved driveway to eleven feet, is that tenants and visitors,
including trash haulers, will ignore the edge of the paved driveway and simply drive
onto the grass area within the five-foot side yard setback.
9.    If the paved driveway is limited to eleven feet, a vehicle cannot remain on the
pavement and still access the eastern-most bay in the garage located to the rear of the
property. The eleven-foot-wide pavement also will not align with the pre-existing curb
cut onto Main Street; a portion of the curb cut would line up with the grass setback



                                            4
area. This misalignment will serve as a visual cue encouraging vehicle drivers to travel
onto the unpaved, grass setback area where the prior gravel driveway once was.
10.      Sometime in 2011, Applicant sought a variance from the DRB for authority to
maintain a fourteen-foot-wide paved driveway on the Property. This proposal would
represent a seven-foot reduction from the width of the pre-existing driveway, although
it would also represent a three-foot increase in the width agreed upon by the parties
and ordered in the prior appeal (Docket No. 171-8-08 Vtec).                             Applicant proposes a
fourteen-foot-wide paved driveway that would encroach three feet into the five-foot
side yard setback.
11.      The DRB denied Applicant’s variance request, rendering adverse findings on
nearly all of the variance criteria.                See In re 316 Main Street Variance Request,
Findings of Fact (City of Burlington Dev. Review Bd. Apr. 6, 2011). Once the DRB
denied Applicant’s variance request, Applicant filed an appeal with this Court.

                                             Conclusions of Law
         The pending variance application presents three principal legal issues. There
is, of course, the issue faced by all variance requests: whether an applicant can fulfill
its burden of proving conformance with all five variance criteria. See 24 V.S.A. § 4469
and the City of Burlington Comprehensive Development Ordinance (Jan. 28, 2011)
§§12.1.1(a)–(f) (“the CDO”).4            Applicant also argues that it does not need to obtain
variance approval because its proposed project is merely a reduction in a pre-existing
non-conformity. The City, conversely, argues that the unique procedural history for
the development of this Property bars Applicant from seeking and obtaining variance
approval. We address the latter two issues before turning to the variance criteria.

I. Does Applicant Need Variance Approval?
         Applicant suggests that its application is more appropriately characterized as a
request to reduce a pre-existing non-conformity, rather than a variance application,
and, thus, that it does not need variance approval. Applicant bases its suggestion on
the fact that its current proposal will reduce the original twenty-one-foot-wide
driveway to fourteen feet, thereby reducing the non-conformity.
         However, the legal issue of reducing the non-conformity was already decided in
this Court’s prior proceedings. In its June 15, 2010 Order, when the Court approved

4
  Burlington’s CDO adds a sixth variance criterion: “The variance, if granted, will not result in either the extension
of a non-complying situation or allow the initiation of a nonconforming use of land.” CDO § 12.1.1(f).


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the parties’ revised Settlement Agreement in Docket No. 171-8-08 Vtec, this Court
required that the driveway be reduced from the pre-existing twenty-one feet to the
equivalent of eleven feet, thereby requiring the existing non-conformity to cease.
Section 4472 of Title 24 of the Vermont Statutes Annotated bars us from ignoring the
final determinations made in that prior proceeding. See 24 V.S.A. § 4472(d) (providing
that upon the failure of any party to appeal an adverse decision, all parties “shall be
bound by that decision or act . . . and shall not thereafter contest [it].”). We conclude
that the July 15, 2010 Order of this Court addressed the legal question Applicant
attempts   to   raise   now—the    question       of   whether   Applicant   may   construct
improvements that reduce a non-conformity existing prior to the July 15, 2010 Order
of this Court—and therefore conclude that the application before us concerns a
variance request, not a request to revisit that question.

II. Does the Parties’ Settlement Bar the Pending Variance Application?
       This Court’s June 15, 2010 Order, which reflected the parties’ revised
settlement terms, required that Applicant’s paved driveway not encroach into the five-
foot side and rear yard setbacks. (Exhibit 1, at 4). Thus, the 2010 Order effectively
required that Applicant install an eleven-foot paved driveway because paving anything
over eleven feet would result in the failure of Applicant to comply with the setback
requirements.    Applicant, however, installed a sixteen-foot paved driveway that
encroached into the entire five-foot side yard setback. Applicant now seeks a permit to
develop a fourteen-foot driveway, seeking variance approval to encroach three feet into
the five-foot side yard setback.
       The City asserts that the finality rule of 24 V.S.A. § 4472 bars any
consideration of the pending variance application.          Section 4472(d) provides that,
upon the failure of any party to appeal an adverse decision to either the appropriate
municipal panel or this Court, all parties “shall be bound by that decision or act . . .
and shall not thereafter contest [it].” 24 V.S.A. § 4472(d). Thus, the City essentially
argues that, because Applicant did not appeal this Court’s June 15, 2010 Order
requiring an eleven-foot driveway, that Order is now final and cannot be considered in
this appeal.
       By seeking to change the permitted driveway paving area from eleven feet to
fourteen feet, Applicant is essentially seeking to modify conditions found in this
Court’s June 15, 2010 Order. While unappealed zoning determinations may not be



                                              6
collaterally attacked, “this rule of finality is tempered by flexibility built into the
system.” In re Hildebrand, 2007 VT 5, ¶¶ 11–13, 181 Vt. 568 (mem.) (applying the
“flexibility vs. finality” balancing test in a municipal zoning proceeding); see also In re
Stowe Club Highlands, 166 Vt. 33 (1996) (establishing the “flexibility vs. finality”
balancing test and applying it to state land use Act 250 proceedings). The Vermont
Supreme Court has made clear that "the central question [in applying a ‘flexibility vs.
finality’ test] . . . is not whether to give effect to the original permit conditions, but
under what circumstances those permit conditions may be modified.”            Hildebrand,
2007 VT 5, ¶ 7 (quoting Stowe Club Highlands, 166 Vt. at 34).
       In Hildebrand, the Vermont Supreme Court adopted the Stowe Club Highlands
test to determine when modifications to permit conditions are appropriate in
municipal proceedings. See Hildebrand, 2007 VT 5, ¶ 13 (“Because the competing
interests in this case are so similar to those in Stowe Club Highlands, the
Environmental Court reasonably used the Act 250 standards in deciding this case.”).
Permit conditions may be modified when there are “(a) changes in factual or regulatory
circumstances beyond the control of a permittee; (b) changes in the construction or
operation of the permittee's project, not reasonably foreseeable at the time the permit
was issued; or (c) changes in technology." Id. ¶ 7 (quoting Stowe Club Highlands, 166
Vt. at 38).
       We conclude that changes in the functional operation of the Property’s driveway
encourage flexibility and allow us to consider Applicant’s variance request rather than
foreclosing that review by a strict adherence to finality. Specifically, we find credible
Applicant’s assertion that, in the course of the prior litigation, its principal, Ms.
Anderson, “simply misapprehended the impact on the property of narrowing the
driveway to 11 feet.”   (Applicant’s Post-Trial Memorandum 5, filed Dec. 29, 2011.)
There was evidence presented at trial, including in the form of the prior site plans,
showing how restricting the new driveway to eleven feet would make one of the garage
bays unusable if drivers were expected to remain on the pavement. The evidence also
indicates that delivery and trash haul trucks that regularly visit the property could not
safely access the rear of the property while remaining on an eleven-foot-wide driveway.
Thus, we conclude that the maintenance of an eleven-foot-wide driveway on this




                                            7
Property5 would result in drivers, including tenants and visitors, disregarding the
driveway’s limits and choosing to drive over the grass setback area instead of
remaining on the paved driveway.
         These implications of narrowing the driveway’s width were not revealed until
after Applicant installed the paved sixteen-foot driveway and the parties considered
the implications of narrowing it to an eleven-foot width. Thus, there was a change in
the operation of the Applicant’s proposed project that was not reasonably foreseeable
at the time the permit was issued. See Hildebrand, 2007 VT 5, ¶ 7 (quoting Stowe
Club Highlands, 166 Vt. at 38).                 That change in the driveway’s functional operation
encourages the flexibility that the Supreme Court discussed in Hildebrand for
municipal zoning proceedings. Although that flexibility does not justify an automatic
approval of Applicant’s variance request, it does allow this Court to review that
request. We therefore proceed with that variance analysis.

III. Variance Criteria
         We turn now to examining whether Applicant’s proposal meets the criteria for
variance approval.             Zoning provisions, including the establishment of setback
restrictions, are the embodiment of a community’s established plan for how
development should proceed within their municipality. See In re Tyler Self-Storage
Unit Permits, 2011 VT 66, ¶ 13. However, our Legislature has also recognized that
some flexibility must be allowed for reasonable development, even when a deviation
from established zoning requirements will occur. These deviations are referred to as
variances, and may only be allowed in very limited circumstances.                                   See 24 V.S.A
§ 4469; see also In re Maurice Mem'ls, 142 Vt. 532, 535 (1983) (stating that variances,
by their very nature, are individual exceptions to generally applicable rules of zoning,
the purpose of which "is to bring about the orderly physical development of the
community" (citing Vermont Brick & Block, Inc. v. Village of Essex Junction, 135 Vt.
481, 483 (1977))).


5
   The City provided credible evidence at trial that some permit-approved residential driveways are as narrow as
seven feet. Mr. Lerner credibly testified that he safely uses a narrow driveway at his single family residence and
follows a common practice of wheeling his trash containers to the curbside for pickup. However, the City offered
no evidence that a six-unit residential apartment building in Burlington uses such a narrow driveway, nor that
owners or occupants of a multi-unit residential apartment building wheel the standard metal trash dumpsters out
along a driveway for pickup. In fact, the Court is not aware of the ability to safely move or tip a metal dumpster,
similar to that used at the Property, except with the use of a trash truck similar to that shown in Applicant’s Exhibits
5(a)–(f).


                                                           8
         Some commentators have opined that the statutory criteria for variances are so
restrictive that, if rigidly adhered to, no variance should be granted. Zoning Variance
Administration in Vermont, 8 Vt.L.Rev. 371 (1983). But even this note commentator
concluded that because variance determinations are so reliant on varying facts, “[t]he
better approach is to permit local flexibility . . . .” Id. at 405. We complete our review
of the statutory variance criteria with that caution of flexibility in mind.
         As noted above, the applicable CDO provisions mirror the five variance criteria
from 24 V.S.A § 4469, with an added sixth criterion. We therefore track our variance
review to the CDO provisions. For a variance request to be granted, the CDO requires
that an applicant show, in pertinent part, that (a) there are unique physical
circumstances or conditions existing on the subject property that cause unnecessary
hardship and are not those generally created by the provisions in the CDO; (b)
because of such physical circumstances or conditions, there is “no possibility that the
property can be developed in strict conformity” with the CDO and a variance is
therefore necessary “to enable the reasonable use of the property”; (c) the applicant did
not create the unnecessary hardship; (d) the variance will not alter “the essential
character of the neighborhood . . . substantially or permanently impair the appropriate
use or development of adjacent property, reduce access to renewable energy resources,
nor be detrimental to the public welfare”; (e) the variance will represent the minimum
and least deviation possible from the CDO; and (f) the variance will “not result in
either the extension of a non-complying situation or allow the initiation of a
nonconforming use of land.”       CDO, § 12.1.1(a)-(f).    For a variance application to
succeed, all six criteria must be met; an adverse conclusion under just one of the
variance criterion must result in a denial of the variance request. See In re Mutschler,
Canning and Wilkins, 2006 VT 43, ¶ 9, 180 Vt. 501.
         With this heightened burden in mind, we review the applicable CDO provisions
in light of the facts revealed at trial. For the reasons detailed below, we ultimately
conclude that Applicant has made a sufficient showing to satisfy all variance criteria.
We therefore GRANT the requested variance, with applicable conditions that are listed
below.
         a. Unique physical circumstances or conditions
         The physical circumstances and conditions that exist concerning Applicant’s
eastern property boundary—the narrowness of the space between the pre-existing



                                             9
apartment building and the eastern property boundary line that only became evident
after the paving was installed—provide a unique necessity for the requested variance.
The narrowness of space for a driveway is unique to Applicant’s property in that no
evidence was presented at trial that other neighborhood lots share this issue: an
inability to include a safe driveway serving buildings pre-dating the City’s setback
regulations while respecting those setback limits. The setback regulations are not the
culprit here, but rather the insufficiency of an eleven-foot driveway where a twenty-
one-foot-wide driveway once existed and the common misunderstanding by the parties
and abutting neighbors of the eastern property boundary location.
      To now restrict the paved driveway to the limits of the re-aligned side yard
setback will create a curious alignment among the driveway, the garage, and the Main
Street curb cut. As a practical matter, tenants and visitors are likely to ignore the
limits of an eleven-foot-wide paved driveway and thus prevent the maintenance of the
setback area. This practice will degrade the definition between paved driveway and
grass setback.
      For these reasons, we therefore conclude that Applicant has satisfied the
variance criterion in CDO § 12.1.1(a).
      b. Possibility that Property can be developed in conformity with setbacks
      For similar reasons, we conclude that, even though the parties previously
agreed, in their revised Settlement Agreement, to a paved driveway that could be
limited to the setback limits, a driveway of only eleven feet in width will be impractical
for servicing the six-unit residential apartment building. This inability to conform to
the side yard setback is unfortunate, but if Applicant is allowed the requested three-
foot encroachment into the side yard setback and required to maintain a demarcation
between the driveway and the grass setback area, a reasonable use of the property can
be maintained. We therefore conclude that Applicant has satisfied the variance
criterion in CDO § 12.1.1(b).
      c. Hardship not created by Applicant
      The historical use of this Property evidences that the narrowness of space
between the pre-existing apartment building and the actual, versus perceived,
property boundary line predates Applicant’s title to this Property by years, if not
decades. The curb cut, garage, and established use of the property have contributed
to a misunderstanding of where the property boundary line lies. The neighbors to the



                                           10
east of the Property were not identified to the Court at trial, did not appear in these
proceedings, and appear to not be concerned with this matter, even when the pre-
existing gravel driveway may have intruded onto their property. For these reasons, we
conclude that Applicant has satisfied the variance criterion in CDO § 12.1.1(c).
      d. Variance will not alter the essential character of the neighborhood
      The driveway improvements Applicant proposes, even though representing a
side yard setback encroachment, will not alter the essential character of this
neighborhood for two principal reasons. First, the gravel driveway that had existed at
this property for years, perhaps decades, was much wider and less defined. Second,
the proposed driveway will respect a portion of the side yard setback and provide
greater visual alignment among the driveway, the garage, and the Main Street curb cut
than an eleven-foot driveway that respects the actual location of the eastern property
boundary. The proposed driveway, once installed and with maintenance conditions
imposed, will provide an improved symmetry to the neighborhood along this section of
the City’s Main Street. We therefore conclude that Applicant has satisfied the variance
criterion in CDO § 12.1.1(d).
      e. Variance represents the minimum and least deviation possible
      The proposed fourteen-foot driveway will encroach into the setback by three
feet, a modest amount in light of the encroachment by the driveway that historically
existed on the property.    It will provide definition to both the driveway and the
remaining setback. Most importantly, the proposed driveway will afford the minimum
width necessary for tenants and visitors, including delivery trucks and trash haulers,
to safely enter and exit the property while staying within the paved width of the
driveway. We therefore conclude that Applicant has satisfied the variance criterion in
CDO § 12.1.1(e).
      f. Variance will not result in an extension or initiation of a non-
         conformity
      The proposed driveway will not extend a prior, or initiate a new, non-conformity
beyond non-compliance with the setback limit for which the variance is sought.
Rather, the improvements will provide needed definition to the limits of the driveway
and grass setback area that are currently lacking and would not exist with the
installation of an eleven-foot driveway.    The proposed driveway will reinforce the
neighborhood characteristics that the zoning regulations seek to preserve.         We




                                           11
therefore conclude that Applicant has satisfied the variance criterion in CDO
§ 12.1.1(f).
                                      Conclusion
       For the reasons discussed above, we conclude that Applicant has satisfied all
criteria from CDO § 12.1.1(a)–(f) and is therefore entitled to its requested variance.
Our granting of this variance is conditioned upon the following:
       1. Applicant shall cause a revised plan for the Property to be prepared and filed
          with the City of Burlington Zoning Administrator, delineating the eastern
          property boundary line pursuant to a survey prepared by a licensed
          surveyor and showing the driveway encroaching into the eastern side yard
          setback by no more than three feet in any one location.
       2. Applicant shall cause the pavement on the existing driveway to be cut so
          that no portion of the driveway encroaches into the eastern side yard
          setback by more than three feet in any one location.
       3. Applicant, and its successors and assigns, shall install and maintain
          curbing around the edges of all the paved surfaces to prevent encroachment
          onto the grass areas, except for the eastern side of the driveway which shall
          be striped with yellow paint, or shall include another barrier acceptable to
          the City of Burlington Zoning Administrator if the striping proves not to
          convince tenants and visitors to the Property to maintain their vehicles only
          on the paved areas. Applicant shall reseed with grass the area along the
          driveway from the edge of the pavement to the eastern property line.
          Applicant, and its successors and assigns, shall maintain the grass areas of
          the property and reseed as necessary to maintain the grass areas.
       4. All other provisions of this Court’s Order of June 15, 2010, as well as prior
          determinations by the DRB relating to this Property, not superseded by this
          Decision and the accompanying Judgment Order, shall remain in full force
          and effect.
       This matter is remanded to the City of Burlington Zoning Administrator solely
to complete the ministerial act of issuing a zoning permit that incorporates the terms
of this Decision.
       A Judgment Order accompanies this Decision.         This completes the current
proceedings before this Court concerning the pending application.

       Done at Newfane, Vermont, this 27th day of June 2012.



                                        ____________________________________________
                                         Thomas S. Durkin, Environmental Judge




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