114 College St. Permit Amendment ( 2007 )

STATE OF VERMONT
ENVIRONMENTAL COURT
}
114 College Street Permit Amendment } Docket No. 227-09-06 Vtec
(re additional 20-space parking waiver) }
(Appeal of McGrew, et al.) }
}
Decision and Order
Appellants Barbara McGrew, Daniel Fivel, Jowall Limited Partnership, and Leonora,
LLC appealed from a decision of the Burlington Development Review Board regarding a
mixed residential and commercial project proposed for property located at 114 College
Street in Burlington. Appellants McGrew, Fivel, and Jowall Limited Partnership are
represented by Norman C. Williams, Esq. and Ross A. Feldmann, Esq.; Appellant Leonora,
LLC is represented by Robert C. Roesler, Esq.; Appellee-Applicant Investors Corporation
of Vermont is represented by Christina Jensen, Esq.; and the City of Burlington is
represented by Kimberlee J. Sturtevant, Esq.
Appellee-Applicant’s Motion to Dismiss Leonora, LLC as a Party
The Court ruled in Docket No. 199-10-04 Vtec that only Leonora, Inc. had party
status regarding issues affecting on-site circulation and access to the adjacent street
network, and that Appellants McGrew, Fivel, and Jowall Limited Partnership have party
status only on issues relating to the potential height of (and rooftop structures on) the
project building, and therefore its visibility potentially affecting their property at the corner
1
of St. Paul Street and Bank Street.1 In a decision issued on April 20, 2007 in the present
appeal, the Court denied Appellee-Applicant’s motion to dismiss the appeal, stating that
“[e]ven if Appellants McGrew, Fivel, and Jowall Limited Partnership were dismissed2 as
to the same issues as in Docket No. 199-10-04 Vtec, Appellee-Applicant’s motion to dismiss
the appeal for lack of standing would have to be denied on the basis that Appellant
Leonora LLC has standing to raise those issues.” Appellee-Applicant has now moved to
dismiss Appellant Leonora LLC, claiming that it lacks standing to proceed with this appeal.
Contrary to Appellants’ argument, a party’s standing or party status may be raised
at any time, if circumstances change so as to raise an issue of whether a party has become
divested of standing, as a party’s standing to proceed with the case may be jurisdictional.
See In re Appeal of Garen, 174 Vt. 151, 153–54 (2002); Town of Washington v. Emmons,
2007 VT 22, ¶6. For example, a party may lose standing by selling property or by moving
away from the neighborhood of the project. Similarly, a group party of ten citizens (having
standing under 24 V.S.A. §4465(b)(4)) may lose standing if one of its members withdraws
from the appeal. The issue of whether Leonora, LLC, lacks standing to continue with this
appeal is therefore properly before the Court.
Appellee-Applicant has not shown any reason to divest Leonora LLC of its standing.
Beyond the issue of height as it may be affected by the number of residential units in the
building, Leonora LLC has an interest in the parking regime for all the parking in the
1
Contrary to the characterization of them in their memorandum as adjoining
property owners (across St. Paul Street), their building is not located directly across St. Paul
Street from the project property. It is instead at the northerly end of the block, across from
unrelated property at the corner of St. Paul and Bank Streets. In addition, a church is
located on the westerly side of St. Paul Street between the project property and that
unrelated building at the corner of Bank Street.
2
Those Appellants have not been dismissed as to those issues to date in the present
appeal.
2
buildings on the neighboring merged property, including as to whether existing spaces that
are now informally available to the public will become unavailable for public use, as well
as to preserve the availability of the spaces to which it is entitled under its predecessor’s
1984 agreement. It also has an interest in the adequacy of circulation into and out of the
building from the adjoining street network, even though the alternate spaces under
consideration in the new waiver proposal have access from College Street rather than
exiting directly onto Pine Street.
Accordingly, Appellee-Applicant’s Motion to Dismiss Leonora LLC is DENIED.
Motion to Exclude Expert Testimony
At trial, Appellants renewed their motion to exclude the evidence of Mr.
Chamberlin, whose testimony taken subject to the later briefing of the motion.
That motion is DENIED, as Mr. Chamberlin possesses sufficient expert qualifications
to testify as an expert on parking and traffic management issues, as his testimony meets the
standards of V.R.E. 702, despite the hearsay nature of some of the information on which
he based his testimony. V.R.E. 703. However, in reaching its decision on the merits of the
present appeal, we must note that the Court did not find persuasive Mr. Chamberlin’s
testimony relating to the characteristics of commercial parking garages or garages outside
Vermont, especially those in Boston and in San Diego, because the out-of-state evidence
was insufficiently comparable to the subject proposal. In particular, the parking required
for the proposed project is to serve a multi-unit residential building in the same complex
as the parking facility. Unlike the Boston facilities it is not a free-standing commercial
parking garage in which spaces are leased independently of the parking requirements for
the residential units. In addition, unlike the San Diego examples, the parking necessary to
serve the proposed project must function during snow conditions when there may be an
overnight ban on on-street parking on certain streets or in certain areas.
3
Motion for Judgment based on Issue Preclusion and/or Res Judicata
At trial, Appellants moved for judgment as a matter of law “based on issue
preclusion and/or res judicata;” the trial proceeded subject to the later briefing of the
motion.
The single remaining question on the merits of the present appeal is whether
Appellee-Applicant is entitled to a waiver of twenty additional parking spaces, beyond the
waiver of thirty spaces approved in Docket No. 199-10-04 Vtec. In Docket No. 199-10-04
Vtec, now on appeal to the Supreme Court, this Court had approved almost all aspects of
the proposed project,3 but determined that the proposed parking arrangements only
supported a parking waiver for thirty of the fifty parking spaces otherwise required under
the ordinance.
The Court therefore conditioned its approval of the remainder of the project on
Appellee-Applicant’s obtaining additional approvals from the DRB, and granted a partial
remand to the DRB for that purpose. The Court ordered in pertinent part as follows:
As a waiver is only granted [by the Court decision] of thirty of the required
spaces . . . , Appellee-Applicant shall obtain approval from the DRB either of
additional waivers, or of revised parking plans showing additional parking
spaces, either within the proposed building or as alterations to any other
structures on the merged property, sufficient to meet the parking
requirements discussed in this decision.
In re Appeal of McGrew, Docket No. 199-10-04 Vtec, slip op. at 19 (Vt. Envtl. Ct., Mar. 3,
2006). In its proceedings on remand, the DRB again granted a parking waiver for the
additional twenty parking spaces, and Appellants have again appealed in the present
3
The project consists of a ten-story mixed-use building, including a bank automatic
teller machine accessed by vehicles, two commercial offices on the ground floor, fifty
residential units, twelve of which are proposed for low- and moderate-income housing, and
and associated parking located within the building beginning on the ground floor and
extending two floors below the ground floor.
4
appeal.
In its April 20, 2007 decision on motions in the present appeal, the Court applied the
analysis from In re Appeal of Armitage, 2006 VT 113 (which had been decided by the
Vermont Supreme Court after this Court’s decision in Docket No. 199-10-04 Vtec). The
Court ruled that:
Appellee-Applicant may present evidence on the changes it now proposes
in the application to address the insufficiency of twenty parking spaces as
discussed in the prior decision, but it may not present evidence that it could
have presented but failed to present when the matter was last before the
Court. For example, the Court found in the prior decision that Appellee-
Applicant had “demonstrated the availability of alternate transportation
modes (bus and bicycle), but presented no evidence about the projected use
of those modes by the projected residents of the building.” Appellee-
Applicant may not now present such evidence.
On the other hand, Appellee-Applicant may present evidence of, and
may request parking waivers based on, the new changes in the proposal, that
is, the provision of spaces elsewhere on the property, the changed “parking
management practices,” or the specific newly-proposed covenant or deed
restrictions.
In re: 114 College St. Permit Amendment, Docket No. 227-9-06 Vtec, slip op. at 4 (Vt. Envtl.
Ct., Apr. 20, 2007).
In the trial on the merits, Appellee-Applicant presented a revised application
seeking to address the reasons for which the full parking waiver was denied in the earlier
case. Nothing in Armitage requires that such allowable revisions to an application must
constitute physical changes to the structure or to the physical property involved in the
project.
In the present case, Appellee-Applicant does not propose to make any4 physical
changes in the plans for the proposed building to address the parking waiver issues.
4
Certain physical changes that addressed the other issues remanded in the 2006
decision are not at issue in the present appeal.
5
Rather, Appellee-Applicant now proposes the following alterations in the proposal for the
project, arguing that they justify the additional waiver of twenty parking spaces for which
it has applied.
As to the parking requirements for 114 College Street, Appellee-Applicant now
proposes the following elements that were not proposed in connection with the 2004
application:
(1) to provide language in the declaration and deeds for each residential
units restricting each units to the right to lease one parking space within the
building,
(2) to provide twenty additional fee-based leased parking spaces to the
residents at certain times in another existing parking area within the merged
property, and
(3) to provide for “parking management practices” (an unwritten parking
management plan), including registration of vehicles with Appellee-Applicant, and
the potential for towing of vehicles, to ensure that these shared use spaces are
available for commercial parking during regular business hours.
Appellants argue that the Court should not consider this proposal because it could
have been developed and submitted in the initial application. However, this argument
suggests the absurd result that applicants have only one chance to submit an approvable
application; that is, that a revised successive application could never be allowed after an
application was denied. This interpretation would render surplusage of the statutory
provision allowing DRBs to regulate successive applications. 24 V.S.A. § 4470(a). Statutes
must instead be construed so that no language is surplusage, In re Dunnett, 172 Vt. 196, 199
(2001), and so that the construction does not produce an absurd result. See, e.g., Willard
v. Parsons Hill Partnership, 2005 VT 69, ¶21, 178 Vt. 300, 308 (2005); In re: Wong Notices
of Violation, Docket Nos. 169-7-06 Vtec and 293-12-06 Vtec, slip op. at 2 (Vt. Envtl. Ct., Mar.
6
12, 2007).
Rather, nothing in Armitage or in the statute prevents an applicant from submitting
a new revised proposal aimed at dealing with a reason an application was denied in whole
or in part, even if, in hindsight, it could have developed that new proposal in the earlier
proceeding if it had known that its original proposal would be denied. Armitage does not
require applicants to have that degree of prescience as to whether their original or
preferred proposals will be approved by the DRB or by this Court. Rather, Armitage only
precludes submitting new evidence on the original proposal, if that evidence could have
been submitted in the original proceeding; it does not preclude submitting a new, revised
proposal addressing the problems for which the original proposal was denied.
Even under the limitations of Armitage, Appellee-Applicant’s present request for
an additional twenty-space parking waiver may therefore be considered by the Court, as
the new proposals represent a revised application seeking to address the reasons for which
twenty spaces (of the full fifty-space parking waiver requested in the earlier case) were
denied. Accordingly, Appellants’ motion for judgment as a matter of law based on issue
preclusion and/or res judicata is DENIED.
Merits of Remaining Issue: Twenty-Space Parking Waiver
The single remaining question on appeal is Appellants’ Question 7: whether
Appellee-Applicant should be granted a waiver of twenty additional parking spaces.
In addition to the parking spaces proposed in connection with the new construction,
the merged property contains a two-level existing parking structure providing 102 spaces,
of which 51 on the lower level are accessible from an entrance from 126 College Street, and
the remainder on the upper level are accessible from 95 St. Paul Street. Appellee-Applicant
manages those parking spaces; and owns and manages a total of over 450 parking spaces
in downtown Burlington, including those within a few blocks at 30-40-60 Main Street. It
7
has experience operating managed parking areas in Burlington since 1984. Appellee-
Applicant issues so-called wands or cards to its users, and requires for leased parking that
the users register with Appellee-Applicant the vehicles that will be using the allocated
spaces. Appellee-Applicant operates a gate system governed by computer in its central
office, with software capable of tracking the specific users entering and exiting the gates of
its parking structures. The wands can be programmed to operate the gates only during the
hours specified in the specific lease. This system enables Appellee-Applicant to enforce the
time limitations of shared or dual use leased spaces with unique use times. In addition,
some of the spaces under the control of Appellee-Applicant in buildings or structures other
than the subject property may be available from time to time to be leased commercially
(including potentially to residents of 114 College Street).
Approximately 3,500 public parking spaces are available on the street, in public
surface lots and garages, and as publicly-available spaces in other structures in the
downtown Burlington area within a thousand-foot radius of the project property (an
approximately four-minute walk). The City of Burlington enforces a nighttime parking ban
on parking on city streets and surface lots during snow emergencies and as necessary to
facilitate snow plowing.
In the present proposal Appellee-Applicant seeks approval of a waiver for twenty
additional parking spaces for the residential uses in 114 College Street, based on proposals
for restrictions in the deeds to those units and/or in the owners’ association covenants, in
conjunction with the shared or dual use of at least twenty fee-based parking spaces in the
lower level of the parking facility in the existing building on the merged property, that is,
in the 51 spaces accessible from 126 College Street. Appellee-Applicant proposes to
manage those spaces so that they are allocated to the residential uses at 114 College Street
during evenings, weekends, and holidays, that is, except during the hours of 7:00 a.m. to
8
5:30 p.m.5 on weekdays.
Although the merged property contains existing office space and two restaurants,
for which the current zoning ordinance would require as much as 232 parking spaces if it
were new construction (and if no waivers were applicable to it), none of the permits
applicable to the remainder of the property require Appellee-Applicant to provide any
parking, other than twenty spaces under the L’Amanté restaurant’s permit in the 126
College Street building during the restaurant’s evening hours. Within the 51-space lower
level parking in the existing parking structure at 126 College Street, Appellee-Applicant
proposes to provide the twenty spaces for the L’Amanté restaurant’s evening use, as well
as the twenty additional spaces for the proposed 114 College Street residential use.
Appellee-Applicant proposes to provide language in the declaration or in the deeds
for the residential units restricting each residential unit to a right to only one fee-based
leased parking space6 within the building, and to provide for twenty spaces of additional
fee-based leased parking to the residents for overnight, weekend and holiday use in the
lower-level 126 College Street parking area, and to manage its parking, including
registration of vehicles with Appellee-Applicant and the potential for towing of vehicles,7
to ensure that these shared use spaces are available to their respective users during the
times provided in their respective leases.
5
The commercial tenants’ leases provide the spaces from 8:00 a.m. to 5:00 p.m.; the
one-hour or half-hour difference appears to be proposed to allow time for Appellee-
Applicant’s employees to check that the spaces have been vacated by the other user, and
to tow or move the vehicles if necessary.
6
Appellee-Applicant may, of course, provide for the lease or sublease of any such
spaces to other residents in the event that a unit resident has no vehicle.
7
As Appellee-Applicant now requires for the lessees of its commercial spaces, as
shown in the sample lease attached to the Surprenant affidavit.
9
Section 10.1.19 allows the waiver of the otherwise-applicable requirements for
parking upon a demonstration that the requirements are unnecessarily stringent for
reasons of, among other reasons, unique use times or shared or dual use. Appellee-
Applicant has demonstrated that the additional waiver of twenty parking spaces within the
114 College Street building is warranted by reason of shared or dual use during unique use
times. Residents with more than one vehicle who leave the area during daytime work
hours will most easily be able to avail themselves of these spaces; residents who do not
leave the area during daytime work hours will have to move their vehicles or make other
arrangements for parking in the ample available daytime spaces during the daytime work
hours.
The waiver based on the current proposal to make at least twenty additional parking
spaces available in 126 College Street for lease by the residents of 114 College Street
overnight on weekdays and on weekends and holidays is hereby approved, subject to the
conditions stated below, to assure that the shared or dual use proposal will function in
practice and will not conflict with the availability of the public spaces in 114 College Street.
First, the limitations must be stated in the deeds, whether directly or by reference
to the requirements of the building’s current zoning approval, as well as in the declaration
of covenants for the building’s owners’ association, because such covenants can be changed
with a sufficient vote of the association in the future. These limitations are that each unit
is entitled to lease only one parking space within 114 College Street, that residents are
prohibited from parking any vehicles in the public spaces within 114 College Street, and
that each unit occupant must have arrangements for off-street parking of any additional
vehicle, at least during those non-workday hours (that is, other than from 7:00 a.m. to 5:30
p.m. Monday through Friday) when on-street parking is prohibited by the City.
Second, Appellee-Applicant’s management of the parking within the 114 College
Street garage must assure that the residents do not park any of their vehicles in the spaces
10
meant to be available to the public. In order for Appellee-Applicant to be able to manage
the parking in 114 College Street as well as in 126 College Street, the 114 College Street
occupants will have to register all their vehicles with Appellee-Applicant, regardless of
whether their other parking arrangements for those vehicles are in one of Appellee-
Applicant’s facilities.
Third, Appellee-Applicant must make available twenty spaces in 126 College Street
for lease by residents of 114 College Street during non-workday hours year-round (that is,
other than from 7:00 a.m. to 5:30 p.m. Monday through Friday), and must assure that the
126 College Street parking is managed so as to assure the availability of those leased spaces
without conflict with the spaces allocated to the L’Amanté restaurant’s permit.
Accordingly, Appellee-Applicant’s application for an additional waiver of 20
parking spaces for the project is GRANTED, subject to the following conditions:
1. Appellee-Applicant shall place the following restrictions in the unit deeds and
in the covenants of the owners’ association, either directly or by reference to the zoning
approval for the building, and shall, in its management of the parking for the combined
property, enforce the following provisions:
(a) each unit is entitled to lease only one parking space within the 114 College Street
building;
(b) all vehicles in the possession of the unit occupants shall be registered with
Appellee-Applicant;
(c) residents are prohibited from parking any vehicles in the public spaces within
114 College Street;
(d) residents shall make and be able to demonstrate arrangements for off-street
parking of any additional vehicle, at least during those non-workday hours (that is,
other than from 7:00 a.m. to 5:30 p.m. Monday through Friday) when on-street
11
parking is prohibited by the City.
2. Appellee-Applicant shall manage the parking within the 114 College Street
garage, to assure that the residents do not park any of their vehicles in the spaces meant
to be available to the public.
3. Appellee-Applicant shall make available twenty spaces in 126 College Street for
year-round lease by residents of 114 College Street (during hours other than from 7:00 a.m.
to 5:30 p.m. Monday through Friday), and shall manage the 126 College Street parking to
assure the availability of those leased spaces without conflict with the spaces allocated to
the L’Amanté restaurant’s permit.
4. As of the date of the Certificate of Occupancy for 114 College Street, Appellee-
Applicant shall maintain in its offices and provide to the residents of 114 College Street a
written parking management plan for the vehicles in possession of the residents of 114
College Street, stating Appellee-Applicant’s then-current parking management plan with
reference to implementing the conditions of this approval, and shall provide it to the
zoning authorities of the City upon request.
Done at Berlin, Vermont, this 14th day of December, 2007.
_________________________________________________
Merideth Wright
Environmental Judge
12