Century Partners, LP PUD ( 2007 )


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  •                                         STATE OF VERMONT
    ENVIRONMENTAL COURT
    }
    Century Partners, LP PUD                             }                Docket No. 210-9-06 Vtec
    (Appeal of Century Partners, LP)                     }
    }
    Decision on Motion for Summary Judgment
    Applicant Century Partners, LP (“Century”) appealed from the Decision of the
    Development Review Board of the City of South Burlington (“DRB”) dated August 24, 2006,
    approving with conditions Century’s application (Application #SD-06-61) for final plat approval
    to amend a previously-approved Planned Unit Development (“PUD”) by adding 532 square feet
    of interior mezzanine space to a building located at 4 Market Street in South Burlington.
    Century is represented in this proceeding by Mark L. Sperry, Esq.; the City is represented by
    Amanda S. E. Lafferty, Esq.
    Now pending before the Court is Century’s motion for summary judgment, seeking a
    determination that Conditions 2(a) and 4 of the August 24, 2006 DRB Decision, relating to
    Century’s use of “existing service areas” for the placement of dumpsters, are invalid and should
    be stricken as a matter of law.
    Factual Background
    Based upon the parties’ representations,1 the Court concludes that the following facts are
    material to the legal issues raised in this appeal and are undisputed, unless otherwise noted
    below:
    1.       Century applied in July of 2006 for approval to amend a previously permitted PUD2 so as
    to allow for a previously constructed,3 532 square-foot mezzanine, located wholly within one of
    the four buildings on the previously permitted PUD. Century proposes no other renovations or
    improvements for the three other buildings or any exterior area on the PUD in its pending
    amendment application.
    1 The City did not file its own Statement of Material Facts, but did file an opposition to four of Century’s stated
    facts, none of which the Court finds material to the legal issues raised in this appeal.
    2
    The property, consisting of four buildings and a two-level parking deck, was first permitted as a PUD in 1995.
    3  There is a suggestion in the record that this interior mezzanine was installed by one of Century’s Building B
    tenants as long ago as 1999. The exact date of construction is not material to our analysis.
    1
    2.     The building in which the interior mezzanine is located is labeled “Building B” on the
    Amended Site/PUD Plan that accompanied Century’s amendment application. This building is
    also referred to in some of Century’s filings as being located at 4 Market Street, although that
    address is not noted on the Amended Site/PUD Plan.
    3.     The three other buildings on Century’s Amended Site/PUD Plan are identified as the
    Eastern Mountain Sports (“EMS”) Building, which also contains offices and is located in the
    northwest corner of the PUD parcel; “Building A,” located in the middle of the parcel along its
    western boundary; and “Building C,” located in the southern corner of the parcel. As noted
    above, Century plans no revisions in its current amendment application to these three other
    buildings or the parcel surrounding them.
    4.     The EMS Building has four rectangular exterior “existing service areas,” two on its
    northerly side and two on its easterly side. The EMS Building and these four service areas are
    located in the corner farthest from the building in which the applied-for interior mezzanine is
    located.
    5.     The four existing service areas on the northerly and easterly sides of the EMS Building
    have been used as locations for unscreened dumpsters from the time the building was constructed
    in 1973 until the present.
    6.     The City of South Burlington Planning Commission (“Planning Commission”) issued site
    plan approvals and amendments thereto for the EMS building in 1973, 1992, and 1993. None of
    those approvals addressed or required screening of the existing service areas.
    7.     The property was approved as a PUD in 1995. Between 1995 and 1998, the Planning
    Commission issued four decisions approving PUD plans and amendments thereto. Each of the
    four approved plans showed the existing service areas labeled as such. None the Planning
    Commission approvals contained conditions requiring screening of the existing service areas, or
    screening of dumpsters within the existing service areas.
    8.     In 2005, the DRB approved Century’s application for final plat approval to amend the
    PUD. The approved plat shows the existing service areas labeled as such. The 2005 DRB
    decision contained no conditions requiring screening of the existing service areas, or screening of
    dumpsters within the existing service areas.
    9.     No appeal was taken from the Planning Commission or DRB decisions issued between
    1995 and 2005.
    2
    10.    At no time has the City issued a notice of violation for the placement of unscreened
    dumpsters in the existing service areas.
    11.    The interior mezzanine space approval sought by Century in its PUD amendment
    application filed in July of 2006 would have no effect on visibility of the existing service areas or
    the dumpsters located in the existing service areas.
    12.    The appealed-from decision of the DRB dated August 24, 2006, approved Century’s
    application with conditions, including Condition 2(a) (“The plan shall be revised to show all
    ‘existing service areas’ screened per Section 14.07(C) of the South Burlington Land
    Development Regulations as if they were dumpsters”) and Condition 4 (“The applicant shall
    provide the Administrative Officer with a written explanation of the term ‘existing service areas’
    which is noted on the plan prior to permit issuance”).
    13.    Century timely filed its appeal from the August 24, 2006 DRB decision, seeking to have
    Conditions 2(a) and 4 removed from its PUD amendment approval. Century does not challenge
    any other condition imposed by the DRB.
    Discussion
    The pending amendment application and appeal return this Court to a legal issue
    previously examined by Vermont courts. The PUD at issue in this appeal is co-owned by
    Century and Tekram Partners, LP. Tekram Partners is listed as a co-applicant on the application
    underlying the appealed-from decision here. In a previous appeal to this Court, later appealed to
    the Vermont Supreme Court, issues relating to “existing service areas” on the Century PUD
    parcel were also addressed. In In re Tekram Partners, 
    2005 VT 92
    , the Vermont Supreme Court,
    addressing the placement of a dumpster in a service area on the parcel, noted that “Tekram
    Partners sought and obtained approval to locate dumpsters in the designated service areas and
    has used the service areas exclusively as locations for dumpsters. That the designated service
    areas are the exclusive locations for dumpsters should not be in question in light of Tekram
    partners’ submission of the PUD site plan indicating the service areas, and the City’s subsequent
    approval of their locations.” Id. at ¶ 18.
    The “designated service areas” discussed in Tekram Partners are the same existing
    service areas at issue here. The Tekram Partners Court focused much of its analysis on the
    finality of unappealed municipal land use determinations articulated in 24 V.S.A. § 4472. In
    doing so, the Tekram Partners Court noted that
    3
    the certificates [of occupancy] issued for the Four Market Street Building were
    the final and only certificates required under the City’s approval process;
    therefore, they had the effect of approving the disputed design features.
    ....
    In the absence of evidence that the City had a separate process for granting
    certificates to other aspects of the project beyond the retail space, it is illogical to
    conclude that the certificates did not affect all aspects of the project on which use
    of the retail space depended.
    Id. at ¶¶ 9, 11.
    The City, in its response to Century’s pending summary judgment motion, asserts that
    Century “seeks approval of a Planned Unit Development, which requires site plan approval.” To
    the extent that this statement is intended to recite the procedural posture of this application, it is
    somewhat misleading, since the pending application does not seek initial PUD approval, but
    merely an amendment to allow for a mezzanine wholly inside a building not associated with the
    existing service areas referenced in Conditions 2(a) and 4. Century first received approval for
    the PUD in 1995, and is now seeking only an amendment to that previously-approved PUD to
    allow for the 532 square-foot interior mezzanine in the building farthest from the existing service
    areas. We cannot discern from the facts presented here how the interior mezzanine in Building B
    has an impact on or is of any relevance to the questioned service areas. The City appears to
    assert that when an application to amend a previously-approved PUD is filed, the Planning
    Commission is authorized to impose any conditions on its approval, even conditions having no
    discernable connection with the changes contemplated in the requested amendment. The City
    makes no citation to a provision in its Regulations, the enabling laws of Title 24, Chapter 117, or
    caselaw precedent for this suggestion. We decline to adopt the City’s suggestion and conclude
    that it is improper to impose conditions, in the context of the pending amendment application,
    connected to the EMS Building service areas.
    The South Burlington Land Development Regulations in effect at the time of the
    application underlying this appeal (effective June 19, 2006) specifically exclude from site plan
    review “[r]enovations that are one hundred percent (100%) internal to an existing building or
    structure”. Regulations § 14.03(B)(5). The mezzanine space for which Century seeks approval
    is an entirely internal renovation. Thus, the City’s own Regulations exclude a PUD amendment
    application such as is proposed here from site plan review. Since the Regulations do not require
    4
    site plan review for this amendment application, it would be improper to place new conditions
    upon the previously approved site plan that have no relation to the pending application.
    As the visual appearance of the existing service areas has no relevance to the approval of
    the requested interior mezzanine, and as the South Burlington Land Development Regulations
    specifically exempt interior renovations from site plan review, we must grant Century’s motion
    to invalidate4 Conditions 2(a) and 4 of the August 24, 2006 DRB Decision.                             Given our
    conclusion here, we do not reach Century’s argument that the screening sought by the City
    would be impractical because it would protrude into and block access through the narrow lanes
    to the east and north of the Eastern Mountain Sports building. Nor do we reach the federal and
    state constitutional questions presented by Century’s Question 9.
    Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
    Century’s motion for summary judgment is GRANTED. Conditions 2(a) and 4 are hereby
    removed from the August 24, 2006 DRB approval of Century’s PUD amendment application.
    Given that Century raised no other challenge, this appeal is now concluded. A Judgment Order
    accompanies this Decision.
    Done at Newfane, Vermont this 10th day of May, 2007.
    _______________________________________
    Thomas S. Durkin, Environmental Judge
    4 Given that this is a de novo proceeding, we use the term “invalidate” loosely. The more appropriate (and more
    wordy) manner in which to phrase our determination here is that the South Burlington Regulations and appropriate
    legal precedent preclude us, as a matter of law, from imposing conditions similar to Conditions 2(a) and 4 from the
    August 24, 2006 DRB Decision in this specific PUD amendment application proceeding.
    5
    

Document Info

Docket Number: 210-09-06 Vtec

Filed Date: 5/10/2007

Precedential Status: Precedential

Modified Date: 4/24/2018