Appeals of Curtis ( 2005 )

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: Application of Verizon Wireless } Docket Nos. 203-11-03 Vtec
(installation at St. Mary=s Star of the Sea) } and 140-7-05 Vtec
(Appeals of Curtis, et al.) }
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Decision and Order on Motions to Remand
In Docket Number 203-11-03 Vtec, Appellants Linda M. Curtis, Clark W. Curtis,
Linda S. Cunningham, James C. Cunningham, Christina Hilliker, Richard Hilliker, Francis
Lantagne, Rita Lantagne, Liz Lemieux, Leo Paul Major, Norma Major, Stephanie Rosamilia,
Nelson C. Stevens III, Rachel A. Stevens, Thomas Zaffis and Susan Zaffis appealed from
a decision of the Planning Commission of the City of Newport granting site plan approval
for the installation of wireless telecommunication antennas within the towers of the existing
St. Mary=s Star of the Sea Catholic Church (the Church) and for the construction of a
related equipment building.1[1] Appellee-Applicant2[2] Vermont RSA Limited Partnership,
1[1]
The proposal also included reconstruction of an existing Church garage, not at issue
with regard to the present motions.
d/b/a/ Verizon Wireless cross-appealed from that decision on the issue of whether site
plan approval by the Planning Commission was required at all for the proposed project; the
cross-appeal was resolved on summary judgment.
2[2]
The application was filed jointly by the landowner Roman Catholic Diocese of
Burlington, through St. Mary=s Star of the Sea Catholic Church, and by Verizon Wireless; however,
neither the Diocese nor the Church has entered an appearance as a party in either of the above-
captioned appeals.
In Docket No. 140-7-05 Vtec, Appellants Linda M. Curtis and Clark W. Curtis
appealed from a decision of the Zoning Board of Adjustment (ZBA) upholding a decision
of the Zoning Administrator declining to rule that a conditional use permit is also required
for the changes to the parking at the Church caused by the new equipment building.3[3]
Appellants are represented by Gerald R. Tarrant, Esq.; Appellee-Applicant is
represented by Brian Sullivan, Esq.; the City of Newport is represented by William Boyd
Davies, Esq. The Court heard the merits of Docket No. 203-11-03 Vtec and took a site
visit with the parties. The parties have filed requests for findings and legal memoranda
regarding the merits of the site plan approval application as presented at trial; the present
decision and order makes findings from the evidence presented at that hearing only as
necessary to address the pending motions.
Appellants argue that the proposal calls for an alteration to the Church=s existing
non-conforming parking, which must be ruled on by the ZBA as a conditional use under
'402, and that the Planning Commission should have reviewed the parking using the table
provided in '328. Appellants also argue that, in order for the Court to consider parking
on the adjacent property in the present appeal, at the very least the Church must enter
3[3]
The equipment structure is proposed to be built onto the south side of the rectory
building. It is 12' x 30' (360 square feet) and therefore exceeds the size of a Ashed@ as that term
is defined in '502 of the Zoning Bylaw. It has walls and a roof, and therefore falls within the
definition of the term Abuilding.@ '502.
into a formal parking agreement with the adjacent convent and school. Appellee-Applicant
asks the Court instead to reach the merits of its site plan application in Docket No. 203-
11-03 Vtec, arguing that site plan approval of the changed parking arrangements could be
granted by the Court without reaching the need for conditional use approval of the
changes to the Church=s existing parking arrangements caused by the construction of the
equipment building.
Saint Mary=s Star of the Sea was constructed prior to the institution of zoning in the
City of Newport. It is located in the Urban Residential zoning district, on a 93,200 square
foot lot,4[4] adjacent to a much larger property owned by the Daughters of the Sacred
Heart of Charity, on which is located a convent, a school, and a shop building.
The Saint Mary=s Star of the Sea property contains two buildings: the Church
building and the rectory building. These are either two principal buildings on the lot (in
violation of '308), or if the rectory is treated as an accessory building to the Church, it
may exceed the twenty-foot height limitation for an accessory building in the Urban
Residential zoning district. '205.03. The Church building extends into the east side
setback, and extends slightly into the front setback at its northeast corner.
4[4]
Unless otherwise noted, all locations and measurements are taken from the proposed
site plan, with proposed parking spaces, attached as Exhibit 3 to the prefiled direct testimony of
John A. Steele. (Steele Exhibit 3)
To determine whether the existing Church property is also non-conforming as to
any zoning standards related to parking, we must determine the seating capacity in its
Amain assembly room@ and also determine its Afloor area.@ The maximum seating capacity
in the assembly room of the Church is 556 seats, calculated as four people per each six-
foot-long pew plus 28 seats in the choir. This calculation is consistent with Father
Royer=s testimony estimating a 550-person capacity. The square footage of the floor
area5[5] of the Church has not been provided, but may be estimated (based on a footprint
approximately 65' wide by 160' long6[6]) as very approximately 10,400 square feet.
5[5]
The term Afloor area@ is defined in '502 as exclusive of basement floor areas; there is
no evidence that the Church building has more than a single floor above a basement level.
6[6]
Estimated by taking measurements by scale from Steele Exhibit 3 or from the diagram
attached to the affidavit of John Steele filed as Attachment C to Appellants= August 8, 2005
Motion to Remand (AAttachment C@).
The term Aparking space@ is defined in '502 of the Zoning Bylaw as being Aat
least nine feet wide and twenty feet long, not including access driveway, and having direct
access to a street or alley.@ An examination of the site plan parking plan (Steele Exhibit
3), in comparison with the diagram (Attachment C) shows fifty existing parking spaces on
the Church property, as follows. Six numbered spaces7[7] are located on the westerly side
of the rectory, thirty numbered spaces8[8] are located behind (to the south of) the rectory,
two numbered spaces9[9] are located near the southwesterly corner of the Church, and
twelve unnumbered spaces are located along the southerly edge of the existing parking
area. The two spaces numbered 39 and 40, located on the easterly side of the rectory,
appear to be new locations for former spaces 1 and 2, and therefore not to have existed
in the existing parking configuration, although perhaps they existed within the rectory
garage and are simply not shown on either the site plan or the diagram. In addition, the
Church uses an undefined number of parking spaces on the adjacent land of the
Daughters of the Sacred Heart of Charity, but without any written or formal agreement
between the two entities, and uses some thirty-five on-street parking spaces across
Prospect Street from the Church. The testimony provided in prefiled form and at trial by
7[7]
Numbered 1, 2, and 35-38.
8[8]
Numbered 3 through 32.
9[9]
Numbered 33 and 34.
witnesses from both parties as to approximately one hundred parking spaces provided in
the AChurch lot@ includes some spaces off the Church=s property in these other locations,
as shown also on Steele Exhibit 3.
Not all of the spaces shown on Steele Exhibit 3 as existing spaces provided on the
Church=s property meet the size (9' x 20') requirements of the definition of Aparking
space,@ '502, or the requirement that each space have direct access to a street or alley.
The thirty parking spaces shown as existing behind the rectory are arranged in a grid with
ten rows, each row measuring approximately (by scale as discussed in footnote 6, supra)
55 feet in length and having three cars parked end-to-end. Only the two outside cars in
each row have the required direct access to a street or alley (and, arguably, the middle
car in the last row, which could theoretically parallel park). Moreover, each parking space
is undersized as to length, if three spaces are to be fitted into each row, even without the
access issue. Thus, the existing parking to the rear of the rectory shown as thirty spaces
should only be counted as providing 21 parking spaces as that term is defined in the
Zoning Bylaw, even if the last row were to be lengthened by five feet to provide three full
spaces.
Calculating all the existing parking on the Church property in compliance with the
Zoning Bylaw=s definition of Aparking space@ shows that the existing parking provides 41
spaces, plus whatever spaces may be provided within the rectory=s and Church=s existing
garages but not shown on the site plan or the diagram. The parking associated with the
proposed site plan for the equipment building will not reduce the number of existing
spaces, but it will alter the location and configuration of the parking spaces on the Church
property.
Under '32810[10] of the Zoning Bylaw, the off-street parking space requirement for a
religious institution11[11] is one space for every three seats in the Aassembly room@ or one
space for every two hundred square feet of floor area, whichever is greater. Off-street
parking is one of the attributes of a project retained for municipal regulation under 24
V.S.A. '4413(a)(3)(2004), with respect to Achurches . . ., convents, and parish houses.@
Using the maximum capacity of 556 or 550, at one space per three persons as
required by '328, the minimum required number of parking spaces attributable to the
Church building is 185 or 183, if rounded down. (Even if we were to calculate the
10[10]
This is not a determination that the proposal must comply with '328; rather, it is
used to determine whether the Church=s existing off-street parking is a nonconformity with the
Zoning Bylaw, and therefore whether '402 is applicable.
11[11]
It is not clear from the table in '328 or the definition of Areligious institution@ in '502
whether the requirement applies to the Church and rectory taken together, or whether the rectory
should be treated as a single-family dwelling unit for which two additional spaces would be
required. If two additional spaces are required, it is possible that two spaces are provided within
the rectory=s garage.
required minimum number of parking spaces based on an average attendance of 310,
rather than on capacity as required by the '328 table, 103 parking spaces would be
required.) The calculation by capacity is the applicable requirement, as it appears to be
greater than the parking calculated by floor area, which would be 52 spaces, using a
single-floor estimated footprint of 10,400 square feet.
Whether calculated as 41 spaces (see supra, p.5) or as the 50 spaces shown on
Appellee-Applicant=s site plan, the present off-street parking spaces provided by the
Church are insufficient to comply with the requirements of the regulations; therefore the
existing parking is non-conforming and triggers the applicability of '402. Indeed, the fact
that the Church property does not comply with other zoning requirements (regulating
setbacks, height, or one principal building per lot), would cause that section to be triggered
even if the parking provided were adequate under the regulations (for example, if the
Church were to cure the existing parking nonconformity by entering into a formal
agreement with the Daughters of the Sacred Heart of Charity and having that combined
parking approved by the Planning Commission under ''328.03 B 328.05. As the
arrangement of buildings and existing parking on the Church property is non-
conforming,12[12] Appellee-Applicant=s proposal to alter or move the existing parking spaces
12[12]
See, In re Appeal of Miserocchi, 170 Vt. 320, 323-24 (2000) (non-complying
structures are also non-conforming uses under the state statute).
requires conditional use approval of the Zoning Board of Adjustment under '402.01, as
well as requiring site plan approval from the Planning Commission. Nothing in the Zoning
Bylaw requires or allows the ZBA to decline to hear such an application simply because an
appeal of a related Planning Commission decision is pending in this Court.
Appellee-Applicant is correct that, in conducting its site plan review, the Planning
Commission (and hence this Court in this de novo proceeding) is only required by
'328.01 to Areview the existing and related parking arrangements,@ and that it may, but is
not obligated to, require additional parking. This requirement of '328.01 is in addition to
the requirements of site plan approval to consider the Aadequacy of circulation, parking
and loading facilities,@ '606.03(C), and to Aimpose appropriate conditions and safeguards
with respect to the adequacy of . . . [c]irculation and parking.@ '606.02(B). The Court
will apply those standards in addressing the merits of site plan approval in Docket No.
203-11-03 Vtec.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
Appellants= Motion to Remand is GRANTED, concluding Docket No. 140-7-05 Vtec. In
Docket No. 203-11-03 Vtec, it appears to the Court that any decision on the merits of site
plan review should be held in abeyance until Appellant-Applicant has filed and the ZBA
has acted on an application for conditional use approval of the parking. In that way, any
revisions of the proposed parking made necessary by the conditional use decision may be
incorporated13[13] so that any such revisions may properly be before the Court on their
merits in a single decision.
13[13]
Either through an agreed amendment to the site plan before the Court, or through an
appeal of an amendment to the site plan proposed to the Planning Commission, with an additional
limited evidentiary hearing if necessary. V.R.E.C.P. 2(b).
We will hold a brief telephone conference (see enclosed notice) on December 28,
2005, to discuss the sequence of events before the municipal panels and in this Court. If
the parties are unavailable on that date they should discuss the scheduling with each other
before requesting the Court to reschedule the conference. Time is available for the
conference on January 4, 2006, or on January 9, 2006. Appellants= motion for costs is
hereby deferred to be considered with the merits of any remaining appeals; in addition, the
Court will consider any motions for waiver of any filing fees at such time as any future
appeals may be filed.
Done at Berlin, Vermont, this 19th day of December, 2005.
_________________________________________________
Merideth Wright
Environmental Judge