Keenan Conditional Use Approval ( 2009 )

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re Keenan Conditional Use Approval } Docket No. 266-12-07 Vtec
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Decision on Cross-Motions for Summary Judgment
Appellant-Applicant Anne Keenan (“Applicant”) brings this appeal of a decision by the
City of Burlington Development Review Board (“DRB”), denying her request for conditional
use approval to maintain four residential units in a building that is currently permitted for only
three units. We are now presented with cross-motions for summary judgment by the City of
Burlington (“City”) and Applicant.1
Factual Background
For the sole purpose of putting the pending motions in context, we recite the following
facts, which we understand to be undisputed unless otherwise noted:
1. Applicant owns property at 79 Spruce Street (“the Property”) in the City.
2. Before 1967, a church was located on the Property.
3. In 1967, one of Applicant’s predecessors-in-interest applied for a special exception to
convert the church into five apartments. On March 14, 1967, the Burlington Zoning Board of
Adjustment (“ZBA”) denied the request.
4. On March 28, 1967, the ZBA approved a request for a special exception to convert the
church into three apartments, with the stipulation that there would be no parking in the front area.
This conversion apparently occurred shortly after the ZBA issued its approval.
5. On August 8, 1967, the ZBA denied a request for a special exception to convert the three-
unit building at the Property to a four-unit building.
6. At some point before January 18, 1972, one of Applicant’s predecessors-in-interest
converted the three-unit building at the Property to a four-unit building. The predecessor-in-
interest then applied to the ZBA for retroactive approval of this conversion.
7. On January 18, 1972, the ZBA again denied a request to grant retroactive approval to
convert the three-unit building at the Property to a four-unit building.
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Applicant is represented by Liam L. Murphy, Esq., and Pamela A. Moreau, Esq.; the City is represented by
Kimberlee J. Sturtevant, Esq.
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8. Since at least 1972, the Property has been used—and continues to be used—as a four-unit
residential building.
9. Since at least 1972, tenants at the Property have consistently made use of six parking
spaces: three spaces in the back of the building, and three spaces in the front.
10. The three parking spaces in the front of the building abut—or at least come quite near
to—the sidewalk. In the municipal proceedings below, there was a dispute over whether cars
and pick-up trucks parked in those spots actually impede the sidewalk. The parties do not,
however, appear to dispute that cars parked in those spots at least come within a few feet of the
sidewalk, and photos submitted both by Applicant and the City confirm this to be the case.
11. On January 10, 2000, Applicant bought the Property and continued its use as a four-unit
building.
12. On September 20, 2007, Applicant applied for conditional use approval to operate the
Property as a four-unit building.
13. On November 6, 2007, the DRB denied conditional use approval. It is from that
determination that Applicant appealed to this Court.
14. The City has yet to initiate an enforcement action against Applicant or any of her
predecessors-in-title for the construction or use of a fourth residential unit at the Property. The
parties agree that such use has continued uninterrupted for nearly forty years.
Discussion
This municipal appeal is entitled to “a de novo hearing on those issues which have been
appealed.” 10 V.S.A. § 8504(h); accord 24 V.S.A. § 4472(a); V.R.E.C.P. 5(g). In a de novo
hearing, we are directed to consider the pending application “‘as though no action whatever had
[previously] been held.’” Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 11 (1989) (quoting In re
Poole, 136 Vt. 242, 245 (1978)).
We have before us cross-motions for summary judgment. We may grant summary
judgment only when “the pleadings, depositions, [and] answers to interrogatories, . . . together
with the affidavits, if any, show that there is no genuine issue as to any material fact and that any
party is entitled to judgment as a matter of law.” V.R.C.P. 56(c)(3). Generally, the burden of
proof is on the party requesting summary judgment. Chapman v. Sparta, 167 Vt. 157, 159
(1997). When presented with cross-motions for summary judgment, we must consider each
motion in turn and afford all reasonable doubts and inferences to the party opposing the
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particular motion under consideration. City of Burlington v. Fairpoint Commc’ns, Inc., 2009 VT
59, ¶ 5 (citing Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44, 48 (1990)).
The facts relevant to this conditional use approval appeal are quite straightforward, and
indeed the parties do not dispute them. In short, one of Applicant’s predecessors-in-interest
applied at various points for approval to have four or five residential units at the Property, but the
City denied those requests on numerous occasions and only granted approval for a three-unit
building. Further, the approval for the three-unit building was expressly conditioned on the
stipulation that there would be no parking in the front area. Despite only obtaining approval to
operate a three-unit building with parking limited to the rear area, Applicant and all of her
predecessors-in-interest since at least 1972 have operated a four-unit building and allowed
tenants to use three parking spaces in the front yard.
Although the parties make a number of collateral arguments in their briefs, we are unable
to address them, since this Court is without authority to consider issues upon which the
municipal panel never actually conducted a hearing or rendered a substantive determination.
Simendinger v. City of Barre, 171 Vt. 648, 652 (2001). As the Vermont Supreme Court has
frequently stated, the “reach of the [Environmental Court] in zoning appeals is as broad as the
powers of a zoning board of adjustment or a planning commission, but is not broader.” In re
Torres, 154 Vt. 233, 235 (1990). According to what is often called the Torres doctrine, if the
municipal panel could not have done something because it was not properly noticed to the
public, then the Environmental Court is also without power to do so. See id.; see also In re
Maple Tree Place, 156 Vt. 484, 500 (1991) (“The [Environmental Court] is limited to
consideration of the matters properly warned as before the local board.” (citing Torres, 154 Vt. at
235)). Thus, we cannot address issues that were not properly warned for a hearing at the
municipal level.
The appeal that is before this Court solely concerns an application for conditional use
approval. The DRB was not presented below and did not consider the propriety of a possible
future enforcement action, not yet instituted by the City. Although Applicant is understandably
concerned about the possibility of future municipal enforcement proceedings, we could only
address the validity of enforcement actions after such proceedings go through the proper
municipal processes and are brought before this Court in a timely appeal. See In re Maple Tree
Place, 156 Vt. at 500.
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In the context of the appeal before us, the statute of limitations in 24 V.S.A. § 4454(a)—a
statute that by its explicit terms only applies to enforcement actions—is simply inapplicable. We
regret that we cannot address Applicant’s enforcement concerns here, particularly given that the
parties have expended so much effort in briefing them, and given that it undoubtedly places
Applicant in the awkward situation of uncertainty regarding apparent claims by the City that its
potential enforcement actions are not estopped by the limitations of 24 V.S.A. § 4454(a).
Nevertheless, our Supreme Court has noted in other contexts that courts must decline to pass
judgment on all issues that fall outside their jurisdiction, regardless of “the importance of the
question posed.” Chittenden S. Educ. Ass’n, Hinesburg Unit v. Hinesburg Sch. Dist., 147 Vt.
286, 294 (1986). To the extent that Applicant wishes to adjudicate enforcement issues, other
avenues may be available, but we are without authority to adjudicate those issues in this appeal.
Turning to our de novo review of Applicant’s request for conditional use approval, the
analysis here is quite straightforward. The conditional use approval requested here cannot be
granted if it would result in a violation of the Burlington Zoning Ordinance (“Ordinance”). See,
e.g., Ordinance § 17.1.1 (noting that the DRB—and therefore also this Court standing in its
stead—cannot permit any use that is prohibited by the Ordinance); see also 24 V.S.A. § 4446
(“Within the jurisdiction of any municipality that has adopted any of the bylaws authorized by
this chapter, no land development may be undertaken or effected except in conformance with
those bylaws.”).
In analyzing the Ordinance, §§ 10.1.8 and 10.1.18 both present insurmountable hurdles
for Applicant. Section 10.1.8 of the Burlington Zoning Ordinance (“Ordinance”) requires that
“[p]arking for all uses and structures shall be provided in accordance with Table 10-A.” Turning
to Table 10-A, it is unfortunately difficult to interpret which number corresponds to which line in
the applicable section on multi-unit rental buildings. The City claims that two parking spaces are
required per dwelling unit for a four-unit building, which would mean that eight parking spaces
are needed here. This is undoubtedly the most natural reading of the ordinance, but it assumes
that the numbers on the Table were each meant to be moved down a line. Although that
assumption makes sense here, since it is the only explanation for the blank line at the bottom of
the numbers column, we must also be mindful that any uncertainty in a zoning regulation should
be decided in favor of the property owner. In re Weeks, 167 Vt. 551, 555 (1998). Here, another
plausible interpretation is that all that is required for the first four units of a multi-unit rental
building is 1.5 parking spaces per unit plus “[a]n additional 10% of the total spaces . . . for visitor
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parking,” which translates to a total of 6.6 parking spaces needed here. Ordinance at 10-3 & 10-
3 n.1.
We need not resolve which interpretation applies here because, even if only 6.6 parking
spaces are needed, Applicant cannot meet that requirement. Whenever a calculation for parking
spaces results in a fraction, the number must be either rounded up or down. In this case, under
the normal conventions of rounding, 6.6 would be rounded up to seven. Indeed, the Ordinance
itself explicitly adopts normal rounding conventions in its statement on density calculations.
Ordinance § 5.2.3 (“[F]ractional units of less than five-tenths (0.5) shall be rounded down to the
nearest whole number and fractional units of five-tenths (0.5) or greater shall be rounded up to
the nearest whole number.”). Even absent such a statement in the Ordinance, we would adopt
normal rounding conventions here. Cf., e.g., Appeal of Berezniak, No. 171-9-03 Vtec, slip op. at
9 n.5 (Vt. Envtl. Ct. July 7, 2005) (Wright, J.) (rounding up 24.56 parking spaces to 25 parking
spaces).
In short, even under the most favorable interpretation of Table 10-3, Applicant is required
to have at least seven parking spaces to meet the requirements of Ordinance § 10.1.8. Applicant
cannot meet the minimum parking space requirement here because Applicant only has three legal
parking spaces.
On March 28, 1967, when the ZBA approved the conversion of the church building on
this Property into three apartments, it was done with the express stipulation that there would be
no parking in the front area. That decision was not appealed and therefore cannot be contested
“directly or indirectly” in a later proceeding. 24 V.S.A. § 4472(d).2
Even if Applicant were to apply for an amendment to this permit condition, such an
amendment could not be granted here because Ordinance § 10.1.18 prohibits front-yard parking
spots that abut a sidewalk: “Front yard parking for residential uses, with the exception of access
drives to the site eighteen feet (18’) or less in width, shall be in conformance with the required
minimum front yard setback or average building line of adjacent lots, whichever distance is
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This is not to say that Applicant is precluded from applying for an amendment to the permit condition at issue
here. See In re Dunkin Donuts S.P. Approval, 2008 VT 139 (mem.). However, we do not have a permit
amendment application before us and are therefore without jurisdiction to evaluate the merits of such a claim. See
Torres, 154 Vt. at 235. At any rate, the requirements for amending a permit condition—be it a showing of changed
circumstances, see In re Hildebrand, 2007 VT 5, ¶¶ 12–13, 181 Vt. 568, or an analysis under the successive-
application doctrine, see Dunkin Donuts, 2008 VT 139, ¶ 8—are in addition to the requirements for receiving a
permit in the first instance. Thus, even if Applicant were entitled to another hearing on this matter, it would appear
futile, given that Applicant cannot meet the requirements of Ordinance § 10.1.18, as explained in detail in the body
of this Decision.
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greater.” Applicant does not claim that her three parking spaces are an access drive of less than
eighteen feet wide.3 Thus, at a bare minimum, Applicant must demonstrate that her parking
spaces meet the front-yard setback requirement. But even the least restrictive zones and streets
require a minimum front-yard setback for residential structures of 15 feet. Ordinance at 5-23
tbl.5-D. Although the parties to the municipal proceeding below disputed whether Applicant’s
three front-yard parking spaces abut or even impede the sidewalk, it is undisputed that these
parking spaces are less than 15 feet from the sidewalk.
We recognize that under Ordinance § 10.1.19, parking waivers are possible, if an
applicant can demonstrate that less parking is needed for their use. However, Applicant has
made no showing that she meets—or could meet—the requirements for such a waiver. To the
contrary, Applicant alleges that she and her predecessors-in-interest have made consistent use of
the three unpermitted parking spaces on the front of her property, and that such a consistent,
unpermitted use is entitled to approval here.
Applicant argues that because of the consistent use of the three front-yard parking spaces,
24 V.S.A. § 4454(a) estops the City from bringing an enforcement action against these
unpermitted front-yard parking spaces, and the law therefore also obligates the City to sanction
their use with a zoning permit. We know of no statutory authority or legal interpretation that
supports this assertion. Rather, if land development was commenced more than fifteen years ago
and if 24 V.S.A. § 4454(a) restricts a municipality from acting against it, the development is non-
conforming, even if it might be protected from an enforcement action. Any alleged protection
from enforcement does not mean that such development is entitled to automatic issuance of a
zoning permit. Applicant’s argument here melds the law of enforcement with zoning approval in
a manner that we are not aware is authorized by statute or legal precedent.
In regards to Applicant’s three unpermitted parking spaces, we note that it is indisputable
that these parking spaces do not conform to the current or past zoning regulations. In fact, their
use violates the express parking conditions of the March 28, 1967 permitting approval, as well as
the three explicit denials—on March 14, 1967, on August 8, 1967, and on January 18, 1972—of
requests to maintain more than three units at the Property. It appears as if Applicant recognizes
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Indeed, even if Applicant made such a claim, we could not credit it given that it would be unreasonable to infer
that three cars could fit in an area less than 18 feet wide. See City of Burlington, 2009 VT 59, ¶ 5 (noting that the
party opposing summary judgment is only entitled to “all reasonable doubts and inferences” (emphasis added)).
Indeed, under the Ordinance, even three compact cars would require 24 feet of parking space. See Ordinance at 10-
8 tbl.10-D.
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that this prior use of the front parking spaces is non-conforming. Perhaps 24 V.S.A. § 4454(a)
precludes the City from commencing an enforcement action against the continued use of these
parking spaces. We leave that question to when such an enforcement action is actually noticed,
brought, and preserved for our review and an appeal presented to this Court. See Torres, 154 Vt.
at 235. But we are unaware of any legal authority that requires the City to legitimize this non-
conformity with a zoning permit. In fact, we understand the relevant precedent to be exactly the
opposite: that when the opportunity arises, a municipality is authorized to not sanction non-
conformities. See, e.g., In re Richards, 2005 VT 23, ¶ 6, 178 Vt. 478 (mem.) (“[O]ne goal of
zoning is to phase out nonconforming uses.”); accord Drumheller v. Shelburne Zoning Bd. of
Adj., 155 Vt. 524, 529 (1990).
The 15-year statute of limitations in 24 V.S.A. § 4454(a) only applies to enforcement
proceedings; we have no enforcement proceeding before us in this appeal. We therefore decline
to provide any opinion on whether the City is barred from bringing an enforcement action
regarding the three front-yard parking spaces. See Torres, 154 Vt. at 235. Further, even if we
could address the enforcement issues here, we would not do so because they are irrelevant to the
question of the legality of the parking spots.
As courts often state, a statute of limitations is merely “a procedural rule that requires the
bringing of a complaint within a certain time.” United States v. Musacchio, 968 F.2d 782, 790
(9th Cir. 1991). Numerous courts have held that activities that fall outside the statute of
limitations can still be used as evidence in other hearings, see, e.g., id., and can also be used for
other purposes, see, e.g., United States v. Behr, 93 F.3d 764, 765–66 (11th Cir. 1996) (citing
cases from five other circuits for this same proposition). Thus, even if we were to assume that
the City could not bring an enforcement action here, the DRB (or this Court standing in its stead)
can—and should—continue to view the parking spaces as non-conforming when evaluating
Applicant’s request for conditional use approval. Simply put, just because an action cannot be
condemned does not mean it must be condoned.
Applicant’s other main argument for granting conditional use approval relies upon a
footnote in the Ordinance that allows the DRB to approve the addition of one unit to certain
multi-unit buildings. The following footnote appears in the “use, density, and dimensional
requirements” section of the Ordinance: “One additional unit may be added to structures, which
contained two or more units as of April 26, 1973, if approved in advance as a conditional use, by
the development review board.” Ordinance at 5-13 n.1. Although the parties place great weight
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on whether the phrase “if approved in advance” modifies “[o]ne additional unit” or “structures,”
we need not reach that issue today. Even assuming that Applicant could receive retroactive
approval for the addition of a unit that predated 1973, nothing in this footnote grants Applicant
authority to ignore the other requirements of the Ordinance. Rather, Applicant must meet all
“applicable provisions” of the Ordinance to receive conditional use approval under the current
Ordinance. Ordinance § 1.1.7. Indeed, the City’s Ordinance goes even further and notes that
whenever there are conflicts between provisions of the Ordinance, “the more restrictive shall
apply unless otherwise specified.” Id. § 1.1.9.
We do not read the footnote at issue here as conflicting with the parking space
requirements in a later section of the Ordinance (since both can—and should—be applied), but
even if there were a conflict, Applicant could not escape complying with the more restrictive
requirements regarding parking spaces. See id. As discussed in detail above, Applicant’s four-
unit building fails to meet the minimum parking space and setback requirements of Ordinance
§§ 10.1.8 and 10.1.18—a result that cannot be changed under any interpretation of a footnote
from another section of the Ordinance.
In summary, although we sympathize with Applicant’s situation, we must remain mindful
of our limited jurisdiction in this appeal. Here we are only called upon to determine whether
Applicant meets the requirements for conditional use approval for her four-unit building—a
question that we must answer in the negative. Even construing all material facts in the light most
favorable to Applicant, we conclude that she cannot meet the parking space requirements of
§ 10.1.8 of the Ordinance with only three legal spaces when Table 10-3 requires at least seven.
Indeed, even if we were to count the illegal spots, Applicant would only have six spaces. But we
cannot count any of the front-yard parking spaces because they are in direct violation of a permit
condition (dating to March 28, 1967) and because they fail to meet the minimum setback
requirements of § 10.1.18. We also are compelled to reject Applicant’s interpretation of 24
V.S.A. § 4454(a) as placing an affirmative duty upon a municipality to issue a zoning permit for
non-conformities that have allegedly now existed so long as to prohibit enforcement. Finally, we
cannot accept Applicant’s argument that a footnote in the Ordinance allows Applicant to ignore
other, more stringent provisions of the Ordinance. For these reasons, we must GRANT the
City’s request for summary judgment and DENY Applicant’s request for conditional use
approval to maintain a four-unit building.
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Conclusion
For all the reasons more fully discussed above, we GRANT summary judgment in favor
of the City. As a result, Applicant’s request for conditional use approval to maintain a four-unit
building is hereby DENIED.
A Judgment Order accompanies this Decision. This concludes the proceedings before
this Court in this appeal.
Done at Ripton, Vermont, this 4th day of June 2009.
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Thomas S. Durkin, Environmental Judge
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