ALPH Realty ( 2009 )

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re ALPH Realty (63 King Street) } Docket No. 30-2-08 Vtec
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In re ALPH Realty (65–69 King Street) } Docket No. 31-2-08 Vtec
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In re ALPH Realty (131 Archibald and } Docket No. 32-2-08 Vtec
7–9 Bright Streets) }
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Decision on the Merits
Appellant ALPH Realty seeks authority to replace most of the wooden siding on three of
its Burlington-area apartment buildings with a substitute siding composed of fiber cement,
known by the trade name of “Hardipanel.” When each of its applications was denied by the City
of Burlington Development Review Board (“DRB”), ALPH appealed to this Court.
The Court conducted a merits hearing at the Costello Courthouse in Burlington, Vermont,
at which the parties presented their evidence and legal arguments, with the assistance of their
respective legal counsel, Matthew T. Daly, Esq., on behalf of ALPH, and Kimberlee J.
Sturtevant, Esq., on behalf of the City of Burlington (“City”). The Court also conducted a site
visit to each of the subject properties and nearby neighborhood properties. Based upon the
evidence presented at trial, including that put into context by the site visits, the Court renders the
following Findings of Fact, Conclusions of Law, and Judgment Order that accompanies this
Decision.
Findings of Fact
A. General background
1. ALPH is the owner of record of the three parcels of improved real property that are the
subject of each of the above referenced appeals. One of its principals, William Bissonette,
provided testimony at trial concerning ALPH’s real estate operations.
2. ALPH is operated by its principals as a real estate holding and property management
entity; it holds title to a number of Burlington-area buildings in which approximately 200
residential apartments are maintained.
3. The ALPH principals purchased their first residential apartment building about thirty-one
years ago. Most of the buildings currently held in the name of ALPH were acquired within the
last ten years. The general ALPH business plan has been to acquire distressed Burlington-area
properties, renovate and rehabilitate the properties as residential rentals, and then either sell or
manage these rental properties.
4. Mr. Bissonette has also served as a restaurant owner and construction worker. He and
other ALPH principals and employees have had much experience in repairing, replacing,
painting, repainting, and maintaining the exterior siding of the various ALPH buildings.
5. In October 2007, ALPH submitted three applications for a Certificate of Appropriateness
(“COA”) to remove the existing horizontal/linear wooden siding on each of the subject buildings
and replace it with a fiber cement board, manufactured to replicate wooden clapboards. Each of
ALPH’s COA applications was admitted into evidence at trial. (See Exs. G, H, and I.)
6. The fiber cement board ALPH proposes to use is known by its tradename “Hardipanel”
and is manufactured by the James Hardie Siding Products Company. A sample of the
Hardipanel material was admitted into evidence at trial as City Exhibit 15. This sample contains
a label with the following representations from the manufacturer:
• The Warmth of Wood and the Durability of Fiber-Cement
• 50-Year Limited Product warranty
• Resists Moisture Damage
• Low Maintenance
• Resists cracking, rotting or delaminating
• Withstands Termite Attack
• Non-Combustible
7. These representations by the manufacturer, as testified to by Mr. Bissonette, were not
specifically contradicted by other testimony. The Court found them to be a credible basis for
concluding that Hardipanel siding is a reliable, durable product. However, other witnesses
provided credible testimony on the shortcomings of fiber cement board, including its relative
brittleness and inability to exactly replicate all of the properties of wooden siding.
8. ALPH proposes to use a version of the Hardipanel material identified as “Cedarmill,”
which replicates the texture of cedar wood siding.
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9. Hardipanel is also available already painted or stained to specified colors. ALPH intends
to install a pre-painted version of Hardipanel siding, in colors similar but not identical to the pre-
existing siding.
10. The Hardipanel fiber cement siding sample admitted into evidence at trial as Exhibit 15 is
six inches in width and has a uniform thickness of one quarter inch. Hardipanel does not
replicate the tapered thickness of wooden siding panels.
11. Fiber cement siding such as Hardipanel is more brittle and susceptible to breaks or cracks
than wooden siding. As a result, while wooden siding may be installed with the end pieces
touching one another, fiber cement panels require that a small gap of up to 3/16 of an inch be left
between panels, so that when expansion occurs the fiber cement panels are less likely to chip or
break.
12. ALPH proposes to install the Hardipanel to replicate as closely as possible the
appearance of wooden siding. ALPH’s principals concede, however, that Hardipanel cannot be
installed to exactly match the revealed portion of wooden siding, particularly where the existing
revealed portion of the wooden siding is only two and a half to three inches in width.
13. ALPH’s current proposal limits the use of the fiber cement board to replacing the
horizontal/linear wood siding on the exterior of each of the three buildings.
14. Each of the subject buildings contains wooden architectural details that are unique to and
repeated within its neighborhood, including fish scale shingles, moldings, Cornish returns, trim
pieces, distinctive railings and the like. ALPH represented at trial that it will repair, replace, and
maintain these existing wooden exterior architectural details on each building.
15. Each of the three subject properties has been designated as a historic structure, due to its
inclusion on the Burlington Register of Historic Structures, a copy of which was admitted into
evidence as City Exhibit 5.
16. All of the subject properties are within the scope of the Design Review District, which is
an overlay zoning district pursuant to § 3.2.3 of the City of Burlington Zoning Ordinance, as
amended in April 2005 (“Ordinance”).
B. The 63 King Street Building
17. The property which is the subject of Docket Number 30-2-08 Vtec is located at 63 King
Street, in the Neighborhood Commercial Zoning District (“NC District”).
18. The 63 King Street building was built sometime between 1880 and 1900. It presently
contains two residential apartments, with two bedrooms in each apartment. It is a wood-framed
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structure with a slate roof. ALPH does not propose any change in the use or footprint of the
structure in connection with this application.
19. The 63 King Street building was last painted six to seven years before this case went to
trial. It currently appears in need of repair and maintenance. There are many areas where the
paint has peeled away from the wooden siding; several sections of the wooden siding are
damaged from rot or are split. The first two floors have an exterior wooden siding, all of which
ALPH proposes to replace with Hardipanel siding.
20. The third floor of the 63 King Street building, which appears to contain an attic area
within the roof peak, is sided with fish scale shaped wooden shingles.
21. There is a narrow front yard which contains an area of grass in the front of this building.
22. ALPH proposes to repair, replace where necessary, and repaint the fish scale shingles on
the third floor and the wooden trim pieces on all floors.
C. The 65–69 King Street Building
23. The property which is the subject of Docket Number 31-2-08 Vtec is located at 65–69
King Street and is adjacent to 63 King Street, in the same NC District. ALPH purchased both
properties at the same time, from the same previous owner.
24. The 65–69 King Street building was built around 1890. It presently contains six
apartments, each with two bedrooms. It is larger and taller than the 63 King Street building.
25. The 65–69 King Street building is three stories tall, with a flat roof. Its two side exteriors
and its rear exterior contain horizontal/linear wooden siding, without detail pieces (other than
wooden trim pieces). The front of the structure contains several wooden details, particularly on
its first and third floors; there are wooden fish scale shingles on the upper portion of the top part
of the front exterior. All windows are surrounded by wooden trim pieces; the second and third
floor windows on the front exterior also have wooden shutters, some of which are broken, and all
of which ALPH proposes to repair or replace with new wooden shutters.
26. The 65–69 King Street building also suffers from peeling paint and wooden siding that is
in need of repair.
27. There is no front yard or discernable setback from the King Street sidewalk; the distances
between this building and its neighboring buildings and common driveway are minimal.
28. ALPH proposes to make repairs or replacements where necessary to the wooden trim and
detail pieces and then to repaint those architectural details. All horizontal/linear siding on all
sides would be replaced with fiber cement board.
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29. A prior owner of this property received zoning authority to replace the wooden siding
with vinyl siding on the two sides and rear of this building.
D. The 131 Archibald Street/7–9 Bright Street Building
30. The property which is the subject of Docket Number 32-2-08 Vtec is located at the corner
of Archibald and Bright Streets, in the General Commercial Zoning District (“GC District”).
ALPH purchased this property about 11 years ago.
31. This corner lot building is a large two-story structure with a flat roof. It also contains
residential apartments. Its size and presence on a corner lot adds to its prominence in its
neighborhood.
32. ALPH first painted this building eight years ago. It was again repainted three years ago.
When the paint started to again peel from the siding, APLH chose to remove the wooden siding
and rotten casings from the building’s exterior. This removal was done prior to receipt of any
COA.
33. This property also has distinctive architectural details, most of which do not appear to
have been removed with the linear siding. Some of the wooden trim pieces around the windows,
on the corners or the building, and at the junction between the first and second floors appear to
have been removed and would need to be replaced.
34. ALPH has pledged to replace and preserve the wooden architectural details on this
building. As with the King Street buildings, ALPH proposes to repair, replace, repaint, and
preserve these wooden details and to install the Hardipanel siding where there once was
horizontal/linear wooden siding.
E. Historical Significance of the Buildings
35. The King Street properties are currently listed on the National Register of Historic Places
Inventory, a portion of which was admitted at trial as City Exhibit 7.
36. Both of the King Street properties have been recognized as structures which contribute to
the Battery-King Street National Register Historic District, a distinction recognized by the
National Park Service, a subdivision of the U.S. Department of the Interior. (Id.)
37. King Street runs parallel to and south of Main Street. The neighborhood surrounding the
subject King Street properties is a densely developed area, populated mostly by residential
buildings, interspersed with commercial and some retail uses.
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38. Many King Street neighborhood properties contain the original materials of their exterior
siding. This is particularly true for brick structures. Many nearby properties also continue to
have their original wood clapboard siding. Some nearby properties have had their original siding
replaced with vinyl or aluminum siding. Trial testimony revealed that some of this replacement
siding has been installed without evidence of a zoning authorization.
39. The King/Battery Street neighborhood and its buildings have benefitted from the City’s
efforts to preserve its historical character, particularly in the preservation of buildings and their
unique exterior architectural details. There are multiple examples, however (including at the
subject properties), where wooden siding has been compromised by wear and tear, including
rotten or chipped clapboards and pealing paint.
40. The Archibald/Bright Street property is in a portion of the GC District commonly known
as the Old North End. While some of the architectural details unique to this neighborhood have
been preserved or restored, many of the neighborhood buildings near the subject property have
lost their original exterior materials and designs. The neighborhood has many examples of
substitute siding materials, including vinyl, asphalt shingles, aluminum siding, and texture 1-11
wooden planking.
41. The Archibald/Bright Street property represents one of the rare examples of historic
integrity in its immediate neighborhood, having preserved its architectural details. It is a
prominent structure that contributes to preserving the historic significance of its neighborhood,
particularly because of its mass and prominence on this corner lot.
42. The density of development and intensity of traffic in this neighborhood is evidenced by
the condition of many of its neighborhood buildings. While there are some examples of well-
maintained buildings, there is much more evidence of buildings in need of maintenance and
repair. Efforts to restore and preserve the historic features of this neighborhood are evident on
nearby buildings.
Discussion
The City has declared the importance of preserving the historical integrity of several of
its neighborhoods by enacting provisions within its Zoning Ordinance that control how a
“structure may be erected, reconstructed, substantially altered, restored, moved, demolished, or
changed in use or type of occupancy.” Ordinance § 6.1.3. The DRB is charged with the
authority of reviewing and approving designs of projects within the design review overlay
district, and is guided by the criteria established in Ordinance § 6.1.10. By this appeal of the
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DRB’s adverse findings under § 6.1.10, this Court has been vested with the responsibility of
determining whether ALPH’s proposed substitution of fiber cement siding for the original
wooden clapboard siding on each of the three subject properties conforms with the applicable
Ordinance provisions.
Subsection (i) of Ordinance § 6.1.10, entitled “Protect Burlington’s heritage,” provides
the controlling review criterion for proposals, such as ALPH’s, to remove and replace exterior
components from historic structures; it provides as follows:
The removal or disruption of historic, traditional or significant, uses, structures or
architectural features or neighborhood patterns shall be minimized insofar as
practicable, whether these exist on the site or on adjacent properties. Significant
structures and/or structures with important architectural features shall be
identified by their inclusion in the Burlington Register of Historic Resources.
New structures, additions, and alterations shall be sympathetic to and complement
the scale and design of surrounding historic structures and locally significant
buildings of architectural merit.
The Court has wrestled considerably with this language and the task of how to apply
these standards to the facts of this case. The historical significance of each of ALPH’s properties
cannot be disputed, as each has been deemed so significant as to be included in the Burlington
Register of Historic Resources. The importance placed upon the historical significance of the
affected neighborhoods was shown at trial by the testimony elicited by the City, which the Court
found to be credible and sincere.
But we cannot agree with the City’s contention that the pending applications fail to
protect Burlington’s heritage. The Archibald/Bright Street building renovations provide a clear
example of an effort to preserve a property, and by that help preserve the historic integrity of the
immediate neighborhood. The neighboring properties evidence some neglected maintenance and
many examples of substituted siding, some with little regard to the architectural details that once
existed. While it is undisputed that some (although not all) of the substituted siding was installed
without benefit of zoning authority, their existence in the Old North End establishes the present
character of this neighborhood.
ALPH proposes, in connection with replacing the horizontal/linear wooden siding with
fiber cement siding, to preserve, repair, replace where necessary, and repaint all wooden details
on the Archibald/Bright Street building, which we understand to include the moldings, Cornish
returns, and trim pieces along the roof line and on the front at the junction of the first and second
floors, and the trim pieces at the building corners. These efforts will rehabilitate the building and
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its historical characteristics. We commend ALPH’s efforts to preserve these architectural details,
particularly after two attempts to preserve the building’s exterior over the course of eight years
resulted in further deterioration and peeling paint.
Hardipanel siding will not exactly replicate wooden clapboards, particularly when viewed
through the eyes of an historical or architectural expert. But we found credible ALPH’s
representations that Hardipanel can be installed to closely resemble clapboard siding, including
the reveal portions. Further, with a warranty and life expectancy of up to fifty years, the fiber
cement panels can maintain their integrity for many years longer than ALPH has already
experienced in its efforts to maintain the existing wooden siding.
Given ALPH’s modified plan, we conclude that it does not represent the removal or
disruption of historic, traditional, or significant architectural features on these buildings or their
surrounding neighborhood patterns. We deem ALPH’s plans to be worthy of COAs, within the
context of the existing neighborhood patterns and the historic architectural features that ALPH
intends to preserve. While the proposed work includes the removal of original clapboards, we
believe that the Hardipanel siding ALPH intends to use is of such a texture, quality, and
durability, provided it is installed and maintained as represented, that it will not represent a
significant departure from the historical significance of the building or its neighborhood.
Due the historic significance of the King Street buildings and their surrounding
neighborhoods, Ordinance § 8.1.5 requires that we also give “specific consideration in reviewing
[an applicant’s plans] to the following” criteria:
a. The historic and/or architectural value and significance of the structure and its
relationship to the historic and/or architectural value of the surrounding area;
b. The relationship of the exterior architectural features of the structure to the rest of
the structure and to the surrounding area;
c. The general compatibility of exterior design, arrangement, texture and materials
proposed to be used; and/or
d. To any other factor, including aesthetic factors, which it deems to be pertinent as
delineated in the descriptions on file with the board.
Ordinance § 8.1.4.
ALPH satisfies these criteria because it proposes to keep all of the architectural details on
the King Street properties and to use a high-quality replacement siding material. While some
experts compared the Hardipanel to vinyl or aluminum siding, the material presented at trial does
not support such a comparison. We conclude that the Hardipanel siding, as represented, will be
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compatible both with the existing properties and the historic values the City seeks to preserve for
this neighborhood, particularly in light of ALPH’s pledge to restore and preserve the
architectural details on the subject properties. The transformation of the properties from ones
that regularly exhibit peeling paint and rotten or splintered wooden siding to ones that have their
architectural features preserved with siding that simulates wooden clapboards, but not their
neglect, is more likely to enhance the integrity the Ordinance seeks to maintain. For these
reasons, we conclude that ALPH’s plans, if completed as represented and if properly maintained,
will conform to Articles 6 and 8 of the Burlington Zoning Ordinance.
Conclusion
For all the reasons more fully discussed above, we conclude that the applications for
Certificates of Appropriateness submitted on behalf of ALPH Realty for replacement of the
wooden clapboard siding with fiber cement board siding on its properties located at 63 King
Street, 65–69 King Street, and 131 Archibald Street/7–9 Bright Street are hereby APPROVED,
subject to the following conditions:
1. The siding to be used shall be Hardipanel or its equivalent;
2. The fiber cement siding shall be installed in such a manner as to replicate wooden
clapboard siding, including its reveals, as closely as possible;
3. ALPH, its successors and assigns shall maintain the installed siding and repair or
replace any defects, cracks or broken panels that materially detract from its
appearance; and
4. ALPH, its successors and assigns shall maintain all architectural details, including
fish scale shingles, moldings, Cornish returns, trim pieces, distinctive railings and
the like.
This completes the proceedings before this Court in these appeals. A Judgment Order
accompanies this Decision.
Done at Berlin, Vermont this 30th day of January 2009.
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Thomas S. Durkin, Environmental Judge
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