114 College St. Permit Amendment

STATE OF VERMONT
ENVIRONMENTAL COURT
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114 College Street Permit Amendment } Docket No. 227-09-06 Vtec
(Appeal of McGrew, et al.) }
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Decision and Order on
Appellee-Applicant’s Motion to Dismiss and on Appellants’ Motion for Stay
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.; 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.
Appellants have filed a motion for a stay of proceedings on this appeal in
Environmental Court pending disposition of In re McGrew, Docket No. 2006-264, by the
Vermont Supreme Court. Appellee-Applicant has moved to dismiss this appeal.
Appellee-Applicant owns a parcel of property at 114 College Street, on which it
proposes to construct 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, and associated parking located within the building beginning on the ground floor
and extending two floors below the ground floor. Twelve of the residential units are
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proposed for low- and moderate-income housing.
On March 3, 2006, this Court approved Applicant’s application in In re Appeal of
McGrew, Docket No. 199-10-04 Vtec, conditioned as follows:
Based on the foregoing, it is hereby ORDERED and ADJUDGED that
the proposed project is conditionally approved, as discussed above, on
condition that approval of the following matters must be obtained from the
DRB:
1) As a waiver is only granted [by the Court decision] of thirty of
the required spaces, and as the lowest two spaces are not approved as
designed, 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.
2) Appellee-Applicant shall obtain approval from the DRB of a
warning buzzer or light, or alternative window construction, or any
other proposal sufficient to achieve the safety of northbound
pedestrians at the intersection with the ATM exit lane.
After [a scheduled telephone conference], the Court will grant a limited
remand of those aspects of the application to the DRB, if Appellee-Applicant
wishes to make those applications, and will expedite any resulting appeal to
this Court, under the provisions of V.R.E.C.P. 2(b), so that only a
supplemental hearing on those new issues or proposals would be necessary.
The parties disputed the judgment order based on this decision; a judgment order
concluding Docket No. 199-10-04 Vtec was issued by the Court on May 19, 2006.
Appellants took an appeal of that decision to the Vermont Supreme Court in Docket No.
2006-264.
While that appeal was pending, Appellee-Applicant made certain changes in the
application to address the two issues specified for remand in the judgment order in Docket
No. 199-10-04. Appellee-Applicant changed the design of the north end of the lowest floor
of the garage, asserting that it now provides additional turnaround space at the bottom of
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the garage to allow the full use of the two spaces at issue in that location. Appellee-
Applicant changed the design of the corner of the building, asserting that it now provides
the additional visibility at the exit from the drive-through teller onto the sidewalk.
As to the required number of parking spaces, the decision gave Appellee-Applicant
the opportunity of revising the application to meet the parking requirements, without
requiring any particular solution. Applicant could have revised its application to provide
some or all of the twenty additional parking spaces (for example by providing another
floor of parking below those in the original application) within the proposed building.
Applicant could have revised its application to provide some or all of the twenty additional
parking spaces within or as alterations to any other existing structures or parking areas on
the merged property. Alone or in conjunction with any such revision to the application
design, Applicant could have revised its application to apply for additional parking
waivers for some or all of the twenty additional parking spaces, beyond the waiver of thirty
spaces granted by this Court in Docket No. 199-10-04.
Applicant appears to have revised1 its application not to provide any additional
spaces within the proposed building, but to provide parking for the building at certain
times in another area on the merged property, to provide for “parking management
practices” to ensure that shared use spaces are available for commercial parking during
regular business hours, and to provide language in the declaration and deeds for the
residential units restricting those residential units to one parking space each, and providing
a fee for any residents wishing to lease additional spaces within the shared-use parking
areas. In the proceedings before the DRB, Appellee-Applicant also submitted additional
evidence in support of its parking waiver application. From the DRB decision, this
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The Court has not yet scheduled a hearing to take supplemental evidence in this
matter; the following statements about the application are derived from the parties’
memoranda on the pending motions.
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evidence appears to have related to the various additional public and private parking
garages within the vicinity of the project, and whether the residents would walk to work,
rather than drive, and whether they would make use of available public transit options.
The Court’s March 2006 decision was issued prior to the decision of the Vermont
Supreme Court in In re Appeal of Armitage, 2006 VT 113 (Nov. 9, 2006) (mot. for rearg. and
clarification denied Jan. 4, 2007). In that case, the Supreme Court concluded that a “revised
application should not have been considered absent changes that addressed all areas in
which the previously denied application did not comply with regulations, as opposed to
merely offering different evidence on a matter settled by the earlier decision.” Id.,2006 VT
113, ¶11
Applying the analysis from Armitage, in the present case 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. The Court will rule at trial as to any specific
proffered evidence.
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Appellee-Applicant’s Motion to Dismiss due to content of notice of appeal
Appellee-Applicant argues that this appeal should be dismissed because the notice
of appeal is defective and because Appellants lack standing to appeal. Appellee-Applicant
argues that the notice of appeal must be dismissed because V.R.E.C.P. 5 requires that the
notice of appeal contain the statutory provision regarding the Appellants’ party status,
which is omitted from the notice of appeal in this matter.
Appellants’ notice of appeal, while minimal, is sufficient under V.R.E.C.P. 5. See
V.R.E.C.P. 5(b)(3) (“An appeal will not be dismissed for informality of form or title. . . .”).
No provision in the rules requires appellants to make an offer of proof as to their status as
a party. Route 103 Quarry (Appeal of J.P. Carrara & Sons, Inc.), Docket No. 205-10-05 Vtec,
slip op. at 3 (Vt. Envtl. Ct., Feb. 23, 2006). Rather, an appellant is “automatically accorded
[party] status when the notice of appeal [or cross appeal] is filed unless the court otherwise
determines on motion to dismiss a party . . . .” V.R.E.C.P. 5(d)(2). Only the filing deadline
is jurisdictional. See Reporter’s Notes to V.R.E.C.P. 5(b)(1).
A motion to dismiss “should not be granted unless it appears beyond doubt that
there exist no facts or circumstances that would entitle the plaintiff to relief.” Lodge at
Bolton Valley Condominium Ass’n v. Hamilton, 2006 VT 41, ¶4. Appellee-Applicant has
not met this standard.
Appellants’ original notice of appeal contained sufficient information required by
V.R.E.C.P. 5 to put Appellee-Applicant and others on notice of their appeal. Appellants
have since filed a revised notice of appeal containing additional information regarding the
statutory basis for their claim of party status, 24 V.S.A. § 4464(b)(3), and have in any event
cured any defect in the original notice of appeal, which was timely filed. Accordingly,
Appellee-Applicant’s Motion to Dismiss the appeal on this basis is DENIED.
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Appellee-Applicant’s Motion to Dismiss due to untimely filing of Statement of Questions
Appellee-Applicant argues that Appellants failed to timely file a statement of
questions under V.R.E.C.P. 5(f). While the rule imposes a twenty-day filing requirement
for the statement of questions (from the date the notice of appeal is filed), that time period
is not jurisdictional. The Statement of Questions in the present appeal was filed five days
late, but well before the initial conference in this appeal. Appellee-Applicant has not
shown prejudice from the additional five days, given that its timely filing is not
jurisdictional. Further, the Court must apply the rules in such a way as to make a “full and
fair determination” of the issues that come before the Court. V.R.E.C.P. 1. Accordingly,
Appellee-Applicant’s Motion to Dismiss the appeal on this basis is DENIED.
Appellee-Applicant’s Motion to Dismiss due to Appellants’ lack of standing
In addition, Appellee-Applicant argues that the appeal should be dismissed because
this Court has previously ruled, in Docket No. 199-10-04 Vtec, that Appellants McGrew,
Fivel, and Jowall Limited Partnership lacked standing on certain issues. However,
although in the present appeal most of the issues relate to the required number of parking
spaces, Appellants have also presented all the questions raised in the former appeal, “in the
event [they] are not reached by the Vermont Supreme Court” in the case now on appeal.
As ruled on in Docket No. 199-10-04 Vtec, only Leonora, Inc. has party status
regarding issues affecting on-site circulation and access to the adjacent street network;
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 of St. Paul Street and
Bank Street. Issues as to the design of the parking garage and its internal circulation and
the number of non-public parking spaces waived may not implicate the issue of height,
while issues of the number of parking spaces provided and the accessibility or useability
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of any of the public parking spaces may implicate the issue of height. §5.3.15(a)(2).
Even if Appellants McGrew, Fivel, and Jowall Limited Partnership were dismissed
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. Accordingly, Appellee-Applicant’s Motion
to Dismiss the appeal on this basis is DENIED.
Appellants’ Motion for a Stay
Appellants argue that the present appeal should be stayed pending the Supreme
Court’s disposition of Docket No. 2006-024 because a decision by that Court in Appellants’
favor would render the present appeal moot and because continuing this appeal poses a
“significant risk” of prejudice to Appellants and waste of judicial resources.
The Vermont Rules of Appellate Procedure, which this Court applies in the context
of an appeal to the Supreme Court pursuant to Rule 5(k)(1) of the Vermont Rules for
Environmental Court Proceedings, provide that an action may be suspended during the
pendency of an appeal. V.R.A.P. 8(a). The decision of whether to grant a stay lies in the
discretion of the court. Id.; see also Estate of Lanterman v. Lanterman, 462 N.E.2d 46, 51
(Ill. App. Ct. 1984) (“trial court has power to stay a separate action when both actions
involve the same parties and subject matter so that the trial of one action will effectively
dispose of the need for a trial in another action”).
However, in the present case Docket No. 227-9-06 Vtec is merely the remainder of
the application addressed in what is now on appeal in Supreme Court Docket No. 2006-264.
It will be more efficient to proceed promptly with the issues that arise only in the present
case, so that any further appeal of it may be filed at the Supreme Court and, if necessary,
consolidated there with its Docket No. 2006-204.
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Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
Appellee-Applicant’s Motion to Dismiss is DENIED, and that Appellants’ Motion to Stay
is DENIED. We will schedule a telephone conference shortly to discuss any supplemental
hearings (as contemplated by the original decision) necessary for resolution of this appeal.
Done at Berlin, Vermont, this 20th day of April, 2007.
_________________________________________________
Merideth Wright
Environmental Judge
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