114 College St. Permit Amendment

Opinion

STATE OF VERMONT

ENVIRONMENTAL COURT

} 114 College Street Permit Amendment } Docket No. 227-09-06 Vtec (re additional 20-space parking waiver) } (Appeal of McGrew, et al.) } }

Decision and Order

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. and Ross A. Feldmann, 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.

Appellee-Applicant’s Motion to Dismiss Leonora, LLC as a Party

The Court ruled in Docket No. 199-10-04 Vtec that only Leonora, Inc. had party

status regarding issues affecting on-site circulation and access to the adjacent street

network, and that 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

1 of St. Paul Street and Bank Street.1 In a decision issued on April 20, 2007 in the present

appeal, the Court denied Appellee-Applicant’s motion to dismiss the appeal, stating that

“[e]ven if Appellants McGrew, Fivel, and Jowall Limited Partnership were dismissed2 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.” Appellee-Applicant has now moved to

dismiss Appellant Leonora LLC, claiming that it lacks standing to proceed with this appeal.

Contrary to Appellants’ argument, a party’s standing or party status may be raised

at any time, if circumstances change so as to raise an issue of whether a party has become

divested of standing, as a party’s standing to proceed with the case may be jurisdictional.

See In re Appeal of Garen, 174 Vt. 151, 153–54 (2002); Town of Washington v. Emmons,

2007 VT 22, ¶6. For example, a party may lose standing by selling property or by moving

away from the neighborhood of the project. Similarly, a group party of ten citizens (having

standing under 24 V.S.A. §4465(b)(4)) may lose standing if one of its members withdraws

from the appeal. The issue of whether Leonora, LLC, lacks standing to continue with this

appeal is therefore properly before the Court.

Appellee-Applicant has not shown any reason to divest Leonora LLC of its standing.

Beyond the issue of height as it may be affected by the number of residential units in the

building, Leonora LLC has an interest in the parking regime for all the parking in the

1 Contrary to the characterization of them in their memorandum as adjoining property owners (across St. Paul Street), their building is not located directly across St. Paul Street from the project property. It is instead at the northerly end of the block, across from unrelated property at the corner of St. Paul and Bank Streets. In addition, a church is located on the westerly side of St. Paul Street between the project property and that unrelated building at the corner of Bank Street. 2 Those Appellants have not been dismissed as to those issues to date in the present appeal.

2 buildings on the neighboring merged property, including as to whether existing spaces that

are now informally available to the public will become unavailable for public use, as well

as to preserve the availability of the spaces to which it is entitled under its predecessor’s

1984 agreement. It also has an interest in the adequacy of circulation into and out of the

building from the adjoining street network, even though the alternate spaces under

consideration in the new waiver proposal have access from College Street rather than

exiting directly onto Pine Street.

Accordingly, Appellee-Applicant’s Motion to Dismiss Leonora LLC is DENIED.

Motion to Exclude Expert Testimony

At trial, Appellants renewed their motion to exclude the evidence of Mr.

Chamberlin, whose testimony taken subject to the later briefing of the motion.

That motion is DENIED, as Mr. Chamberlin possesses sufficient expert qualifications

to testify as an expert on parking and traffic management issues, as his testimony meets the

standards of V.R.E. 702, despite the hearsay nature of some of the information on which

he based his testimony. V.R.E. 703. However, in reaching its decision on the merits of the

present appeal, we must note that the Court did not find persuasive Mr. Chamberlin’s

testimony relating to the characteristics of commercial parking garages or garages outside

Vermont, especially those in Boston and in San Diego, because the out-of-state evidence

was insufficiently comparable to the subject proposal. In particular, the parking required

for the proposed project is to serve a multi-unit residential building in the same complex

as the parking facility. Unlike the Boston facilities it is not a free-standing commercial

parking garage in which spaces are leased independently of the parking requirements for

the residential units. In addition, unlike the San Diego examples, the parking necessary to

serve the proposed project must function during snow conditions when there may be an

overnight ban on on-street parking on certain streets or in certain areas.

3 Motion for Judgment based on Issue Preclusion and/or Res Judicata

At trial, Appellants moved for judgment as a matter of law “based on issue

preclusion and/or res judicata;” the trial proceeded subject to the later briefing of the

motion.

The single remaining question on the merits of the present appeal is whether

Appellee-Applicant is entitled to a waiver of twenty additional parking spaces, beyond the

waiver of thirty spaces approved in Docket No. 199-10-04 Vtec. In Docket No. 199-10-04

Vtec, now on appeal to the Supreme Court, this Court had approved almost all aspects of

the proposed project,3 but determined that the proposed parking arrangements only

supported a parking waiver for thirty of the fifty parking spaces otherwise required under

the ordinance.

The Court therefore conditioned its approval of the remainder of the project on

Appellee-Applicant’s obtaining additional approvals from the DRB, and granted a partial

remand to the DRB for that purpose. The Court ordered in pertinent part as follows:

As a waiver is only granted [by the Court decision] of thirty of the required spaces . . . , 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.

In re Appeal of McGrew, Docket No. 199-10-04 Vtec, slip op. at 19 (Vt. Envtl. Ct., Mar. 3,

2006). In its proceedings on remand, the DRB again granted a parking waiver for the

additional twenty parking spaces, and Appellants have again appealed in the present

3 The project consists of 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, twelve of which are proposed for low- and moderate-income housing, and and associated parking located within the building beginning on the ground floor and extending two floors below the ground floor.

4 appeal.

In its April 20, 2007 decision on motions in the present appeal, the Court applied the

analysis from In re Appeal of Armitage, 2006 VT 113 (which had been decided by the

Vermont Supreme Court after this Court’s decision in Docket No. 199-10-04 Vtec). The

Court ruled that:

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.

In re: 114 College St. Permit Amendment, Docket No. 227-9-06 Vtec, slip op. at 4 (Vt. Envtl.

Ct., Apr. 20, 2007).

In the trial on the merits, Appellee-Applicant presented a revised application

seeking to address the reasons for which the full parking waiver was denied in the earlier

case. Nothing in Armitage requires that such allowable revisions to an application must

constitute physical changes to the structure or to the physical property involved in the

project.

In the present case, Appellee-Applicant does not propose to make any4 physical

changes in the plans for the proposed building to address the parking waiver issues.

4 Certain physical changes that addressed the other issues remanded in the 2006 decision are not at issue in the present appeal.

5 Rather, Appellee-Applicant now proposes the following alterations in the proposal for the

project, arguing that they justify the additional waiver of twenty parking spaces for which

it has applied.

As to the parking requirements for 114 College Street, Appellee-Applicant now

proposes the following elements that were not proposed in connection with the 2004

application:

(1) to provide language in the declaration and deeds for each residential

units restricting each units to the right to lease one parking space within the

building,

(2) to provide twenty additional fee-based leased parking spaces to the

residents at certain times in another existing parking area within the merged

property, and

(3) to provide for “parking management practices” (an unwritten parking

management plan), including registration of vehicles with Appellee-Applicant, and

the potential for towing of vehicles, to ensure that these shared use spaces are

available for commercial parking during regular business hours.

Appellants argue that the Court should not consider this proposal because it could

have been developed and submitted in the initial application. However, this argument

suggests the absurd result that applicants have only one chance to submit an approvable

application; that is, that a revised successive application could never be allowed after an

application was denied. This interpretation would render surplusage of the statutory

provision allowing DRBs to regulate successive applications. 24 V.S.A. § 4470(a). Statutes

must instead be construed so that no language is surplusage, In re Dunnett, 172 Vt. 196, 199

(2001), and so that the construction does not produce an absurd result. See, e.g., Willard

v. Parsons Hill Partnership, 2005 VT 69, ¶21, 178 Vt. 300, 308 (2005); In re: Wong Notices

of Violation, Docket Nos. 169-7-06 Vtec and 293-12-06 Vtec, slip op. at 2 (Vt. Envtl. Ct., Mar.

6 12, 2007).

Rather, nothing in Armitage or in the statute prevents an applicant from submitting

a new revised proposal aimed at dealing with a reason an application was denied in whole

or in part, even if, in hindsight, it could have developed that new proposal in the earlier

proceeding if it had known that its original proposal would be denied. Armitage does not

require applicants to have that degree of prescience as to whether their original or

preferred proposals will be approved by the DRB or by this Court. Rather, Armitage only

precludes submitting new evidence on the original proposal, if that evidence could have

been submitted in the original proceeding; it does not preclude submitting a new, revised

proposal addressing the problems for which the original proposal was denied.

Even under the limitations of Armitage, Appellee-Applicant’s present request for

an additional twenty-space parking waiver may therefore be considered by the Court, as

the new proposals represent a revised application seeking to address the reasons for which

twenty spaces (of the full fifty-space parking waiver requested in the earlier case) were

denied. Accordingly, Appellants’ motion for judgment as a matter of law based on issue

preclusion and/or res judicata is DENIED.

Merits of Remaining Issue: Twenty-Space Parking Waiver

The single remaining question on appeal is Appellants’ Question 7: whether

Appellee-Applicant should be granted a waiver of twenty additional parking spaces.

In addition to the parking spaces proposed in connection with the new construction,

the merged property contains a two-level existing parking structure providing 102 spaces,

of which 51 on the lower level are accessible from an entrance from 126 College Street, and

the remainder on the upper level are accessible from 95 St. Paul Street. Appellee-Applicant

manages those parking spaces; and owns and manages a total of over 450 parking spaces

in downtown Burlington, including those within a few blocks at 30-40-60 Main Street. It

7 has experience operating managed parking areas in Burlington since 1984. Appellee-

Applicant issues so-called wands or cards to its users, and requires for leased parking that

the users register with Appellee-Applicant the vehicles that will be using the allocated

spaces. Appellee-Applicant operates a gate system governed by computer in its central

office, with software capable of tracking the specific users entering and exiting the gates of

its parking structures. The wands can be programmed to operate the gates only during the

hours specified in the specific lease. This system enables Appellee-Applicant to enforce the

time limitations of shared or dual use leased spaces with unique use times. In addition,

some of the spaces under the control of Appellee-Applicant in buildings or structures other

than the subject property may be available from time to time to be leased commercially

(including potentially to residents of 114 College Street).

Approximately 3,500 public parking spaces are available on the street, in public

surface lots and garages, and as publicly-available spaces in other structures in the

downtown Burlington area within a thousand-foot radius of the project property (an

approximately four-minute walk). The City of Burlington enforces a nighttime parking ban

on parking on city streets and surface lots during snow emergencies and as necessary to

facilitate snow plowing.

In the present proposal Appellee-Applicant seeks approval of a waiver for twenty

additional parking spaces for the residential uses in 114 College Street, based on proposals

for restrictions in the deeds to those units and/or in the owners’ association covenants, in

conjunction with the shared or dual use of at least twenty fee-based parking spaces in the

lower level of the parking facility in the existing building on the merged property, that is,

in the 51 spaces accessible from 126 College Street. Appellee-Applicant proposes to

manage those spaces so that they are allocated to the residential uses at 114 College Street

during evenings, weekends, and holidays, that is, except during the hours of 7:00 a.m. to

8 5:30 p.m.5 on weekdays.

Although the merged property contains existing office space and two restaurants,

for which the current zoning ordinance would require as much as 232 parking spaces if it

were new construction (and if no waivers were applicable to it), none of the permits

applicable to the remainder of the property require Appellee-Applicant to provide any

parking, other than twenty spaces under the L’Amanté restaurant’s permit in the 126

College Street building during the restaurant’s evening hours. Within the 51-space lower

level parking in the existing parking structure at 126 College Street, Appellee-Applicant

proposes to provide the twenty spaces for the L’Amanté restaurant’s evening use, as well

as the twenty additional spaces for the proposed 114 College Street residential use.

Appellee-Applicant proposes to provide language in the declaration or in the deeds

for the residential units restricting each residential unit to a right to only one fee-based

leased parking space6 within the building, and to provide for twenty spaces of additional

fee-based leased parking to the residents for overnight, weekend and holiday use in the

lower-level 126 College Street parking area, and to manage its parking, including

registration of vehicles with Appellee-Applicant and the potential for towing of vehicles,7

to ensure that these shared use spaces are available to their respective users during the

times provided in their respective leases.

5 The commercial tenants’ leases provide the spaces from 8:00 a.m. to 5:00 p.m.; the one-hour or half-hour difference appears to be proposed to allow time for Appellee- Applicant’s employees to check that the spaces have been vacated by the other user, and to tow or move the vehicles if necessary. 6 Appellee-Applicant may, of course, provide for the lease or sublease of any such spaces to other residents in the event that a unit resident has no vehicle. 7 As Appellee-Applicant now requires for the lessees of its commercial spaces, as shown in the sample lease attached to the Surprenant affidavit.

9 Section 10.1.19 allows the waiver of the otherwise-applicable requirements for

parking upon a demonstration that the requirements are unnecessarily stringent for

reasons of, among other reasons, unique use times or shared or dual use. Appellee-

Applicant has demonstrated that the additional waiver of twenty parking spaces within the

114 College Street building is warranted by reason of shared or dual use during unique use

times. Residents with more than one vehicle who leave the area during daytime work

hours will most easily be able to avail themselves of these spaces; residents who do not

leave the area during daytime work hours will have to move their vehicles or make other

arrangements for parking in the ample available daytime spaces during the daytime work

hours.

The waiver based on the current proposal to make at least twenty additional parking

spaces available in 126 College Street for lease by the residents of 114 College Street

overnight on weekdays and on weekends and holidays is hereby approved, subject to the

conditions stated below, to assure that the shared or dual use proposal will function in

practice and will not conflict with the availability of the public spaces in 114 College Street.

First, the limitations must be stated in the deeds, whether directly or by reference

to the requirements of the building’s current zoning approval, as well as in the declaration

of covenants for the building’s owners’ association, because such covenants can be changed

with a sufficient vote of the association in the future. These limitations are that each unit

is entitled to lease only one parking space within 114 College Street, that residents are

prohibited from parking any vehicles in the public spaces within 114 College Street, and

that each unit occupant must have arrangements for off-street parking of any additional

vehicle, at least during those non-workday hours (that is, other than from 7:00 a.m. to 5:30

p.m. Monday through Friday) when on-street parking is prohibited by the City.

Second, Appellee-Applicant’s management of the parking within the 114 College

Street garage must assure that the residents do not park any of their vehicles in the spaces

10 meant to be available to the public. In order for Appellee-Applicant to be able to manage

the parking in 114 College Street as well as in 126 College Street, the 114 College Street

occupants will have to register all their vehicles with Appellee-Applicant, regardless of

whether their other parking arrangements for those vehicles are in one of Appellee-

Applicant’s facilities.

Third, Appellee-Applicant must make available twenty spaces in 126 College Street

for lease by residents of 114 College Street during non-workday hours year-round (that is,

other than from 7:00 a.m. to 5:30 p.m. Monday through Friday), and must assure that the

126 College Street parking is managed so as to assure the availability of those leased spaces

without conflict with the spaces allocated to the L’Amanté restaurant’s permit.

Accordingly, Appellee-Applicant’s application for an additional waiver of 20

parking spaces for the project is GRANTED, subject to the following conditions:

1. Appellee-Applicant shall place the following restrictions in the unit deeds and

in the covenants of the owners’ association, either directly or by reference to the zoning

approval for the building, and shall, in its management of the parking for the combined

property, enforce the following provisions:

(a) each unit is entitled to lease only one parking space within the 114 College Street

building;

(b) all vehicles in the possession of the unit occupants shall be registered with

Appellee-Applicant;

(c) residents are prohibited from parking any vehicles in the public spaces within

114 College Street;

(d) residents shall make and be able to demonstrate arrangements for off-street

parking of any additional vehicle, at least during those non-workday hours (that is,

other than from 7:00 a.m. to 5:30 p.m. Monday through Friday) when on-street

11 parking is prohibited by the City.

2. Appellee-Applicant shall manage the parking within the 114 College Street

garage, to assure that the residents do not park any of their vehicles in the spaces meant

to be available to the public.

3. Appellee-Applicant shall make available twenty spaces in 126 College Street for

year-round lease by residents of 114 College Street (during hours other than from 7:00 a.m.

to 5:30 p.m. Monday through Friday), and shall manage the 126 College Street parking to

assure the availability of those leased spaces without conflict with the spaces allocated to

the L’Amanté restaurant’s permit.

4. As of the date of the Certificate of Occupancy for 114 College Street, Appellee-

Applicant shall maintain in its offices and provide to the residents of 114 College Street a

written parking management plan for the vehicles in possession of the residents of 114

College Street, stating Appellee-Applicant’s then-current parking management plan with

reference to implementing the conditions of this approval, and shall provide it to the

zoning authorities of the City upon request.

Done at Berlin, Vermont, this 14th day of December, 2007.

_________________________________________________ Merideth Wright Environmental Judge