STATE OF VERMONT
ENVIRONMENTAL COURT
} Appeal of Berezniak } Docket No. 171-9-03 Vtec (Application of Wager) } }
Decision and Order
Appellant David Berezniak appealed from a decision of the Development Review
Board (DRB) of the City of Burlington, approving modifications to an existing building and
the construction of a 27-unit apartment building on the same property, with associated site
improvements, including driveways, parking areas, and landscaping. Appellant is
represented by Norman Williams, Esq., who also represents nineteen other interested
persons1[1] who intervened in this matter; Appellee-Applicants John and Dena Wager are
represented by Carl H. Lisman, Esq.; and the City is represented by Kimberlee J.
Sturtevant, Esq. An evidentiary hearing was held in this matter before Merideth Wright,
Environmental Judge, who took a site visit alone by agreement of the parties. The parties
were given the opportunity to submit written memoranda and requests for findings. Upon
consideration of the evidence as illustrated by the site visit, and of the written memoranda
1[1] Documents filed by Appellant were also filed on behalf of the other interested persons. and requests for findings filed by the parties, the Court finds and concludes as follows.
The project property, owned by Appellee-Applicant Dena Wager, is an irregular 1.2-
acre (53,542-square-foot) parcel of relatively flat land with frontage on two streets:
Archibald Street and Intervale Avenue, in the General Commercial (GC) mixed-use zoning
district of the City of Burlington. Because the lot has frontage on two streets, it is
considered to have two front yards and no rear yard, with the remainder of the lot lines
defining side yards.
An existing building is located on the portion of the property with frontage on
Archibald Street. The building, known as the Burgess Electric2[2] building, was constructed
in the 1970s and consists of a 11,300-square-foot concrete block building with a 980-
square-foot shed attached to the rear (northeast) corner of the building, for a total building
square footage of 12,280 square feet. The shed is used for the storage of lengths of
PVC pipe and other electrical conduit material.
The building houses a wholesale electrical supply business that supplies materials
to contractors and does a small amount of walk-in retail business as well. The business=
operating hours are from 7:00 a.m. to 4:30 p.m. Contractors come to the property to pick
up materials needed for their jobs; they also come in to order materials to be delivered by
2[2] The business operated in the building is Green Mountain Electric Supply; however, the
building is still commonly referred to as, and retains the sign for, Burgess Electric. the business directly to job sites in the area. The business has five employees, including
the manager, who work full-time on-site, and an outside sales person who comes to the
building on a daily basis. Approximately three contractors per day are waiting at the site
before the business opens at 7:00 a.m. to pick up materials prior to starting their work
day; throughout the early morning hours, approximately three contractors= or other
customers= vehicles are there at any given time, although each customer only spends less
than ten minutes at the business. Between 8:00 a.m. and noon, no more than one or two
customers= vehicles occupy the parking area at the business at any given time. The peak
use hour for the parking areas by customers at the property tends to occur between 6:30
and 7:30 in the morning. Deliveries are made to the property daily at about 1:30 to 2:00
p.m. by a UPS truck. Other suppliers= delivery trucks are similar in size to the UPS van,
except that PVC pipe is delivered approximately twice per year by a tractor-trailer.
As it now exists, the front of the building at Archibald Street is faced with brick,
topped by a false mansard shingled roof edge. It presents a blank brick wall to the street,
except for a glass door in the center of the wall, allowing walk-in access to the office or
sales area for the business. The approximately 25-foot-wide area of the property between
the front of the building and the street is paved and used for parking of one or two
vehicles.
To the west of the building is a driveway lane wide enough for a tractor-trailer; the driveway extends northerly across the property to exit at the Intervale Avenue curb cut.
Between the driveway next to the building and the westerly property line is an additional
paved area used for parking for approximately eleven vehicles. There is a door in the
west side of the building, as well as two separate entrances at the rear of the building: a
loading dock and an overhead door. A large additional paved area is available, though
less convenient, for vehicle parking at the rear of the building, to the rear or north of the
loading dock area.
As it now exists, the property is completely surrounded by a chain link fence,
installed in 1993 after the property was cleaned up from years of unauthorized use and
dumping, including the clearing of wooded areas on the site. At present, gates at both
streets are locked after business hours.
The area is a mixed-use area, with single and multi-family residential uses,
commercial uses, recreational uses, community uses and garage uses nearby. Across
Archibald Street from the property is a multi-building, 20-unit affordable housing project
known as Thelma Maple, with 35 spaces of off-street parking. Of the spaces available to
the tenants and visitors at Thelma Maple, 17 units account for 20 tenants= cars.
Moreover, the Thelma Maple parking area is used by unauthorized vehicles, especially in
the winter during the on-street parking bans.
Along Intervale Avenue near the project are 2- or 22-story houses, some in single-family use and some in multiple unit rental use. On both streets the buildings are
located very close to the sidewalk. Many, if not most, of the older houses in the area do
not have sufficient off-street parking to accommodate the parking demand of their tenants
and visitors. During events at the nearby recreational facilities, and during the winter, it is
difficult to find parking spaces on the street. Appellee-Applicants= examination of the
availability of on-street parking was conducted on only a few non-representative summer
days and did not extend into the evening as would have been necessary to reflect the
nearby recreational uses= parking demand.
Appellee-Applicants propose to build a 27-unit, affordable housing project, to be
known as Roosevelt Apartments, at the Intervale Avenue end of the property, in an angled,
three-story, flat-roofed building, designed so that the end of the building faces the Intervale
Avenue frontage. It would be higher than, and present a larger facade than the other
nearby houses on Intervale Avenue. Those houses generally have the gable end of a
peaked roof or one side of a hipped roof facing the street, or, if flat-roofed, are not as tall.
The building is attractive in design, with horizontal detail to reduce the visual scale of the
building, and with an angled shape to reduce the potentially monolithic appearance of such
a large building. It is landscaped and includes a play area near the rear of the building.
The proposed Roosevelt Apartments building does not include any basement area
or any underground or partially-underground parking. Appellee-Applicants propose to provide 21 off-street parking spaces to serve the building. They request a parking waiver
and, in connection with the proposed waiver, propose that the tenants be authorized to use
the eleven spaces at the Burgess Electric when the business is closed, that is, after 4:30
p.m. until just before 7:00 a.m. The waiver request in evidence as Exhibit 16 also
proposed the lease of ten3[3] spaces at the Burlington Housing Authority=s Riverside
project, on a dual use basis, that is, to be shared with a nearby health clinic.
Appellee-Applicants also propose to remove the chain link fencing and the gates on
both street frontages of the property, to install a 980-square-foot addition on the front of
the Burgess Electric building, with landscaping set into a jog in the front of the addition, a
short pedestrian path to the front door, a mural occupying the area of a storefront window,
and a remodeled roofline. They propose to remove the equivalent-sized shed from the
back of the building, so that the total area of the building will be 12,2804[4] square feet as
before. Appellee-Applicants propose parking, walkways, and associated landscaping to
3[3] Appellee-Applicants= memorandum, at footnote 5, refers to five spaces as being >offered,=
rather than ten. Section 10.1.13 of the Zoning Ordinance allows consideration of the availability
and duration of off-site parking spaces up to 400' distant, but it must be documented in writing
prior to the approval. No such documentation was in evidence; in addition, the distance of these
potential spaces from the project was not provided to the Court.
4[4] The project proposal in evidence as Exhibit 5 states (on page 2) that the total square
footage of the Burgess Building will be 12,787, but that narrative appears to have predated the
reduction in size of the proposed front addition to the building. serve the two proposed uses.
They propose that the driveway be one-way onto the property from Archibald
Street, past the loading dock area and to the parking lot for the housing project, so that all
Burgess Electric business traffic would exit through the Intervale Avenue curb cut. They
propose that the Intervale Avenue curb cut and the Roosevelt Apartments parking area
serve two- way traffic. Appellee-Applicants do not propose to control the Archibald Street
entrance or the lane from the loading dock area into the Roosevelt Apartments parking lot
with a gate capable of being operated only by authorized tenants after hours, to prevent
unauthorized parking use of the Burgess Electric parking spaces. Appellee-Applicants
propose to incorporate into the proposal and to comply with the conditions imposed by the
DRB in its approval, including the reduction of the width of the curb cut and traveled lane
from Archibald Street.
Question 5 of the Statement of Questions
The question of whether the proposed project constitutes an alteration or
enlargement of an existing non-conforming use depends on identifying the existing Burgess
Electric building=s compliance or non-compliance with any of the requirements in the
Zoning Ordinance applicable to the proposal. We must then analyze whether the proposed
project results in any new or greater non-compliance with any dimensional requirements or
in a failure to meet parking requirements. The existing Burgess Electric building appears to comply with all the dimensional
requirements for the district. No front or side setbacks are required. The building and its
existing paved areas appear easily to meet the 80% lot coverage requirement.
The question of what parking requirements apply to the existing Burgess Electric
building use depends upon which use category is appropriate to describe the business.
Both wholesale sales and wholesale distribution uses are conditional uses in the district.
While these terms are not specifically defined in the ordinance, they can both be given
meaning if the distinction between them is that a >wholesale distribution= business delivers
to retail outlets or contractors off the business premises, while a >wholesale sales= business
provides the purchased materials and supplies to the contractor at the business premises.
This distinction also makes sense of the difference in parking requirements between the
two categories in the Zoning Ordinance, as more customers will come to and need to park
at a >wholesale sales= business than a >wholesale distribution facility.= Accordingly, parking
requirements are set by the Zoning Ordinance at one space per 150 square feet of gross
floor area for a >wholesale sales= business, and one space per 500 square feet for a
>wholesale distribution facility.=
The Burgess Electric building use does not fall within the definition of the
>warehouse, retail= use category; that category applies to >the sale of goods, either in bulk
or as individual retail items, to the general public or to [members],@ from a warehouse type of facility, such as the examples of Costco or Sam=s Club given by the City in its
memorandum. Nor does the Burgess Electric building use fall within the definition of a
general >warehouse= use category; that category applies to buildings used primarily for the
storage of goods or materials, and although the category may include distribution, it does
not include direct sales to contractors, as occurs on a daily basis at the Burgess Electric
building.
It is more difficult to determine what percentage of the Burgess Electric building
use should be categorized as >wholesale sales= as opposed to >wholesale distribution,= as
little evidence was presented from which the Court could make that determination.
However, the result in this decision is the same regardless of the percentage used. Even
assuming that the entire facility should be categorized as >wholesale distribution facility,=
the existing use would require 255[5] off-street parking spaces as calculated under the
Zoning Ordinance.
Under '10.1.4, an existing structure or land use is not subject to the parking
requirements of Article 10 of the Zoning Ordinance, so long as the kind or extent of use is
5[5] Calculated as 12,280 square feet divided by 500 square feet per required space equals
24.56 spaces, rounded up to 25. By comparison, if the business were calculated at 90%
wholesale distribution facility and 10% wholesale sales, 30 spaces would be required; and if the
business were calculated at 75% wholesale distribution facility and 25% wholesale sales, 49
spaces would be required. not changed; the section also requires that Aany parking facilities now serving such
structures shall not in the future be reduced below such requirements.@
Appellee-Applicants appear to have assumed that the existing parking now serving
the existing Burgess Electric building was the approximately eleven spaces to the west of
the building which are to be striped and retained in the proposal. However, prior to the
proposal the existing parking serving the Burgess Electric building also included the two
spaces in the paved area in front of the building, plus the large expanse of paved or at
least flat area in back of the building leading to the existing driveway exiting at Intervale
Avenue. The existing area in the back available for parking is at least as large as the
area on the side and the front, although it is not striped for parking spaces any more than
is the area in front or to the west of the building. Because of the expanse of flat area
behind the building available for Burgess Electric parking prior to the present proposal, the
existing building is not nonconforming as to parking. That is, it has room for 25 off-street
parking spaces, though they are not striped on the pavement.
As proposed, the project removes the two parking spaces in front and all the
spaces in back, leaving only 11 spaces6[6] to the west of the building and 1 inside the
6[6] Of these eleven spaces, four are sized for compact cars, which may be technically
allowed, as eight compact spaces are allowed within the total of 32 spaces provided on site for the
project as a whole, '10.1.15, but in any future proceedings before the DRB, the parties should building, plus the loading spaces in the back. Under '10.1.4 the 25 spaces serving the
existing building cannot be reduced below that number without a parking waiver for the
Burgess Electric parking, as well as the waiver for the new parking that would be required
for the Roosevelt Apartments. Accordingly, the application must be DENIED, without
prejudice to Appellee-Applicants= application to the DRB for an additional parking waiver
attributable7[7] to the Burgess Electric required parking.
consider whether it is realistic to expect that building contractors would routinely collect supplies in
a compact vehicle rather than in a full-size pickup truck or van.
7[7] Appellee-Applicants did not request such a waiver before the DRB and did not provide
evidence of any study or count of the actual parking demand for the existing Burgess Electric use.
The parking required for the proposed 27-unit apartment building, absent a waiver, would total 46
spaces. (8 for the first 4 apartments plus 34.5 for the remaining 23 apartments, plus an
additional 10% of those (an additional 3.45 spaces) for visitor parking, for a total of 45.95,
rounded to 46). The DRB treated the required parking for the whole project as 60 spaces,
treating the parking required for the existing building as 14 spaces rather than the 25 as calculated
here. Appellant also argues that the total lot coverage of the project will become
nonconforming, that is, it will exceed the 80% allowed in the Zoning Ordinance. The
application narrative in Exhibit 5, at p. 3, described the lot coverage as 79%, and noted
that the project qualifies for an inclusionary housing bonus of up to 92% lot coverage.
The lot coverage of the revised application was not recalculated at trial; any further or
revised application should address this issue as well.
Question 3 of the Statement of Questions
Aside from the issue of the parking attributable to Burgess Electric, we must
determine whether the project meets the parking requirements of the Zoning Ordinance for
the Roosevelt Apartments use.
As calculated in footnote 7 above, absent any waivers, 46 spaces would be
required for the 27-unit apartment building. Appellee-Applicants request a waiver to
supply only 21 spaces, based on an anticipated lower demand for parking for affordable
housing units, together with the 4:30 p.m.-to-7:00 a.m. use of the Burgess Electric
spaces, and the availability of public bus transportation nearby. On-street parking is not
always available, and there is a high demand for it from other neighborhood uses,
including rental housing with insufficient off-street parking and parking for events at the
nearby recreational facilities. To avoid making the on-street parking problems in the neighborhood any worse than they already are, it is important that this project have an
adequate number of off-street spaces available to it.
Affordable housing units in the Burlington area require fewer parking spaces per
unit than do market-rate housing units. However, based on the analysis of the census
data for families in this census district with a household income even lower than the
maximum eligibility income for this project, and an analysis of the Burlington Community
Land Trust (BCLT) tenant and parking data adjusted for non-drivers, the appropriate
measure of parking demand for the Roosevelt Apartments units is one vehicle per dwelling
unit, not the 0.67 vehicle per unit suggested by the BCLT data. The BCLT data, even
after being updated and corrected for some non-drivers, is derived from information
obtained for the issuance of parking stickers for tenants, so that it does not necessarily
reflect the total vehicle ownership of tenants who choose to park on the street rather than
to apply for spaces. In addition, the BCLT data undercounted now-vacant apartments.
Thus the minimum number of spaces that should be provided for this proposal is 27
spaces, unless other waiver criteria are also met.
Because the project proposal provides only 21 spaces for the this use, we must
also analyze whether any other reduction in the required number of spaces can be based
on the dual use of the Burgess Electric spaces, or on the availability and projected use of
alternative transportation modes, that is, the public transportation bus system, or walking or bicycling. '10.1.19(a), (b) and (c).
As proposed in this application, the dual use of the Burgess Electric spaces cannot
justify a reduction below the 27 spaces discussed above. First, Burgess Electric would
have its heaviest parking demand between about 6:45 and 7:45 in the morning, so it
would be more essential for tenants to remove their cars promptly before 7:00 a.m. than it
would be if the shared use were a 9-to-5 office building or a restaurant or movie theater
or a retail use with later opening hours or later peak hours. However, the most likely
tenants to need these spaces would be those returning latest at night, after the 21 spaces
proposed for the apartment building had been filled. The likelihood that they actually
would get up in time to remove their cars early enough to meet the needs of the Burgess
Electric use, without some sort of public ticketing or towing enforcement of the shared use
time frame, would be likely to depend on how late they returned, and on whether they
were working a late night shift. More importantly, unless both the Burgess Electric
driveway intersection with Archibald Street and the entrance to the Roosevelt Apartments
parking lot from the Burgess Electric driveway are equipped with gates that are closed at
night and are operable by a card reader or key pad and only by authorized tenants, there
will be no way to limit the nighttime use of the Burgess Electric spaces to those authorized
tenants, even if they are willing to get up very early in the morning to remove their cars.
Further, without a gate between the Burgess Electric parking area and the Roosevelt Apartments parking area, drivers who entered the apartment lot at night and found it to be
full would be likely to drive into the Burgess Electric lot the wrong way, to minimize the
chance that a space in that lot would be gone by the time they went out of the Intervale
Avenue exit of the apartment lot and around the block to the Archibald Street entrance to
enter the Burgess Electric lot from the correct direction. Late at night, the parking of such
a >wrong-way= car backing into an angled space would not be likely to pose a substantial
safety problem, but it would create a safety conflict in the morning, as it would have to
drive out the >in only= driveway onto Archibald Street, conflicting with vehicles attempting to
enter that driveway.
With regard to the >alternative transportation modes= justification for a parking
waiver, Appellee-Applicants presented evidence of the availability of bus service and the
proximity of the downtown Burlington area for access by walking. However, Appellee-
Applicants did not meet the requirement of '10.1.19(c) to show the projected use by these
tenants of either alternative transportation mode. That is, the two bus routes serving this
area are available to the tenants only from just before 7:00 in the morning to about 6:30
in the evening, Monday through Saturday, with a reduced schedule on Saturday. On
Sunday the area is served by a single bus circulating on a city-wide Sunday route. If
tenants had jobs on an evening or night shift that were outside walking distance, they
would be more likely to need to keep a car. Further, if the bus routes are convenient for daytime commuting, a tenant with a car might be more likely to need a daytime parking
space to leave a car in the lot, so as to commute to work by bus or by walking. With
regard to walking, because this proposal is not in the immediate downtown area, the Court
has insufficient evidence of how far the essential neighborhood services are and how far
people are likely to walk to access them. Without such evidence of the projected use of
these alternative transportation modes, no additional waiver below the 27 spaces can be
based on the criterion in '10.1.19(c).
Question 4 of the Statement of Questions
This question asked whether the project=s design is appropriate under Article 6 of
the Zoning Ordinance, Aincluding but not limited to whether the Project relates
harmoniously to the scale and architecture of existing buildings and/or disrupts traditional
neighborhood patterns.@ Appellant=s post-hearing filings discuss the >relates harmoniously=
issue and also discuss whether the on-site vehicular and pedestrian circulation is
adequate. Appellee-Applicant argues that Appellant failed to raise this latter issue in the
Statement of Questions, so that it should not be considered by the Court. However,
Question 4 allows the Court to consider on-site circulation under '6.1.10(d) as it is within
Article 6 and was litigated at trial.
On-site circulation The on-site circulation designed for the project reduces the Archibald Street
(Burgess Electric) curb cut and driveway lane in width so that it would be clearly a one-
way entrance-only driveway, connecting with and exiting through the Roosevelt Apartments
parking lot through the two-way curb cut onto Intervale Avenue. With signage requiring
those vehicles to stop at the entrance to the Roosevelt Apartments parking lot from the
Burgess Electric driveway, and preventing vehicles from entering the Burgess Electric
driveway in the wrong direction from the Roosevelt Apartments parking lot, such a
vehicular path should be safe. The fact that vegetation in the corner of the neighboring
property blocks visibility for vehicles passing from the Burgess Electric driveway into the
Roosevelt Apartments parking lot would not be unsafe if the stop bar and stop sign were
properly located just past that corner. With an appropriate condition requiring such a stop
sign and stop bar, and >wrong way= signage at that location facing the other direction, the
proposed on-site circulation would meet '6.1.10(d).
Harmonious relationship
The alterations to the Burgess Electric building, and the design of its Archibald
Street facade, meet the criterion of '6.1.10(a). Replacing the asphalt-and-chain-link front
>yard= and blank brick facade of the building with the proposed addition and landscaping
will make it more compatible with the Archibald Street streetscape, as most of the other
buildings in the area are located very close to the sidewalk. The proposed roof cornice will be more compatible with the nearby nineteenth and early twentieth century buildings
than was the false mansard shingled roof edge. The jog in the front of the building,
landscaped with two small trees, will be more harmonious with the mixed residential and
commercial neighborhood than was the large expanse of flat blank wall. The mural area
will evoke the proportions of a storefront, even without an actual glass storefront window. On other hand, although it demonstrates many good design features, the bulk of
the proposed housing building at its Intervale Avenue frontage does not relate
appropriately to its context and does not relate harmoniously to the scale of existing
residential buildings in the vicinity along Intervale Avenue. '6.1.10(a). The placement of
the building end on to Intervale Avenue, the angled shape of the building, the porches,
and the horizontal cornice features at the roofline and the top of the ground floor story, are
all good design features, but they do not counteract the effect of the bulk of the Intervale
Avenue end of the building. To meet the requirements of '6.1.10(a), the Intervale
Avenue end of the building would have to be reduced in height or bulk at least to the
depth of the first set of apartments on that end of the building, so as to present to the
street a more harmonious relationship and prevent the building from looming over the
neighboring buildings. It is possible that a two-story or peaked or hip roof section or other
redesign of the front segment of that end of the building could meet the standards of
'6.1.10(a), but it is not the role of the Court to suggest any specific redesign parameters.
Based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellee-
Applicants= application is DENIED, for the reasons stated above, without prejudice to
submittal of a revised application or revised designs for an affordable housing or other
project on the same property as the Burgess Electric building. Dated at Berlin, Vermont, this 7th day of July, 2005.
______________________________________ Merideth Wright Environmental Judge