STATE OF VERMONT
ENVIRONMENTAL COURT
} Appeal of Fisher } Docket No. 207-11-03 Vtec } }
Decision and Order on Cross-Motions for Partial Summary Judgment
Appellant Kevin Fisher appealed from a decision of the Development Review Board
(DRB) of the City of Burlington, granting Major Impact Development approval and site plan
approval for an addition to Appellee-Applicant Lund Family Center, Inc.’s existing building,
and for related site work. Appellant is represented by Lisa B. Shelkrot, Esq.; Appellee-
Applicant Lund Family Center, Inc. (the Center) is represented by Andrew R. Strauss,
Esq. and Robert F. O’Neill, Esq.; and the City is represented by Kimberlee J. Sturtevant,
Esq.
Both Appellant and Appellee-Applicant have moved for summary judgment on the
issue of whether the proposal is eligible for consideration within the use category of
“community house.” The Court issued an informal, preliminary ruling at a conference, but
advised the parties that an additional breakdown of the usage numbers provided by Appellee-Applicant would be required before the Court could complete its work on the
pending motions, and that certain issues would require an evidentiary hearing. The parties
agreed to bifurcate the evidentiary hearing. A June 9, 2005 hearing was set for disputed
factual issues relating to whether certain categories of activities conducted at the Center
are considered within the Center’s principal use (or uses[1]), are accessory to that use or
uses, or are separate uses which are not eligible for approval in this district and which
must be conducted at another location. If the ruling resulting from these motions and that
hearing allows the Center to proceed with the application on its merits before this Court,
the merits hearing has been scheduled for June 23 and 24, 2005.
The following facts are undisputed unless otherwise noted. The Lund Family
Center operates a residential treatment program for parenting or pregnant women and girls
between the ages of 12 and 27, who have a mental health or a substance abuse
diagnosis, or both. It has operated its program in its current building at 76 Glen Road for
many[2] years; this property is in the Residential Low Density (RL) zoning district.
The Center provides a residence for a maximum of 20 clients at any time. The
Center provides meals to the residents, their children, and staff from a central kitchen and
dining room, and provides lunches to day students and to children in the on-site childcare
program. The Center provides an on-site school program for residents, former residents, and
for approximately three day students per year who qualify for the program under state
guidelines, serving approximately 25 students per year, with a maximum of 12 students at
any given time.
The Center provides counseling, classes and programs on-site to residents and
former residents on a variety of related issues, including childbirth, adoption and parenting,
living skills, substance abuse treatment, and smoking cessation. Material facts are in
dispute, or at least have not been provided in these motions and should be presented at
the June 9, 2005 hearing, as to the extent to which the Center provides similar classes
and programs away from the Center to other similar populations, including a teen
pregnancy outreach program at Vermont middle and high schools. Material facts are in
dispute, or at least have not been provided in these motions and should be presented at
the June 9, 2005 hearing, as to the extent to which the Center provides any of these
programs on-site to individuals who have never been residents of the Center.
The Center provides welfare-to-work and transitional living services, adoption
assistance, and parent support to former residents after they have moved back into the
community, and provides these services to other similar populations in the Chittenden
County area. Material facts are in dispute, or at least have not been provided in these
motions and should be presented at the June 9, 2005 hearing, as to the extent to which the Center provides any of these programs at the Center to individuals who have never
been residents of the Center.
The Center provides an on-site child care center licensed for up to twenty-nine
children[3] as young as two weeks of age. The children attending the on-site child care
center are the children of residents, former residents and current staff of the Center, and
as space allows, children of the public not in those categories. Material facts are in
dispute, or at least have not been provided in these motions and should be presented at
the June 9, 2005 hearing, as to whether the inclusion of children in the child care
program from the wider community has a therapeutic or programmatic purpose.
The Center maintains on-site business and administrative offices to support all its
services and an on-site development office to bring in funding, donations and volunteer
assistance for all its programs.
The parties dispute how certain uses of the new addition and existing space in the
facility should be categorized as principal or accessory uses with respect to this facility, or
as uses which are not allowed in this district under the Zoning Ordinance. The parties
agree as to the square footage (total 18,130) allocated to each proposed use, as follows:
Residential (except kitchen & dining) 8041
Kitchen & Dining 1669
On-site Education 2123 Childcare 2080
Adoption 1560
Child & Family Services 918
Parent Education 453
Administration and Business office 892
Development Office 394
Because of the unresolved factual questions that will be the subject of the June 9,
2005 hearing, we cannot now definitively determine the percentages of uses that are
allocated to principal and accessory uses. Based on the revised usage chart filed on May
11, 2005, we can make a preliminary estimate as follows. We must allocate certain staff
functions proportionally to the ‘former and present resident’ category, on the one hand,
and to the ‘never-resident’ category on the other. Until the facts are established at the
June 9, 2005 hearing, we provisionally make this calculation exclusive of the adoption and
child and family services program, other than as it serves residents and former residents,
and provisionally count the administration, business, and development offices as accessory
to the principal use. Those portions of the adoption program and the child and family
services program that serve persons other than residents and former residents, while they
may be programmatically related to the Center’s mission, are not uses that are allowed to be conducted at the subject property, as neither general office uses nor medical
(counseling) offices are allowed in the district, and community centers are only allowed on
a ‘major or collector street.’ At the June 9, 2005 hearing, Appellee-Applicant may wish to
present evidence as to how the space for the adoption waiting room, meeting rooms, and
the adoption and child and family services counseling rooms will be re-allocated if those
programs may not be run from the subject property.
A total of 15,900 square feet remains after the adoption and child and family
services space allocated to never-resident programs is removed. The Court understands
that this will have to be added back in and recalculated based on the June 9, 2005
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STATE OF VERMONT
ENVIRONMENTAL COURT
} Appeal of Fisher } Docket No. 207-11-03 Vtec } }
Decision and Order on Cross-Motions for Partial Summary Judgment
Appellant Kevin Fisher appealed from a decision of the Development Review Board
(DRB) of the City of Burlington, granting Major Impact Development approval and site plan
approval for an addition to Appellee-Applicant Lund Family Center, Inc.’s existing building,
and for related site work. Appellant is represented by Lisa B. Shelkrot, Esq.; Appellee-
Applicant Lund Family Center, Inc. (the Center) is represented by Andrew R. Strauss,
Esq. and Robert F. O’Neill, Esq.; and the City is represented by Kimberlee J. Sturtevant,
Esq.
Both Appellant and Appellee-Applicant have moved for summary judgment on the
issue of whether the proposal is eligible for consideration within the use category of
“community house.” The Court issued an informal, preliminary ruling at a conference, but
advised the parties that an additional breakdown of the usage numbers provided by Appellee-Applicant would be required before the Court could complete its work on the
pending motions, and that certain issues would require an evidentiary hearing. The parties
agreed to bifurcate the evidentiary hearing. A June 9, 2005 hearing was set for disputed
factual issues relating to whether certain categories of activities conducted at the Center
are considered within the Center’s principal use (or uses[1]), are accessory to that use or
uses, or are separate uses which are not eligible for approval in this district and which
must be conducted at another location. If the ruling resulting from these motions and that
hearing allows the Center to proceed with the application on its merits before this Court,
the merits hearing has been scheduled for June 23 and 24, 2005.
The following facts are undisputed unless otherwise noted. The Lund Family
Center operates a residential treatment program for parenting or pregnant women and girls
between the ages of 12 and 27, who have a mental health or a substance abuse
diagnosis, or both. It has operated its program in its current building at 76 Glen Road for
many[2] years; this property is in the Residential Low Density (RL) zoning district.
The Center provides a residence for a maximum of 20 clients at any time. The
Center provides meals to the residents, their children, and staff from a central kitchen and
dining room, and provides lunches to day students and to children in the on-site childcare
program. The Center provides an on-site school program for residents, former residents, and
for approximately three day students per year who qualify for the program under state
guidelines, serving approximately 25 students per year, with a maximum of 12 students at
any given time.
The Center provides counseling, classes and programs on-site to residents and
former residents on a variety of related issues, including childbirth, adoption and parenting,
living skills, substance abuse treatment, and smoking cessation. Material facts are in
dispute, or at least have not been provided in these motions and should be presented at
the June 9, 2005 hearing, as to the extent to which the Center provides similar classes
and programs away from the Center to other similar populations, including a teen
pregnancy outreach program at Vermont middle and high schools. Material facts are in
dispute, or at least have not been provided in these motions and should be presented at
the June 9, 2005 hearing, as to the extent to which the Center provides any of these
programs on-site to individuals who have never been residents of the Center.
The Center provides welfare-to-work and transitional living services, adoption
assistance, and parent support to former residents after they have moved back into the
community, and provides these services to other similar populations in the Chittenden
County area. Material facts are in dispute, or at least have not been provided in these
motions and should be presented at the June 9, 2005 hearing, as to the extent to which the Center provides any of these programs at the Center to individuals who have never
been residents of the Center.
The Center provides an on-site child care center licensed for up to twenty-nine
children[3] as young as two weeks of age. The children attending the on-site child care
center are the children of residents, former residents and current staff of the Center, and
as space allows, children of the public not in those categories. Material facts are in
dispute, or at least have not been provided in these motions and should be presented at
the June 9, 2005 hearing, as to whether the inclusion of children in the child care
program from the wider community has a therapeutic or programmatic purpose.
The Center maintains on-site business and administrative offices to support all its
services and an on-site development office to bring in funding, donations and volunteer
assistance for all its programs.
The parties dispute how certain uses of the new addition and existing space in the
facility should be categorized as principal or accessory uses with respect to this facility, or
as uses which are not allowed in this district under the Zoning Ordinance. The parties
agree as to the square footage (total 18,130) allocated to each proposed use, as follows:
Residential (except kitchen & dining) 8041
Kitchen & Dining 1669
On-site Education 2123 Childcare 2080
Adoption 1560
Child & Family Services 918
Parent Education 453
Administration and Business office 892
Development Office 394
Because of the unresolved factual questions that will be the subject of the June 9,
2005 hearing, we cannot now definitively determine the percentages of uses that are
allocated to principal and accessory uses. Based on the revised usage chart filed on May
11, 2005, we can make a preliminary estimate as follows. We must allocate certain staff
functions proportionally to the ‘former and present resident’ category, on the one hand,
and to the ‘never-resident’ category on the other. Until the facts are established at the
June 9, 2005 hearing, we provisionally make this calculation exclusive of the adoption and
child and family services program, other than as it serves residents and former residents,
and provisionally count the administration, business, and development offices as accessory
to the principal use. Those portions of the adoption program and the child and family
services program that serve persons other than residents and former residents, while they
may be programmatically related to the Center’s mission, are not uses that are allowed to be conducted at the subject property, as neither general office uses nor medical
(counseling) offices are allowed in the district, and community centers are only allowed on
a ‘major or collector street.’ At the June 9, 2005 hearing, Appellee-Applicant may wish to
present evidence as to how the space for the adoption waiting room, meeting rooms, and
the adoption and child and family services counseling rooms will be re-allocated if those
programs may not be run from the subject property.
A total of 15,900 square feet remains after the adoption and child and family
services space allocated to never-resident programs is removed. The Court understands
that this will have to be added back in and recalculated based on the June 9, 2005
evidence. If day care for children of staff and never-residents is excluded, then 13,659
square feet or 85.9% is allocated to the principal use, that is, serving residents and former
residents. If day care for children of staff and never-residents is included, then 14,285
square feet or 89.8% is allocated to the principal use, that is, serving residents and former
residents. Material facts are in dispute as to whether the on-site education of never-
residents, and the associated meals and staff time serving them, and the administration,
business and development office functions should all be counted as accessory, or whether
some of them, like the adoption and child and family services, must be conducted off-site.
Even if they are all counted as accessory, it appears that the Center will qualify for
consideration as a “community house” on the merits of its application. Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
both Motions for Summary Judgment are denied at the present time in that material facts
remain in dispute. However, at the close of the June 9, 2005, hearing, it should be
possible to resolve all the legal issues posed by the motions. We will hold a further
conference at that time or on June 10, 2005 by telephone, so that all parties can prepare,
if necessary, for the hearing scheduled for June 23 and 24.
Done at Berlin, Vermont, this 7th day of June, 2005.
_________________________________________________ Merideth Wright Environmental Judge
[1] The question of whether the Zoning Ordinance allows more than one principal use per lot is also before the Court in these motions. Nothing in the Burlington ordinance precludes multiple uses on a single lot. Unlike the cases cited by Appellant, the DRB has not interpreted the ordinance to preclude multiple uses on a single lot. However, each proposed use must be within an allowed category for the district. In the present case, the child care program may qualify for consideration as a separate principal use; however, depending upon the evidence to be presented at the hearing on June 9, 2005, Appellee- Applicant may wish to proceed with it under the present application.
[2] The question of whether any of the proposed uses for the building may be eligible for analysis as a pre-existing, non-conforming use is not before the Court in the present motions.
[3] A child care center for over twenty children is categorized under the Zoning Ordinance as a “large” child care center that is a conditional use in any Residential zoning district.