STATE OF VERMONT
ENVIRONMENTAL COURT
} In re: Howard Center for Human Services } Window Replacement Project } Docket No. 145-6-06 Vtec (Appeal of Howard Center } for Human Services, Inc.) } }
Decision and Order on Cross-Motions for Partial Summary Judgment
Appellant-Applicant (Applicant) Howard Center for Human Services, Inc. appealed
from a decision of the Development Review Board (DRB) of the City of Burlington denying
Applicant’s application to replace windows in the building at 45-47 Clarke1 Street in
Burlington. Applicant is represented by Franklin Kochman, Esq. and the City of Burlington
is represented by Eugene Bergman, Esq. The parties have moved for summary judgment
on Question 1 of the Statement of Questions: whether the proposed window replacement
is subject to design review pursuant to Article 6 of the Burlington Zoning Ordinance. The
following facts are undisputed unless otherwise noted.
Applicant applied for a Certificate of Appropriateness to replace the primary
window sashes, in the building’s wooden, double-hung windows, with vinyl inserts. The
proposal does not involve replacing the exterior window frames or surrounding decorative
woodwork; it involves replacing the glass with thermal glass, framed by vinyl sashes. This
motion for summary judgment does not relate to the merits of this replacement, or whether
it has been done in other buildings along this street, or whether it should or should not be
1 All the documents refer to the spelling as “Clarke” Street with the exception of the 1973 maps of the city’s land use areas, which spells it as “Clark” Street; however, the parties do not dispute its location.
1 approved for this building.
The parties do not dispute that the building was constructed in 1887 for a silver
plater named David Mitchell, in a typical Eastlake style, similar to other Italianate houses
in Burlington, and that, among its other features, it has decorative window architraves.
The building entrance was altered in about 1975 when the building was converted into an
architect’s office.
Applicant contests whether the building is located in a Design Review zoning
district, and contests whether the proposed window replacement requires design review
from the DRB under §§6.1.3 and 6.1.4. The City argues that, as well as being in a Design
Review overlay district under §3.2.3(a), the building is an historic building which requires
design review under §3.2.3(b).
Design Review overlay district
Applicant first argues that the 45-47 Clarke Street property is not in a Design Review
overlay district, and therefore should not have been subject to design review for the
window replacement project. Clarke Street is only one block long, bounded by Pearl Street
on its south end and by Grant Street on its north end.
Section 3.2.3 of the Burlington Zoning Ordinance establishes the Design Review
overlay districts to “preserve, protect and enhance those areas within the city containing
structures of historical, architectural or cultural merit.” The Design Review overlay
districts established in §3.2.3 are distinct from the different “Historic Buildings” overlay
district established in §3.2.4.
The Design Review overlay districts designated in the four subsections of §3.2.3 are,
in reverse order: in subsection (d), the entire RCO, WRL, WFC-N, C, GC, and E zoning
districts (not applicable to this property); in subsection (c), certain listed major street
corridors (not applicable to this property); in subsection (b), historic buildings (regardless
2 of location); and, in subsection (a), the “Waterfront core, Regional Core and Inner City”
areas, “as delineated in the 1973 Municipal Development Plan for the City of Burlington.”
In January of 1973 the City Council adopted a document entitled “The Official
Comprehensive Master Plan” (the 1973 Plan), and referred to in its text and in the adoption
resolution as the “Comprehensive Plan” or the “Comprehensive Master Plan.” The
adoption resolution states that the 1973 Plan was adopted “specifically in accordance with
the provisions of 24 V.S.A.[] Section 4385,” codified under subchapter 5 of 24 V.S.A.
Chapter 117. Subchapter 5 is entitled “Municipal Development Plan;” the subchapter
generally uses the term “plan,” which in turn is defined in 24 V.S.A. §4303(18) to mean “a
municipal plan adopted under section 4385.”
Applicant argues that sufficient ambiguity is raised by the difference between the
title of the 1973 Plan and its reference in the Ordinance to exempt Applicant’s building
from the requirement of undergoing Design Review. However, despite the fact that the
title of the 1973 Plan is “Official Comprehensive Master” Plan rather than “Municipal
Development” Plan, there is no ambiguity that the 1973 Municipal Development Plan cited
in §3.2.3(a) of the Ordinance2 is the Comprehensive Master Plan adopted in 1973.
Applicant does not claim that any other municipal plan was adopted in 1973. Moreover,
the 1973 Plan was adopted specifically under the provisions of the state enabling act
2 Section 1.1.6 of the Ordinance also expressly states that the Ordinance was adopted to “implement the planning policies adopted for the city as reflected in the Municipal Development Plan and other planning documents.” Thus, even if the 1973 Comprehensive Master Plan were not the “Municipal Development Plan” referred to in §3.2.3(a) of the Ordinance, it would be an “other planning document” which the Ordinance was adopted to implement. In a paragraph entitled “Inner City Residential Area Policies,” the 1973 Plan states that the “city shall require appropriate design . . . through design review throughout the Inner City Area.” The Court’s “paramount function” in interpreting an ordinance is to give effect to such legislative intent.” Appeal of Weeks, 167 Vt. 551, 554 (1998).
3 entitled “Municipal Development Plan.” There is therefore no ambiguity regarding which
plan is referenced in the Ordinance that would require resort to the principles of statutory
construction.
Applicant next argues that the “Inner City” area referenced in §3.2.3(a) of the
Ordinance is insufficiently defined in the 1973 Plan to determine whether 45-47 Clarke
Street is located within the “Inner City” area. The 1973 Plan designated several “land use
areas” within the City. One of the land use “areas” designated in the 1973 Plan is the
“Inner City Residential Area,” which is defined in the 1973 Plan as having two sections, one
to the north of the Regional Core and one to its south. The northerly section is “[b]ounded
by the Waterfront Area, Central Vermont Railroad line and North Willard Street (as
extended northerly) to the north of the Regional Core.” The portion of the Waterfront Area
pertinent to the northerly Inner City area is described in the 1973 Plan as being bounded
on the east by North Avenue and Battery Street. The Regional Core area is described in the
1973 Plan as being bounded on the north by Pearl Street. Applicant’s property at 45-47
Clarke Street, and the entirety of Clarke Street, is located north of Pearl Street, west of
North Willard Street, south of the Central Vermont Railroad line and east of Battery Street
and North Avenue. Applicant’s property is therefore located within the “Inner City
Residential Area” described in the text of the 1973 Plan, even if there were no map
appended to that Plan.
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STATE OF VERMONT
ENVIRONMENTAL COURT
} In re: Howard Center for Human Services } Window Replacement Project } Docket No. 145-6-06 Vtec (Appeal of Howard Center } for Human Services, Inc.) } }
Decision and Order on Cross-Motions for Partial Summary Judgment
Appellant-Applicant (Applicant) Howard Center for Human Services, Inc. appealed
from a decision of the Development Review Board (DRB) of the City of Burlington denying
Applicant’s application to replace windows in the building at 45-47 Clarke1 Street in
Burlington. Applicant is represented by Franklin Kochman, Esq. and the City of Burlington
is represented by Eugene Bergman, Esq. The parties have moved for summary judgment
on Question 1 of the Statement of Questions: whether the proposed window replacement
is subject to design review pursuant to Article 6 of the Burlington Zoning Ordinance. The
following facts are undisputed unless otherwise noted.
Applicant applied for a Certificate of Appropriateness to replace the primary
window sashes, in the building’s wooden, double-hung windows, with vinyl inserts. The
proposal does not involve replacing the exterior window frames or surrounding decorative
woodwork; it involves replacing the glass with thermal glass, framed by vinyl sashes. This
motion for summary judgment does not relate to the merits of this replacement, or whether
it has been done in other buildings along this street, or whether it should or should not be
1 All the documents refer to the spelling as “Clarke” Street with the exception of the 1973 maps of the city’s land use areas, which spells it as “Clark” Street; however, the parties do not dispute its location.
1 approved for this building.
The parties do not dispute that the building was constructed in 1887 for a silver
plater named David Mitchell, in a typical Eastlake style, similar to other Italianate houses
in Burlington, and that, among its other features, it has decorative window architraves.
The building entrance was altered in about 1975 when the building was converted into an
architect’s office.
Applicant contests whether the building is located in a Design Review zoning
district, and contests whether the proposed window replacement requires design review
from the DRB under §§6.1.3 and 6.1.4. The City argues that, as well as being in a Design
Review overlay district under §3.2.3(a), the building is an historic building which requires
design review under §3.2.3(b).
Design Review overlay district
Applicant first argues that the 45-47 Clarke Street property is not in a Design Review
overlay district, and therefore should not have been subject to design review for the
window replacement project. Clarke Street is only one block long, bounded by Pearl Street
on its south end and by Grant Street on its north end.
Section 3.2.3 of the Burlington Zoning Ordinance establishes the Design Review
overlay districts to “preserve, protect and enhance those areas within the city containing
structures of historical, architectural or cultural merit.” The Design Review overlay
districts established in §3.2.3 are distinct from the different “Historic Buildings” overlay
district established in §3.2.4.
The Design Review overlay districts designated in the four subsections of §3.2.3 are,
in reverse order: in subsection (d), the entire RCO, WRL, WFC-N, C, GC, and E zoning
districts (not applicable to this property); in subsection (c), certain listed major street
corridors (not applicable to this property); in subsection (b), historic buildings (regardless
2 of location); and, in subsection (a), the “Waterfront core, Regional Core and Inner City”
areas, “as delineated in the 1973 Municipal Development Plan for the City of Burlington.”
In January of 1973 the City Council adopted a document entitled “The Official
Comprehensive Master Plan” (the 1973 Plan), and referred to in its text and in the adoption
resolution as the “Comprehensive Plan” or the “Comprehensive Master Plan.” The
adoption resolution states that the 1973 Plan was adopted “specifically in accordance with
the provisions of 24 V.S.A.[] Section 4385,” codified under subchapter 5 of 24 V.S.A.
Chapter 117. Subchapter 5 is entitled “Municipal Development Plan;” the subchapter
generally uses the term “plan,” which in turn is defined in 24 V.S.A. §4303(18) to mean “a
municipal plan adopted under section 4385.”
Applicant argues that sufficient ambiguity is raised by the difference between the
title of the 1973 Plan and its reference in the Ordinance to exempt Applicant’s building
from the requirement of undergoing Design Review. However, despite the fact that the
title of the 1973 Plan is “Official Comprehensive Master” Plan rather than “Municipal
Development” Plan, there is no ambiguity that the 1973 Municipal Development Plan cited
in §3.2.3(a) of the Ordinance2 is the Comprehensive Master Plan adopted in 1973.
Applicant does not claim that any other municipal plan was adopted in 1973. Moreover,
the 1973 Plan was adopted specifically under the provisions of the state enabling act
2 Section 1.1.6 of the Ordinance also expressly states that the Ordinance was adopted to “implement the planning policies adopted for the city as reflected in the Municipal Development Plan and other planning documents.” Thus, even if the 1973 Comprehensive Master Plan were not the “Municipal Development Plan” referred to in §3.2.3(a) of the Ordinance, it would be an “other planning document” which the Ordinance was adopted to implement. In a paragraph entitled “Inner City Residential Area Policies,” the 1973 Plan states that the “city shall require appropriate design . . . through design review throughout the Inner City Area.” The Court’s “paramount function” in interpreting an ordinance is to give effect to such legislative intent.” Appeal of Weeks, 167 Vt. 551, 554 (1998).
3 entitled “Municipal Development Plan.” There is therefore no ambiguity regarding which
plan is referenced in the Ordinance that would require resort to the principles of statutory
construction.
Applicant next argues that the “Inner City” area referenced in §3.2.3(a) of the
Ordinance is insufficiently defined in the 1973 Plan to determine whether 45-47 Clarke
Street is located within the “Inner City” area. The 1973 Plan designated several “land use
areas” within the City. One of the land use “areas” designated in the 1973 Plan is the
“Inner City Residential Area,” which is defined in the 1973 Plan as having two sections, one
to the north of the Regional Core and one to its south. The northerly section is “[b]ounded
by the Waterfront Area, Central Vermont Railroad line and North Willard Street (as
extended northerly) to the north of the Regional Core.” The portion of the Waterfront Area
pertinent to the northerly Inner City area is described in the 1973 Plan as being bounded
on the east by North Avenue and Battery Street. The Regional Core area is described in the
1973 Plan as being bounded on the north by Pearl Street. Applicant’s property at 45-47
Clarke Street, and the entirety of Clarke Street, is located north of Pearl Street, west of
North Willard Street, south of the Central Vermont Railroad line and east of Battery Street
and North Avenue. Applicant’s property is therefore located within the “Inner City
Residential Area” described in the text of the 1973 Plan, even if there were no map
appended to that Plan.
Moreover, the map attached to the 1973 Plan sufficiently establishes the boundaries
of each land use area referenced in the 1973 Plan to determine that the entirety of Clarke
St. is within the northerly of the two “Inner City” land use areas shown on the 1973
“Comprehensive Master Plan Land Use Area Map.” The terms “Inner City Residential”
area and “Inner City” area are used interchangeably in the 1973 Plan. Applicant does not
claim that any other “Inner City” area is defined in the 1973 Plan, other than the “Inner City
Residential Area.” There is therefore no ambiguity regarding which Inner City area is
4 referenced in the Ordinance, or the boundaries of that area, that would require resort to the
principles of statutory construction.
Historical Status of Applicant’s building
The City argues that even if there were ambiguity in the boundaries of the Inner City
area, Applicant’s property would require design review in any event as an historic building
under §3.2.3(b)3, as it is a building listed on the Vermont Register of Historic Resources.
Although material facts appear to be in dispute regarding whether or the degree to which
past changes to the building may have affected its historic qualities, the building remains
an historic building subject to design review under §3.2.3(b) as well as under §3.2.3(a).
Substantial Alteration
Applicant argues that, even if the building is within the Design Review overlay
district, the window replacement project does not constitute development or a substantial
alteration for which a Certificate of Appropriateness or DRB approval is required.
First, window replacement that alters trim details or otherwise changes the exterior
appearance of a building is specifically listed in §4.1.3(a) as a type of “land development”
requiring a zoning permit. In a Design Review district, §6.1.4 requires a Certificate of
Appropriateness to be obtained from the DRB before “the commencement of any
development or activity.”
Moreover, the proposed window replacement constitutes “restoration” of the
building, requiring DRB approval of the plan under §6.1.3, regardless of whether it
3 This is distinct from those historic buildings within the “Historic Buildings” overlay district established in §3.2.4, which references Article 8 of the Ordinance.
5 qualifies as substantial alteration of the building.
The proposed window replacement constitutes “alteration” of the building, as that
term is defined in §30.1.2. Alteration means:
the rearrangement of interior space, including the addition of walls, halls, steps, elevators, escalators, the rearrangement of the exterior bearing walls, including new doors, wind exits4 or facades; but not including ordinary maintenance or repairs.
Even if the curious phrase “wind exits” is not read to mean “windows, exits,” because the
definition is by a non-exclusive list of examples, we may interpret the examples to include
“windows” as other items within the class of the included terms, that is, openings in the
exterior facade of the building.
More importantly, the proposed window replacement does not qualify as “ordinary
maintenance or repair” of the windows as it is excluded from the definition of the
exemption in §6.1.9. The “ordinary maintenance or repair” of any exterior architectural
feature, such as a window, is only exempt if it “does not involve a change in design,
material, color or the outward appearance of the feature,” and even then, only if the total
dollar value for all labor and materials in the project is less than $5,000. In the present
project, although the parties dispute whether the window replacement project will involve
a change of color, design, or outward appearance, there is no question that it involves a
change of material from wood to vinyl, and therefore does not fall within the exemption.
Moreover, the cost estimate provided by Applicant on the application was $17,385, above
the $5,000 exemption limit. This limit also provides some guidance to the Court in
interpreting the extent of alteration that should be considered to be substantial. In the
4 Neither the Ordinance nor commonly-available dictionaries define the term “wind exits,” suggesting that a typographical error may have crept into this section of the Ordinance; however, the parties did not supply any earlier edition of the Ordinance that could illuminate whether this list originally read “new doors, windows, exits or facades.”
6 present case, the replacement of all the window glass and window sashes in the building
qualifies as “substantially alter[ing]” the building sufficiently to require DRB approval
under §6.1.3, as well as under §6.1.4.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
Appellant-Applicant’s Motion for Summary Judgment is DENIED and summary judgment
is GRANTED in favor of the City on Question 1 of the Statement of Questions. A telephone
conference has been scheduled (see enclosed notice) to discuss setting the merits of the
remainder of the appeal5 for trial.
Done at Berlin, Vermont, this 16th day of March, 2007.
_________________________________________________ Merideth Wright Environmental Judge
5 The City also argued that the property also should have been considered for conditional use review as a change from the former non-conforming office use to a medical office use. Such an application was not made by Appellant-Applicant and is not before the Court in this appeal, nor is any notice of violation or enforcement action involved in this appeal. Please be prepared to discuss this issue at the conference. V.R.E.C.P. 2(b).