= = ; &= nbsp; &nb= sp; = ; &= nbsp; STATE OF VERMONT

= ; &= nbsp; &nb= sp; = ; &= nbsp; &nb= sp; = ; &= nbsp; &nb= sp; = ; &= nbsp; &nb= sp; = ;

= = ; &= nbsp; &nb= sp; = ; = ENVIRONMENTAL COURT

}

Appeal of Berezniak = } = &n= bsp; Docket No. 171-9-03 Vtec

(Application of Wager) = = }

}

= ; &= nbsp; &nb= sp; = ; &= nbsp; Decision and Order

Appellant David Berezniak appealed from a decision of t= he 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 persons^{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 i=
n 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 request=
s for
findings. Upon consideration=
of the
evidence as illustrated by the site visit, and of the written memoranda 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 r= ear yard, with the remainder of the lot lines defining side yards.<= /span>

An existing building is located on the portion of the property with frontage on Archibald Street. The building, known as the Burgess Electric ^{The shed=
is
used for the storage of lengths of PVC pipe and other electrical conduit
material.}

The building houses a wholesale electrical supply busin= ess that supplies materials to contractors and does a small amount of walk-in retail business as well. The business=3D 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 t= o be delivered by 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 pe= rson who comes to the building on a daily basis. Approximately three contrac= tors 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=3D or other customers=3D 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 mo= re than one or two customers=3D vehicles occupy the parking area at the business at any given time. The peak use hou= r for the parking areas by customers at the property tends to occur between 6:30= and 7:30 in the morning. Deliver= ies are made to the property daily at about 1:30 to 2:00 p.m. by a UPS truck. Other suppliers=3D delivery trucks are similar in size to the UPS van, ex= cept that PVC pipe is delivered approximately twice per year by a tractor-trail= er.

The proposed Roosevelt Apartments building does not inc= lude any basement area or any underground or partially-underground parking. Appellee-Applicants propose to pr= ovide 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 authorize= d 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 ten ^{^[3]} spaces at the Burlington Housing Authority=3Ds 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 li= nk 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, wi= th 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 p= ropose to remove the equivalent-sized shed from the back of the building, so that= the total area of the building will be 12,280^{^[4]} square feet as before. Appellee-Applicants propose parking, walkways, and associated landscaping to serve the two proposed uses.

They propose that the driveway be one-way onto the prop= erty from Archibald Street, past the loading dock area and to the parking lot f= or the housing project, so that all Burgess Electric business traffic would e= xit through the Intervale Avenue curb cut.&nb= sp; They propose that the Intervale Avenue curb cut and the Roosevelt Apartments parking area serve two- way traffic. Appellee-Applicants do not propos= e to control the Archibald Street entrance or the lane from the loading dock ar= ea 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 t= he reduction of the width of the curb cut and traveled lane from Archibald St= reet.

Question 5 of the Statement of Questions

The question of whether the proposed project constitute= s an alteration or enlargement of an existing non-conforming use depends on identifying the existing Burgess Electric building=3Ds compliance or non-compliance with any of the requirem= ents 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 i= ts existing paved areas appear easily to meet the 80% lot coverage requiremen= t.

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.&nbs= p; 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=3D business delivers to retail outlets or contractors off= the business premises, while a >wholesale sales=3D business provides the purchased materials and supplies= to the contractor at the business premises.&= nbsp; 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 ><= span style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'>wholesale sales=3D business than a >wholesale distribution facility.=3D Accordin= gly, parking requirements are set by the Zoning Ordinance at one space per 150 square feet of gross floor area for a >wholesale sales=3D business, and one space per 500 square feet for a >wholesale distribution facility.=3D

The Burgess Electric building use does not fall within = the definition of the >warehouse, retail=3D use category; that category applies to >the sale of goods, either in bulk or as individual reta= il items, to the general public or to [members],@ from a warehouse type of facility, such as the example= s of Costco or Sam=3Ds Club given by the City in its memorandum. Nor does the Burgess Electric bui= lding use fall within the definition of a general ><= span style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'>warehouse=3D 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=3D as opposed to >wholesale distribution,=3D as little evidence was presented from which the Court = could make that determination. How= ever, the result in this decision is the same regardless of the percentage used.= Even assuming that the entire fac= ility should be categorized as >wholesale distribution facility,=3D the existing use would require 25^{^[5]} off-street parking spaces as calculated under the Zoning Ordinance.

Under '10.1.4, an existing structure or land use is not subjec= t to the parking requirements of Article 10 of the Zoning Ordinance, so long as= the kind or extent of use is not changed; the section also requires that Aany parking facilities now serving such structures shal= l not in the future be reduced below such requirements.@

Appellee-Applicants appear to have assumed that the exi= sting parking now serving the existing Burgess Electric building was the approximately eleven spaces to the west of the building which are to be st= riped and retained in the proposal. However, prior to the proposal the existing parking serving the Bur= gess 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 bac= k of the building leading to the existing driveway exiting at Intervale Avenue.= The existing area in the back ava= ilable 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 pr= esent proposal, the existing building is not nonconforming as to parking. That is, it has room for 25 off-s= treet 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 spaces^{^[6]} to the west of the building and 1 inside the building, plus the loading sp= aces in the back. Under '10.1.4 the 25 spaces serving the existing building cann= ot 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. Ac= cordingly, the application must be DENIED, without prejudice to Appellee-Applicants=3D application to the DRB for an additional parking waiver attributable^{^[7]} to the Burgess Electric required parking.

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 co= verage 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 Bur= gess Electric, we must determine whether the project meets the parking requirem= ents 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 wai= ver 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 par= king problems in the neighborhood any worse than they already are, it is import= ant that this project have an adequate number of off-street spaces available t= o 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 e= ven lower than the maximum eligibility income for this project, and an analysi= s of the Burlington Community Land Trust (BCLT) tenant and parking data adjuste= d 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 park= ing stickers for tenants, so that it does not necessarily reflect the total ve= hicle ownership of tenants who choose to park on the street rather than to apply= for spaces. In addition, the BCL= T 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 fo= r 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 spac= es, or on the availability and projected use of alternative transportat= ion 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 Bu= rgess Electric spaces cannot justify a reduction below the 27 spaces discussed above. First, Burgess Electr= ic 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 ea= rly 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 worki= ng a late night shift. More impor= tantly, unless both the Burgess Electric driveway intersection with Archibald Stre= et and the entrance to the Roosevelt Apartments parking lot from the Burgess Elec= tric 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 wa= y 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 r= emove their cars. Further, without= a gate between the Burgess Electric parking area and the Roosevelt Apartments par= king area, drivers who entered the apartment lot at night and found it to be fu= ll 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 n= ight, the parking of such a >wrong-way=3D car backing into an angled space would not be likely to pose a substantial safety problem, but it would create a safety conflict i= n the morning, as it would have to drive out the ><= span style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'>in only=3D driveway onto Archibald Street, conflicting with vehic= les attempting to enter that driveway. =

With regard to the >alternative transportation modes=3D 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.&n= bsp; 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 eve= ning, 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.&nbs= p; With regard to walking, because this proposal is not in the immedia= te 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 wai= ver 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=3Ds 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.@ Appellan= t=3Ds post-hearing filings discuss the >relates harmoniously=3D issue and also discuss whether the on-site vehicular a= nd 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 b= y the Court. However, Question 4 a= llows 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 reduce= s 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 c= urb 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 c= orner 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 th= at corner. With an appropriate condition requiring such a stop sign and stop bar, and >wrong way=3D signage at that location facing the other direction, t= he proposed on-site circulation would meet '6.1.10(d).

Harmonious relationshipThe alterations to the Burgess Electric building, and t= he design of its Archibald Street facade, meet the criterion of '6.1.10(a). Replacing the asphalt-and-chain-link front >yard=3D and blank brick facade of the building with the propos= ed addition and landscaping will make it more compatible with the Archibald Street streetscape, as most of the o= ther 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 build= ing, landscaped with two small trees, will be more harmonious with the mixed re= sidential 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 windo= w.

On other hand, although it demonstrates many good design features, the bulk of the pr= oposed housing building at its Intervale Avenue frontage does not relate appropri= ately 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 wou= ld have to be reduced in height or bulk at least to the depth of the first se= t of apartments on that end of the building, so as to present to the street a m= ore 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 sugge= st any specific redesign parameters.

Based on the foregoing, it is hereby ORDERED and ADJUDG= ED that Appellee-Applicants=3D 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 7^th day of Ju= ly, 2005.

______________________________________

Merideth Wright

Environmental Judge

&nbs= p; ^{^[1]} Documents filed by Appellant were= also filed on behalf of the other interested persons.

&nbs= p; ^{^[2]} The business operated in the buil= ding is Green Mountain Electric Supply; however, the building is still commonly referred to as, and retains the sign for, Burgess Electric.

&nbs= p; ^{^[3]} Appellee-Applicants=3D memorandum, at footnote 5, refers to five spaces as be= ing >offered,=3D 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, b= ut it must be documented in writing prior to the approval. No such documentation was in evid= ence; in addition, the distance of these potential spaces from the project was n= ot provided to the Court.

&nbs= p; ^{^[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.

&nbs= p; ^{^[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 bu= siness were calculated at 90% wholesale distribution facility and 10% wholesale s= ales, 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.

&nbs= p; ^{^[6]} Of these eleven spaces, four are = sized for compact cars, which may be technically allowed, as eight compact space= s 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 consider whether it is realistic to expect that building contractors would routinely collect supplies in a compact vehicle rather t= han in a full-size pickup truck or van.

&nbs= p; ^{^[7]} Appellee-Applicants did not reque= st 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 prop= osed 27-unit apartment building, absent a waiver, would total 46 spaces. (8 for the first 4 apartments plu= s 34.5 for the remaining 23 apartments, plus an additional 10% of those (an addit= ional 3.45 spaces) for visitor parking, for a total of 45.95, rounded to 46). The DRB treated the required park= ing for the whole project as 60 spaces, treating the parking required for the exis= ting building as 14 spaces rather than the 25 as calculated here.