content-type: multipart/related; boundary="----=_NextPart_01C60D25.34A92850" mime-version: 1.0 This document is a Web archive file. If you are seeing this message, this means your browser or editor doesn't support Web archive files. For more information on the Web archive format, go to http://officeupdate.microsoft.com/office/webarchive.htm ------=_NextPart_01C60D25.34A92850 content-location: file:///C:/6DB8C254/03-203z.mot.htm content-transfer-encoding: quoted-printable content-type: text/html; charset="us-ascii" 140-7-05 Vtec

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

 

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

 

 

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In r= e: Application of Verizon Wireless  = ;            &= nbsp;      }        =    Docket Nos. 203-11-03 Vtec

    (installation at St. = Mary=3Ds Star of the Sea) = ;         }        =             &n= bsp;  and 140-7-05 Vtec

(Appeals of Curtis, et al.)        =             &n= bsp;        }<= /p>

}

 

    = ;            &= nbsp;           &nb= sp;            Decision and Order on Motions to Remand

In Docket Number 203-11-03 Vtec, Appellants Linda M. Cu= rtis, Clark W. Curtis, Linda S. Cunningham, James C. Cunningham, Christina Hilli= ker, Richard Hilliker, Francis Lantagne, Rita Lantagne, Liz Lemieux, Leo Paul M= ajor, Norma Major, Stephanie Rosamilia, Nelson C. Stevens III, Rachel A. Stevens, Thomas Zaffis and Susan Zaffis appealed from a decision of the Planning Commission of the City of Newport granting site plan approval for the installation of wireless telecommunication antennas within the towers of t= he existing St. Mary=3Ds Star of the Sea Catholic Church (the Church) and for = the construction of a related equipment building.[1] Appellee-Applicant[2] Vermont RSA Limited Partnership, d/b/a/ Verizon Wireless cross-appealed fr= om that decision on the issue of whether site plan approval by the Planning Commission was required at all for the proposed project; the cross-appeal = was resolved on summary judgment.

In Docket No. 140-7-05 Vtec, Appellants Linda M. Curtis= and Clark W. Curtis appealed from a decision of the Zoning Board of Adjustment (ZBA) upholding a decision of the Zoning Administrator declining to rule t= hat a conditional use permit is also required for the changes to the parking at = the Church caused by the new equipment building.[3]

Appellants are represented by Gerald R. Tarrant, Esq.; Appellee-Applicant is represented by Brian Sullivan, Esq.; the City of New= port is represented by William Boyd Davies, Esq.  The Court heard the merits of Doc= ket No. 203-11-03 Vtec and took a site visit with the parties.  The parties have filed requests f= or findings and legal memoranda regarding the merits of the site plan approval application as presented at trial; the present decision and order makes fi= ndings from the evidence presented at that hearing only as necessary to address t= he pending motions.

Appellants argue that the proposal calls for an alterat= ion to the Church=3Ds existing non-conforming parking, which must be ruled = on by the ZBA as a conditional use under '402, and that the Planning Commission should have revie= wed the parking using the table provided in '328.  Appe= llants also argue that, in order for the Court to consider parking on the adjacent property in the present appeal, at the very least the Church must enter in= to a formal parking agreement with the adjacent convent and school.  Appellee-Applicant asks the Court instead to reach the merits of its site plan application in Docket No. 203-11-03 Vtec, arguing that site plan approval of the changed parking arrangements could be granted by the Court without reaching the need for conditional use approval of the changes to the Church=3Ds existing parking arrangements caused by the construct= ion of the equipment building.

 

Saint Mary=3Ds Star of the Sea was constructed prior to the institut= ion of zoning in the City of Newport.  It is located in the Urban Residential zoning district, on a 93,200 square foot lot,[4] adjacent to a much larger property owned by the Daughters of the Sacred He= art of Charity, on which is located a convent, a school, and a shop building.<= o:p>

The Saint Mary=3Ds Star of the Sea property contains two buildings: the Church building and the rectory building.=   These are either two principal buildings on the lot (in violation o= f '308), or if the rectory is treated as an accessory buil= ding to the Church, it may exceed the twenty-foot height limitation for an acce= ssory building in the Urban Residential zoning district.  '205.03.  T= he Church building extends into the east side setback, and extends slightly i= nto the front setback at its northeast corner.

To determine whether the existing Church property is al= so non-conforming as to any zoning standards related to parking, we must dete= rmine the seating capacity in its Amain assembly room@ and also determine its Afloor area.@  The maxi= mum seating capacity in the assembly room of the Church is 556 seats, calculat= ed as four people per each six-foot-long pew plus 28 seats in the choir.  This calculation is consistent wi= th Father Royer=3Ds testimony estimating a 550-person capacity.  The square footage of the floor a= rea[6]) as very approximately 10,400 square feet.

 The term = Aparking space@ is defined in '502 of the Zoning Bylaw as being Aat least nine feet wide and twenty feet long, not inclu= ding access driveway, and having direct access to a street or alley.@  An exami= nation of the site plan parking plan (Steele Exhibit 3), in comparison with the diagram (Attachment C) shows fifty existing parking spaces on the Church property, as follows.  Six nu= mbered spaces  The two spaces numbered 39 and 40, located on the easterly side of the rectory, appear to be new locations for former spaces 1 and 2, and therefore not to have existed in the existing p= arking configuration, although perhaps they existed within the rectory garage and= are simply not shown on either the site plan or the diagram.   In addition, the Church use= s an undefined number of parking spaces on the adjacent land of the Daughters o= f the Sacred Heart of Charity, but without any written or formal agreement betwe= en the two entities, and uses some thirty-five on-street parking spaces across Prospect Street from the Church.  The testimony provided in prefiled form and at trial by witnesses f= rom both parties as to approximately one hundred parking spaces provided in th= e AChurch lot@ includes some spaces off the Church=3Ds property in these other locations, as shown also on S= teele Exhibit 3.

Not all of the spaces shown on Steele Exhibit 3 as exis= ting spaces provided on the Church=3Ds property meet the size (9' x 20') requirements of the definition of Aparking space,@ '502, or the requirement that each space have direct acc= ess to a street or alley.  The th= irty parking spaces shown as existing behind the rectory are arranged in a grid= with ten rows, each row measuring approximately (by scale as discussed in footn= ote 6, supra) 55 feet in length and having three cars parked end-to-end.  Only the two out= side cars in each row have the required direct access to a street or alley (and, arguably, the middle car in the last row, which could theoretically parall= el park).  Moreover, each parkin= g space is undersized as to length, if three spaces are to be fitted into each row, even without the access issue.  Thus, the existing parking to the rear of the rectory shown as thir= ty spaces should only be counted as providing 21 parking spaces as that term = is defined in the Zoning Bylaw, even if the last row were to be lengthened by= five feet to provide three full spaces.

Calculating all the existing parking on the Church prop= erty in compliance with the Zoning Bylaw=3Ds definition of Aparking space@ shows that the existing parking provides 41 spaces, pl= us whatever spaces may be provided within the rectory=3Ds and Church=3Ds existing garages but not shown on the site plan or the diagram.  The parking associa= ted with the proposed site plan for the equipment building will not reduce the number of existing spaces, but it will alter the location and configuratio= n of the parking spaces on the Church property.

 

Under '328[10] of the Zoning Bylaw, the off-street parking space requirement for a religi= ous institution[11] is one space for every three seats in the Aassembly room@ or one space for every two hundred square feet of floor area, whichever is greater.  Off-street parking is one of the attributes of a project retained f= or municipal regulation under 24 V.S.A. '4413(a)(3)(2004), with respect to Achurches . . ., convents, and parish houses.@

Using the maximum capacity of 556 or 550, at one space = per three persons as required by '328, the minimum required number of parking spaces attributable to the Church building is 185 or 183, if rounded down.  (Even if we were to calculate the required minimum number of parking spaces based on an average attendance of 310, rather than on capacity as required by the '328 table, 103 parking spaces would be required.) The calculation by capacity is the applicable requirement, as it appears to be greater than the parking calculated by floor area, which would be 52 space= s, using a single-floor estimated footprint of 10,400 square feet.=

Whether calculated as 41 spaces (see supra, p.5)= or as the 50 spaces shown on Appellee-Applicant=3Ds site plan, the present off-street parking spaces prov= ided by the Church are insufficient to comply with the requirements of the regulations; therefore the existing parking is non-conforming and triggers= the applicability of '402.  Inde= ed, the fact that the Church property does not comply with other zoning requiremen= ts (regulating setbacks, height, or one principal building per lot), would ca= use that section to be triggered even if the parking provided were adequate un= der the regulations (for example, if the Church were to cure the existing park= ing nonconformity by entering into a formal agreement with the Daughters of the Sacred Heart of Charity and having that combined parking approved by the Planning Commission under ''328.03 B 328.05.  = As the arrangement of buildings and existing parking on the Church property is non-conforming,[12] Appellee-Applicant=3Ds proposal to alter or move the existing parking spaces requires conditional use approval of the Zoning Board of Adjustment under = '402.01, as well as requiring site plan approval from the Planning Commission.  Nothing= in the Zoning Bylaw requires or allows the ZBA to decline to hear such an applica= tion simply because an appeal of a related Planning Commission decision is pend= ing in this Court.

Appellee-Applicant is correct that, in conducting its s= ite plan review, the Planning Commission (and hence this Court in this de novo proceeding) is only required by '328.01 to Areview the existing and related parking arrangements,@ and that it may, but is not obligated to, require additional parking.  This requirement of '328.01 is in addition to the requirements of site plan approval to  consider the Aadequacy of circulation, parking and loading facilities= ,@ '606.03(C), and to Aimpose appropriate conditions and safeguards with respe= ct to the adequacy of . . . [c]irculation and parking.@  <= span style=3D'font-family:"WP TypographicSymbols";mso-bidi-font-family:Shruti; mso-char-type:symbol;mso-symbol-font-family:"WP TypographicSymbols"'>'606.02(B).  The Court will apply those standards in addressing the merits of site plan app= roval in Docket No. 203-11-03 Vtec.

 

Accordingly, based on the foregoing, it is hereby ORDER= ED and ADJUDGED that Appellants=3D Motion to Remand is GRANTED, concluding Docket No. 140= -7-05 Vtec.  In Docket No. 203-11-0= 3 Vtec, it appears to the Court that any decision on the merits of site plan review should be held in abeyance until Appellant-Applicant has filed and the ZBA= has acted on an application for conditional use approval of the parking.  In that way, any revisions of the proposed parking made necessary by the conditional use decision may be incorporated[13] so that any such revisions may properly be before the Court on their merit= s in a single decision. 

We will hold a brief telephone conference (see enclosed notice) on December 28, 2005, to discuss the sequence of events before the municipal panels and in this Court.  If the parties are unavailable on that date they should discuss the scheduling with each other before requesting the Court to reschedule the conference.  Time is availabl= e for the conference on January 4, 2006, or on January 9, 2006.  Appellants=3D motion for costs is hereby deferred to be considered w= ith the merits of any remaining appeals; in addition, the Court will consider = any motions for waiver of any filing fees at such time as any future appeals m= ay be filed.

 

 

Done at Berlin, Vermont, this 19th day of December, 2005.

 

 

 

 

 

 

_________________________________________________<= /o:p>

Merideth Wright

Environmental Judge


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