1 STATE OF VERMONT SUPERIOR COURT - ENVIRONMENTAL DIVISION

{ In Re Blasdel & Koch Constr. Permit { Docket No. 155-10-11 Vtec { (Appeal from Burlington DRB decision) { Judgment Order
Greg Blasdel and Jennifer Koch (“Applicants”) own a small lot at 5-11 Mill Street in Burlington, Vermont. Their property is near the so utherly banks of the Winooski River, which serves as the boundary line between the Cities of B urlington and Winooski. Mill Street is east of Colchester Avenue, which follows a gradual slope of the land from south to north as it descends
towards the Winooski River. Just south of Applicants’ property is the property of their abutting neighbors, Steven and Sharon Litwhiler (“Neighbors”). Neighbors’ pro perty is higher in elevation than Applicants’, which necessitates a retaining wall th at is on or near the parties’ dividing property line. A small portion of Neighbors’ land is to the north of this retaining wall and is generally of similar elevation to Applicants’ property. Applica nts’ and Neighbors’ properties are depicted on the various pages of Applicants’ site plan, admi tted at trial as Applicants’ Exhibits A through D. Both properties lie within the Neighborhood Mixed U se Zoning District 1 and are subject to the Design Review and Historic Preservation Over lay Districts, pursuant to the City of Burlington Comprehensive Development Ordinance (“CD O”) §§ 4.5.1 and §5.4.8. Both properties host buildings that still include some h istoric characteristics. Applicants’ property currently is improved with a single building that s erves as Applicants’ residence, their singleroom bed and breakfast, and a small commercial fram ing shop. Neighbors’ property is also improved with a single building that serves as a mu lti-unit apartment complex and provides retail/commercial space that is currently occupied by a Domino’s Pizza restaurant. Neighbors’ property also hosts a free-standing ground sign, us ed to advertise the restaurant. Applicants submitted an application for a zoning pe rmit to construct a two-story accessory building in their rear yard that would se rve as a garage/carport for four passenger

1 See CDO § 4.4.2(a)(2) and CDO Map 4.4.2-1.2

vehicles, with an artist’s studio on the second flo or above the carport. When the City of Burlington Development Review Board (“DRB”) approve d Applicants’ request, Neighbors filed a timely appeal with this Court. The parties endea vored to resolve their disputes through both direct negotiations and with the assistance of a me diator. The Court commended the parties on their efforts at voluntary resolution, even though their negotiation sessions caused several postponements of the pre-trial discovery and trial. When the parties were unable to reach a voluntary agreement on all of their disputes, the C ourt conducted a trial over three days (March 19–20, and April 30, 2013) at the Costello Courthou se in Burlington. The undersigned also attended a site visit with the parties prior to the first day of trial that provided helpful context
for the evidence that was admitted at trial. Once the parties completed their presentation of ev idence, the Court took a recess to review its trial notes and conduct some legal resea rch. The Court then reconvened the hearing to announce its Findings of Fact and Conclusions of Law, based upon the evidence admitted at trial and the legal arguments presented by the part ies. This Judgment Order is not intended to substitute o r supersede the Findings of Fact or
Conclusions of Law announced at the end of trial on April 30, 2013; any individual wishing to review the Court’s Findings and Conclusions should review the trial record. This Judgment Order is issued to provide a memorial of the Court’ s legal conclusions and to satisfy the Court’s obligations under V.R.C.P. 58. In that light, the Court offers the following summary of its factual findings, legal conclusions, and order:
1. At the time of trial, thirteen questions remained f rom the original seventeen that Neighbors proposed in their Statement of Questions. These questions, all of which this Court addressed, were Questions 2, 3, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, and 16.
2. The proposed project consists of a garage/carport s tructure with a concrete exterior and open ends, such that the structure only partially c overs two tandem rows of parked cars, with two cars in each row. See Applicants’ Exhibits A t hrough D.
3. Above the concrete garage structure will be an encl osed studio area with elongated horizontal windows near the top of the side walls. Both the studio walls and roof will be finished on their exterior with corrugated metal wi th a galvanized metal finish.
4. Applicants’ proposed structure will serve as an acc essory to Applicants’ residential use of their existing historic structure. Applicants w ill use the accessory structure as an artist’s3

studio and garage, but in no other way will the str ucture be used in connection with Applicants’ commercial use of their existing structure, other t han for the parking of vehicles.
5. Applicants’ property currently contains spaces for up to four parked vehicles. Their proposed development will not increase the number o f vehicle parking spaces available on Applicants’ property.
6. The proposed accessory structure will be shielded f rom most public views by Applicants’ existing structure, several tall concre te block walls in the rear of their lot, and the generally sloping topography of the neighboring lan ds.
7. Applicants’ proposal to add an accessory structure is governed by the CDO, including its Site Plan Review and Architectural Design Revie w Standards. See CDO §§ 6.2.2 and 6.3.2.
8. We first answered Neighbors’ Questions 2, 3, 5, and 6 in regards to the parking requirements established in CDO Article 8. We conc luded that the proposed accessory structure will not require additional parking and t hat the proposed realignment of Applicants’ parking spaces, including their size and shape, con form to the applicable provisions of CDO Article 8, provided, however, that Applicants shall not allow or cause vehicles to encroach onto Neighbors’ adjoining property.
9. We next answered Neighbors’ Question 7 in the negat ive, concluding that the facts presented do not warrant conditioning any approval on Applicants assuming the responsibility to maintain the concrete block retaining wall that separates the parties’ properties; CDO §§ 6.2.2(b) and (g) do not provide a legal foundati on for such a condition. We leave the parties to determine, independent of this land use appeal p roceeding, their respective rights and responsibilities to maintain the concrete block ret aining wall.
10. Applicants and their expert proposed several condit ions concerning the construction of the proposed accessory structure and how that const ruction may impact the existing concrete block wall that divides the parties and their prope rties. Those conditions are imposed below in paragraphs C(1) through (5), inclusive.
11. We responded to Neighbors’ Question 9 by concluding that the proposed parking is sufficiently screened and therefore conforms to CDO § 6.2.2(l).
12. We rejected the suggestion made in Neighbors’ Quest ion 10 that the Court condition approval upon Applicants placing and maintaining cu rb stops, landscaping, and other physical4

barriers on their property, so as to prevent vehicl es from encroaching onto Neighbors’ adjoining
land.
13. In response to Neighbors’ Question 12, we concluded that the planned new lighting conforms to CDO § 6.2.2(o).
14. Lastly, in response to Neighbors’ Questions 13–16, we concluded that the proposed accessory structure conforms to the applicable Arch itectural Design Standards contained in CDO § 6.3.2. The parties both offered credible exp ert testimony on this point. However, we found Applicants’ expert more convincing and conclu ded that within the context of its surrounding neighborhood, the size, mass, and mater ials proposed, and the roofline, fenestration, and other characteristics of the prop osed accessory structure evidence a sufficient effort to propose a conforming structure that will not deviate from or contradict the historic characteristics of this important neighborhood.

Conclusion Based upon the evidence presented, the Court conclu des the following:

a. In regards to the realigned parking spaces, Applica nts shall not allow or cause vehicles to encroach onto Neighbors’ adjoining property.
b. When the parking spaces on Applicants’ property are being used for visitors to their frame shop or bed and breakfast establishment, at l east one attendant must be on site to assure that vehicles exit safely and that no vehicl e encroaches onto Neighbors’ property. Either or both of Appellants may serve as the parki ng attendant.

c. In regards to the possible impacts upon the existin g concrete block wall that could occur from the construction and use of the proposed acces sory structure, this approval is conditioned upon the following:
1. Prior to the commencement of construction, Applican ts shall cause a survey to be conducted of the concrete block wall, as recommende d by Applicants’ expert. See Applicants’ Exhibit 3. Once construction is comple te, the recommended survey shall be repeated, so that reference points on the concre te block wall can be compared to determine whether Applicants’ construction has caus ed a material change in the elevation or integrity of the concrete block wall. Applicants shall report the results of this analysis to Neighbors and to the City of Bu rlington Planning and Zoning Department.
2. The new structure shall be no closer than ten feet from the base of the concrete block wall.
3. The area between the concrete block wall and the ne w structure, once completed, shall be sodded and the sod must be maintained.
4. Once construction is complete, the area between the concrete block wall and the new structure shall be graded in such a way that the gr ade and profile of the sodded area5 shall be as before, with the exception of a minor s wale, located approximately six inches outside of the new structure.
5. All drainage systems must be constructed and mainta ined as shown on Applicants’ Exhibit A.
d. The conditions imposed by the DRB in its September 20, 2011 decision that are not superseded by the additional conditions imposed abo ve shall remain in full force and effect. See Specific Conditions 1–7 and Standard P ermit Conditions 1–18, noted on page 6 of the DRB decision.

This matter is remanded to the City of Burlington P lanning and Zoning Department, solely to complete the ministerial act of issuing a zoning permit in conformance with this Judgment Order and all provisions of the DRB’s Sept ember 20, 2011 decision that were not disturbed by this appeal. This completes the curre nt proceedings before this Court on this application.

Done at Newfane, Vermont this 5th day of July, 2013

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Thomas S. Durkin, Environmental Judge