1 STATE OF VERMONT

ENVIRONMENTAL COURT

} In re: Century Partners, LP, } Docket Nos. 177-8-0 8 Vtec and Notices of Violation } 191-8-08 Vtec }

Decision and Order on Appellant’s Motion for Summar y Judgment

In Docket No. 177-8-08 Vtec, Appellant Century Partn ers, LP appealed from a decision of the Development Review Board (DRB) of t he City of South Burlington upholding the Administrative Officer’s May 2, 2008 N otice of Violation. In Docket No. 191-8-08 Vtec, Appellant Century Partners, LP appeal ed from a decision of the DRB upholding the Administrative Officer’s June 16, 2009 Notice of Violation. A related enforcement action brought by the City against Cent ury Partners, LP, Docket No. 271- 11-08 Vtec, has been placed on inactive status pendi ng the resolution of these two Notices of Violation. Appellant is represented by Erin Miller Heins, Esq.; the City is represented by John Klesch, Esq. Appellant moved for summary judgment. In its respo nsive memorandum, the City has also requested summary judgment in its fav or on certain issues. When both parties seek summary judgment, the Court will give e ach party the benefit of all reasonable doubts and inferences when the opposing party’s motion is being considered. DeBartolo v. Underwriters at Lloyd’s of London , 2007 VT 31, ¶ 8, 181 Vt. 609; In re: Gizmo Realty/VKR Assocs., LLC , No. 199-9-07 Vtec, slip op. at 3 (Vt. Envtl. Ct. Apr. 30, 2008) (Durkin, J.). The following facts are undisputed unless otherwise

noted. Applicant developed a Planned Unit Development (PUD ) that includes buildings

at addresses now known as 100 Dorset Street and 102 Dorset Street, and as 2 Market2

Street and 4 Market Street. Market Street is the c urrent name of a street formerly shown as Corporate Way on some of the plans relating to t his development. The PUD plans were originally approved prior to 1996. 1 The December 2005 site plan found as an attachment to Exhibit I reflects the aspects of the most recent site plan approval for the PUD that are relevant to these two appeals. The May 2, 2008 Notice of Violation (May NOV) stated four asserted violations, and the June 16, 2008 Notice of Violation (June NOV) stated five asserted violations. The City has consented to the dismissal of the Noti ces of Violation as to one of the violations asserted in the May NOV, involving a chir opractic office in the 100 Dorset St. building, and as to three of the violations asserted in the June NOV, involving a new handicapped-accessible parking space, the restoratio n of an approved bicycle rack, and the parking of a motor vehicle trailer in an unappr oved location. Accordingly, paragraph 3 of the May 2, 2008 NOV and paragraphs 1, 2, and 5 of the June 16, 2008 NOV are hereby DISMISSED. As agreed by the City, th e corresponding claims in the

enforcement action, Docket No. 271-11-08 Vtec, will b e withdrawn.

May NOV ¶ 2 Paragraph 2 of the May NOV states as a violation th at Appellant added a new dumpster storage (service) area north of the 100 Do rset St. building without site plan approval and without a zoning permit. The “Amended Site/PUD Plan” attached to Appellant’s Exhibit I, carrying a last revision date of December 1, 2005 (the December 2005 Plan), is not the most recent site plan for th e PUD, but it is identical to the most recent site plan with respect to the “existing serv ice areas” to the north and east of the

1 Other aspects of this PUD have been litigated in In re: Century Partners, LP , Nos. 136- 7-08 Vtec and 201-9-09 Vtec (Vt. Envtl. Ct. Jan. 30 , 2009) (Wright, J.); as well as in In re Tekram Partners , 2005 VT 92, 178 Vt. 628 (mem.), and In re Century Pa rtners, LP PUD , No. 210-9-06 Vtec (Vt. Envtl. Ct. May 10, 2007) (Dur kin, J.).3

100 Dorset St. building, as well as with respect to the “8’ high stockade[-]fenced service area” east of the 102 Dorset St. building, discussed under a separate heading below. The December 2005 Plan shows two unenclosed dumpste rs, marked “Existing

Service Areas,” on the north side of the 100 Dorset St. building, and shows two unenclosed dumpsters, also marked “Existing Service Areas,” on the east side of the 100 Dorset St. building. It also shows an area formed by an inside corner of the building on the north side of the 100 Dorset St. building, marke d as an “approved 300 SF storage” area. As of the May 2, 2008 NOV, and as of the Febru ary 11, 2009 inspection of the area as reflected in the photographs submitted by the Ci ty attached to the Belair affidavit, two dumpsters were located within this area rather than in the locations as shown on the site plan. Appellant does not contest the City’s assertion tha t this 300-square-foot storage area was never approved for the placement of dumpst ers. Rather, Appellant argues that the incorrect, but temporary, placement of a mov eable trash receptacle is either not a violation at all, or is a merely technical and ins ubstantial violation, or has been cured and is now moot. Appellant argues that four dumpst ers were approved for the north and east sides of the 100 Dorset St. building, and t hat only four dumpsters are in use on

the north and east sides of the 100 Dorset St. buil ding. The placement of any feature shown in a specific lo cation on a site plan is only approved for that location, regardless of whether th e feature is capable of being moved. To the then-Planning Commission that approved the s ite plan, it may have been just as important to keep an area clear of features, for the purposes of on-site circulation (or any of the other site plan criteria), as it was to designate certain areas for the placement of features. Once a site plan is approved and has become final, its features cannot either be challenged directly, or be challenged indi rectly in the context of a later NOV or enforcement action. 24 V.S.A. § 4472(d).4

Of course, an applicant may apply to amend a site pl an to change such features in appropriate circumstances. Indeed, the remedial action specified as appropriate in the May NOV was to “[o]btain all necessary approval s and permits” for the noted changes. Any issues as to when the violation or violations o ccurred, how long they lasted, whether injunctive relief is needed or appropriate or moot, and whether any penalties are appropriate and, if so, in what amount, are for t he enforcement case: Docket No. 271-11-08 Vtec. Summary judgment must be granted i n favor of the City as to Paragraph 2 of the May 2, 2008 NOV.

June NOV ¶ 4 Paragraph 4 of the June NOV states as a violation t hat Appellant added a new dumpster storage area east of the 102 Dorset St. bu ilding without site plan approval and without a zoning permit. The December 2005 Plan shows a single square area l abeled as “8’ high stockade[-]fenced service area” off the southeast c orner of the 102 Dorset St. building, east of an area containing an “8’ x 10’ electrical concrete pad.” Appellant has instead installed two 8’ high stockade-fenced service areas (dumpster enclosures), one to the east and one to the west of the electrical pad. The additional dumpster service area may be necessa ry to accommodate the recycling needs of the 102 Dorset St. building. A second dumpster area for recycling may be the sort of site plan amendment that would h ave been approved by the DRB. However, the orderly administration of Vermont’s zon ing laws requires adherence to the principle that permittees must either comply wi th approved site plans or obtain amendments of them, rather than proceeding unilatera lly to make changes. As previously noted, an applicant may apply to amend a site plan to change such features in appropriate circumstances. Indeed, the remedial action specified as5

appropriate in the June NOV, as to this asserted vio lation, was either to “comply with the approved site plan or obtain all necessary appr ovals and permits” for the noted changes. Any issues as to when this area was added, whether i njunctive relief is needed or appropriate, and whether any penalties are appropria te and, if so, in what amount, are

for the enforcement case: Docket No. 271-11-08 Vtec . Summary judgment must be granted in favor of the City as to Paragraph 4 of t he June 16, 2008 NOV.

June NOV ¶ 3 Paragraph 3 of the June NOV states as a violation t hat Appellant has failed to screen the dumpsters at the north end of the 4 Mark et St. building and east of the 102 Dorset St. building. Unlike the unenclosed dumpster areas marked as “exi sting service areas” to the north and east of the 100 Dorset St. building, the D ecember 2005 Plan also shows several enclosed dumpster areas. Three square areas are la beled as “screened dumpster

enclosures,” one on the north side and two on the e ast side of the 4 Market St. building. A single square area is labeled as “8’ high stockad e[-]fenced service area” off the southeast corner of the 102 Dorset St. building. The enclosed dumpster service areas or dumpster enc losures were constructed with stockade-fence front panels that swing open fo r servicing of the dumpsters. The City has provided photographs and affidavits of occ asions on which the front panels have been observed to be open, while Appellant has p rovided photographs and affidavits of occasions on which the front panels h ave been observed to be closed. “Screening” is one topic covered by site plan revie w. 24 V.S.A. § 4416. At least for the dumpsters located on the north and east sid es of the 4 Market St. building and east of 2 Market St. building, the approved site pla n requires them to be “screened” or “enclosed.” The enclosures are ineffective to perf orm their screening function when the6

front panels are left open. Therefore it is not en ough that Appellant has constructed and maintains the enclosure with front panels that are capable of screening the dumpsters; rather, they must be kept in the closed p osition except when actually in use. It is up to Appellant to put into place tenancy agr eements sufficient to ensure that the various building tenants abide by the screening req uirement, or to apply to amend the condition if some other configuration of screening enclosure would be easier to maintain or operate effectively. Any issues as to when screening violations occurred at these locations, whether injunctive relief is needed or appropriate, and whet her any penalties are appropriate

and, if so, in what amount, are for the enforcement ca se: Docket No. 271-11-08 Vtec. Summary judgment must be granted in favor of the Ci ty as to Paragraph 3 of the June

16, 2008 NOV.

May NOV ¶ 1 Paragraph 1 of the May NOV states as a violation th at Appellant altered the approved landscaping plan by installing a low barbe rry hedge between the Dorset St. right-of-way and the parking spaces for the 100 Dor set St. building, without site plan approval and without a zoning permit. Appellant ha s explained that it installed the street trees that were required by the approved sit e plan, but that those trees were in an area since taken for the widening of Dorset Street. Appellant planted the barberry hedge to provide som e screening between its parking area and Dorset Street, but did not apply fo r any changes to the site plan to reflect the widening of Dorset Street and the new h edge. An applicant may apply to amend a site plan to change such features in approp riate circumstances. The City does not here claim that Appellant is required to replac e the hedge with street trees. Rather, the remedial action specified as appropriate in the May NOV was to “[o]btain all necessary approvals and permits” for the noted chan ges.7

Any issues as to when the street widening occurred, when the hedge was planted, whether injunctive relief is needed or appr opriate, and whether any penalties are appropriate and, if so, in what amount, are for t he enforcement case: Docket No. 271-11-08 Vtec. Summary judgment must be granted i n favor of the City as to Paragraph 1 of the May 2, 2008 NOV.

May NOV ¶ 4 Paragraph 4 of the May NOV states as a violation th at Appellant altered the landscape plan for the area to the east and north o f the 2 Market St. building without site plan approval and without a zoning permit. As explained in this Court’s decision in In re: Century Partners, LP , Nos. 136-7-08 Vtec and 201-9-09 Vtec (Vt. Envtl. C t. Jan. 30, 2009), the specific landscape plan which the City seeks to enforce was never approved by the appropriate municipal panel. That is, at least as shown by the materials submitted on summary judgment in those ca ses, it was neither part of the application materials originally submitted for site plan approval nor was it subsequently approved by the then-Planning Commissi on. It was therefore not a landscape plan that was enforceable so as to preclu de the issuance of a certificate of occupancy for the 2 Market St. building.

However, the Notice of Violation addresses a differe nt issue. It addresses whether Appellant has obtained site plan approval o f the actual landscaping it has

installed in the area around the 2 Market St. build ing. In the present cases, material facts are in dispute as to whether any approved sit e plan shows the landscaping as

installed in the area around the 2 Market St. build ing, so that summary judgment is DENIED as to Paragraph 4 of the May NOV.

Accordingly, based on the foregoing, it is hereby OR DERED and ADJUDGED that Appellant’s Motion for Summary Judgment is DEN IED, and Summary Judgment is8

GRANTED in favor of the City as to Paragraphs 1 and 2 of the May 2, 2008 NOV, and as to Paragraphs 3 and 4 of the June 16, 2008 NOV. App ellant’s Motion for Summary Judgment is DENIED as to paragraph 4 of the May 2, 2 008 NOV, as material facts are disputed, or at least have not been provided to the Court in this case. Paragraph 3 of the May 2, 2008 NOV and paragraphs 1, 2, and 5 of the June 16, 2008 NOV are hereby

DISMISSED, as discussed above.

This decision concludes Docket No. 191-8-08 Vtec, as to the June 16, 2008 NOV,

and concludes Docket No. 177-8-08 Vtec, as to all b ut paragraph 4 of the May 2, 2008 NOV. A telephone conference has been scheduled (se e enclosed notice) to set a trial schedule for the remaining issues in Docket No. 177 -8-08 Vtec and for the enforcement

case: Docket No. 271-11-08 Vtec.

Done at Berlin, Vermont, this 15 th day of September, 2009.

________________________________________________ _ Merideth Wright Environmental Judge