STATE OF VERMONT
ENVIRONMENTAL COURT
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In re Champlain College, Inc. }
304-306 Maple Street Dormitory Project } Docket No. 145-7-05 Vtec
(Appeal of Baker, et al.) }
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Decision and Order on Motion to Stay DRB Hearing or March 2007 Decision
Appellants Faye Baker, et al., are a group of eleven Burlington residents who
asserted standing pursuant to 24 V.S.A. §4465(b)(4) in their appeal to this Court from a
decision of the Development Review Board (DRB) of the City of Burlington, approving the
application of Champlain College to renovate an existing building and construct a new
building at 304-306 Maple Street for student housing, in the Champlain College Core
Campus overlay zoning district within the University Campus zoning district of the City
of Burlington. Appellants are represented by Todd D. Schlossberg, Esq.; Appellee-
Applicant Champlain College, Inc. is represented by Mark G. Hall, Esq.; and the City of
Burlington is represented by Kimberlee J. Sturtevant, Esq. This Court’s decision on the
merits of the application was issued on March 20, 2007 and is now on appeal to the
Vermont Supreme Court in its Docket No. 2007-155.
This Court approved the application, subject to the conditions that had been
imposed in the DRB’s decision (as amended by a settlement between Applicant and the
City), and subject to an additional condition imposed by the Court, with respect to the
parking requirements of the zoning ordinance.
In order to understand what the March 2007 decision did with respect to the issue
of parking, why no “remand” was required or ordered, and why the DRB’s current
proceedings regarding the College’s Institutional Parking Plan are related to but not a part
of the decision on the permit for the dormitory project, it is necessary to understand the
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way the current Zoning Ordinance treats parking for the academic and medical institutions
in the University Campus zoning district, including Champlain College.
Like any other applicant, such institutions must apply for zoning permits for their
individual projects. But in addition, within the University Campus zoning district each
institution is also required to “provide off-street parking and loading facilities consistent
with its needs” (independently of any specific project application). §10.2.1. Section 10.2.1
requires each institution to “maintain and monitor” a “comprehensive parking, loading
and storage plan for the entire campus or institution,” known as its Institutional Parking
Plan, and to establish a facility-wide permit system to implement its plan. Under the
current ordinance1 the Institutional Parking Plans are not required to be periodically
reviewed or approved by the DRB. Rather, the DRB is required to review and approve the
then-current version of the Institutional Parking Plan at the same time as it is conducting
the zoning review of an application for a specific project filed by that institution.
To facilitate this review, an institutional applicant must submit its facility-wide
Institutional Parking Plan to the DRB, including any modifications made necessary by the
zoning permit proposal, when applying for any zoning permit “which would increase
parking demand.” §10.2.1.
With regard to the dormitory application that was the subject of Docket No. 145-7-05
Vtec, the College argued that the addition of 94 students to the property did not trigger
§10.2.1 because, assuming those students formerly commuted to campus and were changed
to residential status, the overall parking demand of the institution would be reduced.
Nevertheless, the Court ruled in the March 2007 decision that, even if the overall parking
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A new zoning ordinance is under consideration by the City. The parties have not
advised the Court whether these provisions are changed by the new ordinance, whether
it has been or will be proposed for public hearing (making the new ordinance applicable
to any new application), 24 V.S.A. §4449(d), nor whether the College has any plans to
reapply under the newly proposed ordinance.
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demand of the Champlain College facility would be reduced,
unless none of the students in the proposed new dormitory will ever have
visitors, need deliveries, or need to bring a car to the dormitory, the addition
of 94 students to the property can be expected to generate some types of
parking demand that will need to be accommodated in the vicinity of the
building, even if all vehicles brought to campus by those students are kept
during the week in remote parking. The proposed project therefore triggers
§10.2.1 and needs to be accounted for in the College’s Institutional Parking
Plan.
Moreover, because the proposed new dormitory will reduce the
parking available in the McDonald-Whiting parking lot by five spaces as
shown on the site plan (Exhibit 3), and because it will increase the parking
demand within the McDonald-Whiting lot for some number of accessible
parking spaces that can reasonably be expected to be associated with the new
accessible student rooms on the ground floor of 304 Maple Street, the
Institutional Parking Plan must address the localized parking demand
generated by the dormitory, even if the dormitory represents a reduction in
the institution-wide parking demand.
March 2007 Decision and Order, at pp. 14–15.
Once §10.2.1 is triggered, §10.2.2 then requires the DRB to review the College’s
Institutional Parking Plan and to make findings that the Institutional Parking Plan meets
seven listed criteria. Only one of these criteria (§10.2.2(e)) relates to the additional parking
and loading requirements generated by the proposed project that triggered the review of
the Institutional Parking Plan in the first place. All the other criteria for review of the
Institutional Parking Plan require the DRB to make findings as to the adequacy of the
Institutional Parking Plan on a facility-wide basis.
In the present case, however, the DRB had not conducted the §10.2.2 review of the
College’s Institutional Parking Plan at all. Instead, its decision required the College to
implement certain parking-related improvements and then to return to the DRB for its
future consideration of the College’s updated Institutional Parking Plan under the §10.2.2
criteria. Because the DRB had not yet performed the review of the College’s Institutional
Parking Plan in connection with the application for the proposed dormitory project, the
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adequacy of the College’s Institutional Parking Plan under §10.2.2 was not before the Court
in Docket No. 145-7-05 Vtec. Accordingly, this Court’s March 2007 decision ruled on the
specific permit application, but required that the DRB would still have to perform the
§10.2.2 review of the College’s Institutional Parking Plan before a Certificate of Occupancy
could be issued allowing the use of the buildings.
The March 2007 Decision specified the minimum elements of the College’s
Institutional Parking Plan necessitated by the proposed dormitory project, as follows:
[E]ven if sufficient spaces are available at the Gilbane lot or other remote
locations, the College must analyze and address what changes in the
Institutional Parking Plan may be necessary, if any, to encourage, enable or
require students with vehicles to do, at a minimum, all of the following: 1)
actually to register the presence of those vehicles with the College, even if
they are parked at a private off-campus location; 2) actually to obtain a
parking sticker to park those vehicles (whether in campus lots or on the
street) in the UC or CCO districts, so as to facilitate studies of parking
behavior as well as enforcement of parking limitations; 3) actually to use the
shuttle services available to access the remote parking; 4) actually to use the
remote parking lots rather than to attempt to park in the adjoining
neighborhood or in lots they are not authorized to use; and 5) actually to be
assessed and actually to have to pay fines assessed at a level and with
sufficient consequences for non-payment so as to have a deterrent effect on
inappropriate parking behavior and to have an incentive effect on
appropriate or desired parking behavior.
March 2007 Decision and Order, at p. 15.
The March 2007 Decision noted in a footnote at p. 11 that it would be “premature
in the present appeal for this Court to address Appellants’ concerns regarding their
participation in any DRB review of the College’s Institutional Parking Plan, as it relates to
this project, or in any potential appeal of such DRB action.”
Thus, the §10.2.2 review of the College’s Institutional Parking Plan did not
necessitate remand to the DRB by the Court, as it had not yet been performed by the DRB
in the decision then on appeal. Rather, it was a related DRB task that the project had
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triggered, separate from and in addition to the permit application2 then before the Court.
The March 2007 decision stated specifically that “it remains for the DRB in the first instance
to rule on [footnote omitted] any proposed revisions to the Champlain College Institutional
Parking Plan.” This procedure is analogous to what occurs with regard to a project that
requires, for example, both conditional use approval and site plan approval, but where
only conditional use approval has been conducted and decided by the DRB. This Court
may proceed with the appeal of the conditional use approval decision while the applicant
applies for and proceeds with the site plan application at the DRB, without any
requirement of remand.
That is, while the Court can and is encouraged to consolidate multiple approvals
required for a single project, in an appropriate case when one approval is ready for trial
and it is discovered at trial that another required approval has not yet been heard by the
DRB, the Court may proceed to hear and decide the appeal that is ripe. In the present case
the Court proceeded to render a decision on the specific permit application, but
conditioned use of the project on the DRB’s subsequent performance of the related required
§10.2.2 review of the College’s Institutional Parking Plan.
That DRB review is the one that is the subject of the present motion. It was
contemplated in the Court’s March 2007 decision. Appellants’ have shown no irreparable
injury from the DRB’s proceeding with this review. Appellants’ ‘emergency’ motion to
enjoin it or to stay any portion of this Court’s March 2007 decision is DENIED. The parties
were informed orally of this decision, on the record of the telephone motion hearing in the
morning of December 4, 2007, so that all participants in the DRB hearing scheduled for that
evening would know that it could proceed.
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This may be contrasted with an applicant’s request to redesign some aspect of a
project to address the reasons for an earlier denial, which does require remand of a portion
of the project to the DRB, as in the case cited by Appellee-Applicant: In re McGrew, Docket
No. 2006-264 (Vt. Supreme Ct., July 18, 2007) (unpublished entry order).
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This decision specifically does not address the potential for appeal of any decision
the DRB may issue regarding the College’s Institutional Parking Plan as a result of its
hearing, nor the effect of any such appeal on the potential for occupancy of the dormitory
project in the Spring 2008 academic term. Any such appeal would be a new appeal
requiring a new notice of appeal and would receive a new docket number in this Court.
Dated at Berlin, Vermont, this 5th day of December, 2007.
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Merideth Wright
Environmental Judge
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