Appeals of Curtis

STATE OF VERMONT

ENVIRONMENTAL COURT

}
In re: Application of Verizon Wireless } Docket Nos. 203-11-03 Vtec
(installation at St. Mary=s Star of the Sea) } and 140-7-05 Vtec
(Appeals of Curtis, et al.) }
}

Decision and Order on Motions to Remand

In Docket Number 203-11-03 Vtec, Appellants Linda M. Curtis, Clark W. Curtis,

Linda S. Cunningham, James C. Cunningham, Christina Hilliker, Richard Hilliker, Francis

Lantagne, Rita Lantagne, Liz Lemieux, Leo Paul Major, 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 the existing

St. Mary=s Star of the Sea Catholic Church (the Church) and for the construction of a

related equipment building.1[1] Appellee-Applicant2[2] Vermont RSA Limited Partnership,

1[1]
The proposal also included reconstruction of an existing Church garage, not at issue

with regard to the present motions.
d/b/a/ Verizon Wireless cross-appealed from 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.

2[2]
The application was filed jointly by the landowner Roman Catholic Diocese of

Burlington, through St. Mary=s Star of the Sea Catholic Church, and by Verizon Wireless; however,

neither the Diocese nor the Church has entered an appearance as a party in either of the above-

captioned appeals.
 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 that a conditional use permit is also required

for the changes to the parking at the Church caused by the new equipment building.3[3]

Appellants are represented by Gerald R. Tarrant, Esq.; Appellee-Applicant is

represented by Brian Sullivan, Esq.; the City of Newport is represented by William Boyd

Davies, Esq. The Court heard the merits of Docket No. 203-11-03 Vtec and took a site

visit with the parties. The parties have filed requests for findings and legal memoranda

regarding the merits of the site plan approval application as presented at trial; the present

decision and order makes findings from the evidence presented at that hearing only as

necessary to address the pending motions.

Appellants argue that the proposal calls for an alteration to the Church=s 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 reviewed the parking using the table

provided in '328. Appellants 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

3[3]
The equipment structure is proposed to be built onto the south side of the rectory

building. It is 12' x 30' (360 square feet) and therefore exceeds the size of a Ashed@ as that term

is defined in '502 of the Zoning Bylaw. It has walls and a roof, and therefore falls within the

definition of the term Abuilding.@ '502.
into 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=s existing parking arrangements caused by the construction of the

equipment building.

Saint Mary=s Star of the Sea was constructed prior to the institution of zoning in the

City of Newport. It is located in the Urban Residential zoning district, on a 93,200 square

foot lot,4[4] adjacent to a much larger property owned by the Daughters of the Sacred

Heart of Charity, on which is located a convent, a school, and a shop building.

The Saint Mary=s 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 of '308), or if the rectory is treated as an accessory building to the Church, it

may exceed the twenty-foot height limitation for an accessory building in the Urban

Residential zoning district. '205.03. The Church building extends into the east side

setback, and extends slightly into the front setback at its northeast corner.

4[4]
Unless otherwise noted, all locations and measurements are taken from the proposed

site plan, with proposed parking spaces, attached as Exhibit 3 to the prefiled direct testimony of

John A. Steele. (Steele Exhibit 3)
 To determine whether the existing Church property is also non-conforming as to

any zoning standards related to parking, we must determine the seating capacity in its

Amain assembly room@ and also determine its Afloor area.@ The maximum seating capacity

in the assembly room of the Church is 556 seats, calculated as four people per each six-

foot-long pew plus 28 seats in the choir. This calculation is consistent with Father

Royer=s testimony estimating a 550-person capacity. The square footage of the floor

area5[5] of the Church has not been provided, but may be estimated (based on a footprint

approximately 65' wide by 160' long6[6]) as very approximately 10,400 square feet.

5[5]
The term Afloor area@ is defined in '502 as exclusive of basement floor areas; there is

no evidence that the Church building has more than a single floor above a basement level.

6[6]
Estimated by taking measurements by scale from Steele Exhibit 3 or from the diagram

attached to the affidavit of John Steele filed as Attachment C to Appellants= August 8, 2005

Motion to Remand (AAttachment C@).
 The term Aparking space@ is defined in '502 of the Zoning Bylaw as being Aat

least nine feet wide and twenty feet long, not including access driveway, and having direct

access to a street or alley.@ An examination 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 numbered spaces7[7] are located on the westerly side

of the rectory, thirty numbered spaces8[8] are located behind (to the south of) the rectory,

two numbered spaces9[9] are located near the southwesterly corner of the Church, and

twelve unnumbered spaces are located along the southerly edge of the existing parking

area. 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 parking 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 uses an undefined number of parking spaces on the adjacent land of the

Daughters of the Sacred Heart of Charity, but without any written or formal agreement

between 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

7[7]
Numbered 1, 2, and 35-38.

8[8]
Numbered 3 through 32.

9[9]
Numbered 33 and 34.
witnesses from both parties as to approximately one hundred parking spaces provided in

the AChurch lot@ includes some spaces off the Church=s property in these other locations,

as shown also on Steele Exhibit 3.

Not all of the spaces shown on Steele Exhibit 3 as existing spaces provided on the

Church=s property meet the size (9' x 20') requirements of the definition of Aparking

space,@ '502, or the requirement that each space have direct access to a street or alley.

The thirty 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 footnote 6, supra)

55 feet in length and having three cars parked end-to-end. Only the two outside 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 parallel park). Moreover, each parking 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 thirty 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 property in compliance with the

Zoning Bylaw=s definition of Aparking space@ shows that the existing parking provides 41

spaces, plus whatever spaces may be provided within the rectory=s and Church=s existing
garages but not shown on the site plan or the diagram. The parking associated with the

proposed site plan for the equipment building will not reduce the number of existing

spaces, but it will alter the location and configuration of the parking spaces on the Church

property.

Under '32810[10] of the Zoning Bylaw, the off-street parking space requirement for a

religious institution11[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 for 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

10[10]
This is not a determination that the proposal must comply with '328; rather, it is

used to determine whether the Church=s existing off-street parking is a nonconformity with the

Zoning Bylaw, and therefore whether '402 is applicable.

11[11]
It is not clear from the table in '328 or the definition of Areligious institution@ in '502

whether the requirement applies to the Church and rectory taken together, or whether the rectory

should be treated as a single-family dwelling unit for which two additional spaces would be

required. If two additional spaces are required, it is possible that two spaces are provided within

the rectory=s garage.
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 spaces, 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=s site plan, the present off-street parking spaces provided 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. Indeed, the fact

that the Church property does not comply with other zoning requirements (regulating

setbacks, height, or one principal building per lot), would cause that section to be triggered

even if the parking provided were adequate under the regulations (for example, if the

Church were to cure the existing parking 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[12] Appellee-Applicant=s proposal to alter or move the existing parking spaces

12[12]
See, In re Appeal of Miserocchi, 170 Vt. 320, 323-24 (2000) (non-complying

structures are also non-conforming uses under the state statute).
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 application simply because an

appeal of a related Planning Commission decision is pending in this Court.

Appellee-Applicant is correct that, in conducting its site 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 respect to the adequacy of . . . [c]irculation and parking.@ '606.02(B). The Court

will apply those standards in addressing the merits of site plan approval in Docket No.

203-11-03 Vtec.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that

Appellants= Motion to Remand is GRANTED, concluding Docket No. 140-7-05 Vtec. In

Docket No. 203-11-03 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

incorporated13[13] so that any such revisions may properly be before the Court on their

merits in a single decision.

13[13]
Either through an agreed amendment to the site plan before the Court, or through an

appeal of an amendment to the site plan proposed to the Planning Commission, with an additional

limited evidentiary hearing if necessary. V.R.E.C.P. 2(b).
 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 available for the

conference on January 4, 2006, or on January 9, 2006. Appellants= motion for costs is

hereby deferred to be considered with 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 may be filed.

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

_________________________________________________
Merideth Wright
Environmental Judge