Century Partners, LP NOV ( 2009 )

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: Century Partners, LP, } Docket Nos. 177-8-08 Vtec and
Notices of Violation } 191-8-08 Vtec
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Decision and Order on Appellant’s Motion for Summary Judgment
In Docket No. 177-8-08 Vtec, Appellant Century Partners, LP appealed from a
decision of the Development Review Board (DRB) of the City of South Burlington
upholding the Administrative Officer’s May 2, 2008 Notice of Violation. In Docket No.
191-8-08 Vtec, Appellant Century Partners, LP appealed 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 Century Partners, LP, Docket No. 271-
11-08 Vtec, has been placed on inactive status pending 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 responsive memorandum, the
City has also requested summary judgment in its favor on certain issues. When both
parties seek summary judgment, the Court will give each 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 Market
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Street and 4 Market Street. Market Street is the current name of a street formerly shown
as Corporate Way on some of the plans relating to this 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 Notices of Violation as to one of the
violations asserted in the May NOV, involving a chiropractic 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 restoration of an approved bicycle rack, and
the parking of a motor vehicle trailer in an unapproved 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, the corresponding claims in the
enforcement action, Docket No. 271-11-08 Vtec, will be withdrawn.
May NOV ¶ 2
Paragraph 2 of the May NOV states as a violation that Appellant added a new
dumpster storage (service) area north of the 100 Dorset 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 the PUD, but it is identical to the most
recent site plan with respect to the “existing service areas” to the north and east of the
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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 Partners, LP PUD,
No. 210-9-06 Vtec (Vt. Envtl. Ct. May 10, 2007) (Durkin, J.).
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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 dumpsters, 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, marked as an “approved 300 SF storage”
area. As of the May 2, 2008 NOV, and as of the February 11, 2009 inspection of the area
as reflected in the photographs submitted by the City 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 that this 300-square-foot storage
area was never approved for the placement of dumpsters. Rather, Appellant argues
that the incorrect, but temporary, placement of a moveable trash receptacle is either not
a violation at all, or is a merely technical and insubstantial violation, or has been cured
and is now moot. Appellant argues that four dumpsters were approved for the north
and east sides of the 100 Dorset St. building, and that only four dumpsters are in use on
the north and east sides of the 100 Dorset St. building.
The placement of any feature shown in a specific location on a site plan is only
approved for that location, regardless of whether the feature is capable of being moved.
To the then-Planning Commission that approved the site 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 indirectly in the context of a later NOV or
enforcement action. 24 V.S.A. § 4472(d).
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Of course, an applicant may apply to amend a site plan to change such features
in appropriate circumstances. Indeed, the remedial action specified as appropriate in
the May NOV was to “[o]btain all necessary approvals and permits” for the noted
changes.
Any issues as to when the violation or violations occurred, 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 the enforcement case: Docket No.
271-11-08 Vtec. Summary judgment must be granted in 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 that Appellant added a new
dumpster storage area east of the 102 Dorset St. building without site plan approval and
without a zoning permit.
The December 2005 Plan shows a single square area labeled as “8’ high
stockade[-]fenced service area” off the southeast corner 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 necessary 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 have been approved by the DRB.
However, the orderly administration of Vermont’s zoning laws requires adherence to
the principle that permittees must either comply with approved site plans or obtain
amendments of them, rather than proceeding unilaterally 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 as
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appropriate in the June NOV, as to this asserted violation, was either to “comply with
the approved site plan or obtain all necessary approvals and permits” for the noted
changes.
Any issues as to when this area was added, whether injunctive relief is needed or
appropriate, and whether any penalties are appropriate 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 the June 16, 2008 NOV.
June NOV ¶ 3
Paragraph 3 of the June NOV states as a violation that Appellant has failed to
screen the dumpsters at the north end of the 4 Market St. building and east of the 102
Dorset St. building.
Unlike the unenclosed dumpster areas marked as “existing service areas” to the
north and east of the 100 Dorset St. building, the December 2005 Plan also shows several
enclosed dumpster areas. Three square areas are labeled as “screened dumpster
enclosures,” one on the north side and two on the east side of the 4 Market St. building.
A single square area is labeled as “8’ high stockade[-]fenced service area” off the
southeast corner of the 102 Dorset St. building.
The enclosed dumpster service areas or dumpster enclosures were constructed
with stockade-fence front panels that swing open for servicing of the dumpsters. The
City has provided photographs and affidavits of occasions on which the front panels
have been observed to be open, while Appellant has provided photographs and
affidavits of occasions on which the front panels have been observed to be closed.
“Screening” is one topic covered by site plan review. 24 V.S.A. § 4416. At least
for the dumpsters located on the north and east sides of the 4 Market St. building and
east of 2 Market St. building, the approved site plan requires them to be “screened” or
“enclosed.” The enclosures are ineffective to perform their screening function when the
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front panels are left open. Therefore it is not enough 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 position except when actually in use.
It is up to Appellant to put into place tenancy agreements sufficient to ensure that the
various building tenants abide by the screening requirement, 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 whether any penalties are appropriate
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 3 of the June
16, 2008 NOV.
May NOV ¶ 1
Paragraph 1 of the May NOV states as a violation that Appellant altered the
approved landscaping plan by installing a low barberry hedge between the Dorset St.
right-of-way and the parking spaces for the 100 Dorset St. building, without site plan
approval and without a zoning permit. Appellant has explained that it installed the
street trees that were required by the approved site plan, but that those trees were in an
area since taken for the widening of Dorset Street.
Appellant planted the barberry hedge to provide some screening between its
parking area and Dorset Street, but did not apply for any changes to the site plan to
reflect the widening of Dorset Street and the new hedge. An applicant may apply to
amend a site plan to change such features in appropriate circumstances. The City does
not here claim that Appellant is required to replace 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 changes.
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Any issues as to when the street widening occurred, when the hedge was
planted, whether injunctive relief is needed or appropriate, and whether any penalties
are appropriate 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 1 of the May 2, 2008 NOV.
May NOV ¶ 4
Paragraph 4 of the May NOV states as a violation that Appellant altered the
landscape plan for the area to the east and north of 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. Ct. 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 cases, it was neither part of the
application materials originally submitted for site plan approval nor was it
subsequently approved by the then-Planning Commission. It was therefore not a
landscape plan that was enforceable so as to preclude the issuance of a certificate of
occupancy for the 2 Market St. building.
However, the Notice of Violation addresses a different issue. It addresses
whether Appellant has obtained site plan approval of the actual landscaping it has
installed in the area around the 2 Market St. building. In the present cases, material
facts are in dispute as to whether any approved site plan shows the landscaping as
installed in the area around the 2 Market St. building, so that summary judgment is
DENIED as to Paragraph 4 of the May NOV.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that Appellant’s Motion for Summary Judgment is DENIED, and Summary Judgment is
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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. Appellant’s Motion for Summary
Judgment is DENIED as to paragraph 4 of the May 2, 2008 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 but paragraph 4 of the May 2, 2008
NOV. A telephone conference has been scheduled (see 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 15th day of September, 2009.
_________________________________________________
Merideth Wright
Environmental Judge
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