As Montpelier’s director of Planning & Community Development, I would like to provide some information about issues related to the parking garage appeal in the Environmental Division of Vermont Superior Court. My office is responsible for the administration and enforcement of the adopted zoning regulations (known officially as the Unified Development Regulations), and we take a strict and literal interpretation to these rules as is required under state law.
The Planning & Community Development Department is deliberate in separating itself from the City Manager’s Office for city projects like the parking garage. The department is responsible for administering and enforcing the rules and neither the manager nor City Council are authorized to (nor do they) interfere with our decisions or determinations. Our job was solely to determine if the proposed parking garage project met the applicable zoning regulations — not whether financing was appropriate or if the idea of a garage was popular. Those decisions were for the council and public to decide through the pursuit of TIF, lease agreements and the eventual bond vote.
The detailed decisions by the Development Review Board can be found on the city’s website (https://www.montpelier-vt.org/1078/Development-Review-Board-Decisions). These decisions were rendered following two hearings before the Development Review Board and four meetings with the Design Review Committee. In these documents, every zoning requirement is carefully reviewed, facts and evidence applied to the standards, and a decision rendered. The public is encouraged to review these documents to decide for themselves if the department and Development Review Board acted properly.
An April 19 commentary in The Times Argus deserves some clarification to understand why the city manager asserted that the city followed its own zoning regulations. Four zoning-related questions were posed by appellants. Let me take them in order.
1. Was conditional use approval required for a non-conforming project? By way of information, something is “non-conforming” if it does not meet current zoning requirements but is allowed because it was built under previous sets of zoning rules. Our understanding is that the appellants believe the existing parking lot is non-conforming because it does not meet some requirements, including riparian setbacks and buffers. Because of this, they argue a conditional use review would be required. There are a number of reasons why the department and DRB found differently. Most importantly, there is a distinction in law between non-conforming uses and non-conforming structures. Conditional use review applies only to non-conforming uses as made clear in the city’s zoning regulations. In this case, both “parking lots” and “parking garages” are zoned as permitted uses in the applicable Urban Center 1 zoning district and therefore, they are “conforming” uses, not “non-conforming” uses. Because all proposed uses (the parking lot and parking garage) are conforming, there is no requirement in the zoning regulations triggering conditional use review of the project by the DRB. We are also confident that the parking lots are, indeed, conforming structures, as well, due to the determinations made by the DRB regarding riparian buffers and setbacks. Should a court find that the DRB erred in this determination, it would still be irrelevant to the question of whether conditional use review will be triggered as a result of a change to a non-conforming use.
2. Does the project satisfy conditional use standards? As stated in my response to the previous question, the current parking use is conforming; therefore, conditional use review is not required for this project.
3. Does the project comply with 30 feet of frontage and other considerations? Specific to the frontage question, the DRB decision found in #8 on page 5 that “… Lot 2 will have 36 feet of frontage on a private street (the proposed access easement) running through Lot 1 and connecting [State] Street to Taylor Street. This is a public access easement negotiated between the Owner and Applicant, the bounds of which are shown on the 10/23 Final Subdivision Plan.” The remainder of the 20-page decision describes how the application meets other subdivision requirements.
4. Does the project comply with ordinances dealing with pedestrian access, alternative transportation, street trees, parking lot landscaping and screening? The Development Review Board considered and expressly made findings on each of these aspects of the project. The garage decision discusses each:
Pedestrian access is discussed in #23 (Page 21).
Alternative transportation is discussed in the section-specific conclusions of law for #23 (Page 22). “Further, the design of the parking garage, including the ability to expand the number of electric vehicle charging station as demand increases, and its location within the commercial downtown, and adjacent to the transit center and shared-use path, clearly enable and encourage energy efficient modes of transportation such as walking, biking, transit, electric vehicles, carpooling, and car sharing. Therefore the Board concludes that this proposal meets the requirements of §3202.”
Street trees are discussed in #24 (Page 23).
Parking lot landscaping and screening is discussed in #24 (Page 22-24).
In conclusion, the city manager’s statement that the city followed its own zoning regulations was based on conversations with me and the city attorneys about the nature of the legal questions being asserted by the appellants. At this point, the department’s job is complete, and we are awaiting the decision from the Environmental Division of Vermont Superior Court or notice of any settlement (in which my department is not involved).
It is vital for the public to have confidence that our permit process is above politics and that it will be enforced and administered with integrity and fairness. Whether you are the applicant or a neighbor to a project, you have rights in the process. It is our obligation to respect those rights and serve the public to the best of our abilities. If you are an interested person to a city project, you should feel confident that your input will be considered. In this case, the DRB and DRC received the petition from the appellants and reviewed their comments carefully before rendering a decision.
Details about project financing do not fall within our department. I noted, however, the suggestion that the city and/or city manager had not informed voters that the bonding cost could potentially be borne by taxpayers. I took it upon myself to look at the actual Nov. 6, 2018, ballot item which states “Voters are advised that if the District Tax Increment is insufficient to pay the principal and interest on City obligations issued to finance the improvements identified in Article 1, for whatever reason, including a decrease in property value or repeal of a state property tax source, unless determined otherwise at the time of the repeal, the City of Montpelier shall remain liable for full payment of the principal and interest for the term of such obligations.”
I want to specifically thank Meredith Crandall (Montpelier’s planning & zoning administrator), Kevin O’Connell who chaired the DRB hearings, Stephen Everett who chaired the Design Review Committee hearings, and the entire DRC and DRB for their professionalism and for upholding the city’s values throughout this application process.
Mike Miller is the director of Planning & Community Development for the city of Montpelier.