Posted by: Patricia Salkin | June 18, 2009

Applicant Not Entitled to Parking Waiver Due to Successive Application Doctrine

In consolidated appeals, the Vermont Supreme Court held that the Environmental Court erred in conditionally approving a proposed ten-story mixed use building in the City of Burlington since the second application was not substantially changed from the first. The project, which proposed 50 residential units (12 of which would be for low-or moderate-income households) and three commercial units, including a drive-through ATM, also included a three-level parking structure beneath the building with room for 64 cars – 14 of which were to be used for public and commercial parking and 50 to be reserved for residents of the building. The City’s zoning ordinance requires two spaces for each of the 50 residential units, but it allows this requirement to be reduced by up to 50% “to the extent that the applicant can demonstrate that the regulation is unnecessarily stringent for reasons of: (a) Unique use times; (b) Shared or dual use; (c) Availability and projected use of alternate transportation modes…; and/or (d) Anticipated reduction in vehicle ownership in connection with affordable housing developments.” The City approved the full 50% waiver and neighbors appealed to the Environmental Court.

The Court, while finding that the project applicants had submitted some evidence to show that the project met some of the requirements for parking abatements, the applicants had not shown evidence as to the characteristics of parking demanded by affordable housing units or the projected use of alternative modes of transportation by residents of downtown units. The Environmental Court eventually granted a waiver of 30 of the 50 parking spaces requested “without prejudice” to the applicant’s submitting a new application to the Board for either a waiver of the remaining 20 spaces or a proposal to create additional parking spaces.

Neighbors appealed this decision to the Vermont Supreme Court, and the applicant requested that the Board grant them a waiver for the additional 20 spaces. The applicant explained that it would provide parking on a fee basis to residents in another lot is owned between the hours of 5pm and 7am; and that it would add a provision to the Declaration and Bylaws of the residents’ association limiting the number of allowable vehicles per unit. The applicant also submitted a number of surveys about shared-use parking. The Board once again granted the waiver, and on appeal, the Environmental Court affirmed. The neighbors filed a second suit, which the Vermont Supreme Court combined into a single proceeding.

The Court described the general principle that under the “successive-application” doctrine, planning boards and zoning boards may not entertain a second application that is essentially the same as the first one considered unless a substantial change of conditions has occurred or other considerations materially affect the merits of the second request. The Supreme Court agreed that the second application was essentially the same as the first with respect the waiver of the requested number of parking spacing. The Court noted that the Environmental Court


In re Appeal of Barbara McGrew/In re Appeal of 114 College Street Permit Application, 2009 WL 1163431 (Vt. 5/1/2009).

The opinion can be accessed at:

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