In re Champlain College Maple Street Dorm.

• Decision Date: 14 August 2009
• Docket Number: No. 07-155.,07-155.
• Citation: 2009 VT 55,980 A.2d 273
• Court: Vermont Supreme Court
• Parties: In re CHAMPLAIN COLLEGE MAPLE STREET DORMITORY.

980 A.2d 273

2009 VT 55

In re CHAMPLAIN COLLEGE MAPLE STREET DORMITORY.

No. 07-155.

Supreme Court of Vermont.

August 14, 2009.

Todd D. Schlossberg of Law Office of Todd D. Schlossberg, Burlington, for Appellants/Cross-Appellees.

Mark G. Hall and David M. Pocius of Paul Frank + Collins P.C., Burlington, for Appellee/Cross-Appellant Champlain College, Inc.

Kimberlee J. Sturtevant of McNeil, Leddy & Sheahan, P.C., Burlington, for Appellee City of Burlington.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

REIBER, C.J.

¶ 1. Neighbors appeal from the Environmental Court's order approving, with conditions, Champlain College's application to renovate an existing building and construct a new building for student housing. At issue are the court's findings that the project complied with the City of Burlington's density and setback requirements.¹ We affirm the court's decision.

¶ 2. The record indicates the following. Champlain College owns a 4.6 acre lot in the City of Burlington with frontage on three streets. The lot adjoins city-owned property, and at the time of the court's decision, it contained nine buildings and their associated parking lots. The lot is located within the University Campus (UC) zoning district as well as the Champlain College Core Campus Overlay (CCO) district. As noted above, the College proposed to renovate an existing building and construct a new 18,000 square-foot building on this lot to create forty-nine new student rooms to house ninety-four students.

¶ 3. In June 2005, the DRB approved the College's application with conditions. Neighbors appealed to the Environmental Court, and the College cross-appealed. After a hearing and a site visit, the Environmental Court issued an order approving the application with conditions. As discussed in additional detail below, the court found in relevant part that the project satisfied the City's density and setback requirements. This appeal followed.

¶ 4. We begin with the court's evaluation of the City's density requirements. The court identified two provisions of the zoning ordinances, then in effect, that appeared to set the density requirements for the project — § 3.2.7(e), which specifically applied to the CCO district, and article 5, part 2, which provided general density requirements for various districts in the City, including the UC district. Section 3.2.7(e) stated that "[r]esidential density shall be at a maximum of 24 units per acre within the CCO inclusive of inclusionary units."² Article 5 provided that the maximum allowable residential density "shall be in accordance with Table 5-B," which for the UC District was twenty net "dwelling units" per acre, with a bonus allowed for inclusionary units up to a maximum of twenty-four dwelling units per acre.

¶ 5. The Environmental Court concluded that although these provisions appeared to create an ambiguity, the application of the CCO's specific residential density provision to this project harmonized the ordinance provisions and avoided surplusage. The court also found its interpretation consistent with the purpose underlying the CCO district, which was to "provide a more urban configuration of the institution's core campus in order to accommodate future growth without further intrusion into surrounding residential neighborhoods." BZO § 3.2.7. Thus, using the 24-unit per acre figure, the court concluded that the maximum residential density on the entire parcel was 110.4 "units."

¶ 6. The court next considered the meaning of the term "unit" as applied to a dormitory. As reflected above, the regulations in article 5 described density in terms of "dwelling units per acre." The regulations also referred to "residential units," "units," and "inclusionary units," but did not further define these terms, with the exception of inclusionary units. A "dwelling unit" was defined in part as "a room or set of rooms fitted with a private bath, kitchen, and living facilities," id. § 30-5, and the court found that dormitory rooms did not fit within this definition.

¶ 7. The City had relied on a definition of "rooming unit," found elsewhere in the ordinances, to calculate density. See Burlington Code of Ordinances § 18-2 (defining "rooming unit" to mean "any room or group of rooms forming a single habitable unit used or intended to be used for living and sleeping, but not for cooking or eating purposes"). The ordinances provided that any four "rooming units" were considered a single housing unit in applying the housing replacement requirements of article 15. The City's zoning administrator testified that he used the four-to-one ratio to measure the density of dormitory projects as well as any other type of rooming house projects in the City. The court found that while the City's approach might be reasonable for a dormitory having only single or double rooms, it became unreasonable where dormitory rooms were to be occupied by three or more students because it would allow for a much higher density occupation than standard size dwelling units.

¶ 8. Nonetheless, the court calculated the project's density using both the City's method — treating four student rooms as a dwelling unit equivalent — and its own method, treating each student room, regardless of the number of beds, as one "residential unit." The court found that the project met the City's maximum allowable density of 110 units using either method. Using the court's method, there were 106 units; using the City's method, there were 43 units.

¶ 9. Neighbors challenge the court's conclusion on appeal. They assert that the maximum allowable density for this project is 92 units, not 110 units. According to neighbors, the College is not entitled to a twenty percent bonus for inclusionary units because the project does not include inclusionary units, and it is in fact exempt from such requirements. They note that both the City and the College relied on the twenty-unit figure in their pretrial filings with the court. Neighbors maintain that each dormitory room should count as a "housing unit" and thus, they assert that because this project creates 106 units, it violates the City's density requirements.

¶ 10. We affirm the Environmental Court's conclusion that the project complied with the City's density requirements, mindful that these requirements and the method of calculating density within the CCO district has changed as of 2008.³ In affirming the court's decision, we do not decide if the court erred in concluding that the maximum allowable density was 110 units because the project also complied with the 92-unit standard. Dormitory rooms plainly did not fall within the City's definition of a "dwelling unit." The City's approach — treating dormitory rooms as "rooming units" — was reasonable, and the City presented evidence that it used the four-to-one ratio to measure the density of dormitory projects as well as any other type of rooming house project in the City. The regulations now specifically refer to dormitory rooms as an example of "rooming units," see BZO article 13, at 13-36, and they provide that any four "rooming units" shall be considered a single housing unit in calculating density for the requirements of Article 4, although as noted above, the method of measuring density in the Champlain College district has changed. We defer to the approach taken by the City below, which appears to have been applied consistently, and we uphold the Environmental Court's conclusion that the project complies with the density requirement. See In re Duncan, 155 Vt. 402, 408, 584 A.2d 1140, 1144 (1990) (court gives deference to interpretation of zoning ordinance by local administrative body); cf. Washington v. Pierce, 2005 VT 125, ¶ 33, 179 Vt. 318, 895 A.2d 173 ("Where, as here, a legislative body enacts a law that clarifies an earlier law, the subsequent legislation declaring the intent of an earlier statute is entitled to great weight in statutory construction.") (quotation omitted). We are not persuaded to a contrary conclusion by In re S-S Corp./Rooney Housing Devs., 2006 VT 8, 179 Vt. 302, 896 A.2d 67, cited by neighbors. That case involved the Environmental Board's interpretation of the term "unit" for purposes of determining if a certain project constituted "development" subject to Act 250, and it is not helpful here.

¶ 11. We turn next to the court's findings regarding the setback requirements. The court explained that the College had merged seven lots to create a single large lot. The resulting lot was a "corner lot" because it abutted two streets at their intersection, and as such, it had more than one front yard. In this case, it had one front yard facing South Willard Street, one facing Maple Street, and one facing Main Street. In light of the City's consistent interpretation of the corner-lot provision, and for the reasons set forth in earlier cases, the court found that the lot lines perpendicular to each of the streets were considered side-lot lines. Applying this approach, the court concluded that the project complied with the City's setback requirements.

¶ 12. Neighbors disagree with the court's analysis, asserting that a rear-lot setback requirement should apply to this project. They maintain that, under the court's rationale, any new structure on this lot will be exempt from rear setback requirements, no matter where it is located. They complain that there was no showing that the City had ever considered this or any other similar parcel as a "corner lot," or applied side-yard setback requirements to a project located in the middle of a block, on a lot more than 400 feet from any corner. They assert that the court's decision is not authorized by the City's zoning ordinances, and that it defies common sense.

¶ 13. In interpreting zoning ordinances, we apply familiar rules of construction. First, we "construe words according to their plain and ordinary meaning, giving effect to the whole and every part of the...