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AO 12 02 SouthBurlingtonSchoolDistrict 1313final MCB Signature 01.04.13

AO 12 02 SouthBurlingtonSchoolDistrict 1313final MCB Signature 01.04.13

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Published by: Philip Tortora on Jan 04, 2013
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  Appeal #AO-12-02 of South Burlington School District appealing the decision of the Administrative Officer to issue Zoning Permit #ZP-12-292 to the Howard CenterInc., as the applicant, and Dorset Street Real Estate Holdings, LLC, as the propertyowner, for “interior renovations to Suite 101” for existing medical office use at 364Dorset Street.
This appeal, and the involved application for a zoning permit, are subject to therequirements of the City of South Burlington Land Development Regulations(SBLDRs), adopted May 12, 2003, with amendments effective May 7, 2012.2.
364 Dorset Street is located in the City’s Central District 2 (CD2) Zoning District.3.
The building at 364 Dorset Street is part of an existing, 3-building planning unitdevelopment (PUD) (involving 364, 366 and 368 Dorset Street) authorized by theSouth Burlington Development Review Board “for a multiple number of commercial uses for a multiple number of tenants” by Findings of Fact andDecision, dated August 1, 2000, on permits #SD-00-32 and #DR-00-07.4.
The August 1, 2000 DRB decision, which was not appealed, contains 21 “stipulations” (i.e., conditions).5.
Stipulation #4 of the August 1, 2000 DRB decision states, in pertinent part: “[t]his approval for 364 [Dorset Street]… includes the following uses which arecurrently permitted in the CD2 District … 3) Medical office ….” 6.
Stipulation #5 of the August 1, 2000 DRB decision states: “This approval isconditioned on a maximum of 165 parking spaces, 5,415 gpd of sewer allocation,and 117 vehicle trip ends (“VTES”) during the P.M. peak hour for the entireplanning unit development.” 7.
Stipulation #6 of the August 1, 2000 DRB decision states: “The applicant shallobtain approval from the Director of Planning & Zoning prior to the change of any tenant in any of the buildings. The Director shall approve the proposed newtenant only if the proposed combination of uses fits within the limitationsestablished in stipulation #5 above. In making his determination, the Directorshall utilize the parking standards contained in Table 1 of the ZoningRegulations, and trip generation rates contained in the ITE Trip Generation
Manual. If a use is proposed which does not fit clearly within any of thesestandards or if a shared parking concept is proposed in order to meet theparking limit, the applicant shall obtain approval from the Development ReviewBoard for the proposed use.” 8.
On August 6, 2012, the Howard Center, Inc. (applicant) and Dorset Street RealEstate Holdings, LLC (property owner) filed a zoning permit application with theCity for a proposed project described as “interior renovations to Suite 101.” Theapplication fee was paid.9.
The application listed the existing use as “medical office” and proposed use as “medical use,” which the Administrative Officer later confirmed (and identified onthe application) as “medical office” use. The estimated cost of the interiorimprovements was listed as “$103,200.00”.10.
On August 24, 2012, the Administrative Officer issued zoning permit #ZP-12-292to Howard Center, Inc. (applicant) and Dorset Street Real Estate Holdings, LLC(property owner). In so doing, he concluded that § 17.02 of the SBLDRsrequires a person to obtain a zoning permit prior to the commencement of “landdevelopment”. As defined in Article 2 of the SBLDRs, “land development shallnot include any structural alteration or interior remodeling project that does notexceed five thousand dollars ($5,000) in construction cost.” The AdministrativeOfficer concluded that since the proposed interior renovations exceeded $5,000,a zoning permit was required. He further concluded that since the proposedinterior renovation did not involve any new use, change in use or expansion of use, site plan approval was not required under § 14.03(A) of the SBLDRs. The Administrative Officer did not consider traffic impacts in connection with theproposed interior renovations.11.
On September 7, 2012, the South Burlington School District (“SBSD”) filed atimely Notice of Appeal (#AO-12-02) challenging the issuance of zoning permit#ZP-12-292.12.
The SBSD operates two public schools, the Frederick H. Tuttle Middle School andthe South Burlington High School, at 500 and 550 Dorset Street. The nearestpoint of the middle school building is located approximately 500 feet from 364Dorset Street. The primary access to the SBSD property, utilized by schoolbuses, parents, students, faculty and staff, is off of Dorset Street. Trafficthrough this access is heaviest at the beginning and end of the school day.13.
In its Notice of Appeal, SBSD asks that the DRB deny zoning permit #ZP-12-292. As grounds for the relief sought, SBSD’s Notice of Appeal states, in part, that it “is concerned that a proper review of the requested permit did not include ananalysis under LDR 10.02 concerning an influx of clinic patients and the
attendant increase in automobile and foot traffic.” In addition, SBSD states “dueto the proposed location of the Methadone Clinic to the South Burlington HighSchool and Frederick H. Tuttle Middle School campus, Appellant is concernedwith the real potential for inappropriate interactions between patients andstudents, which may put students at risk.” 14.
Public hearing notice that a hearing on the appeal would take place on October16, 2012 was published in The Other Paper on September 27, 2012.15.
The Development Review Board held a duly warned public hearing on SBSD’sappeal on October 16, November 6 and November 20, 2012. During thehearing, the DRB received evidence and/or heard argument from the zoningadministrator, appellant, applicant, landowner, and other persons claiminginterested person status on the issues raised in the Notice of Appeal (identifiedabove); both the appellant and applicant were represented by legal counselthroughout the proceedings. In addition to testimony from those persons listedabove, the DRB provided members of the general public appearing at thehearing with an opportunity to provide non-evidentiary comment on the appealand received non-evidentiary letters of input.16.
 Although not initially identified in the Notice of Appeal, SBSD’s supplementalmemorandum raised an issue regarding whether the Howard Center’s intendeduse of the remodeled space at 364 Dorset Street as a treatment facility for opioidaddiction qualifies as a medical office use (i.e., it challenged the applicant’scontention that no change of use is proposed). Subject to a continuing objectionby the applicant, this issue was also raised by DRB member questions andcomments (as well as the questions and comments of others) during the publichearing.17.
In response to the issue of use, the applicant’s evidence, presented during thereconvened hearing on November 20, 2012, included testimony from JohnBrooklyn, MD, the medical director of the Howard Center’s methadone clinicprogram. Dr. Brooklyn testified that persons receiving services through theprogram proposed for 364 Dorset Street will be required to also receive medicaltreatment for opioid addiction at that location. Only medical personnel (i.e., adoctor or nurse) can administer methadone, and such personnel routinelyinteract with and examine persons receiving methadone treatment. Forexample, doctors or nurse-practitioners perform initial evaluations, physicalexaminations, annual examinations, and dose adjustments, together with otheraspects of medical practice. Nurses not only administer methadone, but alsoexamine patients who arrive at the clinic for treatment, and may require furtherevaluation, refuse to dose, or recommend dose adjustments for patients.

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