[T]he legal battles are continuing in the City of Montpelier’s quest to build a parking garage with the city opposing the latest effort by opponents — a challenge to a statewide statute determining how appeals are made against administrative officers.
The city’s latest move comes after months of conflict between the city and a group called the Friends of Montpelier, which wants to keep the state capital free of parking garages. The city’s proposal involves a private Hampton Inn with an adjacent city-run parking garage in the current Capitol Plaza parking lot. The parking garage would include at least 348 new parking spaces.
Proponents of the garage argue that it will advance business and prevent urban sprawl. Opponents cite problems with traffic control, the importance of historic preservation, and discrepancies with Montpelier’s master plan.
On Nov. 5, 19 citizens submitted a petition to the city outlining their critiques of the city’s proposal.
“We are facing a unique and troubling situation, to put it mildly,” the petition begins.
One day after the petition was filed, Montpelier residents voted in favor of the parking garage, setting off a cascade of legal action that remains unresolved seven months later.
In early 2019, the Friends of Montpelier — represented by attorney James Dumont — issued two appeals with the state Environmental Court. One of the appeals challenges Montpelier’s zoning permit; the other questions the permit’s compliance with Act 250, a Vermont land use law.
“My clients want to put the city to its proof because they think once there’s a neutral and fair decision maker, the project will not receive a zoning permit.” Dumont said.
A new motion by the City of Montpelier, however, threatens to render both appeals moot.
The city’s argument is based around statute 24 V.S.A. § 4465, which outlines how parties appeal the decisions of an administrative officer. The Friends of Montpelier made their case based on the statute — but the city argues that the rule itself is unconstitutional.
The city’s critique has to do with a stipulation that is present in Article III of the United States Constitution but not in the Vermont statute.
According to the city’s motion, under Article III, appellants must have been injured “in fact” by the party they are pursuing action against. In statute § 4465, however, the appellants are not required to be harmed.
The city’s argument is that the statute does not “contain all of the elements of standing mandated by the United States Supreme Court,” and therefore is not constitutional.
According to City Manager William Fraser, the statute follows the Constitution exactly — “except this one line that says that people can file a petition and take a case to court, and they don’t have to be wronged by the project.”
“If you take it to its logical extreme, it could be used to exact retribution against somebody you don’t like,” Fraser added.
The city also claims that one of the appellants does not qualify as an “interested person” even under the current statute.
As far as Dumont can recall, the statute has never before been called into question.
“It’s remarkable that an elected city government is authorizing its lawyers to have a judge declare unconstitutional the principal means by which citizens of the state participate in zoning cases,” he said.
If the judge agrees with the city, then the result will have ramifications beyond Montpelier. Dumont said that he plans to alert Attorney General TJ Donovan to the issue so that Donovan can defend the statute, but the case’s outcome may change the rule statewide.
“There’s a statute, but does it meet the test? Is this really what people expect, to be vulnerable to appeals and action by parties that don’t have proper standing?” Fraser said. “We don’t know what the courts will rule. But it seems to be a fair question to ask.”
As for the Montpelier parking garage, the city’s newest motion is one of many recent efforts from both sides to swing the courts in their favor.
Separate from the two court appeals, Dumont is also arguing that errors in the information presented prior to Nov. 6 render the vote invalid. In two letters to the Montpelier City Council, dated May 22 and June 6, Dumont claims that there are errors and omissions in the information that was presented to the public — and that the errors are such that the City Council cannot merely add to the relevant documents.
According to Fraser, none of the errors were “substantive” beyond what an update could repair.
“The statutes provide for the ability for elected bodies to do that, in case a certain date was missed or something like that, as long as the actual vote was taken properly,” Fraser said.
If Dumont’s case to the City Council is successful, then he says there are two options: either the topic goes to a revote, or “the garage is done.”
The City Council is slated to determine their response at a meeting on June 12.
The appeals in the environmental court and the argument with the City Council are, for now, separate entities. Either side could emerge from either debate successful; either case could render the other irrelevant.
According to some Montpelier citizens, however, the parking garage is worth whatever legal battles it might require.
“I think it’s very important that, when the city is expending public funds, that the taxpayers know how much and what it’s going for,” appellant Sandra Vitzthum said. “It’s just very important to be transparent.”
Mayor Anne Watson defended the garage, saying the project would allow for the construction of new electric vehicle charging stations and mitigate car storage on impervious surfaces.
“I am honestly psyched for this project,” she said. “I think it’s going to be a really great addition to downtown.”
