Zaremba Group CU - Jericho ( 2014 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket No. 101-7-13 Vtec
Zaremba Group CU - Jericho DECISION ON THE MERITS
Stuart Alexander, Amy Booth, Peter Booth, Susan Bresee, William Bresee, Joe Faryniarz,
Susan Filipek, Martin Fisher, Jennifer Hatch, Jeffrey Hill, Laura Hill, Friederike Keating, Sean
McCann, Michelle Pinaud, Catherine Stevens, Michael Willey, Donna Wyatt, Sara Youngman,
and Jon St. Amour (together, Appellants) appeal the Town of Jericho Development Review
Board (DRB) decision approving the conditional use application of Zaremba Group, LLC
(Zaremba) to construct a 9,100 square foot retail building and associated site improvements at
265 Vermont Route 15 in the Town of Jericho, Vermont (the Town).
Zaremba filed a pre-trial motion for partial summary judgment asking this Court to
dismiss Appellants Amy Booth, Joe Faryniarz, Susan Filipek, Martin Fisher, Jennifer Hatch,
Jeffrey Hill, Laura Hill, Friederike Keating, Michelle Pinaud, Catherine Stevens, Michael Willey,
Donna Wyatt, and Jon St. Amour (named Appellants) and to grant summary judgment in its
favor as to their appeal. We concluded in an April 21, 2014 decision that the named Appellants
did not participate and therefore have no standing in this appeal. Zaremba’s motion for partial
summary judgment was therefore GRANTED, and Appellants Amy Booth, Joe Faryniarz, Susan
Filipek, Martin Fisher, Jennifer Hatch, Jeffrey Hill, Laura Hill, Friederike Keating, Michelle Pinaud,
Catherine Stevens, Michael Willey, Donna Wyatt, and Jon St. Amour were DISMISSED as
appellants.
In a second pretrial motion for partial summary judgment, Zaremba asked the Court to
dismiss Appellant Stuart Alexander for lack of standing. In support of its motion, Zaremba
argued that Dr. Alexander had not demonstrated a particularized injury different from the
injury experienced by the general public. Specifically, Zaremba noted that Dr. Alexander owns
property 3.5 miles from the project and that he drives by the project site approximately twice
per week. We concluded in an April 21, 2014 decision that Dr. Alexander is not an interested
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person under either § 4465(b)(4) or § 4465(b)(3). We therefore GRANTED Zaremba’s motion
for partial summary judgment, and DISMISSED Dr. Alexander.
Appearing at the site visit and merits hearing were Attorneys Alan P. Biederman and
James Goss, representing Zaremba; Attorney James Allan Dumont, representing Appellants;
and Albert W. Lindholm, participating as a self-represented litigant.
Based upon the evidence presented at trial, including that which was put into context by
the site visit, the Court renders the following Findings of Fact.
Findings of Fact
1. Zaremba seeks conditional use approval to construct an approximately 9,100 square
foot building (130 feet by 70 feet 9 inches) for a retail Dollar General Store at 265 Vermont
Route 15 in Jericho, Vermont.
2. The building is proposed as a one-story structure 24 feet, 6 inches high with white
clapboard siding to be located to the rear of the lot.
3. As proposed, the building roof has a pitch of 12/15 and will be constructed of black
metal standing seam.
4. The Project lot, located within the Commercial zoning district, is approximately 1.92
acres and has 337.31 feet of frontage on Route 15.
5. The Project lot has a 50 foot front yard setback, 20 foot side yard setbacks, and a 20 foot
rear yard setback.
6. The Project will cover approximately 43 percent of the Project lot.
7. Six faux windows are proposed to be located on the front of the building.
8. The Project will not involve outside display of items for sale or storage within the front
yard setback.
9. Customer parking is proposed to be primarily located in front of the Project building
with five additional spaces along the west side of the building for a total of 35 spaces.
10. Two signs are proposed for the Project. A 19 feet long and 18 inches high sign will be
flush mounted on the front wall of the building. Five gooseneck lights will be located above the
sign’s yellow letters. A second roadside sign will measure 3 feet 6 inches by 2 feet with black
letters on a yellow background. The roadside sign will be mounted on a pedestal with a total
height of 5 feet.
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11. Project lighting will include five 16.5 foot tall pole mounted lights. Several wall mounted
and canopy lights and motion detector activated security lights are also proposed.
12. The Project lighting will be Dark Sky compliant.
13. As proposed, the Project entails minor modifications to existing site topography.
14. Currently, there is minimal vegetation and trees on-site. Proposed landscaping will
enhance the vegetation and trees.
15. The proposed landscaping includes five honey locust trees and three red oaks along
Route 15, as well as a number of shrubs along the south edge of the parking area. Shrubs and
bushes are proposed along the sides of the building.
16. A rain garden and perennial garden will be located along Route 15.
17. Two northwood maple trees, two red oak trees, spruce trees, rhododendrons, five
crabapple trees, and numerous smaller plantings are proposed in the parking areas.
18. Plantings, including lilacs and arborvitae, are proposed on the east side of the Project
building and may grow to heights of 15 to 20 feet.
19. The hours of operation of the Project will be 8:00 a.m. to 10:00 p.m., seven days per
week.
20. The Project will have 8 to 12 employees: 2 full-time and 6 to 10 part-time.
21. Amy Booth resides with her husband Peter Booth at their residence at 352 Route 15 in
Jericho, approximately eight-tenths of a mile from the Project site.
22. Both Peter and Amy Booth ride bicycles to and from their residence on Route 15 past
the Project site.
23. The Booths will be able to see the Project as they bike in the area.
24. The Project is adjacent to Route 15 and will present new traffic interactions between
vehicles and bicycles due to a new curb cut and turning movements.
25. Route 15 in the area of the Project has a 50 mile per hour speed limit.
26. The Route 15 corridor in the area of the Project is not a High Crash Location.
27. Intersection sight distances and stopping sight distances for the Project exceed Vermont
Agency of Transportation (VTrans) minimum standards.
28. Peak hour traffic on Route 15 in the area of the Project is from 7:15 to 8:15 a.m. and
4:45 to 5:45 p.m.
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29. Based on trip generation estimates from the Institute of Transportation Engineers (ITE),
the Project will generate 10 new a.m. peak trips, 7 entering and 3 exiting. The Project will
generate 46 new p.m. peak trips, 23 entering and 23 exiting.
30. The Project site will have a single curb cut access.
31. The Good Shepard Lutheran Church (the Church) is located adjacent to the east of the
Project.
32. The Church has a curb cut on Route 15.
33. The Church has a parking lot in front of the building along Route 15 much like the
Project’s proposed parking.
34. An existing curb cut located in the southeast corner of the Project lot, close to the
driveway of the adjoining Church, will be eliminated and a new curb cut will be constructed at
the southwest corner of the lot. The new curb cut will be approximately 36 feet wide and
designed with two exit lanes (one left turn and one right turn) and one entrance lane.
35. A VTrans access permit has been obtained for the curb cut.
36. The curb cut will serve as access to any future development on what is currently vacant
land to the west and north of the Project site.
37. The new separation distance between the existing Church driveway and the new curb
cut conforms to VTrans regulations.
38. The Project will not have excessive queuing at the Project curb cut.
39. Level of Service (LOS) on Route 15 in the area of the new curb cut will operate at LOS A
during a.m. and p.m. peak hours through 2018. Estimated LOS for left-turning vehicles
approaching the Project will be LOS C for both a.m. and p.m. peak hours in 20131 with only very
slight delay increases through 2018.
40. The Project includes 7 bicycle parking spaces located near the southeast corner of the
Project building.
41. No vehicles will be required or permitted to back into Route 15.
42. Truck deliveries will consist of one tractor trailer per week during business hours and
smaller UPS-size truck deliveries periodically.
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Based on Zaremba’s credible Traffic Study, admitted as exhibit T, from April 2013.
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43. The truck loading/delivery area is separated from customer parking areas.
44. Traffic circulation on-site will accommodate both customer vehicles traveling to and
from parking spots and delivery truck movements on-site.
45. Presently there are no sidewalks along Route 15 in the area of the Project.
46. Project designs include a 10-foot wide sidewalk easement along Route 15 and from
Route 15 to the Project building to allow for future sidewalk connections.
47. The Project site is located in a presently open field immediately north of and adjacent to
Route 15 and west of the Church.
48. The Castle Cemetery (the Cemetery) is adjacent and to the north of the subject parcel
and west of the Church. The Cemetery is owned by the Town.
49. The Cemetery includes graves and grave markers of Town residents, the last of which
was interred in the 1920s.
50. The Cemetery is visible as one travels both east and west on Route 15.
51. The Cemetery is set back from Route 15.
52. A sign identifying the Cemetery sits above the entrance of the Cemetery. The sign is
difficult to read from Route 15.
53. The Cemetery is not handicapped accessible. General access from the Church by deed
or right-of-way is uncertain.
54. The Project will not alter existing access to the Cemetery, and as proposed the Project
does not include additional access to the Cemetery.
55. The Cemetery is infrequently visited by the public.
56. If constructed, the Project will not entirely obstruct views of the Cemetery from those
traveling in either direction along Route 15. However, the Project building and landscaping will
block some views and reduce visibility of the Cemetery.
57. Albert Lindholm resides in Jericho Center approximately five to seven miles from the
Project site.
58. Mr. Lindholm cannot see the Cemetery from his residence
59. Mr. Lindholm does not offer any physical or environmental impacts to his property
interest from the Project.
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60. The Town has not undertaken action to appoint Mr. Lindholm as a spokesperson,
caretaker, or to otherwise responsible for the Cemetery.
61. The Project site is located in the Town’s Commercial zone between two village centers,
Jericho Corners and Riverside.
62. The Commercial zone stretches for approximately 4/5 of a mile along Route 15.
63. Eastward travel on Route 15 in the Project area presents stunning views of Mount
Mansfield.
64. The Project area contains a mix of land uses including office, commercial, and light
industrial uses. Additionally there are numerous residential uses, farm uses, and open land.
65. Some older farm structures and residential properties have served or continue to serve
as smaller commercial or office uses.
66. Immediately to the west of the Project along Route 15 is the Jeri Hill Commercial
Complex (the Complex).
67. The Complex is larger than the proposed Project.
68. The Complex has parking in front of the buildings along Route 15.
69. Included within the Complex are a storage facility, hardware store, video store, and
pizza restaurant, some of which are housed in single story buildings with peaked roofs.
70. Across Route 15 to the south of the Project site are several residences and old farm
buildings now used as a seasonal garden center.
71. The seasonal garden center has a curb cut on Route 15 and parking in front of the
building.
72. Close to the west of the Project site is a home center and large storage warehouse.
Both structures are white and large in size.
73. Offices and a yoga studio are located to the western limits of the commercial area in a
development that somewhat resembles a strip mall.
74. Clark’s Truck Center, a heavy equipment and school bus business, is located to the east
of the Project site and on the southern side of Route 15.
75. The side streets off of Route 15 in the area of the Project serve several businesses.
76. The Jericho East Homeowners Association (JEHA) has a community water supply system
which is located approximately 800 feet northwest of the Project site. Multiple private wells
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are located within 2,000 feet of the Project site. There are no abandoned wells at or near the
Project.
77. Applicant completed a two year time of travel plume for its proposed waste water
system. This plume does not intersect with the JEHA well.
78. In the area of the Project and the JEHA well, there are two aquifers separated by almost
90 vertical feet. One is shallow and close to the surface and the other is deeper.
79. There is no hydrologic connection between the shallow and deeper aquifers.
80. The JEHA well draws its water from the deeper aquifer while the Project’s waste water
is discharged to the shallow aquifer.
81. The Project is located in the Town’s Well Head Protection Area 2 Overlay Zone.
82. The Project has obtained a Potable Water/Wastewater Disposal Permit and a Transient
Non-Community Water Supply Source Permit from the Agency of Natural Resources (ANR).
83. Although the Project does not trigger the need for a stormwater discharge permit from
ANR, the Project includes a stormwater discharge system that satisfies ANR’s stormwater
requirements.
84. The Project design conforms to both the Vermont’s Stormwater Management Manual
(VSMM) and Jericho Public Works Specifications regarding stormwater.
85. The stormwater design uses low impact smart design practices to manage stormwater.
Stormwater is managed on the Project site with a rain garden and detention basins.
86. There is a steep bank in the area where the Project lot adjoins the Cemetery.
87. There are stabilization and sediment control plans for during and after Project
construction.
88. When the Project is completed, the steep area will be sloped, seeded, and grassed to
prevent erosion.
89. The Project does not propose any underground storage or piping relating to hazardous
waste.
90. The Project does not seek approval to collect, handle, manufacture, store, transfer, or
dispose of hazardous material or waste. There are no petroleum storage tanks having a
capacity greater than 1,100 gallons.
91. The project includes an aboveground propane tank.
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92. The Project has a spill cleanup protocol to address internal spills of chemicals and fluids
within the store.
The parties advanced motions prior to, during and following trial. We rule on these
motions as follows.
Motion to Intervene
Immediately prior to the merits hearing, Amy Booth filed a motion to intervene as an
interested party pursuant to 10 V.S.A. § 4465(b)(3).2 At the beginning of trial, after hearing
from the parties, we deferred ruling on the motion until all the evidence was before the Court.
Although Mrs. Booth did not herself testify before the Court, we find her husband Peter Booth’s
testimony to be sufficient evidence to support the motion. At trial, Mr. Booth testified that his
wife resides with him at their residence at 352 Route 15 in Jericho, approximately eight-tenths
of a mile from the Project site. Furthermore, Mr. Booth testified that both he and Mrs. Booth
ride bicycles on Route 15 to and from their residence past the Project site. Mr. Booth also
testified as to how the Project would impact the aesthetics of the road as they bike along the
area of the Project site and how the Project would present new traffic safety issues between
vehicles and bicycles due to a new curb cut and turning movements.
Based upon the evidence in its entirety, including Mr. Booth’s testimony, we conclude
that Mrs. Booth is an interested party pursuant to 24 V.S.A. § 4465(b)(3) as a person owning
property in the immediate neighborhood who can demonstrate a physical or environmental
impact on their interest.3 We therefore GRANT Amy Booth’s motion to intervene.
Motion to Strike Town’s Post-Trial Brief
The Town entered its appearance in this matter prior to trail on September 24, 2013 by
designating Todd Odit, Town Administrator, as its spokesperson. The September 24, 2013
notice of appearance expressly stated that the “Town does not wish to take an active role at
this time, but we request to be kept informed of the case and attend the conference calls.”
During the second day of Trial, May 5, 2014, Selectboard member Tim McNulty asked that a
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Peter Booth joined in this motion, however, at the beginning of trail we ruled that the motion as to Mr. Booth
was moot as Mr. Booth already had appellant status and Zaremba is not challenging that status.
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In further support of this conclusion, we note that we routinely allow spouses to represent the joint interests
between spouses and to conclude that Mrs. Booth does not share interested party status with Mr. Booth would be
an absurd result.
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letter from the Selectboard be accepted into evidence. Based upon a stipulation of the parties,
the letter was admitted into evidence. After our trail concluded, on June 16, 2014, the Town of
Jericho Selectboard filed a Post-Trial Brief. The filing was signed by three Selectboard
members.
Although the Town has party status as an “interested person” pursuant to 24 V.S.A.
§ 4465(b)(2), we conclude that the Town’s post-trial filing is inappropriate and must be stricken
from the record for two reasons. First, to the extent the brief offers facts or evidence after
trial, it is inappropriate. Vermont Rules of Civil Procedure Rule 43 requires that the testimony
of witnesses be taken orally in open court for all trials. Only by proceeding in this manner can
we assure all parties a fair and full hearing. Second, to the extent that the brief offers legal
argument, it must be filed through an attorney, licensed to practice law, who formally appears
before the Court as representing the Town. See LaBrie, Inc. v. Vermont Dept. of Environmental
Conservation, 157 Vt. 642, 643 (1991) (holding that “generally a corporation must appear
through counsel”); see also Shapiro, Bernstein & Co. v. Continental Record Co., 386 F.2d 426,
427 (2d Cir.1967) (asserting that a corporation, as an artificial entity that can only act through
its agents, cannot proceed pro se). Appellants assert that because all Selectboard members
signed the brief, it is the Selectboard itself filing the brief, not some form of representation. We
disagree. The Town is the entity appearing before the Court, while the Selectboard is the
governing body acting on behalf of the entity.
The issue of non-lawyers representing municipal entities has a common presence before
the Environmental Division. Upon the filing of a written designation, we allow non-lawyers to
appear on behalf of municipalities for observation only. In such cases, the non-lawyer is told
during the initial pretrial conference that they are welcome to observe, however, should the
municipality wish to be heard, file a motion or file in response to a motion, or participate in
trial, then representation by a lawyer is required. This warning occurred in this matter and was
repeated on the second day of trial when Mr. McNulty attended trial and asked that a letter
from the Selectboard be accepted into evidence.
In limited and exceptional circumstances, the Supreme Court has allowed corporations
or entities to be represented by a non-lawyer. In this matter, however, the Town never made
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such a request, through motion or otherwise, for the Court to consider or the other parties to
weigh in on.
For these reasons, the Town’s Post Trial Brief is STRICKEN.
Motion to Dismiss Albert Lindholm
On the third day of trail, Zaremba verbally moved to dismiss Albert Lindholm as a party,
both individually and as a spokesperson for the neighboring Cemetery. The Cemetery is owned
by the Town. The Town has not appointed Mr. Lindholm as a spokesperson, caretaker, or to
otherwise have responsibility for the Cemetery. Thus, we conclude that Mr. Lindholm does not
represent the Cemetery.
Individually, Mr. Lindholm does not satisfy the elements of party status. Mr. Lindholm
resides in Jericho Center approximately five to seven miles from the Project site. Thus, he does
not own property or reside in the immediate neighborhood. Furthermore, Mr. Lindholm
cannot see the Cemetery or Project lot from his residence and he does not offer any physical or
environmental impacts to his property interest from the Project. See Bostwick Road Two-Lot
Subdivision, No. 211-10-05 Vtec, slip op. at 5 (Vt. Envtl. Ct. Feb. 24, 2006) (Durkin, J.), aff’d No.
2006-128 (Vt. Jan. 25, 2007), available at https://www.vermontjudiciary.org/UPEO2006-
2010/eo06-128.aspx.
Based upon this evidence, the Court GRANTED Zaremba’s motion to dismiss Mr.
Lindholm on the record. The Court then, however, allowed Appellants to reopen their direct
case and call Mr. Lindholm as a witness. The Court then accepted Mr. Lindholm’s testimony.
Appellant’s Questions before the Court
We now turn to Appellants’ Statement of Questions. Appellants’ Question 1 asks
broadly whether the Project satisfies the Conditional Use standards in the Town of Jericho
Regulations (the Regulations). Appellants’ subsequent Questions relate to specific conditional
use criteria at issue in this appeal. We consider each of the specific conditional use criteria
challenged by Appellants.
A. Conditional Use Criteria Related to the Capacity of Roads and Sidewalks
Appellants’ question 2.a (10.9.3.1) asks “[a]re the capacities of roads and sidewalks and
connecting networks and cross walks adequate to provide access to the proposed use at the
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time of anticipated occupancy, including by alternate modes of transportation (including non
automobile modes, per the Town Plan)?”
There will be a single curb cut providing access from Route 15 to the Project site. An
existing curb cut in the area of the Project will be eliminated and the new curb cut will be
constructed at the southwest corner of the site. The new curb cut, authorized by a VTrans
access permit, will be approximately 36 feet wide and designed with two exit lanes (one left
turn and one right turn) and one entrance lane. The new curb cut will likely serve as future
access to vacant land to the west and north of the Project site.
Customer parking will primarily be located in front of the Project building, with 5 spaces
along the west side of the building, for a total of 35 spaces. On-site traffic circulation will
accommodate customer vehicles traveling to and from parking spots and delivery truck
movements on-site. The Project also includes 7 bicycle parking spaces. Due to considerable
sight distances along Route 15 in the area of the Project’s curb cut and the modest number of
trips generated by the Project, bicyclists using Route 15 in the Project area will not be adversely
affected by the addition of Project traffic.
At present there are no sidewalks in the area of the Project site, but Project designs
include a 10-foot wide sidewalk easement along Route 15 and from Route 15 to the Project
building to allow for future sidewalk connections.
We therefore conclude that the capacities of roads and sidewalks and connecting
networks and cross walks are adequate. We also conclude that the traffic from the Project will
not result in an undue adverse impact on Route 15 traffic.
B. Conditional Use Criteria Related to the Character of the Area and the Purpose of the
Zoning District
Appellants’ Question 2.b1 (10.9.3.2) asks “[w]ill the development cause undue adverse
impact on the character of the area ‘as defined by the purpose of the zoning district in which
the use is located, and by specifically stated policies and standards of the Jericho
Comprehensive Town Plan?’” Whether the project complies with the purpose of the zoning
district is also raised in Question 2.d. These issues are further addressed in Question 2.c
(10.9.3.2(b)), which asks “[w]ill the proposed use be in general harmony with the historic, rural,
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open and agricultural character of the surrounding neighborhood and not adversely impact
abutting residences or other property, particularly when it is understood that the existing
commercial structures were permitted prior to the adoption of the current town zoning
regulations and Town Plan?” We consider all three questions in analyzing whether the Project
will have an undue adverse impact on the character of the area.
Regulations § 10.9.3.2(b) requires that the project “be in general harmony with the
character of the surrounding neighborhood and will not adversely impact abutting residences
or other property.” Whether a project will “be in harmony with its surroundings depends on
whether it ‘fits’ in the context of the area where it will be located.” Re: Quechee Lakes Corp.,
Nos. 3W0411-EB and 3W0439-EB, Findings of Fact, Conclusions of Law, and Order, at 18 (Vt.
Envtl. Bd. Nov. 4, 1985). To determine whether the project will be in harmony with the
character of the surrounding area and not adversely impact abutting residences or other
property, we employ the “Quechee Test.” See In re Grp. Five Invs. CU Permit, 2014 VT 14, ¶ 12
(approving use of the Quechee test as guidance in defining adverse effects of specific items in
the zoning bylaws).
The Quechee Test requires that we assess the project’s compatibility with the
surrounding area. See In re UPC Vt. Wind, LLC, 2009 VT 19, ¶ 24, 185 Vt. 296 (applying the
Quechee test); see also In re Quechee Lakes Corp., 154 Vt. 543, 555–57 (1990) (reviewing
Environmental Board’s decision regarding aesthetic impact of proposed Act 250 permit
amendment). Compatibility depends on the project’s design, including its scale, materials, and
form relative to existing buildings in the immediate area. See Id. at ¶ 13 (finding that a
consideration of the adverse aesthetic effects of the project within the immediate area was a
proper application of the legal standard). The Court must therefore consider the Project in the
context of the area’s character, including existing buildings, nearby developments, and
roadways. See In re Cross Pollination, 2012 VT 29, ¶ 11, 191 Vt. 631 (considering a visual
analysis of the project within the proposed area under the Quechee test).
As proposed, the Project fits in the context of the area where it will be located. The
Project will be a single-story structure with clapboard siding, a pitched roof, and six faux-
windows on the street-facing façade. Thirty-five parking spaces, 30 along the front of the
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building and 5 along the side, will accommodate customers. Two yellow and black signs will be
flush mounted on the front wall and along the roadside, respectively.
The scale, materials, and form of construction are not unique to the Project. At present
within the immediate area of the Project site, there is a mix of office, commercial, and light
industrial uses occupying older farm structures and residential properties as well as modern
commercial structures. Directly across Route 15 there are several residences and old farm
buildings used as a seasonal garden center with a curb cut along Route 15 and street-facing
parking spaces. Several of the properties along Route 15 have parking along the street-facing
side of buildings. Additionally, a home center and large storage warehouse, both white in color,
lie to the west of the Project site. The Jeri Hill Commercial Complex, a development larger than
the Project, consists mainly of single-story buildings with peaked roofs and occupies the
western limits of the zoning district. The Complex has parking in front of the building along
Route 15. Clark’s Truck Center, a heavy equipment and school bus business, lies to the east of
the Project site. Relative to these existing developments, the Project fits in the context of the
surrounding area.
Considering testimony that a white building would be in higher contrast to the
surroundings and therefore more noticeable, the parties agreed that changing the Project
building’s color to a medium brown, green, or gray would soften the appearance of the Project.
We therefore will impose this suggestion as a condition and require that the Project building be
a medium brown, green, or gray.
While the Project would impact historic assets, such as the Cemetery, and scenic views,
including Mount Mansfield, these impacts are minimal. As one drives east on Route 15 there
are significant views of Mount Mansfield to the south. Although the Project will be visible as
part of this view, because the Project is located on the north side of Route 15 and Mount
Mansfield is to the south side of Route 15, the Project will not significantly impact the views of
Mount Mansfield. We conclude that while certain elements of the Project design may have
adverse aesthetic impacts, those impacts are not undue.
The failure “to take generally available mitigating steps that a reasonable person would
take to improve the harmony of the proposed project with its surroundings” renders any
adverse impacts resulting from that failure unduly adverse and therefore grounds for denial of
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the application. Grp. Five Invs. CU Permit, 2014 VT 14, ¶ 11 n.2. Appellants provided testimony
at trial that, in the opinion of their credible expert, rotating the building to move the parking to
the side and having the longer side of the building facing east rather than south towards Route
15 would help minimize visual impacts of the project. According to Appellants, this
modification would reduce distraction from views of Mount Mansfield caused by the Project.
Zaremba presented evidence, however, that rotating the building would require completely
redesigning the Project, including relocating the wastewater system, the water supply well, and
other Project features. We conclude, therefore, that this type of change is not a generally
available mitigating step that a reasonable person would take. Furthermore, these suggested
Project modifications would likely constitute substantial changes requiring remand. The Court
would therefore be without the power to order the mitigating step Appellants suggest.
Appellants also question whether buildings and developments permitted prior to the
adoption of the current Regulations should be excluded from the analysis of the character of
the area under § 10.9.3.2(b). When interpreting § 10.9.3.2, the Court applies the familiar
principals of statutory interpretation. See In re Vt. Natl Bank, 157 Vt. 306, 312 (1991). We will
therefore interpret the Regulations to give effect to the intent of the municipal legislative body
that drafted them, beginning with the ordinary meaning of the plain language. See Town of
Killington v. State, 172 Vt. 182, 188 (2001).
Title 24 of the Vermont Statutes Annotated, § 4414, which authorizes municipalities to
condition land development on specific and general standards, requires that the standards
conform to those within the enabling legislation. Grp. Five Invs. CU Permit, 2014 VT 14, ¶ 11.
Looking to the relevant provision from title 24, § 4414(3)(A), an “adverse effect” on the
character of the area is prohibited, “as defined by the purpose or purposes of the zoning district
within which the project is located, and by specifically stated policies and standards of the
municipal plan.” Appellant offers no evidence, and the Court finds nothing in the Regulation’s
discussion of the “character” of the commercial district, or any other district, to suggest that
the definition of “character” depends on when existing structures in the area were permitted.
Looking to other provisions addressing “character,” there is no indication that the Regulations
contemplate that the character of a specific zoning district is defined only by structures that
were permitted under the current zoning regulations. To infer such a requirement would
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generate a clean slate every time the Regulations are updated. This would erode predictability
within the district because developers would have difficulty knowing the context in which their
projects will be evaluated.
Even more persuasive, Regulation § 11.9.5, addressing general development standards,
expressly requires that new projects are compatible with “existing” improvements and the
character of the area as defined by the purpose of that zoning district. Again, nothing in the
purpose section indicates whether the character of the area is limited to consideration of those
buildings permitted under current Regulations. Section 11.9.5 also expressly addresses the
existence of nearby structures that do not “contribute positively to the character of the Town.”
It fails, however, to indicate whether structures permitted prior to the current Regulations fall
under this categorization.
Furthermore, § 11.9.5 expressly states that atypical structures are not to be “regarded
as a justification for perpetuating or expanding the effect.” Id. This language does not alter the
definition of “character,” nor does it require an inquiry into how or when those adverse
buildings were developed or the contribution of such buildings or uses on the area as a whole.
Instead, it prevents reliance on existing atypical buildings or structures to justify similar
deviations. See Willowell Foundation CU, No 142-10-12 Vtec, slip op. at 14 (Vt. Super. Ct. Envtl.
Div. July 10, 2014) (Walsh, J.) (considering past and existing structures as contributing to the
character of an area). Because the Quechee Test will be applied “reasonably to prohibit only
substantial and material adverse effects,” In re Miller, 170 Vt. 64, 69 (1999), we do not consider
whether the existing buildings and uses were permitted prior to the adoption of the current
Regulations.
Appellants’ Question 2.d (§ 10.9.3.2(c)) asks “Will the proposed use be compatible with
the ‘stated purpose’ of the Commercial District, which is to accommodate those uses that
cannot or should not be accommodated in the Village Center Districts?” The proposed location
for the Project is within the Town of Jericho’s Commercial District.
The purpose of the Commercial District is primarily to provide employment
opportunities and a location for minimum impact commercial enterprises that
cannot or should not be located in the Village Center District. While roadside
visibility is important for the viability of some businesses, measures should be
taken to prevent the appearance of strip development. . . . Green space,
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landscaping and other visual treatments may be necessary to soften the
appearance of development, particularly along Route 15.
Regulations § 3.2.6. This provision is made applicable in conditional use review through
§ 10.9.3.2(c), which requires that “the proposed use, including any building associated with the
use, will be compatible with the stated purpose of the zoning district in which the use will be
located.” Appellants and Applicant dispute whether the Project is compatible with the purpose
of the Commercial District.
As noted above, we interpret a zoning ordinance we use the familiar rules of statutory
construction and will “construe words according to their plain and ordinary meaning, giving
effect to the whole and every part of the ordinance.” In re Appeal of Trahan, 2008 VT 90, ¶ 19,
184 Vt. 262 (citations omitted). We will therefore “adopt a construction that implements the
ordinance's legislative purpose and, in any event, will apply common sense.” In re Laberge
Moto-Cross Track, 2011 VT 1, ¶ 8, 189 Vt. 578 (quotations omitted).
The project applicant bears the burden of proving compliance with the zoning
regulations. See In re Miller Subdivision Final Plat, 2008 VT 74, ¶ 17–18, 184 Vt. 188 (finding
that the environmental court did not improperly shift the burden from the applicant to the
neighbor opposing the subdivision). Appellants argue that Applicant has failed to meet its
burden of providing sufficient evidence for the Court to find that the conditional use standard
in § 10.9.3.2(c) has been met. Specifically, Appellants contend that because Applicant did not
prove that the project could not be located in the Village Center District, it has failed to show
that the project complies with the stated purpose of the Commercial District. That argument,
however, relies on a constrained reading of the stated purpose of the Commercial District and
defies common sense.
The purpose of the Commercial District is, as its name suggests, to accommodate
commercial development, specifically commercial development that is ill suited for the Village
Center District. The plain language of the Regulations allows both development in the
Commercial District that cannot be located in the Village Center District and development that
should not be located in the Village Center District. The Court will not read this language to
require that an applicant prove that a project cannot be located in the Village Center District by
seeking conditional use approval in that district before seeking conditional use approval in the
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Commercial District. If the Regulation intended to limit development in the Commercial District
to only that which could not be located in the Village District, this section would have included
a mandatory provision clearing stating so, or in the alternative, it would not have offered the
“should not” alternative to “could not.”
Whether a conditional use is appropriate in a given location is a fact-intensive and ad
hoc inquiry. Absent a complete zoning application, one could not determine whether a
particular conditional use development could be approved. Because many uses, including the
Project use of a general merchandise retail store greater than 3,000 square feet, are classified
as conditional uses in both the Village Center District and the Commercial District, it would be
extremely inefficient for the Town to require an applicant to apply for and be denied a permit in
the Village Center District as a predicate to applying for a permit in the Commercial District.4 It
would also be unduly burdensome on the project applicant. Furthermore, such a requirement
would be contrary to the stated purpose of the Commercial District, which includes providing
employment opportunities and, at the very least, a location for minimum impact commercial
enterprises that should not be located in the Village Center District. Thus, Applicant need not
prove that it could not possibly be located in the Village Center District by having an application
denied in order to satisfy § 10.9.3.2(c) of the Regulations.
Rather, to give effect to the purpose provision in a reasonable way, we need only
consider the proposed use, the description of the proposed development, and the description
of the Village Center District in order to determine whether the proposed development is of a
type that should be located in the Village Center District. The stated purpose of the Village
Center District is, in part:
[T]o encourage the concentration of people and community-focused activities in
the traditional centers. . . . These areas generally retain an architectural
character that constitutes a valuable and unique part of our culture heritage. . . .
In addition to the buildings themselves, the character of the villages is defined by
the relationship of the structures with one another, with the roads, and with
4
We also note that under the Table of Uses, Regulations § 4, certain uses, such as a general merchandise retail use
less than 3,000 square feet, are permitted as of right in the Commercial District while are either permitted or
conditional uses in the Village Center district. It makes little sense to interpret the purpose provision as prohibiting
in the Commercial District any commercial enterprise that could be located within the Village Center District when
the Regulations themselves allow for that exact result by providing for no review at all of certain commercial uses
in the Commercial District but requiring conditional use review in the Village Center District.
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open land. The layout of new buildings should reflect traditional patterns and
encourage use by pedestrians. Generally, large setbacks with parking in front of
the building are less inviting to pedestrians than buildings close to the road with
parking to the side or rear.
Regulations § 3.2.7. The Project, as described above, is a 9,100 square foot general
merchandise store which anticipates that customers will access by automobile. This does not
fit well with the Town’s encouragement of pedestrian friendly development and limited parking
within the Village Center District. While the Regulations should not be read in such a way that
encourages an applicant to design a project to be incompatible with the Town’s goals for the
Village District to secure the right to develop in the Commercial District, that is not at issue in
the present case. The Project has been designed to fit the needs of the developer while still
complying with the Town’s Regulations. The Project is a minimum impact commercial
development that is not well suited for the Village Center District and should not be located in
that District. The Project is, therefore, compatible with the stated purpose of the Commercial
District and satisfies § 10.9.3.2(c) of the Regulations.
We therefore answer Appellants’ Questions 2.b1 in the negative; the Project will not
have an undue adverse impact on the character of the area. Furthermore, the Project will be in
general harmony with its surroundings. In so concluding, we do not rely on the aspects of
existing commercial structures causing adverse impacts in the area because the Project will not
be a perpetuation or expansion of any aspect that is not in conformance with the Regulations.
Finally, we find that the Project is a minimum impact commercial enterprise that complies with
the stated purpose of the Commercial District in which it is to be located.
C. Conditional Use Criteria Related to Nuisances or Hazards to the Public
Appellants’ Question 2.b2 (§ 10.9.3.2(a)) asks:
Will the development cause:
(i) a traffic nuisance or hazard due to left turn volume in and out of the
planned driveway during peak hours, the proximity to the Rt 15/Browns Trace
intersection that already has documented safety concerns, the compatibility of
the development with the 50 mph speed limit required by the State for this
section of Rt 15 and lack of control by the Town of Jericho to this section of state
highway and ability to address issues, or
(ii) a nuisance or hazard to the public water supply provided via the
nearby Jericho East well serving over 50 families, or
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(iii) a nuisance or hazard to the public’s health, safety or welfare because
of impacts on visibility and accessibility of the adjacent historic Jericho
Cemetery?
We consider these sub-questions in turn.
First, the Project will not cause a traffic nuisance or hazard. The new curb cut will be
designed with two exit lanes (one left turn and one right turn) and one entrance lane. The LOS
on Route 15 in the area of the new curb cut will operate at LOS A during a.m. and p.m. peak
hours through 2018. The LOS for left-turning vehicles approaching the Project will be LOS C for
both a.m. and p.m. peak hours in 2013 with only very slight delay increases through 2018. The
Project will generate 10 new a.m. peak trips—7 entering and 3 exiting—and 46 new p.m. peak
trips—23 entering and 23 exiting. Although there will be increased traffic, the impacts of that
increase will not be major. There will be no excessive queuing at the Project curb cut. The
Route 15 corridor in the area of the Project is not a High Crash Location and there is no
evidence to suggest that the Town lacks control of Route 15 in the Project area. We therefore
conclude that the Project will not cause a traffic nuisance or hazard.
Second, the Project will not cause a nuisance or hazard to the public water supply. The
Project is designed and permitted with an on-site water supply well and an on-site waste water
system. The JEHA has a public community water system/well northwest of the Project, but
there is a hydrologic separation between the aquifer that the JEHA water supply draws on and
any aquifer that may even possibly be affected by the Project. There is no additional credible
evidence to suggest that existing water supply wells will be adversely impacted by the Project.
Further, the Project design conforms to both the Vermont’s Stormwater Management
Manual (VSMM) and Jericho Public Works Specifications, required under the Regulations. See
Regulations § 11.13.1.2. While the Project does not trigger the need for a stormwater
discharge permit from ANR, it includes a stormwater discharge system that satisfies ANR’s
stormwater requirements. As such, the Project satisfies § 11.13.1.2. Because credible evidence
indicates that neither stormwater runoff nor domestic waste water from the Project will have
any adverse impact on the JEHA water supply, we conclude that there will be no nuisance or
hazard to existing water supplies.
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Finally, the Project will not cause a nuisance or hazard to the public’s health, safety, or
welfare because of impacts on visibility and accessibility of the adjacent historic Cemetery.
Although the Project will block or reduce certain views, vehicles driving both east and west on
Route 15 will continue to have some views of the Cemetery. Project landscaping will balance
the competing interests of minimizing views of the Project from the neighboring Church and
maintain views of the Cemetery on the easterly side of the Project from Route 15.
Furthermore, the landscaping satisfies the specific requirements set forth in Section 11 of the
Regulations. The landscaping provides a partly wooded and garden view along Route 15, which
will soften views of the Project. Because the parking area is at a lower elevation than Route 15,
headlights of vehicles parked at the project will be shielded by the change in elevation as well
as by landscaping. We do find, however, that adjusting the location of plantings on the east
side of the Project building by moving them closer to the building will improve views of the
Cemetery while maintaining the screening effect. We therefore require that Zaremba move the
plantings as close to the building as is reasonably possible in order to maximize views of the
Cemetery.
Finding the present legal status of access to the Cemetery uncertain, and absent
evidence that the Project adversely affects access to the Cemetery, we conclude that the
Project does not present a nuisance or hazard to the public’s health, safety or welfare because
of impacts on visibility and accessibility of the adjacent historic Cemetery.
D. Remaining Questions
Appellants’ Question 3 asks:
[C]an the applicant meet its burden of satisfying all of the Performance
Standards in the Jericho Land Use and Development Regulations (“Jericho
Regulations”), incorporated by reference into conditional use review, including
but not limited to Section 5 (Dimensional Standards, especially lot coverage
percentage), Section 6.6 (Wellhead Overlay District, especially regarding fire
retarding systems and storm water treatment), Section 8 (Flood Hazard Area
Regulations), and Section 11 (General Development Standards)?
We address the specific sections of the Regulations raised by this question. Beyond these
specific sections, we conclude that the Project satisfies the remaining Performance Standards in
the Regulations.
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First, the dimensional standards for the Project are set forth in Table 5.7 of the
Regulations. According to Table 5.7, the minimum lot size in the Commercial District is 1 acre
and the minimum road frontage is 150 feet. Table 5.7 also requires a 50 foot front yard
setback, 20 foot side yard setbacks, and a 25 foot rear yard setback. The maximum lot
coverage in the Commercial District is 60% and the maximum structure height is 34 feet. Based
upon the above findings of fact, the Project as proposed satisfies the minimum/maximum
dimensional standards.
Second, the Project site is in the Wellhead Protection Area Overlay District and § 6.6 of
the Regulations therefore applies. Under § 6.6, all conditional uses within the Commercial
District are allowed as conditional uses within the Wellhead Protection Area Overlay District.
Thus, if the Project obtains conditional use approval in the Commercial District, it will also
comply with the Wellhead Protection Area Overlay District. Additionally, § 6.6 requires that the
Project leave at least 50% of the lot uncovered in this Overlay District unless “low Impact
Development practices and techniques to manage stormwater” are implemented. As
proposed, the Project has less than 50% lot coverage and will have significant design elements
to manage stormwater and minimize impacts. The specific provisions regarding underground
storage tanks and hazardous materials are not relevant as neither will be present on the Project
site. Finding that Applicant provided considerable evidence through testimony and exhibits
which establish compliance with § 6.6, that Appellants did not provide testimony or exhibits
challenging Applicant’s evidence, and based upon our above findings of fact, we conclude that
the Project complies with § 6.6 of the Regulations.
With respect to Regulations § 8, Flood Hazard Area Regulations, neither party provided
evidence specifically addressing this topic. We will not require an applicant to address every
section of a bylaw or regulation which is inapplicable to a proposed development. Thus,
without evidence that the Project site is subject to the Flood Hazard Area Regulations, we will
not impose a burden on the Applicant to produce any evidence regarding this section. We
conclude that the Applicant is not required to comply with the Flood Hazard Area Regulations.
Finally, Appellants raise the issue of broad compliance with Regulations § 11, General
Development Standards. Section 11 of the Regulations is 22 pages long covering the following
topics: public/private roads and driveways, parking/loading/circulation, pedestrian facilities, lot
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layout, grading slope and ridgeline, recreation/open space/common land, water supply and
sewage disposal, landscaping, site layout and design, outdoor storage/display, outdoor lighting,
utilities, storm water, and performance standards. To the extent any of these issues or topics
are raised by the Appellants specific questions within their Statement of Questions, we directly
address those questions in specific sections of this decision; otherwise, we conclude that either
the specific subsections of § 11 are inapplicable to the Project or that the Project complies with
the subsections of § 11 of the Regulations.
We conclude with Appellants’ final Question. Question 4 asks:
Can the applicant meet is burden of satisfying the requirement of the
Conditional Use enabling statute 4414(3) that the project shall not adversely
affect: (A) The capacity of existing or planned community facilities; (B) The
character of the area affected; (C) Traffic on roads and highways in the vicinity;
(D) Bylaws then in effect; or (E) Utilization of renewable energy resources?
We address subsections (B), (C), and (D) of this Question in prior sections of this decision. In
addition to our conclusions with respect to the effect that the Project may have on the capacity
of existing or planned community facilities, we conclude that the Project will not have an
impact on schools or school services. Furthermore, as the Project has onsite sewage treatment,
there will be no impact on municipal sewage facilities. Neither will the Project impact the
municipal fire service. As designed, the Project includes a Knox Box allowing fire safety
personnel to obtain access into the Project building. With this feature, the Project will not
adversely affect the municipal fire service of the Underhill-Jericho Fire Department. Lastly, the
Project will not have an impact on the utilization of renewable energy resources.
Conclusion
We conclude that Amy Booth is an interested party pursuant to 24 V.S.A. § 4465(b)(3)
and we therefore GRANT her motion to intervene. The Town’s Post Trial Brief is STRICKEN.
Albert Lindholm is DISMISSED from this matter. As stated in greater detail above, the Project
complies with the general and specific conditional use standards and the performance
standards in the Town of Jericho Zoning Regulations. The Project also complies with the
requirements of the conditional use enabling statute, 24 V.S.A. § 4414(3). In reaching these
conclusions we do, however, impose the following two conditions:
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1. The plantings on the east side of the Project building shall be moved closer to the
Project building’s east wall to minimize impacts to the views of the Cemetery from
Route 15 while also creating a softening/screening effect for the benefit of the
neighboring Church.
2. The Project building’s color shall be changed to a medium brown, green, or gray.
This concludes the matter before the Court. A Judgment Order accompanies this Merits
Decision.
Electronically signed on November 07, 2014 at 01:15 PM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
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