Hinesburg Hannaford SP

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket No. 163-11-12 Vtec
Hinesburg Hannaford SP Approval DECISION ON THE MERITS
Before the Court is an appeal of a site plan application by Martin’s Foods of South
Burlington (Applicant) for the construction of a 36,000-square-foot Hannaford grocery store
and 128-space parking lot (the Project) on Lot 15 of the Commerce Park subdivision in
Hinesburg, Vermont. A group of Hinesburg residents1 (Appellants) oppose the Project and have
appealed the Town of Hinesburg Development Review Board’s (DRB) approval of the site plan
application. Applicant has also cross-appealed the DRB’s decision, challenging certain
conditions the DRB imposed as part of its approval. Additional interested parties in this matter
include the Agency of Natural Resources (ANR), the Natural Resources Board (NRB), the Town
of Hinesburg (Town), and Mr. Gill Coates.
Prior to trial there were several other self-represented litigants that were named parties
in this appeal. These self-represented litigants failed to appear or participate at trial. It is
incumbent upon a litigant to efficiently prosecute their position in litigation. See V.R.C.P.
41(b)(2) (allowing for a motion to dismiss for failure to prosecute or comply with procedural
rules or orders of a court). It is within the Court’s inherent powers to dismiss a party where
that party fails to prosecute or otherwise put on their case. See In re Appeal of James D.
Sparkman, No. 183-11-97 Vtec, slip op. at 4 (Vt. Envtl. Ct. Mar. 29, 2000) (Wright, J.). “Trials are
set for the purpose of bringing a case to conclusion, not as optional events that parties may
decide to be prepared for or not as they choose.” Rab Performance Recoveries v. Swanson,
No. S2171-09 CnSc, slip op. at 3 (Vt. Super. Ct. May 12, 2010) (Toor, J.).
During the March 16, 2015 pre-trial status conference, the Court established a deadline
for parties to file dates of unavailability for a five-day trial in October, November, and
1
These individuals are Mary Beth Bowman, Judith Chafee, Geoffrey Gevalt, Catherine Goldsmith, Jean
Kiedaisch, Richard Palieri, Sally and Chuck Reiss, Heidi Simkins, Stephanie Spencer, Art Weis, and Claire Weis.
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December 2015. Several self-represented litigants asked questions about the process for
setting trial and what would happen if they were not available on the trial dates. The Court
explained that it works diligently to schedule trials when parties are available; however, in
matters with large numbers of parties, the Court cannot accommodate all schedules. The Court
further explained that it makes reasonable accommodations when parties need to miss
portions of multi-day trials. On May 13, 2015, the Court issued notice setting this matter for
five days of trial on November 30 through December 4, 2015. The parties therefore had plenty
of advance notice to adjust their schedules to be available to participate in trial.
Further, during the opening remarks of the first day of trial on November 30, 2015, the
Court warned parties about the possibility of being dismissed from the action, stating, “[I]f a
self-represented litigant or, for that matter, any litigant doesn’t participate, either through
themselves or through an attorney, I will be dismissing them from the matters.” The following
self-represented litigants did not appear or participate in any of the three days of trial and are
therefore DISMISSED: Bill Moller, James Collins, Anita Collins, Charles Kogge, David Lyman,
Barbara Lyman, Russell Spies, Janice Osgood, John Lyman, Robert Farley, Elly Coates, and Kim
Coates.2
In anticipation of trial, pre-filed testimony was submitted by all participating parties
except the Town and Mr. Coates. The Town and Mr. Coates did not pre-file testimony;
however, they did offer testimony and evidence during trial. The Court conducted a site visit on
the morning of November 30, 2015. A merits hearing at the Environmental Division in
Burlington followed the site visit and continued through December 2, 2015. At trial, Applicant
was represented by Christopher D. Roy, Esq.; Appellants were represented by James A.
Dumont, Esq.; the Town was represented by Ernest M. Allen, III, Esq.; ANR was represented by
Leslie Welts, Esq. and Jennifer S. Duggan, Esq.; and the NRB was represented by Peter J. Gill,
Esq. Mr. Gill B. Coates appeared self-represented.
Upon the close of Applicant’s case, Appellants moved for entry of judgment under
V.R.C.P. 52(c).3 We deferred ruling on the motion at trial. We address the motion in this
decision where appropriate.
2
The Court will assign each of these dismissed individuals “FYI” status, and as such, each will receive
copies of any decision or notice that the Court issues in this matter.
3
Appellants’ motion was made orally and in writing.
2
Based upon the evidence presented at trial, which was put into context by the site visit,
the Court renders the following findings of fact and conclusions of law.
Findings of Fact
1. Martin’s Foods of South Burlington, LLC proposes to construct a 36,000-square-foot
Hannaford grocery store and pharmacy with an associated 128-space parking lot on Lot 15 of
the Commerce Park subdivision in the Town of Hinesburg, Vermont (the Project).
2. Applicant initially applied for site plan and conditional use approval on November 11,
2010, and the proposal was deemed complete on November 18, 2010. The Hinesburg
Development Review Board (DRB) reviewed the application a total of 13 times from January
2011 through July 2012. The public hearing closed on July 17, 2012.
3. On August 29, 2012, the DRB provided notice to the public and Applicant that the
hearing would be reopened. The hearing was reopened on September 8 and continued to
October 2, 2012. The public hearing finally closed on October 2, 2012.
4. The DRB approved the application with conditions by written decision dated November
6, 2012.
5. Appellants timely appealed that approval to this Court, and Applicant cross-appealed.
That appeal was given Docket Number 163-11-12 Vtec (Hannaford Site Plan Appeal).
6. The parties agree that the Hannaford Site Plan Appeal is subject to the Town of
Hinesburg Zoning Regulations adopted on October 12, 2009 (2009 Regulations), submitted as
Town Ex. 1b; the Town Plan adopted on June 13, 2005 (2005 Town Plan), submitted as Town Ex.
3a; and the Hinesburg Official Zoning Map adopted on May 4, 2009 (Town Map), submitted as
Town Ex. 4.
7. Lot 15 is one of fifteen lots in the Commerce Park subdivision. The subdivision is north
of the Hinesburg Village center and is generally located in the triangle formed by Route 116,
Patrick Brook, which parallels Commerce Street to its north, and Mechanicsville Road.
8. Route 116 is the main thoroughfare through Hinesburg and runs in a north-south
direction.
9. Mechanicsville Road intersects with Route 116 south of the subdivision and extends
northeast eventually joining with CVU Road to the northeast of the subdivision.
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10. Commerce Street is a short east-west connector between Route 116 and Mechanicsville
Road that runs through Commerce Park, just north of Lot 15. Commerce Street forms the
hypotenuse of the triangle created by the three streets.
11. Lot 15 is located in the Commercial Zoning District within the Hinesburg Village Growth
Area.
12. The Project is a permitted use in the Commercial Zoning District, subject to site plan
review.
13. There are no historic sites or rare or irreplaceable natural areas at the Project site or in
the surrounding area.
14. On Lot 15, Applicant proposes to construct a 36,000-square-foot Hannaford grocery
store with an associated 128-space parking lot. A small portion of land from the adjacent
Automotion lot will be acquired to accommodate a public farmers market. Applicant will bring
in fill to raise Lot 15 and the farmers market by several feet, requiring regrading and several
retaining walls. As part of the Project, Applicant will install a stormwater system to contain
runoff from the lot and to treat any pollutants in the stormwater. Applicant will provide
significant landscaping and plantings to screen views of the building and parking lot.
15. Applicant’s stormwater system will treat the majority of pollutants in all stormwater
runoff from the Project and will collect and detain stormwater runoff from the majority of
storms.
16. During most rain storms, the stormwater system will improve drainage and reduce
flooding. Even in extreme storms, post-development flooding will be no worse than what
currently occurs in an equivalent storm.
17. Access to the Project will share the existing curb cut and access drive for the National
Bank of Middlebury (Lot 13) on the south side of Commerce Street (Commerce Street
Extension). Commerce Street Extension is located between Lots 12 and 13 of the Commerce
Park subdivision.
18. The exterior of the proposed store was designed specifically for this location and is not a
standard design used by Hannaford.
19. The proposed 36,000-square-foot building is a single story with a flat roof. In order to
give the appearance of two stories, a wrap-around canopy extends from the side of the building
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about nine feet off the ground, and windows are located above the canopy to provide the
appearance of a second story and allow natural light into the shopping area.
20. The flat roof of the building is wrapped with a faux mansard roof in order to create the
appearance of a pitched roof and to conceal the HVAC units, while maintaining flat roof space
for solar panels.
21. The building height is 27 feet (the maximum permitted height is 35 feet).
22. The building materials are predominantly masonry and clapboard, and the building
colors will be red, brown, and dark green.
23. A covered walkway extends along three sides of the building and will connect with the
town sidewalk system.
24. The building is rectangular. The longer façade of the building is 255 feet. The shorter is
188 feet.
25. Though the Hannaford will have the largest footprint of any building in the Commerce
Park subdivision, several buildings in the development have sides that are longer than 255 feet
(the longest side of the Hannaford), and the Hannaford will be offset so the full length of any
one side will not parallel a roadway.
26. Project parking is located to the north and east of the proposed building and will include
128 parking spaces.
27. The parking lot is laid out to allow a circular movement pattern for vehicles.
28. A designated pedestrian path allows access from Commerce Street and Mechanicsville
Road to the store.
29. Truck delivery and loading facilities are located on the southwestern facing side of the
building, on the opposite side from the store entrance. Delivery trucks will not need to pass in
front of the store entrance in order to enter or exit the lot.
30. Non-recyclables will be disposed of in a 35-cubic-yard trash compactor located next to
the loading docks on the west side of the building.
31. Snow storage during the winter months will be provided in two designated areas; the
.32-acre farmers market parcel on the northwestern side of the lot, and the northeastern
portion of the larger parking area.
32. The parking lot is designed with short drive aisles and standard traffic signs. The parking
area has no through routes to streets in Hinesburg.
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33. The proposed store is an infill project. All lots immediately adjacent to Lot 15 and within
the Commerce Park subdivision are already developed. The majority of these lots are the site
of commercial businesses with no consistent architectural theme or style.
34. To the west of Lot 15, outside of the Commerce Park subdivision, is the Automotion lot;
the lot contains a metal Quonset hut and operates as an auto repair facility.
35. To the south of the Automotion lot is the Giroux Auto Salvage lot (Giroux lot). To the
west of the Giroux lot, still on the east side of Route 116, is a commercial auto sales operation.
36. Bordering Lot 15 on its northwestern corner is the two-story flat-roofed Dark Star
Lighting building (Lot 11 of the Commerce Park subdivision).
37. To the east of Commerce Street Extension and just south of Commerce Street, is the
National Bank of Middlebury. To the east of the bank are a community health facility and a
post office.
38. Within the subdivision on the north side of Commerce Street are: A Mobil gas station;
Tailhook Towing—a towing operation with a red multiple-bay garage; several metal-roofed long
rectangular buildings that are part of a self-storage business; a one-story off-white building
housing Minuteman Press; an animal hospital housed in a red pitched-roof single-story building;
and the flat-roofed brown and gray Nestech building.
39. Northwest of Lot 15, just southeast of the Route 116/Commerce Street intersection, is
the Aubuchon lot (Firehouse Plaza), where a small strip-mall-type shopping plaza contains an
Aubuchon Hardware store and several other commercial businesses.
40. Nearby, although not part of the Commerce Park subdivision, is the 76,000-square-foot
NRG building and the 86,000-square-foot former Saputo Cheese Plant.
41. A manmade canal extends along the southeastern border of Lot 15, on the northern side
of Mechanicsville Road. The canal begins in the northeast corner of the Commerce Park
subdivision and diverts a portion of Patrick Brook.
42. In the mid-1990s, Hinesburg received over $100,000 from federal and state authorities
for the Hinesburg Streetscape Project to improve sidewalk infrastructure and to construct a
paved walkway along the canal (the canal path) as well as to install a footbridge (the Pony Truss
Bridge).
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43. The canal path parallels the canal to the north and traverses the southeastern edge of
Lot 15. The Town obtained a 20-foot-wide easement in 1996 on Lot 15 for the construction and
maintenance of the canal path.
44. In the southwestern corner of Lot 15, the canal path crosses the Pony Truss Bridge and
joins Mechanicsville Road on the south side of the canal. A small “pocket park” is proposed for
the area immediately north of the footbridge.
45. At their closest points, the edge of the building will be about 65 feet from the canal and
the overhang of the roof will measure about 42 feet from the edge of the canal.
46. One lot within the subdivision is permitted for development within 50 feet from Patrick
Brook. At least two other lots in the subdivision are permitted to develop within 75 feet of
Patrick Brook.
47. Landscaping is provided around and within the Project site for aesthetics, shading, and
screening.
48. Applicant will spend over $109,705 on landscaping for the Project.
49. The landscaping breaks up the open parking lot, screens views of the main parking lot
and building from Mechanicsville Road, and screens views of the Project site from Vermont
Route 116.
50. There are six landscaped islands in the two parking areas, which include a mix of trees
and shrubs.
51. Landscaping for the Project includes (feet at maturity):
a. 40 red maple trees (40-60)
b. 17 serviceberry trees (15-25)
c. 7 sugar maple trees (40-50)
d. 4 Sargent crabapple trees (15-20)
e. 18 greenspire linden trees (60-70)
f. 52 white spruce trees (40-60)
g. 11 Princeton American elm trees (50-60)
h. 44 redosier dogwood shrubs
i. 385 rugosa rose shrubs
j. 55 Anthony Waterer spirea shrubs
k. 24 Japanese spirea
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l. 20 dark American arborvitae
m. 1,135 daylilies
52. A majority of the landscaping is located along the property boundaries and on the
outside perimeter of the parking areas.
53. Landscaping west of the building is located in an easement area benefiting Lot 15 on the
east side of the Giroux lot.
54. Substantial landscape plantings are proposed to the south of the building between the
canal and the building. Over $28,000 of the landscaping budget is allocated for the canal path
and pocket park.
55. Many of the lots in the Commerce Park subdivision have little landscaping and are
prominently visible from Commerce Street and parts of Route 116.
56. Lighting for the parking area consists of LED fixtures on 20 foot high light poles. The
lights are fully shielded. Fully shielded light fixtures reduce glare and light pollution.
57. There will be a total of thirteen 20-foot high light poles with a single light fixture and
four 20-foot high poles with double fixtures. Three of the single fixture poles will be located
along Commerce Street Extension.
58. The building is primarily lit by recessed canopy LED lights that are located along the
eastern and northern sides of the building at a height of nine feet. These building lights are also
fully shielded.
59. The loading area is lit by two fully shielded wide throw sconce LED lights.
60. A flag pole in the main parking area will have a down-casting light fixture to illuminate
the flag.
61. All exterior lights will be turned off one hour after the store closes except for four
fixtures (a total of six lights) that are necessary for security.
62. Due to the shielding, light levels are at or near zero foot-candles (a unit of measure of
light intensity) at the property line.
63. The current grade of the site is between 337 feet above sea level and 346 feet above sea
level. Applicant will deposit fill to bring the grade up to 342–344 feet above sea level with the
finish floor of the store at 345 feet above sea level. This is about the same elevation as the post
office and National Bank of Middlebury.
64. Mechanicsville Road is at an elevation of 350 feet.
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65. To accommodate a farmers market on Lot 15, Applicant will acquire .32-acre parcel of
land from the east side of the adjacent Automotion lot, and will raise the site by several feet to
create a flat grassy area. It is necessary for Applicant to receive site plan and subdivision
approvals for the acquisition.
66. The Automotion lot is in the Village Zoning District.
67. Farmers markets are permitted uses in the Village Zoning District.
68. During the winter months when the farmers market is not in use, the area is proposed
for snow storage. Snow melt from this area will drain into Applicant’s stormwater system.
69. Because of the raised grade of the Project site, Applicant will install several retaining
walls. One will be located along the northwestern boundary with the Dark Star lot, and a
second along the western boundary with the Giroux lot just south of the farmers market area.
Two other shorter walls will be placed on either side of the Commerce Street Extension as it
opens into the Hannaford parking area.
70. The retaining walls will be constructed with concrete blocks and will be three to five feet
in height. The two longer walls will be about 100 feet long.
71. As part of its site plan application for Lot 15, Applicant is required to obtain site plan
amendments for two existing developments on related parcels within or adjacent to the
Commerce Park subdivision (Automotion and Aubuchon lots), as well as amendments to the
1987 Commerce Park and 1987 Giroux Building Supply subdivision permits.
Conclusions of Law
In this matter, the parties’ statements of questions define the scope of our review. In re
Garen, 174 Vt. 151, 156 (2002) (“An appeal to the environmental court is confined to the issues
raised in the statement of questions filed pursuant to an original notice of appeal.”). Appellants
raise seven questions in their Statement of Questions. Applicant cross-appealed with a ten-
question Statement of Questions. We turn first to the issues raised by Applicant.
I. Applicant’s Challenges to the Regulations and DRB’s Authority
We answered many of Applicant’s questions pre-trial. We briefly summarize our
holdings in those decisions. Two of Applicant’s questions challenge the constitutionality and
enforceability of the 2009 Regulations (Questions 2 and 4). We substantially addressed these
challenges in our March 4, 2015 Decision on Multiple Pre-Trial Motions, where we explained
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that Section 4.3.2 and 4.3.4 of the 2009 Regulations provided sufficiently clear standards and
are therefore constitutional and will be enforced. See Hinesburg Hannaford CU Approval, Nos.
129-9-12, 163-11-12, 68-5-14, 69-5-14, and 70-5-14 Vtec, slip op. at 7–10 (Vt. Super. Ct. Envtl.
Div. Mar. 4, 2015) (March 4, 2015 Decision). Therefore, for the reasons stated in our March 4,
2015 Decision, Applicant’s Questions 2 and 4 are answered with the conclusion that Section
4.3.2 and 4.3.4 of the 2009 Regulations are plainly constitutional and enforceable. Applicant
also challenges the ability of the DRB and this Court to condition site plan approval on
conditions not explicitly described in the regulations (Questions 3, 5, 6, 7, 8, 9, and 10). Initially,
we note that our trial is a de novo review, so to the extent Applicant is challenging what was
done below, the questions are largely irrelevant to this proceeding. Furthermore, as we also
explained in the March 4, 2015 Decision, there is clear authority under the enabling legislation,
24 V.S.A. § 4416, and the 2009 Regulations for this Court to impose reasonable conditions. See
March 4, 2015 Decision at 14. We therefore answer Applicant’s Questions 3, 5, 6, 7, 8, 9, and
10 with the conclusion that because the Regulations provide sufficient standards to review the
application, we may impose reasonable conditions to ensure compliance with those standards.
Only Question 1 of Applicant’s Statement of Questions remains for our review.
Applicant’s Question 1 asks, “Can project approval be conditioned on the 2009 Town Map given
its vagueness and overbreadth with reference to the definition of community facility and its
prescribed location on some or all of the subject parcel?” Applicant’s Statement of Questions
(SOQ) at 1, filed on Dec. 24, 2012. Applicant appears to argue that the Project cannot be
denied on the basis of the location of its proposed farmers market, since the Town Map is
impermissibly vague. As discussed more fully in our response to Appellants’ Questions 3, 4, and
5, see Part II(B) infra, the proposed Project accommodates the community facility depicted on
the Town Map by providing space for a farmers market. We therefore find Applicant’s
Question 1 is moot and we will not address it further.
II. Appellants’ Opposition to the Project
We interpret Appellants’ Statement of Questions to challenge the Hannaford Site Plan
Appeal on four issues. First, Appellants claim that the procedure and staggered review of the
various permits necessary for the Project is improper. Second, Appellants claim that the Project
does not accommodate the mapped public facility on Lot 15 as required by 24 V.S.A. § 4421.
Third, Appellants question whether the Project complies with the site plan standards under the
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2009 Regulations. Fourth, Appellants argue that the Project is barred because it violates critical
conditions of the 1987 Commerce Park subdivision permit, and Applicant has not sought a
permit amendment. We address these questions in order, and refer to our prior decisions in
this matter where we have substantially and substantively answered the same or similar
questions.
a. Procedural Challenges
Appellants’ Questions 1 and 2 challenge the procedure of Applicant’s permitting
process, claiming it was improper to submit the Hannaford site plan when additional permits
necessary for the completion of the entire Project were not noticed and had not yet been
reviewed. As we discussed in our March 4, 2015 Decision, there is nothing improper with a
development review board or this Court considering an application for site plan approval when
other project permits had not yet been noticed or reviewed. See March 4, 2015 Decision at 15–
16. Nowhere does Chapter 117 of Title 24, or any other law Appellants have pointed us to,
require that all related permits be addressed at one time. Stated another way, the
consideration of a properly noticed permit application does not require all other necessary
permits be noticed or pending at the same time. Each permit application constitutes a distinct
issue proper for this Court’s review. While the ultimate success of the Project may depend on
Applicant receiving all necessary permits, that in no way impacts the ability of this Court to
review a distinct matter. We therefore answer Appellants’ Questions 1 and 2, concluding that it
was and is lawful and constitutional for the DRB and for this Court to review the site plan
application for the Project.
b. Does the Project Accommodate Mapped Community Facilities (Questions 3, 4,
and 5)?
Appellants next challenge the site plan approval by claiming the Project does not satisfy
24 V.S.A. § 4421 because it does not adequately accommodate a mapped community facility.4
Primarily, Appellants argue that Applicant cannot satisfy 24 V.S.A § 4421 by using lands outside
4
We note that while the statue uses the phrase “public facility” the Town Map uses the phrase
“community facility.” We find these terms synonymous, and will use “community facility” to comport with the
Town Map.
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of Lot 15 that lie within a more restrictive zoning district5 and that are not subject to the
current site plan application.
Section 4421(5) provides in relevant part, “Any application for . . . development review
that involves property on which the official map shows a public facility shall demonstrate that
the mapped public facility will be accommodated by the proposed . . . development.” 24 V.S.A.
§ 4421(5). Here, the Town Map identifies several potential community facilities for Lot 15, one
of which is a farmers market. The Town Map provides no indication that any one facility is
required, but rather only establishes that Lot 15 is a potential lot for one of the listed
community facilities.
To accommodate this requirement, Applicant proposes to reconfigure Lot 15 by adding
.32 acres from an adjacent lot and putting a farmers market on the reconfigured Lot 15.
Appellants argue that because the .32 acres that will accommodate the farmers market was not
originally part of Lot 15, Applicant cannot satisfy Section 4421. Appellants provide no further
explanation for why the transfer and use of the .32-acre parcel is impermissible and we find no
merit to this argument. As proposed, Lot 15 will accommodate a farmers market. The fact that
a subdivision revision permit is needed to adjust the lot lines to incorporate the .32 acres into
Lot 15 has no bearing on whether the Project will accommodate a mapped community facility.
There is nothing explicit in the Statue or Regulations that prevents reconfiguration of lot
boundaries to carry out the goals of Section 4421. Indeed, were such a rigid interpretation of
Section 4421(5) to be employed, valuable opportunities to expand community facilities would
be compromised. Furthermore, the fact that the .32-acre parcel is in the Village Zoning District,
while the zoning district for remainder of Lot 15—the Commercial District—permits uses that
would require conditional use approval if they were to occur on the .32-acre parcel, does not
prohibit the transfer of the .32 acre parcel to Lot 15 or the parcel’s proposed use as a
community facility. After the .32 acres is transferred to Lot 15, the .32 acres will be used for a
farmers market, a permitted use in the Village Zoning District. See In re Bove Demolition/Const.
Application, 2015 VT 123, ¶ 13 (permissible for zoning district to split single lot). We therefore
answer Appellants’ Questions 3, 4, and 5 by concluding that the Project satisfies 24 V.S.A. §
4421 in adequately accommodating a mapped community facility.
5
The Automotion and Giroux lots are in the Village Zoning District. Farmers markets are a permitted use
in the Village Zoning District.
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c. Does the Project Comply with Site Plan Review Standards?
Appellants’ Question 6 asks, “Can applicant satisfy all of the standards of the Hinesburg
site plan review ordinance, including but not limited to compatibility with the adjacent property
and the character of the neighborhood, setbacks, traffic and pedestrian safety, adequacy of
stormwater runoff and design for poorly drained areas, and consistency with the Town Plan?”
Appellants’ Statement of Questions (SOQ) at 3, filed Dec. 3, 2012. While Appellants’ qualify
their question with “including but not limited to,” we only consider those provisions of the 2009
Regulations specifically raised. See Reporter’s Notes, V.R.E.C.P. 5(f) (“The statement [of
questions] functions like a pleading to limit the issues that are to be heard on the appeal . . . .”);
In re Garen, 174 Vt. 151, 156 (2002) (“An appeal to the environmental court is confined to the
issues raised in the statement of questions filed pursuant to an original notice of appeal.”). At
this Court’s request, Appellants clarified that Question 6 only raises issues with Sections
4.3.4(1)–(4) and (6)–(9) of the 2009 Zoning Regulations.
Under Section 4.3.4, the tribunal reviewing a site plan application “shall take into
consideration the following standards:”
1. Safety of vehicular and pedestrian circulation on site and on the adjacent
street network;
2. Adequacy of circulation, parking and loading facilities with particular
attention to safety. Provisions for refuse storage and disposal, snow removal,
and emergency access shall also be addressed where applicable.
3. Adequacy of landscaping, screening, setbacks, hours of operation and exterior
building design in regard to achieving maximum compatibility with adjacent
property and with the character of the neighborhood.
4. Adequacy of exterior lighting for safe circulation on the site without creating
off-site glare and excess illumination.
....
6. Adequacy of drainage and grading plan, ensuring treatment and control of
stormwater runoff, control of soil erosion during and after construction, and
proper design solutions for steep slopes and poorly drained areas.
7. Consistency with the Town Plan in regards to the pattern of development,
preservation of significant natural and cultural resources, and the location and
nature of existing planned roadways and other public facilities.
8. Proper planning and design in regard to hazardous wastes and avoidance of
runoff.
9. Conformance with design standards as stated in Sections 3.4.5 and 5.6, where
they apply.
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2009 Regulations § 4.3.4. We address each provision in order.
The Project fully satisfies Section 4.3.4(1) by incorporating several measures to ensure
pedestrian and vehicular safety on site and on the adjacent streets. The Project incorporates
sidewalks throughout Lot 15, providing designated pedestrian routes from the canal path to the
store and also to and from Commerce Street. Applicant will also extend the sidewalk along
Commerce Street, providing pedestrian access from Route 116. The parking lot design
encourages vehicles to move slowly, with short drive aisles, no through routes to other streets,
and stop signs and other traffic markings. Additionally, the truck receiving area is on the
opposite side of the building from the location of the parking and sidewalks, limiting customer
interaction with delivery vehicles. Lastly, with Applicant’s proposed traffic mitigation measures
and those we impose under Criterion 5 in the related Act 250 decision, see Hinesburg
Hannaford Act 250 Permit Appeal, No. 113-8-14 Vtec, slip op. at 43–48 (Vt. Super. Ct. Envtl. Div.
Apr. 12, 2016), vehicular safety on site and on the adjacent street network will be ensured.
Next, based on the site plans provided by Applicant, we conclude that the lot layout will
provide adequate parking and ensure fluid circulation and access for customer traffic,
deliveries, and any needed emergency services. The Project provides 128 parking spaces, with
a shared access drive with the National Bank of Middlebury off Commerce Street. The parking
lot is laid out to allow a circular movement pattern for vehicles. A designated pedestrian path
allows access from Commerce Street and Mechanicsville Road to the store. Loading facilities
are located away from the store entrance with adequate space so that delivery vehicles will not
pass in front of the store entrance. Non-recyclables will be disposed of in a 35 cubic-yard trash
compactor located next to the loading docks on the northwest side of the building. The .32-
acre parcel that will be used as a farmers market will provide a snow storage space in winter, as
will the northeastern portion of the parking lot. We therefore conclude that the Project
complies with Section 4.3.4(2).
Section 4.3.4(3) requires this Court to consider the adequacy of landscaping, screening,
setbacks, hours of operation, and exterior building design in regard to achieving maximum
compatibility with adjacent property and with the character of the neighborhood. This
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regulation reviews a project’s fit or compatibility with its surroundings.6 The Project’s site plan,
including the landscaping and architectural design, does achieve compatibility with the
Commerce Park subdivision and the larger Village Growth Area. Applicant will spend over
$100,000 on landscaping for the Project. The extensive plantings and landscape designs will
soften views of the parking lot and building. Further, Applicant hired a local architectural firm
to create a custom store design specifically for this location in Hinesburg, and the design
incorporates cues from the neighboring area. Lastly, the building itself does not unreasonably
encroach on any other lot or buffer, and, although large, it is not out of character with the
commercial surroundings and other buildings in the area.
Appellants, however, read more than a fit component into Section 4.3.4(3), arguing that
the proposed retaining walls violate Section 4.3.4(3) because they do not meet setbacks
specified in other provisions of the Regulations. We disagree, and conclude that the setback
standards of the 2009 Regulations do not prohibit the proposed locations of the retaining walls.
Due to the raised grade of the site, Applicant will install several retaining walls to
stabilize the elevated lot. One of these retaining walls is located along the boundary with the
Giroux lot, another parallels the boundary with the Dark Star lot, and two shorter walls border
the southern end of Commerce Street Extension. These walls will be made of concrete blocks
and will be between 3–5 feet in height. One or more of these walls is within 10 feet of a lot
boundary.
Under the area and dimensional requirements in Article II of the Regulations, in the
Commercial Zoning District, all buildings must maintain a 10-foot setback from property lines or
obtain a variance or conditional use approval. 2009 Regulations § 2.4, tbl. 1. Appellants argue
that the retaining walls are subject to this setback provision because the Regulation applies to
all buildings and structures, and the retaining walls qualify as structures. They also argue that,
even if the retaining walls are not “structures,” erecting the walls is “land development
6
When considering a municipal “fit” standard that prohibits an adverse effect on the character of the
area, we have employed a similar analysis to our Act 250 Criterion 8 Quechee test. See In re Group Five
Investments CU Permit, 2014 VT 14, ¶ 14, 195 Vt. 625. Here, Section 4.3.4 only requires that we “take into
consideration” the adequacy of the Project’s “landscaping, screening, setbacks . . . in regard to achieving maximum
compatibility with adjacent property and with the character of the neighborhood.” This does not impose the same
prohibitory standard of “no undue adverse impact” as under Act 250 Criterion 8. We therefore do not read
Section 4.3.4(3) to establish the equivalent binding standard as that under Act 250 Criterion 8; rather, it only asks
this Court to consider whether a project is compatible with the surroundings.
15
activity,” which is also subject to the 10-foot setback requirement and thus cannot be located
within 10 feet of the lot boundaries, and therefore the site plan application must be denied.
We disagree with this interpretation and, for the following reasons, conclude that the
applicable setback provisions of the 2009 Regulations do not prohibit the proposed locations of
the retaining walls. When interpreting zoning regulations, we use the familiar rules of statutory
construction. In re Appeal of Trahan, 2008 VT 90, ¶ 19, 184 Vt. 262. We will “construe words
according to their plain and ordinary meaning, giving effect to the whole and every part of the
ordinance.” Id. In construing the language of an ordinance, our “paramount goal” is to
implement the intent of its drafters. Colwell v. Allstate Ins. Co., 2003 VT 5, ¶ 7, 175 Vt. 61. 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). Further, zoning ordinances are in derogation of property rights; thus
any ambiguity should be resolved in favor of the property owner. See In re Weeks, 167 Vt. 551,
555 (1998).
The 2009 Regulations define “setback” as “the nearest distance between a building face
and the nearest section of a property line.” 2009 Regulations § 10.1. A “building face” is
defined as the side or edge of a structure. Id. The term “structure or building” is defined as
“anything constructed, erected, or placed and which requires a fixed location on the ground in
order to be used, including, but not limited to, a building in excess of 100 square feet, mobile
home or trailer, signs, manure lagoons and pits, silos, tennis courts, and swimming pools with
an area greater than 100 square feet. Not included are sidewalks, patios, driveways, utility
poles, compost bins, steps, planters, fences, or temporary docks or floats.” Id. The Regulations
do not define or specifically mention retaining walls as an example of structure, nor are
retaining walls explicitly excluded from the definition of structure or from setback
requirements.
Appellants argue that because a retaining wall is “constructed, erected, or placed” and
requires a fixed location, it is a structure for the purpose of setbacks. While a retaining wall is
constructed, erected, or placed, we do not read the definition of structure so broadly. The
definition specifically provides that a structure is anything “constructed, erected, or placed . . .
including, but not limited to, a building in excess of 100 square feet, mobile home or
trailer . . . .” Id. If everything that was constructed, erected, or placed, was a structure, there
16
would be no need to provide the “including but not limited to” language. Moreover, the fact
that the definition specifically mentions buildings in excess of 100 square feet, suggests that
buildings less than 100 square feet are excluded. Even if less than 100 square feet, however, a
small building is certainly “constructed, erected, or placed.” Further, excluded from the
Regulations definition of “structure,” are sidewalks, patios, and driveways. Yet, these items are
also constructed, erected, or placed and require a fixed location. Therefore, under this
definition, the mere fact that something requires construction and a permanent location does
not necessarily mean it is a “structure” subject to the 10-foot setback requirement.
We therefore must read the Regulations in their entirety and attempt to read some
purpose or intent into those items specifically defined or specifically excluded from the
definition of “structure” or “setback.” When read as a whole, we interpret the regulations to
have only intended to place a specific setback limit on buildings and accessory structures
themselves, not on individual site-development features, such as the Lot 15 retaining walls. We
find support for our interpretation in those items specifically excluded from the definition of a
structure. While stand-alone buildings and recreational facilities are provided as examples of
structure, incidental items such as sidewalks, driveways, utility poles, and steps are explicitly
excluded. A driveway or sidewalk can require significant effort to construct with large
quantities of concrete or pavement. Nevertheless, the drafters of the Regulations determined
that such items were in some way fundamentally different than a building or home. Like a
sidewalk or a driveway, a retaining wall may be necessary for site development and
improvement, but does not on its own provide a purpose or use for the lot. Therefore, we
conclude that retaining walls are more like the sidewalks, driveways, utility poles, and fences
that are specifically excluded from the definition of structure than they are to buildings, silos, or
tennis courts. See 2009 Regulations § 10.1. Furthermore, this interpretation provides some
common sense. It is foreseeable that a commercial lot will require site improvements such as
retaining walls or drainage ditches, yet nowhere do these items, or similar landscaping and site
improvement measures, appear as examples of the type of constructed item the Regulations
intended to regulate through the setback requirement.
Appellants also cite Section 2.5.3, which provides, “All land development activity,
regardless of building permit requirements . . . is required to meet the setback . . .
requirements.” Therefore, we also consider whether the construction of the retaining walls on
17
Lot 15 is “land development” under Section 2.5.3. The Regulations define “land development”
as, “The Division of a parcel into two or more parcels, the construction, reconstruction,
conversion, structural alteration, relocation, or enlargement of any building or other structure,
or of any mining, excavation or landfill, or any substantial change in the use of any building or
other structure, or land, or extension of use of land.” Id. § 10.1. Clearly, the Project is land
development in that a building is proposed for construction and a new land use is being
introduced. This does not, however, automatically lead to the conclusion that every aspect of
the Project is subject to setback requirements.
Appellants’ interpretation of Section 2.5.3 would have us dissect each component of
land development and apply setback requirements to each discrete aspect. Such a reading does
not achieve a practical or common sense outcome. Instead, we consider the land development
activity at issue here, i.e. the construction of a 36,000-square-foot structure, and ensure that it
complies with setbacks. We do not, however, read Section 2.5.3 to apply to isolated site-
development features, such as the retaining walls proposed for Lot 15, that have no significance
independent of the Project. Therefore, because we find that retaining walls are not subject to
specific setback requirements of the 2009 Regulations, we conclude that the Project complies
with Section 4.3.4(3).7
Turning next to Section 4.3.4(4), we find that the lighting for the Project provides
sufficient lighting for safety while at the same time minimizing undue light pollution. The
parking lot is well lit by multiple 20-foot high LED lights. Greeting customers as they walk from
their cars, the eastern side of the building, where the store entrance is located, is lit by ten wall
mounted LED lights, with another four along the northern side of the building. Balancing the
need for adequate on-site lighting with concerns of off-site glare and light pollution, the design
incorporates several measures to reduce glare and off-site impacts. In response to concerns
raised by the community, Applicant lowered the initially proposed light heights and reduced the
7
We note that the DRB considered the issue of setbacks under Section 4.3.4(3), but did so only
considering the adequacy of the setbacks to achieve compatibility with surroundings, i.e., a “fit” review. The DRB
did not consider whether the retaining walls must meet the building setbacks laid out in Table 1 of the 2009
Regulations. We question whether Section 4.3.4(3) intends a review beyond consideration of whether the design
and setbacks ensure compatibility with adjacent property and the character of the neighborhood—in other words,
we question whether the site plan provisions were meant to incorporate strict area and dimensional requirements
found elsewhere in the Regulations. To the extent the site plan provisions only require that site plan dimensions
ensure compatibility with adjacent properties, we conclude that the retaining walls, as conditioned by the DRB’s
approval, are compatible with adjacent properties and the commercial area more generally.
18
wattage of many of the exterior lights. In addition, all lights are fully shielded, thus minimizing
light levels beyond the area intended for illumination. Further, all but six lights (four fixtures)
will be turned off after hours. These remaining lights are needed to provide some minimal
security illumination. Because the lighting plan provides for generous illumination of the
exterior of the store and parking area, while also incorporating designs and operational
restrictions to reduce glare and off-site impacts, we conclude that the Project complies with
Section 4.3.4(4).
The adequacy of Applicant’s stormwater measures is the main thrust of Appellants’
challenge in both this site plan appeal and in the related Act 250 matter. Sections 4.3.4(6) and
4.3.4(8) both require consideration of the adequacy of the proposed stormwater measures to
control runoff, erosion, and drainage.8 Applicant’s stormwater measures, both during
construction and operation, are sufficient to satisfy Sections 4.3.4(6) and 4.3.4(8). During
construction, Applicant will employ methods approved by ANR to control sediment runoff and
erosion. During normal operation, the Project’s stormwater system uses a series of catch
basins and detention chambers to control the rate of release of stormwater, and incorporates
two treatment methods to eliminate pollutants from the stormwater runoff. Flooding and
runoff issues will actually improve post-development for most rain events. Even during major
storms, the Project will not increase or exacerbate flooding or runoff issues on nearby or
adjacent properties. We therefore conclude that the Project meets Sections 4.3.4(6) and (8).9
Although compliance with the Town Plan was raised by Appellants, they do not identify
any section of the Town Plan that is not accommodated by the Project. Merely raising the issue
of compliance with the Town Plan is insufficient to provide a specific challenge to the Project.
Based on the testimony and evidence supplied by Applicant, and our own review of the Town
Plan, we conclude the Project fully complies with the 2005 Town Plan and thus satisfies Section
4.3.4(7). The Project is located on the last undeveloped lot of a commercial subdivision and is a
permitted use in the Commercial Zoning District. The Project will provide space for a farmers
market and will include a small park along the canal path. Overall the Project will not
8
Pre-trial, Appellants clarified that they were not raising any issues under the portion of Section 4.3.4(8)
concerning hazardous wastes.
9
Because we find that Applicant presented sufficient evidence to prove compliance with Section 4.3.4(6),
we also deny Section 5 of Appellants’ Motion for Entry of Judgment.
19
negatively impact any significant cultural resources and will actually provide additional
community space and investment in public areas.
Lastly, Section 4.3.4(9) lists conformance with design standards stated in Sections 3.4.5
and 5.6 as a consideration for site plan review. Section 3.4.5 is not applicable to the Project,
and the only required design standard under Section 5.6 applicable to the Project that has not
been addressed above10 is Section 5.6.3—Parking and loading areas. The compatibility with this
standard was addressed in our September 16, 2015 Decision on Motions to Strike and Motions
for Entry of Judgment. See Hinesburg Hannaford CU Approval, Nos. 129-9-12, 163-11-12, 68-5-
14, 69-5-14, 70-5-14, 73-5-14, 113-8-14, 114-8-14 Vtec, slip op. at 10–11 (Vt. Super. Ct. Envtl.
Div. Sept. 16, 2015) (Walsh, J.). Here, we reiterate that the proposed parking configuration
locates the store’s parking in the side or rear yards. There is no parking proposed for the front
yard. We therefore conclude that the Project complies with Section 5.6.3 and thus Section
4.3.4(9) of the 2009 Regulations.
Based on the foregoing, we answer Appellants’ Question 6 by concluding that the
Project complies with Sections 4.3.4(1)–(4) and (6)–(9) of the 2009 Regulations.
d. 1987 Subdivision Approval (Question 7)
In Appellants’ Question 7 and Parts 1 and 2 of their Motion for Entry of Judgment,11 they
argue that the Project must be denied because Applicant’s site plan violates a setback condition
of the 1987 Commerce Park subdivision approval and no amendment of the condition has been
sought. Specifically, Appellants argue that the 1986 Final Plat Plan for the Commerce Park
subdivision depicts buildings that are, according to the scale, set back 75 feet from the canal,
and that this depiction creates an enforceable setback condition. In response, Applicant claims
that it has not sought subdivision approval from the Town, and, therefore, it is beyond this
Court’s jurisdiction to consider the issue of whether a subdivision permit amendment is
10
Section 5.6.4 addresses exterior lighting and requires that lighting be installed to prevent off site glare.
Applicant’s proposed lighting plan uses reasonable measures to reduce and eliminate light pollution. Section 5.6.5
dictates that projects should incorporate landscaping to screen incompatible structures or large expanses of
pavement, to give the lot some privacy, and the help control stormwater and erosion. Applicant’s landscaping
plans provide all these functions.
11
Part 1 the Motion for Entry of Judgment argues that because Applicant did not seek an amendment of
the 1987 Commerce Park subdivision approval, this Court lacks jurisdiction to consider amending the 1987
subdivision and Applicant cannot collaterally attack the final and binding prior approval. Part 2 of Appellants’
Motion argues that there is no evidence before the Court upon which we could find that Applicant’s site plan
conforms with the 1987 subdivision approval.
20
needed. Applicant also argues, that even if we do consider the merits of Appellants’ claim the
building setbacks depicted on the plat plan accompanying the 1987 subdivision approval are
unclear and have not been enforced for subsequent development, and thus do not establish
enforceable conditions under the Vermont Supreme Court’s decision In re Willowell Found.
Conditional Use Certificate of Occupancy, 2016 VT 12, ¶ 15.12
With regard to Applicant’s jurisdictional argument, the parties agree that there has been
no request to amend any setback conditions of the 1987 Commerce Park subdivision
approval.13 Therefore, as Appellants argue in their motion, we are without jurisdiction to
consider whether the 1987 subdivision approval should be amended under In re Hildebrand,
2007 VT 5, 181 Vt. 568. Nevertheless, even where a project does not seek a subdivision
amendment, conditions of a prior subdivision approval can impose land use restrictions. See In
re Minor Subdivision Plot Approval No. 88-340 for Stanley Robinson, 156 Vt. 199, 202 (1991); In
re Willowell Found. Conditional Use Certificate of Occupancy, 2016 VT 12, ¶ 15. For a condition
of a subdivision approval to be enforceable as a land use restriction, however, it must be
explicit and provide “sufficient clarity” necessary to notify landowners of the restriction.
Willowell, 2016 VT 12, ¶ 17 (quoting In re Farrell & Desautels, Inc., 135 Vt. 614, 617 (1978)). In
other words, we will not enforce implied permit conditions that do not provide notice of the
applicable regulatory standards. See id. ¶ 17. Moreover, any condition must be read in light of
the frequently cited principle that “zoning ordinances must be construed narrowly in favor of
the landowner to minimize their hindrance on property rights.” Id. ¶ 18.
Therefore, we must consider whether the 1986 Final Plat establishes an enforceable
land use restriction. On the last page of the Planning Commission’s 1987 approval there is a
notation that there was a revision to the approval in 1988. Post-trial, Applicant offered two
12
Appellants argue Applicant waived any argument about the enforceability of conditions from the 1987
subdivision approval because it did not raise the issue in its Statement of Questions. We see no merit to
Appellants’ waiver argument. The parties’ statements of questions define our scope of review. V.R.E.C.P. 5(f). If
one party raises an issue in its statement of questions, that issue is properly before us. An opposing party need
not respond to the issue in its statement of questions in order to preserve rebuttal argument. See Schuyler NOV,
No. 29-2-12 Vtec, slip op. at 3 (Vt. Super. Ct. Envtl. Div. May 30, 2012) (Walsh, J.) (citing In re Garen, 174 Vt. 151,
156 (2002)). Here, Appellants raise the issue of the need for a subdivision permit amendment in their Statement
of Questions and Applicant has properly responded with an argument why a permit amendment is not needed.
13
We do note that Applicant does seek an amendment to the 1987 Commerce Park subdivision in order
to increase the size of Lot 15 in the Hannaford Subdivision Appeal, No. 68-5-14 Vtec. Therefore, Applicant’s
assertion that there is no application to amend the 1987 subdivision permit currently before us is not entirely
correct. The specific issue of setbacks, however, was not raised, and there has been no application to amend any
setback provisions of the 1987 subdivision approval.
21
documents, purportedly certificates of compliance for two lots within the Commerce Park
subdivision, it claims demonstrate that the 1987 Commerce Park subdivision approval contains
no enforceable 75-foot setback condition. Applicant asks this Court to take judicial notice of
these documents, claiming judicial notice is proper because the documents can be found in the
Town of Hinesburg land records. We are unaware of any authority in Vermont that permits a
court to take judicial notice of municipal certificates of compliance, and we refuse to do so
here. See V.R.E. 201; Hebert v. Stanley, 124 Vt. 205, 207 (1964) (“[A] court cannot take judicial
notice of a local ordinance.”). What is more, Applicant has provided no satisfactory reason why
the documents were not offered at trial. Applicant was certainly on notice of the issue, but
failed to adequately prepare the belatedly offered evidence.14 We therefore deny Applicant’s
request. As a result, we have no evidence of the details of any revisions.
We do, however, agree that the 1986 Final Plat Plan does not, in itself, create an
enforceable setback condition. In 1987, the Town of Hinesburg Planning Commission granted
final plat approval to the Commerce Park subdivision as depicted on the 1986 Final Plat Plan
(1986 Plat) that accompanied the subdivision application. See Appellants’ Exs. Courtney B and
C. The Planning Commission’s 1987 written decision approving the subdivision does not discuss
or establish any required setbacks for lots within the subdivision. See Appellants’ Ex. Courtney
B. Through various black lines, the 1986 Plat depicts building setbacks, boundaries, and the
location of streams and roads. There are no inscriptions or notes identifying any measured
distances between lines on the 1986 Plat. There is, however, a notation that 1 inch is equal to
100 feet. From the various lines depicted on the 1986 Plat, Appellants (presumably through
measuring and extrapolating to scale) deduce that any building on Lot 15 must maintain a 75-
foot setback from the canal. But there is no accompanying document to the 1986 Plat
describing any required setback, there is no writing that would indicate an intent to impose a
setback restriction, and the written subdivision approval is devoid of any discussion of setbacks
from streams or waterways. The only language about setbacks or building envelopes is in the
legend of the 1986 Plat, which indicates the type of boundary depicted by various lines on the
Plat. We conclude, therefore, that the distances between various lines on the 1986 Plat are not
“sufficiently clear to constitute land use restrictions.” Willowell, 2016 VT 12, ¶ 15. In other
words, the 1986 Plat does not create an enforceable restriction that the building on Lot 15 must
14
Applicant made clear that it is not requesting that we reopen the evidence.
22
maintain a 75-foot setback from the canal. We therefore answer Appellants’ Question 7 and
also deny Parts 1 and 2 of Appellants’ Motion for Entry of Judgment by concluding that the
1987 Commerce Park subdivision approval does not impose enforceable setback conditions.
Conclusion
For the reasons provided above, we conclude: Applicant’s permitting procedure was
proper; the Project accommodates the mapped community facility; the Project complies with
all applicable site plan standards in the 2009 Regulations; and the Project as proposed does not
violate any enforceable conditions of the 1987 Commerce Park subdivision approval. We
therefore AFFIRM the DRB’s decision and impose its conditions of approval, except as modified
by our decision and except as modified by changes to the site plans during the pendency of this
appeal.
A Judgment Order accompanies this Merits Decision. This concludes the matter before
the Court.
Electronically signed on April 12, 2016 at 10:42 AM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
23