Champlain Oil Co CU

STATE OF VERMONT
SUPERIOR COURT - ENVIRONMENTAL DIVISION
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In re Champlain Oil Co., Inc. { Docket No. 89-7-11 Vtec
Conditional Use Application { (Appeal from Ferrisburgh ZBA)
(After Remand) {
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Decision on the Merits
Champlain Oil Company, Inc.1 (“Applicant”) seeks a municipal permit to construct and
operate a multi-use facility, including a gasoline station, retail store, and restaurant (“the
Project”) on property located on the easterly side of U.S. Route 7 in the Town of Ferrisburgh
(“Town”), just south of the Town center.
Additional parties to this appeal include fifteen individuals,2 the Ferrisburgh Friends of
Responsible Growth, Inc., and the Town of Ferrisburgh. Applicant is represented by Liam L.
Murphy, Esq.; Cross-Appellants are represented by James A. Dumont, Esq.; the Town is
represented by James F. Carroll, Esq. When the parties were unable, despite best efforts, to
reach a voluntary resolution of all outstanding disputes concerning the proposed Project, the
Court conducted a site visit and a multi-day merits hearing.
Procedural Background
We first provide the following overview of the proceedings before the Town of
Ferrisburgh Zoning Board of Adjustment (“ZBA”) and this Court that concern the proposed
Project, both in its current site version and a prior version of the Project Site. This procedural
background lays a foundation for the legal issues to be addressed in this Merits Decision.
The ZBA first approved a prior version of the Project, with fourteen numbered
conditions, on September 9, 2009. Applicant filed a timely appeal, contesting eight of those
conditions. Ferrisburgh Friends of Responsible Growth, Inc. and the fifteen individual litigants
(“Cross-Appellants”) filed a cross-appeal of the ZBA’s 2009 decision, raising a number of issues
concerning the proposed Project’s compliance with the Zoning By-Laws for the Town of
1 Applicant’s legal structure was represented at trial and in post-trial pleadings as both a Vermont
corporation and as a subsidiary of a Vermont limited liability company: B. Cairns Property, LLC.
Applicant’s specific legal structure is not material to these proceedings.
2 Those fifteen individuals are Terry and Debbie Allen, Judy Chaves, Don Dewees, Judy Elson, Todd
Hardie, Katie Hill, Rick and Sally Kerschner, Rux Martin, Nick Patch, Karen Petersen, Kurt Plank,
Jennifer Ruddy, and J. Silas Towler.
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Ferrisburgh, Vermont (“Bylaws”). These appeals of the ZBA’s 2009 approval were assigned
Docket No. 200-10-09 Vtec.
After some brief discovery and preliminary settlement discussions, Appellants and
Cross-Appellants filed competing motions for summary judgment, seeking a summary ruling
on three distinct legal issues: (1) whether the proposed convenience store is a permissible use in
the applicable zoning district; (2) whether the proposed restaurant may include a drive-up
service window; and (3) whether the on-site wastewater and stormwater systems may be
located partially within the Conservation Zoning District (“Conservation District”).
The Court thereafter rendered a decision on these summary judgment motions,
concluding that (1) the proposed convenience store may be classified as a “retail store,” which is
permitted as a conditional use in the Highway/Commercial Zoning District (“HC District”);
and (2) a restaurant is also permitted as a conditional use in the HC District, even when the
proposed restaurant includes a “drive-through” facility. In re Champlain Oil Co. Conditional
Use Application, No. 200-10-09 Vtec, slip op. at 6–9 (Vt. Super. Ct. Envtl. Div. July 16, 2010)
(Durkin, J.). However, the Court concluded that the Project could not be approved as proposed,
since the lot to be created to host the proposed Project, including the wastewater and
stormwater systems, would not conform to the minimum lot size requirements for the
Conservation District.3 Id. at 10–12.
Applicant then sought reconsideration of the Court’s ruling, specifically requesting that
the Court address the remaining legal issue of whether the Bylaws prohibit the siting of
wastewater and stormwater treatment systems in the Conservation District for a commercial
facility located in the adjoining HC District. The Court conducted a site visit and an in-person
hearing on that motion and, after receiving the parties’ arguments and conducting its own
deliberations, ruled on the record of the September 7, 2010 hearing that the Bylaws do not
prohibit the siting of wastewater and stormwater systems on a sufficiently-sized lot within the
Conservation District.
Applicant also asserted at the September 7, 2010 hearing that it could acquire sufficient
lands from an abutting property owner to create a lot for the Project that conformed to the
3 The original lot proposed to host Applicant’s Project straddled three zoning districts. See Champlain
Oil Co., No. 200-10-09 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. July 16, 2010). The most restrictive of
these zoning districts—the Conservation District—required that newly-created lots contain no less than
25 acres.
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minimum lot size for the applicable zoning districts. The Court concluded that while the
Bylaws did not prohibit Applicant from making such a revision to their proposed plans, the
Court should not be the first tribunal to consider such a significant revision. Rather, so as to
allow the ZBA to have the first opportunity to provide public notice and consider such a
revision, the Court REMANDED the application to the ZBA, so that the ZBA could conduct the
first review of any revised site plan Applicant submitted. The Court summarized its legal
determinations in an entry order issued the following day. See In re Champlain Oil Conditional
Use Permit Application, No. 200-10-09 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Sept. 8, 2010)
(Durkin, J.).
Applicant thereafter submitted a revised site plan to the ZBA, which considered it in
connection with the remanded conditional use application. On May 4, 2011, the ZBA held a
hearing to receive further testimony and other evidence, including Applicant’s revised site plan
and lot design. By decision dated June 1, 2011, the ZBA “CONDITIONALLY”4 approved
Applicant’s conditional use application, noting that its approval incorporated the
determinations and fourteen conditions that were a part of its prior approval of September 9,
2009. In re Champlain Oil Co. Conditional Use Application, No. 09-36.1, Findings of Fact and
Conclusion, at 1 (Ferrisburgh ZBA June 1, 2011).
Applicant then filed a timely appeal of the ZBA’s June 1, 2011 decision and submitted a
Statement of Questions again challenging Conditions 1–4 and 6–9 of the ZBA’s approval.
Cross-Appellants filed a timely cross-appeal, posing eleven legal issues in their Statement of
Questions. When the parties, despite their best efforts, were unable to resolve their disputes
voluntarily, the Court conducted a second site visit and completed its merits hearing after four
days of trial.
Based upon the evidence presented to this Court at its multi-day merits hearing,
including that evidence which was put into context by the site visits the Court conducted with
the parties, the Court makes the following Findings of Fact, Conclusions of Law, and Judgment
Order that accompanies this Decision.
4 The ZBA conditioned its June 1, 2011 approval of Applicant’s revised site plan “upon the approval by
the Planning Commission of the lot line adjustments” proposed by Applicant. These lot line adjustments,
the Zoning Administrator’s and Planning Commission’s approval of them, and the appeal to this Court of
the Administrator’s and Commission’s approval are discussed in Findings ¶¶ 6–13, below.
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Findings of Fact
I. The Project Site
1. The Project Site is on a parcel of land on the easterly side of Route 7, just north of Little
Otter Creek. The site is approximately one half mile south of the Town center. The proposed
site includes the approximate location of the former Ferrisburgh Roadhouse Restaurant, as
depicted in photo Exhibits 35 and 36. A fire destroyed the Roadhouse Restaurant in 2007.
2. The site of the former Roadhouse Restaurant contains about 2.5 acres, the majority of
which lies within the HC District. Although it was not expressly stated at trial, Applicant
appears to have concluded that the former Roadhouse Restaurant site is too small to host the
Project and has therefore sought to acquire additional lands from adjoining property owners.
3. The original restaurant operating at the former Roadhouse Restaurant site opened in the
1950’s under the name Stewart’s Restaurant. In 1989, Gregory and Susan Burdick purchased
the property, changing the name to Burdick’s Country Kitchen Restaurant and serving locals,
tourists, travelers, and truckers twelve months of the year, from 6:00 AM to 9:00 PM. The
Burdicks expanded the gravel parking area, as depicted in the aerial photo admitted as page 2
of Exhibit 4, so as to accommodate the automobiles, commercial trucks, and tractor trailers that
their customers drove to the Restaurant. Photos of Burdick’s Restaurant in its heyday were
admitted at trial as Exhibits 3–6, and 37.
4. The Burdicks operated their restaurant for sixteen years, and at the time of its sale in
2006 to Marcos and Claudia Llonas it was a well-known establishment, frequented by many
patrons. The Llonases owned the property at the time of trial.
5. The Ferrisburgh Roadhouse Restaurant and its predecessor (Burdick’s Country Kitchen
Restaurant) had seating for 99 patrons.
6. Applicant submitted a 28-sheet set of drawings to identify its plans for creating the
proposed lot for its Project and to provide the details of its proposed development, landscaping,
and wastewater and stormwater treatment systems. This set of drawings was admitted at trial
as Exhibit 12.
7. The Burdicks own a separate parcel of undeveloped land that lies behind and easterly of
the Llonases' property; the Burdicks’ property also has frontage on Route 7. The Burdick parcel
contains about 24.27 acres and lies partially in the HC District, the Conservation District, and
the Rural Agricultural Zoning District (“RA District”).
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8. Applicants propose to assist the Burdicks in subdividing their land into two parcels: one
parcel, adjacent to the Llonases’ property, will contain 7.2± acres; the remaining parcel will
contain 17.07± acres. These two new lots of the Burdicks’ land are depicted on pages 2 and 3 of
Exhibit 12.
9. At Applicant’s suggestion and direction, the Burdicks have agreed to sell the first parcel
(containing 7.2± acres) to the Llonases, who have agreed to merge that land with the property
they own, thereby creating a larger parcel containing 9.7± acres. Applicant intends to acquire
this 9.7± acre parcel from the Llonases to use as the site of Applicant’s proposed Project. See
Exhibit 12 at 3. We hereinafter refer to this to-be-merged lot of 9.7± acres as “the Project Site.”
10. The Burdicks’ remaining parcel (containing 17.07± acres) abuts a larger parcel of land
belonging to Allandra Farm, Inc. At Applicant’s suggestion and direction, the Burdicks have
agreed to convey their remaining 17.07± acres to Allandra Farm, Inc. for the purpose of merging
those acres with Allandra’s adjoining land, to form a larger parcel containing 179.1± acres. See
Exhibit 12 at 2.
11. Applicant applied for approval for the Burdicks to subdivide their land into these two
lots, with the intention of the land being merged with adjoining lands, as noted above in
Findings ¶¶ 6–9. On January 23, 2012, the Town of Ferrisburgh Zoning Administrator and the
Town of Ferrisburgh Planning Commission (“Planning Commission”) approved the above-
described subdivision and merger/lot line adjustments by and between the Burdicks, the
Llonases, and Allandra Farm, Inc.
12. Cross-Appellants filed a timely appeal with this Court of the Zoning Administrator and
Planning Commission approval. That appeal was docketed as In re Champlain Oil Lot Line
Adjustments,5 No. 23-2-12 Vtec (Vt. Super. Ct. Envtl. Div.).
13. Cross-Appellants initially challenged the legality of the approved lot line adjustments.
However, by Stipulation, which the Court incorporated into its own Order dated April 9, 2012,
Cross-Appellants agreed (1) to voluntarily dismiss their appeal of the boundary line adjustment
approval and (2) that the Planning Commission’s approval could be admitted as evidence in
support of Applicant’s conditional use approval application that is the subject of this Docket
(No. 89-7-11 Vtec). Applicant agreed that this dismissal of the boundary line appeal would not
5 The Court has previously listed this appeal as “In re Champlain Oil CU—After Remand.” The
undersigned directed that this appeal be re-titled to more accurately note the subject of that appeal.
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inhibit Cross-Appellants’ challenge to the compliance with setback and other Bylaw provisions
relevant to Applicant’s conditional use approval request.
14. Based upon these representations, the parties’ Stipulation, and this Court’s April 9, 2012
Order in Docket No. 23-2-12 Vtec, the Court has accepted into evidence a copy of the Zoning
Administrator/Planning Commission boundary line adjustment approvals, now marked and
admitted as Exhibits 12A and 12B.6
15. The proposed Project Site, once these conveyances are completed, will contain 9.7± acres,
which size will exceed the minimum lot size requirements for the HC District (2 acre minimum)
and the RA District (5 acre minimum). The proposed Project Site is located only in these zoning
districts.
16. Although a small portion of the Project Site, located in the northeastern corner, is located
in the RA District, Applicant does not propose any development in that portion of the lot.
17. The Project Site will have in excess of 1,153 feet of frontage on Route 7, thereby
exceeding the minimum road frontage requirement for the HC District (300 feet).
18. Due to their ownership of the lands proposed for the Project Site, both Mr. and Mrs.
Llonas and Mr. and Mrs. Burdick have joined Applicant as co-applicants on the pending
application. Mr. Llonas and Mrs. Burdick testified in support of the application, but do not
have a material interest in the development and operation of the proposed Project. They and
their spouses will benefit if the Project is approved, because the above referenced land transfers
to Applicant are conditioned upon the Project’s approval.
II. The Area Impacted By Applicant’s Project
a. Area within the vicinity of the Project Site.
19. Route 7 is a major north/south corridor for commercial, industrial, retail, and residential
travel parallel to the general western border of Vermont, including through the Town of
Ferrisburgh. This state highway often has only one travel lane in each direction, with
occasional passing lanes and paved breakdown lanes. There are some portions of Route 7 that
have the characteristics of an interstate highway. However, many sections of Route 7 pass
6 Exhibits 12A and 12B are copies of the same subdivision/boundary line adjustment maps depicted on
pages 3 and 4 of Exhibit 12, but also contain a pre-printed stamp and signature to denote Planning
Commission approval.
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through the center of small, quaint villages that even today retain their rural charm. The center
of the village of Ferrisburgh is such an area.
20. The Project is located about a half mile south of the village center. Approaching the
Project Site from the south, a traveler witnesses various commercial and residential properties
along a typical rural highway. This portion of Route 7 is generally wider than in the village
center. Many (although not all) of the properties in this commercial district host commercial
developments, such as Mid-State Sports, the Dock Doctors, Vermont Energy Co. gas station and
convenience store, Mailloux’s Honey Gardens, Sky View Motel,7 Eriksen’s Marine, and BC
Motorsports. See Exhibit 29, slide 24.
21. Route 7 and the commercial, industrial, retail, and residential traffic that uses this
portion of that roadway largely define the Project neighborhood.
22. This section of Route 7, south of the village center, also contains some private residences,
yet the area presents itself as more commercial in character. Although Cross-Appellants
correctly note that there are more individual residences than individual commercial sites in the
vicinity of the Project Site, the commercial properties encompass the majority of physical space
in the highway area that is south of the village center. Exhibit 29, slide 24. The HC District has
considerably more of a commercial appearance than a residential appearance.
23. While Route 7 in the vicinity of the Project Site contains only one travel lane in each
direction, it has wide travel lanes and wide shoulders on each side, consistent with a typical
commercial section of a large rural highway. Some patrons of the area’s commercial properties,
including the Vermont Gas Co. gas station and convenience store, located diagonally across
from the Project Site, sometimes use these wide highway shoulders along Route 7 for temporary
parking. See Exhibit 24, slide 4.
24. Slide 24 of Exhibit 29 provides a helpful assessment of the commercial properties in the
vicinity of the Project Site. It credibly counters Cross-Appellants’ assertions that the Project
would be significantly larger than commercial properties in this area of Town. While the
Project, if developed, will encompass a large area, it does not exceed the physical space
encompassed by several of the nearby commercial properties.
25. The existing commercial properties in the vicinity of the Project Site vary in height, style,
and setback from the highway right of way. Some of these commercial properties, including the
7The Sky View Motel is currently being re-developed as a new location for the Dock Doctors business,
which will include a larger set of buildings. See Exhibit 29, slide 32–37.
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nearby Vermont Energy Co. convenience store and gas station, appear to be converted from
residential to commercial use. Other commercial properties, including the existing Dock
Doctors, BC Motor Sports, and Eriksen’s Marine facilities, have distinctly commercial structures.
See Exhibit 24, slides 2, 6; Exhibit 29, slide 11, respectively.
26. Slide 42 of Exhibit 24 provides a credible comparison between the proposed Project and
some of the existing commercial properties in the HC District. This comparison shows that
other commercial properties exceed the proposed Project in (1) building area; (2) building
height; and (3) total impervious surface. Id.
27. Most commercial properties along Route 7 in the HC District have exterior lighting
fixtures that illuminate these properties during business hours; some lights at some of the
existing commercial properties remain on even after the businesses have closed for the evening.
The types of exterior lighting vary (e.g., incandescent, florescent, and LED8); some lighting
fixtures shield the bulb, but many of the existing lighting fixtures do not. See Exhibit 29,
slides 21–23.
28. All properties in the vicinity of the Project Site that have frontage on Route 7 are located
in the HC District. Some of these commercial properties are set close to the roadway (i.e.,
within 40 feet from the center line of Route 7); some are set farther away from the roadway,
including in excess of 100 feet, which is the current minimum setback for the HC District.
29. Nearly all commercial properties in the vicinity of the Project Site have parking areas in
the front or sides of their buildings. See Exhibits 24, 29. Several of the commercial facilities
provide for parking in the rear of buildings, although most do not. Id. Some commercial
properties have just a few delineated parking spaces for their customers, some have no
delineated parking areas, and some commercial properties have thirty or more delineated
parking spaces. The former Burdick’s Country Kitchen Restaurant (the site for the proposed
Project) had un-delineated parking areas that could accommodate 43 or more parked vehicles.
See Exhibit 29, slide 4.
30. Traveling north from the Project Site, properties along Route 7 remain located in the HC
District until one reaches Little Chicago Road to the west and Middletown Road to the east.
8 Light-emitting diodes (“LEDs”) provide light from commercial fixtures that is similar, but not identical
to light provided by incandescent and florescent bulbs, but LEDs also do so at a significantly reduced
energy use. The proposed Project provides the only example of LED exterior lighting in the area,
according to trial testimony.
8
This junction area is collectively known as “the Crossroads” and marks the transition from the
HC District to the Village Zoning District (“Village District”).9
31. The HC District is one of the smallest districts delineated in the Bylaws. See Zoning
Districts map attached as the first Appendix to the Bylaws (Exhibit 1 at 69). The Village District
also represents one of the smallest segments delineated on the Zoning Districts map. Id.
b. Village District and its distinguishing characteristics.
32. Route 7 narrows in width as it enters the Village District. The travelled portions of the
roadway narrow and the highway shoulders quickly narrow and then are replaced by curbing
and sidewalks in most portions of the Village District.
33. The HC and Village Districts are very distinct, so much so that an unfamiliar visitor to
the area could easily note the transition between the two Districts, even if not familiar with the
Zoning Districts map. Residential buildings are more prominent in the Village District than in
the HC District; the residential and commercial buildings in the Village District are set closer to
the highway and are aligned more closely to each other than in the HC District. The current
minimum setback for the Village District is 100 feet, although most of the preexisting properties
in the Village District appear to be much closer to the centerline of Route 7.
34. The historic developments that predominate the Village District help define its
character. Many of the buildings, even if now committed to commercial uses, retain physical
characteristics of an historical rural village center populated by residential structures.
Conversely, there are few examples of this quality in the HC District. The Village District
retains the character of a village center; the HC District presents more as an area established for
highway-orientated commercial developments and uses, albeit in a rural area.
35. The Village District’s roadside trees and civic buildings further distinguish it from the
HC District. Both Applicant’s and Cross-Appellant’s experts (Mr. Steele and Ms. Vissering,
respectively) agree on the distinctive nature of the Village District. However, Ms. Vissering
appears to argue that the HC District should also reflect historic and village center type
characteristics. We find Mr. Steele’s characterization of the distinctive nature of the HC District
more credible and more strongly supported by the commercial development that exists and has
been permitted in the HC District.
9 Several exhibits also refer to the Village District area as the “Civic Center.” We use the term Village
District to refer to the specific area delineated on the Zoning Districts map attached as the first Appendix
to the Bylaws.
9
36. The Town of Ferrisburgh Town Plan (“Town Plan”) evidences several aspirational goals
for the type of development that the community believes “should” occur in both the HC and
Village Districts. Town Plan § 4.3. The Town Plan expresses the aspiration for the HC District
that “[a]ll uses in this area should be conditional, and include only small-scale commercial
enterprises and mixed uses typical of a 19th century highway crossroads area.” Id. The Town
Plan also recommends that “the visual character of this entrance to the town [is an] issue[] of
concern that should be addressed by the town’s regulations to maintain historic character.” Id.
37. All uses allowed in the HC District are regulated as conditional uses. Bylaws § 4.4.
However, the Bylaws do not appear to contain specific regulatory restrictions that would
implement the aspirational goals evidenced in the Town Plan to limit permitted development to
“small-scale commercial enterprises and mixed uses typical of a 19th century highway
crossroads area.” Town Plan § 4.3(G).
38. Many—perhaps most—of the existing and recently permitted area commercial
developments are of a character that would not be found in a rural 19th century crossroads area;
the existing or recently permitted uses include an ATV sales and service facility (BC Motor
Sports); power boat sales, supplies, and service (Eriksen’s Marine); marina dock sales (Dock
Doctors, Inc.); and a gas station/convenience store facility (Vermont Gas Co.).
39. Applicant asserted, and Cross-Appellants contested, that the convenience store
component of their proposed Project is a modern-day version of the general stores that once
characterized 19th century highway crossroads areas. We are not wholly in agreement with this
analogy, but to the extent the analogy is appropriate in relation to the existing Vermont Energy
Co. convenience store and other similar facilities to the south and north of the village center, the
analogy is also appropriate for the proposed Project.
III. The Project Components
a. Building, gas pumping stations, and canopies.
40. Applicant’s revised Project plans (Exhibit 12, consisting of 28 separately lettered sheets)
provide a detailed overview of the proposed Project, as well as specifics on the locations,
dimensions, and components for the main building, the gas and diesel pumping stations, the
canopies over the gas and diesel stations, the parking areas, and the treatment systems for
wastewater and stormwater. See Exhibit 12, plans SP1C – SP8C.
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41. Although the proposed Project Site contains 9.7± acres, the principal components of the
proposed Project (i.e., the building, gas and diesel pumping stations, related overhead canopies,
and parking areas) are located on a 2.73± acre portion on the northern edge of the Project Site.
This clustering of the Project components that are above grade and therefore readily visible
from off of the Project Site help lessen the Project’s visual impact and cause that visual impact to
be similar to nearby commercial properties.
42. The 2.73± acre portion of the Project Site, where all the visible portions of the Project are
to be constructed, is entirely located in the HC District. Further, the wastewater and
stormwater treatment systems, all of which are to be located at or below the finished grade of
the Project Site, are also only located in the HC District.
43. Applicant proposes eight gas pumping stations, located on either side of four pumping
islands. The gas pumping stations and the canopy over those stations will be located in the
forefront of the lot. See Exhibit 12, plan SP2C. The gas pumping stations and canopy will be
located no closer than 100 feet from the center line of Route 7, so as to comply with the
minimum front yard setback requirements for the HC District. Bylaws § 4.4(C).
44. Gas pumping stations for most gas stations in Vermont are located in either the front or
side areas of their main buildings, so as to allow the travelling public to readily determine that
gas sales are available at that location. Cross-Appellants suggested that the proposed Project
should be reconfigured, so that the building would be the portion of the facility closest to the
highway and that the gas pumps be located in the rear of the building. No evidence was
presented of another Vermont gas station configured in such a manner. We are not convinced
that this realignment would materially change the appearance of the proposed Project. Rather,
this reconfiguration may only cause confusion for the travelling public, who would be trying to
determine whether gas was sold at the Project Site.
45. A canopy also will be constructed so as to provide some protection from the elements
within a walkway that runs from the front of the building to the gas pumping stations. See
Exhibit 12, sheet SP2C.
46. On either side of three diesel pumping islands, Applicant proposes six pumping stations
where passenger vehicles, trucks, and tractor trailers may purchase diesel fuel. A canopy will
also be constructed above the diesel pumping stations. Id.
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47. Applicant’s principal agent, Mr. Carnes, credibly testified that diesel fuel is estimated to
account for twenty to twenty-five percent of the fuel sales at the Project. The need for diesel
fuel sales in this area was verified by convincing testimony that more cars and trucks, including
tractor trailers, are consuming diesel fuel because of its increased cleanliness and mileage
efficiency.
48. The diesel pumping stations will be located off of the south side of the building, within
walking distance to the building, but at a distance sufficient to provide both space for
automobile parking near the building as well as turning and parking areas for tractor trailers.
There will also be a canopy above the diesel pumping stations.
49. The design for the canopy above the gas pumping stations will include a peaked and
hipped10 roof, with the spine of the peak running parallel to Route 7. This canopy will be 24 feet
tall at its peak, which will match the height of some nearby commercial buildings. Several other
nearby commercial buildings have taller peaked roofs. See Exhibit 29, slide 42.
50. A peaked-roof canopy will run perpendicular to the gas canopy and will be attached to
the building roof. That peak will not be as tall as the gas station canopy or the peaked roof on
the building. Exhibit 29, slide 45 contains an artistic rendering of how the building, gas
pumping stations, these two adjoining canopies, landscaping, and signage will appear. The
multiple peaked and hipped roofs will help soften the visual presence and mass of the proposed
Project components.
51. The design for the canopy above the diesel pumping stations will also include a peaked
and hipped roof, with a spine running perpendicular to Route 7. This canopy will be 25 feet tall
at its peak.
52. The proposed building will contain 4,800 square feet; approximately half of the building
would be used as a retail store and half would contain a restaurant, perhaps of the “fast-food”
variety, such as a McDonald’s, Wendy’s, or Subway Sandwich Shop.
53. The building roof will be peaked, with the spine of the roof running parallel to the gas
pumping station canopy, and parallel to Route 7. The building, canopies, and their roofs will be
lighter and darker shades of gray, with white trim on the building corners and bottom edge of
10 A roof that has sloping ends, rather than a peak that runs the full length of the roof, is said to be a
peaked and hipped roof. See Exhibit 29, slide 55 for a demonstrative showing of the peaked and hipped
roof on the proposed gas pumping station canopy. Note that while the peaked roof on the building does
not run the full length of the building, it is not designed to be a hipped roof.
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the canopies. These colors will appear muted (that is, not glaring or contrasting to
surroundings) and will provide a blending of the structures with their surroundings.
54. The retail store, which Applicant often characterizes in its application materials as a
“convenience store,” would occupy 2,600 square feet and would serve a number of purposes. It
would provide space for the gasoline station’s cashier, space for storage, an office for the
gasoline station, and equipment related to the gasoline station. It would also include space for
the sale of retail goods, including automotive items such as motor oil and ice scrapers, as well as
general retail items, such as groceries, beverages, and snacks. A typical retail store associated
with other Champlain Oil gasoline service stations will stock over 6,000 different items (e.g.,
mittens, movies, batteries, pliers, coolers, candies, drinks, and novelty collectables).
55. The proposed restaurant will have thirty-four seats and comprise the building’s
remaining 2,200 square feet. It will also have a drive-up service window accessed by a drive-
through lane that wraps around the outside of the rear of the building. The proposal appears
much like a typical “drive-through” at a fast-food restaurant, where customers remain in their
vehicles and review a menu-board at the rear of the building before ordering through a
microphone. They then proceed to the drive-up service window where they stop, pay for the
order, and receive their food. Applicant’s site plans delineate a space in front of the service
window where customers will wait temporarily as their orders are processed. See Exhibit 12,
sheet SP2C.
56. The building, gas and diesel pumping stations, and related canopies are located at or
beyond the 100-foot front yard, 50-foot rear yard, and 25-foot side yard setback minimums
established for the HC District.
b. Wastewater and stormwater treatment systems.
57. On-site wastewater and stormwater treatment systems will serve the Project. These
treatment systems will be installed at or below the finished grade of the Project Site and will not
be discernible, except to the expert or well-trained eye.
58. Applicant has received approval for both systems from the Vermont Agency of Natural
Resources, Department of Environmental Conservation (“DEC”).
59. A preexisting wastewater treatment system on the Project Site once served the 99-seat
Ferrisburgh Roadhouse Restaurant and a single family home that still exists on the Llonases’
property. Applicant cannot use that preexisting wastewater treatment system for its gas station,
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convenience store, and 34-seat restaurant, even though its wastewater production is estimated
to be lower than that of the preexisting restaurant and house, because the prior system has
failed. Applicant therefore applied to replace the preexisting wastewater treatment system with
a new system that is sufficient in size to adequately treat the estimated flows of wastewater
from the proposed Project.
60. DEC approved Applicant’s proposal, including Project plans, for an on-site wastewater
treatment system on August 18, 2011, as is evidenced by Wastewater and Potable Water
Supply11 Permit #WW-9-1609, a copy of which was admitted as Exhibit 16. The wastewater
system includes the following components: wastewater collection in a series of underground
pre-cast concrete tanks for initial wastewater collection, a pre-treatment system, and a mounded
leach field. See Exhibit 16 at 4; Exhibit 12, sheets SP2C, XS1C, XS2C, D1C–D6C.
61. As designed, the wastewater treatment system initially delivers wastewater from the
Project building to an underground tank that separates grease contained in the wastewater.
Exhibit 12, sheet SP2C. Next, the wastewater flows to the remaining system components.
Those components include a tank that houses a Micro-Fast bio-digestion system that acts to
partially treat the wastewater. Exhibit 12, sheet D11C. The partially treated wastewater then
flows through a pumping station for delivery to the leach field. Exhibit 12, sheet SP1C.
62. Sand and soils will be brought on site to construct the earthen mound for the leach field
portion of the wastewater treatment system. The earthen mound will be constructed on the
down-sloping soils existing on the southern portion of the Project Site. The leach field will be
located entirely in the HC District and outside of the minimum side and rear yard setbacks.
63. The base or toe of the mounded soils will extend beyond the perimeters of the leach field
in a gentle slope; a small portion of the mound will extend into the RA District. No portion of
the leach field or the sloping soils beyond its perimeters will be located in the Conservation
District.
64. The leach field and sloping soils will be located entirely within the Project Site, with the
leach field no closer than 25 feet from any boundary line and the sloping soils of the mound
being no closer than 10 feet from any boundary line.
11Potable water for the Project will be supplied by connection to the Vergennes-Panton Water District’s
municipal water system. Exhibit 16 at 3.
14
65. If constructed and maintained according to the Project plans and Permit #WW-9-1609,
no wastewater will flow off of the Project Site without first being adequately treated on the
Project Site. The water treated through the wastewater system will thereafter become part of
the groundwater that flows beyond the Project Site.
66. A Class II wetland extends onto the southeastern corner of the Project Site. The
proposed earthen mound for the leach field will abut this Class II wetland and encroach into its
buffer area. Exhibit 12, sheet SP3C. The wetland continues onto the lands southerly of the
Project Site, in the direction of nearby Little Otter Creek. Exhibit 12, sheet SP1C.
67. Applicant applied for and obtained a permit from DEC to encroach into the buffer of
this Class II wetland, to the extent shown on its Project plans. DEC issued Individual Wetland
[Buffer Encroachment] Permit #2011-132, a copy of which was admitted as Exhibit 18. As is
evidenced by this Permit, the DEC determined that Applicant’s planned encroachment into the
buffer for this Class II wetland “will have no undue adverse effects on the protected functions
and values of the subject significant wetland and associated buffer zone, and adjacent wetland
complex, provided the project is conducted in accordance with” the Project plans and other
conditions enumerated by DEC in its Permit. Exhibit 18 at 1–2.
68. Cross-Appellants’ expert (Dr. Miles Waite) expressed concerns about the flow of what
he referred to as “highly treated effluent” from the mound system, but he agreed that it was
proper for DEC to issue Permit #WW-9-1609. Dr. Waite has some experience and expertise in
the study of how water flows through underground soils and rock, but he is not an expert in the
design or assessment of wastewater or stormwater treatment systems. While his testimony was
intriguing, it was less persuasive than that of Applicant’s experts (Messrs. Revell and
Pitrowiski) and the DEC determinations evidenced by Permits # WW-9-1609 and #2011-132.
69. Cross-Appellants also expressed their concerns, presented solely through the testimony
of Dr. Waite, that despite the DEC approval of Applicant’s wastewater treatment system,
Applicant’s proposed system is likely to fail and cause discharge of wastewater before it has an
opportunity to properly leach through the mound and resident soils for treatment. We found
Messrs. Revell and Pitrowiski’s assurances about the wastewater system’s proper performance
more credible and persuasive and reject Dr. Waite’s suggestions of probable system failure.
70. The parties’ experts spoke of a “wetting front” area, approximately 30 feet in width,
where the treated water flows from the leaching mound area and becomes integrated into the
15
groundwater flowing off of the Project Site, onto adjoining lands, and perhaps eventually into
nearby water courses, including Little Otter Creek. Based upon this expert testimony, we
conclude that the groundwater flowing off the Project Site is indistinguishable, even though it
may contain water once treated through Applicant’s wastewater treatment system, once it
leaves the Project Site.
71. DEC also approved Applicant’s proposal for an on-site stormwater treatment and
discharge system on June 1, 2011. A copy of this DEC approval (Permit #6563-9015) was
admitted as Exhibit 17. This Permit authorizes Applicant to treat and discharge stormwater
pursuant to General Permit No. 3-9015 and subject to the condition that the stormwater
treatment system is “constructed and operated in accordance with the site plans and details”
submitted by Applicant. Exhibit 17 at 1. The plans submitted by Applicant in support of its
stormwater treatment permit application were designated as SP1B, SP2B, SP3B, SP5B, SP7B;
D6B, D10B, “as revised” and with “all supporting information.” Id. Exhibit 12 contains the
revised versions of the sheets that are referenced in Permit #6563-9015.
72. Sheet SP1C of Exhibit 12 provides an overview for the Project components, including the
stormwater treatment system. That system is designed to channel runoff from the paved areas
surrounding the gas and diesel pumping areas into two underground tanks designed to
separate grit, oil, and water that compose the stormwater runoff from the Project Site. See
Exhibit 12, sheet D6C, detail 1. Once the stormwater flows through these grit and oil separators,
it continues to the stone—and grass—lined forebay area above a proposed detention pond, as
depicted on Exhibit 12, sheets SP1C–SP3C. As designed and approved by Permit #6563-9015,
the proposed forebay area and detention pond will separate or remove remaining materials
from the stormwater through evaporation and settlement.
73. The detention pond is also identified as a “wet pond” on the Project plans. Exhibit 12,
sheets SP1C and SP3C. The pond will sometimes, particularly during storms at one-year and
greater maximums, contain a pool of stormwater, thereby facilitating the removal of materials
from the stormwater through settlement. Stormwater will be detained in the pond and will not
drain from it until water reaches the top of a drain pipe system, located at the southern end of
the pond. This pond draining system will minimize the draining of stormwater sediments from
the pond. Exhibit 12, sheet D10C, detail 1.
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74. The stormwater will then flow through a swale constructed of riprap rock along the
eastern boundary of the Project Site. Exhibit 12, sheet SP2C. Geosynthetic fabric or its
equivalent will first be placed on the area excavated for the riprap swale, so as to limit the
integration of stormwater with groundwater. Exhibit 12, sheet D10C, detail 2.
75. At the request of DEC officials, Applicant added a 200 foot-long wall made of concrete
blocks (2 ft. in height by 2 ft. in width by 4 ft. in length) between the eastern edge of the rip rap
swale and the eastern boundary of the Project Site. See Exhibit 12, sheet SP3C. The wall will be
installed so that the top of the concrete block wall will be aligned with the finished grade of the
surface area of the rip rap swale. The purpose of the concrete block wall is to direct the
stormwater and segregate it from any groundwater in the vicinity of the swale.
76. Cross-Appellants’ expert (Dr. Waite) initially expressed concerns about the possibility of
stormwater flowing from the Project Site and onto adjoining lands to the east that are located in
the adjoining Conservation Zoning District, but he appeared to conclude that his concerns
would be adequately addressed by the inclusion of the concrete block wall, suggested by DEC
officials. 12
77. Any stormwater that makes it to the top of the wet pond drain and travels the full length
of the rip rap swale will then flow in to a wide dissipater that will diffuse the flowing
stormwater and reduce its energy before any remaining stormwater then flows into the nearby
lands, including a wetlands buffer. Stormwater, after flowing through and over these treatment
systems, may flow into Little Otter Creek, as is authorized by Stormwater Permit #6563-9015.
78. Stormwater discharge from the detention pond, through the rip rap swale and dissipater
and on to adjoining land is highly unlikely, even in the event of a storm equivalent to Tropical
Storm Irene of August 28, 2011, due to the detention capacity of the proposed pond and related
system components.
79. Stormwater runoff from the Project Site will be significantly less than that which
currently exists, even in light of the commercial development of the Project Site, due to the
design of the Site generally and the stormwater treatment system in particular.
12 Dr. Waite admitted to his lack of experience, formal training, or expertise in the fields of stormwater
management and treatment. His admissions led the Court to be concerned about his assessments of the
stormwater components in Applicant’s proposed Project.
17
c. Parking, signage, site circulation, traffic, noise, and operation hours.
i. Parking
80. Parking is proposed for 54 vehicles at various locations throughout the Project Site, as
depicted on Exhibit 12, sheets SP2C and SP2C-TR. Eight spaces will be located along the front
of the building, facing Route 7; 15 parking spaces will be located behind the building; 14
parking spaces to the north of the building; and 11 spaces to the south of the building. Id.
There will also be four parking spaces for tractor trailers or large trucks to the south of the
diesel pumps. Id.
81. Dispersing the available parking spaces to these five different locations on the Project
Site minimizes the visual impact of the Project parking.
82. The Project’s capacity to host parked cars (54 parking spaces) is only slightly greater
than the capacity of the Project Site when it hosted the former Burdick’s and Ferrisburgh
Roadhouse Restaurants. See Exhibit 29, slide 4. Many nearby commercial properties may have
fewer designated spaces for parked cars, but the cars parked in those other commercial parking
areas are as or more visible from Route 7 as the parking spaces on the Project Site.
83. Existing and proposed plantings and landscaping, referenced below in more detail, will
screen nearly all of the proposed parking spaces on the Project Site and will partially screen the
vehicles that use those parking spaces.
ii. Signage
84. A sign remains on the Project Site from when the Ferrisburgh Roadhouse Restaurant
was in operation. This sign references the name of that former establishment, provides a brief
listing of what it served for food, and notes that the former restaurant was open for
“Breakfast•Lunch•Dinner.” See Exhibits 35,13 36.
85. The existing Roadhouse Restaurant sign is mounted on two posts, secured to either end
of the sign, which raise the sign up approximately eighteen feet from the ground. The sign
covers 52.5 square feet of space. The lettering is on both sides of the sign.
86. This sign is located off to the side and in front of the former restaurant; it is located
within the existing 100-foot setback from the center line of Route 7 and is therefore a preexisting
non-conformity.
13 Two Exhibits 35 were admitted into evidence at trial. The Exhibit referenced here is a photo of the
Ferrisburgh Roadhouse Restaurant sign.
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87. This sign also has lighting fixtures attached to it that appear to have been used to
illuminate both the sign and the surrounding parking areas.
88. Applicant proposes several signs for its proposed Project. The principal sign will be a
ground sign of 52 square feet that will stand, at its highest point, eighteen feet above the
ground. See Exhibit 10.
89. This proposed ground sign will be the principal indicator to the public that the Project
Site contains a gas station and restaurant. It will be internally illuminated. While drivers
approaching from either direction on Route 7 will see the ground sign as they approach, the
light from the sign will not shed onto adjoining properties.
90. This proposed ground sign will be in front of the gas pumping stations, so as to assist
with its visibility. Its location is depicted on Exhibit 12, sheet SP2C. While it will encroach into
the front yard setback, its encroachment will be no more than the existing ground sign for the
former Roadhouse Restaurant, which will be removed during Project construction. The new
ground sign will be slightly smaller than the former Restaurant ground sign.
91. The appearance and visibility of the new ground sign will be secondary to the other
structures on the property, as depicted in the demonstrative Exhibits 14 and 15. The ground
sign will not inhibit visibility on the highway and will not create a harmful glare or distraction
for drivers. There was no credible testimony offered that the ground sign will be a detriment to
the public welfare.
92. There will also be signs mounted on the northern, southern, and western walls of the
building. Each of these wall signs will display the name of the convenience store. All wall
signs will be below the eaves of the building roof, as depicted on Exhibit 13. Each of these signs
will measure between 12 and 15.7 square feet.
93. A menu board for the proposed restaurant will also be located on the Project Site, at the
rear of the building, which will be out of view of passing motorists. This menu board will be
located immediately next to the drive-through area and will identify the food and beverages
available for purchase via the proposed restaurant drive-through facilities.
iii. Site circulation
94. Two entrance/exit areas for the Project will be available to motorists. See Exhibit 12,
sheets SP1C and SP2C. The curb cut to Route 7 on the northern side of the Project Site is
intended for use by individual motorists who wish to visit the gas pumping stations, restaurant,
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and convenience store. This curb cut will be sufficient in width to accommodate an entrance
and two exit lanes: one for vehicles intending to turn right to the north and one for vehicles
intending to turn left to the south.
95. The second curb cut onto Route 7 will be located south of the building and gas pumping
stations; this southern curb cut is intended to provide a separate access for large trucks, tractor
trailers, and other vehicles wishing to access the diesel pumping stations and the four large
truck parking spaces. This southern curb cut will have two designated lanes, one each for
vehicles entering and exiting the Project Site. See Exhibit 12, sheet SP2C.
96. Providing separate access for trucks and small vehicles contributes to the safety and
circulation on the Project Site. If the gas and diesel pumping stations were located in the same
area, unwanted conflicts would be more likely to occur between those different types of
vehicles.
97. The layout of the gas and diesel pumping stations, as well as the five different parking
areas, provides for sufficient areas for cars, trucks, and other vehicles to drive to and through
the pumping stations, parking areas, and travelled lanes within the Project Site. The parking
spaces and interior travel lanes will be clearly delineated; the pumping stations, while partially
screened from the view of Route 7 motorists, will be located in such a manner as to be easily
identified by drivers desiring to purchase gas or diesel fuel.
iv. Traffic
98. According to records maintained by the Vermont Agency of Transportation (“VTrans”)
and testified to by Applicant’s expert (Ms. Lisius), there were only two reported accidents on
Route 7 in the area of the former Ferrisburgh Roadhouse Restaurant for the period from 2003 to
2007. Mrs. Burdick credibly recalled only one accident during the seventeen years of her
restaurant operation, and recalls that that accident was due to driver error, not Route 7 traffic
congestion or conditions.
99. Traffic along Route 7 in front of the Project Site has been busy, but relatively safe.
VTrans records, as credibly explained by Applicant’s traffic expert, estimate that about 11,100
vehicles pass through the Town on Route 7 on an average day. The highest volume of traffic,
recognized as the “peak hour” of traffic, occurs between 4:30 PM and 5:30 PM on week days.
Applicant’s traffic expert credibly estimated that 1,245 vehicles pass by the Project Site during
that peak hour.
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100. Based upon trip generation tables established by the Institute of Traffic Engineers
(“ITE”) and her own first-hand observations of existing facilities similar to this Project,
Applicant’s expert credibly estimated that 118 vehicles will visit the operating Project during
that same peak hour, which translates into 236 one-way vehicle trips.
101. These estimates of Project peak hour traffic generation are a bit misleading, however,
since Applicant credibly showed that many of the motorists who visit the completed Project
will be “pass-by” motorists. “Pass-by” motorists are those who would not be making a special
trip for the purpose of stopping at the proposed Project, but rather those who would be passing
by the Project Site and choose to stop in. In fact, Applicant’s expert, relying again on ITE data
and her own first-hand observations of similar existing commercial sites, credibly estimated
that up to 63% of the motorists visiting the Project Site would be pass-by motorists. Thus, the
proposed Project is unlikely to generate new vehicle trips on Route 7 during the peak hour of
highway traffic that would exceed 45 vehicles, or 90 one-way trips. We therefore conclude that
the proposed Project will not contribute more than an 8% addition to the existing highest peak
hour of traffic.
102. Even though the Project is not expected to be the source of many new vehicle trips, there
is some concern about the safe and steady flow of traffic past the Project Site (once completed),
especially due to the need of south-bound traffic to stop and make a left-hand turn in order to
enter the Project Site.
103. Applicant has therefore offered to improve Route 7 in the vicinity of the Project Site, so
that an additional lane may be added and striped, eleven feet in width and located between the
two travelled lanes of the highway. After these improvements, southbound vehicles wishing to
enter the Project at either curb cut may queue up in this middle lane for a safe left-hand turn
into the Project, without interfering with the flow of south-bound traffic.
104. Applicant has offered designs for these Route 7 improvements and has committed to
fund such improvements, if it secures all permits for the Project. The highway improvements
are detailed on sheet SP8C of Exhibit 12.
105. The flow of traffic on Route 7 will also be assisted by development of the Project,
thereby making it less likely that large trucks or tractor trailers will use the shoulders of Route 7
for temporary parking. Drivers of large trucks and tractor trailers currently use the shoulders
on either side of Route 7 for parking when they wish to stop to purchase goods or supplies from
21
the convenience store across from the Project Site. See Exhibit 24, slide 3. Once the Project is
constructed and operating, drivers of large trucks and tractor trailers may safely and easily turn
onto the Project Site and use the permanent parking spaces available by the diesel pump
stations.
106. Based upon Applicant’s Project plans and its expert’s traffic impact analysis, VTrans
issued a Letter of Intent and a draft permit to construct the two highway access points and
Route 7 left turn lane improvements, a copy of which was admitted as Exhibit 23.
v. Noise
107. The noise to be generated from the Project Site will generally be lower than, and
therefore difficult to distinguish from, the noises already emanating from the nearby highway
and commercial uses in the HC District. The Project components will not cause noises
decipherable beyond the boundary lines. Rather, the most significant noises generated on the
Project Site will come from the vehicles, particularly large trucks and tractor trailers, that enter
and leave the Project Site from Route 7. With the exception of those visiting vehicles, especially
as they cross over the boundary line to enter the Project Site, no noise will emanate from the
Project Site at a level greater than seventy decibels (70 dBA).
108. The Project-generated noises will not be excessive, especially when measured from the
Project boundary lines. Applicant’s noise expert, Ken Kaliski, offered credible testimony in this
regard, especially in determining that the Project-generated noise, including visiting traffic
noise, will rarely exceed 70 dBA at the property lines.
109. The overall noise level at the Project boundary along Route 7 will likely exceed 70 dBA,
but that is not because of this Project; rather, such noise levels already exist in the vicinity of the
Project. The noise that the Project generates will augment current noise levels produced by
existing traffic patterns in the area, especially as large trucks decelerate to enter adjoining
commercial properties, including the Vermont Gas Co. convenience store and gas station
diagonally across Route 7 from the Project Site.
110. Mr. Kaliski offered a credible summary of his calculations and estimates in his report on
the noise impacts that the Project is likely to generate. A copy of his report was admitted as
Exhibit 27.
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vi. Hours of operation
111. Commercial vehicle traffic, including tractor trailers, flows past the Project Site on a
regular basis, during all hours of the day and night. While commercial traffic is subject to peak
and non-peak hours of operation, traffic operates on Route 7 past the Project Site earlier than
Applicant’s planned opening time of 4:30 AM and after its planned closing time of 11:30 PM.
112. There was no credible evidence presented as to the benefit to the surrounding area or
adjacent neighborhoods of restricting Applicant’s planned hours of operation.
113. Mrs. Burdick credibly testified about receiving deliveries as early as 4:30 AM at the
Project Site when she and her husband operated Burdick’s Restaurant. She also testified about
other commercial businesses in the area (some no longer operating) opening for business as
early as 5:30 AM.
114. These early and late hours of operation for the Project will have a negligible impact on
traffic, since the Project generates few independent trips and gains a majority of its business
from passing motorists. These expanded opening and closing times represent hours of relatively
low traffic volumes on Route 7.
d. Aesthetic components (lighting, landscaping, and site revisions).
115. The Project will use a variety of lighting fixtures, in a variety of lighting locations. While
the light emanating from the Project lighting will make the Project visible from off site, no light
from the Project fixtures will illuminate areas off of the Project Site.
116. As noted above, the proposed ground sign will be internally lit, which will make it
appear similar (although with different lettering) to the internally lit ground sign in front of the
Vermont Gas Co. convenience store and gas station that is diagonally across Route 7 from the
Project Site.
117. Other lighting on the Project Site will use LED bulbs, which will provide a generally
consistent, clear-white light that will illuminate the Project Site but will not create a glow in the
sky, as does the light from conventional light bulbs. Examples of LED lighting were provided
in Exhibit 25, slides 10, 12.
118. LED lighting fixtures provide energy-efficient lighting alternatives to florescent,
incandescent, and other conventional commercial lighting fixtures, at approximately half the
operational cost of conventional lighting fixtures. LED light bulbs do not contain mercury or
23
lead, hazardous components often contained in many other commercial lighting bulbs and
fixtures.
119. The light that emits from all forms of commercial lighting fixtures is measured in foot
candles (“fc”). Applicant credibly showed that its proposed LED lighting fixtures will emit
sufficient light to safely illuminate its Project, but that the LED bulbs to be used will do so at a
much lower fc level than the conventional lighting at other nearby commercial properties. See
Exhibit 25.
120. The light emanating from the LED lighting fixtures on the Project Site will be strongest
under the gas and diesel canopies, ranging from a maximum of 9.7 fc under the gas canopy to
5.5 fc under the diesel canopy. The measured level of light emanating from these and other
Project light fixtures is reduced to 0.0 fc as one travels away from the canopies and building and
towards the Project Site boundaries.
121. Many of the existing commercial properties near the Project Site have bright
conventional lights, some of which are left on throughout the evening, even when the
businesses are closed. These existing lights often cause glare, sometimes at dangerous levels,
for on-coming motorists travelling on Route 7. The lighting fixtures to be installed on the
Project will not cause such glare for passing motorists.
122. Applicant proposes to turn off most light fixtures when the gas station and convenience
store is not operating, but will leave three exterior lights on throughout the night for security
purposes: two lights on the front of the building and one on the rear.
123. No credible testimony was offered that these three exterior lights remaining on for
security purposes will have an adverse impact to the area. In fact, such security lights, though
minimal, appear to provide only a security benefit to the area.
124. Applicant proposes to add significant plantings and landscaping to the Project Site,
including 186 evergreen trees, 162 shrubs, and 12 deciduous trees. These plantings exceed the
minimum required under Bylaws §§ 5.11 and 5.18.
125. Applicant presented detailed landscaping and planting plans for the Project Site.
Exhibit 25, slide 3 provides a list of the plantings and landscaped areas planned for the Project;
sheet 4 of Exhibit 25 provides a depiction of the plantings and landscaping.
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126. The Project Site is also partially screened from Route 7 motorists and their passengers by
the natural lay of the land and a row of evergreens, many over 25 feet tall, on the property
bordering the Project Site to the north.
127. For motorists and their passengers approaching from the south, the Project is on higher
ground and is partially shielded from view, due to this higher elevation. Plantings along the
Project’s southerly border with Route 7 will contribute to this partial shielding.
128. For motorists and their passengers approaching from the north, the Project will not be
visible from the Crossroads and the Village District, which represents the northern adjacent area
of the Town. The existing evergreens on the northerly neighbors’ property will screen the view
of the Project, and bushes and other plantings that Applicant proposes to install and maintain
along the Project’s northern border will contribute to the Project screening.
129. The proposed landscaping and plantings will partially screen the parking areas, vehicles
using those parking areas, and the lower portion of the building and pumping stations from the
view of passersby, until a passerby approaches one of the entrances to the Project and turns to
enter the Project.
130. With the planned landscaping and screening, the visual appearance of the Project,
especially from a size and scale perspective, will be diminished and softened.
Conclusions of Law
Our review in this appeal is directed by (1) the application and supporting materials
submitted in support of the proposed Project; (2) the Zoning Bylaws that apply to this
application; and (3) the legal issues that have been preserved for our review by Applicant and
Cross-Appellants in their respective Statement of Questions. V.R.E.C.P. 5(f) (“an appellant may
not raise any question on the appeal not presented in the statement [of questions] as filed”).
When conducting a de novo hearing on an appeal from a municipal land use determination,
this Court is obligated to hear the evidence presented anew, and “shall apply the substantive
standards that were applicable before the tribunal appealed from.” V.R.E.C.P. 5(g). Our
review, detailed below, is outlined with these directives in mind.
I. Preliminary Legal Issues (Cross-Appellants’ Questions 1–5)
We are thankful that the parties have somewhat simplified our initial analysis with their
stipulation concerning the division of the Burdick’s remaining property and the merging of the
newly-created lots with the adjoining lands of the Llonases and Allandra Farm, Inc., as is
25
reflected in the post-trial plans and approvals, stipulated into our evidentiary record here as
Exhibits 12A and 12B. These exhibits show that the Project’s physical, above-grade components
are all located on the Project Site and are all sited in the HC District.14
Any development proposed in the HC District must secure approval under the
applicable conditional use regulations. Bylaws § 4.4(B). Cross-Appellants questioned in both
the prior appeal and this appeal whether Applicant’s proposed Project is even entitled to be
considered for approval as an authorized use in the HC District. We concluded that Applicant,
which proposes to construct a combination gas station, convenience store, and restaurant with
drive-through facilities, is authorized to seek conditional use approval for the Project as a
“gasoline station,” a “restaurant,” and “retail store,” as those terms are used in Bylaws §§
4.4(B)(9), (19), and (20), respectively. In re Champlain Oil Co., No. 200-10-09 Vtec, slip op. at 6–9
(Vt. Super. Ct. Envtl. Div. July 16, 2010) (Durkin, J.). Both at trial and in their post-trial
memoranda, Cross-Appellants renewed their challenges to the consideration of Applicant’s
Project components as uses for which conditional use approval may be sought. We found no
facts received at trial that convinced us to revisit and revise the legal determinations in our prior
Decision and Entry Order. We therefore conclude that our prior rulings control these
preliminary legal questions, and we reject the assertion contained in Question 5 of Cross-
Appellants’ Statement of Questions that the HC District does not authorize drive-through or
“Convenience, Retail” facilities as permitted conditional uses. (Cross-Appellants’ Statement of
Questions 1, filed July 26, 2011.) We conclude that the uses of the proposed Project are
permissible in the HC District, subject to conditional use approval. Below, we consider whether
Applicant’s Project, as currently proposed, is entitled to approval under the state enabling
statute and the Bylaw provisions that govern conditional use review and approval.
First, however, we address several other preliminary legal issues that Cross-Appellants
raise in their Statement of Questions. We address these next, because any one or combination of
these Questions could prove fatal to the pending application.
In Question 1, Cross-Appellants ask whether “the new proposal exceed[s] or violate[s]
the terms of this Court’s Remand Order in Docket No. 200-10-09 Vtec” thereby prohibiting
14 The northeast corner of the Project Site lies, in part, in the RA District. However, no improvements are
proposed for this portion of the Project Site. We also recognize that Cross-Appellants assert that the
proposed wastewater and stormwater treatment systems should be viewed as causing development
activities to occur on adjoining lands, which happen to be located in the neighboring Conservation
District. We address Cross-Appellants’ assertions below.
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review and approval “until a new application is filed, subject to statutory notice?” Id. at 1. In
our September 8, 2010 Entry Order, we specifically “REMANDED the pending application back
to the Ferrisburgh ZBA, conditioned upon Champlain Oil amending its application so that new,
undersized, and nonconforming lots are not created by its proposed development plan.” See In
re Champlain Oil Conditional Use Permit Application, No. 200-10-09 Vtec, slip op. at 1 (Vt.
Super. Ct. Envtl. Div. Sept. 8, 2010) (Durkin, J.) (emphasis in the original).
We cannot conclude that Applicant violated this directive when it sought approval for
its revised site plan since the revisions are minor. The Project that Applicant proposed in its
revised site plans is nearly identical to that in its original plans; the only material changes made
were to conform to the Court’s directive that no new lots be created that did not conform to the
minimum size requirements of its host zoning districts. The current Project Site is slightly
smaller than that originally proposed, and the stormwater and wastewater treatment systems
were realigned slightly, so that all Project components are now located on lands entirely within
the HC District; the prior design proposed that components of the wastewater and stormwater
treatment systems would be located in the Conservation District.
An applicant is afforded the ability to make minor changes to its proposed project
without having to begin the application process anew. In cases where the applicant does not
change the type of approval sought, this discretion merely affords the applicant an opportunity
to address concerns expressed by neighbors and regulators without unnecessarily returning to
the first stage of the land use review process.
Our Supreme Court has concluded that amendments to a Project plan may be made to
accommodate Project deficiencies, especially when an applicant requests the same type of
approval in its amended application. In re Sisters and Brothers Inv. Grp., 2009 VT 58, ¶21, 186
Vt. 103. The Supreme Court opined that, were a new application required in such situations,
“site-plan review would become a procedural ping-pong match” that is unnecessary and would
lead to repetitious appeals to this Court. Id. In fact, the Supreme Court suggested that
demanding a new application when revisions are made to a site plan that do not change the
approval requested appears to be a “heads-I-win-tails-you-lose approach” to land use litigation.
Id. We cannot approve such an approach and therefore decline to adopt the legal theories
posed in Cross-Appellants’ Question 1. We conclude that Applicant did not exceed or violate
27
the terms of this Court’s remand order of September 8, 2009 and therefore answer Cross-
Appellants’ Question 1 in the negative.
By their Question 2, Cross-Appellants ask whether Applicant is proposing additional
“Land Development” on adjoining lands located in the Conservation District because its
proposed stormwater treatment system may cause stormwater to flow onto those adjoining
lands. Cross-Appellants’ Statement of Questions, filed July 26, 2011. Cross-Appellants offer no
precedent for a definition of land development that includes post-treatment stormwater flows.
A main defect in their argument is their failure to acknowledge the current reality: stormwater
already flows from the Project Site, following the existing lay of the land, towards the adjoining
Class II wetlands and eventually towards Little Otter Creek. Thus, construction of the Project
will not create a new flow of stormwater. In fact, due to the proposed on-site treatment system,
stormwater will be collected on site, detained, and treated before leaving the completed Project
Site. Once constructed, the Project will restrict off-site stormwater flows to significant storm
events and will prevent stormwater from reaching adjoining lands until fully treated by the
proposed system. Applicant’s proposed stormwater treatment system will reduce the flow of
stormwater off site and limit its ability to carry harmful sediments. We cannot conclude that the
proposed Project, including its stormwater treatment system, will cause development on
adjoining lands. We therefore must also answer Cross-Appellants’ Question 2 in the negative.
Cross-Appellants’ Question 3 appears to be moot, given the parties’ subsequent
resolution of Cross-Appellants’ challenge to Applicant’s boundary line adjustment proposals.
To the extent that Opponents’ Question 3 inquiry is premised upon their assertion that “Land
Development” is occurring on adjoining lands by virtue of stormwater flows, we have
concluded otherwise, as noted in our above analysis of their Question 2. Due to Applicant’s
changes to the site plan that locate all Project components in the HC District, we no longer see
that the proposed Project contemplates the creation of a lot that does not comply with the
minimum lot size requirements of any zoning district, including the Conservation District. We
therefore must answer Cross-Appellants’ Question 3 in the negative.
We similarly answer Cross-Appellants’ Question 4 in the negative, as we find that the
proposed Project Site conforms to the minimum lot size requirements for the RA District (5
acres). See Bylaws § 4.2(C)(1).
28
II. Performance Standards (Cross-Appellants’ Question 6)
Cross-Appellants, in their Question 6, ask whether the proposed Project conforms with
the applicable Bylaw Performance Standards, particularly those regulating noise and lighting,
which are codified in Bylaws Article VIII. Cross-Appellants begin their challenge here by
questioning the admissibility of a written report provided by Applicant’s expert on noise, Mr.
Kaliski. The Noise Impact Study prepared by Mr. Kaliski (Exhibit 27) was admitted over Cross-
Appellants’ objection, and Cross-Appellants have repeated their challenge to this Study’s
admissibility in their post-trial filings. We remain convinced that Mr. Kaliski provided a
sufficient foundation and supporting testimony to render his Study helpful to the Court’s
analysis. See V.R.E.C.P. 2(e)(1) (directing that the “Vermont Rules of Evidence shall be followed
in all manners [tried before the Environmental Division], except that evidence, not privileged,
that is not admissible under the Rules of Evidence may be admitted in the discretion of the
[trial] court if it is of a type commonly relied upon by reasonably prudent persons in the
conduct of their affairs”).
Mr. Kaliski credibly testified that the methodologies he used to estimate the Project-
generated noise and its impacts have been used by many professionals in his field for many
years. Noise levels and their impacts can be measured on several levels, including sound and
air pressure, and their measurement can reference maximum sound and average sound. Mr.
Kaliski’s Study (Exhibit 27) provides a summary of his testimony that the Court found helpful
during its deliberations.
Cross-Appellants did not offer much credible evidence to contradict the Kaliski analysis;
they chiefly relied upon their belief that the Kaliski Study failed to meet the minimum reliability
standards established by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993) and adopted by the Vermont Supreme Court in State v. Brooks, 162 Vt.
26 (1993). We remain convinced that the Kaliski Study evidenced an analysis that is reliable and
based upon methods of analysis often used and highly respected throughout that area of
expertise. We therefore decline Cross-Appellants’ invitation to reverse our trial determination
to admit Exhibit 27 into evidence.
Through both his Study and trial testimony, Mr. Kaliski offered convincing evidence
that the proposed project will not cause excessive noise at the project’s boundary lines and that
the noise levels generated by the Project will not exceed 70 dBA at the project’s boundary lines.
29
We therefore conclude that the Project as proposed conforms to the noise Performance
Standards contained in Bylaws § 8.1
The lighting for the proposed Project, described above in our Findings ¶¶ 116–124, will
not cause glare or the shedding of light past the Project boundaries. Cross-Appellants offered
no credible evidence that the proposed Project will cause a nuisance to other property owners15
or impair the vision of drivers passing by the Project Site. Applicant proposes to use LED
lighting fixtures throughout its Project, which will provide site specific lighting, at a much
reduced cost, without the inclusion of hazardous materials that are found in most conventional
commercial lighting. Additionally, the three lights Applicant proposes to maintain during non-
business hours will improve security in the neighborhood without creating a nuisance for
neighboring property owners. For all these reasons, the Court concludes that the Project as
proposed will not conflict with the Performance Standards for Glare, Lights and Reflection
contained in Bylaws § 8.2.
The final Performance Standard—Bylaws § 8.3—prohibits “fire, explosive or safety
hazard[s] . . . [on a development that will significantly endanger] other property owners or
which results in a significantly increased burden on municipal facilities.” No fires, safety
hazards, explosives, or explosions are proposed for the Project, and the Court received no
evidence suggesting that the Project as proposed would cause such hazards. We therefore
conclude that the Project as proposed conforms to Bylaws § 8.3.
For all these reasons, we respond to Cross-Appellants’ Question 6 in the affirmative; that
is, we conclude that Applicant has met its burden in demonstrating that the Project, as
proposed, conforms to the Performance Standards of Bylaws Article VIII.
III. Project Signs (Cross-Appellants’ Question 7)
Cross-Appellants’ Question 7 questions whether “the signage proposed for the project
violate[s] Articles V and VII of the zoning ordinance.” (Cross-Appellants’ Statement of
Questions, filed July 26, 2011.) Multiple signs on commercial developments are allowed in the
HC District, provided that the proposed signs conform to the general and specific sign
restrictions of Bylaws Article VII. Bylaws §§ 7.1, 7.2, 7.7. Where an applicant, as in this case,
15 In fact, Cross-Appellants offered no testimony from neighbors who speculated that the Project lighting
would cause a nuisance, nor did they offer trial testimony from any neighbor or Cross-Appellant on this
or any other legal issue challenged in this appeal. The only trial testimony offered by Cross-Appellants
came from their expert witnesses; the Court did not hear from neighbors or owners of nearby properties
as to their individual concerns about the Project.
30
proposes signage that in the aggregate exceeds fifty square feet, the proposed signs may only be
approved if they are found to also conform to the applicable conditional use review criteria.
Bylaws § 7.7. For all the reasons detailed below, we conclude that the signs proposed for the
Project conform to Bylaws Article VII, including the applicable conditional use criteria.
Under the Bylaws, no permitted signs may “be a detriment to public safety or welfare,”
“impair public safety, traffic flow or roadway visibility,” or “restrict clear vision between a
sidewalk and street.” Bylaws §§ 7.1(A), 7.2(A), 7.2(B). Additionally, permitted signs must have
characteristics placing them “in harmony with the orderly development of the district” and as a
“presence secondary to the principal structure of the property.” Bylaws §§ 7.1(B), 7.1(C).
Applicant proposes to remove the existing ground sign for the former Ferrisburgh Roadhouse
Restaurant and replace it with a ground sign that is slightly smaller (by a half square foot), of
the exact same height, and no closer to Route 7. The new proposed ground sign will be an
aesthetic improvement upon the existing sign and, once the Project building, pumping stations,
and canopies are constructed, the proposed ground sign will be similar to and in harmony with
other internally illuminated signs in the neighborhood. The ground sign and other Project signs
will appear secondary to the Project structures and will assist travelers in identifying that the
Project offers gas and diesel sales, a restaurant, and convenience store services. Due to their size
and secondary appearance on the Project Site, none of the Project’s signs will impair public
safety, welfare, traffic flow, or roadway visibility. Since the proposed signs are not located
between any sidewalk and adjoining streets, they do not restrict clear vision in those areas.
The ZBA approved the replacement of the existing ground sign with the new ground
sign, conditioned upon the new sign “be[ing] no closer to US Route 7 than the preexisting sign
(still standing) identifying the Roadhouse Restaurant, the last commercial enterprise to operate
on the subject parcel.” In re Champlain Oil Co., Inc. Conditional Use Application, No. 09-36,
Findings of Fact, Conclusions of Law, and Decision, at 8 (Ferrisburgh ZBA Sept. 16, 2009). No
party appealed that specific condition of the ZBA’s approval, although we complete our
analysis of the proposed signs’ compliance with Bylaws Articles V and VII, due to the general
challenge presented in Cross-Appellants’ Question 7.
The remaining provisions of the sign standards addressing traffic, hazards, safety, and
obstructions (Bylaws §§ 7.2(C), (D), and (E)) do not apply to the proposed signs for this Project.
31
The ground sign will advertise gasoline and diesel sales, as well as the proposed
restaurant. Three relatively small oval wall signs, each between 12 and 15.7 square feet, will
advertise the convenience store and be located below the roof line on the northern, western
(front), and southern walls of the proposed building. There will also be a menu board behind
the building to advise drive-through customers of what they may order from the restaurant.
The menu board will not be visible from off site, including to the vehicles traveling along Route
7. We regard the menu board as a sign, because it fits the definition for a sign established by
Bylaws § 2.2.
These signs will have a combined surface area in excess of fifty square feet; we estimate
that the aggregate surface area of all signs, including the drive-through menu board, to total just
under ninety square feet. Thus, we have included the proposed signs in our analysis of whether
the proposed Project is entitled to conditional use approval pursuant to Bylaws § 9.4. That
review is detailed below in the next section. But having concluded, as outlined below, that the
proposed signs are entitled to conditional use approval, we further conclude that the Project
signs as proposed conform to Bylaws Article VII.
One final legal issue remains concerning the proposed signs and Cross-Appellants’
objection to them in their Question 7. Portions of Bylaws Article V (General Bylaws) provide
certain restrictions on gasoline and service stations, including on where a ground sign may be
located in relation to the pumping stations. See Bylaws § 5.11(H) (“[n]o signs shall extend
beyond the pumps, nor exceed eighteen feet in height”). The ground sign is eighteen feet tall,
and therefore conforms to the second requirement of this Bylaw. However, that sign is located
in front of the gasoline pumping stations and therefore is in conflict with the first requirement
of Bylaws § 5.11(H).
The ground sign is a replacement for the preexisting restaurant sign. The location
encroaches into the front yard setback, but it does so in no greater manner than the ground sign
that now exists on the property. The alignment of the proposed ground sign is subordinate to
the Project building, gas pumps, and canopies. The existing sign was more prominent in
relation to the former Roadhouse Restaurant. As a replacement to the existing sign, the
proposed sign is an improvement, and its non-conformity has been reduced, albeit only to the
extent that a portion of the slightly larger existing sign encroaches into the front yard setback
and the smaller replacement sign reduces this encroachment.
32
Nonconforming uses and noncompliant structures may be permitted “indefinitely,”
according to Bylaws § 9.5, but may only be changed if approved by the ZBA. Bylaws § 9.5(A).
The ZBA’s approval, and hence this Court’s approval on appeal, may only be given when a
determination is made that the change “is of the same or of a more conforming nature.” Id. For
the reasons stated above, we conclude that the replacement of the existing ground sign with the
proposed ground sign is a change that is permitted under Bylaws § 9.5(A).
We therefore answer Cross-Appellants’ Question 7 in the negative: the proposed signs
do not violate the applicable provisions of Bylaws Articles V and VII.
IV. Conditional Use Standards (Cross-Appellants’ Questions 8, 9, 10 & 11)
We have previously concluded that the uses Applicant proposes for its Project may be
considered for conditional approval. See In re Champlain Oil Co., No. 200-10-09 Vtec, slip op.
at 6–9 (Vt. Super. Ct. Envtl. Div. July 16, 2010). In fact, the only uses permitted in the HC
District are those that obtain conditional use approval. Bylaws § 4.4(B). The remainder of
Cross-Appellants’ questions challenge whether the Projects meets the Town’s conditional use
standards. As we embark upon an analysis of whether the uses proposed for this Project
conform to the conditional use standards of Bylaws § 9.4, we additionally consider —as noted
above—the proposed signs, since their aggregate size exceeds fifty square feet and therefore
requires conditional use approval, pursuant to Bylaws § 7.7(B). Cross-Appellant’s Questions 8,
9, 10, and 11 overlap in content to such an extent that we address them simultaneously by
analyzing all aspects of the conditional use standards applicable in this case.
a. General Standards.
The Town has chosen to enact conditional use criteria, as authorized by the enabling
legislation now found in 24 V.S.A. § 4414(3),16 which requires that the “general standards
[adopted by the municipality] shall require that the proposed conditional use shall not result in
an undue adverse effect” on several enumerated criteria. Id. (emphasis added). Bylaws § 9.4(A)
requires in its iteration of the Town’s general standards for conditional uses that “the proposed
use will not “adversely affect” six numbered criteria. These two italicized phrases are terms of art
16 In citing to the enabling provisions for conditional use review, both Applicant and Cross-Appellants
cite to 24 V.S.A. § 4407. But §§ 4404 through 4409 were repealed by the Permit Reform Act of 2004. That
Act reorganized the municipal and regional planning provisions of title 24, relocating the conditional use
enabling provisions to § 4414(3). We are not sure why the parties refer to the former law; we refer to the
applicable provisions of the current law for guidance in our analysis. But as noted below, these
distinctive phrases may have no practical difference.
33
in land use regulation and litigation. The former has been the subject of much discussion by the
former Environmental Board, this Court, and the Vermont Supreme Court and is often referred
to as “the Quechee test,” a named derived from the review of a specific permit amendment
application for a development in Quechee, Vermont. See Re: Quechee Lakes Corp., Nos.
3W0411-EB and 3W0439-EB, Findings of Fact, Conclusions of Law and Order, at 17 (Vt. Envtl.
Bd. Nov. 4, 1985). This Court provided an overview of the history and terms of the Quechee
test in its merits decision on a Middlebury-area development. See In re Eastview at Middlebury,
Inc., No. 256-11-06 Vtec, slip op. at 14–15 (Vt. Envtl. Ct. Feb. 15, 2008).
Many municipalities continue to employ the “adversely affect” standard that was
required by the prior version of the enabling law, codified in the former 24 V.S.A. § 4407(2).
The Supreme Court has held “that the adverse effect test must be applied reasonably to prohibit
only substantial and material adverse effects.” In re Miller, 170 Vt. 64, 69 (1999) (citing In re Walker,
156 Vt. 639, 639 (1991) (mem.)) (emphasis added). While the parties here spent much time, both
at trial and in their post-trial memoranda, debating the proper application of either one of these
standards, we conclude that, particularly because of the precedent established by the Supreme
Court, the two terms represent different terms without much distinction.
Alternatively, the Court in Miller helped define the term often used in municipal
regulation, while the Quechee test provides a helpful foundation for determining when a
project’s impact may be adverse in the context of a state land use (Act 250) permit application.
The former Environmental Board defined an adverse use by asking whether “the proposed
project [is] in harmony with its surroundings—will it ‘fit’ the context within which 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). The Board further offered
that a development that would be “unfavorable, opposed, [or] hostile” should be deemed
adverse. Id. at 17 (quoting Re: Brattleboro Chalet Motor Lodge, Inc., No. 4C0581-EB, Findings
of Fact, Conclusions of Law and Order, at 6 (Vt. Envtl. Bd. Oct. 17, 1984)).
In addition to this definition of the term “adverse”, the Supreme Court has determined,
in the context of a municipal land use application, that only those projects that are deemed to
have a substantial and material adverse effect shall be denied conditional use approval. In re
Walker, 156 Vt. at 639. We therefore employ portions of both the Quechee and Miller
34
definitions in our analysis of the proposed Project and its impacts on the General Standards
enumerated in Bylaws § 9.4(A).
1. Capacity of existing or planned community facilities.
Under Bylaws § 9.4(A)(1), we conclude that the proposed Project will not have an
adverse effect on the capacity of existing or planned community facilities. The Bylaws define a
community facility as “[a]ny meeting hall, place of assembly, museum, art gallery, library,
school, church or other similar type of establishment which is not operated primarily for profit,
excluding government facility.” Bylaws § 2.2. Cross-Appellants assert that the Project will
adversely affect community facilities generally, including area highways. We disagree.
Applicant has incorporated and will finance modifications to Route 7 that will ease the flow of
traffic past the Project Site. Much of the traffic that will use the Project will be from vehicles that
are already passing by the Project for other purposes; the new traffic that the Project generates
will represent a small fraction of the average of 11,100 vehicles that already pass the Site daily
along Route 7. The credible testimony did not reveal any existing or planned community
facilities that would be impacted by this Project in any distinguishable or incremental way. We
conclude that the Project’s impact on existing or planned community facilities will not be
adverse.
2. Character of the area affected.
As detailed in our Findings ¶¶ 19–39, we conclude that the proposed Project is not
significantly larger than other commercial properties in the area. It will provide services much
like the services already provided by the Vermont Gas Co. facility across Route 7 and the gas
station/convenience store just to the north of the Village District. The negligible impact of these
existing commercial operations upon the character of the area contributes to our conclusion that
the proposed Project, similar in nature, will not have an adverse impact upon the character of
the area affected.
The Project’s proposed signs are similar to the signs at these existing commercial
establishments; the proposed signs will be secondary to the other Project structures and will
appear as such. For all these reasons, we conclude that the Project complies with the Bylaws
§ 9.4(A)(2); it will not adversely impact the character of the area affected.
3. Traffic on the roads and highways in the vicinity.
Applicant has incorporated and will finance modifications to Route 7 that will ease the
flow of traffic past the Project Site. Much of the traffic that will use the Project will be from
35
vehicles that are already passing by the Project for other purposes; the new traffic that the
Project generates will represent a small fraction of the average of 11,100 vehicles that already
pass the Site daily along Route 7. The appearance and visibility of the new ground sign will be
secondary to the other structures on the property, and will not inhibit visibility on the highway,
create a harmful glare or distraction for drivers, or otherwise lessen the safety of the streets.
Neither the wall signs below the eaves of the building roof nor the drive-through menu sign in
the back of the building will impact traffic.
We conclude that the Project and all its components, including the proposed signs, will
not have an adverse impact under § 9.4(A)(3), since it will not adversely impact traffic on the
roads and highways in its vicinity.
4. The Town Plan and Bylaws in effect.
We now turn to whether the Project adversely affects the Town Plan and Bylaws. The
parties spent much time at trial and in their post-trial memoranda discussing the ways the
Project and its proposed uses conform or fail to conform to the development standards
discussed in the Town Plan and Bylaws, pursuant to the General Standard contained in
subsection 9.4(A)(4). This devotion of time is appropriate, as this is perhaps the most significant
issue in our conditional use analysis. By their Question 9, Cross-Appellants assert that the
proposed Project cannot receive approval because it does not conform to aspects of the Bylaws
and Town Plan. See Bylaws § 4.4(A); Town Plan § 4.3(G). Before we address whether the
Project actually conforms to or contradicts those purpose provisions, we must address whether
these—or for that matter, any other purpose provisions in the Bylaws or Town Plan—may be
read as a regulatory restriction. We conclude that when a zoning bylaw or town plan provision
consists only of aspirational language, it does not impose a regulatory restriction, even though
purpose provisions in zoning bylaws provide helpful context and direction on what the
regulatory provisions are intended or planned to accomplish. See In re Rivers Development,
LLC, Nos. 7-1-05 Vtec and 68-3-07 Vtec, slip op. at 10 (Vt. Super. Ct. Envtl. Div. Jan. 8, 2008)
(Durkin, J.) (stating that regulatory language directing what a project “should” include or
consider is aspirational and not mandatory in nature).
Much of land use litigation considers the limits of the control a government may exert
over landowners’ future use of their property. Our Supreme Court has directed that since land
use regulations are in derogation of private property rights, they “must be construed narrowly
36
in favor of the land owner.” In re Toor & Toor Living Trust NOV, 2012 VT 63 ¶9 (citing In re
Appeal of Weeks, 167 Vt. 551, 555 (1998) & In re Vitale, 151 Vt. 580, 584 (1989)). One
interpretive tool for following the directive repeated in Toor, Weeks, and Vitale is to require
that regulatory language used to evaluate a property owner’s proposed development provides
“sufficient conditions and safeguards” to guide applicants and decision makers on how the
proposed project is to be judged. Town of Westford v. Kilburn, 131 Vt. 120, 125 (1973). Even
though the precedent announced in Kilburn is nearly forty years old, the Supreme Court in
Toor cited to its precedent approvingly. Toor, 2012 VT 63, ¶9.
Regulatory language that directs what “should” occur in a particular area is aspirational.
Such language, without more specific direction, cannot provide the mandatory standards that
are required for regulatory provisions as directed by the Toor, Weeks, and Kilburn Courts. See
also 24 V.S.A. § 4303(26) (stating that “‘[s]hould’ means that an activity is encouraged but not
mandated”). Nevertheless, we decline to conclude, as Applicant suggests, that the aspirational
language in the Bylaws or Town Plan must be ruled invalid or unconstitutional. Aspirational
language in the Bylaws and Town Plan provides a helpful context for the Town’s desires for
future development. But such aspirational language, while helpful, does not define the
mandatory requirements for development to be approved in the HC District.
We therefore must conclude that the purpose provisions in the introductory paragraph
of Bylaws § 4.4(A) and the Town Plan’s instruction to limit development along Route 7 in the
vicinity of the Project Site to “small-scale” uses “typical of a 19th century highway crossroads
area” do not establish regulatory standards specific enough to judge the proposed Project.
Town Plan § 4.3(G).
Before we leave the discussion of purpose provisions and their import, we note that both
parties, not surprisingly, most often cite to the portions of the purpose provision for the HC
District that seem to favor their respective argument. In our analysis, we read the purpose
provision in its entirety, as the Supreme Court has repeatedly directed. In re Pierce Subdivision
Application, 2008 VT 100, ¶ 24, 184 Vt. 365 (citing In re Handy, 171 Vt. 336, 348-49 (2000)) (a
reviewing court should “consider the entire ordinance when evaluating whether it provides
sufficient guidance to a decision-making body”). The Purpose subsection for the HC District
37
provides supportive language for both the Applicants and Cross-Appellants. In its entirety, the
Purpose subsection suggests that:17
It is the primary policy of this district to provide an area to serve highway
oriented businesses and highway uses. The size of the commercial uses should be
restricted to protect the residential character and traffic access in this and
adjoining districts. It is recommended that access to all highway commercial areas
be limited in number, if practical, by use of multi-lot access roads, to promote
safety and to ease traffic flow on public roads. A minimum lot size of two (2) acres
is required for these areas.
Bylaws § 4.4(A).
The proposed Project establishes businesses (gas station, convenience store, and
restaurant) that will serve the highway-oriented travelers that pass through the HC District.
The impact of the proposed Project, especially when considering the screening effect of the
landscaping, plantings, and lighting Applicant proposes, is similar to the existing commercial
businesses that occupy many of the properties in the HC District; its size and access points will
not negatively impact the residential character in this or the adjoining Village District. In fact,
similar facilities exist to the south and north of the Village District and have not been shown to
negatively impact the residential character of the area.
Interestingly, although this Purpose subsection recommends that the size of commercial
uses should be “restricted” and highway accesses be “limited,” Bylaws § 4.4(A), the Bylaws
contain no specific provisions that effectuate these stated purposes. In the absence of those
specific provisions, we can only conclude that while the Town and its inhabitants have stated
these desires for land uses in the HC District, they have not yet chosen to implement those
desires in the regulatory portions the Bylaws. We are left to wonder how to judge whether a
proposed commercial use is too large and whether any new highway access points are
“practical.” The phrase from Town Plan § 4.3(G) that suggests that “only small-scale
commercial enterprises and mixed uses typical of a 19th century highway crossroads area” be
authorized in the Town’s highway commercial areas is not repeated or defined in Bylaws § 4.4
governing the uses allowed in the HC District. In the absence of these specific standards in the
17 We also include this analysis of the Project’s conformance to the purpose provisions for the HC District
because we are directed to do so in connection with our determination of whether the Project is entitled
to conditional use approval. Bylaws § 9.4 provides, in part, that conditional use review “shall specifically
include consideration of the stated purpose of the district in which the proposed use is to be located.” Id.
Our review here is also conducted for that purpose.
38
Bylaws, we are left with the character of the existing area to guide us in what has been
permitted in the HC District.
Cross-Appellants often characterized the proposed Project as a “suburban strip mall”
type of development. We disagree. This term appeared to be used to refer to the Project
derisively, although little definition was offered for the term. From the Court’s experience, the
term “suburban strip mall” development has often been used to refer to a development that
hosts multiple retail and commercial uses in a long, single-story facility, usually on the outskirts
of a suburban area, and often criticized for its aesthetic deficiencies and for encouraging the
sprawl of development into less developed areas. The Applicant’s Project has none of these
attributes or appearances. It does not have the appearances of a suburban strip mall; it is
situated in a zoning district established to serve highway-oriented businesses, in an area
already developed with such businesses. Applicant’s suggested improvements to Route 7 will
ease the flow of highway traffic past the Project. The Project Site complies with the minimum
lot size requirements for the HC District. Given all these attributes, we conclude that the
proposed Project complies the with the general purpose provisions for the HC District
As our Findings detail, the Project complies with all the applicable dimensional
requirements and other General Bylaw provisions. See Bylaws § 4.4(C) and Article V. We also
conclude that the proposed Project is in conformance and not in conflict with the Purposes
established for the HC District.
In reviewing any possible material and substantial adverse effects on Town Plan
provisions, the parties focused attention upon the Land Use Areas and Policies provisions
relating to the Highway Commercial and Civic Center Areas. Town Plan §§ 4.3(G), (H). These
provisions note that a “large modern gas station” is already operating in the North Ferrisburgh
section of the Highway Commercial Areas. Id. There was no testimony that this already
existing facility, which is similar to the proposed Project, has had any adverse impact upon that
area or the adjoining Civic Center Area. There was also no testimony offered that the Vermont
Gas Co. gas station and convenience store, located across Route 7 from the proposed Project and
just a short distance from the Civic Center Area, has had any adverse affect upon its host or
adjoining zoning districts. From these illustrations, we cannot discern that the proposed Project
will have an adverse affect upon the Town Plan and the goals it embodies.
39
Cross-Appellants’ expert, Ms. Vissering, did a commendable job of emphasizing the
Plan’s stated purpose for the Highway Commercial Areas, specifically that:
All uses in this area should be conditional, and include only small-scale
commercial enterprises and mixed uses typical of a 19th century highway
crossroads area, with varied lot sizes, landscaping and setbacks such that views
of open lands behind may be obtained. Infrastructure is limited in these areas.
Town Plan § 4.3(G). We note that Applicant’s proposed development is subject to
conditional use review and results in varied lot sizes that still maintain a significant parcel: the
resulting 179± acre parcel to be maintained by Allandra Farm Inc. While the view of these
currently open lands will be partially obscured by the proposed Project, views of the Allandra
Farm land will remain from several vantage points.
Cross-Appellants, principally through Ms. Vissering and her testimony, emphasized the
discord between what the proposed Project represents and what the Town Plan describes as
“small-scale commercial enterprises and mixed uses typical of a 19th century highway
crossroads area.” Id. We have difficulty interpreting this portion of the Town Plan, since it
appears to conflict with the development that the Town has already allowed to occur in its
Commercial Highway Areas.18 As noted above, this portion of the Town Plan does not provide
mandatory language or guidance specific enough to be imposed as law, and the Bylaws lack
any specific guidance implementing the Town Plan’s language.
The Town Plan notes that “the visual character of this entrance to the town [is a] concern
that should be addressed by the town’s regulations to maintain historic character.” Town Plan
§ 4.3(G). The developments that have been allowed to occur in the Highway Commercial
Areas, as well as an absence of specific standards in the Bylaws that would impose these
restrictions, make this Court question the weight and effect of this stated, but unattained goal to
turn the developmental clock back more than one hundred years. We are at a loss to determine
how this term may be implemented, without specific standards, definitions, or commercial
examples.
The proposed Project will provide a mix of commercial services. While it is larger than
some existing commercial properties, it will not be larger, either in retail space or parking area,
18
For example, while Mailloux’s Honey Gardens store might be “typical of a 19th century highway crossroads area,”
we doubt that businesses such as Mid-State Sports, the Dock Doctors, Vermont Energy Co. gas station and
convenience store, the Sky View Motel, Eriksen’s Marine, and BC Motorsports, and the large modern gas station in
the North Ferrisburgh section of the Highway Commercial Areas could be classified as such.
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than some other existing businesses. Applicant has done a commendable job of designing
landscaping and planting in excess of what the Bylaws require; the landscaping and plantings
will screen the project for most Route 7 travelers, and the only clear view of the Project will
emerge when a motorist commits to entering the Project Site.
For all these reasons, we conclude that the proposed Project, including the proposed
signs, will not have a substantial and material adverse effect upon the Town Plan and existing
Bylaws. We therefore conclude that the Project conforms to Bylaws § 9.4(A)(4).
5. Utilization of renewable energy resources.
Applicant proposes to use LED bulbs and fixtures for the Project lighting, which will
offer sufficient lighting while using reduced energy resources. The proposed lighting will
provide sufficient illumination under the pumping canopies and inside the building, but will
not produce unnecessary glare or shed light beyond the property boundaries. The project
therefore is in conformance with the General Standards contained in Bylaws § 9.4(A)(5).
6. Appropriate use or development of adjacent properties.
The project will not interfere with the continued use of adjacent properties. The view of
the Project will be screened by Applicant’s plantings and the existing evergreens on the
northern neighbor’s property. Applicant has orchestrated the transfer of the Burdick’s
remaining land to a nearby farming operation, thereby fostering that use and allowing for
adjacent lands to remain undeveloped, subject to the desires of that owner and the Town’s
future development determinations. No stormwater or wastewater will flow from the Project
Site onto adjoining lands without first being treated, pursuant to the applicable ANR permits.
We cannot discern an adverse impact upon the use or development of adjoining lands. We
therefore conclude that the Project as proposed conforms to Bylaws § 9.4(A)(6).
b. Specific Standards.
Subsection (B) of the conditional use provisions of the Bylaws authorizes the ZBA, and
this Court on appeal, to “impose . . . other conditions found necessary to protect the best
interests of the surrounding property, the neighborhood or the town as a whole.” Bylaws
§ 9.4(B). The conditions may refer to (1) minimum lot size; (2) distance from adjacent or nearby
uses and height or lot coverage that may obstruct natural, historic or agricultural lands; (3)
environmental impacts detectable at the development’s boundaries that are obnoxious or
excessive; (4) minimum off-street parking and loading facilities; (5) landscaping and fencing; (6)
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design and location of structures and service areas; and (6) size, location and design of signs.
Id. We address these Specific Standards in turn.
We first note that this project has been in a planning and review stage for several years.
The ZBA imposed fifteen19 conditions on its approvals of the Project, both in 2009 and 2011,
eight of which Applicant has challenged in this appeal. Whether those challenges are successful
is discussed in the section below. But what is indisputable now is that any permit that may
issue at the conclusion of these proceedings must incorporate the conditions imposed by the
ZBA that Applicant chose not to contest.
Our prior analysis already includes many of the legal issues raised in the Specific
Standards contained in Bylaws § 9.4(B). We therefore offer the following summary, relying
upon the more detailed analysis above.
The Project Site exceeds the minimum lot sizes for its host zoning districts. The
development of this Project will result in the majority of the land now held by Mrs. and Mr.
Burdick being merged with the land belonging to an adjacent farming operation. We see no
need to impose conditions on the project concerning lot size, beyond those that Applicant has
offered in its revised site plans. We therefore conclude that the Project conforms to Bylaws
§ 9.4(B)(1).
Applicant has designed the Project so as to cluster the above-grade improvements on a
small portion of the Project Site and to preserve the remaining lands for merger with other
lands of Allandra Farm, Inc. The proposed building will obstruct some views and vistas, but
many views and vistas of the adjacent undeveloped lands will remain from and across the
Project. In fact, for the north-bound traveler, the building will have little to no impact on views
and vistas. For the south-bound traveler, the Project will not be visible, nor will it obscure
adjacent views, until the traveler is adjacent to the Project. This effect is enhanced by the
plantings and landscaping Applicant has proposed in addition to the existing row of evergreens
near the adjoining neighbor’s shared boundary line. There were no wildlife habitats,
productive woodlands, or historic sites identified as being impacted by the proposed project.
We therefore conclude that the Project conforms to Bylaws § 9.4(B)(2).
19 The ZBA’s September 9, 2009 approval contains 14 numbered conditions and an un-numbered
paragraph labeled “Additional Conditions.” The ZBA’s June 1, 2001 approval after remand
incorporated all of the ZBA’s 2009 conditions by reference.
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We have already considered whether the Project will cause nuisances, including
excessive noise; the facts reveal that the Proposed Project will not cause the other “obnoxious or
excessive” impacts itemized in Bylaws § 9.4(B)(3). In addition, the wastewater and stormwater
permits issued by ANR provide credible proof that the Project as proposed will treat all “liquid
or solid refuse or waste” on the Project Site. Cross-Appellants offered no credible refutation of
the presumption provided by the ANR permits. We therefore conclude that the Project
conforms to Bylaws § 9.4(B)(3).
The Project as proposed provides twenty more parking spaces than the minimum
required by the Bylaws. The parking as proposed is mostly located in the rear and to the side of
the building; only eight spaces will be located in the front of the building and many of the
parking spaces, including those for large trucks, will be at least partially screened by the
proposed landscaping and plantings. There will be sufficient areas to the rear and sides of the
building for vendors who visit the project to off-load their goods. We therefore conclude that
the Project conforms to Bylaws § 9.4(B)(4).
We have already considered the extensive landscaping and plantings that Applicant
proposes for the Project Site. No party proposed that fencing is needed. We therefore see no
need to include conditions regarding fencing and landscaping, beyond what Applicant has
already proposed to do. We therefore conclude that the Project conforms to Bylaws § 9.4(B)(5)
Applicant has proposed structures and service areas that will serve the visiting public
well. While the buildings, canopies, pumping stations, and parking areas will be larger than
some nearby commercial operations, the proposed Project is aesthetically well-planned and not
as large as some other nearby commercial operations. Cross-Appellants’ expert (Ms. Vissering)
admitted on cross-examination that she “had no problem with” the building, although she did
propose that Applicant be required to relocate the gas pumping stations behind the building.
Ms. Vissering also complained that the project would represent “visual clutter.” We disagree.
This Project will have softer aesthetic impacts than many of the existing nearby commercial
properties due to the building and canopy colors, roof architecture, and landscaping and
plantings. No other suggestion was received that, in the Court’s assessment, would improve
upon this already well-planned commercial site. We see no need to include conditions that
would alter Applicant’s building and service area plans. We therefore conclude that the Project
conforms to Bylaws § 9.4(B)(6).
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We have also already addressed the size, location, and design of the project signs, which
are designed to be secondary and have a subordinate appearance to the Project structures. The
ground and wall signs are appropriately sized to provide an indication of the businesses at the
Project Site, but are not so large as to be glaring or out of character with other nearby signs,
especially the ground sign at the Vermont Gas Co. facility across Route 7. The menu board at
the rear of the building will advise the drive-through restaurant customers what food items
they may order, but will not be visible from the front of the building, or from Route 7. We see
no need for additional conditions regarding the project signs. We therefore conclude that the
Project conforms to Bylaws § 9.4(B)(7).
For all these reasons, we conclude that the project as proposed conforms to all the
General and Specific Standards of Bylaws § 9.4 and is therefore entitled to conditional use
approval.
This concludes our analysis of the legal issues raised in Cross-Appellants Statement of
Questions. Since we have concluded that the Project is entitled to approval, we now proceed to
a review of the conditions Applicant challenges in its Statement of Questions.
V. Additional Conditions Imposed Upon Project Approval (Appellants’ Questions
challenging conditions 1–4 & 6–9 imposed by ZBA)
Applicant poses a unified Question in its Statement of Questions. The sole purpose of
Applicant’s appeal appears to be the removal of Conditions 1–4 and 6–9 that the ZBA first
incorporated in its conditional use approval for the Project on September 16, 2009, and then
incorporated by reference when the ZBA again granted conditional use approval on June 1,
2011, after remand from this Court.
The nature of this Court’s review is de novo, since the Town has not chosen to conduct
its land use review proceedings on-the-record, pursuant to 24 V.S.A. § 4471(b). Compare
V.R.E.C.P. 5(g) with 5(h). Thus, we conduct an evidentiary hearing “anew” and disregard the
determinations that were made by the appropriate municipal panel below that are now on
appeal. In re Poole, 136 Vt. 242, 245 (1978). We conduct our legal analysis here without regard
to the conditions that the ZBA imposed and that Applicant has appealed; we render our
determination of what additional conditions, if any, to impose upon any approval based upon
the evidence presented in the de novo hearing.
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Given the length of these proceedings, in part the result of the court-ordered remand,
and the revisions Applicant has made to its site plan, some of its challenges to the appealed
conditions appear stale or moot, as noted below. Nonetheless, for ease of the reader, we use
Applicant’s Statement of Questions and the eight enumerated conditions as an outline for this
final section of our legal analysis.
The ZBA’s Condition 1 directed that there “shall be no diesel pumps associated with the
project.” (Applicant’s Statement of Questions 2, filed July 25, 2011.) We heard few specific
complaints about the diesel pumps; Cross-Appellants more often complained about the general
size of the project. As suggested by Applicant’s traffic expert, many of the Project’s customers
will be “pass by” customers, including tractor-trailer drivers and others desiring to purchase
diesel fuel at the Project. Thus, such Project visitors will have minimal or no new impact to the
area. Additionally, Applicant’s revised site plan provides for many plantings and landscaping
that will offer screening for the diesel pumping stations, including a landscaped and vegetated
island area with additional plantings. Route 7 travelers from the south are unlikely to see the
diesel pumping stations and the vehicles parked at those stations; much of the canopy above the
diesel pumping station will also be screened to north-bound travelers.
Removing the diesel pumps from the project will have little influence upon the project’s
impacts, other than a reduction in the revenues the Project generates (an impact the Bylaws do
not authorize us to consider). We do not discern a material reason to remove diesel sales from
the proposed Project. We therefore VOID Condition 1 from the ZBA’s approval.
Condition 2 imposes certain collecting and reporting conditions on the construction and
operation of the proposed wastewater treatment system. Applicant appears to have adopted
the “pre-treatment” requirement imposed by the ZBA, since the project plans now call for a
Micro-Fast bio-digestion system to be used to “pre-treat” the wastewater collected from the
project. The ANR approval of the Project’s wastewater treatment system requires Applicant, its
successors, and assigns to maintain and regularly inspect the wastewater system, and to make
regular reports on its operations to ANR officials who have an expertise in the operation of
commercial wastewater systems. See Exhibit 16 at 2–3. We received no testimony on the added
benefit to requiring Applicant to also make separate reports on the wastewater system to Town
officials and we therefore have no basis for imposing such a condition on the project as it is now
planned.
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The ZBA approval includes a separate paragraph labeled “Additional Conditions”
which is not subject to our review, since no party specifically referenced it in their respective
Statement of Questions. This paragraph provides that the proposed Project “shall be completed
in accordance with such approved plans and conditions.” In re Champlain Oil Co., Inc.
Conditional Use Application, No. 09-36, Findings of Fact, Conclusions of Law, and Decision, at
9 (Ferrisburgh Zoning Bd. of Adjustment, Sept. 16, 2009). This condition specifically references
Applicant’s former plans and some terms and conditions vacated by this Court’s decision. We
will therefore impose a supplemental condition: that the “Additional Conditions” provision be
revised to reflect that the Project must be completed in accordance with Applicant’s revised
plans and this Court’s modifications and approvals. We see no further need, after this revision,
for the ZBA’s Condition 2 and therefore VOID it as well.
Condition 3 prohibits the use of a drive-through “component” to the proposed
restaurant, but authorizes a “drive-in” component. (Applicant’s Statement of Questions, filed
July 25, 2011.) We do not comprehend this distinction, but in any event, we have determined
that the proposed restaurant may have drive-through facilities. We therefore VOID Condition
3.
Condition 4 provides that the hours of operation shall be limited to 5:00 AM to 10:00 PM.
Given the trial testimony of existing and past practices for area commercial operations, we do
not see the material benefit of restricting Applicant’s operation to less than its suggested times
of 4:30 AM to 11:30 PM. We therefore REPLACE Condition 4 with a condition limiting the
hours of operation to no earlier than 4:30 AM and no later than 11:30 PM.
The next condition Applicant challenges, Condition 6, limits the project’s signs to a total
of 84.5 square feet, including the menu board at the rear of the building. For the reasons
already stated above, we REVISE this Condition to incorporate the total square footage shown
on Applicant’s revised site plans (Exhibit 12), including the rear menu board. We estimate this
total square footage to be just under 90 square feet, but direct that the Project plans admitted at
trial control the specific sign areas.
Condition 7 requires that the project be “re-engineered so as to effectively capture all
water run-off in all seasons so that all water is channeled to constructed catch-basins that drain
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to the GOWS.”20 (Applicant’s Statement of Questions, filed July 25, 2011.) It appears that
Applicant’s revised site plans accomplish this, since the plans include a GOWS component to its
ANR-approved stormwater treatment system.
Applicant’s plan may only include the collection of stormwater from the Project’s paved
areas, particularly in the vicinity of the pumping stations. We received no trial testimony about
the need for stormwater collection and treatment beyond these areas and do not see the need,
especially in grassed areas that may be within the Project Site that will not be actively used.
Condition 7 continues with a construction certification requirement to Town officials.
Applicant, its successors and assigns are already under an obligation to make such a
certification and regular reports to ANR officials, and to allow ANR officials to conduct
inspections at their discretion. Exhibit 17 at 2. We do not see the benefit of requiring Applicant
to make additional certifications and therefore REVISE Condition 7 to require that Applicant
construct its stormwater treatment system pursuant to the ANR-approved plans and to copy
Town officials with any certifications filed with ANR, pursuant Permit #6563-9015.
Condition 8 imposes limits on the levels of light (by foot candles or “fc”) the Project
emits that are slightly different than the light emissions estimated by Applicant in its revised
plans. Some of the fc levels in Condition 7 are similar to Applicant’s plans; some allow for more
light to be emitted, especially at the perimeters of the property. We see no benefit to imposing
this additional Condition, especially since Applicant’s plan call for less illumination spilling at
the Project’s boundaries. We therefore see no need for such a condition, beyond the general
condition that requires Applicant to construct and operate the Project as proposed in its revised
Plans. We therefore VOID Condition 8.
Lastly, we turn to Condition 9, which requires that all project lights be on motion
sensors and that no lights be left on after the close of business. Applicant proposes that it be
allowed to leave three exterior lights on after business hours for security purposes. We have
already concluded that allowing Applicant to keep these lights on for security purposes offers a
benefit and no identified detriment to the area. We received no trial testimony concerning the
benefit of requiring Applicant to use motion sensors to activate the project lighting. In fact, we
did not learn at trial of any area business that has volunteered or been required to use motion
20“GOWS” are grit, oil, and water separators. The proposed Project includes an underground GOWS
component to the stormwater treatment system. See Exhibit 12, sheet D6C.
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sensors to control its lighting. We therefore VOID Condition 9. Applicant remains restricted,
pursuant to its revised Project plans, to leaving on no more than three lights during non-
business hours, for security purposes.
Conclusion
For all the reasons more fully discussed above, we GRANT Applicant conditional use
approval for its proposed Project, which consists of a gas and diesel fueling station, convenience
store, restaurant that may include drive-through facilities, and on-site wastewater and
stormwater treatment systems, located on a 9.7± acre parcel of land on the eastern side of U.S.
Route 7 in the Town of Ferrisburgh to be conveyed to Applicant, all according to its revised site
plans (Exhibit 12) and supporting documentation admitted into evidence in these appeal
proceedings. This approval is conditioned upon several conditions, including those contained
in the ZBA’s first approval of September 16, 2009 that were not appealed here (i.e., Conditions 5,
10–14, and the unnumbered condition titled “ADDITIONAL CONDITIONS,” as
supplemented by this Decision). We specifically note that, for the reasons detailed above, the
Court has concluded that ZBA Conditions 1–3, 8, and 9 must be VOIDED. We REVISE
Conditions 4, 6, 7, and the unnumbered “ADDITIONAL CONDITIONS” paragraph, as
reflected above.
We remand these proceedings to the Town of Ferrisburgh Zoning Administrator, solely
to complete the ministerial act of issuing a zoning permit in conformance with this Decision and
the ZBA conditions not voided here, but including the conditions revised by this Decision. The
Zoning Administrator may use his discretion as to how best to number the conditions that
remain as a consequence of this Decision.
A Judgment Order accompanies this Decision. This completes the current proceedings
before this Court concerning this appeal.
Done at Newfane, Vermont, this 10th day of October 2012.
___________________________________________
Thomas S. Durkin, Environmental Judge
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