Sunday, July 26, 2015

Fanfare in Ferrisburgh: Part deux

In re Champlain Oil Company Conditional Use Application, 2014 VT 19

By Hannah Smith
In the second installment of the thrilling two-part series Fanfare in Ferrisburgh, the Court considered the permissibility of a conditional use permit granted for a combo gas station-convenience store-restaurant, again slated for that fateful stretch of Route 7 in Ferrisburgh.

The proposed construction was to take place along the Route 7 corridor, half a mile south of the town center, in a Highway Commercial/Rural Agricultural Zoning district still searching for an identity (you’d be conflicted too, if you were zoned both commercial and rural). The character of the neighborhood, while home to some private residences, is described by the Court early in the decision as “more commercial in character.” This innocuous observation of the Court proved important, if not definitive, in this case. In the complicated and contentious world of land use, apparently it sometimes requires the highest court in the state to objectively answer the simple question “what is the character of this neighborhood?”

In this particular case the town granted a conditional use zoning permit to Appellee Champlain Oil Company, to construct their gas station complex on the site of a former roadhouse restaurant. The Environmental Division upheld the town’s decision, and a group of individuals, along with the Ferrisburgh Friends of Responsible Growth, Inc. appealed the Environmental Court’s decision. The appeal was based on the following arguments: (1) That the proposed uses are prohibited by the town zoning ordinance and inconsistent with the town plan; (2) that the visibility of the parking spaces permitted for the project would result in an “incremental . . . shift in the character of the neighborhood; and 3) that the septic system for the project would be outside the required setback zone. Again, the SCOV found little merit in any of these arguments.

In addressing the argument that the proposed development was in conflict with the Ferrisburgh town plan, the SCOV determined the town plan to be aspirational rather than regulatory (eerily similar to the determination made in Fanfare: Part I). This determination was based partially on language from a helpful section of the town plan itself titled “Interpreting the Plan,” which states “Goals are long-range aspirations that serve as a broad planning and development guide.” In addition to this rather convincing language, the Court found language in the town plan- stating that the area should include only small scale commercial development- to again be an aspiration, not a mandate. The final nail in this argument’s coffin was the existing development. The SCOV experienced the same difficulty as the Environmental Court had in interpreting the town plan as a regulatory mandate, given the level of commercial development already permitted in the area, all of which seemed inconsistent with the town plan according to Appellant’s argument. 

Dear municipal governments of Vermont: if you intend your town plan to serve as a regulatory mandate, write it as such, with enforceable standards and conditions. If your town plan defines its listed goals as, well, goals, and/or long-range aspirations, that is how the Court will interpret them.

The Court’s review of the second argument—that the proposed development, including a convenience store and drive-up restaurant window, is prohibited by the Town Zoning Ordinance—is relatively hilarious. Appellants first argue that while “retail stores” are permitted as conditional uses in the Highway Commercial district, “convenience, retail,” “retail sales,” and drive-in facility” are not permitted because they are not explicitly listed as permitted uses. The SCOV, perhaps experiencing the same sense of déjà vu that I experienced reading this decision, again called on common sense, finding that a “convenience, retail” store is . . . . just a type of “retail store.”

The Court then tackled the titillating issue of the proposed “drive-in” window. The ZBA had permitted a “drive-in” component of the restaurant, but prohibited a “drive-through.” The trial court found no distinction between a “drive-in” and a “drive-through,” and allowed the restaurant to implement either. The SCOV on the other hand notes a distinction, recalling a “drive-in” as an establishment where youths on roller skates serve your food car-side. The Court expressed confusion at the fact that the Ferrisburgh bylaws prohibit a “drive-in” in the definition of a retail store, and that the ZBA went on to allow a drive-in anyway, despite the Applicant’s insistence below that the proposed project involved a drive-up window, not a roller-skating-waitress drive-in component.

Again applying “common sense,” as well as a literal reading of the Ferrisburgh bylaws, which allow drive-through restaurant windows in the Highway Commercial district, the Court upheld the trial court’s determination that a drive-through window was a permissible use.

Appellants also claimed that the permitted parking areas would lead to an incremental shift in the character of the neighborhood, by allowing for too many visible parking spaces. The SCOV found that in fact the trial court had carefully evaluated the number and location of parking spots, and found no evidence that the parking spots would have an increased visual impact. The SCOV agreed with the trial court that dispersion 0f parking spots, as well as the commercial character of existing development, would result in the proposed project having very little impact on the character of the area. Both the trial court and the SCOV found that the area was already commercial in nature, there was no risk of an incremental shift. In fact, ruled the SCOV, the trial court really did its job in a thorough, careful, and considerate manner! Nothing erroneous here to see! You go trial court!

Finally, the Appellants argued that the proposed septic system mounds would be outside the setback zone. The proposed mounds would be constructed out of sand and gravel, and extend in a “gentle slope” beyond the perimeter of the leachfield. Appellants argue the mounds are “structures,” which the SCOV rejected based on the bylaw definition of “structure.” The SCOV found that the leachfield itself would be within the 25-foot side-yard setback as required by the zoning bylaws, and again agreed with the trial court that the “sloping toe” of the mound was nothing more than “a visual element of a wastewater system, necessary to bring the system to the finished grade of the site.” The Court refused to overturn the lower court’s approval of the conditional use permit on the basis of this “merest lip of earth” extending slightly over the setback line.

At the close of this saga, I am left with the feeling that Ferrisburgh needs to do some serious soul-searching, to decide where it’s going and what it wants to look like in the future. And to every other town, grappling with a crisis of character or image, I urge you—eliminate ambiguity from your town plans and zoning ordinances. And apply common sense in interpreting those ordinances, or else the judicial system will apply its version for you.

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