Sunday, July 26, 2015

Fanfare in Ferrisburgh: Part I

In re Group Five Investments CU Permit2014 VT 14

By Hannah Smith

In 2014, the SCOV decided two cases regarding proposed development along the (apparently very controversial) Route 7 corridor in Ferrisburgh. In both cases, the proposed development and outraged opposition were eerily similar in nature.

In the first of this two-part series, unhappy neighbors appealed an Environmental Division decision affirming the Town of Ferrisburgh Zoning Board of Adjustment (ZBA)’s grant of a conditional use permit to build a Dollar General. Appellants in this case threw every argument they could think of at the wall, and not one stuck.

In 2011, the Ferrisburgh ZBA granted Applicant a conditional use permit to build a Dollar General store on Route 7, in Ferrisburgh’s Highway Commercial District. Far from a fly-by-night rubber-stamping of Applicant’s request; the permit imposed seventeen additional conditions (beyond the standard requirements of the recipient of a conditional use permit) on the Applicant. Neighbors of the proposed project appealed the permit to the Environmental Division. The Environmental Division affirmed the ZBA’s decision, imposing the additional requirement that the Applicant build a crosswalk across its parking lot, for the safety of customers. The unsatisfied neighbors appealed the Decision to the SCOV.

On appeal, Appellants took the belt-and-suspenders approach, arguing both procedural and substantive errors were made at the trial court level. They argued that they were erroneously burdened with demonstrating that the proposed project would have an adverse effect on the area. They argued that the Quechee definition of “undue adverse impact” was improperly applied to determine the project’s impact. And they argued that the project itself is prohibited under the Ferrisburgh zoning ordinance. The SCOV found little merit in any of these arguments.

The Burden of Proof:

Appellants argued that they were improperly burdened with proving that the proposed project would have no undue adverse impact on the community. The SCOV, in reviewing the Environmental Division’s decision, found that no such burden was imposed. In fact, the Applicant, not Appellant, had been harnessed with the burden of proving that the proposed project met the conditional use criteria, and the Applicant met that burden. The Opposition merely failed to rebut Applicant’s showing.

The Environmental Division provided some commentary in its decision, about the opposition’s failure to provide proof that the proposed project would adversely affect the neighborhood, or that existing commercial use was adversely affecting the neighborhood. The opposition interpreted this commentary as the court imposing the burden of proof on the opposition. The SCOV interpreted it as the Environmental court simply pointing out the opposition’s failure to successfully rebut the Applicant’s proof (ouch). The SCOV provides the clarifying take-away:
This analysis [by the Environmental Division] did not improperly shift the burden onto opponents or fail to address their claims regarding an incremental shift in the character of the area, but rather evaluated opponents’ arguments and found them unconvincing.
Again, ouch.

The Quechee Standard:

Next opponents argued that the Environmental Court improperly applied the Quechee test (typically used to determine “undue adverse impact” on aesthetics under the Act 250 criteria) to determine the proposed project’s effect on the “character of the area.”

The Ferrisburgh ZBA made their decision to issue the conditional use permit on the grounds that the project complied with all performance standards in the applicable zoning ordinance. One such standard is that the project will not adversely affect the character of the area. But as many judges and quasi-judicial boards and bodies will surely agree, an “adverse effect” is a difficult and subjective thing to measure. So the Environmental Division took guidance from the commonly known Quechee definition of “undue adverse effect” to make their determination.

“Erroneous!” cried the opponents. The Quechee test looks at a project’s impact on the scenic and natural beauty of an area, not its impact on the character of an area as a whole!

The SCOV found opponents’ concerns to be overwrought. The SCOV noted that the Environmental Court did not apply the Quechee test blindly, but simply used its definition to guide their interpretation of the “adverse effect” language from the Ferrisburgh zoning ordinance, looking at the proposed project’s effect on the specific items listed in the zoning bylaws, and subsequently finding no adverse effect. Perhaps in the spirit of judicial efficiency, the SCOV generously allowed the trial court to use a definition typically applied to interpretation of Act 250 to the interpretation of a zoning bylaw, which makes sense. Why reinvent the wheel every time a court attempts to objectively evaluate a proposed project’s potential impact on its surroundings? Although in light of this precedent, it is advisable that Vermont attorneys brush up on their Quechee analysis.

Opponents also pointed to a chapter of the Ferrisburgh town plan, which states that protecting the Route 7 corridor is critical to maintaining the rural character of the area, and the proposed project would adversely affect this rural character. The Court found this argument to be without merit, noting that the town plan contains broad policy statements, not legally enforceable zoning standards. Upon further examination of the town plan, the SCOV noted that the area slated for the proposed development was actually specifically identified in the town plan as having a higher concentration of commercial development, really putting a damper on opponents’ “rural character” argument.

The Ferrisburgh Zoning Ordinance:

Finally, opponents argued that the proposed Dollar General Store is a use prohibited in the intended zoning district, and the Environmental Division would have realized this had they properly investigated the evil nature of the Dollar General franchise.

The trial court defined the Dollar General as a “discount retailer.” Opponents argued the proposed store should have been defined as “convenience, retail” and not “retail sales.” The SCOV opinion handily provides the definitions from the Ferrisburgh bylaws of both “Convenience, Retail” and “Retail Sales,” and while there do appear to be some distinguishing features between the two uses, the line between them is blurred to say the least. “Retail store” is a permitted conditional use in the Highway Commercial District; “convenience, retail” is not mentioned and therefore, opponents argued, is prohibited in the District. Choosing to apply a “common-sense interpretation of the ordinance,” the SCOV found opponents’ argument to be a distinction without a difference. Not entirely unexpectedly (to anyone who has ever been inside of a Dollar General), the Court found that the Dollar General fit “comfortably” into the definition of “retail sales” and thus was a permitted conditional use in the area. Neighbors, down one.

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