                        STATE OF VERMONT

                      ENVIRONMENTAL COURT



         Appeal of Armitage, et al   }
                                     }
                                       Docket No. 38-3-
                                     }
                                       01Vtec
                                     }
                                     }

                         Decision and Order

    Margaret W. Armitage and 43 other property owners appealed from
a decision of the Zoning Board of Adjustment (ZBA) of the Town of
Pittsford, granting conditional use approval to Appellee-Applicants
Eastern Development Corporation1 and Joan S. Kelley for the
construction of a building and associated parking lots and driveways to
be used for a U.S. Post Office. Appellants are represented by
Stephanie J. Kaplan, Esq. and Appellee-Applicants are represented by
Vincent A. Paradis, Esq. The Town of Pittsford is represented by John
A. Facey, III, but did not take an active role in this appeal.

    An evidentiary hearing was held in this matter before Merideth
Wright, Environmental Judge, who also took a site visit with the
parties. The parties were given the opportunity to submit written
requests for findings and memoranda of law. Upon consideration of the
evidence, the site visit, and the written memoranda and proposed
findings, the Court finds and concludes as follows.

    Appellee-Applicant Eastern Development Corporation holds an
option to purchase Lot 2 of a two-lot subdivision of a 2.69-acre parcel
of land owned by Joan S. Kelley and located near the southeast corner
of U.S. Route 7 and Plains Road in the > Village= zoning district of the
Town of Pittsford. Approval of the subdivision and of the site plan is
not at issue in the present appeal.

    Two driveways served the combined property: one from Plains
Road and one from Route 7. The Plains Road access is proposed to be
improved as the sole access to both subdivided lots. The Route 7
access also serves the adjacent Rawlings property to the south.
Although the combined property has access onto both Route 7 and
onto Plains Road, the combined property does not extend to the actual
corner of Route 7 and Plains Road. Rather, the property= s westerly
property line extends obliquely across the corner from the proposed
Plains Road access driveway across the Route 7 access driveway,
coming to a point on the Rawlings property. The present Route 7
access is proposed to be redesigned and screened so that it provides
public access only to the Rawlings property.

    Lot 1, to be retained by Ms. Kelley, contains an existing residence.
Lot 2 is 1.5 acres in area and contains an existing barn structure used
by the Kelley family in the past for retail sales. Lot 2 has been
designed so that it has 100 feet of frontage along the Route 7 right-of-
way, the minimum frontage required for a commercial use in the
Village zoning district.

    Lot 2 also contains a pond and shelter used in the past for the
raising of ducks and geese. The excrement from the ducks and geese
added organic pollutants to the pond, some of which were carried by
the stream outlet from the pond into water flowing to the south and
west. The pond is fed by two small streams, running in two swales,
one extending from the northeast corner of the combined property and
one from near the easterly corner of Lot 2. The source of the
northeasterly stream may be traced to two springs that were in the
nineteenth century used as a drinking water source, developed by the
Pittsford Aqueduct Company. The pond was created by a small dam
which controls the outlet at the southerly boundary of the property.
The stream continues to the south across the adjacent lot and another
lot, and through an 18" culvert under Route 7 at Depot Road. Its outlet
on the westerly side of Route 7 is within a steep ravine, through which
the water flows onto the property of Appellant Margaret Armitage.
where it has in the past provided water for horses and other livestock
on the Armitage property.

    Appellee-Applicant proposes to demolish the existing barn structure
and goose house on Lot 2 and to construct on the property a building
and associated parking areas to be used for the U.S. Post Office to
serve the Pittsford area. In connection with this project, Appellee-
Applicant now also proposes to drain and eliminate the pond. A post
office is a conditional use in the Village zoning district. The proposed
hours for the post office are unknown, but are likely to be from 7 or
7:30 a.m. to 5 or 5:30 p.m. on weekdays and also for some period on
Saturday mornings. No evidence was presented as to whether the
lobby of the post office would be open extended hours beyond the
hours of the counter service. From one to as many as eight employees
will be employed at this post office, although approximately five of
those will be route carriers who do not spend most of their time at the
post office itself. No evidence was presented with regard to the
number of persons normally to be employed at the building at one
time.

    The proposed building is L-shaped, presenting the appearance of
an essentially rectangular 75' x 42' building, with an extension on the
southeasterly corner for the truck loading bay, and an extension on
the westerly end for an entrance portico. It covers a total of 3,630
square feet in area. The main part of the building is covered with a
gable roof draining toward the north and south, that is, with the gable
end facing Route 7. The truck loading area was originally proposed to
be roofed with a gable roof draining to the east and west, but was
revised to be a somewhat smaller shed roof draining only to the west,
as shown on Exhibit 22 (the revised site plan). The truck loading area
is closed in on its easterly side, so that the easterly face of the building
presents a 60-foot-long facade, appearing as a gable end with a flat
wall extension. The building will have a white clapboard exterior and
will blend in with the characteristic residential structures in the area,
although it will be larger than those structures and will have the
appearance of a commercial building with its related parking area.

    The finished floor elevation of the building is at an elevation
approximately nine feet above Route 7; the building is proposed to be
23 feet in height, It meets the front setback requirements with respect
to Route 7 and Plains Road, and meets the remaining setback
requirements to its property lines. The building and lot coverage also
meet the dimensional requirements of the zoning ordinance. The
building will be served by municipal water supply and sewered waste
disposal, and has obtained the required municipal and state water
supply and wastewater disposal permits. The proposed use and
building design will be served adequately with fire protection and
police services. The proposed use and building design will be served
adequately by solid waste disposal services, provided that pickup from
the dumpster will be scheduled at hours when the building is not open
to public access. Appellee-Applicant proposes to construct 24 off-street
parking spaces in three parking areas2 to serve the project, of which
three spaces will be reserved for handicapped accessibility3.

   Access to the property is by a 50-foot-wide right-of-way over Lot 1
from Plains Road, within which is a paved driveway at least 24 feet in
width near the location of the existing driveway from Plains Road. A
former access onto the property directly from Route 7, which also
serves the Rawlings private residence, is still shown on the revised site
plan (Exhibit 22) as being blocked by a row of ten trees. However,
Appellee-Applicant now proposes, as requested by the fire department,
to eliminate the ten trees and to block that access drive with a gate or
breakaway structure capable of being driven through by emergency
vehicles, to provide emergency access to the post office building and
parking lots. The original purpose of the row of trees was to block the
existing Route 7 access visually as well as practically, so that it would
be apparent to people driving along Route 7 that the access serves
only the Rawlings property, so that the public would not attempt to
use it for access to the post office and have to back out again onto
Route 7. Appellee-Applicant has not proposed to camouflage the now-
proposed gate by tall perennial grasses, vines, or other plantings, or
by signage visible from Route 7, to provide a visual cue so that cars
bound for the post office do not turn onto that access from Route 7.
The backing out of a vehicle onto Route 7 at that location would pose a
traffic hazard, because Route 7 is a major traffic artery, despite the
long sight distance for traffic approaching that location northbound on
Route 7.

    A Class II wetland has been identified on the site as the pond and a
surrounding area marked as A edge of wetland@ on the site plan. The
wetland as it existed with the pond was identified as significant at least
for the function of water storage for flood water and storm runoff and
for the function of surface and ground water protection. Appellee-
Applicant obtained a conditional use determination (CUD) from the
Agency of Natural Resources to build a portion of the building and
parking lot in the 50' buffer for the wetland. No construction is
proposed to take place in the wetland itself. The proposal also includes
the planting and maintenance of a vegetated buffer on both lots along
the stream traversing the property from north to south, except where
that buffer is occupied by the building and the truck loading dock.

    Since the time that the CUD was issued, Appellee-Applicant has
changed its proposal to propose draining the pond, vegetating the
resulting area, restoring the stream channel within the former pond,
and using the area of the former pond as part of the stormwater
management system4 for the project. Runoff from the roof and parking
lots at the post office is likely to contain sand and salt during and after
winter snowfall conditions, as well as small amounts of petroleum
products and heavy metals from the vehicles using the parking lot.
Appellee-Applicant proposes to eliminate the outlet and peat bed
shown on the original site plan leading from the loading dock area
through a ramped sidewalk towards the south. Appellee-Applicant
proposes instead (as shown on Exhibit 22) to direct all surface flow
from the northwesterly parking area and the loading dock area,
through the southwesterly parking area sloped at 3%, towards the
south across a stone edging flush with the parking lot, onto the grassy
area to the south of the southwesterly parking area. The stone edging
is intended to prevent erosion of the grassy area due to the velocity of
the flow coming off the 3% slope of the parking lot. It is proposed to
be two feet wide and one foot deep, filled with sufficiently large stone
so that it will not wash out in a heavy rainfall. Because it will be a
trench rather than a stone-covered embankment, it may collect and
hold stagnant water after storm events. The flow is proposed to
proceed by surface flow across the flat grassy area towards5 the area
of the former pond.

     The Agency of Natural Resources is supportive of this approach in
principle, because it is expected to reduce the amount of pollutants
reaching the outlet stream, but the applicant has not yet filed and the
Agency has not yet ruled on an amendment to the CUD. Appellee-
Applicant proposes to drain the pond slowly, into the stream at the
pond outlet through a temporary sediment trap, so that the resulting
flow in the stream during drainage would not cause erosion
downstream, but not to install any permanent sediment controls. As of
the time of trial, Appellee-Applicant did not propose or present
evidence as to the profile of the pond bottom, whether any sediments
in the pond (accumulated over the twenty-five year lifespan of the
pond) would have to be removed to protect the stream, whether any
fill would be needed to increase the profile of the bottom of the former
pond to allow a defined stream channel to be created, or whether or
what types of additional vegetation (other than the proposed >
conservation mix= of grasses) would need to be planted in the former
pond bottom to achieve stormwater retention or treatment and to
avoid erosion. It is likely, as appears from a comparison in Exhibit 2 of
the elevation at the pond outlet (523.3) with the elevation near the
pond inlet at the goose house (526), that some fill will be needed in
some portion of the pond bottom simply to allow a defined stream
channel to be created, even if none of the sediment in the existing
pond bottom also would have to be removed. It is also likely, given the
present design of the system, that permanent stormwater structures
would have to be added to the system at or near the outlet to trap
sediments, or retain the stormwater for treatment, at least during
frozen early spring runoff conditions.

   The northerly parking area is designed to drain towards the east
across the 50-foot stream buffer into the small stream running in a
north-south direction from Lot 1 towards the former pond, and will not
receive any treatment by surface flow other than by flowing across the
50-foot6 buffer.

    Plains Road intersects Route 7 at an angle of 34 degrees, making
the reciprocal angle 146 degrees on the project corner. While this
intersection angle is beyond the 90-degree or right angle
recommended for roadway intersection construction, it would not
necessarily be unsafe if there were adequate sight distances in all
directions of and from the intersection. Vehicles traveling south on
Route 7 approaching the intersection of Route 7 with Plains Road
experience a hill rising fourteen feet in elevation within the last 350
feet before the intersection. The effect of this geometry is that traffic
approaching the intersection on Route 7 from the north cannot see
Plains Road or any traffic waiting on Plains Road to turn south on
Route 7 until it is very close to the crest of the hill. Similarly, although
traffic waiting on Plains Road to turn south on Route 7 has an apparent
sight distance of 770 feet looking to the north, in fact the change in
elevation creates a dip in which oncoming southbound Route 7 traffic
is hidden from view for a time, even though the stop bar is reoriented
at a 90-degree angle to Route 7. Traffic waiting on Plains Road to turn
in either direction on Route 7 has an ample sight distance of 1000 feet
looking to the south. Pedestrians waiting on either side of Route 7 to
cross Route 7 at or just south of Plains Road, at the location of or
aiming towards the proposed sidewalk access onto the project site, do
not have an adequate sight distance to see traffic approaching the
crest of the hill from the south, and cannot be sure of being able to
cross both lanes of Route 7 safely at that location.

    The area of property remaining as part of the Route 7 right-of-way
at the corner of Route 7 and Plains Road (that is, not owned or
controlled by Appellee-Applicants), within the shallow 146-degree
corner, forms an approximately four- to six-foot-high bank with the
traveled way of Route 7, compared with the elevation of the proposed
Plains Road access driveway. Although this is a relatively low
embankment, it limits the ability of a driver exiting the property onto
Plains Road from seeing traffic traveling northbound on Route 7 as that
traffic prepares to turn right onto Plains Road. As designed and without
the ability of Appellee-Applicants to cut away or reshape the portion of
the corner within the Route 7 right-of-way, a driver exiting the
proposed Plains Road access driveway will only be able to see the roof
and 27 inches of the upper part of a vehicle traveling in the right lane
of Route 7 northbound and preparing to turn right onto Plains Road,
until after the vehicle has fully turned onto Plains Road. (Exhibit 25.)
Under winter conditions, when snowbanks will build up on that
embankment, the exiting driver will not be able to see the turning
vehicle until much later in the turn. Moreover, because the turn from
Route 7 northbound onto Plains Road eastbound is a relatively shallow
146-degree curve, the northbound Route 7 traffic will not be forced to
slow down in preparation for making the turn as it would be required
to do approaching a 90-degree right turn intersection. The driver
waiting at the access driveway to turn left onto Plains Road would only
be able to see the vehicle turning onto Plains Road from 150 feet
away, which is not a sufficient distance for the exiting vehicle to pull
out safely, calculated using the speed limits on Route 7 and Plains
Road without regard to whether vehicles actually drive faster than the
35 miles per hour speed limit at that location.

    Appellee-Applicant= s traffic counts were done during a school
vacation and cannot be adjusted for normal traffic. In addition, the
traffic counts took place during the time period from 8 a.m. to 9:45
a.m. and from 1:30 p.m. to 4:45 p.m., and therefore do not account
for a portion of the potential morning peak hour (the highest four
consecutive quarter-hours between 7-9 a.m.) and a portion of the
potential afternoon peak hour (the highest four consecutive quarter-
hours between 4-6 p.m.). Nor does the methodology account for the
operating hours of the post office; that is, that the post office or at
least the post office box lobby will be open from as early as 7:00 a.m.
to as late as 5:30 p.m. In fact, the afternoon peak hour on Route 7
nearest to Plains Road occurs at 4:45 to 5:45 p.m. Regardless of
school vacations, the great majority of vehicles turning from Plains
Road onto Route 7 turn left or south (51 of 54 in one count, and 33 of
35 in another count). When the traffic volumes are properly adjusted,
the crucial turning movement through the Plains Road/Route 7
intersection (the left turn from Plains Road onto Route 7) is at present
an acceptable, though not good, level of service C. Without
improvements to the intersection, that level of service can be expected
to deteriorate to a congested level of service D or even a failed level of
service E in the afternoon peak hour, with the addition of the project=
s traffic.

     The existing post office serving Pittsford is 960 square feet in area
and is located in the center of Pittsford Village, near the village green,
the library, a grocery store, a laundromat, and other village center
uses approximately 3/8 of a mile from the project site. People tend to
use the existing post office in conjunction with other tasks in the
village center, and it serves a social function of promoting visiting and
social interchange among the residents who frequent it. People tend to
walk, drive or bicycle to the village center for multiple purposes in a
single trip. The existing post office lobby is open from 7 a.m. to 5 p.m.
on weekdays. Large tractor-trailers do not now serve the Pittsford post
office and Appellee-Applicants propose that they also will not be used
to serve the proposed site; that is, the largest vehicle serving the post
office functions will be a unit-body truck or large van.

    The area along Route 7 near the Plains Road intersection is a
mixed-use area of residential uses (both single-family and multi-
family), interspersed with commercial uses common along major
roadways such as Route 7. A bank, a gas station and deli/convenience
store, and a used car sales lot are located on Route 7 within 277 to
491 feet south of the project site. The area along Plains Road east of
the intersection is primarily residential, although the municipal offices
are also located farther east on Plains Road, out of sight of the
intersection.

   Of the conditional use standards, we address only those contested
by the parties.

    To grant conditional use approval, ' 2.12.1(b) requires a finding
that the proposal will not cause any unreasonable hazard to or impact
upon health, property or property values through fire, unsanitary
conditions, erosion, noise, air or water pollution. The proposal will not
cause any unreasonable hazard to or impact upon health, property or
property values through fire, unsanitary conditions, noise, or air
pollution. As to erosion and water pollution, it remains possible for the
site to be designed and engineered to avoid an unreasonable impact
from erosion and water pollution. However, based upon the evidence
presented in this proceeding, without further engineering design and
specification of the contours, fill, plantings and sediment controls
within the area of the former pond, and further direction of the sheet
runoff towards the area of the former pond, the proposal is likely to
cause unreasonable erosion and water pollution from the sediment,
salt and other pollutants in stormwater runoff from the parking lots,
especially during frozen runoff and spring melt conditions.

     To grant conditional use approval, ' 2.12.1(d) requires a finding
that the proposal will not adversely affect the character of the area
affected. Appellants ask that this standard be applied to the area to be
vacated by the existing post office, as well as the area near the
proposed new post office. We recognize that movement of traditional
village center services to the outskirts of a village encourages the
development of the growth patterns commonly called > sprawl.= We
also recognize that combating sprawl is an important policy
consideration in the present day, as has been recognized by various
commission reports and the recent legislation strengthening downtown
areas. See, e.g., the Historic Downtown Development Act, 24 V.S.A. ' '
2790-2796. Nevertheless, in order to apply such policies to conditional
use applications, a municipality must implement the policy by adopting
or amending its zoning or other ordinances. A municipality may wish to
establish a village center zoning district as the only zone in which
certain functions such as post offices may be located, to facilitate
socio-economic interaction (see 24 V.S.A. ' 2790(c)). However, the
Town of Pittsford has not done so. Nor does its zoning ordinance
contain a so-called > siting= provision allowing the ZBA (or this Court
on appeal) to choose where among several alternative sites a
particular use may be located. Rather, all that the ZBA (or this Court
on appeal) may consider is whether a location proposed by the
applicants for a particular use meets the requirements of the zoning
ordinance.

     Therefore, while recognizing the social disruption to the fabric of
village society that can be caused by moving the particular use out of
the village center, in the present appeal the Court is restricted to
considering the character of the area for which the project is proposed.
That area is a mixed use, residential and commercial area adjoining
the major roadway of Route 7. The proposed commercial building will
not adversely affect the character of the area.

    To grant conditional use approval, ' 2.12.1(e) requires a finding
that the proposal will not adversely affect the traffic on roads and
highways in the vicinity. Without some redesign of the Route 7/Plains
Road intersection to slow the traffic turning right from Route 7 onto
Plains Road, as discussed above, traffic exiting the project driveway
will not be able to make a left turn safely onto Plains Road. Without
some redesign of the Route 7/Plains Road intersection to
accommodate an increase in the volume of traffic turning left from
Plains Road onto Route 7 during peak conditions, that turning
movement in the intersection will deteriorate to an unacceptable level.
Without some redesign of the Route 7/Plains Road intersection,
therefore, the proposal can be expected to adversely affect the traffic
on roads and highways in the vicinity. In addition, without plantings or
signage to screen the proposed gate7 blocking the emergency access
to the property, the proposal will adversely affect traffic on Route 7.

   To grant conditional use approval, ' 2.12.1(g) requires a finding
that the proposal complies fully with any specific standards for the
particular conditional use. Appellants argue that the proposal fails to
meet ' 5.4.2(c)(iii), which requires that access driveways to parking
spaces shall be of sufficient area to facilitate easy parking of vehicles
without danger of collision with vehicles already parked. Although the
design of the three parking areas appears to pose some conflicts
between pedestrians (or wheelchair users) and the truck backing
space; to pose some conflicts between vehicles using the
southwesterly parking area and the truck backing space; to pose some
conflicts between persons using the drop boxes and vehicles
maneuvering within both westerly parking areas; and to pose a
problem for a driver to extricate a vehicle from space #1, those are
issues regarding site circulation that should have been addressed by
the Planning Commission during site plan approval. No evidence was
presented to suggest that the width and length (area) of the access
drives to the parking spaces was insufficient to allow drivers to park
without danger of collision with vehicles already parked. The proposal
complies fully with the specific standards for this particular conditional
use.

    Based on the foregoing, it is hereby ORDERED and ADJUDGED that
conditional use approval is DENIED for the proposed post office, ' '
2.12.1(b) and (e), without prejudice to the Applicant= s submittal to
the ZBA of the same or a revised building design at such time in the
future as the Applicant is able to submit revised or additional plans
and data for the pond removal and stormwater treatment system to
prevent erosion or water pollution and is able to show that changes
are to be made to the Plains Road/Route 7 intersection (and the
screening of the emergency access gate) sufficient to address the
problems discussed in this decision.

    Dated at Barre, Vermont, this 21st day of October, 2002.



___________________
Merideth Wright
Environmental Judge



                               Footnotes
1
    The term Appellee-Applicant is used in the singular in this decision
to refer solely to Eastern Development Corporation or its successor or
subsidiary Pittsford Enterprises, LLC.
2
   We will refer to the three parking areas as the northerly parking
area (spaces 1-6), the northwesterly parking area (spaces 7-13), and
the southwesterly parking area (spaces 14-24). While a designation in
bold stating "lot 2" appears on the site plan within the southwesterly
parking lot (and this reference was used to refer to the southwesterly
parking lot in some of the testimony and in Appellants’ memorandum),
the designation "lot 2" is actually only the label on the plan for the
second of the two subdivided lots.
3
   It is not clear from the plan how a public user of handicapped space
#19 has access to the post office building without having to traverse
the truck backing area and the length of the northwesterly parking
area to reach a dropped curb access to the building’s sidewalk. That
space may have been intended for wheelchair access by an employee
by an inclined sidewalk to the truck loading access area, but it is not
designated on the plan as reserved for employee parking.
4
    Due to the size of the proposed impervious areas to be added by
this project, no stormwater management permit is required by state
regulations to manage the expected increase in volume of stormwater.
However, the expected velocity and direction of stormwater flow must
nevertheless be analyzed to determine whether it will create erosion or
water pollution, under §2.12.1(b) of the conditional use standards.
5
   The site plan lacks topographic contours within the grassy area to
the south of the southwesterly parking area, as well as lacking
contours within the pond proposed to be drained. Without some slight
slope towards the pond from that grassy area, Appellee-Applicant
proposes no apparent reason why runoff from the parking area would
receive treatment by traveling through the vegetated buffer and the
former pond area, instead of continuing to flow southerly off the
property and onto the neighboring property.
6
    Although the buffer is reduced in width behind the building, it is a
full 50 feet in width from the outlet of the northerly parking lot (near
the dumpster) to the stream.
7
  We recognize that this may easily be remedied, however, it has not
yet been proposed.
