                                    STATE OF VERMONT

                                 ENVIRONMENTAL COURT

               In re: Appeals of Michael         }
               Williams                          }
                                                   Docket Nos. 186-10-99 Vtec
                                                 }
                                                   and 90-4-00 Vtec
                                                 }
                                                 }



               In re: Appeal of Ryan Brothers    }
               Electric and Michael Ryan         }
                                                 } Docket No 216-9-00 Vtec
                                                 }
                                                 }



                                      Decision and Order

The parties have appealed from two decisions of the then-Zoning Board of Adjustment (ZBA)
and one decision of the then-Planning Commission of the City of Burlington, regarding a project
proposed by Ryan Brothers Electric and Michael Ryan at 1 Industrial Avenue.

Appellant Michael Williams is represented by Brian P. Hehir, Esq.; Cross-Appellants Ryan
Brothers Electric and Michael Ryan are represented by Vincent A. Paradis, Esq.; the City of
Burlington is represented by Kimberlee J. Sturtevant, Esq. Interested parties Sherry C. Dempsey
and Elisa Nelson appeared and represented themselves, but did not file requests for findings or
memoranda of law. An evidentiary hearing was held in this matter before Merideth Wright,
Environmental Judge. The parties were given the opportunity to submit written requests for
findings and memoranda of law. Upon consideration of the evidence and the written memoranda
and proposed findings, the Court finds and concludes as follows.

Michael and Therese Ryan own an approximately 3-acre parcel of land located at the corner of
Industrial Parkway and Austin Drive in the Enterprise zoning district of the City of Burlington.
The extension of Austin Drive as it crosses Industrial Parkway is known as Home Avenue.
Cross-Appellant business Ryan Brothers Electric occupies about half of the existing building on
the property; the remainder is rented to a bottled gas supplier, and to Pool World and Barrett
Trucking, both of which have property across Austin Drive from the property. The property was
formerly owned by the Chittenden County Transit Authority (CCTA), which used it as a bus
garage. Other properties along Industrial Parkway or across Austin Drive near the intersection
are industrial or commercial in use, including Pool World and Barrett Trucking directly across
Austin Drive from Cross-Appellants= property. Immediately to the south of Cross-Appellants=
property is the current bus garage for CCTA.
Austin Drive proceeds westerly from the intersection, and curves to proceed to the south behind
Cross-Appellants property, roughly parallel with Industrial Avenue. A belt of ledgy and forested
land runs along the westerly edge of the industrial properties lining the western side of Industrial
Avenue, providing some buffer and separation between those allowed uses and the residential
neighborhood along Austin Drive.

Cross-Appellants= property has two existing curb cuts providing access from the site onto
Industrial Parkway, and one curb cut providing access onto Austin Drive.

In Docket No. 186-10-99 Vtec the ZBA had approved, with conditions, the construction of two
buildings: a 6000-square-foot office building and an 11,200-square-foot warehouse. In Docket
No. 90-4-00 Vtec the Planning Commission had approved, with conditions, a site plan for
construction of a single building, with warehouse functions on the ground floor and office
functions on the upper floor, to be set back 74 feet from Appellant= s property line. In Docket No.
216-9-00 Vtec the ZBA approved the one-building proposal, with conditions. Cross-Appellants=
preference now is for the single-building design.

The single building design is proposed to have no doorways, openings or lighting on its western
side facing the residential neighborhood. It is now proposed to have a flat roof with a collection
system to conduct stormwater from the roof to the municipal sewer system, avoiding a risk of
increased surface flow towards Appellant= s or other residential properties.

To the south of the proposed building is an area of ledge extending approximately ten feet above
the finished floor elevation of the proposed building. Cross-Appellants propose to remove that
ledge by blasting, to create a so-called storage area approximately 60' x 80' in area, extending
northerly from the four proposed truck parking spaces to about the midpoint of the building,
along the southwesterly property boundary.

Appellant challenges the approval of either design under several of the major impact review
criteria and conditional use criteria. Cross-Appellants challenge the condition limiting the project
to two truck parking spaces, and requests approval of the four parking spaces shown on the site
plan in evidence as Exhibit 9. Cross-Appellants also challenge the condition limiting the Austin
Drive access to emergency use only, and request both truck and automobile access to Austin
Drive from a 24-foot-wide curb cut, in the location shown as a 20' curb cut on the site plan in
evidence as Exhibit 9.

Section 17.1.5(a)(4) of the Conditional Use Criteria - bylaws in effect

Other than the specific zoning ordinance sections discussed below, neither Appellant nor the City
argued that the proposed project will adversely affect any other bylaws in effect.

Section 13.1.6(a) of the Major Impact Review Criteria - undue air or water pollution

The project is served by municipal water supply and sewage disposal, and the proposed building
is to be heated by natural gas. There was no evidence that the proposed building, use or site plan
would create any undue water or air pollution.
Sections 13.1.6(i) and (j) of the Major Impact Review Criteria - undue adverse effect on growth
patterns and substantial conformance with City= s municipal development plan

and Section 17.1.5(a)(2) of the Conditional Use Criteria - character of the area affected

The project is proposed for the City= s Enterprise zone (formerly known as the > Industrial= zone)
in which the present and proposed office and warehouse uses are encouraged to develop, and
therefore will be in substantial conformance with the City= s development plan. It is proposed for
an already-developed lot and therefore will have no undue adverse effect on growth patterns in
the City. However, around the curve of Austin Drive is a well-established residential area, access
to which is primarily by Austin Drive. This residential area will be affected by the proposed
Austin Drive access and may be affected by the removal of too much of the ledge buffer, both of
which are discussed below. The neighboring residential area is residential in character, but
already has the character of a residential area bordered by substantial industrial development.
That character will not be affected by the project; that is, other than these considerations of
traffic safety and potential for noise discussed below, the project will not adversely affect the
character of the neighboring residential area.

Section 13.1.6(a) and (d) of the Major Impact Review Criteria - undue noise pollution and
unreasonable soil erosion

Appellant argues that the project will create undue noise pollution and unreasonable soil erosion
during construction, but also that removal of the natural ledge barrier will increase noise and
stormwater discharge emanating from the site onto Appellant= s property during use of the
building after construction.

The project will not create unreasonable soil erosion, as adequate erosion controls are specified
during construction and as the drainage from the new building will be collected and discharged
to the municipal sewer system, thereby slightly reducing the drainage from the site towards
Appellant= s property, which is not a current problem. The project will not create undue noise
during construction; while blasting will undoubtedly create noise, the blasting necessary for the
project is anticipated to occur over the reasonable duration of one week, and will be strictly
controlled under the City= s blasting ordinance.

The building is positioned so as to create a barrier or screen protecting the residential
neighborhood from noise from operations in the project yard, except for the area between the
building and the southwesterly property boundary, which is occupied by existing ledge to a
height of about ten feet above the finished floor elevation of the proposed building. Removal of
as much of the ledge as is proposed, to create a so-called storage area, would impair the
screening of the residential neighborhood to the southwest and west of the property from the
noise and activities of the proposed project. However, removal of the ledge up to a line extended
from the face of the building towards the property boundary will not impair the screening of the
property, and may be allowed. However, we note that while this area was originally intended for
the storage of piles of mulch and similar materials used by a landscaping company which is no
longer a tenant at the facility, the evidence at the trial reflected that Cross-Appellants may now
intend that it be used for > storage= of the trailer segments of tractor trailers.
The reduced-size storage area approved by this order is specifically not approved as parking for
any vehicles, including the trailer segments of tractor trailers. Such use falls within the category
of > parking= rather than > storage= and must be applied for and approved, if at all, as additional
outdoor parking spaces.

The four outdoor truck parking spaces proposed at the property boundary are approved. The
evidence did not show that those four spaces would cause either an increase in adverse effects
from the property on the adjacent residential neighborhood, or any impairment of on-site
circulation on the property. Any objections by the City regarding the potential use of those
spaces by a future tenant on the property rather than by Cross-Appellants= own business must be
addressed in any permitting of changed uses for the property.

Section 13.1.6(e) of the Major Impact Review Criteria - unreasonable congestion or unsafe
conditions on streets

and Section 17.1.5(a)(3) of the Conditional Use Criteria - traffic on roads and highways in the
vicinity

Austin Drive is the primary route of access from the residential neighborhood to the west and
south of the property, towards Industrial and Home Avenues. The approach along Austin Drive
towards the curve from the residential neighborhood is a long straightaway, on which drivers
exceed the 30 miles per hour speed limit1 approaching the curve of Austin Drive. Drivers coming
around the curve of Austin Drive towards the Industrial Avenue intersection from the direction
of the residential neighborhood are often temporarily blinded by the sun in early morning
conditions. Even at the speed limit of 30 miles per hour, the sight distance for such drivers to the
westerly edge of the proposed Austin Avenue curb cut should be 330 feet to allow for a safe
approach to that curb cut, for a driver to perceive a vehicle exiting that curb cut, react, and stop
safely, even without the problem of the early morning sun. In the present application2, this
distance is insufficient when measured from the place the driver must be to see the curb cut after
coming around the Austin Avenue curve. It is even less sufficient if any vehicles already around
the curve have already had to stop for such an exiting vehicle.

Accordingly, the Austin Avenue curb cut must be closed to all but emergency access to and exit
from the property. Accordingly, any access barrier will have to be designed to present an obvious
visual barrier and to support warning signs but to allow for the plowing of snow and to allow
passenger vehicles as well as emergency vehicles to break through in an emergency.

Based on the foregoing, it is hereby ORDERED and ADJUDGED that the project as designed
for office and warehouse use3 is approved, with the conditions as imposed by the then-ZBA and
then-Planning Commission, except as those conditions are modified by this order, as follows:

Four truck parking spaces may be laid out as shown on Exhibit 9.

A storage area may be created, and ledge may be removed for that purpose, from the parking
area to a line extended from the face of the building toward the southwesterly property boundary.
This storage area is not approved for the parking of any vehicles, including the trailer portions of
tractor-trailers; any such use may be the subject of application to the Development Review Board
for an amendment to the present approval.

The Austin Drive access shall be designed as solely an emergency access to and from the new
building and its associated parking and loading areas. It may be designed to the 24-foot width
and 24-foot radius specifications, but shall be designed with suitable and visible breakaway or
flexible posts and/or lightweight plastic chains or bars, to allow emergency access from either
direction, but also to allow snow plowing by the temporary removal of the chains or bars during
plowing. It shall be designed to carry signage on both sides and also at an angle visible by
drivers approaching along Austin Drive from the Industrial Avenue intersection, to the effect that
this is A not a driveway - emergency access only.@

Dated at Barre, Vermont, this 28th day of September, 2001.




___________________
Merideth Wright
Environmental Judge



                                            Footnotes
1.
     Drivers approaching the Austin Drive curve from Industrial Avenue tend to drive at
approximately 25 miles per hour; however, that traffic movement is not the critical one for this
analysis.
2.
   This decision is without prejudice to any future application to design revised location,
number and orientation of curb cuts and on-site circulation for this site.
3.
     We note for the parties’ guidance that Cross-Appellants did not apply for and this decision
does not grant any approval for the operation of a transportation terminal at the property. Any
such proposal must be the subject of a new proceeding to the now-DRB.
