                                       STATE OF VERMONT

                                    ENVIRONMENTAL COURT

             Appeals of Wesco, Inc.                 }
                                                    }
                                                         Docket Nos. 65-3-00 Vtec and
                                                    }
                                                                 66-3-00 Vtec
                                                    }
                                                    }




                                        Decision and Order

    Appellant Wesco, Inc. appealed from two decisions of the Development Review Board (DRB)
of the City of South Burlington, denying two alternative site plans for their property at 1108-1118
Williston Road, one plan for a convenience store with three gasoline dispensers (6 gasoline
fueling positions) and one diesel fueling position, and another plan for the same convenience
store with two gasoline dispensers (4 gasoline fueling positions) and one diesel fueling position.
Both plans were denied on the basis that they fail to comply with the traffic provisions of the
Zoning Regulations in general and those of the Traffic Overlay District in particular. Appellant= s
appeal of the 3-dispenser plan is Docket No. 65-3-00 Vtec; Appellant= s appeal of the 2-
dispenser plan is Docket No. 66-3-00 Vtec. The latter decision also denied conditional use
approval for the two-dispenser proposal, even though an earlier unappealed decision had granted
conditional use approval of the three-dispenser proposal.

   Appellant-Applicant is represented by Mark B. Heath, Esq.; the City of South Burlington is
represented by Steven F. Stitzel, Esq. An evidentiary hearing was held in this matter before
Merideth Wright, Environmental Judge, who also took a site visit alone, by agreement of 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.

   Appellant owns two adjacent parcels of property on the northerly side of Williston Road near
the intersection of Williston Road and Dorset Street, one with the address of 1118 Williston Road
(Lot 1) and the other with the address of 1108 Williston Road (Lot 2). Both parcels are located in
the Commercial 1 zoning district and the Traffic Overlay Zone 2. The combined square footage of
the two parcels is 40,440 square feet.

    The 1118 Williston Road parcel contains a gasoline service station use consisting of a building
containing a three-bay repair garage, with three gasoline dispensers (6 gasoline fueling positions)
on two islands parallel to Williston Road in front of the garage, plus a single diesel fueling position
at the southeast corner of the building. Access around the building to the west and north sides is
by a narrow lane which is often blocked by vehicles associated with the service station uses. Lot
1 has two curb cuts, each 40 feet wide, with access onto Williston Road. It has also has access
on its northerly side through to the parking area of the adjacent Windjammer Restaurant and Best
Western Hotel, through which there is access to the east to a signalized intersection onto
Williston Road. Access from the hotel property across Lot 1 onto Williston Road at present has
the status of a revokable license granted by Appellant; Appellant proposes to make that access
permanent in connection with the present proposal.

   The 1108 Williston Road parcel is located adjacent and to the west of the service station
parcel, closer to a major intersection to the west. Between it and the highway interchange to the
west is the entrance to another hotel/restaurant complex. Lot 2 formerly contained a house and
residential garage, and has a single driveway access onto Williston Road. The house has been
removed; the former residential garage currently is used for incidental storage by Appellant during
the pendency of this case. The intersection to the west of this parcel controls Dorset Street,
Williston Road, the entrance to the other hotel complex, and is very close to the northbound
entrance ramp for Interstate 89. Beginning at the westerly edge of Lot 2, the two westbound lanes
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of Williston Road make a tapered shift to the right to accommodate two additional left turn lanes
for the westbound Williston Road traffic turning south onto Dorset Street.

    Appellant proposes to merge the two lots and to convert the use of the service station building
to a convenience store with a twelve-seat deli. The merged property meets the frontage, lot
coverage, and setback requirements of the zoning regulations, with the exception of the setback
of the canopy which was constructed under a permit based on a variance of the front setback
requirements. Appellant proposes to make no changes in the location of the underground fuel
tanks approximately 15 feet east of the building and extending to the east. Appellant proposes to
make no changes in the location of the diesel fuel dispenser at the southeastern corner of the
building. Appellant proposes to make no changes in the paved access through to the
Windjammer property. Appellant proposes to make no changes in the location of the two existing
pump islands, so that the northerly of the two pump islands is proposed to be located
approximately 15 feet from the flush sidewalk in front of the building, the two islands are
separated by approximately 20 feet, and the southerly of the two pump islands is located
approximately 13 feet from the northerly edge of the sidewalk along Williston Road.

    Appellant proposes to extend the building approximately eight feet to the north, adding
approximately 456 square feet of building. Appellant proposes to pave and widen the lane for
vehicles to drive around the west and north sides of the building to allow enough space for two-
way traffic around the back of the building. This area is planned to be approximately twenty-five
feet wide at the dumpster location at the back of the building. Appellant also proposes to pave an
area formerly on Lot 2 to the west of the building, so that the paved area will extend
approximately 82 feet from the building towards the west. Appellant proposes to install ten
parking spaces at the westerly edge of the new paved area, and six parking spaces at the
easterly side of the combined property, each 10' x 20' in size, of which one on each side is
proposed as a handicapped parking space. With the additional eight parking spaces at the pump
islands (regardless of the number of fueling positions actually in use) the proposal exceeds the
parking requirements of the zoning regulations. Appellant proposes to install a dumpster behind
and to the northeast of the building, and to mark a five-foot-wide sidewalk on the pavement in
front of the building. Appellant proposes to eliminate the curb cut that had served Lot 2 and to
reduce the width of each of the two curb cuts on Lot 1, from 40 feet in width to 36 feet in width, so
that the distance between the two curb cuts will measure approximately 56 feet.

   Appellant received approval of the canopy now over the fuel islands.

    Appellant received conditional use approval in 1999 of a plan showing the convenience store
with three gasoline dispensers (having 6 fueling positions) and the diesel fuel dispenser, with the
lighting plan as now proposed. This approval was not appealed and cannot now be challenged,
either directly or indirectly. Accordingly, the conditional use approval of the two-dispenser plan
may only be considered to the extent it poses differences from the already-approved three-
dispenser plan.

   The parties agree that the issues in these appeals are limited to the questions of pedestrian
and vehicular access and circulation, compliance with traffic overlay district, and lighting (except
that Appellant argues that the lighting plan was approved in the unappealed conditional use
proceedings and cannot be relitigated here). The City agrees that the parking, landscaping and
screening site plan requirements are met, except as additional screening and landscaping may
be required by the asserted deficiencies in the lighting plan.
    Appellant proposes to update the lighting plan, reducing the lighting under the canopy from
eight 400-watt metal halide fixtures to eight 250-watt metal halide canopy lights, replacing two
existing 400-watt metal halide pole-mounted fixtures at the front corners of Lot 1 with new 320-
watt metal halide pole-mounted fixtures, and installing two additional 320-watt metal halide pole-
mounted fixtures, one in the center of the western edge of the western parking area, and one in
the northeasterly corner of the lot. This lighting plan will not create glare, and meets the
requirements restricting light to the boundaries of the property, with the following exceptions. It
illuminates the driveways and sidewalk at the Williston Road edge of the property, which is
allowed under the regulations. It illuminates the parking area and paved access onto the parking
area of the neighboring hotel property, which is allowed under the regulations. The fixture in the
northeasterly corner of the lot illuminates a portion of the neighboring commercial lot to the north.
If the lighting plan had not already been approved as part of the conditional use approval for the
three-dispenser plan, it could be address in the present conditional use approval for the two-
dispenser plan. However, as that approval was granted and not appealed, it cannot be
challenged indirectly in the proceedings for the two-dispenser plan. The site plan criterion
addressing the adequacy of screening and landscaping can address the illumination of the
neighbor= s property in the northeastern corner, independently of the adequacy of the lighting
plan.

Traffic Overlay Zone Criteria

    If the proposal were analyzed as new construction, it would be permitted to generate only 20
vehicle trip ends (vte= s) in the afternoon peak hour, which the parties agree is the controlling
peak hour for analysis. This is a measure of the amount of traffic the property use adds to the
traffic on the adjacent roadway. Traffic generation figures are also important to analyze the
turning movements a particular use will cause from and onto the adjacent roadway.

   However, existing uses and changes to existing uses are analyzed somewhat differently from
new construction under the South Burlington Zoning Bylaws. An existing use is allowed to
continue in effect and a change in that existing use may be made if it does not generate traffic
above that of the existing use. ' 21.50. Further, also under ' 21.50, the DRB and hence this court
may approve an increase in predicted peak hour traffic volumes if A other site improvements will
produce a net benefit for traffic flow in the vicinity.@

    Using the ITE manual, the traffic estimated to be generated by a repair garage with three
gasoline dispensers during the afternoon peak hour is 87 vte= s, by a convenience store with
three gasoline dispensers is 115 vte= s, and by a convenience store with two gasoline dispensers
is 77 vte= s. The City= s traffic consultant also did an actual traffic count of vehicles using the
repair garage on January 27, 2000, September 19, 2001, and September 20, 2001, and counted
the traffic generation on those dates to be 24 vte= s in the afternoon peak hour. We note that
under any of the proposals the proportional effect of the traffic volume generated by this property
on the actual volume of traffic on Williston Road is very small.

     The City argues that for traffic generated by the existing use, we should use the actual counts
made at the property rather than those predicted for the existing use by the ITE Manual. Several
factors make it unwise to use the traffic counts to compare the traffic generated by the existing
use with the traffic generated by the proposed uses. First of all, the regulations require use of the
ITE Manual= s methods. Those methods allow comparison of the traffic predicted for different
uses by the same methodology. The actual counts may be thought of as representing the
predicted counts as adjusted for the present site by local factors. Some of those local factors may
be chronic, such as the congestion of Williston Road, or the presence of a large, modern
competing station across the street. Other local factors affecting the counts may have been
temporary, such as construction at the highway interchange or the events of September 11, 2001.
It is not possible to determine whether or which of those local factors should also be applied to
reduce the traffic predicted to be generated by the proposed future uses at this site. For all these
reasons, even if the actual traffic generated by the repair garage with gasoline sales use in
September 2001 was in fact lower than the traffic predicted by the ITE Manual for a repair garage
with gasoline sales, the Court is convinced that it is a better practice to use the ITE Manual value
to compare the traffic generation of the existing use, if it were to continue in the future, with that of
the proposed use.

   Using that method, and without adjusting for so-called > pass-by= traffic discussed below, the
two-dispenser proposal can be expected to generate ten fewer trips than the existing use, and
therefore can be approved under the traffic overlay district criteria. The three-dispenser proposal
can be expected to generate 28 more trips than the existing use, and therefore can only be
approved if other site improvements will produce a net benefit for traffic flow in the vicinity.

    However, a number of site improvements will produce a net benefit for traffic flow in the
vicinity. First of all, the particular change of use category will have the effect both of decreasing
the number of vehicles added to the roadway by the proposed use, and of decreasing the number
of left-hand turns (across two lanes of oncoming traffic in either direction) made necessary by the
proposed use. This benefit is a result of the differing behavior of customers of a vehicle repair
garage compared to customers seeking only to purchase gasoline and/or convenience store
items. For most types of uses, including both of the use categories at issue in the present case,
not all the vehicles generated by the use are vehicle trips to the facility as a primary destination.
Rather, a certain percentage can be estimated to be so-called > pass-by= trips: those on the road
for another reason and making a stop at this property. For the existing use of a repair garage and
gasoline sales, a smaller percentage are pass-by trips (52% pass-by) as compared with the
proposed use of a convenience store with gasoline sales (66% pass-by). That is, the customers
of a repair garage generally arrange in advance for their car repair appointments, and generally
leave their cars in the morning and pick up their cars in the late afternoon. They make a trip
specifically to the repair garage, whether or not they would have been traveling on Williston Road
to go to work or for another reason. In addition, as this is one of the last full-service gasoline
stations in the area, some current gasoline customers may similarly go out of their way to
patronize the existing station to avail themselves of the service of having their gas pumped by an
attendant. The change to self-service in both proposals is expected to result in a reduction in
those destination trips, as some of those customers will patronize other gas stations more
convenient to their trip, whether nearer to home or on the way to work. Moreover, the reduction in
destination trips reduces the need for traffic to or from this property to make a left turn across
Williston Road, as only some proportion of the destination trips would have had to have made
that maneuver. All the pass-by trips can be expected to come from westbound vehicles on
Williston Road or from vehicles coming through the access from the adjacent hotel and
restaurant. Drivers traveling on the eastbound side of Williston Road can be expected to stop at a
similar facility on the eastbound side. Thus, for both proposals, the change from a repair garage
with gasoline sales to a convenience store with gasoline sales will produce a net benefit for traffic
flow on Williston Road by reducing the number of destination trips and left turns across traffic
generated by the property.

    The closure of the residential driveway on Lot 2 will have the modest but measurable benefit
of reducing the traffic otherwise generated by the site by 4 vte= s. Finally, the proposal to making
                                                       2
the access through to the hotel property permanent provides a benefit to this property for traffic
wishing to return to Williston Road via a signalized intersection, and a benefit to the neighboring
hotel property of an alternate access for its normal traffic and for emergency vehicles to have
access to that property if its other (sole) access is blocked. These factors compensate for the
increase in traffic generation so that, absent problems of site circulation, both proposals meet the
criteria of the Traffic Overlay Zone.

Site Plan Criteria - Vehicular and Pedestrian Access and Circulation
   However, regardless of whether the traffic would have been on Williston Road anyway, that is,
regardless of the proportion of pass-by trips, the traffic generated by this use must also be
analyzed in terms of whether turning movements onto and from the property during the afternoon
peak hour cause any problems, either for the traffic on Williston Road or for traffic circulation on
the property itself, and whether the site is adequately designed to handle on site circulation.

    Without further design changes, the site plans do not provide adequate vehicular access and
do not provide adequate vehicular or pedestrian on site circulation. Vehicles entering the current
site must make a very shallow angle across the curb cuts to obtain a position at the fueling island
closest to the street, or else must make successive movements to back up and move forward to
reach that position. If another vehicle is occupying any of the fueling positions closest to the
driveway, a vehicle queuing for that fueling position must wait in a position obstructing the access
driveway. Narrowing of the curb cuts will only exacerbate these problems of making the sharp
turn into the fueling positions closest to the sidewalk, although otherwise generally narrower curb
cuts provide an improvement in the positioning of vehicles making a 90-degree turn from a street
onto a property. The site configuration promotes conflict between vehicles entering and leaving
the property and vehicles maneuvering to access the fueling positions. If all four sides of the two
islands are in use by fueling cars, frustrated drivers can be expected to stack up behind them,
blocking access especially from the easterly driveway, or can be expected to back up into that
maneuvering area in order to drive around the back of the building or exit through the hotel lot.
Because no through lane is provided in front of the building, drivers may even drive on the
sidewalk to get around a blockage at the pumps. The availability of circulation around the back of
the building will improve the site circulation, and the availability of the rear access will improve
site access (and egress), but only if adequate signage (not now proposed) informs site users of
the availability of that access, and in particular that it connects with a signalized intersection for
access back to Williston Road.

    The location of the diesel pump, although perhaps little used, is placed to cause conflict with
vehicles accessing the gasoline fueling positions, and with customers walking from their cars in
the easterly parking spaces to the building. Should a large truck or tractor-trailer truck come onto
the site to fuel at the diesel pump and exit through the hotel parking lot, it could block some or all
of the gasoline fueling positions and require drivers to drive behind the building either to
maneuver into the fueling positions from the other side or to exit the site out the other driveway.
The lack of adequate space between the fueling positions nearest the front of the building and the
building will also cause conflict with customers using the area reserved as a sidewalk to the front
of the building.

    We must note that the alternate site plan ideas suggested by the City=s expert witness are not
before the Court in this application. The Court is precluded from considering redesigns of the
project unless they have first been submitted to the DRB for its consideration. Further, it is
unclear to the Court whether Appellant feels itself constrained by the location of its approved
canopy, or whether instead it could apply, as part of an improved site plan, to rotate the existing
canopy 90 degrees or to move the canopy to place the fueling operation to the west of the
building. It is possible that changes in the site plan could be developed provide a through lane in
front of the building by placing the dispensers on a single long island between the locations of the
current islands, or to place them on two or three short islands placed obliquely in that space. It is
possible that the diesel pump could be moved to a location in which it would cause less conflict. It
is possible that the entrances to the store could be designed on the east and west ends of the
building, reducing the need for a sidewalk on the south side of the building. However, such design
changes are not before the court and we will not further analyze them here.

   Because the site plans do not provide for adequate vehicular access or for adequate on-site
vehicular and pedestrian circulation, they cannot be approved as proposed.

Lighting as related to the Adequacy of Screening and Landscaping
    The lighting plan is identical for the two-dispenser and the three-dispenser plans, and that
therefore the unappealed approval cannot be challenged in this proceeding. However, the
adequacy of screening and landscaping can address the illumination of the neighbor= s property
in the northeastern corner., either The lighting plan can be approved with the condition that
Appellant either propose a fixture shield or box for the northeasterly fixture that will prevent the
illumination of the neighboring property, or propose additional fencing or landscaping to screen
light from the neighboring property, or present a request signed by that neighboring landowner
requesting that the illumination be allowed to fall on the neighboring property as proposed.

    Based on the foregoing, it is hereby ORDERED and ADJUDGED that the site plans proposed
for the two- and three-dispenser plans are approved as to the traffic overlay criteria, but are
denied as to the site plan criteria for access and on-site circulation, without prejudice to submittal
of changed plans to address the problems discussed above as to those criteria.

                                       th
    Dated at Barre, Vermont, this 24 day of June, 2002.

______________________________________

Merideth Wright

Environmental Judge




                                                Footnotes

1
 Testimony was presented as to whether the lengthening of this taper would improve the
behavior of traffic at the Williston Road/Dorset Street intersection. Even if it would be an
improvement, such a proposal is not before this Court and would in any event involve a taking of
a narrow portion of the front of Lot 1, for which Appellants would be entitled to be compensated.

2
 The availability of this alternate access will only be a benefit to traffic in the vicinity if the drivers
using the site know of the existence of the alternate access to Williston Road through the
signalized intersection. Accordingly, appropriate signs should be required within the westerly
parking area and at the pass-through visible from the easterly parking area, directing drivers, for
example, to ‘access to Williston Road at traffic signal’ or similar language. No signage or
proposed language has been provided to the Court; it is therefore not reviewed here.
