                                  STATE OF VERMONT

                               ENVIRONMENTAL COURT

                                           }
Appeal of Wesco, Inc.                      }       Docket No. 39-3-03 Vtec
 (re: 219 Main St., Burlington)            }
                                           }

                              Decision and Order on
       Cross-Motions for Summary Judgment and Appellant=s Motion to Remand
       Appellant Wesco, Inc. appealed from a decision of the Development Review Board
(DRB) of the City of Burlington, upholding the Zoning Administrator=s denial of the
application as an impermissible successive application. Appellant is represented by Jon
Anderson, Esq. and William Simendinger, Esq; and the City is represented by Kimberlee J.
Sturtevant, Esq.
       The parties initially moved for summary judgment in the fall of 2003, during which
briefing they realized that there was an issue as to whether the City owned the land
underlying a portion of the proposed project.        The City moved to clarify or, in the
alternative, to dismiss for failure to obtain the approval of the City as landowner for the
project to >encroach= on its property. The appeal was put on hold at the request of both
parties so that they could investigate the legal and land ownership history of this parcel and
of the land lying under the City=s right-of-way to Main Street and its sidewalks. The
present motions supersede the motions originally filed in 2003.
       The following facts are undisputed unless otherwise noted.
       In 1988 Appellant applied to the then-Planning Commission for approval of plans to
replace its gasoline pump islands, to place a canopy over the gasoline pump islands, and
to place two circular signs on the proposed canopy, at its facility at 219 Main Street. In
connection with the application Appellant proposed to make changes in its parking spaces
and landscaping. The canopy was originally proposed to be 25' x 50' in area, and 17 feet
in height (representing a 14' clearance and a 3-foot blue fascia). Over the course of the
application period various adjustments in the height, size and color of the canopy were
proposed to the Planning Commission, including a white color, the deletion of the signs, a
height of 14' or 15' (representing a 12' clearance and a two- or three-foot fascia) and an

                                               1
area of 22' x 45'. In May of 1988 the Planning Commission denied the application, citing
the lot coverage standards of the regulations and four reasons from the design review
criteria, of which three (landscape, open space, and surface water drainage) related to the
lot coverage and one related to the relation of the proposed canopy to its environment. At
that time, the Planning Commission calculated the lot coverage of the proposal as 82%,
while the maximum allowed in the ordinance was 80%. On the criterion of >relation of
building to environment,= the decision stated: A The proposed canopy is extending existing
                               1
coverage vertically and is blue aluminum that is [n]ot compatible and conceals the existing
brick building; further this proposed tall canopy is not appropriate and out of character and
scale with surrounding structures. Appellant did not appeal that denial.
       On December 21, 2001, the Vermont Supreme Court issued a decision in an
unrelated case under Burlington=s zoning ordinance: Appeal of Pearl Street Mobil, Docket
No. 2001-249 (three-justice panel), in which it ruled that a proposal to install a canopy over
existing gasoline pumps did not constitute an enlargement of a nonconforming use.
       On December 11, 2002, Appellant submitted the application at issue in this appeal,
for addition of a canopy, reconfiguration of parking, reduction of paving, and addition of five
street trees, two along Main Street and three along South Winooski Avenue.                The
application was initially denied by the Zoning Administrator as an impermissible
Asuccessive application with no change in circumstances and no material design or
dimensional changes to a previous application that was denied,@ referring to the 1988
application. The DRB upheld the Zoning Administrator=s determination, but also denied the
application on its merits, making findings as to its adverse design and lighting in relation to
the >gateway= streetscape and adjacent residential district. The DRB stated that it took
issue not with the Acanopy concept, but [with] the sensitivity (size, scale and design) with
which it attempts to co-exist in this gateway to Burlington=s downtown.@


       1
        The minutes reflect that during the meeting the applicant stated that the
proposal being considered was Ano longer blue aluminum but it is now white with no
signs.@




                                              2
       The application has been modified while the case has been pending before this
Court, in order to address the newly-researched boundaries and the design compatibility
issue. Appellant now proposes two alternative2 site plans. Alternative 1, as proposed to
the DRB with the formerly-understood property lines, is for a flat-roofed white canopy, 24' x
48' in area, and 19 feet in height, representing a 16' clearance and a 3-foot fascia. Even
showing the former property lines, the two street trees located along Main Street are
proposed as located entirely on the City=s property, and the two parking spaces proposed
closest to Main Street are located partially on City property. Alternative 2 moves the
proposed parking so that it is located entirely on Appellant=s property according to the
currently-understood property lines. It also deletes the proposal for the street trees3, and
proposes a 24' x 43'3" hip-roofed canopy, with a clearance of 14'6" under the canopy, a
one-foot canopy fascia or edge Ato match building,@ and a shingled hip roof Ato match
building.@ As shown on the plans, the under-canopy lighting would be shielded by the
overhanging edge of the canopy.




       2
        The City declined to agree to have the matter remanded to the DRB for its
consideration of the second of these alternatives, continuing to argue that any
consideration of a canopy at this location is precluded by the Planning Commission=s
unappealed 1988 decision.
       3
           It is unclear whether Appellant continues to propose to cover the cost of
installation of the street trees, if the City were willing to have them installed on the City=s
property, and, if so, whether the City would thereafter be responsible for their
maintenance. Cf., DRB decision, page 3, first >value added= bullet.




                                              3
       An applicant is entitled to make a successive application to one that has been
                                             4
denied if it is either different in its content or if some change in external circumstances
(such as a material change in the applicable law or regulations, or a substantial change in
the character of the area or the route of a roadway, or a substantially new technology or
scientific knowledge about the consequences of a proposal) has occurred in the
intervening time. In the present case, we need not examine whether these sorts of
external changes have occurred in the fourteen years between the applications, because
the current application itself (and especially Alternative 2) is different from that proposed in
1988 in terms of the proposed landscaping, the proposed parking configuration, and the
proposed canopy color and lighting, and also (with respect to Alternative 2) the proposed
canopy design and appearance in relation to the building on-site and to the surrounding
neighborhood. Although the hip-roofed canopy is taller at its peak than the flat design
originally proposed, it is different enough so that it should be reviewed on its own merits for
compatibility with the area. That is, Appellant is entitled to have the DRB fully consider its
proposal or proposals on their merits, and to appeal the merits of any denial, not merely
whether it is or is not an impermissible successive application.
       Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
the City=s Motion for Summary Judgment is DENIED, and Appellant=s Motion for Summary
Judgment and Motion to Remand is GRANTED. The Zoning Administrator=s and DRB=s
decisions are vacated and the matter is remanded to the DRB for it to consider Appellant=s
current proposal or proposals for site plan and design-related approval for its 219 Main
Street property.
       Done at Barre, Vermont, this 29th day of November, 2004.



                                    _____________________________________________
____
                                    Merideth Wright
                                    Environmental Judge


       4
         Especially if the new or amended content is directed at addressing or
correcting the reasons for denial.


                                                 4
