                                  STATE OF VERMONT


                                ENVIRONMENTAL COURT


                            }
Appeals of Wesco, Inc.      }   Docket Nos. 209-12-97 Vtec, 215-9-00 Vtec, 222-9-00
      Vtec,
                            }     175-10-01 Vtec and 24-1-02 Vtec
                            }


                                   Decision and Order

      Appellant-Applicant Wesco, Inc. (Applicant) is represented by Jon Anderson, Esq.

and William Simendinger; the City of Barre is represented by Oliver L. Twombly, Esq.

Interested persons Marjorie Sichel, Eugene Clermont, and Percy Labor represent

themselves.

      These consolidated cases have involved, over time, the following docket numbers.

Docket Nos. 10-1-96 Vtec and 75-5-96 Vtec (formerly E96-010 and E96-075) (the

1996 cases) involved the first round of site plans for the site.   The Court ruled on the

merits of these two cases in 1998, after nine days of evidentiary hearings.     These two

cases were the subject of the Supreme Court=s memorandum decision in Simendinger v.

City of Barre, 171 Vt. 648 (2001), which affirmed this Court=s decision in part, and

reversed and remanded it in part. The Supreme Court affirmed the Court=s determination

that the repair garage qualifies as a pre-existing, non-complying structure, housing a non-
conforming use. The majority also affirmed the Court=s determination that the proposed

neighborhood grocery store met the criteria of '5.14.02(c), subject to Applicant=s obtaining

conditional use approval of the neighborhood grocery store proposal. The Supreme Court

reversed and remanded the remainder of the 1998 decision for the municipal boards to

consider Applicant=s applications for conditional use approval and site plan approval on

their merits.

        The parties agreed to the closure of the two 1996 cases on the Court=s docket,

with all the evidence taken in those cases being transferred to the current cases for

consideration on their merits.    In the above-captioned cases, a number of legal issues

were addressed by summary judgment in a decision issued August 7, 2002.

Supplemental evidentiary hearings were held in 2003 over the course of nine additional

days.   Docket Nos. 215-9-00 Vtec and 222-9-00 Vtec involve a second round of site

plan proposals for the site. Docket Nos. 209-12-97 Vtec (formerly 115-3-95 Wncv) and

175-10-01 Vtec involve the conditional use application. Docket No. 24-1-02 Vtec involves

the third round of site plans for the site.

        In the consolidated cases, Applicant seeks conditional use approval and site plan

approval for proposed changes to its property at 169 Washington Street in a Planned

Residential zoning district in the city of Barre. Applicant proposes to convert the use of
the existing building on the property from an automobile repair garage1[1] to a neighborhood

grocery store2[2] (convenience store), and to make associated changes in the building,

keeping the same footprint, and to make associated changes to the site=s lighting,

landscaping and parking. Specifically, Applicant proposes to convert the existing number

of gasoline dispensers from full-service operation (operation of the dispensers by

employees) to self-service operation by customers; proposes to sell convenience store

items from the building, including deli sandwiches and other prepared foods; proposes to

remodel the interior of the building and the doors and windows to eliminate the service

bays and accommodate the proposed convenience store uses; proposes to raise and alter

the roof shape and height; and proposes to construct a canopy over the existing pump

island.




          1[1]
           An additional case not now under consideration, Docket No. 150-9-01Vtec, involves issues
regarding whether the automobile service component of this operation was abandoned.

          2[2]
            The term Aneighborhood grocery store@ is the use category used in the Zoning Regulations;
the term Aconvenience store@ is the term used in the industry and in the transportation engineering
categories. Both terms are used in this decision. We note that nothing in the Zoning Regulations
distinguishes between neighborhood grocery stores that are locally-owned and those that are owned or
franchised by statewide, regional or national companies or chains.
       The evidentiary hearings in 1997 and in 2003 were 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 memoranda and

requests for findings.    Upon consideration of all the evidence, as illustrated by the site

visit, and of the written memoranda and requests for findings filed by the parties, the Court

finds and concludes as follows.




       Since before the enactment of zoning in Barre in 1974, Applicant=s property has

contained an automobile repair garage and a four-fueling-position gasoline station on a

single gasoline island.    The property line at the Washington Street frontage is located

parallel to and approximately 72 feet (by scale from the site plan) from the curb marking

the edge of the street.    Under the Zoning Regulations, setbacks are measured from the

property lines, not from the traveled way of the street.    The existing building is located

approximately 122 feet from the front property line, and is located from 72 feet to fifteen

feet from the easterly side property line.    The existing gasoline pump island is located

approximately ten feet from the front property line. The lot is approximately 16,000 square

feet in area, and contains a relatively flat area extending approximately one hundred feet

back from Washington Street to the beginning of the existing tree line, beyond which it

slopes steeply downwards in back towards Orange Street.
       The existing light over the pump island is outdated both as to its engineering and

its design.   Because the bulb or light source is visible, rather than shielded within a

downcast light fixture or canopy, it produces glare visible to pedestrians, drivers of

vehicles, and neighborhood residents, by having a visible bulb or light source and one that

is of a relative high wattage. Because it is not shielded upwards or to the sides, it also

produces light extending unnecessarily far from the pump island and fueling positions.

       The existing parking of vehicles awaiting repair on the site is haphazard and in the

winter tends to become snowed into those positions for a relatively long period of time.

The large number of vehicles awaiting repair and parked outside is incompatible with the

appearance of a residential neighborhood, and is visible viewed down Charles Street from

above, as well as from Washington Street. A storage trailer parked behind the building is

visible from Orange Street and by pedestrians on or near the property, and contributes to

the cluttered appearance of the property. The building is in need of maintenance. During

its hours of operation, a repair garage use creates noise from power and pneumatic

equipment, and may create fumes from vehicles in need of repair. Hazardous materials

used in vehicle maintenance are used and stored on the premises.

       When it operated as a repair garage and gas station prior to the adoption of zoning

in Barre, the repair garage operated from 6:00 or 7:00 a.m. to 5:00 p.m. on weekdays

and until about noon on Saturdays, and was closed on Sundays, while the gasoline
service component opened for business at 6:00 or 7:00 a.m. and stayed open until 8:00

or 9:00 p.m Monday through Saturday, and opened for business at 7:00 or 8:00 a.m.

and stayed open until 4:00 or 5:00 p.m on Sundays.

       Washington Street is Route 302, a main traffic artery conducting traffic from the

east downhill towards the central business district of the City of Barre. Southeasterly and

up Washington Street from Applicant=s property, Washington Street is zoned as a Planned

Residential zoning district to a depth of a single lot on both sides of Washington Street.

On both sides, the lots behind those fronting on Washington Street are zoned in the R-10

Residential zoning district.   Northwesterly and down Washington Street from Applicant=s

property, the Planned Residential zoning district widens to a depth of several lots on both

sides of Washington Street. Approximately three or four blocks up Washington Street from

Applicant=s lot, both sides of Washington Street are zoned Commercial.            The City=s

historic central business district begins approximately the same distance downhill from or

northwesterly of Applicant=s property.    The area is a mixed use area with residences,

professional offices, and some commercial uses.      Many of the buildings in the area are

nineteenth-century and early-twentieth-century residential buildings, although some have

been remodeled or re-sided with later and less-attractive or less-historical materials.

       Washington Street carries approximately 8058 vehicles per day, or approximately

975 vehicles per hour in the design hour. Whether the use on the lot is an automobile
service and gas station (at 75 vehicle trip ends for the peak hour counted at this location)

or is a convenience store with gasoline pumps as proposed (predicted to be a peak of 78

vehicle trip ends per hour using recognized transportation engineering methods), the use

will not appreciably affect the traffic on Washington Street. Moreover, the proposed project

will generate less traffic traveling on Washington Street than does the present use as an

automobile service type of gas station, because approximately 60% of convenience

store/gas station traffic is so-called pass-by traffic. That is, more of the traffic stopping at

the proposed convenience store and gas station will be traffic traveling on Washington

Street for other purposes than was the case with the automobile service type of gas

station.     In addition, more customers for the convenience store will travel by foot and

bicycle to the property from the surrounding neighborhood, as compared with the

customers for the automobile service component of the automobile service type of gas

station.

           The adjoining property along Washington Street uphill or southeasterly of the

Applicant lot is a single-family residence currently with a day care home occupation, also

in the Planned Residential zoning district. The adjoining property along Washington Street

downhill or northwesterly of the Applicant=s lot is a multiple-unit apartment building.       A

seven-foot-wide easement runs on the northeasterly portion of the Applicant=s lot,

providing access for the apartment residents to a parking lot to serve the apartment
building. Adjacent to the apartment building lot is a neighborhood market without gasoline

service.   Both the apartment and the neighborhood market are also in the Planned

Residential zoning district. The properties across Washington Street are residential. The

windows of the residential building directly across Washington Street from Applicant=s

building face the easterly curb cut on Applicant=s property so that the headlights of any

vehicles exiting Applicant=s property via that curb cut shine directly into the residential

rooms of that building.

       The adjoining properties to the southwest along Orange Street are single family

residences, located in what one witness described as a charming residential district, in the

R-10 Residential zoning district. They are located at a floor elevation substantially below

that of Washington Street. The glare from the existing lights on Applicant=s property and

an existing storage trailer behind the existing building can be seen from at least two of the

Orange Street properties.

       The new gasoline pumping equipment, adapted to self-service, does not increase

the number of existing fueling positions, which remains as four fueling positions.       The

equipment is not of a greater size, capacity or productive capacity; that is, no greater

amount of gasoline or number of vehicles could as a practical matter be processed

through the facility than with the previous equipment.

       The floor space >open to the public= does not include the floor space inside the
built-in wall coolers, even if customers are able to reach into the coolers to remove items

from them. The floor space open to the public in the proposed building is approximately

940 square feet, including the retail space and the bathrooms.




I. Issues not before the Court in the present decision.

       Based on the decision in Simendinger v. City of Barre, 171 Vt. 648 (2001), the

following two issues were not reopened in the remanded or additional proceedings, and

remain the law of the case. First, the building on the site qualifies for consideration as a

pre-existing, noncomplying structure (too close to the front and easterly side setbacks), on

a pre-existing undersized lot, housing a pre-existing, nonconforming (repair garage and

gasoline service) use.   Second, the proposed neighborhood grocery store satisfied the

criteria of '5.14.02(c), allowing Applicant to apply for conditional use approval of the

neighborhood grocery store proposal in the remanded proceedings.

       The City also asks the Court to revisit its August 7, 2002 summary judgment

decision that conversion of the use of the building from automobile service use to

convenience store use should be analyzed as an application for a conditional use, in

addition to determining whether changes to the gasoline service aspects of the proposal

meet the standards of the ordinance for alterations to that preexisting nonconforming use.

This Court declines to reverse its August 7, 2002 decision. Rather, in that decision this
Court very carefully examined this issue and its relation to the Supreme Court=s

memorandum decision in Simendinger v. City of Barre, 171 Vt. 648 (2001).         (See this

Court=s August 7, 2002 decision, at pages 7 through 10, and in particular at page 9.)

Under the Zoning Regulations of the City of Barre, a proposal that falls into more than one

use category, such as the present proposal, must obtain approval under each and every

use category for which it may qualify, as the Zoning Regulations allow more than one use

per lot.

           Section 5.1.04 governing nonconforming uses and noncomplying structures states

the intent of this section to Amaintain the property rights of a parcel of land which has a

nonconforming use or noncomplying structure, while at the same time protecting the

property rights of the surrounding neighborhood.@           Section 5.1.05(3) allows an

undersized lot with an existing Anonconforming structure or noncomplying building@ to be

developed for the purposes allowed in the district, Aprovided that the coverage of the

building is not enlarged.@ Appeal of Mullen, Docket No. 187-9-00 Vtec (Vt. Envtl. Ct.

March 27, 2002).@          The City suggests that its nonconforming use provisions do not

comply with current interpretations of state law.

           Municipalities may and do take different approaches to regulating nonconforming

uses. In re Casella Waste Management, 175 Vt. 335, 338-39 (2003). We must apply

the specific requirements of the City=s particular requirements regarding nonconforming
uses and noncomplying structures to the extent possible to make sense of and give

meaning to all of its provisions, read as a whole, and to avoid interpreting any of its

provisions as surplusage.       Town of Calais v. County Road Commrs., 173 Vt. 620, 621

(2002) (mem.)        We will not invalidate any of the provisions of the Zoning Regulations,

even at the request of the City3[3] itself, unless there is no alternative interpretation to

doing so.

        Indeed, we note that at any time after July 1, 2001, when 24 V.S.A. '4443(d)

(since recodified as '4449(d)) took effect, the City could have proposed amendments to

its Zoning Regulations so that the amended regulations would have been applicable to any

new applications not already pending at the time the amendments were proposed. If the

City feels that any of its regulations do not comport with state law, it may certainly choose

to amend them. If the City had wanted to add a requirement that only one use is allowed

per lot, or had wanted to define the use category of >neighborhood grocery store,= or had

wanted to alter the specific provisions in its Zoning Regulations relating to nonconforming

uses, the City could have acted so that those proposed amendments would have been

applicable to any applications filed after those amendments were first warned.

        The City also renews consideration of another issue concluded in the August 7,

2002 decision on summary judgment: whether '5.1.04(c)(1), regarding maintenance of a

        3[3]
           We do not rule on the City=s standing or lack of standing to request the invalidation of its
own regulations.
nonconforming structure, prevents the interior remodeling because it will result in increased

use and in increased floor area open to the public.         To the extent that this is also a

request to reconsider that issue, the Court declines to change the reasoning in that

decision: first, '5.1.04(c)(1) is inapplicable; second, even if it were to apply, the proposed

renovation does not result in any increase in the >floor area= of the building; and, third,

'5.1.04(c)(1) is silent on and does not regulate an increase in intensity of use, as

contrasted with '5.1.04(c)(5), which does specifically regulate changes in equipment on

the basis of whether the change >intensifies= a nonconforming use.                Because it is

specifically mentioned in another subsection, we must presume that the ordinance intended

not to do so when regulating maintenance under '5.1.04(c)(1).




II. Conversion from full-service to self-service

           As decided in the August 7, 2002 summary judgment decision, the conversion of

the   gasoline     dispensing   equipment   from   full-service   to   self-service,   considered

independently of the uses in the building and of any changes to the building, does not

involve any structural alterations to the building or any change in location of the pump

island.     It does not involve any change in the use category of the use as a gasoline

station.     It only involved the replacement of the pumps themselves with more modern

equipment, followed by a change on the equipment to activate the electronic card-reading
function. For this reason, it must be considered under '5.1.04(c)(5).

       The new dispensers, adapted to self-service, do not increase the number of fueling

positions. Further, the dispensers are not of greater size, capacity or productive capacity,

and their conversion to self-service only change whether it is the customer or an attendant

who is operating the dispenser.    Therefore, the change from full-service to self-service

may be accomplished without DRB approval, under the first sentence of '5.1.04(c)(5).




III. Construction of a canopy over the existing pump island and fueling positions

       The City argues that the proposal to construct even a limited canopy over the pump

island is impermissible because the pump island is already within the front setback and

therefore the canopy would violate the front setback.     Applicant argues from Appeal of

Pearl Street Mobil, Docket No. 2001-249 (Vt. Supreme Ct., December 21, 2001) (three-

justice panel) that a canopy placed over a nonconforming use is not an enlargement of

that use. However, the reasoning of that decision is inapplicable to the present canopy

proposals because in Pearl Street Mobil Athere was no allegation that the canopy would

violate any dimensional requirements@ in the City=s zoning regulations.      In the present

case, either a canopy over the pump island or a larger canopy would constitute the

construction of a new nonconforming structure in the front setback, which is not allowed

without a variance unless it can be approved as an alteration of the existing
nonconforming use represented by the pump island, under '5.1.04(c)(2).

       Section 5.1.04(c)(2) provides in full that Aa nonconforming use or noncomplying

structure may be altered with DRB approval in order to address considerations of energy,

safety, environment and health so long as such alteration does not result in increased floor

area or increased use.4[4]@         That is, it provides a limited exception to the general rule

against alteration or expansion of nonconforming uses or structures.

       At trial, the parties treated this section as if it provided for alterations of

nonconforming uses or structures if and only if the alteration were required to accomplish

an improvement in the level of protection of health, safety, the environment, or energy

conservation afforded by the project (for example to convert a stairway to an accessible

ramp, or to install a berm to protect the municipal sewer system from hazardous spills). In

fact, the language of the section allows alternate interpretations.           While the phrase >in

order to= may be interpreted to mean >required= or >necessary,= it may also be read to

mean merely >convenient= or >useful= to address the listed considerations.                   Similarly,


       4[4]
              Section 5.1.04(c)(2) uses the term >floor area,= which is defined in the regulations to

mean the total area, added together, of all floors of a building inside its walls. The existing pump

island is a >structure= but is not a >building.= The proposed canopy is a >building,= but has no

walls, and therefore has no floor area as the term is defined in the regulations. Thus for structures

without walls or roofs, only the prohibition against >increased use= could be applicable as currently

written. Even though it might have made more sense for the other prong to prohibit an increase in

footprint rather than or as well as floor area, we cannot rewrite the regulatory language.
while the word >considerations= may be interpreted to mean >regulatory requirements,= it

may also be read to mean merely the landowner=s >business preferences= or the

>customers= expectations.=

       If this section suffers from a similar lack of standards as was disapproved by the

Supreme Court in In re Miserocchi, 170 Vt. 320, 325 (2000), and see In re Handy and

In re Jolley Associates, 171 Vt. 336, 345-347 (2000), no canopy could be approved as

an exception to the general prohibition against expansion of nonconformities.         If read

closely, '5.1.04(c)(2) identifies the limited class of purposes intended for an alteration, to

allow it to be considered for DRB approval, but requires interpretation to provide even

minimal Acriteria for the . . . exception[] under which the board of adjustment may

evaluate whether to approve a change in nonconforming use.@ Miserocchi, 170 Vt. at

325.

       Because there is a strong policy against the creation of new nonconforming uses

and structures, if '5.1.04(c)(2) can properly be applied at all, it only makes sense if the

public detriment of a new nonconforming structure must be balanced against an equally

significant public benefit to health, safety or the environment, rather than merely being

balanced against the convenience of an applicant or its customers.                Using this

interpretation, the evidence in the present case supports a finding that the smaller canopy

(only over the existing pump island) would improve public safety by allowing the lights to
be recessed, thereby eliminating glare experienced by passing drivers and the surrounding

neighborhood, and by protecting the functioning of the fire suppression system.

       On the other hand, the proposed larger canopy over the vehicle spaces at the

pumps, as well as over the pump island, would only increase customers= convenience in

using the facility, but would not increase public safety, health, environmental protection or

energy conservation any more than the smaller canopy over the existing pump island. The

proposed larger canopy would not decrease safety and environmental risks due to the

accumulation of ice and snow, because ice and snow must be cleared by the facility as it

now exists, although it would make that job easier for the facility. The evidence does not

support a finding that the proposed larger canopy is necessary to achieve compliance with

any objective safety, health, energy or environmental requirements imposed on the

Applicant by any regulatory authority, such as for disability access, or fire or building code

compliance, or to achieve any substantial safety, health, energy or environmental benefits

to the public.

       This gas station has operated for many years without a canopy. It could operate

safely, by reducing glare, if the canopy were limited to extending over the pump island,

even though the convenience and comfort of customers= use of self-service equipment

and the owner=s ease of operation of the facility would be enhanced by the presence of a

larger canopy. Accordingly, only the 4' x 22' canopy as shown on site plans 105, 107
and 108 can be approved; to avoid incompatibility with the neighborhood for this new

noncomplying structure, its fascia or edge may not be white in color, but should be a

darker color compatible with the color of roof structures in the area.




IV. Conditional use approval of the neighborhood grocery store use

       We determined in the August 7, 2002, summary judgment decision that, even

assuming a preexisting level of sales at the level claimed by Applicant and assuming that

those sales were never discontinued under '5.1.04(a)(3), they were simply not substantial

enough to establish a preexisting neighborhood grocery store use.         No evidence was

presented at trial warranting a change in this ruling.    Accordingly, the conversion of the

use of the building from automobile service use to neighborhood grocery store use must

obtain conditional use approval under '5.32.04.

       The neighborhood grocery store use does not adversely affect the capacity of any

existing or planned community facilities. It does not affect any other ordinances or bylaws

in effect, other than the increased nonconformity of the proposed roof as discussed in

Section V below, and the excessive window size causing excessive lighting, as discussed

in Section VI below.

       The proposed neighborhood grocery store use will have a negligible effect on traffic

on roads or highways in the vicinity, that is, on Washington Street.       It is expected to
experience few if any additional vehicle trips in the peak hours of Washington Street traffic

than the vehicle repair garage use, and to generate fewer trips on Washington Street as

more of its customers can be expected to be passing by on Washington Street for other

purposes anyway. Turns in and out of the existing curb cuts may be made safely, as long

as the gasoline delivery tank truck is scheduled to deliver to the facility during off-peak

hours.

         The character of the area is a mixed-use area along Washington Street, including

residential uses, professional offices, and other neighborhood commercial uses such as

another neighborhood market two buildings down Washington Street, many housed in

formerly residential buildings. The conversion of the repair garage to a convenience store

will be compatible with and not adversely affect the character of the area in that it will

convert the use from a non-conforming commercial use to a conditionally-allowed

commercial use. However, it will only be compatible with the character of the area if its

appearance and its operating characteristics are also compatible with a mixed-use

residential area.

         The appearance of the building will adversely affect the character of the area

unless the amount and placement of the glass window area is reduced, due to the

excessive amount of light for a residential area emanating through the upper quarter of the
height of glass nearest the ceiling5[5], and through the glass corner proposed at the

northerly corner of the front of the building.          We note that in Exhibit 144, the corner of

the building near the street is shown as brick, but on Exhibit 148, showing a reduced

amount of glass near the rear of that face of the building, the front corner of the building

is shown as glass6[6]. To avoid an adverse effect on the character of the area, the front

corner will have to be brick on both the face of the building facing the street and on the

face of the building facing the gas pumps. To avoid an adverse effect on the character of

the area, the panel above the doorway as shown on Exhibits 145 and 148, and an

equivalent panel of the top of the window, will have to be brick or some opaque material.

In connection with the redesigned windows, to avoid an adverse effect on the character of

the area, the windows in the face of the building facing the street will need to be divided

in some way, whether as separate windows, with divided lights, or within an arched

surround, to break up the commercial appearance of the expanse of glass facing the

street.


          5[5]
            The interior lights are equipped with parabolic reflectors and we specifically find that they
will not create glare and specifically find that no lighted signs are proposed to be placed in any of the
windows. Rather, this conclusion is based on the appearance of a lit store interior visible through the
large expanse of windows.

          6[6]
                 Moreover, although these two exhibits purport to show the same building at the same

scale, a comparison of the two reveals that the length of that side of the building is different by

about 5/8" or approximately 6.25 feet. Any revision of the window design to comply with these

conditions should address this discrepancy.
          If the remaining outdoor lighting in the parking area is changed as proposed,

neither the change of use to a convenience store nor the appearance of the building will

have an adverse effect on the residential neighborhood on Orange Street, as the visibility

and audibility of the uses on the property will be reduced as perceived from Orange

Street.

          Applicant argues that the Court should not impose any operating hour limitations,

but that instead the operating hours will be self-limiting as it will not be profitable to keep

the store open after most people in the neighborhood go to bed. However, the Court is

charged with the task of imposing or stating conditions so that any approved conditional

use will not have certain adverse effects, including on the character of the area. This task

may result in a different balance than that reached solely through the economics of an

applicant=s operations, or it may not; if the balance always optimized public as well as

private interests, there would be no need for an assessment of the effect of any proposal

on the character of an area. Applicant=s proposal to open for business at 6:00 a.m. and

proposal to operate to 10 p.m. Sunday through Thursday, and to midnight on Friday and

Saturday will not adversely affect the character of the area as to the opening times or as

to the proposed closing time of 10 p.m. for the convenience store on week nights, but will

adversely affect the character of the area as to the late night hours on Friday and

Saturday nights, due to the headlights of vehicles leaving the property sweeping across the
front windows of the houses across Washington Street, and due to the appearance of the

lighted store interior in the context of the otherwise-darkened neighborhood during the late

night hours.

        We first must point out that because Applicant=s gasoline service use is a pre-

existing, noncomplying use, it may not extend beyond the hours of operation of the former

gasoline service use.       See Appeal of Smith, 263-12-02 Vtec (Vt. Envtl. Ct., Dec 20,

2004) (slip op. at 3); Franklin County v. City of St. Albans, 154 Vt. 327, 331 (1990) (AIf

the nonconforming use was not abandoned, as the trial court concluded, then resumption

of activity at the jail to pre-[zoning ordinance] levels, so long as it was within the range of

the previous activity and not greater than the maximum activity within that [previous]

range, was not an expansion as a matter of law.@)                   The pre-existing gasoline service

component opened for business at 6:00 to 7:00 a.m. and stayed open until 8:00 or 9:00

p.m.    Monday through Saturday, and opened for business at 7:00 to 8:00 a.m. on

Sundays, closing at 4:00 or 5:00 p.m. on Sunday afternoons. Accordingly, the gasoline

service component of Applicant=s operation must observe the hours of 6:00 a.m. to 9:00

p.m. Monday through Saturday, and 7:00 a.m. to 5:00 p.m. on Sunday, independently of

the hours established in the conditional use approval of the neighborhood grocery store

component of Applicant=s operation7[7].


        7[7]
            The Court understands the practical difficulties that may arise in having different closing
hours for the gasoline service than for the convenience store. However, we note that this is not a
        The hours of operation of the neighborhood grocery store component of Applicant=s

proposal may extend from 6:00 a.m. to 10:00 p.m., so that the interior lights of the

building are reduced and the exterior lights are turned off to their nighttime security setting

to avoid customers coming onto the property after that time.                    However, the largely

residential character of the surrounding neighborhood precludes the midnight closing hours

proposed for Friday and Saturday nights, even though some or even many neighborhood

residents may generally tend to stay awake later on those nights. The professional office

uses and neighborhood commercial uses are not open at that late hour. Although some

traffic continues to travel on Washington Street at all hours, that traffic is not as disturbing

to neighboring residences as is the effect of exiting headlights sweeping across the fronts

of opposing buildings. Most importantly, the appearance of the well-lit glass front and side

store windows is incompatible with the late-night quiet of a predominantly residential

neighborhood.




V. Remodeling of the building as alteration to a nonconforming structure under 5.1.04(b)




condition being imposed by the Court, but is rather a consequence of the fact that the gasoline service is
the nonconforming use on the lot. It is up to Applicant whether it wishes to avail itself of the somewhat
longer hours provided in this decision for the neighborhood grocery store use.
       As discussed in the August 7, 2002 summary judgment decision, the proposed

remodeling of the building to accommodate the new convenience store use must be

considered as a change to a nonconforming structure under '5.1.04, as well as requiring

site plan approval.    Under '5.1.04(b) a noncomplying structure may be used and

continued, but may not be Amoved, enlarged, altered, extended, reconstructed or restored

unless such changes comply with the standards of the district in which such structure is

located.@ (Emphasis added).

       With regard to the changes to the building=s walls, windows and doors and roof,

the building is being reconstructed or altered, as the term alteration is defined in '5.2.03,

in that it is undergoing structural change or rearrangement.            The building is a

nonconforming structure only as to the front and side setbacks.      None of the proposed

window, wall or door remodeling alterations occupy more of these setbacks than did the

existing building, so that the proposed remodeling alterations for the walls, windows and

doors do comply with '5.1.04(b).   However, not only is the roof proposed to be remodeled

or altered, but the roof changes also constitute an enlargement to the building, as the roof

is proposed to be raised in height and changed in design from a flat-topped shallow

mansard-style roof to a taller >pitched= or hip roof, with a peak over the front door as

shown in Exhibits 144, 145 and 148. Based on the scale of the site plan, more than half

of the building is within the 30-foot side setback required for non-residential uses, and
approximately the front third of the building is within the 40-foot front setback required for

non-residential uses. '5.12.04(e), made applicable through '5.14.04. Thus, although the

footprint is not proposed to be enlarged, it appears that, based on the design of the

proposed roof in evidence, the proposed roof remodeling alterations occupy more of both

setbacks8[8] than did the existing building, so that the proposed remodeling alterations for

the roof fail to comply   9[9]
                                 with '5.1.04(b).




        8[8]
           That is, it occupies more of the volume of the setback area. See, e.g., Appeal of Tucker,
Docket No. 99-399 (Vt. Supreme Ct., March 10, 2000) (three-justice panel, slip op. at 3).

        9[9]
              The problem of whether the enlargement of the roof complies with the setbacks would not
arise if the space contained within the roof occupied no more of the setback than did the previous roof,
as if a mansard-style roof were designed or redesigned for the remodeled building, or if the taller
portions of the roof only occurred beyond the setback areas.
VI. Site plan approval

        Applicant has proposed five different site plans representing differences in the

number and configuration of the proposed parking and loading spaces, the dumpster, the

landscaping, and the canopy (Exhibits 104 through 108), with variations in parking and

loading as shown in Exhibits 133 through 135.

        The Zoning Regulations incorporate by reference the site plan standards from then-

24 V.S.A. '4407(5)10[10], involving the adequacy of traffic access, circulation and parking;

and landscaping and screening.




        10[10]
               No >other matters= are specified in the bylaws for site plan approval, and the protection
of the utilization of renewable energy resources is not at issue in this application.
        The parking and loading requirements applicable under Article 7 of the Zoning

Regulations must be analyzed separately for the gasoline service use and the convenience

store use.11[11]    The gasoline service use is preexisting and under '5.7.01(e) the parking

and loading requirements of the regulations do not apply to it.              In any event, the four

spaces at the pump island (numbered as spaces 1 through 4 on all of the site plans), are

adequate to serve the gasoline service function. Even if a customer leaves a vehicle at

the pump to go inside to pay, that space will simply be unavailable for a new gasoline

customer for that period of time, as drivers of vehicles seeking gasoline service who see

congestion at the pumps as they approach the station will simply not stop at that station at

that time.         Regardless of whether a loading space is designated on-site for the

convenience store use, gasoline deliveries must be scheduled to be made during off-peak

times to avoid on-site circulation conflicts with the gasoline delivery tanker truck. This may

well be Applicant=s practice in any event, but in the present case it must be a condition of

any site-plan approval.

        As the use of the property as a neighborhood grocery store was not preexisting,

'5.7.01(e) does not apply to that use, so that the parking and loading spaces required for



        11[11]
              To the extent that the City was deriving a 15-space parking requirement from this Court=s
1998 decision, that aspect of the 1998 decision was what was reversed and remanded. Moreover, that
site-plan analysis was based only on a site plan that proposed the convenience store with a single
gasoline dispenser, not now within the current proposals. As to site plan approval of the current
proposals, the parking required by the Zoning Regulations is before the Court de novo.
the neighborhood grocery use must be analyzed under Article 7. Under '5.7.01(b)(8) five

spaces would be required (one space for every 200 square feet of the 940 square feet of

floor space open to the public12[12]), plus two spaces for the employees who might both be

present at the same time, if only while changing shifts, for a total of eleven parking spaces

without the need for a waiver. There is no basis for a waiver of any of the eleven spaces,

so that the number of spaces shown in Exhibits 106 and 133-135 cannot be approved.

        As less than a thousand square feet of floor space is open to the public, the

requirement for a loading space does not apply Aif there is not sufficient space on the lot

for an off-street loading space.@ '5.7.03(b). While there are various locations on the lot

shown on the different site plans for a loading space, they are not convenient to the

building, are not as convenient to the building as it would be for the deliveries to be made

from a vehicle parked on the street in front of the building, and contain enough potential

for conflict at peak hours to support the Court=s conclusion that the '5.7.03(b) exception

should be applied.      Under off-peak conditions a delivery vehicle could park close to the

building in one of the customer spaces; under peak conditions a delivery vehicle in any of

the proposed loading spaces would potentially cause inconvenient maneuvering for

customers seeking to use either the fueling positions or the convenience store.

        12[12]
            This calculation assumes that there would be no seating at the deli counter. If seating
were proposed, the calculation would have to be based on one space for every 150 square feet of floor
space open to the public, and evidence of the appropriate allocation of the interior space to the deli as
opposed to the convenience store would have to be presented.
Accordingly, a designated on-site loading space will not be required for site plan approval,

but the scheduling of convenience store deliveries at off-peak hours will be required to

avoid on-site circulation conflicts.

       On-site pedestrian circulation is adequate for all site plans. If gasoline and other

deliveries, and servicing of the dumpster, are scheduled for off-peak times, on-site

vehicular circulation is adequate for all site plans if modified as follows. For site plan 104,

on-site vehicular circulation is adequate if spaces 11 and 12 as shown on that site plan

are reserved for employees or if a paved backing and turning area is added in the location

between the end of space 11 and the existing tree line.           For site plan 105, on-site

vehicular circulation is adequate if space 15 as shown on that site plan is eliminated, and

if space 10 as shown on that site plan is reserved for employees. For site plan 106, on-

site vehicular circulation is adequate if a paved backing and turning area is added in the

location marked >existing grass,= as shown on Exhibits 133 through 135. For site plan

107, on-site vehicular circulation is adequate if space 11 shown on that site plan is

reserved for employees. For site plan 108, on-site vehicular circulation is adequate if a

paved backing and turning area is added in the location marked >existing grass,= as

shown on Exhibits 133 through 135.

       With regard to the adequacy of landscaping and screening, '5.7.02 applies Awhere

any nonresidential district or use abuts a residential district.@ Emphasis added. It is not
triggered where a nonresidential district or use abuts a residential use; although that might

be good policy, it is not what the Zoning Regulation requires. The subject property is a

nonresidential use in a residential district. It abuts a different residential district only at the

rear, where much more than a fifteen foot strip is suitably screened and landscaped by

existing vegetation plus a new line of evergreen screening at the top of the bank.

Moreover, this requirement can be met even if the section is read to require that a fifteen-

foot-strip be Asuitably screened and landscaped in a reasonable manner@ between the

parking areas for Applicant=s nonresidential use and the neighboring residential properties.

The proposed addition of juniper shrubs in the easterly front corner of the building

adjacent to the single-family residential property,      provides suitable landscaping for the

single existing parking space in front of the building. On the other side of the property,

adjacent to the apartment building property, Applicant=s property provides the right-of-way

to and abuts the gravel parking lot for the apartment building. It would not be suitable or

reasonable to provide any landscaping or screening along or within that right-of-way; such

landscaping or screening would interfere with the use of that easement area by both

properties. The single new tree proposed in site plans 105, 107 and 108 next to the light

pole in the corner of the property near the corner of the adjacent parking lot provides

suitable landscaping for that location. For the site plan 108, some added shrub plantings

adjacent to the end of the apartment parking lot in the area shown on site plan 105 would
provide suitable and reasonable landscaping for that location, but it is not suitable or

reasonable for such plantings to occupy the full fifteen-foot width, as it would interfere with

site circulation on the site and is not necessary for screening as the adjacent area on the

apartment lot is also used for parking.




Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that;

       1)     Conditional use approval is granted for Applicant=s proposal to convert the

building from automobile service station use to neighborhood grocery store use, with the

following conditions:

       a.     the roof shall be redesigned so that it does not increase the degree to which

              it occupies space within the setback area;

       b.     the fenestration shall be redesigned to reduce the glass area and to make

              the appearance of the end of the building facing the street compatible with

              the area as discussed in this decision;

       c.     the neighborhood grocery store use may be operated during the hours of

              6:00 a.m. to 10:00 p.m., provided that the light levels are reduced promptly

              by 10 p.m. as discussed in this decision. The gasoline service use may be

              operated during the hours of 6:00 a.m. to 9:00 p.m. Monday through

              Saturday, and 7:00 a.m. to 5:00 p.m. on Sundays.
       2)     Approval under 5.1.04(c)(2) is granted for a 4' x 22' canopy over the

existing pump island; the canopy fascia shall be of a dark color used for roofing in the

surrounding area.

       3)     Site plan approval of Applicant=s proposal is granted for the parking

configuration, canopy, lighting, landscaping and screening provided in Exhibit 108, with the

changes as discussed in this decision, specifically:

       a.     the addition of a paved backup area at the rear of the parking lot next to the

       dumpster, similar to that shown on Exhibit 133, to provide for on-site circulation and

       backing up from some of the parking spaces and for access to the dumpster by the

       garbage truck);

       b.     the addition of some plantings adjacent to the boundary with the apartment

       parking lot in the general area of but closer than 15 feet as shown in Exhibit 105;

       c.     provision for gasoline deliveries at off-peak hours, and convenience store

       deliveries at off-peak hours, to avoid on-site circulation conflicts with the delivery

       vehicles and to eliminate a designated on-site loading space.




       Due to the complexity of this decision, on or before February 11, 2005, Applicant

shall submit a proposed judgment order with a revised site plan and revised building

elevations consistent with this decision, approved as to form by the City and with copies
supplied to the three unrepresented parties. Any party may submit any comments on or

objections to the proposed judgment order or site plan on or before by February 22,

2005. As the Court anticipates moving to its new location on approximately February 14,

2005, please call the Court at 802-479-4486 (current number) or 802-828-1660 (new

number), as appropriate, to determine the correct address for filing.



       Done at Barre, Vermont, this 27th day of January, 2005.




                            _________________________________________________
                                   Merideth Wright
                                   Environmental Judge
