                                      STATE OF VERMONT

                                   ENVIRONMENTAL COURT

             In re: Appeals of Wesco, Inc.         }
                                                   }
                                                       Docket Nos. 65-3-00 Vtec and
                                                   }
                                                       66-3-00 Vtec
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            Decision and Order on Appellant= s Motion for Partial Summary Judgment

Appellant Wesco, Inc., appealed from two decisions of the Development Review Board (DRB) of
the City of South Burlington denying its application for site plan approval of a 7-fueling-position
proposal (Docket No. 65-3-00), and denying its applications for site plan approval and amended
conditional use approval of a 5-fueling-position proposal (Docket No. 66-3-00 Vtec). Appellant is
represented by Elizabeth H. Miller, Esq.; the City is represented by Joseph S. McLean, Esq.
Appellant has moved for partial summary judgment on two issues: 1) whether the DRB may base
a denial on findings that conflict with findings made in an unappealed conditional use approval
previously granted by the prior Zoning Board of Adjustment (ZBA); and 2) whether the removal of
one gasoline pump requires an amendment to the conditional use approval previously granted by
the ZBA.

The following facts are undisputed unless otherwise noted.

Appellant owns an approximately 40,440-square-foot lot at 1108-1118 Williston Road in the
Commercial 1 zoning district and in Traffic Overlay Zone 2. A gasoline service station now known
as University Texaco has existed on the site since at least 1968. The City states that zoning
regulations have been in effect A at all material times,@ but does not state when zoning was
adopted in the City, and more particularly, when the Traffic Overlay District in Article XXI of the
                                 1
Zoning Regulations was adopted . The face page of the Zoning Regulations provided as
Appellant= s Exhibit D shows an earliest effective date of September 12, 1994.

Under the Zoning Regulations, a gasoline service station is a permitted use in the Commercial 1
zoning district. A convenience store is a conditional use in the Commercial 1 zoning district.
Conditional uses require approval under ' 26.05. Site Plan review under ' 26.10 is required for any
A new use, change in use, or expansion of use@ other than agriculture, forestry, or one- or two-
family dwellings on single lots. Section 26.65 also requires conditional use approval for multiple
uses on a single lot, even if the uses themselves are each permitted uses that would not
otherwise require conditional use approval. Section 21.00 requires new and expanded uses in the
Traffic Overlay District to meet certain size limitations, except that under ' 21.50 the Planning
Commission may approve higher peak hour traffic volumes for pre-existing lots that meet certain
criteria.

The existing improvements on Appellant= s property are an existing garage building and three
double-sided gasoline pumps and a single diesel pump, for a total of seven fueling positions, at
least some of which are > full service= rather than > self service= positions. The location of the
pumps and canopy do not comply with the setback regulations, but are authorized under a
variance; nonconformities of setback are not at issue in the present appeals.

Appellant proposes to convert the existing service station building into a convenience store and
deli (with 12 seats), to construct a 456-square-foot addition for convenience store use (for a walk-
in cooler and storage), and to continue the existing gasoline sales on a self-service basis from
either the seven existing fueling positions or from five of the existing seven fueling positions.

On July 29, 1999, the then-Zoning Board of Adjustment (ZBA) granted Appellant conditional use
approval to convert the existing service station building into a convenience store and deli (with 12
seats), to construct a 456-square-foot addition for convenience store use, and to continue the
existing gasoline sales from the seven fueling positions. In its 1999 decision, the ZBA considered
the traffic overlay district requirements. It found that the allowed traffic generation for this property
under ' 21.303 would be a maximum of 20.22 vehicle trip ends (VTEs) during the afternoon peak
hour. Although the ZBA found that the traffic predicted to be generated by the current use would
be 88.8 VTEs (approximately four times the permitted peak traffic generation), it also found that
the change in use to convert the garage to a convenience store and deli would not result in any
additional vehicle trips during the afternoon peak hour, and that the actual traffic generated by the
existing facility is 31% less than that predicted. No appeal was filed of that decision and it became
final. Appellant promptly applied for site plan approval for the 7-fueling-position proposal.

As of August 1, 1999, the City converted its ZBA and Planning Commission to a unified
Development Review Board. After several hearings and meetings regarding the site plan
proposal over the course of the fall of 1999, and based on discussions at those hearings and
meetings, in December 1999 Appellant filed a revised application for site plan approval for the 5-
fueling-position proposal.

In January, 2000, Appellant applied to the DRB for an amendment to its July 1999 conditional use
approval, seeking approval of the reduction of the gasoline pumps from 3 to 2, that is, a reduction
in the fueling positions from seven to five.

In February, 2000, Appellant sought site plan approval from the DRB for the original 7-fueling-
position application.

On March 7, 2000, the DRB issued two separate written decisions regarding Appellant= s
applications for the University Texaco site. The decision on appeal in Docket No. 65-3-00 Vtec
denied Appellant= s application for site plan approval for the 7-fueling-position proposal which
had received conditional use approval in 1999. The decision on appeal in Docket No. 66-3-00
Vtec denied both Appellant= s application for site plan approval for the 5-fueling-position proposal
and Appellant= s application for amended conditional use approval for the 5-fueling-position
proposal. Both decisions were based at least in part on the Traffic Overlay District considerations
in ' ' 21.30 and 21.50.

First, Appellant is entitled to the benefit of its final conditional use approval for the 7-fueling-
position proposal, unless that approval has expired under the provisions of ' 27.302. That section
provides that the approval expires in six months unless A there is a reasonable amount of
objective evidence@ of Appellant= s A intent to pursue the furtherance of the project.@ Under
the circumstances of this case, despite the passage of time, Appellant has diligently pursued site
plan approval of, first, the 7-fueling-position proposal, and then the alternative 5-fueling-position
proposal. Therefore, the July 1999 conditional use approval has not expired; Appellant holds
conditional use approval for the 7-fueling-position proposal. Any amendment application for the 5-
fueling-position proposal may only reexamine the differences caused by the reduction in two
fueling positions and any changes in pump configuration or placement. It may not reopen those
aspects of the 1999 conditional use approval that are not changed by the reduction in fueling
positions.

Similarly, as an existing use within the traffic overlay zone, the property is entitled to continue the
level of traffic generation of the pre-existing use, even if it exceeds that which would be allowed
for a new or an expanded use. The application for site plan approval of the 7-fueling-position
proposal must be considered under the standards of ' 26.102, independently of whether the
project requires or has obtained conditional use approval. That task is de novo in this Court.
Those review standards include vehicular access and circulation, and other similar site factors A
directly interrelated@ with the specific review standards. Consideration of the effect of traffic on
adjoining roadways is not within the scope of site plan review. However, it is within the scope of
the Planning Commission= s authority under ' 21.50, to determine whether the proposed use will
or will not increase peak hour traffic volumes above that generated by the existing use. The
comparison should be between the existing service station with seven fueling positions, and the
proposed convenience store with seven (or five) fueling positions. That task is also de novo in this
Court, and will be the subject of at least a portion of the merits hearing in this matter.

Appellant argues that the 5-fueling-position proposal should not require conditional use approval,
because it only reduces the intensity of the use. Appellant is correct that the 5-fueling-position
proposal does not require a completely new conditional use approval, but it does require an
amendment, as ' 26.056 requires review of any A alteration@ or A other change@ to an existing
conditional use, and not merely for an expansion of a conditional use. The scope of the review in
the amendment proceedings should revisit any aspect of the application that would change with
the reduced number of fueling positions.

Accordingly, based on the foregoing, Appellant= s Motion for Partial Summary Judgment is
Granted in Part and Denied in Part. Appellant is entitled to the benefit of its final conditional use
approval for the 7-fueling-position proposal, which has not expired. The DRB and hence this
Court is responsible to assess the proposal independently under ' 21.50 as well as for site plan
review. The 5-fueling-position proposal must undergo review for an amended conditional use
approval, as well as site plan review for the altered configuration with five fueling positions.

We will hold a telephone conference on May 11, 2001, to discuss the next appropriate step in
these related cases.

                                rd
Done at Barre, Vermont, this 3 day of May, 2001.




___________________
Merideth Wright
Environmental Judge




                                              Footnotes

1.
    This is important because Appellant has certain vested rights to continue the level of traffic
generation at the site as a preexisting nonconforming use under the requirements of the Traffic
Overlay District.
