                                  STATE OF VERMONT

                              ENVIRONMENTAL COURT

                                                   }
In re: Kinney Drug and                             }
        Pomerleau Real Estate Application          } Docket No. 101-5-06 Vtec
        (Appeal of Victoria, et al.)               }
        (Cross-Appeal of City of Burlington)       }
                                                   }

                                   Decision and Order

       Appellants1 Stephanie Victoria, Andrew Golub, Elisabeth Lang Golub, Anne

Paradiso, Sean Stone, Jill Stone, M.A. Viets, Jeffrey Wick, and Wesco Realty, LLC appealed

from a decision of the Development Review Board (DRB) of the City of Burlington

approving a development application for a drugstore building and associated site

improvements at 308 Shelburne Street at the southeast corner of the intersection of

Shelburne Street and Prospect Parkway. The City of Burlington filed a cross-appeal raising

traffic issues only. Appellants are represented by David H. Casier, Esq.; Appellee-

Applicants Kinney Drug and Pomerleau Real Estate are represented by Scott A. McAllister,

Esq.; and the City is represented by Kimberlee J. Sturtevant, Esq.

       An evidentiary hearing was held in this matter before Merideth Wright,

Environmental Judge, who 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 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.



  1
     These individual appellants were allowed to substitute as parties-appellant under 24
V.S.A. §4465(b)(3) as they were the actual members of the group “SPAN” (Shelburne
Road/Prospect Parkway Association of Neighbors) which did not qualify for party status
as a group under §4465(b)(4).

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       Applicants’ project is proposed for a 55,037-square-foot property on the corner of

Shelburne Street (U.S. Route 7) and Prospect Parkway. The property is located at the

northern end of a Commercial zoning district, in a Design Review overlay district. A

Residential Low Density zoning district adjoins the property to its east as well as across

Prospect Parkway to its north.2 A high-rise office building is located on the adjoining

property to the south of the project property. Across Shelburne Street from the project

property, also in the Commercial zoning district, is a gasoline station and convenience

store owned by Appellant Wesco Realty, LLC.

       The project property contains a dilapidated single-story existing restaurant building

that has not been in use as a restaurant for some years. It has access to Shelburne Street by

two wide curb cuts on either side of the existing building, the more northerly one of which

is close to the intersection of Shelburne Street with Prospect Parkway. At present the

property has no access onto Prospect Parkway. It has an existing poorly defined parking

and on-site circulation area extending eastwards from each curb cut and connecting around

the rear of the restaurant building. An existing band of trees extends along the easterly

side of the property to Prospect Parkway and along (and within) the ravine on the

northerly side of the property.

       The building was at one time listed on the state Register of Historic Places, as an

example of the “fairytale colonial revival” Howard Johnson restaurant style, but it was

removed from the register on June 14, 2006, as modifications to it in 1984 had changed it


  2
     The fact that some traffic using the proposed project site would of necessity travel on
the westbound lanes of Prospect Parkway adjacent to the adjoining residential district does
not mean that the project is impermissibly located in the residential rather than the
commercial zoning district. The project property is entirely within the Commercial zoning
district. The Court appreciates the residents’ concern to preserve what they characterize
as the “gateway” to their residential area, but the zoning districts are established in the
Zoning Ordinance and the Court must analyze the project according to the zoning
ordinance as it exists.

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so that it no longer reflects the architectural significance for which it was listed. Removal

of the building will not adversely affect the heritage of Burlington. No blasting is proposed

for the site.

       The Court ruled on the record on the motions for summary judgment with regard

to Questions 2 and 5. With regard to Question 5, the proposed project falls within the use

category of “retail establishment,” which is a permitted use in the Commercial zoning

district. It therefore need not be addressed as a “convenience store,” which is a sub-

category of the “retail establishment” use category applicable to smaller stores (which are

allowed in some residential districts).

       With regard to Question 2, the proposed project does require review under the

conditional use criteria, not because of its use category, as discussed with relation to

Question 5, but due to the fact that the Englesby Brook and Ravine is a significant natural

area, which requires major impact review under §13.1.3(a)(4) of the Zoning Ordinance, and

therefor requires conditional use approval. §13.1.5.

       After those rulings and before the remaining days of trial, the parties agreed that the

only sections of the Zoning Ordinance remaining at issue in this appeal as of the time of

trial are those discussed below, grouped into essentially three areas: issues relating to the

effect on Englesby Brook, issues relating to landscaping and screening, and issues relating

to traffic, parking and circulation.

       The differences between the plans as presented to or as approved by the DRB and

the plans as presented in Court are within the scope of the issues raised at the DRB, and

therefore did not require remand. In fact, an earlier proposal was designed with an exit

and entrance in both directions on Prospect Parkway; Applicants modified the plan to

propose a one-way left turn exit, to address neighborhood concerns expressed before the

Design Advisory Board. The issue was on the table at the Development Review Board, as

reflected in City staff comments to the DRB favoring access from Prospect Parkway directly


                                              3
into the site. The City filed a cross-appeal on these traffic and access issues and disclosed,

at least a month before the two days of hearing scheduled for traffic issues, that it would

be arguing for a full-use access on Prospect Parkway.



       Englesby Brook flows from a protected area located to the east and southeast of the

project property under the project property through an existing 30" diameter stormwater

line, exiting into an existing ravine located on the northerly (Prospect Parkway) side of the

project property. Two other existing stormwater lines from the northeast cross under

Prospect Parkway to an outfall within the ravine. The sides of the ravine are eroding; the

erosion is exposing the roots of some of the trees in the ravine, and therefore increasing the

risk of loss of those trees and further accelerated erosion. In connection with the site work

for the proposed building, parking lot, and access driveways, Applicants propose to build

a retaining wall along the southern and eastern sides of the ravine, to repair eroded areas

and stabilize and save as many trees within the ravine as are capable of being saved. They

propose to install a new riprap-controlled outfall for the new stormwater retention system

on the property, including the outfalls from the existing stormwater lines, that will

substantially reduce or eliminate the likelihood of erosion within the ravine in the future.

The proposed improvements to the ravine and the stormwater-handling system on the

property will reduce future pollution and therefore have a positive effect on the water

quality of Englesby Brook, to the extent that it is affected by the project property.

       Applicants propose to install a 24-foot-wide driveway giving access to and from3

Prospect Parkway close to the northeasterly corner of the project property. This proposed

access will not further disturb the Englesby Brook ravine or further affect the water quality



  3
    This driveway was originally proposed as a left-turn exit only in response to concerns
expressed by residents of the Prospect Parkway neighborhood; the current proposal before
the Court is for a two-lane entrance and exit driveway.

                                              4
of Englesby Brook, due to the proposed retaining wall and the stormwater treatment

system and drainage system proposed for the property.

       Accordingly, the proposed project meets the requirements for approval under

§6.1.10(e) of the Zoning Ordinance in that it will have an adequate stormwater and

drainage system to provide for nature’s events.         The proposed project meets the

requirements for approval under §13.1.6(d) of the Zoning Ordinance, in that it will not

cause unreasonable soil erosion (and, indeed, will reduce or eliminate the soil erosion now

occurring); and meets the requirements for approval under §13.1.6(h) of the Zoning

Ordinance, that the proposed project not have adverse effect the significant natural area

of Englesby Brook and its Ravine.

       Applicants propose to remove the existing building and to construct a new single-

story 11,500 square foot building for use as a drugstore, including a pharmacy with a

licensed pharmacist and a drive-up window for prescription pick-up. The proposed store

will also sell non-prescription drugs and other health care and personal care products; the

store will not sell gasoline. The market area from which the store is expected to draw

customers includes portions of Burlington, South Burlington and Shelburne.

       The building is proposed to be located close to Shelburne Street, so that the face of

the building is set back ten feet from the edge of the public sidewalk along Shelburne

Street, and to have windows only on the west (Shelburne Street) and south facades (except

for the small prescription pick-up window under the drive-up overhang on the easterly

side) of the building. The building is proposed to have a concrete walkway along its west

and south sides, leading to an entrance on its southwest corner, with a gable roof over that

corner of the building’s walkway, supported by columns.

       Some trees in the northeastern portion of the property will be removed to allow for

the construction of the parking lot and access onto Prospect Parkway; some but not all of

the trees to be removed are in poor condition. A large locust tree in the northeast corner


                                             5
of the property will be preserved.

       Three maple trees, four spruce trees, and eleven arborvitae will be planted along the

easterly boundary near the Prospect Parkway access drive, to increase the screening

between the property and the neighborhood to the east. Only the upper crowns of only

some of the trees scheduled for removal are visible from properties in the Prospect

Parkway neighborhood; enough trees will remain so that the removal of the trees will not

adversely affect the residential properties in the neighborhood, if their removal is

noticeable at all. Additional street trees and plantings are proposed for the Shelburne

Street side of the property, at either side of the Shelburne Street driveway, and along the

southerly property line, so that the project will be attractively landscaped on all sides..

       Accordingly, the proposed project meets the requirements for approval under

§7.1.6(c) of the Zoning Ordinance in that the proposed landscaping and screening is

adequate to insure protection of and to enhance the quality of the project and the adjacent

properties. The proposed project also meets the requirements for approval under §6.1.10(b)

of the Zoning Ordinance, regarding the preservation of the landscape.

       Applicants propose to eliminate the existing curb cut closest to the Shelburne Street-

Prospect Parkway intersection, and to install a more defined 24-foot-wide curb cut as far

south as possible on the property from the intersection, for access to the parking lot and

drive-up window. Applicants propose to reconstruct the public sidewalk as necessary

along Shelburne Street, and to plant additional street trees along Shelburne Street.

       Applicants propose a loading dock and dumpster location on the north side of the

building, with enough paved space between the building and the ravine retaining wall for

a tractor-trailer of the size used by Kinney Drug for its weekly deliveries to back in and

unload deliveries, or for a garbage truck to have access to the dumpsters. Applicants

expect one tractor-trailer delivery per week, and have the capability to schedule this

delivery when the store is closed or during off-peak hours for the use of the drive-through


                                              6
to avoid conflicts with vehicles exiting the drive-through location. All other deliveries will

be by smaller trucks that can use either the loading dock or can use the parking lot spaces

to deliver by the front door during off-peak hours, and which can be scheduled so that no

more than one such delivery is being made at any time. Without a waiver, under §10.1.9

the project would require four loading spaces. The loading dock provides one of the

required loading spaces; the project qualifies for a waiver of three of these spaces under

§§10.1.19(a) and (b) and 10.1.20(d) of the Zoning Ordinance, but only if the deliveries are

scheduled as represented by Applicants..

       Applicants propose to provide a drive-through access to a protected window on the

east side of the building at which customers can pick up and pay for prescription

medications without parking and going into the store. The drive-through lane is entered

at the southeast corner of the building and exited at the northeast corner, from which a

drive-through customer can either proceed to exit at Prospect Parkway or can turn to drive

back through the parking lot to exit onto Shelburne Street.

       Applicants propose to install a parking lot on the southerly and easterly sides of the

building, containing fifty spaces, two of which qualify as accessible spaces.              The

configuration of parking spaces proposed for the easterly side of the parking lot were

changed so as to preserve more of the existing trees along the northeasterly boundary of

the property. The parking spaces are laid out so as to provide for ease of maneuvering

vehicles in and out of the spaces and to and from both of the exits from the property. The

parking lot is laid out at the side and rear of the building so as to avoid any parking in front

of the building.     The parking lot will not be visible from the Prospect Parkway

neighborhood. Without a waiver, the proposed retail store would require 77 parking

spaces.

       The proposed project is located on a municipal bus line which stops near this

intersection. Over eight hundred residences are located within an approximately ten-


                                               7
minute walking distance of the proposed project; those residents are likely to walk or

bicycle to the store. In addition, customers using the drive-through window will not

require parking spaces; the drive-through window queuing lane is designed to

accommodate approximately five cars without blocking any parking spaces.

        As observed in a similar store on Williston Road4 in South Burlington, of the 61

spaces in the Williston Road store’s parking lot, during the three potential peak periods of

7:30 to 9:30 a.m., 11 a.m. to 1:30 p.m., and 3:30 p.m. to 6:00 p.m., the highest average

number of occupied spaces during any of those periods was sixteen spaces. This difference

between the available spaces and the necessary spaces is sufficiently great to confirm that,

with the alternative transportation mode use and the shared use with the drive-through,

fifty spaces will provide sufficient parking for the proposed project at its peak periods of

use. The proposed project meets the requirements for a waiver of 27 spaces under §10.1.19

of the Zoning Ordinance.

        Shelburne Street is a major arterial roadway, with two northbound and two

southbound lanes at the project intersection. The intersection of Shelburne Street with

Prospect Parkway is controlled by a traffic light (traffic signal); it is the first traffic signal

encountered by southbound traffic on Shelburne Street, and the last traffic signal

encountered by northbound traffic. However, unlike all the other traffic signals to its

south, the traffic signals at this intersection are located on posts at the sides of the road

rather than being suspended over the lanes of traffic at the intersection. For that reason,

drivers in both directions, but especially northbound drivers, are not always aware of the

signal or its status, and sometimes run the light at that location. Moreover, the signal that

allows left turns from the easterly of the two southbound lanes of Shelburne Street is only

activated if a car is stopped within that lane prior to the change of the signal, so that drivers


    4
     The store is 1,000 square feet smaller; Williston Road has a slightly higher traffic
volume than Shelburne Street.

                                                8
of northbound vehicles do not necessarily anticipate that vehicles will be turning left across

their path. Without adjustment, these features of the location and timing of the signal at

the intersection may pose a problem during increased use of the intersection to access the

Prospect Parkway driveway proposed for the project.

       Shelburne Street carries a traffic flow of approximately 2,786 vehicles in the

afternoon peak hour just to the south of Prospect Parkway. Prospect Parkway has one lane

in each direction and carries a traffic flow of approximately 223 vehicles in the afternoon

peak hour. The project is expected to generate approximately 128 additional vehicle trips

using all the site driveways in the peak hour, of which approximately 49% would be

entering the site and 51% would be leaving the site. Of the 128 additional trips through the

project driveways, 31 would be so-called “pass-by” trips caused by vehicles already

traveling on the adjacent roadways.

       Most of the 128 trips will be entering and exiting the project driveways without

traveling up (or down) Prospect Parkway beyond the site through the adjacent residential

neighborhood. That is, of the 128 vehicle trips only three will be turning right onto

Prospect Parkway when leaving the site, and only two will be coming from the east on

Prospect Parkway and turning left into the site from Prospect Parkway. These additional

five vehicle trips will not adversely affect the traffic already traveling on Prospect Parkway

to the east of the project site. Vehicles are not expected to use the parking lot to cut through

from Shelburne Road northbound to Prospect Parkway, because there is not sufficient

delay at the light at the intersection to cause drivers to make the maneuvers necessary to

turn right into the parking lot, turn left towards the Prospect Parkway exit, and turn right

again at that exit, even if they are aware of the pathway (which will not be immediately

apparent to the traffic on Shelburne Street).

       Prospect Parkway curves somewhat towards the south, to the east of the project site.

Vehicles turning left out of the Prospect Parkway driveway and vehicles approaching the


                                                9
intersection westbound from farther east on Prospect Parkway will have an adequate sight

distance of each other if some of the vegetation within the right-of-way for Prospect

Parkway is cut back on neighboring properties. Such vegetation trimming is within the

authority of the City to require or to perform; it is beyond the jurisdiction of the Court as

those landowners are not parties to the present case. All other sight distances are adequate.

       The queue of cars in the westbound lane of Prospect Parkway waiting to turn left

onto Shelburne Street is not expected to either exceed the number of vehicles that can clear

the intersection in one sequence of the light, or to extend easterly to prevent vehicles from

exiting the project site to turn left onto Prospect Parkway to join that queue. However, it

is likely that the timing and/or sequence of the light at Prospect Parkway will need

adjustment to assure that such excess queuing does not develop; a condition has been

imposed to accomplish this result.

       The vehicle trips using the Shelburne Street driveway will not adversely affect the

traffic on Shelburne Street, if left turns into and out of the Shelburne Street driveway are

minimized. With the Prospect Parkway driveway, most of the left turn movements to and

from the site can be expected to use the signalized intersection, which will be safer and will

preserve the adequate levels of service5 at that intersection if the timing and sequence of

the light is adjusted for the actual use of the intersection.

       Without the Prospect Parkway driveway, the same number of vehicle trips would

be predicted to be generated on Prospect Parkway east of the project site (that is, traveling

through Appellants’ neighborhood). The difference is that, without the Prospect Parkway

driveway, the three vehicles seeking to exit the site to travel east on Prospect Parkway

would have to exit the Shelburne Street driveway onto Shelburne Street northbound, and


  5
    Without the Prospect Parkway driveway, left turns out of the project driveway across
the two northbound lanes of Shelburne Street to turn south onto Shelburne Street would
be at an unacceptable level of service as far as delay is concerned, and would also be a more
dangerous maneuver than the left turn from Prospect Parkway at the intersection.

                                              10
then to turn right at the light onto Prospect Parkway. Similarly, without the Prospect

Parkway driveway, the two vehicles seeking to enter the site from the westbound lane of

Prospect Parkway would have to turn left at the intersection onto Shelburne Street

southbound, and then would have to turn left across the two northbound lanes of

Shelburne Street into the project’s Shelburne Street driveway, which is a less safe turning

movement.

       Accordingly, with the conditions imposed below, the proposed project meets the

requirements for approval under §7.1.6(a) of the Zoning Ordinance as to the adequacy of

traffic access, and under §7.1.6(b) of the Zoning Ordinance as to the adequacy of traffic

circulation and parking. The proposed project meets the requirements for approval under

§6.1.10(d) of the Zoning Ordinance as to efficient and effective circulation. The proposed

project meets the requirements for approval under §13.1.6(e) of the Zoning Ordinance in

that it will not cause unreasonable congestion or unsafe conditions on highways, streets

or other pathways.     The proposed project meets the requirements for approval under

§§17.1.5(a)(3) and (a)(2) of the Zoning Ordinance in that it will not adversely affect traffic

on roads and highways in the vicinity and will not adversely affect the character of the area

due to its traffic.



       Based on the foregoing, it is hereby ORDERED and ADJUDGED that the proposed

project as presented at trial is approved, subject to the standard conditions imposed in the

DRB decision and to the further conditions that

1)     Applicants shall schedule the weekly tractor-trailer delivery when the store is closed

       to customers or during off-peak hours for the use of the drive-through, to avoid

       conflicts with vehicles exiting the drive-through location, and shall direct that the

       tractor-trailer delivery vehicle not use Prospect Parkway when arriving at or leaving

       the site. Applicants shall schedule all other deliveries when the store is closed to


                                             11
     customers or during off-peak hours and so that not more than one delivery vehicle

     is delivering at any one time when the store is open to customers.

2)   Within not more than one calendar year after the project is in use, the City shall

     determine (and may require Applicants to share in the cost of determining):

     (a) whether the timing or sequence of the signals at the intersection should be

     adjusted, with particular attention to the left turn signal for vehicles southbound on

     Shelburne Street to turn left onto Prospect Parkway, and with particular attention

     to the queuing time and length for vehicles westbound on Prospect Parkway

     waiting to turn onto Shelburne Street; and

     (b) whether traffic safety would be enhanced for left turns from southbound

     Shelburne Street onto Prospect Parkway by the conversion of the traffic lights to

     overhead lights or by any other technological changes, sufficiently to warrant that

     conversion.

     Any disputes about the cost-sharing for these determinations may be brought to the

     Court, if necessary, by a motion to amend this order.

3)   As soon as the Prospect Parkway driveway is completed, the City shall arrange for

     vegetation within the right-of-way for Prospect Parkway, that may be impairing

     sight distances of or from that driveway, to be cut back on neighboring properties.



     Dated at Berlin, Vermont, this 4th day of May, 2007.




                                 ______________________________________
                                 Merideth Wright
                                 Environmental Judge




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