                         STATE OF VERMONT

                      ENVIRONMENTAL COURT

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

   Decision and Order onCross-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
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: " The proposed canopy is extending
existing coverage vertically and is blue1 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 "
successive 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 "canopy concept, but
[with] the sensitivity (size, scale and design) with which it attempts to
co-exist in this gateway to Burlington's downtown."

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 "to match building," and a shingled hip roof
"to match building." As shown on the plans, the under-canopy lighting
would be shielded by the overhanging edge of the canopy.

An applicant is entitled to make a successive application to one that
has been denied if it is either different in its content4 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



                               Footnotes
1.
       The minutes reflect that during the meeting the applicant stated
that the proposal being considered was “no longer blue aluminum but
it is now white with no signs.”
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.
4.
     Especially if the new or amended content is directed at
addressing or correcting the reasons for denial.
