2014 VT 19


In re Champlain Oil Company
Conditional Use Application (2012-405)
 
2014 VT 19
 
[Filed 21-Feb-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2014 VT 19

 

No. 2012-405

 

In re Champlain Oil Company 
Conditional Use Application


Supreme Court


 


On Appeal from


 


Superior Court,


 


Environmental Division


 


 


 


October Term, 2013


 


 


 


 


Thomas
  S. Durkin, J.


 

James A. Dumont, Bristol, for Appellants.
 
Liam L. Murphy and Damien J. Leonard of
Murphy Sullivan Kronk, Burlington, for Appellee.
 
 
PRESENT:    Reiber, C.J., Skoglund, J., and
Zonay, Supr. J. and Burgess, J. (Ret.), 
                    
Specially Assigned
 
 
¶ 1.            
SKOGLUND, J.   Twelve individuals and the Ferrisburgh
Friends of Responsible Growth, Inc. appeal from the Environmental Division’s
affirmance of the granting of a conditional use zoning permit to Champlain Oil
Company.  The permit allows applicant Champlain Oil, appellee here, to
construct and operate a gasoline and diesel station with a retail convenience store
and a drive-through food facility, including parking lot and overhead canopies
for the gas and diesel pumps.  Appellants argue that the proposed uses for
a convenience, retail and drive-in facility are explicitly prohibited by the
Ferrisburgh zoning ordinance and will not be consistent with the town
plan.  Other issues on appeal will be discussed in the course of this
decision.  We affirm.
¶ 2.            
Our review of the environmental court’s findings of fact and the
conclusions underlying its decision is deferential.  In re Route 103 Quarry, 2008 VT 88, ¶ 4, 184 Vt. 283, 958 A.2d
694.  We will not disturb its factual findings unless, taking them in the
light most favorable to the prevailing party, they are clearly erroneous. 
In re Shantee Point, Inc., 174 Vt. 248, 263, 811 A.2d
1243, 1255 (2002).  We will uphold the court’s conclusions as long
as they are reasonably supported by the findings.  In
re Miller Subdivision Final Plan, 2008 VT 74, ¶ 13, 184 Vt. 188, 955
A.2d 1200.  We are guided in our decision by the fact that land use
regulations are in derogation of private property rights and must be construed
narrowly in favor of the landowner.  In re Toor,
2012 VT 63, ¶ 9, 192 Vt. 259, 59 A.3d 722; In re Weeks, 167 Vt.
551, 555, 712 A.2d 907, 910 (1998).
¶ 3.            
The proposed project site is on a parcel of land along Route 7,
approximately one half-mile south of the Ferrisburgh town center.  The
site will cover approximately 9.7 acres after certain land sale transactions
are completed as required.[1] 
The project will be located in two zoning districts: the Highway Commercial
District (HC District) and the Rural Agricultural District (RA District).[2]  As proposed, the site will
have in excess of 1153 feet of frontage on state highway Route 7, described by
the court as a major north/south corridor in the Champlain Valley for
commercial, industrial, retail, and residential travel.  The court noted
that the commercial district is host to many commercial developments, such as a
motel, a marine supply store, a motorsports store, a gas station and
convenience store and a “Dock Doctors” enterprise.  The court found that,
while the area contained some private residences, the area presented as more
commercial in character.  It further found that the building area of the
project, if developed, would not exceed the physical space encompassed by
several of the nearby commercial properties.  
¶ 4.            
We first address appellants’ claim that the project and its proposed
uses fail to conform to the development standards discussed in the Ferrisburgh
Town Plan and that the court erred in deciding that the town plan was
aspirational and not intended to be regulatory.  Section 1.1.(C) of the town plan, titled “Interpreting the Plan,”
contains the following: “Goals are long-range aspirations that serve as a broad
planning and development guide.  A goal describes the end condition that
is sought.”  Appellants claim of error is directed to § 4.3 of the
town plan, which focuses on land use areas and policies.  That section
begins by stating that “Ferrisburgh’s land use plan is intended to guide future
growth and development, and protect the town’s unique resources.”  Section
4.3.(G) discusses commercial highway areas, including
the area of the proposed project south of the town center.  That section
states that “[a]ll uses in this area should be conditional, and include only
small-scale commercial enterprises and mixed uses typical of a 19th century
highway crossroads area.”  
¶ 5.            
The environmental court concluded that the purpose provisions of the
town plan consisted of aspirational language and that it did not impose a
regulatory restriction.  We find no error in this reasoning.[3]  While the appellants emphasize the
concept of a typical nineteenth century highway crossroads area, the fact is
that the section merely suggests that uses in the HC District “should” include
only small-scale commercial enterprises, not that they must.  And, as the
court wrote: “[w]e have difficulty interpreting this
portion of the Town Plan [as creating a regulatory restriction], since it
appears to conflict with the development that the Town has already allowed to
occur in the Commercial Highway Areas.”  We agree with the court that the
town plan is designed to guide applicants and decisionmakers on a project’s
general characteristics but does not establish regulatory standards with which
to judge the proposed project.  In re JAM Golf, LLC, 2008 VT 110,
¶ 13, 185 Vt. 201, 969 A.2d 47 (“Zoning ordinances must ‘specify
sufficient conditions and safeguards’ to guide applicants and
decisionmakers.  We will not uphold a statute that
‘fail[s] to provide adequate guidance.’ ” (quoting Town of
Westford v. Kilburn, 131 Vt. 120, 122, 300 A.2d 523, 525 (1973))). 
This is precisely how the town plan says it should be interpreted.  
¶ 6.            
We next address appellant’s claim that the proposed convenience store
and restaurant drive-up service window are not permitted by the town’s zoning
ordinances.  Section 3.5 of Article III of the zoning ordinances states:
“any use not expressly permitted in a district is prohibited in that
district.”  For each zoning district the zoning ordinance sets forth a
list of uses that are permitted as of right or as conditional uses. 
Several uses are listed as permitted in the HC District as conditional uses,
including gas stations, carwashes, churches, freight or trucking terminals,
restaurants, bars and retail stores.  However, appellants point to the
failure of the HC District description to specifically list “convenience,
retail,” “retail sales,” “drive-in facility” and “accessory use” as permitted
uses.[4] 
They derive the titles of these uses from Article II of the zoning Bylaws, a
definitional section.  So, they argue, while the list of permitted uses
for the HC District contains “retail store,” neither “convenience, retail” nor
“retail sales” are included as permitted uses.[5]  
¶ 7.            
The grammatical construction of the definitions in the zoning Bylaws
suggests that they were drafted and added to the definitional section at
different times.  That being said, zoning Bylaws are interpreted according
to the general rules of statutory construction.  In re Casella Waste
Mgmt. Inc., 2003 VT 49, ¶ 6, 175 Vt. 335, 830 A.2d 60 (citing In re
Weeks, 167 Vt. at 554, 712 A.2d at 909).  “We adopt a construction
that implements the ordinance’s legislative purpose and, in any event, will
apply common sense.”  In re Lashins, 174 Vt. 467,
469, 807 A.2d 420, 423 (2002) (mem.) (quotation
omitted).  Nothing in the Bylaws suggests that the definitions were intended
to proscribe the scope of the permitted uses in a particular zoning
district.  Further, § 4.4, which governs the HC District, includes
the following in the list of conditional uses: “[o]ther similar uses which meet
intent of purpose statement upon finding by the Zoning Board that such use is
of the same general character as those permitted.”  We agree with
the court below when it found that “a ‘convenience retail’ store appears to be
merely one type of ‘retail store’ ” and was a conditional use in the HC
District.  
¶ 8.            
This is not to say that the examples provided in the definitions are not
important to the consideration of permitted uses.  The fact that the
Bylaws definition of “retail store” specifically excludes any drive-in facility
cannot be ignored.  The zoning board of adjustment (ZBA) approval for the
project included a separate condition prohibiting the use of a “ ‘drive-thru’ component” to the proposed restaurant
but authorizing a “ ‘drive-in’ component.”  The environmental court
noted that it was conducting an evidentiary hearing “anew” and its “legal analysis . . . without regard to the
conditions that the ZBA imposed and that Applicant has appealed.”  
¶ 9.            
The court found that the proposed restaurant would have “a drive-up
service window accessed by a drive-through lane,” which it described as “a
typical ‘drive-through’ at a fast-food restaurant, where customers remain in
their vehicles and review a menu-board at the rear of the building before
ordering through a microphone.  They then proceed to the drive-up service
window where they stop, pay for the order, and receive their food.”  It
then decided that “a drive-in facility is a valid component to a permissible
restaurant” and noted that “[t]here is no indication that the drafters intended
to prohibit restaurants in the HC District from incorporating a drive-in
facility.”  The court further stated that it did not “comprehend” a
distinction between a drive-through and a drive-in restaurant and voided the
ZBA condition, thus leaving in place the restaurant’s ability to offer a
drive-through element.  
¶ 10.         However,
this court does comprehend a distinction, remembering the days when servers on
roller skates brought food to your car, hanging ingenious trays from your car
window—ergo, a “drive-in” restaurant.  What we cannot discern is why the
Bylaw definition of a “retail store” specifically excludes “any drive-in
facility” and why the ZBA decided to prohibit a “drive-through” and allow a
“drive-in” for the project.  
¶ 11.         At
the hearing below, applicant posited that the proposal does not involve a
drive-in facility, rather, the project involves a
“drive-up service window.”  The court found this argument unavailing and
concluded that the proposal included a “drive-in facility” as defined in the
Bylaws: “[a]n establishment designed or operated to serve a patron while seated
in a motor vehicle parked in an off-street parking space.”  We will assume
the semantic/definitional debate could rage on until such time as Ferrisburgh
again revisits its Bylaws to eliminate any confusion (perhaps rethinking the
inclusion of “trading stamp and redemption outlets” in the definition of
“retail sales”).  For purposes of this decision, we uphold the
environmental court’s conclusion that in reading the Bylaws as a whole, and
applying common sense, a drive-through component of a restaurant is permissible
in the HC District  See Lashins, 174 Vt. at 470, 807 A.2d at 423
(applying a “plain and common sense reading” to zoning ordinance). 
¶ 12.         Appellants further claim the court erred in failing to
address the visibility of existing parking areas and what they describe as the
incremental or cumulative shift in the character of the neighborhood. 
Their assertion has no merit.
¶ 13.         As
proposed, the project site would have parking for fifty-four vehicles at
various locations throughout the project site: eight spaces along the front of
the building, facing Route 7; fifteen spaces behind the building; fourteen
spaces to the north of the building; and eleven spaces to the south of the
building.  There will also be four parking spaces for tractor trailers or
large trucks to the south of the diesel pumps.  The court found that
dispersing the available parking spaces to the different locations on the
project site “minimizes the visual impact of the Project parking.”  It
also noted that the project’s capacity for parked cars was only slightly
greater than the capacity of the site when it formerly hosted a roadhouse
restaurant.  Finally it found that, while many of the nearby commercial
properties may have fewer designated spaces for parked cars, “th[e] other commercial parking areas are as or more visible
from Route 7 as the parking spaces on the Project Site.”  
¶ 14.         It appears
that the court carefully examined the anticipated visual impact of the project,
considered the surrounding development and found no evidence that the project
would affect existing or planned community facilities in any distinguishable or
incremental way.  It concluded that the project’s impact on existing or
planned community facilities will not be adverse.  The court reasoned that
the negligible impact of the existing commercial operations upon the character
of the area lent support to its conclusion that the proposed project, “similar
in nature,” would not have an adverse impact upon the character of the area
affected.  We can find no error in the court’s analysis.  See In
re Miller, 170 Vt. 64, 69, 742 A.2d 1219, 1223 (1999) (upholding
environmental court’s assessment of adverse impact on character of area where
not clearly erroneous).  
¶ 15.         Finally,
appellants argue that the court erred in finding that the proposed septic
mounds would be composed only of sand and gravel and that the mounds would be
outside the set-back zone.  They suggest that a septic mound should be
considered a “structure” and that the bases of the project mounds will extend
up to or within ten feet of the property line, thus violating the fifty foot
and twenty-five foot set-back requirements in the HC District.  
¶ 16.         The
project plan for an on-site wastewater treatment system was approved by the
Department of Environmental Conservation.  The system consists of the
following components: wastewater collection in a series of underground pre-cast
concrete tanks for initial wastewater collection, a pre-treatment system, and a
mounded leach field.  Sand and soils are to be brought on site to
construct the earthen mound for the leach-field portion of the system. 
The earthen mound will be constructed on the down-sloping soils existing on the
southern portion of the project site.  The base or toe of the mounded
soils will extend beyond the perimeters of the leach field in a “gentle
slope.”  The court found that “[t]he leach field and sloping soils will be
located entirely within the Project Site, with the leach field no closer than
25 feet from any boundary line and the sloping soils of the mound being no
closer than 10 feet from any boundary line.”  
¶ 17.         Again
turning to the definition section of the Ferrisburgh Bylaws, we discover the
definition of “structure” to be “[a]n assembly of materials for occupancy or
use, including, but not limited to, a building, manufactured home or trailer,
billboard, sign, wall or fence, except a wall or fence on an operating
farm.  Structures do not include sidewalks, driveways, roads or
non-commercial parking lots, non opaque fences or fences less than four (4)
feet in height.” 
¶ 18.         Appellants
posit that the proposed mounds are structures under the reasoning of this Court
in In re Laberge Moto-Cross Track, 2011 VT 1, 189 Vt. 578, 15 A.3d. 590 (mem.).  The regulations at issue there defined a
structure as “anything constructed, erected, or placed and which requires a
fixed location on the ground in order to be used,” such as a mobile home or a
tennis court.  Id. ¶ 10. 
Appellant’s argument hinges on the fact that in Laberge there was no
additional excavation and no materials were introduced to the site from
elsewhere whereas, in this case, the materials for the mound system will be
imported to the site and the mound system will be as permanent as a house.[6]  However, in Laberge we
concluded that the moto-cross track did not require a zoning permit as it was a
de minimis incidental use of property and was not the type of structure
contemplated by the town’s zoning ordinance.  Id.
¶¶ 7, 11.  Appellants can find no support in that decision for
their strained vision of a “structure.”
¶ 19.         The
mound to be created is part of a wastewater system.  While the court did
not specifically address the challenge to the toe mounted by appellants, it
found that the leach field itself would be no closer than twenty-five feet from
the side-yard setback minimum established for the HC District.  It also
found that the wastewater system was to be located at or below the finished
grade of the site.  We will defer to the environmental court’s treatment
of the sloping toe as a visual element of a wastewater system, necessary to
bring the system to the finished grade of the site.  See In re Eastview
at Middlebury, Inc., 2009 VT 98, ¶ 10, 187 Vt. 208, 992 A.2d 1014
(“Because the Environmental Court determines the credibility of witnesses and
weighs the persuasive effect of evidence, we will not overturn its factual
findings unless, taking them in the light most favorable to the prevailing
party, they are clearly erroneous.” (quotation
omitted)); In re Bennington Sch., Inc., 2004 VT 6, ¶ 11, 176 Vt.
584, 845 A.2d 332 (mem.) (“The environmental court’s findings of fact will be
upheld if based on relevant, admissible evidence that a reasonable person would
consider as supporting the conclusion.”).  Further, what appellant
suggests would require that the merest lip of earth designed to integrate a
septic mound into the surface of the land would be required to comply with
set-back lines.  See Laberge, 2011 VT 1, ¶ 8 (reiterating
court’s role in interpreting zoning ordinance is to give effect to legislative
intent and “apply common sense” (quotation omitted)).  The environmental
court’s interpretation of the set back provisions is sound and we agree with
the approach taken.  
Affirmed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1]  While
initially there were challenges to the lot mergers and lot-line adjustments
contemplated, appellants agreed both to voluntarily dismiss an appeal of the
boundary-line adjustment approval by the Ferrisburgh Planning Commission and
that the Commission’s approval could be admitted as evidence in support of
applicant’s conditional use approval application.  
 


[2]
 A small portion of the project site is located in the RA District,
however, no development is proposed for that portion of the lot.  


[3] 
We note that in a contemporaneous decision, In re Group Five, the
appellants similarly argued that provisions of the Ferrisburgh Town Plan
created enforceable standards that precluded grant of a permit.  As we do
here, this Court held that the general goals were not legally enforceable
standards.  In re Grp. Five Inv., 2014 VT 14, ¶ 16 ___ Vt.
___, ___ A.3d ___.  


[4] 
In Group Five, the appellants similarly argued that a proposed Dollar
General store was a “convenience, retail” store not permitted under the zoning
Bylaws.  This Court upheld the environmental court’s finding that the
store was a permitted use under “retail sales.”  2014 VT
14, ¶ 24.  
 


[5]
 The zoning Bylaws contain the following definitions: 
 
  Retail
Store: Any enclosed business concerned primarily with rental or the sale of
produce, products, goods, equipment or commodities; and excluding any drive-in
facility, road side agricultural stand, gasoline or motor vehicle service
station, motor vehicle sales facility, restaurant or junk yard. 
           
 . . .
 
Convenience, Retail: Shall mean an establishment whose principal use is the
sale of products in small quantities for the daily use of customers including,
but not limited to, bakeries, food stores, news stands, tobacco shops, card
shops, liquor stores, delicatessens, musical supply stores, pet stores, jewelry
stores, camera and photography supplies, ice cream parlors, meat and seafood
shops and florist shops. 
 . . . 
  Retail
Sales: Shall mean an establishment whose principal use is the sale of products
for consumption or use by the customer off the premises.  This shall
include but not be limited to hardware, paint, office equipment, sporting
goods, trading stamp and redemption outlets, televisions, satellite dishes,
automotive supply and major household appliance stores.  


[6]
 Appellants also point out that the regulation in Laberge excluded
all fences while the Ferrisburgh definition includes fences.  The apparent
significance of this distinction is lost on this Court. 



