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HomeMy WebLinkAboutSD-18-16 - Supplemental - 0907 Shelburne Road (4)793 Shelburne Road:Phoenix2,LLC,c/o Ernest Hoechner,79 Commerce Street,Hinesburg,VT 05461,(802)524-8710 907 Shelburne Road:Skipco Inc.,793 Shelburne Road,South Burlington,VT 05403,(802)524-8710 793 Shelburne Rd:bk:1398,pg:34,907 Shelburne Rd:bk:353,pg:508 R.L.Vallee,Inc.,c/o Skip Vallee,P.O.Box 192,St.Albans,VT 05478,(802)524-8710 fee simple (both properties) Civil Engineering Associates,Inc.,c/o Christopher Galipeau, 10 Mansfield View Lane,South Burlington,VT 05403,phone:(802)864-2323,fax:(802)864-2271 cgalipeau@cea-vt.com 793 Shelburne Road &907 Shelburne Road 793 Shelburne Rd:1540-00793,907 Shelburne Rd:1540-00907 The proposed site improvements at 793 Shelburne Road include the demolition of an existing store and the construction of an expansion 2 Sketch Plan Application Form. Rev.2-2018 to the existing fuel canopy and MPDs and related parking.The proposed site improvements at 907 Shelburne Road include the demolition of an existing motel building and the construction of a new retail sales/short-order restaurant building and related parking.The two properties are proposed to operate as a one project under a PUD. A +/-1,683 SF store and +/-1,933 SF fuel canopy with MPDs currently exist at 793 Shelburne Road.Two motel buildings currently exist at 907 Shelburne Road.Their respective building footprints are +/-2,312 SF and +/-1,315 SF. The application proposes the demolition of the existing store,but proposes to retain the existing fuel canopy,and the proposes the construction of a new +/-800 SF canopy expansion with new additional MPDs. This application proposes the demolition of the two existing motel buildings and the construction of a new +/-4,500 SF retail sales/short-order restaurant building and related parking is proposed on the property. Proposed buildings:4,500 SF building and 800 SF canopy expansion;existing buildings to remain:1,933 SF canopy unknown at this time existing:0,proposed:0 (both) The project is located in the Commercial 1 -Residential 15 Zoning District in addition to the Transit,Major Intersections -Zone 1,and Urban Design Overlay Districts. 17 17 59 70 80 63 An existing 20-foot wide Champlain Water District easement crosses the northern portion of 907 Shelburne Road.Three access easements are proposed.Please see site plan for additional information. 3 Sketch Plan Application Form. Rev.2-2018 The project will include the relocation (raising) of the CWD transmission main. Coordination with CWD has occured and the recently approved "close in tie in" project in South Burlington will allow this section of line to be temporarily shut off and raised. as soon as all permits have been obtained R.L. Vallee, Inc. Adjoiner List 793 & 907 Shelburne Road –Tax Map Parcel #1540-00793 / #1540-00907 May 2018 1/2 Subject Properties: Parcel ID # 1540-00793 Owner of Record Phoenix2, LLC c/o Ernest C. Hoechner Property Location: 793 Shelburne Road 79 Commerce St Hinesburg,VT 05461 Parcel ID # 1540-00907 Owner of Record SKIPCO, Inc. Property Location: 907 Shelburne Road 793 Shelburne Rd So. Burlington,VT 05403 Adjoiner Properties: Parcel ID # 1540-00792 Owner of Record Handy Mountaha Trust Property Location: 792 Shelburne Road 486 Orchard Dr. Colchester,VT 05446 Parcel ID # 1540-00794 Owner of Record Rexbo Development, Inc. Property Location: 794 Shelburne Road 400 Chapman St Greenfield,MA 01301 Parcel ID # 1540-00916 Owner of Record DS Realty LLC Property Location: 916 Shelburne Road 3050 Fuller Mountain Rd No Ferrisburgh,VT 05473 R.L. Vallee, Inc. Adjoiner List 793 & 907 Shelburne Road –Tax Map Parcel #1540-00793 / #1540-00907 May 2018 2/2 Parcel ID # 1540-00919 Owner of Record Monro Muffler Brake, Inc. Property Location: 919 Shelburne Road 200 Holleder Parkway Rochester,NY 14615 Parcel ID # 1540-00947 Owner of Record Hannaford Bros. Martin's Foods of So. Burlington Property Location: 947 Shelburne Road PO Box 1000 Portland,ME 04104 Parcel ID # 1430-00833 Owner of Record Limoge Properties 833 QCP RD LLC Property Location: 833 Queen City Park Road 833 Queen City Park Rd, Suite 31 So. Burlington,VT 05403 Parcel ID #Owner of Record Vermont Agency of Transportation Property Location: Interstate 189 & Southern Connector 1 National Life Drive Montpelier,VT 05633-5001 11) PROPOSED EXTENSION, RELOCATION, OR MODIFICATION OF MUNICIPAL FACILITIES (sanitary sewer, water supply, streets, storm drainage, etc.) The project will include the relmation (raising) of the CWD transmission main. Coordinatlon with CWD has occured and the recently approved "close in be in" project in South Burlington will allow this section of line to be temporarily shut off and raised. 12) ESTIMATED PROJECT COMPLETION DATE as soon as all permits have been obtained 13) PLANS AND FEE Plat plans shall be submitted which shows the information required by the City's Land Development Regulations. Three (3) regular size copies, one reduced copy (11" x 17"), and one digital (PDF-format) copy of the plans must be submitted. The application fee shall be paid to the City at the time of submitting the application. See the City fee schedule for details. NOTE: NOTIFICATION of ADJOINING PROPERTY OWNERS: Notification of adjoining property owners, in accordance with 24 V.S.A. §4464(a) and Section 17.06(B) of the South Burlington Land Development Regulations, is the responsibility of the applicant. After deeming an application complete, the Administrative Officer will provide the applicant with a draft meeting agendas or public hearing notice and sample certificate of service. The sworn certificate of service shall be returned to the City prior to the start of any public hearing. I hereby certify that all the information requested as part of this application has been submitted and is accurate to the best of my knowledge. SIGNATURE OF APPLICANT SIGNATURE OF PROPERTY OWNER Do not write below this line u_1J*11J9 1 have reviewed this sketch plan application and find it to be: [Jomplete incomplete Administrative Officer Date The applicant or permittee retains the obligation to identify, applyfor, and obtain relevant state permits for this project. Call (802) 879-5676 to speak with the regional Permit Specialist. Sketch Plan Application Form. Rev. 2-2018 11) PROPOSED EXTENSION, RELOCATION, OR MODIFICATION OF MUNICIPAL FACILITIES (sanitary sewer, water supply, streets, storm drainage, etc.) The project enll include the relocation (raising) of the CWD transmission main. Coordination with CWD has occured and the recently approved "close in tie in" project in South Burlington will allow this section of line to be temporarily shut off and raised. 12) ESTIMATED PROJECT COMPLETION DATE as soon as all permits have been obtained 13) PLANS AND FEE Plat plans shall be submitted which shows the information required by the City's Land Development Regulations. Three (3) regular size copies, one reduced copy (11" x 17"), and one digital (PDF-format) copy of the plans must be submitted. The application fee shall be paid to the City at the time of submitting the application. See the City fee schedule for details. NOTE: NOTIFICATION of ADJOINING PROPERTY OWNERS: Notification of adjoining property owners, in accordance with 24 V.S.A. §4464(a) and Section 17.06(B) of the South Burlington Land Development Regulations, is the responsibility of the applicant. After deeming an application complete, the Administrative Officer will provide the applicant with a draft meeting agendas or public hearing notice and sample certificate of service. The sworn certificate of service shall be returned to the City prior to the start of any public hearing. I hereby certify that all the information requested as part of this application has been submitted and is accurate to the best of my knowledge. IN DATE OF SUBM SIGNATURE OF APPLICANT RE OF PROPERTY OWNER below this line I have reviewed this sketch plan application and find it to be: Domplete incomplete Administrative Officer Date The applicant or permittee retains the obligation to identify, apply for, and obtain relevant state permits for this project. Call (802) 879-5676 to speak with the regional Permit Specialist. Sketch Plan Application Form. Rev. 2-2018 PRIMMER PIPER EGGLESTON CRAMER PC 30 Main Street, Suite 5001 P.O. Box 1489 1 Burlington, VT 05402-1489 May 3, 2018 Raymond Belair, Administrative Officer Marla Keene, P.E., Development Review Planner Planning & Zoning Department City of South Burlington 575 Dorset Street South Burlington, VT 05403 Re: R.L. Vallee Inc. Dear Mr. Belair and Ms. Keene: JON T. ANDERSON ADMITTED IN VT jnnderson@primmer.com TEL: 802-864-0880 FAX: 802-864.0328 This letter accompanies an application by R.L. Vallee ("Vallee") for a project to be located at 793 and 907 Shelburne Road. The site comprises two lots, each of about 20,000 square feet. On the northerly lot, which is now used for a service station with four pumps, Vallee would raze the existing 1,42 5 -square- foot service station building and replace it with two more gas pumps under an enlarged canopy, reducing the area of the lot occupied by structures. On the more southerly lot, Vallee would raze two motel buildings and replace them with a 4,500- square-foot retail store with an accessory restaurant. Vallee has negotiated with the former K-Mart plaza cross -easements for traffic. The store building will be uniquely designed for the site. Vallee welcomes any input staff or the Development Review Board ("DRB") might offer concerning the store design. The application package includes displays of several stores built by Vallee. Vallee also welcomes such other input as the staff and DRB might offer concerning the project including addressing the following: 1. Existing non -conformities. First, the existing canopy and some of the pumps are non -conforming structures. They were recently installed, and they are in good condition. Vallee does not propose to eliminate this non -conformity. Vallee proposes to add two pumps and extend the canopy in full compliance with setback requirements. Non -conforming structures may be altered as long as the "alteration does not exceed in aggregate costs ... twenty-five percent 25% for industrial and commercial property ...". SBZO § 3.11(D)(1). In the alternative, the change might be considered as an alteration to the main gas station building which is a conforming structure. Up to 100% of the gross floor area of this structure may be altered as Vallee proposes to do by taking it down and adding an 33424421 MAINE I NEW HAMPSHIRE I VERMONT I WASHINGTON, D.C. www.primmer.com Raymond Belair, Administrative Officer Marla Keene, P.E., Development Review Planner May 3, 2018 Page 2 extension to the canopy and pump islands, which replacement structure occupies a smaller area. The end result will be increased compliance since the area of structures devoted to non -conforming uses will decrease. Second, the existing service station is a non -conforming use extending over the entirety of the northern lot. Vallee does not propose to extend this use off the northern lot.' "Any lawful ... use of ... land ... may be continued, although such ... use does not conform with the provisions of these regulations, provided the conditions in this Section 311 are met." South Burlington Zoning Ordinance ("SBZO"), § 3.11(B)(1). A non -conforming use shall not be extended or enlarged. SBZO, § 3.11(B)(6). Extensions and enlargements both generally and in this portion of the South Burlington Zoning Ordinance are considered with respect to possible changes in size (i.e. floor area), SBZO § 3.11(C), dimensional requirements, SBZO, § 3.11(D)(2), or cost (i.e. listed value), SBZO § 3.11(D)(1) and not with respect to traffic generation. Nevertheless, staff has indicated that the DRB might consider the proposal as an expansion due to possible changes in traffic generation even though the area of use will not change. Counsel has never seen expansion for purposes of resolving non -conforming use issues measured by changes in traffic counts. Vallee respectfully requests that changes in traffic generation, if any, be considered only as provided by portions of the ordinance addressing traffic issues. 2. Front Yard Parking SBZO, § 14.06(a) provides that parking shall be located to the rear or sides of buildings. Parking cannot be located behind the front of the building except if we design the building to include a porch under which cars will park. Accordingly, Vallee will ask the DRB to apply § 1406(b) which provides as follows: (b) The Development Review Board may approve parking between a public street and one or more buildings if the Board finds that one or more of the following criteria are met. The Board shall approve only the minimum necessary to overcome the conditions below. 1 Customers will be able to go to the new store building to pay for gas purchases. We believe this function is an allowed office use. For example, it is becoming common to buy gas at a facility and pay for it at an office at a remote location. 3342442.1 Raymond Belair, Administrative Officer Marla Keene, P.E., Development Review Planner May 3, 2018 Page 3 (iii) The lot has unique site conditions, such as a utility easement or unstable soils, that allow for parking, but not a building, to be located adjacent to the public street; We believe this provision applies due to the existence of an easement owned by Champlain Water District ("CWD"). CWD owns an easement to install underground piping in a substantial portion of the front yard of the southern lot as marked on attached plans. CWD will not allow a building to be sited in the easement area. Also, the southern lot slopes steeply away from Shelburne Street. Vallee will use the proposed building as the equivalent of a retaining wall so the front yard can be leveled to make it useful. Vallee cannot otherwise locate substantial parking on the south lot at street level. 3. Vallee would like the option to present the Project as a PUD. Vallee's project can be approved as a PUD because it complies with the criteria for the review of PUD as listed in SBZO § 15.18, which is copied as Attachment 1. We believe that Vallee's proposal also addresses the purpose section of the PUD ordinance and 24 V.S.A. Chapter 117. The project is an innovative layout and an efficient use of land including enabling viable infill redevelopment. Thus, Vallee has considered dozens of plans to address the many challenges at the site including (1) that the pre-existing gas station use is a valuable one, (2) that the existing gas pumps were recently reconstructed, (3) substantial grade changes across the two lots, (4) CWD's ownership of an easement substantially affecting the areas where redevelopment can occur; (5) the need to improve traffic flow by closing up entrances on Shelburne Road while at the same time opening entrances to surrounding properties, and (6) the odd configuration and distressed nature of the buildings on the south lot. 4. Lot Coverage We believe that "Lot Coverage" does not include areas covered by pervious pavement. See definition. 3342442.1 Raymond Belair, Administrative Officer Marla Keene, P.E., Development Review Planner May 3, 2018 Page 4 5. Traffic Overlay District We so far believe that 93.9 trip ends (eight fueling positions at 15.65 trips2 each (ITE Use 944)) should be attributed to the current gas station use (ITE Use 944) on the northern lot as provided in SBZO, § 10.02(H)(2) (emphasis added). In the event that the existing peak hour trip generation of the uses presently authorized and operating on the site exceeds the maximum allowable traffic budget for the site including credits, the existing peak hour trip_ generation shall be the maximum allowable for the site, .. . Vallee does not seek any additional trip ends based on traffic improvements to this lot. We believe the size of the south lot allows us an additional 7.5 trips. The starting budget for the site is 132.7 trips. After many discussions with our traffic engineer, we believe the best way to measure trip generation for the project is as 4,500-square-foot convenience market with gasoline pumps, which requires 229.14 trips (4,500 square feet r. 50.92 trips per 1000 (ITE Code 853)). Following SBZO, Appendix B, we propose to address the 98.5 trip difference by connecting the south lot to other parcels for a credit of at least fifteen trips per connection, by connecting to other roadways through the former K-Mart shopping center and with additional improvements as may be necessary. Assuming your reaction to the project is positive, we would develop a plan for allowing traffic engineers to address the traffic before VaIlee's next filing. We look forward to sketch plan review. Very truly yours, -rs Jo Anderson JTA/alb 2 As yet, we have not considered whether more trip ends should be added to the current use since at least some of the building is used to sell items. 3342442.1 ATTACHMENT 1 ARTICLE 15 SUBDIVISION and PLANNED UNIT DEVELOPMENT (9) Roads, utilities, sidewalks, recreation paths, and lighting are designed in a manner that is consistent with City utility and roadway plans and maintenance standards, absent a specific agreement with the applicant related to maintenance that has been approved by the City Council. For Transect Zone subdivisions, this standard shall only apply to the location and type of roads, recreation paths, and sidewalks. (10) The project is consistent with the goals and -objectives of the Comprehensive Plan for the affected district(s). (11) The project's design incorporates strategies that minimize site disturbance and integrate structures, landscaping, natural hydrologic functions, and other techniques to generate less runoff from developed land and to infiltrate rainfall into underlying soils and groundwater as close as possible to where it hits the ground. For Transect Zone subdivisions, this standard shall apply only to the location of natural resources identified in Article XII of these Regulations. B. industrial -Open Space District. A Master Plan and/or PUD in the Industrial -Open Space District shall comply with the following standards: (1) Open space and development areas shall be located so as to maximize the aesthetic values of the property in keeping with the Comprehensive Plan goal of preserving and enhancing the open character, natural areas, and scenic views of the Quadrant, while allowing carefully planned development. (2) Open space and any buffering shall be located in a manner that minimizes impacts on adjacent residential uses, if any. C. R1-Lakeshore District. A Master Plan shall be required for development of more than ten (10) residential units in a five (5) year period in the R1-Lakeshore District. Development pursuant to a Master Plan shall be subject to the following supplemental standards: (1) Gross residential density shall be allowed to be increased to seven (7) dwelling units per acre (2) Dwelling units shall not exceed two and one-half (2 %) stories in height. (3) The layout of the PUD conforms to the City's Official Map with respect to the layout of roads and open spaces. (4) The proposed PUD maximizes the lakeshore recreation and access opportunities and the conservation of historic resources. (5) The proposed PUD protects the visual integrity of the lakeshore. 15.19 Minor Lot Line Adjustments A. Any application for a minor lot line adjustment shall be accompanied by a plat prepared by a Vermont licensed land surveyor and indicating all lots that are proposed to be modified as a result of the proposed lot line adjustment. The survey shall be sufficient to clearly indicate the area, metes, bounds, and ties of each of the affected lots. The survey shall include all structures and site improvements and delineate all building/structure setbacks, lot coverage, parking spaces and any other details as may be specified by the Administrative Officer. B. The Administrative Officer shall approve an application for a minor lot line adjustment, provided that the following criteria are met: (1) No new lots are created through the adjustment; South Burlington Land Development Regulations Page 297 In re Gregoire, 170 Vt. 556 (1999) 742 A.2d 1232 © 2018 Thomson Reuters. No claim to original U.S. Government Works.1 170 Vt. 556 Supreme Court of Vermont. Appeal of Gary and Suzanne GREGOIRE (Town of Colchester, Appellant). No. 98–508. | Oct. 21, 1999. Synopsis Camp owners appealed decision of town zoning board of adjustment that the camps lost their pre-existing, nonconforming use status through abandonment. The Environmental Court reversed, and town appealed. The Supreme Court held that: (1) the use of the camp's land, rather than the use of camp's buildings as seasonal dwellings, should have been considered when determining whether camp was a conforming or nonconforming use, and (2) a single location can be the source of multiple nonconforming uses. Reversed and remanded. West Headnotes (12) [1]Zoning and Planning Decisions of boards or officers in general Zoning and Planning Decisions of boards or officers in general Supreme Court upholds an Environmental Court's construction of a zoning ordinance on appeal unless it is clearly erroneous, arbitrary or capricious. Cases that cite this headnote [2]Zoning and Planning Purpose The prime purpose behind zoning is to bring about the orderly physical development of a community by confining particular uses to defined areas. Cases that cite this headnote [3]Zoning and Planning Nonconforming Uses A goal of zoning is to gradually eliminate nonconforming uses because they are inconsistent with the purpose of developing use-consistent areas in communities. 2 Cases that cite this headnote [4]Zoning and Planning Particular uses or structures as nonconforming Trial court should have considered the use of the camp's land, rather than the use of camp's buildings as seasonal dwellings, when determining whether camp was a conforming or nonconforming use under town's zoning ordinances. 24 V.S.A. § 4408(a)(1). Cases that cite this headnote [5]Municipal Corporations Construction and operation Statutes Plain Language; Plain, Ordinary, or Common Meaning Words in statutes and ordinances should be given their plain meaning. Cases that cite this headnote [6]Municipal Corporations Construction and operation Statutes Purpose Courts adopt a construction of statutes and ordinances that implement the legislative purpose. Cases that cite this headnote [7]Zoning and Planning Particular uses or structures as nonconforming Camps were nonconforming uses under town's zoning ordinance that restricted the In re Gregoire, 170 Vt. 556 (1999) 742 A.2d 1232 © 2018 Thomson Reuters. No claim to original U.S. Government Works.2 use of a single lot to a single building, where the camps contained multiple detached single family dwellings. Cases that cite this headnote [8]Zoning and Planning Nonconforming Uses The public interest in the regulation and gradual elimination of nonconforming uses is strong, and zoning provisions allowing nonconforming uses should be strictly construed. 4 Cases that cite this headnote [9]Zoning and Planning Nonconforming Uses Zoning and Planning Enlargement or Extension of Use Nonconforming uses are recognized and permitted to continue, simply by virtue of their existence prior to the enactment of the ordinance; however, their extension is carefully limited, since the ultimate goal of zoning is to gradually eliminate them. 2 Cases that cite this headnote [10]Zoning and Planning Nonconforming Uses A single location can be the source of multiple nonconforming uses under a zoning ordinance. Cases that cite this headnote [11]Zoning and Planning Discontinuance or Abandonment In instances where a single location is the source of multiple nonconforming uses that are claimed to be abandoned, the appropriate balance between the view that uncertainties in zoning ordinances must be construed in favor of the property owner, and the rationale that the public interest is advanced by the gradual elimination of nonconforming uses, is best served by an approach that neither forbids a municipality from asserting that fewer than all noncomplying uses have been abandoned, nor compels a property owner to surrender all nonconforming use status where fewer than all uses have been abandoned. 1 Cases that cite this headnote [12]Zoning and Planning Discontinuance or Abandonment Subsequent purchasers of property can be bound by the abandonment by the previous owners of a nonconforming use status under a town's zoning ordinance. 1 Cases that cite this headnote **1233 Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ. ENTRY ORDER *556 The Town of Colchester appeals a decision of the Environmental Court granting summary judgment to camp owners Gary and Suzanne Gregoire and denying summary judgment to the Town. The court held that the camps owned by the Gregoires were not subject to Colchester zoning regulations that prohibit the resumption of nonconforming uses after abandonment. We disagree and remand for a determination of whether the camps' nonconforming-use status has been abandoned within the meaning of the applicable zoning requirements. This is the second time this Court has had occasion to review the application of Colchester zoning regulations to the lot and its camps. We previously observed that the lot in question did not conform to zoning requirements because it contained multiple structures, but upheld the decision of the Chittenden Superior Court *557 that the former landowners (Beverly and Debra Lowe) did not need a zoning or subdivision permit to convert the six single-family rental camps on the lot to condominium ownership. See In re Lowe, 164 Vt. 167, 666 A.2d 1178 (1995). In re Gregoire, 170 Vt. 556 (1999) 742 A.2d 1232 © 2018 Thomson Reuters. No claim to original U.S. Government Works.3 The camps at issue—known as “Camp Mike” and “The Birches” respectively—are located on a single lot approximately 40,000 square feet in size. The structures are two of six camp buildings constructed on the same lot several decades ago. The camps were converted to condominiums in 1996, and in 1997 the Gregoires purchased Camp Mike and The Birches from the Lowes. Following their purchase, the zoning administrator informed the Gregoires by letter that the two camps had lost their pre-existing, nonconforming status through abandonment. The Colchester Zoning Board of Adjustment (ZBA) upheld the zoning administrator's determination, and the Gregoires appealed to the Environmental Court. The Environmental Court reversed the ZBA decision, concluding that it would be “manifestly unfair” to construe the new provisions of the 1997 **1234 Colchester zoning regulations to make them applicable to abandonments that occurred prior to the effective date of the 1997 regulations. The Town appeals, contending that the 1997 zoning regulations allow only the continuation of nonconforming uses that lawfully existed under previous applicable ordinances. Camp Mike and The Birches cannot, according to the Town, be considered lawfully existing nonconforming uses as of 1997, because, asserts the Town, the nonconforming use status was lost through abandonment of the camps prior to the adoption of the 1997 zoning ordinance.1 We begin by noting that the parties submitted to the Environmental Court a stipulated statement of material facts.2 The parties agreed that (1) the camps at issue were constructed and occupied prior to the enactment of any Colchester zoning regulations and (2) the camps are located in the R–2 district of the Colchester zoning ordinance, within which seasonal dwelling units are permitted uses. The parties differ sharply, however, on what constitutes “use” for purposes of deciding the applicability of the Colchester zoning regulations to the stipulated facts. The Town contends that the “use” at issue—and the use that it claims has been abandoned with respect to Camp Mike and The Birches—is the use of the lot as a situs for multiple detached single family dwellings. Since 1976, the *558 Colchester zoning regulations have contained a provision that restricts the use of a single lot to a single building (and its accessories), except as a subdivision: Every building and its accessories hereafter erected or structurally altered, or every use, shall be located on a lot, and in no case shall there be more than one such building or use on one lot, except as a subdivision. Colchester Zoning Regulations § 11.14 (1976) (currently § 1808). The contemporary Colchester zoning regulations, effective September 9, 1997, allow “any nonconforming use which lawfully existed at the time of the passage of this or any prior ordinance ... may be continued.” Colchester Zoning Regulations § 1801 (1997). While conceding that the six-camp lot was a preexisting nonconforming use as a lot containing multiple detached single-family dwellings and as such could continue indefinitely in “grandfather status,” the Town maintains that a part of the grandfathered use has been lost through the abandonment of Camp Mike and The Birches.3 Thus, asserts the Town, the attempt by the Gregoires to resurrect an abandoned use must fail because the Colchester zoning regulations allow only the continuation of nonconforming uses that lawfully existed at the time of the passage of the 1997 regulations. The Gregoires reject the rationale by which the Town attempts to bring them **1235 within the ambit of the “non-complying use” regulation. The camp owners argue that the “use” in question is only the use to which the camps are put. The Gregoires note that the camps have always been used as seasonal dwelling units; that the Town admits that seasonal dwelling has always been an appropriate use for the camps under past and current Colchester zoning regulations; and it therefore follows as a matter of logic and law that the attempt to apply the “non- conforming use” regulations (of which abandonment are a part) must fail because the camps' “use” as seasonal dwelling units has never been a nonconforming use. The Environmental Court agreed with the Gregoires that the “use” in question was a permitted, seasonal residential use, not, as the Town contends, use of a lot for multiple single family dwellings. [1] [2] [3] We are bound by an Environmental Court construction of a zoning ordinance unless it is clearly erroneous, arbitrary or capricious. See Houston v. Town of Waitsfield, 162 Vt. 476, 479, 648 A.2d 864, 865 (1994). The prime purpose behind zoning is to bring about the orderly physical development of a community by In re Gregoire, 170 Vt. 556 (1999) 742 A.2d 1232 © 2018 Thomson Reuters. No claim to original U.S. Government Works.4 confining particular uses to defined areas. See Vermont Brick & Block, Inc. v. Village of Essex Junction, 135 Vt. 481, 483, 380 A.2d 67, 69 (1977). A goal of zoning is to gradually eliminate nonconforming uses because they are inconsistent with the purpose of developing use-consistent areas in communities. See In re McCormick Management Co., 149 Vt. 585, 589, 547 A.2d 1319, 1322 (1988). [4] We believe the Environmental Court's construction of the Colchester zoning ordinance was error. In determining whether the “use” in question was a nonconforming use at the time of the effective date of the 1997 Colchester zoning regulations, the Environmental Court limited its considerations to the use of the buildings as seasonal dwellings. The Town correctly asserts that the court's narrow interpretation of “use” failed to consider whether the Town's regulation of the use of land brought the Gregoires' *559 camps within the ambit of restrictions relating to “ noncomplying use.” Pursuant to 24 V.S.A. § 4408(a)(1), “nonconforming use” means “a use of land or a structure which does not comply with all zoning regulations where such use conformed to all applicable laws, ordinances and regulations prior to the enactment of such regulations.” (emphasis added). [5] [6] We interpret a zoning ordinance under familiar rules of statutory and ordinance construction. Words in statutes and ordinances should be given their plain meaning. See In re Stowe Club Highlands, 164 Vt. 272, 279, 668 A.2d 1271, 1276 (1995) (when interpreting zoning ordinances, court construes words according to their plain and ordinary meaning, giving effect to whole and every part of ordinance). We adopt a construction that implements the legislative purpose. See id. at 281, 668 A.2d at 1277. [7] Here, there was a failure to construe the term “nonconforming use” to give effect to the whole ordinance. The Environmental Court characterized the Town's effort to regulate the Gregoires' property as an issue implicating noncomplying structures. But as the Town emphasized, the issue involved more than the allowable restoration of noncomplying structures.4 The question is whether—assuming proof of abandonment— the Colchester **1236 zoning regulations were intended to prevent the addition of two more single-family dwellings on a lot already being used for four attached single-family dwellings. The term “nonconforming uses” is defined in the 1997 Colchester zoning regulations as “those uses which do not conform with the use regulations set forth in this ordinance.” Colchester Zoning Regulations § 1801 (1997). The plain and ordinary meaning of the definition applied to the matter before us compels the conclusion that the camps in question are nonconforming uses. [8] [9] The public interest in the regulation and gradual elimination of nonconforming uses is strong, see Hinsdale v. Village of Essex Junction, 153 Vt. 618, 626, 572 A.2d 925, 930 (1990), and zoning provisions allowing nonconforming uses should be strictly construed. See Hartley v. City of Colorado Springs, 764 P.2d 1216, 1224 (Colo.1988). By their very nature, nonconforming uses, defined as “ ‘a use of land or a structure which does not comply with all zoning regulations' where such use was proper prior to the enactment of the regulations,” Vermont Brick & Block, 135 Vt. at 482, 380 A.2d at 69 (quoting 24 V.S.A. § 4408(a)(1)), are inconsistent with that purpose. Such uses are recognized and permitted to continue, simply by virtue of their existence prior to the enactment of the ordinance. See DeWitt v. Brattleboro Zoning Bd. of Adjustment, 128 Vt. 313, 319, 262 A.2d 472, 476 (1970). However, their extension is carefully limited, since the ultimate goal of zoning is to gradually eliminate them. See Brassard Bros. v. Barre Town Zoning Bd. of Adjustment, 128 Vt. 416, 419, 264 A.2d 814, 816 (1970). Indeed, the 1997 Colchester zoning regulations echo this, stating that “[i]t is considered desirable and in the best interest of the Town to encourage *560 nonconforming uses to change to conforming uses.” Colchester Zoning Regulations § 1801 (1997). The Gregoires assert that notwithstanding a determination that the noncomplying use provision of the Colchester zoning regulations applies to Camp Mike and The Birches, there can be no application of the abandonment provision because the Town concedes that the lot still retains grandfathered noncomplying use status by virtue of the continuing use of the lot by the other four camps. In the circumstances of this case, we conclude that it is possible for a single lot containing independent multiple nonconforming uses of land to be subject to an abandonment claim. In short, it is conceivable that Camp Mike and The Birches could have lost their nonconforming-use status through abandonment even while the other four camps retained their status because they were continually used in a nonconforming manner. In re Gregoire, 170 Vt. 556 (1999) 742 A.2d 1232 © 2018 Thomson Reuters. No claim to original U.S. Government Works.5 [10] [11] Although the facts of this case are uncommon, we observe that a single location can be the source of multiple nonconforming uses. See In re Newton Enterprises, 167 Vt. 459, 460, 708 A.2d 914, 915 (1998) (service station used as gas station, convenience store, and grill); In re Porter Med. Assocs. Use Change Permit, 139 Vt. 132, 133, 423 A.2d 491, 491 (1980) (office building used for physicians' office required use change permit where owner sought to use part of building for pharmacy); Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205, 431 N.E.2d 213, 215–17 (1982) (hotel used as both hotel and entertainment complex). The appropriate balance between the view that uncertainties in zoning ordinances must be construed in favor of the property owner, see In re Vitale, 151 Vt. 580, 584, 563 A.2d 613, 616 (1989), and the rationale that the public interest is advanced by the gradual elimination of nonconforming uses, see Hinsdale, 153 Vt. at 626, 572 A.2d at 930, is best served by an approach that neither forbids a municipality from asserting that fewer than all noncomplying uses have been abandoned, nor compels a property owner to surrender all nonconforming use status where fewer than all uses have been abandoned. The law nevertheless generally views nonconforming uses as **1237 detrimental to a zoning scheme and overriding public policy. See Toys “R” Us v. Silva, 89 N.Y.2d 411, 654 N.Y.S.2d 100, 676 N.E.2d 862, 865 (1996). We conclude that under the facts of this case, the Town has the authority to apply its zoning regulations, including the provision relating to nonconforming uses and abandonment, to Camp Mike and The Birches. [12] Finally, the Gregoires contend that even if an abandonment inquiry is appropriate, it cannot be shown that the Gregoires ever abandoned the nonconforming use status of Camp Mike and The Birches. While that may be so, as subsequent purchasers of the camps, the Gregoires can be bound by the abandonment of a nonconforming use status by the previous owners. See Town of Brighton, 148 Vt. at 266, 532 A.2d at 1293 (purchaser of gas station was held to abandonment of nonconforming use status of previous owners). Whether the Town can factually demonstrate that the previous owners of Camp Mike and The Birches abandoned the nonconforming use status of the camps has yet to be decided by the Environmental Court, and we remand for that purpose. Reversed and remanded. All Citations 170 Vt. 556, 742 A.2d 1232 Footnotes 1 The Town contends that abandonment occurred “in or about 1991.” The Colchester zoning regulations on abandonment then in effect read: A non-conforming use of a building or premises which has been abandoned shall not, thereafter, be returned to such non-conforming use. A non-conforming use shall be considered abandoned when: (a). The intent of the owner to discontinue the use is apparent. (b). The characteristic equipment and furnishings of the non-conforming use have been removed from the premises and have not been replaced by similar equipment within six (6) months. (c). It has been replaced by a conforming use. (d). It has been changed to another use under proper permit. Colchester Zoning Regulations § 1801(7) (1982). 2 Although both parties filed motions for summary judgment, the Town acknowledges in its reply brief filed with this Court that material facts relating to its claim of abandonment were neither stipulated to by the parties nor found by the Environmental Court. 3 The Town concedes that the four other camps—not a subject of this litigation—retain their preexisting nonconforming use status because there has been no abandonment of use as to those camps under either the 1982 or 1997 Colchester zoning regulations. 4 Both parties agree that Camp Mike and The Birches are noncomplying structures because they do not comply with “dimensional requirements” of the regulations, including setbacks from the road and lake. There is no question here that the camps' noncomplying structure status has not been abandoned under either the 1982 or 1997 Colchester zoning regulations, but that fact has no effect on the nonconforming use question at issue here. See Town of Brighton v. Griffin, 148 Vt. 264, 270, 532 A.2d 1292, 1295 (1987) (“Although a preexisting noncomplying structure may remain in place, In re Gregoire, 170 Vt. 556 (1999) 742 A.2d 1232 © 2018 Thomson Reuters. No claim to original U.S. Government Works.6 once a nonconforming use of that structure is abandoned or discontinued, state law contemplates that a municipality may prohibit resumption of such use.”). End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. MEMORANDUM TO: South Burlington Development Review Board FROM: Amanda S. E. Lafferty DATE: 09-28-2018 RE: Sketch Plan Application #SD-18-16 793 and 907 Shelburne Rd. There is an existing 1,683-square-foot building on the parcel located at 793 Shelburne Road which includes two vehicle service and/or repair bays and a small convenience store. In addition, there are four fuel pumps, or eight fueling positions, underneath a canopy consisting of 1,933 square feet. As set forth in the Land Development Regulations (“LDR”), there are two uses on the parcel: service station (which includes the sale of retail items as an accessory use) and auto and motorcycle service and repair. The parcel located at 907 Shelburne Road contains two buildings used as hotel, extended stay hotel, or multi-family residential. Both these parcels are located in the Commercial 1 Residential 15 (C1-R15) District. Neither of the uses on the 793 Shelburne Road parcel is allowed as a permitted or conditional use in the C1-R15 District. To the extent that the service station and the auto and motorcycle service and repair uses “did conform to all applicable laws, ordinances, and regulations prior to the enactment of the present Regulations,” they are considered nonconforming uses. See the LDR, Section 2 (page 32). A nonconforming use may be continued, but shall not be extended or enlarged. See the LDR, Section 3.11(B)(1), (2), (6). An enlargement or expansion of a nonconforming use, rather than a mere increase in the volume of business, is indicated where new facilities or a new product is involved. See Vermont Brick & Block, Inc. v. Village of Essex Junction, 135 Vt. 481, 483 (1977); see also In re Pearl Street Mobil, Docket No. 2001-249 (December 21 2001) (Entry Order)(“In this case, no dispute existed that no new activity would accompany [the] proposed canopy . . .[the] proposal would not enlarge its nonconforming use”). A nonconforming use may be continued only if it is a continuation of substantially the same use which existed at the time of the adoption of the ordinance, and not some other and different kind of nonconforming use which the owner of the land might subsequently find to be profitable or advantageous. See Sabek, Inc. v. County of Sonoma, 190 Cal.App.3d 163, 167 (1987). The addition of a new use, such as convenience food market or a car wash, to a gas station is considered the enlargement or expansion of a nonconforming service station use. See id.; see also Lemon v. Speed, 694 So.2d 472, 477-478 (1997)(La.App. 5 Cir. 4/9/97); Anderson v. Board of Adjustment for Zoning Appeals, 931 P.2d 517, 520 (1996). The expansion of a nonconforming use onto an adjoining parcel enlarges, rather than intensifies, a nonconforming use. See Crabtree Realty Co. v. Planning and Zoning Com’n of the Town of Westport, 82 Conn.App. 559, 562 (2004)(where the court held that the construction of parking spaces on adjoining property would add new land to the nonconforming use of the property on which the nonconforming use is located). In addition, an increase in the number of the items that make up the use, even where they do not enlarge the area of the property occupied by the nonconforming use, has been denied due to it being an enlargement, expansion or extension of a nonconforming use. See Century Cellunet of Southern Michigan Cellular, LP v. Summit Township, 250 Mich.App. 543, 549, 655 N.W.2d 245, 249 (2002); see also Ragucci v. Metropolitan Development Com’n of Marion County, 702 N.E.2d 677, 681-682 (1998). In the Century Cellunet case, the court held that even though the proposed nine antennas would be smaller than the six antennas currently attached to the tower, their addition would clearly increase the number of antennas present and increase the density of the antennas present. In the Ragucci case, the court held that the division of two two-bedroom apartments into four one-bedroom apartments and the conversion of an unoccupied attic into one three-bedroom apartment was a violation of the regulations which prohibited the conversion, enlargement, extension of any building or part thereof, except in conformity therewith. The proposed project combines 793 and 907 Shelburne Road into a Planned Unit Development, maintains eight fueling positions and adds four fueling positions on the 793 Shelburne Road parcel and removes the hotel use and adds a 9,000-square- foot convenience market on the 907 Shelburne Road parcel. This proposal will result in a new combination of two principal uses, a nonconforming service station use and an allowed retail sales use. This proposal will add land to a nonconforming use. This proposal will add facilities and/or equipment, new fueling pumps, and new products at the proposed convenience store. This application proposes to extend or enlarge the nonconforming service station use located at 793 Shelburne Road. Page is too large to OCR. Page is too large to OCR.