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Home My WebLink AboutSP-02-17 CU-01-46 - Decision - 1041 Shelburne Road#5P-02-17 #CU-01-46 STATE OF VERMONT COUNTY OF CHITTENDEN CITY OF SOUTH 5URLINGTON RE: AFFLICATION OF WE5CO, INC. This matter came before the South Burlington Development Review Board on remand from the Vermont Environmental Court of conditional use application #CU-01-46 and Site plan application #5F-02-17 of Wesco, Inc. hereinafter "Applicant" fora project consisting of amending a plan for a 559 oq. ft. convenience Store with gas sales (4 fueling positions) and a 1344 oq. ft. canopy. The amendment consists of removing the existing 559 oq. ft. convenience Store and construction of 1104 oq. ft. convenience Store and replacing an existing gas island canopy with a new 24' x 32' canopy, 1041 Shelburne Road, as depicted on a plan entitled "Site flan Wesco Inc. Champlain Farms Texaco 1041 Shelburne Road South Burlington VT" prepared by 5MM Environmental Engineering, dated 7/23/01, last revised on 3/13/02. The Applicant was present at the public meeting held on 12/17/02 relative to this application. Based on evidence submitted at the meeting and as part of this application, the South Burlington Development Review Board hereby renders the following decision on this application: FINDINGS OF FACT 1. This project consists of amending a plan for a 559 oq. ft. convenience store with gas sales (4 fueling positions) and a 1544 oq. ft. canopy. The amendment consists of removing the existing 559 oq. ft. convenience store and constructing an 1104 oq. ft, convenience store and replacing an existing gas island canopy with a new 24' x 32' canopy, 1041 Shelburne Road, 2. The owner of record of this property is Wesco, Inc. 3. This property located at 1041 Shelburne Road lies within the C1 District. It is bounded on the north and west by a restaurant, on the north by a cemetery and on the east by Shelburne Road. 4. The property has 156 feet of frontage along Shelburne Road and has a depth of 100 feet for a lot size of 16,500 oq. ft. 5. This property is developed with a 559 oq. ft. convenience store with gas sales (4 fueling positions) and 1544 oq. ft. canopy over the pump islands. 6. This convenience store building has a 70 foot front yard setback, a 7 foot rear yard setback and side yard setbacks of 61 feet and 55 feet. Applicant proposes to amend the setbacks in the following manner: the front yard setback will be 68 feet, the rear yard setback will be 9 feet and the side yard setbacks will be 56 feet and 61 feet. PAGE #2 7. The new canopy will have a 38 foot front yard Setback, a 30 foot rear yard Setback and Side yard Setbacks of 64 feet and 69 feet. The canopy Setbacks will change Slightly. CONDITIONAL U5E CRITERIA 8. Conditional use criteria under Section 26.052 (d) of the zoning regulations requires that the proposed use not adversely affect the bylaws in effect. This proposal will adversely affect the bylaws because a variance is needed to develop the property as proposed and a variance was denied. Conditional use request must therefore be denied. 51TE PLAN _CRITERIA 9. Access/Circulation: Access is currently provided by two (2) curb cuts. The northerly curb out is 42 feet in width and the Southerly curb out is 40 feet in width (measured at the property line). Both curb cuts are proposed to be reduced in width to 36 feet. 10. Circulation on the Site is adequate. 11. Coverage: Building coverage is 11.3% (maximum allowed is 30%). Overall coverage iS 61.29% (maximum allowed is 70%) Front yard coverage iS being reduced from 78.6% to 68% (maximum allowed iS 30%). 12. Setbacks: The existing convenience Store and canopy do not meet the Setback requirements. The proposed convenience Store building and new canopy will not meet the Setback requirements (See discussion below regarding non -complying Structures). 15. Forking: Eight (8) parking Spaces are required and eight (8) Spaces are provided including one (1) handicapped space. No bike rack is proposed as required. 14. Traffic: No additional traffic expected since no additional fueling positions proposed. 15. Lighting: New exterior light fixtures are proposed. Details of these new fixtures have not been provided, nor has a point by point lighting plan been provided. NON -COMPLYING STRUCTURES 16. This property iS currently developed with: 1) a 559 Sq. ft. convenience Store building, 2) an approximately 1300 Sq. ft, gas island canopy, and 3) a 48 Sq. ft. wood shed. All three (3) of these Structures are non -complying structures because they do not meet setback requirements. PAGE #3 17. The proposal iS to: 1) remove entirely the 48 sq. ft. wood Shed, 2) remove the existing 1300 sq. ft. canopy and replace it with a 765 Sq. ft. canopy, and 3) remove entirely the 559 Sq. ft. convenience Store and replace it with a new 1104 sq. ft. building for convenience Store use. 18. The new convenience Store building will be located ouch that it will not meet the rear yard Setback requirement of 30 feet. It is proposed to project 21 feet into the Setback area. The new canopy will be located ouch that it will not meet the 50 foot front yard Setback requirement. It iS propoeed to project 12 feet into this Setback area. 19. 5ection 26.002 of the zoning regulations relating to alterations to non- complying structures states that "in the event an addition or an expansion to a building or structure is proposed, the addition or expansion itself must comply with the provisions of these regulations (e.g., setback requirements)." The Environmental Court's charge is under Section 26.002 of the zoning regulations. However, Wesco does not propose an alteration to a non -complying structure. An alteration is defined in this manner. "(a)S applied to a building or structure, a change or rearrangement in the structural parts or in the exit facilities, or an enlargement, whether by extending on a side or by increasing in height." This definition does not contemplate the complete replacement of a structure as an "alteration." The only instance in which the Zoning Regulations permit the replacement of a non -complying structure is when such a structure is "destroyed by fire, collapse, explosion or similar cause". See Section 26.006 of the City Zoning Regulations. Even in those instances, the replacement work must be "completed within one year of the damage or destruction." This result is consistent with the state's policy against the "undue perpetuation on non- conforming uses." 20. In addition, Section 26.003 of the zoning regulations, which provides, in part, that "(a) non -conforming use shall not be extended or enlarged", forbids Wesco'S proposal. A non -complying structure is a non -conforming use. 5ee_In re Miserocchi, 170 Vt. 320. 323-324 (2000). "An enlargement or expansion of a non -conforming use, rather than mere increase in business, is indicated where new facilities or a new product is involved." Vermont brick& E51ock, Inc. v,_Villag�e_of Es5ex-J_unction,135 Vt. 481, 483 (1977). Wesco proposes to construct a new, large structure to house the convenience store on the subject property. The City Zoning Regulations expressly prohibit this proposal because it constitutes the extension or enlargement of a non -conforming use. PAGE #4 CONCLU51ON5 OF LAW The convenience Store and canopy are non -complying structures because they currently do not meet the front yard and rear yard setback requirements. In order to obtain all necessary approvals under the South Burlington Zoning Regulations, Applicant first must obtain a variance for: 1. The proposed new convenience store building to project 21 feet into the rear yard setback. By Decision dated May 21, 2002, (Application #VR-01-02), the 5outh Burlington Development Review Board denied Applicant's request for this variance. Therefore, the Board does not reach the merits of Applicant's request for conditional use and site plan approval. DEC1510N Based on the above Findings of Fact and Conclusion of Law, the South Burlington Development Review Board hereby Denies the Applicant's request for conditional use and site plan approval fora proposal to construct a new 1104 sq. ft. convenience store with gas Bales and replace an existing gas island canopy with a new 24' x 32' canopy. The Development Review Board's decision to deny this application was made on December 17, 2002. Chair or 5outh Bu i on Development Review Board Please note: You have the right to appeal this decision to the Vermont Environmental Court, pursuant to 24 V5A 4471 and VFCP 76 in writing, within30 days of the date of this decision i5 issued. The fee is $150.00. If you fail to appeal this decision, your right to challenge this decision at some future time may be lost because you waited too long. You will be bound by the decision, pursuant to 24 V5A 4472 (d) (exclusivity of remedy, finality).