Loading...
HomeMy WebLinkAboutBATCH - Supplemental - 1041 Shelburne RoadSTITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE' E-MAIVFIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M.EUSTACE AMANDA S. E. LAFFERTY ('ALSO ADMITTED IN N.Y) January 19, 2006 Jacalyn Stevens, Manager Vermont Environmental Court 2418 Airport Road Barre, VT 05641 Re: Appeal of Wesco, Inc. Docket No. 207-10-05 Dear Jackie: Emclosed please find for filing the City of South Burlington's Opposition to Appellant's Motion for Summary Judgement. Please call with questions. Thank you. Sincerely, '1 Amanda S.E. Laffert Enclosures CC: Raymond Belair, Administrative Officer Marc B. Heath, Esq. SON06-017.cor JILL E. SPINELLI WILL S. BAKER STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT APPEAL OF WESCO, INC. (SHELBURNE ROAD) DOCKET NO. 207-10-05 Vtec CITY OF SOUTH BURLINGTON'S OPPOSITION TO APPELLANT'S MOTI43N FOR SUMMARY JUDGMENT NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C., and moves this Court to enter an Order granting summary judgment in the City's favor and denying Appellant's Motion for Summary Judgment, for the following reasons. Appellant's "Background" Appellant asks the Court to grant it summary judgment on one issue, whether its applications for preliminary and final plat approval were deemed approved. In support of its arguments, Appellant makes various unsupported misstatements regarding the City's review of Appellant's applications for development of the subject property'. See V.R.C.P. 56(c)(2). Given the narrow issue 1 In response to the most egregious of Appellant's misstatements, the City notes the following. There is no requirement in the Land Development Regulations or in state law that the Court express any opinion as to whether Appellant's proposed "land development" is an upgrade, enhancement or improvement to the subject property. As the City has demonstrated, Appellant's applications for land development on the subject property do not comply with the zoning regulations III effect at the time of application. Finally, the City is unaware, when the preliminary and final plat application requirements are stated in the Land Development Regulations, a document readily available to the public, of any reason why Appellant could not submit said applications within six months of sketch plan review. 1 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 Appellant raises in its motion, its "background" misstatements are not relevant an4 are therefore not admissible. See V.R.E. 401 and 402. Argument Appellant's applications for preliminary and final plat approval of a planned unit development (hereinafter "PUD") have not been deemed approved. Appellant argues that the City Administrative Officer was required to take one of three actions in response to its PUD applications, that the Administrative Officer's action in returning the applications to Appellant constituted a failure to act or perform a duty imposed by law, and therefore, an arbitrary abuse of power'. See Appellaiit's Motion for Summary Judgment, pages 1-2, 4-5. The law does not mandate that the Administrative Officer take any particular action when he receives an application for a permit and the failure to act thereon is not an abuse of power. See 24 V.S.A. §4448(d)(emphasis added). Rather, as Appellant admits, the law imposes certain consequences for a failure to act. See id.; see also Appellant's Motion for Summary Judgment, page 8. However, Appellant's analysis is still wrong or misplaced. Vermont law provides that the administrative officer initially should review a permit application to determine if it is complete and what appropriate municipal panel, if any, has jurisdiction. See 24 V.S.A. §§4448, 4460(e). In order to determine 1 Appellant later admits that its argument is not relevant where the General Assembly provides a statutory remedy, deemed approval, for an administrative officer's alleged failure to act. See Appellant's Motion for Summary Judgment, page 8; see also 24 V.S.A. §4448(d). However, the deemed approval remedy is not appropriate in this case. 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PO. BOX 1507 BURLINGTON, VERMONT 05402-1507 whether to refer an application to an appropriate municipal panel the administrative officer first must determine if the administrative officer or an appropriate municipal panel has jurisdiction over the application. See 24 V.S.A. §§4448(d), 4460(e). The authority to evaluate whether jurisdiction exists and to refer an application to an appropriate municipal panel necessarily includes the authority to refuse to refer an application where there is no jurisdiction. It would be an utter waste of municipal resources to require administrative officers to refer, and appropriate municipal panels to review, applications over which the appropriate municipal panel has no jurisdiction. In the present matter, the City Administrative Officer undertook this initial review and determined that the applications were complete. However, the Administrative Officer also determined that the appropriate municipal panel, the Development Review Board, lacked jurisdiction over Appellant's applications for preliminary and final plat approval. See 24 V.S.A. §4460(a), (e)(5) and (e)(8). Based on this determination, the Administrative Officer did not refer the applications to the Development Review Board and instead returned the applications to Appellant with a written explanation of his determination. The Administrative Officer's refusal to refer Appellant's applications was within the Administrative Officer's grant of authority and did not constitute a failure to act that required the deemed approval remedy. In fact, as specifically allowed under 24 V.S.A. section 4460(e), Appellant appealed the Administrative Officer's written referral decision to the Development Review Board. 3 r STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 The Court must be careful to use the deemed approval remedy only where its application is clearly consistent with the statutory intent because its application can result in the grant of permits that are wholly inconsistent with the zoning regulations of a municipality to the detriment of surrounding landowners. See Ike Fish, 150 Vt. 462, 464 (1988); see also In re Knapp, 152 Vt. 59, 66 (1989)(stating "[c)onsistent with the cautionary note sounded in In re Fish ... we are not willing to impose §4467's adjourned -hearing notice requirements absent the Legislature's clearly expressed intent that a default permit should issued under these circumstances."). In the present matter, the Administrative Officer promptly responded to a complete application with a written refusal to refer said application to the Development Review Board. There was a complete lack of indecision, protracted deliberations and deliberate or negligent inaction on Appellant's applications. See Hinsdale v. Village of Essex Junction, 153 Vt. 618, 623-624 (1990); see also In re Application of White, 155 Vt. 612, 616 (1991). Under these circumstances, the application of the deemed approval remedy is clearly inconsistent with the intent of said remedy. Appellant also wrongly argues that the Administrative Officer's action in refusing to refer the PUD applications somehow prejudices Appellant and is inconsistent with this Court's interlocutory Decision and Order on the City's request that Docket Nos. 152-7-02, 153-7-02 and 6-1-03 Vtec be removed from the Court's list of inactive cases. See Appellant's Motion for Summary Judgment, pages 5, 7, g 9. Appellant controls the applications that Appellant submits and Appellant has no rd STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 right to an advisory opinion. Appellant fails even to attempt to demonstrate that the Administrative Officer and the Development Review Board have acted in anything other than complete good faith and that any prejudice results to Appellant from their refusal to review an application they believe they have no jurisdiction to consider. Where Appellant disagrees with either the Administrative Officer or the Development Review Board it may appeal, as it has done in the above-captionecl matter. The Environmental Court's previous Decision and Order has no bearing on the Administrative Officer's evaluation of the Development Review Board's jurisdiction over the applications or on the Development Review Board's review of Appellant's appeal. The Court had no information regarding the merits of Appellant's most recent application for the subject, which certainly was not ripe for this Court's consideration. Conclusion For all the reasons set forth above and in the City's Motion for Summary Judgment, the City of South Burlington respectfully requests that the Court enter an Order denying Appellant's Motion for Summary Judgment, granting the City's Motion for Summary Judgment and holding that 1. There is no authority for Appellant simultaneously to submit two different applications for the site plan of the Property; 2. Appellant's application for the 2005 Plan seeks an advisory opinion which this Court lacks jurisdiction to render; 3. Appellant's application for the 2005 Plan has not been deemed approved; 5 4. Based on the above, there is no need for the Court to reach Questions 4 and 5 of Appellant's Statement of Questions; and dismissing Appellant's appeal. DATED at Burlington, Vermont this 191h day of January 2006. son06-009.ht STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STITZEL, PAGE & FLETCHER, P.C. Attorneys for the CITY OF SOUTH BURLINGTON By: Amanda S. E. Lafferty R STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE' E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE AMANDA S. E. LAFFERTY (*ALSO ADMITTED IN N.Y.) November 29, 2005 Jacalyn Stevens Vermont Environmental Court 2418 Airport Road Barre, VT 05641 JILL E. SPINELLI WILL S. BAKER Re: Appeals of Wesco Docket Nos: 152-7-02 Vtec, 153-7-02 Vtec and 6-1-03 Vtec Dear Jackie: Enclosed for filing with the Court please find City of South Burlington's Reply to Appellant's Opposition to City of South Burlington's Motion for Summary Judgment and Opposition to Appellant's Cross Motion for Summary Judgment in connection with the above -referenced matter. Please call me if you have any questions. Thank you. Sincerely, Amanda S.E. Lafferty ASEL:rh enc. CC: Raymond Belair Marc B. Heath, Esq. son6002 wesco.cor STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT APPEALS OF WESCO, INC. DOCKET NO. 152-7-02 Vtec DOCKET NO. 153-7-02 Vtec DOCKET NO. 6-1-03 Vtec CITY OF SOUTH BURLINGTON'S REPLY TO APPELLANT'S OPPOSITION TO CITY OF SOUTH BURLINGTON'S MOTION FOR SUMMARY JUDGMENT and OPPOSITION TO APPELLANT'S CROSS MOTION FOR SUMMARY JUDGMENT NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C., and, asks this Court to enter an order granting summary judgment in its favor and denying Appellant's appeals. Statement of Undisputed Facts All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served b t�pposing party. The statement of material facts required to be served ... shall consist of numbered paragraphs and shall contain specific citations to the record. V.R.C.P. 56(c)(2)(emphasis added). When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. V.R.C.P. 56(e)(emphasis added); see also Gore v. Green Mountain Lakes, Inc., 140 Vt. 262, 264 (1981). The City of South Burlington's Statement of Undisputed Facts sets forth specific facts supported by specific citations to the record. Appellant's Exhibit A, which Appellant terms as "Wesco's response to the City of South Burlington's Statement of Undisputed Facts" does not contain specific facts or 1 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PO. BOX 1507 BURUNGTON, VERMONT 05402-1507 specific citations to the record, rests only upon mere allegations or denials and fails to controvert the City's Statement of Undisputed Facts. Therefore, the facts set forth in the City's Statement of Undisputed Facts are deemed to be admitted by Appellant. See V.R.C.P. 56(c)(2). However, without waiving Appellant's admission of said material facts, the City responds to the following portions of Appellant's Exhibit A. 1. As demonstrated by the City's Exhibits A and B, the City of South Burlington has had Zoning Regulations in effect at all times material to this matter. Appellant fails to set forth specific facts showing there is a genuine issue for trial. 2. The existing use claimed by Appellant, "convenience store with gasoline sales" does not exist under the Zoning Regulations. Said use is neither defined in the Zoning Regulations nor listed as either a permitted or conditional use in the C1 District. See Exhibit A, pages 27-28 (Section 12.10 and 12.20), 104-112 (Sections 28.101-28.166). Appellant does not deny that there currently exists on the Property one use whereby Appellant offers prepackaged food products, household items, newspapers, magazines, sandwiches and other freshly prepared foods for off -site consumption and one use whereby Appellant dispenses and sells vehicular fluids. See City's Exhibit A, pages 105 and 109 (Sections 28.108 and 28.147). Appellant fails to set forth specific facts showing there is a genuine issue for trial. 3. As demonstrated by the City's Exhibits C, D and E, Appellant obtained a variance in 1984 for a limited purpose, to construct an addition with a 9-foot rear 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 yard. Instead, Appellant constructed an addition with an 8-foot rear yard. See the City's Statement of Undisputed Facts, paragraph 4; see also City's Exhibit F. Any certificate of occupancy that Appellant 6btained for the Property prior to 1984 did not make it lawful to use, occupy or permit the use or occupancy of the Property or any structures thereon once Appellant commenced further land development on the Property. See Exhibit A, page 102 (Section 27.201). Appellant fails to produce any certificate of occupancy for the illegal land development it completed in 1984. 6. The Development Review Board only considered an application for a variance that would allow the convenience store building to project 21 feet into the 30-foot rear yard required under the Regulations. A true and correct copy of the Development Review Board decision dated June 18, 2002, marked as Exhibit K, is attached hereto. Appellant fails to produce any evidence, by testimony or affidavit by an individual with personal knowledge, that Appellant submitted facts, law or reasoning in support of its mere assertion that it did not require a variance for the convenience store building to project 21 feet into the 30-foot rear yard required under the Regulations. 7. Appellant fails to set forth any facts in support of its conclusion that "the proposed canopy is substantially improved over the existing canopy". However, Appellant does not deny that it proposes to construct a new canopy that projects 12 feet into the 50-foot front yard required under the Regulations. Appellant fails to set forth specific facts showing there is a genuine issue for trial. 3 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 8. William Simendinger's affidavit, based on information and belief, rather than personal knowledge, as required by V.R.C.P. 56 (e), should be stricken from the record. See Department of Social Welfare v. Berlin Development Associates, 138 Vt. 60, 62 (1980)(stating that affidavit made "on information and belief' or similar phrase was not personal knowledge). Appellant fails to produce any evidence, by testimony or affidavit by an individual with personal knowledge, that Appellant submitted facts, law or reasoning in support of its mere assertion that it did not require a variance from the rear yard requirement'. Appellant fails to set forth specific facts showing there is a genuine issue for trial. Appellant's "Factual Background" Appellant's attempt at a statement of material facts contains very few actual statements of fact and does not consist of numbered paragraphs or any citations to the record as required by V.R.C.P. 56(c)(2). If intended as a response to the City of South Burlington's Statement of Undisputed Facts, the "Factual Background" fails to controvert the City's factual statements, which are supported on the record. Appellant therefore fails to show a genuine issue for trial. 1 Appellant also misleads the Court. City Planning and Zoning staff informed William Simendinger that tapes of hearings are only maintained for approximately three years, which is considered an adequate time period for final adjudication of most applications for land development in South Burlington. 4 STITZEL, PAGE & FLETCHER, PC. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 With respect to Appellant's cross motion for summary judgment, Appellant's failure to supply the Court with the necessary supporting citations in the record makes it impossible for the Court to determine that there is no genuine issue as to any material fact. See V.R.C.P. 56(c)(3). Therefore, the Court must deny Appellant's cross motion for summary judgment'. See id. In addition, as Appellant's statement of material facts fails to comply with the requirements of the Vermont Rules of Civil Procedure, the City is not required to respond thereto nor may the City's failure to respond be deemed admission of said facts. See V.R.C.P. 56(c)(2) and (e)(stating that "When a motion for summary judgment is made and supported as provided in this rule ...") (emphasis added). Without waiving its argument that the Court should deny Appellant's cross motion for summary judgment for failure to demonstrate that there is no genuine issue of fact, the City responds to Appellant's "Factual Background" as follows. Appellant's fourth paragraph: Appellant fails to set forth any facts that demonstrate that it is "unreasonable" to construct a structure for use as a convenience store in the 2,700 square feet envelope that complies with the setback 2 Appellant's cross motion for summary judgment apparently relies, at least in part, on the "City current zoning regulations", which Appellant does not even bother to provide to the Court. 3 If Appellant's raises in its reply, for the first time, facts and citations to the record that Appellant could have and should have raised in its cross motion and opposition to the City's motion for summary judgment, the City requests additional opportunity to respond thereto, even though not normally allowed under the Rules. See V.R.C.P. 78(b)(1). J STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 requirements of the Regulations and reasonable to construct a 1,104 square foot convenience store building in a location that fails to comply with the front yard coverage and rear yard requirements of the Regulations. See City's Exhibit F. Appellant's fifth paragraph: The City admits that Appellant has not altered the size and/or shape of the subject Property. However, Appellant fails to set forth the necessary supporting facts for its legal conclusion that Appellant "did not create this situation" and the City denies said conclusion. See the City's Motion for Summary Judgment, pages 12-15. Appellant has failed to set forth any facts demonstrating that the Court should grant a variance for the rear yard of the convenience store building. Appellant's sixth paragraph: The City admits that there have been two uses on the subject Property - convenience store and service station - since at least 1984. The City has already admitted that the City Board of Adjustment granted a very limited variance in 1984 that permitted Appellant to construct an addition with a 9- foot rear yard. See the City's Statement of Undisputed Facts, paragraph 3. Instead, Appellant constructed an addition with an 8-foot rear yard. See the City's Statement of Undisputed Facts, paragraph 4; see also City's Exhibit F. The remaining statement in this paragraph is an unsupported legal conclusion. Appellant's seventh paragraph: The City's denies Appellant's legal conclusion that "the net effect of the[ proposed] changes would be di minimus." Appellant points to no support whatsoever for its apparent claim that a proposed net change in square footage is relevant to site plan review. 0 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 Appellant's eight paragraph: Appellant does not deny that it proposes to construct a new building that projects 21 feet into the 30-foot rear yard required under the Regulations and that includes portions of building within the rear yard where none currently exist. Appellant does not deny that it proposes to construct a new canopy that projects 12 feet into the 50-foot front yard required under the Regulations. Appellant does not deny that it proposes a site plan with 38% more front yard coverage than the Regulations allow. Appellant's ninth paragraph: All statements in this paragraph are unsupported legal conclusions. Appellant's tenth paragraph: Appellant does not deny that it's proposal fails to meet numerous dimensional requirements of the Regulations. Denied that the mere assertion that Wesco denied that it required a variance, without any supporting facts, law or reasoning, is sufficient to preserve the issue on appeal. Appellant fails to produce any evidence, by testimony or affidavit by an individual with personal knowledge, that Appellant submitted facts, law or reasoning in support of its mere assertion that it did not require any variances. Appellant's eleventh paragraph: Denied that the mere assertion that Wesco denied that it required a variance, without any supporting facts, law or reasoning, is sufficient to preserve the issue on appeal. William Simendinger's affidavit, based on information and belief, rather than personal knowledge, as required by V.R.C.P. 56 (e), should be stricken from the record. See Department of Social Welfare v. 7 Berlin Development Associates, 138 Vt. 60, 62 (1980)(stating that affidavit made "on information and belief' or similar phrase was not personal knowledge). DATED at Burlington, Vermont this 29th day of November 2005. son2147.lit STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STITZEL, PAGE & FLETCHER, P.C. Attorneys for the CITY OF SOUTH BURLINGTON By:rt,,Vv6,0�-� Amanda S. E. Lafferty i EXHIBIT v v K E m #VR-ol-a2 STATE OF VERMONT COUNTY OF CHITTENDEN CITY OF SOUTH BURLINGTON RE: APPLICATION OF WESCO, INC. This matter came before the South Burlington Development Review Board pursuant to the provisions of 24 VSA Section 4468 on application of Wesco, Inc. hereinafter "Appellant" for a project consisting of amending a plan for a S59 sq. ft. convenience store with gas sales (4 fueling positions) and a 1344 sq. ft. canopy. The amendment consists of removing the existing 559 sq. fr. convenience store and constructing a 1104 sq. ft. convenience store. Appellant requests a variance to allow the new building to project 27 feet into the required 30 foot rear yard setback area, Io4i Shelburne Road, as depicted on a plan entitled, "Sire Plan Wesco Inc. Champlain harms Texaco 1041 Shelburne Road South Burlington, VT" prepared by SMM Environmental Engineering, dated 7/23/01, last revised on 3/13/0z. The Appellant was represented at the public hearing held on 5/zi/oz relative to this application. Based on evidence: submitted at the hearing and as part of this application, the South Burlington Development Review Board hereby renders the following decision on this application. - FINDINGS OF FACT i. This project consists of amending a plan for a 559 sq. ft. convenience store with gay sales ( 4 fueling; positions) and a 1344 sq. ft. canopy. The amendment consists of removing the existing 559 sq. ft. convenience store and constructing a t104 sq. fr. convenience store. Appellant requests a variance to allow the new building to project 21 feet into the required 3o foot rear yard setback area. z. This property located at 1041 Shelburne Road lies within the C1 District. It is bounded on the west by a restaurant parking lot, on the south by a cemetery, on the north by a restaurant, and on the east by Shelburne Road. 3. This property has 165 feet of frontage Along Shelburne Road and has a depth of ioo feet for a lot size of 16,5oo sq. ft. 4. This property is developed with 559 sq. ft: convenience store with Ras sales (4 . fueling positions) and a 1344 sq. ft. canopy over the pump islands 5. The convenience store and canopy are non -complying structures because they currently do not meet the front and rear setback requirements. 6. The owner of record of this property is Wesco, Inc. Page #z CONCLUSIONS OF LAW i. There are no unique physical circumstances or conditions, including irregularity, narrowness or Shallowness of for size or shape, or exceptional topographical or other physical conditions peculiar to this particular property, The unnecessary hardship claimed by the Appellant is not due to such conditions, but by the circumstances or conditions generally created by the provisions of the zoning regulations in the neighborhood or district in which the property is located. z. The authorization of a variance is not necessary to enable the. reasonable use of the property. The property is currently being used as a convenience store with gas sales which is a reasonable use of the property. 3. The unnecessary hardship has been created by the Appellant by desire to expand the noncomplying structure -on the property, 4. The authorization of the variance would alrer the essential character of the neighborhood or district in which the property is located. It would result in over l,000 sq. ft. of additional building area located within the rear yard setback area in an area where most building., are not located within the rear yard setback area. s. The :authorization of the. variance would not represent the minimum variance that would afford relief. Appellant has a reasonable use of the property and does not require relief. The authorization of the variance would not represent the least deviation possible from. the zoning regulations since the use already exists in a non -complying structure. DECISION Based on the above Findings of Fact and Conclusions of.Law, (lie South Burlington Development Review Board hereby denies the Appellant's request for a variance to allow a new convenience store building to project zt feat in the required 30 foot yard area, 1041 Shelburne Road. Dated this day of June, zooz at South Burlington, Vermont 05403. �i ' Chairman• South $urlinvb evelopment Review Board Page #3 Please note: You have the right to appeal this decision to the Vermont Environmental Court, pursuant to 24 VSA 4471 and VW'P 76, in writing, within 30 days of the date this decision is issued. The fee is ;x}o.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 VSA 4472 (d) (exclusivity of remedy finality). STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT APPEALS OF WESCO, INC. DOCKET NO. 152-7-02 Vtec DOCKET NO. 153-7-02 Vtec DOCKET NO.6-1-03 Vtec CITY OF SOUTH BURLINGTON'S REPLY TO APPELLANTS OPPOSITION TO CITY OF SOUTH BURLINGTON'S MOTION FOR SUMMARY JUDGMENT and OPPOSITION TO APPELLANTS CROSS MOTION FOR SUMMARY JUDGMENT NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C., and asks this Court to enter an order granting summary judgment in its favor, denying Appellant's cross motion for summary judgment and denying Appellant's appeals. Memorandum Appellant raises numerous issues in opposition to the City's motion for summary judgment and in support of its cross motion for summary judgment. For the reasons set forth below, the arguments advanced by Appellant are without merit. Site Plan Application We must read the sections of the regulatory scheme in context and the entire scheme in pari materia. We do not construe statues or regulations in a way that renders significant parts surplusage. Richards v. Nowicki, 172 Vt. 142, 149 (200 1) (citations omitted). Appellant claims that the inclusion of the word "expansion" in Section 26.002 permits the total removal and replacement of a structure. Appellant ignores that all of the terms used in Section 26.002 - alteration, which includes additions to the building or 1 STITZEL, PAGE & FLETCHER, PC. ATTORNEYS AT LAW 171 BATTERY STREET PO. BOX 1507 BURLINGTON, VERMONT 05402-1507 structure, and expansion - are actions taken with respect to an existing building or structure. See the City's Exhibit A, page 84 (Section 26.002)(emphasis added); see also Appellant's Exhibit D. Moreover, reading all sections of the Regulations regarding nonconforming uses and noncomplying structures together, as required under the rules of construction, there is only one provision that permits the full scale restoration of a noncomplying building, Section 26.005. There is no authority under the Regulations to demolish and completely replace a building or structure not destroyed by fire or other calamity. Assuming arguendo that the Court concludes that Appellant may demolish and replace the existing convenience store and canopy, Appellant proposes to construct new building within the rear yard where none currently exist. See City's Exhibit F. Therefore, such new building does not replace any existing noncomplying building and must meet the dimensional requirements of the Regulations. See the City's Exhibit A, pages 77-79 (Sections 25.00, 25.101, 25.105, 25.107); see also id. at page 84 (Section 26.002)1("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).). Appellant attempts to claim that the uses of the Property, which Appellant admits are two separate uses that coexist on the Property, are not nonconforming Appellant also has not set forth any facts that demonstrate compliance with the aggregate cost maximum in Section 26.002 of the Regulations. 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PO. BOX 1507 BURLINGTON, VERMONT 05402-1507 uses' because the service station use was a permitted use and the convenience store was a conditional use in the C1 District at the time of application. The Regulations do not allow the separate review and approval of each use on the Property. Appellant does not propose just to use the Property for convenience store or just to use the Property for service station. However, Appellant's oversimplified interpretation of the Regulations ignore that the existing structures are nonconforming uses under the Regulations because Appellant's use of each structure fails to comply with all zoning regulations, specifically, with the requirements for front yard coverage and front and rear yards. See the City's Exhibit A, page 107 (Section 28.130). One of the everyday commonly understood meanings of the word "extend" is, in sum, to prolong or increase the length of time something lasts." See Mountain Cable Co. v. Dep't of Taxes, 168 Vt. 454, 457 (1988). The Regulations do not permit a nonconforming use to be extended or enlarged. See City's Exhibit A, page 85 (Section 26.003)(emphasis added). Reading this provision of the Regulations in the context of this application and construing these terms so as to give them both meaning, extend means to lengthen the life of the nonconforming use and enlarge means to physically increase the size of a nonconforming use. The Regulations forbid a proposal to prolong or increase the life of a nonconforming use. 2 The relevant definitions of nonconforming uses and noncomplying structures are the ones in effect at the time of application. See the Regulations, Section 28.130; see also 24 V.S.A. section 4408. 3 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 Appellant mistakenly claims that the Regulations' ban on the extension of nonconforming uses in time is "unreasonable." See Appellant's Opposition to City's Motion for Summary Judgment and Cross -Motion for Summary Judgment, page 6. One of the main goals of zoning is to phase out nonconforming uses. See In re Miserocchi, 170 Vt. 320, 327 (2000). It is not, therefore, unreasonable to permit nonconforming uses to continue until the use of any portion of a building or structure is declared by a proper authority to be unsafe or a health hazard. See City's Exhibit A, page 84 (Sections 26.00 and 26.001). There is nothing in 24 V.S.A. Chapter 117 or the Regulations that allows Appellant to extend nonconforming uses well beyond the time that such uses may continue safely and without hazard to health. See City's Exhibit A, pages 77-79 (sections 25.00, 25.101, 25.102, 25.105, 25.107. There is nothing in 24 V.S.A. Chapter 117 that allows Appellant to construct building area and volume within the rear yard beyond that which currently exists. Conditional Use Application Appellant attempts to claim, without providing any supporting facts, that the current use of the Property is "convenience store with self -serve gasoline sales" and that it may obtain conditional use approval of the convenience store use only and, separately, approval of the service station as a permitted use'. However, Appellant 3 Appellant provides no factual basis for its claims regarding the neighborhood surrounding the subject Property and alleged City approvals for uses on other properties. See Appellant's Opposition and Cross -Motion, page 7. The City is left to guess as to the basis for Appellant's legal conclusions and declines to do so. 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 points to no section of the Regulations that lists "convenience store with self -serve gasoline sales" as either a permitted or conditional use in the C1 District. This alleged use is not defined or otherwise recognized by the Regulations. Moreover, there is no authority in either 24 V.S.A. Chapter 117 or the Regulations for the separate review of the several uses of a Property. The C1 District Regulations allow approval of the Property for service station as a permitted use OR approval of the Property for convenience store as a conditional use. See City's Exhibit A, page 27 (Sections 12.106, 12.213). If an applicant proposes, as Appellant does, both uses on the same property, the Regulations do not provide for either permitted use or conditional use review. Appellant mistakenly argues that the City has failed to demonstrate how Appellant's applications fail to meet the requirements of Section 26.65 of the Regulations. The City has demonstrated that Appellant proposes more than one principal use and more than one principal structure on the Property. See City's Exhibit A, page 99 (Section 26.651(a)). The City has demonstrated numerous reasons for the Court to deny Appellant's applications. Appellant submitted no evidence or argument regarding Section 26.65 of the Regulations to the City or to this Court. It is Appellant's burden to demonstrate that its applications should be approved. In addition, Appellant's vague, unsubstantiated claims about other properties are without any relevance to the issue at hand - whether the Court should approve Appellant's applications. J STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 Variance Appellant failed to preserve for appeal the issue of whether variances are required. Appellant claims that the City argues that Appellant did not argue strenuously enough at the Development Review Board hearing that a variance is not required and that Appellant is not limited in Environmental Court to what it argued to the Development Review Board. Appellant is wrong. First, the City demonstrated that Appellant failed to submit ANY factual basis or legal analysis in support of its mere assertion that no variance is needed and Appellant has not submitted any evidence by anyone with personal knowledge that controverts said statements. Secondly, the Environmental Court may not consider issues or arguments for the first time on appeal. See In re Torres, 154 Vt. 233, 236 (1990); see also Simendinger v. City of Barre, 171 Vt. 648, 652 (2001); In re Charlotte Farm and Mills, 172 Vt. 607, 609 (2001); KPC Corp. v. Book Press, Inc., 161 Vt. 145, 152 (1993). Appellant may not argue that variances are not needed in conjunction with Appellant's other applications. Appellant also wrongly asserts that the variance granted to Appellant in 1984 permits Appellant's current applications. The 1984 variance only permitted Appellant to construct an addition to the then -existing building so that there was only a 9-foot rear yard. The variance does not permit Appellant to remove all structures from the Property and construct the site plan Appellant now proposes. 9 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 Ap4 pellant fails to demonstrate all five requirements for a variance. Appellant does not claim that there is anything peculiar or unusual about the physical characteristics of the Property and that, as a result, it is incapable of land development that complies with the Regulations. Rather, Appellant simply claims that the circumstances and conditions generally created by the provisions of the Regulations in the C1 District create a hardship. This claim is expressly exempted from consideration under 24 V.S.A. section 4468(a)(1). Appellant has a 2,700- square foot building envelope that complies with the setback requirements of the Regulations. Appellant has failed to demonstrate why it cannot develop its Property in compliance with the Regulations. Moreover, Appellant does not even address the fact that it already has a reasonable use of the Property that it now seeks both to enlarge and extend. There is no basis to grant Appellant a variance from the rear yard requirement of the Regulations. Conclusion For all the reasons set forth herein and in the City of South Burlington's Motion for Summary Judgment dated September 26, 2005, the City respectfully requests that the Court enter an order granting summary judgment in the City's favor, denying Appellant's cross motion for summary judgment and denying 4 The 1984 variance only permitted an addition to the then -existing structure and is not relevant. Appellant proposes both to enlarge noncomplying structures and to extend nonconforming uses, which the Regulations do not allow. Appellant requires four variances and has only applied for one variance. II Appellant's application for a variance and approval of a conditional use and site plan. STITZEL, PAGE & FLETCHER, PC. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURUNGTON, VERMONT 05402-1507 DATED at Burlington, Vermont this 29th day of November 2005. STITZEL, PAGE & FLETCHER, P.C. Attorneys for the CITY OF SOUTH BURLINGTON By: 1 3,�]Lalyj a Amanda S. E. Lafferty 9 STEVEN F. STITZEL PATTI R. PAGE' ROBERT E.FLETCHER JOSEPH S. McLEAN TIMOTHY M. EUSTACE AMANDA S. E. LAFFERTY (*ALSO ADMITTED IN N.Y.) STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) FAX (802) 660-2552 or 660-9119 JILL E. SPINELLI WRITER'S E-MAIL(ALAFFERTY@FIRMSPF.COM) WILL S. BAKER WRITER'S FAX (802) 660-2552 September 26, 2005 Jackie Stevens, Clerk Vermont Environmental Court 2418 Airport Road Barre, VT 05641-8701 Re: Appeals of WESCO, Inc. Docket Nos. 152-7-02 Vtec 153-7-02 Vtec 6-1-03 Vtec Dear Jackie: Enclosed please find the City of South Burlington's Motion for Summary Judgement and Affidavit of Raymond Belair in the above -referenced matter. Please let me know if you have any questions. Thank you. Sincerely, JJAe'' Amanda S. E. Lafferty ASEL/af Enclosure CC: Marc B. Heath, Esq. Raymond Belair (w/o exhibits) son5948.cor STATE OF VERMONT ENVIRONMENTAL COURT APPEALS OF WESCO, INC. ) DOCKET NO. 152-7-02 Vtec DOCKET NO. 153-7-02 Vtec DOCKET NO.6-1-03 Vtec CITY OF SOUTH BURLINGTON'S MOTION FOR SUMMARY JUDGMENT NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C., and moves this Court to enter an order granting summary judgment in its favor. Statement of Undisputed Facts 1. At all times material to this matter, the City of South Burlington (hereinafter the "City") has had Zoning Regulations (hereinafter the "Regulations") in effect. A true and correct copy of the relevant Zoning Regulations, which include amendments through August 28, 2001, marked as Exhibit A, are attached hereto, and incorporated herein by reference'. 2. Wesco, Inc. (hereinafter the "Appellant") owns and/or occupies property located at 1041 Shelburne Road in the Commercial 1 ("C19 zoning district in South Burlington, Vermont (hereinafter the "Property"). The Property consists of 16,500 square feet in the shape of a rectangle, with a generally flat topography. The 1 The City adopted amendments to these Regulations on November 5, 2001, and January 7 and 21, 2002. These amendments do not affect the applications that are the subject of these appeals and referenced in paragraphs 5, 6, and 7, below. True and correct copies of said amendments, marked as Exhibits B, are attached hereto. 1 existing uses on the Property are convenience store and service station. See the Regulations, §§28.108, 28.147. 3. In 1984, the City Board of Adjustment approved a variance that allowed Appellant to construct a 10' x 48' addition to the then -existing building, resulting in a building with a nine -foot rear yard. On May 16, 1984, the Administrative Officer granted a zoning permit for said development. Appellant failed to obtain a certificate of occupancy. True and correct copies of said plan, Board of Adjustment meeting minutes and the zoning permit, marked as Exhibits C, D and E, respectively, are attached hereto, and incorporated herein by reference. 4. Currently, there is a convenience store building consisting of 559 square feet, a wood shed consisting of 48 square feet and four fueling positions on two pump islands under a canopy consisting of 1,344 square feet on the Property. The convenience store building has a 70-foot front yard, an eight -foot rear yard, a 55- foot northern side yard and a 61-foot southern side yard. The service station canopy has a 37-foot front yard, a 17-foot rear yard, a 64-foot northern side yard and a 69- foot southern side yard. The front yard coverage of the Property is approximately 79%. A true and correct copy of the existing site plan entitled "Site Plan, Wesco, Inc., Champlain Farms, Texaco, 1041 Shelburne Road, South Burlington, VT, dated July 23, 2001, last revised 3/13/02, and prepared by SMM Environmental Engineering, marked as Exhibit F, is attached hereto and incorporated herein by reference. 2 5. On October 17, 2001, Appellant submitted to the City an "Application to Development Review Board" requesting conditional use approval for the Property. Specifically, Appellant proposed to enlarge the existing convenience store building on the Property. A true and correct copy of said application, marked as Exhibit G, is attached hereto and incorporated herein by reference. 6. On November 7, 2001, Appellant submitted to the City an "Application to Development Review Board", requesting a variance from a setback on the Property. A true and correct copy of said application, marked as Exhibit H, is attached hereto and incorporated herein by reference. 7. On March 18, 2002, Appellant submitted to the City an "Application for Site Plan Review" of the Property. Specifically, Appellant proposed to remove the 559 square foot convenience store building and the 1,344 square foot canopy and to construct a new convenience store building consisting of 1,104 square feet and a new canopy consisting of 768 square feet. Appellant proposed that the convenience store building would have a 69-foot front yard, a 9-foot rear yard, a 56-foot northern side yard and a 61-foot southern side yard. Appellant proposes that the new canopy will have the same side yards as the existing canopy with 38-foot front and rear yards. The portion of the front yard not used for landscaping will be 68.0%. True and correct copies of said application, marked as Exhibit I, and the proposed site plan, marked as Exhibit F, are attached hereto and incorporated herein by reference. 3 8. On January 22, April 2 and May 21, 2002, the Development Review Board held a public hearing on the applications described in paragraphs 5 and 6, above. Also on April 2 and May 21, 2002, the Development Review Board considered the application described in paragraph 7, above, in open meeting. Appellant's attorney stated at the Board's meeting of April 2, 2002, that Appellant did not require a variance, but failed to submit any oral or written argument in support of said claim See Affidavit of Raymond Belair. By decisions dated June 18, 2002, the Development Review Board denied each application. The appeals in Docket Nos. 152-7-02 Vtec and 153-7-02 Vtec followed. 9. The Environmental Court granted Appellant's motion to remand in Docket No. 153-7-02 Vtec in order for the City Development Review Board to consider the applications for site plan and conditional use approval under section 26.002 of the Zoning Regulations. 10. By decision dated December 17, 2002, the City Development Review Board denied Appellant's application on remand. The appeal in Docket No. 6-1-03 Vtec followed. 11. The meaning of "extend" includes "to increase the length of time something lasts", (see MSN Encarta Word English Dictionary [North American Edition]), "to cause to be longer: prolong ... to stretch out in ... time", see Merriam -Webster Online Dictionary), to "lengthen in time; cause to be or last longer", see Hyperdictionary.com), "to continue, as time; to lengthen; to prolong" and "[t]o cause (something) to be or last longer", (see the American Heritage a! Dictionary of the English Language: Fourth Edition. 2000.). True and correct copies of said definitions, marked as Exhibit J, are attached hereto and incorporated herein by reference. Standard of Review Rule 56(c) of the Vermont Rules of Civil Procedure provides that summary judgment shall be rendered forthwith where it is shown that "there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law." Rule 56 provides a "mechanism for the disposition of issues, claims, and defenses which do not merit a full trial." Gore v. Green Mountain Lakes, Inc., 140 Vt. 262, 264 (1981). Opposition to a summary judgment motion may not rest on allegations in pleadings to rebut credible documentary evidence or affidavits. Id. Memorandum Site Plan Application The existing convenience store building' and existing canopy on the Property are noncomplying structures. The Regulations define a "non -complying structure" as 2 In 1984, the Board of Adjustment approved a site plan and the Administrative Officer granted a zoning permit that allowed Appellant to construct an addition to the convenience store building that resulted in a nine -foot rear yard. The existing building on the Property has a rear yard of eight feet. See Exhibit F. Therefore, at least a portion of the convenience store building is neither a noncomplying structure nor a complying structure. See the Regulations, Section 28.130; see also 24 V.S.A. §4408(a)(2). However, Appellant proposes to remove the illegal portion of the convenience store building. 5 a structure or part thereof not in conformance with the zoning regulations covering building bulk, dimensions, height, area, yards, density or off-street parking or loading requirements, where such structure conformed to all applicable laws, ordinances and regulations prior to the enactment of such zoning regulations. See the Regulations, Section 28.130; see also 24 V.S.A. §4408(a)(2)3. The Regulations require that yards abutting Shelburne Road have a front yard of no less than 50 feet. See the Regulations, §§25.00, 25.101, 25.102, 25.105, 28.164. In the C1 zoning district, the Regulations require rear yards of at least 30 feet. See id. at §§25.00, 25.101. The existing convenience store building has an eight -foot rear yard and is therefore a non -complying structure because it fails to comply with the rear setback requirements of the Regulations. The existing canopy has a 17-foot rear yard and a 37-foot front yard. The existing canopy is a noncomplying structure because it fails to meet the requirements of the Regulations for the front and rear yards. The Property should not have more than 30% of the area of the required front yard used for something other than suitable and well -maintained landscaping. See the Regulations, §25.107. Both the existing convenience store building and the existing service station canopy are non -complying structures because they fail to meet the requirements of the Regulations for front yard coverage. 3 Citations are to the statutes in effect at the time of application. 4 A "yard" is "[a]n open space on a lot, unoccupied and unobstructed from the ground upward, except or otherwise provided in these regulations." See the Regulations, Section 28.163. 9 Appellant's application for site plan approval must be denied under the Regulations. Alterations to noncomplying structures are allowed in certain instances: ... any noncomplying building or structure may be altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost ... twenty-five (25) percent for industrial and commercial property of the fair market value as determined by the City Assessor or by separate independent appraisal approved by the Zoning Administrator. 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 ([for example], setback requirements). See the Regulations, §26.002(emphasis added). Appellant's site plan application does not propose to alter', to add to or to expand the existing structures. Instead, Appellant proposes to remove completely the noncomplying 559 square foot convenience store building and the noncomplying 1,344 square foot service station canopy structure. Appellant then proposes to construct a new 1,104 square foot convenience store building that still fails to comply with the front yard coverage and rear yard requirements and a new 768 square foot service station canopy structure that still fails to comply with the front yard coverage and front yard requirements. The Regulations permit the complete replacement of a non- complying structure only in cases of damage or destruction by fire, collapse, explosion or similar cause. See id. at §26.005. Even in those instances, the replacement work must be completed within one year of the damage or destruction. 5 Under the Regulations, an "alteration" is "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." See the Regulations, §28.103. 7 See id. With that exception, the Regulations do not permit the construction of a new structure that does not meet the dimensional requirements of the Regulations in effect at the time of application. Moreover, the areas where Appellant proposes to construct portions of a building where none currently exist do not themselves comply with the Regulations. See Exhibit F; see also the Regulations, §26.002. The application for site plan approval must be denied because it would enlarge and extends a nonconforming use. A "nonconforming use" is 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. See the Regulations, §28.130, see also 24 V.S.A. §4408(a)(1) (emphasis added). The building and the canopy are noncomplying because the structures are in setback areas and because the Property exceeds the maximum front yard coverage. These structures are also nonconforming uses because they do not comply with all zoning regulations (for setbacks and front yard coverage). See In re Miserocchi, 170 Vt. 320, 323 (2000); see also In re Letourneau, 168 Vt. 539, 546 (1998)(stating "... the repeal of § 4408(c) brought noncomplying structures and nonconforming uses under the same regulatory regime. This occurred because the Planning and Development Act defined a noncomplying structure as a nonconforming use."). 6 The Regulations do not define "extend". When words are not defined in the statute, the Court presumes that the Legislature intended the everyday commonly understood meaning. See Mountain Cable Co. v. Dep't of Taxes, 168 Vt. 454, 457 (1998). 0 Nonconforming uses may continue in their existing state at the time they become "nonconforming" but, "[a] nonconforming use shall not be extended or enlarged." See the Regulations, §§26.00, 26.003. "[A] goal of zoning is to phase out nonconforming uses." In re Miserocchi, 170 Vt. 320, 327 (2000). Therefore, the existing nonconforming uses of the building and the canopy may continue in the current configuration until their useful life ends, but nothing may be done under the Regulations either to extend or prolong the life or existence of the nonconforming uses or to increase the degree of nonconformity. See the Regulations, §26.003; see also Exhibit J. The proposed site plan accomplishes both. To the extent that Appellant plans to construct the building and the canopy in substantially the same locations as the existing building and canopy, thereby placing new structures within the front and rear yards, the life of the nonconforming uses are dramatically extended, prolonged or lengthened. See the Regulations, §§ 25.00, 25.101, 25.102, 25.105, 25.107 and 25.164. To the extent that the site plan fails to remove structure, sidewalk and pavement in the front yard and to plant more landscaping, the life of the nonconforming uses are dramatically extended. See id. at §25.107. Where Appellant proposes to construct more building area and volume within the rear yard, the nonconforming use is enlarged. Appellant's site plan must be denied because it extends and enlarges nonconforming uses. YE Conditional Use Application The existing uses of the Property are service station and convenience store. The Regulations allow only one principal building or structure on a lot and only one use per lot. See the Regulations, §26.651. This combination of uses is a nonconforming use because together they are neither a permitted or conditional use in the C1 district. See the Regulations, §§12.10, 12.20, §28.130; see also 24 V.S.A. §4408(a)(1) (emphasis added). As Appellant does not propose a conditional use, conditional use review is not required. Assuming arguendo that the Court reviews Appellant's application for conditional use, Appellant must demonstrate, in relevant part, that the proposed use will not adversely affect the Regulations. See the Regulations, §§12.213, 26.052(d).' As demonstrated above, Appellant proposes both to enlarge and extend nonconforming uses, which the Regulations do not permit. See the Regulations, §26.00. Unless Appellant obtains variances for the new convenience store building, the new canopy, and the front yard coverage, Appellant's application "to enlarge building" adversely affects the Regulations and must be denied. Variance Appellant must obtain several variances in order to obtain approval of the subject proposal because the Regulations do not allow either the combination of the uses on the Property or the construction of the structures on the Property. The Development Review Board did not reach the merits of this application because it denied Appellant's application for a variance. 10 Appellant only applied to the City Development Review Board for a variance of the convenience store building rear yard required by the Regulations, but also requires a variance of the canopy front yard, a variance for the combination of uses of the Property and a variance for the front yard coverage. The remaining required variances, for which Appellant has not yet applied, are not properly before this Court. See 24 V.S.A. §§4471(a), 4472(a); See also In re Torres, 154 Vt. 233, 236 (1990)(" ... whatever the [Development Review Board] might have done with an application properly before it, the superior court may also do if an appeal is duly perfected ... the [Board] does not have the power to convert a hearing on [one] application into a hearing on [another application] by simply allowing an amendment to the application, since such an amendment could never serve to provide public notice"); see also Simendinger v. City of Barre, 171 Vt. 648, 652 (2001)("the environmental court exceeded its authority in purporting to consider issues relating to the conditional use applications that the Board —under the ordinance— could not, and did not, address."). As a preliminary matter, Appellant may not contest the need for variances because Appellant failed to raise this issue adequately before the Development Review Board. See In re Charlotte Farm & Mills, 172 Vt. 607, 609 (2001)(where Appellant attempted to raise an issue in a "brief footnote", the Court concluded "[t]o the extent that the statement can be construed as a claim of error, it is inadequately briefed."); see also KPC Corp. v. Book Press, Inc., 161 Vt. 145, 152 (199 3) (concluding "[t]hese assertions appear in the brief unaccompanied by facts, 11 law, or reasoning, and therefore need not detain us."). During the Development Review Board's hearing, Appellant's attorney merely stated, without citing any supporting facts, law or reasoning, that Wesco, Inc. did not require a variance. Appellant also did not submit to the Development Review Board any written memoranda in support of this claim. Finally, Appellant failed even to attempt to demonstrate that it was entitled to the variance of the convenience store building rear yard. Therefore, Appellant's claim that it does not require variances was inadequately briefed and the Development Review Board was not required to consider it. Where Appellant failed to raise its claim to the Development Review Board, the issue was waived. See Blow v. Town of Berlin Zoning Administrator, 151 Vt. 333,335 (1989)(FN1)(citing In re Cumberland Farms, Inc., 151 Vt. 59 (1989) and Montgomery v. Town of Sherburne, 147 Vt. 191, 196 (1986)). Appellant may not contest that it requires several variances. The Court should deny Appellant's request for a variance for the rear yard of the proposed convenience store building. In order to obtain said variance, Appellant must demonstrate five facts. See the Regulations, Section 27.00; see also 24 V.S.A. §4468(a). Appellant cannot demonstrate at least four of the necessary criteria. See id. at §4468(a)(1), (2), (3), and (5). The Court need not reach the fourth criterion. The first criterion requires that Appellant demonstrate What there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that unnecessary hardship is due to such conditions, and not the 12 circumstances or conditions generally created by the provisions of the zoning regulation in the neighborhood or district in which the property is located. See 24 V.S.A. §4468(a)(1). Appellant has not claimed that there is anything unique or peculiar about the physical characteristics of the Property. The subject lot is not irregular, narrow, or shallow in size or shape nor is there anything exceptional about the topography, which is flat and level. As there are no unique or peculiar circumstances or conditions about the Property, there is no unnecessary hardship that results therefrom. Appellant also has failed to demonstrate What because of such physical circumstances or conditions see 24 V.S.A. section 4468(a)(1)] there is no possibility that the property can be developed in strict conformity with the provisions of the zoning regulations and that the authorization of a variance is therefore necessary to enable the reasonable use of the property. See 24 V.S.A. §4468(a)(2). There is nothing about the physical condition of the Property that prevents Appellant from developing the Property in strict conformity with the Regulations. Variances are not given to guarantee personal convenience or the most profitable use of the property. See In re application of McDonald's Corp., 151 Vt. 346, 350 (1989); see also Sorg v. North Hero Zoning Bd. of Adjustment, 135 Vt. 423, 426 (1977). Moreover, Appellant currently has two uses of the Property - gasoline station and convenience store - so a variance is not necessary to enable the reasonable use of the Property. See id. at 427("The development is present, and the use must be a reasonable one, because enlargement of it is what is sought."); see also 24 V.S.A. §4468(a)(2). 13 There is no unnecessary hardship to Appellant that results from the physical conditions of the Property. See 24 V.S.A. §4468(a)(3). However, to the extent that Appellant attempts to claim such a hardship, Appellant has created it. "Hardship must originate from circumstances beyond the control of the property owner, and must be of the sort that does not generally affect properties in the same zoning district." In re Application of Fecteau, 149 Vt. 319, 321 (1988). All property owners in the C1 district must comply with the property use limitations, the setback and coverage requirements for said district. Rather than propose uses and structures that comply with the Regulations, Appellant proposes to remove two noncomplying structures and to construct two larger structures in substantially the same locations and for uses that do not comply with the Regulations. This proposal increases the area and volume of structure that fails to comply with the Regulations and extends the life of several nonconforming uses. There is no hardship caused by the physical conditions of the Property that originates from circumstances beyond the control of Appellant. Finally, Appellant's proposal clearly does not "represent the minimum variance that will afford relief and will represent the least deviation possible from the zoning regulation and the plan." See 24 V.S.A. 4468(a)(5). As demonstrated above, there is no unnecessary hardship resulting from the physical conditions of the Property such that Appellant is entitled to relief. However, Appellant's proposal is not the minimum variance and does not represent the least deviation possible. Appellant already has two noncomplying structures from which it has 14 operated the nonconforming uses since at least 1984. The addition of more volume of structures that also do not comply with the Regulations is not the least deviation possible. Conclusion For all the reasons set forth above, the City of South Burlington respectfully requests that the Court enter an order granting summary judgment in the City's favor and denying Appellant's application for a variance and approval of a conditional use and site plan. DATED at Burlington, Vermont this 26th day of September 2005. son2074.1it STITZEL, PAGE & FLETCHER, P.C. Attorneys for the CITY OF SOUTH BURLINGTON By: Y Y. , Amanda S. E. Lafferty 15 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT APPEALS OF WESCO, INC. ) DOCKET NO. 152-7-02 Vtec DOCKET NO. 153-7-02 Vtec DOCKET NO. 6-1-03 Vtec AFFIDAVIT I, Raymond Belair, having been duly sworn, depose and state, based upon my personal knowledge, as follows: 1. I am the duly appointed Administrative Officer for the City of South Burlington, a position that I have held since 1999. This Affidavit is made in support of the City of South Burlington's Motion for Summary Judgment, pursuant to V.R.C.P. 56. 2. On November 7, 2001, Wesco, Inc., Appellant, submitted to the Development Review Board an application for a variance in connection with the property located at 1041 Shelburne Road in South Burlington, Vermont. Specifically, Wesco, Inc. requested a variance "to allow building to be altered" and cited "setbacks" as the relevant provision of the Regulations. 3. The Development Review Board opened its hearing on this application on January 22, 2002, and continued it to April 2, 2002, and May 21, 2002. I attended each of these meetings. 4. During one of these meetings, William Simendinger, on behalf of Wesco, Inc., stated his belief that Wesco, Inc. did not need a variance in connection with the 1 pr'opos-al to ramove the existing convenion: o store building and service otation eanopy kind to construct a now, larger convenience stork buildinn and a new canopy. 9. This statoment wa7 the extent of the analysis that Mr. Simendin5er presented to the Dovelopment Re-,r-icw Board. Mr. Simendinger did not snake any othor statemonts about the need or lack of need for a variance, nor dial. he provide arty further explanrition of his claim that NN'esco, Inc. did not need a variance. He did not present -any facts, or argument in support of this claim. 5. Mr. Simendinger also did not submit any written memoranda to the Dovelopment Re view Board that in any way addressed his cl,-dm that RR esco, Inc slid not nood a variance in connection with tho above•doscribed proposal. DATED at Sou; h Burlington, in the Coi)� of Cluttendey:� an�; o of Ver. tnont this 13" Ala y of Se tember 2005. Belair STATE or VEIr,',MONT CRITTENDEN COUNTY, SS. Subscribod aria. sworn to bofore me i'.nis 13'' day o ember 2005. i Notary Public M'y Commission Expire�/oDD7 s• rlx).C.t .1 tC i ATH Q NI',Y8 A`r ) AW 4r)i r;cT lRl 71A't ;G�1 talto.+Y�; WM. yr n1oN r DEVELOPMENT REVIEW BOARD MEMO April 16, 2002 MEETING Impact Fees: The applicant should be aware that school, road, recreation, and fire protection impact fees are required for this development pursuant to the South Burlington Impact Fee Ordinance. PUD Criteria: The zoning regulations permit PUD's in order to encourage innovation of design and layout. Staff does not believe that this plan shows innovative design and /or layout. Applicant should be prepared to explain how this plan meets this standard. 9) WESCO, INS". — CONVENIENCE STORE EXPANSION — VARIANCES This application has continued from the 4/2/02 meeting at the applicant's request. This project consists of amending a plan for a 559 square foot convenience store with gas sales (4 fueling positions) and a 1344 square foot canopy. The amendment consists of increasing the size of the convenience store by 545 square feet for a total of 1104 square feet. A variance is being requested to allow the expanded building to project 21 feet into the required 30 foot rear yard setback area. This property located at 1041 Shelburne Road lies within the C1 District. It is bounded on the west by a restaurant parking lot, on the south by a cemetery, on the north by a restaurant, and on the east by Shelburne Road. It is the applicant's position that a variance is not required. Applicant should be prepared to justify this position. This property has 165 feet of frontage along Shelburne Road and has a depth of 100 feet for a lot size of 16,500 sq. ft. This property is developed with a 559 sq. ft. convenience store with gas sales (4 fueling positions) and a 1344 sq. ft. canopy over the pump islands. The convenience store and canopy are non -complying structures because they currently do not meet the front and rear setback requirements. SETBACK VARIANCE There are no unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to this particular property. The unnecessary hardship claimed by the appellant is not due to such conditions, but by the circumstances or conditions generally created by the provisions of the zoning regulations in the neighborhood or district in which the property is located. The authorization of a variance is not necessary to enable the reasonable use of the property. The property is currently being used as a convenience store with gas sales which is a reasonable use of the property. 7 DEVELOPMENT REVIEW BOARD MEMO April 21, 2002 MEETING The unnecessary hardship has been created by the applicant by their desire to increase the intensity of use on the property. The authorization of the variance would alter the essential character of the neighborhood or district in which the property is located. It would result in over 1,000 sq. ft. of additional building area located within the rear yard setback area in an area where most buildings are not located within the rear yard setback area. The authorization of the variance would not represent the minimum variance that would afford relief. Relief is not necessary to enable a reasonable use of the property. The authorization of the variance would not represent the least deviation possible from the zoning regulations since deviation from the zoning regulations is not necessary to enable a reasonable use of the property. 10) and 11) WESCO, INC. — CONVENIENCE STORE EXPANSION — SITE PLAN & CONDITIONAL USE The conditional use application was continued from the 4/2/02 meeting at the applicant's request. The site plan was continued from the 4/2/02 DRB meeting (minutes are enclosed). This project consists of amending a plan for a 559 square foot convenience store with gas sales (4 fueling positions) and a 1344 square foot canopy. The amendment consists of. 1) tearing down the existing 559 square foot building and constructing an new 1104 square foot convenience store, and 2) tearing down the existing 1344 square foot canopy and constructing a new 768 square foot canopy. At the 4/2/02 meeting the applicant indicated they would not construct a new canopy but reduce the size of the existing canopy. The site plan notes the canopy would be new. The applicant is proposing to demolish the existing building. Making this a redevelopment of the site. A recent similar application involving the demolition of a restaurant building and construction of a new convenience store with gas sales and a canopy was approved by Board, but that applicant complied with the zoning regulations with regard to setbacks and coverages. In order to be consistence staff recommends that the Board require this applicant to comply with all setback requirements. This property located at 1041 Shelburne Road lies within the C 1. District. It is bounded on the west by a restaurant parking lot, on the south by a cemetery, on the north by a restaurant, and on the east by Shelburne Road, CONDITIONAL USE CRITERIA 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 variance cannot be granted. Conditional use request must therefore be denied. DEVELOPMENT REVIEW BOARD MEMO April 21, 2002 MEETING STTE PLAN CRITERIA The site plan should be denied because: 1) front and rear yard setback requirements are not met, and 2) conditional use permit cannot be granted. The Board must make a decision at this meeting or the site plan application needs to be withdrawn. 9 IDEVTELOPMENT REVIEW BOARD MEMO April 2, 2002 MEETING e) utilization of renewable energy resources- there is no utilization of renewable energy resources to be affected. f) general public health and welfare - no adverse effect expected. SITE PLAN CRITERIA: Access/Circulation: Access and circulation are adequate and are not changed by this application. Coverage/Setbacks: Building coverage is changing from 5.7% to 10.6% (maximum allowed is 30%). Overall coverage is changing from 13.3% to 23.3% (maximum allowed is 70%). Front yard coverage remains unchanged at 4.5%. All required setbacks are met. Wetlands: The plans show encroachment into the C.O. District. The Board may approve encroachment into the C.O. District if the encroachment is necessary for the purposes of providing for or improving public facilities (Section 3.502 of the Zoning regulations). Parking: The proposed additions will not require additional parking. The plan shows 47 parking spaces and 2 accessible spaces. The parking is adequate. A bike rack is provided. Lighting_ Any proposed lighting must be downcasting and shielded. Cut sheets should be submitted to the Director of Planning and Zoning for approval. Traffic: No additional vehicle trips ends are expected with the addition of the drying beds. Dumpsters: No new dumpsters are proposed. Landscaping: No landscaping plan was submitted with this application. The applicant is aware that there is a landscape requirement based on construction costs. The landscape requirement is $15,000. The applicant has expressed an interest in using native wetland plantings in the areas that require such plants. At this time the applicant does not have a planting schedule for the Board to review, but is working with a wetland consultant to determine plant materials and locations and understands that this must be supplied prior to any issuance of any permits. 13) WESCO, INC. — CONVENIENCE STORE EXPANSION — VARIANCES This application was continued from the 12/4/01 meeting at the applicant's request. This project consists of amending a plan for a 502 square foot convenience store with gas sales (4 fueling positions) and a 1344 square foot canopy. The amendment consists of increasing the size of the convenience store by 1038 square feet for a total of 1540 square feet. Variance's are being requested to: 1) allow the expanded building to project 21 feet into the required 30 foot rear yard setback area, and 2) exceed the overall lot coverage L DEVELOPMENT REVIEW BOARD MEMO April 2, 2002 MEETING maximum of 70% by 4.5% for a total lot coverage of 74.5%. The variance for the overall coverage is no longer needed due to the change in the current site plan application. The applicant should request a variance for the new canopy projection into the front yard setback. This property located at 1041 Shelburne Road lies within the C 1 District. It is bounded on the west by a restaurant parking lot, on the south by a cemetery, on the north by a restaurant, and on the east by Shelburne Road. It is the applicant's position that variances are not required. Applicant should be prepared to justify this position. This property has 165 feet of frontage along Shelburne Road and has a depth of 100 feet for a lot size of 16,500 sq. ft. This property is developed with a 502 sq. ft. convenience store with gas sales (4 fueling positions) and a 1344 sq. ft. canopy over the pump islands. The convenience store and canopy are non -complying structures because they currently do not meet the front and rear setback requirements. SETBACK VARIANCE There are no unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to this particular property. The unnecessary hardship claimed by the appellant is not due to such conditions, but by the circumstances or conditions generally created by the provisions of the zoning regulations in the neighborhood or district in which the property is located. The authorization of a variance is not necessary to enable the reasonable use of the property. The property is currently being used as a convenience store with gas sales which is a reasonable use of the property. The unnecessary hardship has been created by the applicant by their desire to increase the intensity of use on the property and by building a new and larger convenience store. The authorization of the variance would alter the essential character of the neighborhood or district in which the property is located. It would result in over 1,000 sq. ft. of new building located within the rear yard setback area in an area where most buildings are not located within the rear yard setback area. The authorization of the variance would not represent the minimum variance that would afford relief Relief is not necessary to enable a reasonable use of the property. The 10 DEVELOPMENT REVIEW BOARD MEMO April 2, 2002 MEETING authorization of the variance would not represent the least deviation possible from the zoning regulations since deviation from the zoning regulations is not necessary to enable a reasonable use of the property. None of the criteria are met for granting the variance requested. Staff recommends that the variance be denied. 14) and 15) WESCO, INC. — CONVENIENCE STORE EXPANSION — SITE PLAN & CONDITIONAL USE The conditional use application has continued from the 12/4/01 meeting at the applicant's request. The site plan is a new submittal. This project consists of amending a plan for a 502 square foot convenience store with gas sales (4 fueling positions) and a 1344 square foot canopy. The amendment consists of: 1) tearing down the existing 502 square foot building and constructing an new 1104 square foot convenience store and 2) tearing down the existing 1344 square foot canopy and constructing a new 768 square foot canopy. The applicant is proposing to demolish the existing building. Making this a redevelopment of the site. A recent similar application involving the demolition of a restaurant building and construction of a new convenience store with gas sales and a canopy was approved by Board, but that applicant complied with the zoning regulations with regard to setbacks and coverages. In order to be consistence staff recommends that the Board require this applicant to comply with all setback and coverage requirements. This property located at 1041 Shelburne Road lies within the C 1 District. It is bounded on the west by a restaurant parking lot, on the south by a cemetery, on the north by a restaurant, and on the east by Shelburne Road. CONDITIONAL USE CRITERIA 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 variance cannot be granted. Conditional use request must therefore be denied. SITE PLAN CRITERIA The site plan should be denied because: 1) front and rear yard setback requirements are not met, and 2) conditional use permit cannot be granted. , lEV E1LOI NIEEIN ' REVMW BOARD 1VIEN10 February 19, 2002 Ni[E ETING parking among all commercial uses within the planned unit development which includes a fast -foot restaurant (McDonald's), 1125 Shelburne road. BACKGROUND INFORMATION On 12/11/90 the Planning Commission approved a planned unit development which was amended on 3/3/92 to include 150 residential units, a 61 room hotel, and 20,000 sq. ft. movie theatre (1000 seats), a 22,000 sq. ft. retail building, and a 3100 sq. ft. fast-food restaurant with drive through service (see enclosed Findings of Fact and Decision). The Planning Commission found that the commercial portion of the development required 592 parking spaces. The plan submitted and approved showed 465 spaces thereby granting a 127 space waiver for a 21.5% shortfall. The reason this waiver was granted was because the applicant had submitted a "shared parking analysis" indicating that 465 spaces was the total peak parking demand. The Planning Commission approved a revised plan on 2/2/94 with 489 spaces as the shared parking study submitted with the application indicated a total peak parking demand of 489 spaces. An amendment by the Development Review Board on 11/2/99 reduced the total peak parking demand by four (4) spaces to 485 spaces based on the changes in use proposed. A revised shared parking study was submitted to support the application (see letter dated 2/18/98). ISSUE The issue, simply stated, is that the Appellant is not living up to the requirement to share all the commercial parking spaces equally with all the commercial tenants. Staff became aware of this problem in October 1994 and has since been attempting to obtain compliance through correspondence from staff and the City Attorney, and a meeting with Mr. Milot and a representative from McDonald's in June 2000. Despite these attempts to obtain compliance, the Appellant continues to be in violation. The McDonald's property currently has seven (7) signs placed within the parking area adjacent to their restaurant reading, "McDonald's Customer Parking Only Violators Will Be Towed At Owners Expense". By not sharing this parking area with the other tenants, the Appellant is in violation of their 3/3/92 approval requiring shared parking. 11) WESCO, INC. — CONVENIENCE STORE EXPANSION — VARIANCES This application has continued from the 1/8/02 meeting at the applicant's request. This project consists of amending a plan for a 502 square foot convenience store with gas sales 12 DEVELOPMENT REVIEW BOARD MEMO February 19, 2002 MEETING (4 fueling positions) and a 1344 square foot canopy. The amendment consists of increasing the size of the convenience store by 1038 square feet for a total of 1540 square feet. Variance's are being requested to: 1) allow the expanded building to project 21 feet into the required 30 foot rear yard setback area, and 2) exceed the overall lot coverage maximum of 70% by 4.5% for a total lot coverage of 74.5%. This property located at 1041 Shelburne Road lies within the C I District. It is bounded on the west by a restaurant parking lot, on the south by a cemetery, on the north by a restaurant, and on the east by Shelburne Road. It is the applicant's position that variances are not required. Applicant should be prepared to justify this position. This property has 165 feet of frontage along Shelburne Road and has a depth of 100 feet for a lot size of 16,500 sq. ft. This property is developed with a 502 sq. ft. convenience store with gas sales (4 fueling positions) and a 1344 sq. ft. canopy over the pump islands. The current overall coverage is 68.1% (maximum allowed is 70%). The proposal is to increase the overall coverage by 4.5% more than permitted.. The convenience store and canopy are non -complying structures because they currently do not meet the front and rear setback requirements. SETBACK VARIANCE There are no unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to this particular property. The unnecessary hardship claimed by the appellant is not due to such conditions, but by the circumstances or conditions generally created by the provisions of the zoning regulations in the neighborhood or district in which the property is located. The authorization of a variance is not necessary to enable the reasonable use of the property. The property is currently being used as a convenience store with gas sales which is a reasonable use of the property. The unnecessary hardship has been created by the applicant by their desire to increase the intensity of use on the property. The authorization of the variance would alter the essential character of the neighborhood or district in which the property is located. It would result in over 1,000 sq. ft. of additional building area located within the rear yard setback area in an area where most buildings are not located within the rear yard setback area. 13 DEVELOPMENT REVIEW BOARD MEMO February 19, 2002 MEETING The authorization of the variance would not represent the minimum variance that would afford relief. Relief is not necessary to enable a reasonable use of the property. The authorization of the variance would not represent the least deviation possible from the zoning regulations since deviation from the zoning regulations is not necessary to enable a reasonable use of the property. COVERAGE VARIANCE There are no unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property that would necessitate the need to increase overall coverage beyond the current coverage of 68.1%. There is a possibility that the property can be developed in strict conformity with the provisions of the zoning regulations because the property is currently in strict conformance with the overall coverage requirement. The authorization of a variance is therefore not necessary to enable the reasonable use of the property. The unnecessary hardship is being created by the applicant by their desire to increase coverage beyond the limitations allowed. The authorization of the variance will not represent the minimum variance that will afford relief. Relief is not necessary to enable a reasonable use of the property, so granting the variance is not necessary. The authorization of the variance would not represent the least deviation possible from the zoning regulations since relief is not necessary to enable a reasonable use of the property. None of the criteria are met for granting either of the variances requested. Staff recommends that both variances be denied. 12) WESCO, INC. — CONVENIENCE STORE EXPANSION —CONDITIONAL USE This application was continued from the 1/8/02 meeting at the applicant's request. The site plan application was withdrawn. This project consists of amending a plan for a 502 square foot convenience store with gas sales (4 fueling positions) and a 1344 square foot canopy. The amendment consists of increasing the size of the convenience store by 1038 square feet for a total of 1540 square feet. This property located at 1041 Shelburne Road lies within the C 1 District. It is bounded on the west by a restaurant parking lot, on the south by a cemetery, on the north by a restaurant, and on the east by Shelburne Road. CONDITIONAL USE CRITERIA 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 variances are needed to develop the property as proposed and variances can not be granted. Conditional use request must therefore be denied. 14 DEVELOPMENT REVIEW BOARD MEMO January 22, 2002 MEETING This project located at 1700 Williston Road lies within the C1 District. It is bounded on the north by Airport Road, on the south by Williston Road, on the east by the Flight Inn and the west by the Parkway Diner. The only issues affecting the application are non -complying use and parking. Parking: The required parking is 14 spaces. The proposed location of ten (10) of the fourteen (14) required spaces is at Rags and Riches. The remaining four required spaces should be indicated on the site plan. The plans should be revised to show a bike rack. Non -Conforming Use: The existing use is a non -conforming use in the Commercial 1 District and under Section 26.003 this use can not be extended or enlarged. The plan should be revised to show the removal of the proposed gas pump. 'SION — VARIANCES This application has continued from the 12/4/01 meeting at the applicant's request. This project consists of amending a plan for a 502 square foot convenience store with gas sales (4 fueling positions) and a 1344 square foot canopy. The amendment consists of increasing the size of the convenience store by 1038 square feet for a total of 1540 square feet. Variance's are being requested to: 1) allow the expanded building to project 21 feet into the required 30 foot rear yard setback area, and 2) exceed the overall lot coverage maximum of 70% by 4.1 % for a total lot coverage of 74.1 %. This property located at 1041 Shelburne Road lies within the C 1 District. It is bounded on the west by a restaurant parking lot, on the south by a cemetery, on the north by a restaurant, and on the east by Shelburne Road. It is the applicant's position that variances are not required. Applicant should be prepared to justify this position. This property has 165 feet of frontage along Shelburne Road and has a depth of 100 feet for a lot size of 16,500 sq. ft. This property is developed with a 502 sq. ft. convenience store with gas sales (4 fueling positions) and a 1344 sq. ft. canopy over the pump islands. The current overall coverage is 68.1% (maximum allowed is 70%). The proposal is to increase the overall coverage by 4.1% more than permitted.. The convenience store and canopy are non -complying structures because they currently do not meet the front and rear setback requirements. 12 DEVELOPMENT REVIEW BOARD MEMO January 22, 2002 MEETING 12) RAGS AND RICHES —SITE PLAN APPLICATION,1700 WILLISTON ROAD This project consists of an amendment to previously approved site plan for an 11,110 square foot retail building. The amendment consists of. 1) allowing the use of 10 parking spaces for an off -premise business, and 2) approval to allow two (2) storage trailers. This project located at 1700 Williston Road lies within C 1 District. It is bounded on the west by a Chinese restaurant, on the north by Williston Road on the south by Potash Brook and on the east by an auto parts business. Access/circulation: Access is via an existing 25 foot wide curb cut on Williston Road. No change is proposed. Coverage/setbacks: Existing building coverage is 18.5% (maximum allowed is 30%). Proposed overall coverage is 56% (maximum allowed is 70%). Existing front yard coverage is 73.3% (maximum allowed is 30%). Traffic: There are no proposed changes to affect the traffic on and off this property. Parking: This site requires 61 parking spaces. The site plan shows 51 spaces, 10 of which are proposed for use by Thrifty Car Rental (as shown on plan). This brings the number of available spaces down to 41 parking spaces. This presents a shortfall of 20 spaces or 32%. The applicant should be prepared to justify this request. A bike rack should be shown on the plan. Lighting; All existing floodlight should be removed and replaced with approved downcasting and shielded fixtures. Cut sheets should be submitted to the Director of Planning and Zoning for approval. 13) TAMARACK SERVICES OF VERMONT—SITE PLAN,1700 WILLISTON ROAD This application is to amend a previously approved site plan for a 7,791 square foot auto rental and car wash facility and parking. The amendment consists of: 1) installing above ground gas pumps, 2) approval for required off site parking at 1717 Williston Road (Rags and Riches). DEVELOPMENT REVIEW BOARD MEMO January 22, 2002 MEETING SETBACK. VARIANCE There are no unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to this particular property. The unnecessary hardship claimed by the appellant is not due to such conditions, but by the circumstances or conditions generally created by the provisions of the zoning regulations in the neighborhood or district in which the property is located. The authorization of a variance is not necessary to enable the reasonable use of the property. The property is currently being used as a convenience store with gas sales which is a reasonable use of the property. The unnecessary hardship has been created by the applicant by their desire to increase the intensity of use on the property. The authorization of the variance would alter the essential character of the neighborhood or district in which the property is located. It would result in over 1,000 sq. ft. of additional building area located within the rear yard setback area in an area where most buildings are not located within the rear yard setback area. The authorization of the variance would not represent the minimum variance that would afford relief. Relief is not necessary to enable a reasonable use of the property. The authorization of the variance would not represent the least deviation possible from the zoning regulations since deviation from the zoning regulations is not necessary to enable a reasonable use of the property. COVERAGE VARIANCE There are no unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property that would necessitate the need to increase overall coverage beyond the current coverage of 68.1%. There is a possibility that the property can be developed in strict conformity with the provisions of the zoning regulations because the property is currently in strict conformance with the overall coverage requirement. The authorization of a variance is therefore not necessary to enable the reasonable use of the property. The unnecessary hardship is being created by the applicant by their desire to increase coverage beyond the limitations allowed. The authorization of the variance will not represent the minimum variance that will afford relief. Relief is not necessary to enable a reasonable use of the property, so granting the variance is not necessary. The authorization of the variance would not represent the least deviation possible from the zoning regulations since relief is not necessary to enable a reasonable use of the property. ccoch 13 DEVELOPMENT REVIEW BOARD MEMO January 22, 2002 MEETING None of the criteria are met for granting either of the variances requested. Staff recommends that both variances be denied. 15) & 16) WESCO, INC. — CONVENIENCE STORE EXPANSION — SITE PLAN & CONDITIONAL USE These applications were continued from the 12/4/01 meeting at the applicant's request. This project consists of amending a plan for a 502 square foot convenience store with gas sales (4 fueling positions) and a 1344 square foot canopy. The amendment consists of increasing the size of the convenience store by 1038 square feet for a total of 1540 square feet. This property located at 1041 Shelburne Road lies within the Cl District. It is bounded on the west by a restaurant parking lot, on the south by a cemetery, on the north by a restaurant, and on the east by Shelburne Road. CONDITIONAL USE CRITERIA 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 variances are needed to develop the property as proposed and variances can not be granted. Conditional use request must therefore be denied. SITE PLAN CRITERIA The site plan should be denied because: 1) setback requirements are not met, 2) overall coverage will be exceeded, and 3) conditional use permit cannot be granted. 14 January 8, 2002 MEETING Sewer: Sewer allocation should be requested at preliminary plat. Li fixtures No new light fixtures are proposed. Details of all existing light fixtures should be included with the preliminary plat application. Other: It appears that uses have changed in building # 1 since the last approval on 10/8/96 (minutes enclosed) without zoning permits. This is a violation that must be corrected. Staff requests that the buildings on the site plan be indicated by their street address or the street address should be clarified as either 393 or 397 Patchen Road. 10) WESCO, INC. — CONVENIENCE STORE EXPANSION — VARIANCES This application has continued from the 12/4/01 meeting at the applicant's request. This project consists of amending a plan for a 502 square foot convenience store with gas sales (4 fueling positions) and a 1344 square foot canopy. The amendment consists of increasing the size of the convenience store by 1038 square feet for a total of 1540 square feet. Variance's are being requested to: 1) allow the expanded building to project 21 feet into the required 30 foot rear yard setback area, and 2) exceed the overall lot coverage maximum of 70% by 4.5% for a total lot coverage of 74.5%. This property located at 1041 Shelburne Road lies within the C 1 District. It is bounded on the west by a restaurant parking lot, on the south by a cemetery, on the north by a restaurant, and on the east by Shelburne Road. It is the applicant's position that variances are not required. Applicant should be prepared to justify this position. This property has 165 feet of frontage along Shelburne Road and has a depth of 100 feet for a lot size of 16,500 sq. ft. This property is developed with a 502 sq. ft. convenience store with gas sales (4 fueling positions) and a 1344 sq. ft. canopy over the pump islands. The current overall coverage is 68.1% (maximum allowed is 70%). The proposal is to increase the overall coverage by 4.5% more than permitted.. The convenience store and canopy are non -complying structures because they currently do not meet the front and rear setback requirements. SETBACK VARIANCE There are no unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to this particular property. The unnecessary hardship claimed by the appellant is not due to such conditions, but by the circumstances or conditions generally created by the provisions of the zoning regulations in the neighborhood or district in which the property is located. January 8, 2002 MEETING The authorization of a variance is not necessary to enable the reasonable use of the property. The property is currently being used as a convenience store with gas sales which is a reasonable use of the property. The unnecessary hardship has been created by the applicant by their desire to increase the intensity of use on the property. The authorization of the variance would alter the essential character of the neighborhood or district in which the property is located. It would result in over 1,000 sq. ft. of additional building area located within the rear yard setback area in an area where most buildings are not located within the rear yard setback area. The authorization of the variance would not represent the minimum variance that would afford relief. Relief is not necessary to enable a reasonable use of the property. The authorization of the variance would not represent the least deviation possible from the zoning regulations since deviation from the zoning regulations is not necessary to enable a reasonable use of the property. COVERAGE VARIANCE There are no unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property that would necessitate the need to increase overall coverage beyond the current coverage of 68.1%. There is a possibility that the property can be developed in strict conformity with the provisions of the zoning regulations because the property is currently in strict conformance with the overall coverage requirement. The authorization of a variance is therefore not necessary to enable the reasonable use of the property. The unnecessary hardship is being created by the applicant by their desire to increase coverage beyond the limitations allowed. The authorization of the variance will not represent the minimum variance that will afford relief. Relief is not necessary to enable a reasonable use of the property, so granting the variance is not necessary. The authorization of the variance would not represent the least deviation possible from the zoning regulations since relief is not necessary to enable a reasonable use of the property. None of the criteria are met for granting either of the variances requested. Staff recommends that both variances be denied. WIN CONDITIONAL These applications were continued from the 12/4/01 meeting at the applicant's request. This project consists of amending a plan for a 502 square foot convenience store with gas M C January 8, 2002 MEETING sales (4 fueling positions) and a 1344 square foot canopy. The amendment consists of increasing the size of the convenience store by 103 8 square feet for a total of 1540 square feet. This property located at 1041 Shelburne Road lies within the Cl District. It is bounded on the west by a restaurant parking lot, on the south by a cemetery, on the north by a restaurant, and on the east by Shelburne Road. CONDITIONAL USE CRITERIA 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 variances are needed to develop the property as proposed and variances can not be granted. Conditional use request must therefore be denied. SITE PLAN CRITERIA The site plan should be denied because: 1) setback requirements are not met, 2) overall coverage will be exceeded, and 3) conditional use permit cannot be granted. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9I19 PATTI R. PAGE' WRITER'S E-MAIL(ALAFFERTY@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S FAX (802) 660-2552 JOSEPH S. McLEAN TIMOTHY M. EUSTACE AMANDA S. E. LAFFERTY (*ALSO ADMITTED IN N.Y.) July 11, 2005 VIA FACSIMILE AND FIRST CLASS MAIL Honorable Merideth Wright Environmental Court 2418 Airport Road, Suite 1 Barre, VT 05641-8701 Re: Wesco, Inc. (Shelburne Road) Dear Judge Wright: JILL E. SPINELLI WILL S. BAKER I am writing in connection with the status conference that the Court has scheduled for later today in connection with two applications that Wesco, Inc. has submitted to the City of South Burlington. There is nothing in connection with these applications that is properly before this Court. For this reason, the City objects to the Court's inquiry into the status of these applications. In the event the Court proceeds with this inquiry, the City offers the following. Wesco, Inc. submitted two applications in connection with 1041 Shelburne Road to the City of South Burlington. We advised the Administrative Officer to review said applications and determine if they were for the same property that is the subject of appeals 152-7-02 Vtec, 153-7-02 Vtec and 6-1-03 Vtec, and if said applications differed from that submitted to the Court in said appeals. The Administrative Officer determined that the applications were for 1041 Shelburne Road and that there were numerous and significant differences between the applications. The Administrative Officer issued a written determination based on this information. The issue of whether the applications were complete was not relevant nor material in light of the Administrative Officer's determination. The Court has no jurisdiction to consider anything in connection with applications that are currently before the City or to request that the City provide any information to this Court. It is clearly inappropriate for Appellant to request that the Court step in and prematurely hear facts and legal argument 0 Honorable Merideth Wright July 11, 2005 Page 2 in connection with an as yet unappealed determination of the City Administrative Officer in a manner that is likely to prejudice the City if and when this matter comes before the Court. If such occurs and to avoid any such issues, if and when this matter comes before the Environmental Court, the City will request that said appeal be assigned to Judge Durkin. At the status conference, the City asks that the Court take note of its lack of jurisdiction and take no further action in connection with this matter. Thank you. Sincerely, s Amanda S. E. Lafferty CC: Raymond Belair Marc B. Heath, Esq. (via facsimile and first class mail) son5701.cor I STEVEN F. STITZEL PAM R. PAGE" ROBERT E.FLETCHER JOSEPH S. McLEAN TIMOTHY M. EUSTACE AMANDA S. E. LAFFERTY ('ALSO ADMITTED IN N.Y.) STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICEITDD) FAX (802) 660-2552 or 660-9119 WRITER'S E-MAIL(ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 July 11, 2005 VIA FACSIMILE AND FIRST CLASS MAIL Honorable Merideth Wright Environmental Court 2418 Airport Road, Suite 1 Barre, VT 05641-8701 Re: Appeals of Wesco, Inc. Docket Nos. 152-7-02 Vtec, 153-7-02 Vtec, 6-1-03 Vtec Dear Judge Wright: JILL E. SPINELLI WILL S. BAKER I am writing in connection with the above -referenced matters to inform the Court that the City of South Burlington no longer agrees that there is any basis for holding these matters in abeyance. The City of South Burlington requests that the Court schedule a status conference so that the parties may discuss and determine issues of discovery and the merits hearing. Thank you. Sincerely, Amanda S. E. n d ,ij, �,� r Lafferty cc: Raymond Belair Marc B. Heath, Esq. (via facsimile and first class mail) son5702.cor DEVELOPMENT REVIEW BOARD 7 J NE 2005 Ms. Quimby moved to approve Site Plan Application #SP-05-22 of Burlington International Airport subject to the stipulations in the draft motion. Mr. Bolton seconded. Motion passed unanimously. (11f-ketch plan application #SD-05-40 of Wesco, Inc, for a planned unit development consisting of: 1) razing an existing service station with convenience store facility, 2) constructing an 1894 sq ft convenience store with a 12-seat short-order restaurant, 3) constructing a 24'x50' canopy, and 3) replacing two gas pumps with four fueling positions (service station use), 1041 Shelburne Road: Mr. Simendinger said they see this as a chance to fix up the property. Mr. Belair noted the overall coverage will be going up. Mr. Dinklage said the traffic is appalling and will go up to 101 trip ends. Mr. Simendinger said they feel it won't go up. Mr. Dinklage said the city used the ITE manual uniformly throughout the city. He felt the trip ends were totally unacceptable. Mr. Belair noted they are also asking for a 40% parking waiver. Mr. Kupferman felt the site is so tight he couldn't how they would get any more in there. Other members agreed. Other Business: Mr. Kupferman noted he will be away on 5 July. If there is to be a deliberative session, he would like to see the tapes of that meeting so he can participate in the discussion. As there was no further business, the meeting was adjourned at 10:05 p.m. Gl,..�i. Clk G,J Date M I I CITY OF SOUTH BURLII�TGTON DEPARTMENT OF PLANNEiG & ZONE,\TG 575 DORSET STREET SOUTH EURLINGTON, VERMOISTT 05403 (802) 846-4106 FAX (802) 846-4101 July 11, 2005 David Simendinger Wesco, Inc. 32 San Remo Drive South Burlington, VT 0.5407-2287 Re: Minutes Dear Mr. Simendinger: Enclosed, please find a copy of the minutes from the June 7, 2005 Development Review Board meeting. If you have any questions, feel free to contact me. cerely, c� Betsy McDonough Planning & Zoning Assistant Encl. CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 July 8, 2005 David Simendinger Wesco, Inc. 32 San Remo Drive South Burlington, VT 05403 Re: Applications # SD-05-56 and #SD-05-57 Dear Mr. Simendinger: I am writing in connection with the above -referenced applications for Wesco, Inc.'s property located at 1041 Shelburne Road in South Burlington, Vermont. Wesco, Inc. currently has three appeals before the Environmental Court relating to another application for the same property. There are numerous and significant differences between the above -referenced application and the application before the Environmental Court. Based on these very different applications, it is my determination that Applications # SD-05-56 and #SD-05-57 are not a request for approval of specific development, but instead is a request for an advisory opinion. The City of South Burlington Development Review Board has no legal obligation or authority to render advisory opinions. At such time as Wesco, Inc. withdraws and abandons the Environmental Court appeals relating to another application for this property, Wesco, Inc. may submit an application to the City of South Burlington for approval of land development on the above -referenced property. Until such time, the City will not review materials requesting that the City render an advisory opinion. I am returning to you the materials submitted in connection with Applications # SD-05-56 and #SD-05-57 along with the application fee. Pursuant to 24 V.S.A. section 4465(a), you may appeal this determination to the Development Review Board by filing a written notice of appeal (see enclosed) and one hundred ten dollars ($110.00) within fifteen (15) days of the date of this letter with the Clerk of the Development Review Board at the following address: 57.5 Dorset Street, South Burlington, VT 05403. -r a Belair Administrative Officer Enclosures cc: Amanda S. E. Lafferty Certified Mail Receipt # 7002 2030 0002 0651 3412 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 JILL E. SPINELLI PATTI R. PAGE* WRITER'S E-MAIL(ALAFFERTY@FIRMSPF.COM) WILL S. BAKER ROBERT E. FLETCHER WRITER'S FAX (802) 660-2552 JOSEPH S. McLEAN TIMOTHY M. EUSTACE AMANDA S. E. LAFFERTY (*ALSO ADMITTED IN N.Y) June 24, 2005 Marc B. Heath, Esq. Downs Rachlin Martin PLLC 199 Main St., PO Box 190 Burlington, VT 05402-0190 Re: 1041 Shelburne Road, South Burlington, Vermont Dear Marc: In connection with the above -referenced property, Wesco, Inc. has submitted to the City of South Burlington Development Review Board incomplete applications for preliminary and final plat review. Please be advised that, in light of the similar procedural track of, as well as the Environmental Court's Decision and Order on Pending Motions in, Appeal of Wesco, Inc., Docket No. 17-1-03 Vtec, we will advise the Development Review Board to refuse to consider any alteration to the status quo of the above -referenced property. So long as Wesco, Inc. pursues the appeals in Docket Nos. 152-7-02 Vtec, 153-7-02 Vtec, and 6-1-03 Vtec, it is our opinion that the Environmental Court has jurisdiction over the above - referenced property and that the Development Review Board may deny any new complete applications for land development thereon. If your client agrees to dismiss the above -referenced actions, with prejudice, jurisdiction over said property may be returned to the Development Review Board. In the alternative, Wesco, Inc. may withdraw the incomplete applications it has submitted to the City and pursue the appeals currently before the Environmental Court. I also will inform the Environmental Court that, given Wesco's actions in Docket No. 17-1-03 Vtec, the City no longer agrees to hold the above -referenced matters in abeyance. Sincerely, Amanda S. E. Lafferty CC: Ray Belair son5695.cor I CITY OF SOUTH BIJRLINGT01y4 DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMOh]T 05403 (802) 846-4106 FAX (802) 846-4101 June 3, 2005 David Simendinger Wesco, Inc. 32 San Remo Drive South Burlington, VT 05403 Re: 1041 Shelburne Road Dear Mr. Simendinger: Enclosed. is the agenda for next Tuesday's Development Review Board meeting and staff comments to the Board. Please be sure that someone is at the meeting on Tuesday, June 7, 2005 at 7:30 p.m. at the City Hall Conference Room, 575 Dorset Street. If you have any questions, please give us a call. Sincerely, 1 Betsy McDonough Administrative A--sistant Encl. Sarvak & Simendinger ATTORNEYS AT LAW 32 San Remo Drive, So. Burlington, VT 05407-2287 (802) 658-9999 1 Fax (802) 864-6234 William E. Simendinger, Esq. Kathryn A. Sarvak, Esq. ext. 233 ext. 347 June 7, 2005 South Burlington Design Review Board 575 Dorset Street South Burlington, Vermont 05403 Re: Champlain Farms 1041 Shelburne Road, South Burlington PUD application Dear Board Members: A Planned Unit Development (PUD) is a zoning approach that offers design flexibility by allowing deviations in traditional regulations. Route 4 Associates v. Town of Sherburne, 154 Vt. 461, 464 (1990). Whether a pre-existing, non -conforming use can remain in a PUD appears to be a question of first impression for the Vermont courts. See In re Taft Corners Assocs., 171 Vt. 135, 141, 758 A.2d 804, _ (2000). The purpose of this letter is to address to the Board the issues of permitted and accessory uses, (SBLDR 15.03 A.) and consistency with the comprehensive plan (SBLDR 15.18 A.(10)). A PUD typically involves mixed uses over several acres. However, in electing to recognize PUDs, South Burlington has not required a minimum lot size for elective PUD review. SBLDR 15.02 C.; cf. 15.02 B. (mandatory PUD review for lots over 10 acres); Stevens v. Essex Junction ZBA, 139 Vt. 297, 302 (1981) (local regulation contained a five acre minimum PUD requirement) and a single lot can be eligible for PUD status. The proposed project for the Champlain Farms at 1041 Shelburne Road, in South Burlington, should be approved as a permitted use in a PUD under the SBLDR because a convenience store of the proposed size is a permitted use in the C-1 district.' Currently, the City considers this project a "service station with convenience store," which is not a permitted or conditional use in C-l.Z In actuality, the project is a permitted use (c-store), with a pre-existing, nonconforming use (gas sales) that will not be increased. 1 The SBLDR define a convenience store as "A retail establishment, typically less than 3,000 square feet in area, offering for sale prepackaged or prepared food products, household items, newspapers and magazines, and may include sandwiches and other freshly prepared foods for off -site consumption." 2 The SBLDR define a service station as "A business enterprise or building, land area, or other premises, or portion thereof, engaged in the retail dispensing or sale of gasoline and other vehicular fuels, and which may include the sale of oil, tires, accessories, repair, and services for motor vehicles. See also gasoline filling station." "Gasoline filling station" is defined as "A building, place of business, land area, or other premises, or portion thereof, used or intended to be used for the retail dispensing of gasoline, oil and grease, and other vehicle fuels, and including, as an accessory use, the sale and installation of batteries, tires, lubricants, and other automobile accessories and retail items. Minor repair service may also be rendered. See service station." SBLDR 2.02 South Burlington Design Review Board Page 2 June 7, 2005 Multiple uses are allowable in C-1. SBLDR 5.08. B. This project involves a multiple use, one of which is permitted by regulation and the other of which is allowed as pre-existing. The c-store is clearly permitted by the zoning regulations. SBLDR 15.03 A.; 5.0l.C.; Table C-1.3 Further, the proposed PUD project should be approved as an accessory use. SBLDR 5.01.C. allows accessory uses to all the permitted and conditional uses in a district. Thus, an accessory use is a permitted use. The regulations authorize a convenience store as an accessory conditional use when the primary use is a gasoline filing station/service station. 14.11 D. The SBLDR also provide that a "consumer convenience center" may be an accessory use to a service station (gas filling station) SBLDR 2.02. In this case, the c-store would be the primary use and the gas sales an accessory use. Factors determining which use is primary may include the percentage of the building devoted to each use, and the volume of business and/or profit derived from each use. Eastern Service Centers, Inc. v. Cloverland Farms Dairy, Inc., 744 A.2d 63 (Md. App. 2000). Gasoline profits at this site are expected to account for less than 50 % of the net income generated by the property, whereas the c- store sales are expected to be over 50 %. Further analysis to determine percentage of the store allocated to each use would be required, but the vast majority of space will be store use. Also, the district is C-1 Auto, the purpose of which is "to recognize the existence of several automobile sales and service facilities in this area of the city and allow for their continued operation and improvement, while not detracting from the overall purpose of the C 1 District." SBLDR 5.02.A. The proposed project for this project should be approved because it is consistent with the goals and objectives for the Comprehensive Plan for C-1 District. The plan provides for the continued investment and growth along Shelburne Road corridor, (Plan, Ch 3, pg 7 and Ch 5, pg 19). Shelburne Road is a commercially developed area, and the plan encourages mixed use development to meet local and regional shopping needs. Ch 5.B.3, pg 24. In the commercial corridors, the municipal plan seeks to encourage the aesthetic improvement and redevelopment of these areas. Ch 5.D.3. pg 26. Placing the building in the corner of the lot will help promote the impression of open space as contemplated by Ch.18. The municipal plan also states repeatedly that it seeks to "improve and expand all modes of transportation, including private automobile..." and that the "movement of people, goods and services is of paramount importance." Ch.12, pg 81; see also Ch 3, pg 8. The combination of c-store and gas sales supports those goals. The expansion of c- store amenities, as well as the addition of a deli will promote pedestrian traffic consistent with Ch. 12.A., pg 81. To any extent that the project does not meet the plan's objective, the plan is ultimately only a guideline and cannot supercede the adopted rules and regulations. 3 There is also a definition for consumer convenience center: "An accessory use to a service station (gas filling station) that is a retail establishment, retail food establishment, and/or convenience store. Also known as a mini -mart" but this use is not listed at all in Table C-1. 1 1 South Burlington Design Review Board Page 3 June 7, 2005 Finally, there is a claim of equitable estoppel in the fact that the City Zoning Administrator urged the application be submitted as a PUD, and in reliance of that advice, Wesco invested heavily into making the project conform to PUD standards. His advice can hardly be doubted now. For the above reasons, Wesco respectfully requests the Board to review and approve the PUD application. Slmend Corporate Counsel c: Marc Heath, Esq. Esq. c::tbem,s„v.nd s<m.a.ix.im��r uo.L�aaa�sm..esrrv�sunau.� CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING DEVELOPMENT REVIEW BOARD Report preparation date: May 10, 2005 \drb\sub\wesco\sketch2.doc Plans received: April 29, 2005 WESCO, INC. — 1041 SHELBURNE ROAD SKETCH PLAN APPLICATION #SD-0540 Meeting date: June 7, 2005 Owner/Applicant Wesco, Inc. 32 San Remo Drive S. Burlington, VT 05403 Engineer Property Information ESPC Tax Parcel 1540-01041-C PO Box 212 C1 Zoning District; Traffic Overlay District 2A Williston, VT 05495 16,500 square feet Location Map 1 y� CITY OF SOUTH B URLINGTON 2 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\sub\wesco\sketch2 doc Wesco Inc., hereafter referred to as the applicant, is requesting sketch plan review of a planned unit development consisting of: 1) razing an existing service station with convenience store facility, 2) constructing an 1,894 sq ft convenience store with a 12 seat short-order restaurant, 3) constructing a 24' x 50' canopy, and 3) replacing two (2) gas pumps with four (4) fueling positions (service station use), 1041 Shelburne Road. The Development Review Board reviewed a sketch plan for the subject property on August 3, 2004 (minutes enclosed). Associate Planner Brian Robertson and Administrative Officer Ray Belair, referred to herein as Staff, have reviewed the plans submitted on April 29, 2005 and have the following comments. Zoning District & Dimensional Requirements: Table 1. Dimensional Requirements C1 Zoning District Required Proposed ♦ Min. Lot Size 40,000 SF 16,500 SF Max. Building Coverage 40% 11 % + Max. Overall Coverage 70% 81 % *Max. Front Yard Coverage 30% 76% • Min. Front Setback 30 ft. 5 ft. • Min. Side Setback 10 ft. -5ft. w► Min. Rear Setback 30 ft. 5 ft. Max. Buildin Height 35 ft. J 21 ft. zoning compliance * zoning non-compliance ♦ pre-existing small lot * waiver required pursuant to Section 15.02(A)(3) of the Land Development Regulations Setbacks The proposed project does not meet the front, side, or rear setback requirements for the C1 Zoning District, as outlined in Table C-2 of the Land Development Regulations. Pursuant to Section 15.02(A)(3) of the Land Development Regulations, the Development Review Board may approve a reduction in setbacks up to a minimum of 5' from any property lines. Front Yard Coverage Pursuant to Section 3.06(H) of the Land Development Regulations, no more than 30% of the required front setback shall be used for driveways and parking and the balance shall be suitably landscaped and maintained in good appearance. The existing front yard coverage on the property CITY OFSOU'1'H BURLINGTON 3 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \d rb\sub\wesco\sketch2. doc is 79%, which exceeds the current limits as set forth in the Land Development Regulations. The applicant is proposing to reduce the front yard coverage by 3%, bringing the total to 76%. Staff feels this is an issue that the applicant and the Development Review Board can discuss at the meeting on June 7, 2005. 1. The plans should be revised to make all reasonable attempts to reduce the front yard coverage to come into closer conformance with Section 3.06(H) of the Land Development Regulations, prior to submittal of the preliminary plat application. Traffic Overlay District — Zone 2A Pursuant to Section 10.02(G) of the Land Development Regulations, a property in Zone 2A of the Traffic Overlay District can generate up to 20 peak hour trip ends per 40,000 square feet of land area. The subject property contains approximately 16,500 square feet of land area. Thus, the property may generate a maximum of 8.25 P.M. peak hour trip ends (traffic budget). The applicant is proposing a 400 square -foot short-order restaurant, which according to the ITE 71h Edition Trip Generation Manual, is estimated to generate 10.46 P.M. peak -hour vehicle trip ends (LU: 933). The balance of 1,494 square feet of the proposed building will be devoted to the convenience store. According to the ITE 71h Edition Trip Generation Manual, this space is estimated to generate 90.55 P.M. peak -hour vehicle trip ends (LU: 853). ITE estimates that the existing building generates 37.73 vehicle trip ends during the PM peak hour and the proposed building is estimated to generate a total of 101 P.M. peak -hour vehicle trip ends. The estimated traffic generation of the proposed project greatly exceeds the traffic budget for the subject property. 2. The applicant should submit a traffic study analyzing the estimated traffic generation of the proposed uses and existing uses on the property, with the preliminary plat application. PLANNED UNIT DEVELOPMENT STANDARDS Pursuant to Section 15.18 of the Land Development Regulations the Development Review Board shall consider the following in its review of subdivision and Planned Unit Development(PUD) applications: Sufficient water supply and wastewater disposal capacity is available to meet the needs of the project in conformance with applicable State and City requirements, as evidenced by a City water allocation, City wastewater allocation, and/or Vermont Water and Wastewater Permit from the Department of Environmental Conservation. Pursuant to Section 15.13(B)(1), municipal water service must be extended to serve the proposed development. Prior to final plat approval, the applicant must obtain final water allocation approval from the South Burlington Water Department. 3. Occupancy shall not take place in the proposed building until the applicant has obtained final water allocation approval from the South Burlington Water Department. 4. The South Burlington Water Department should review and comment on the plans, prior to final plat approval. CITY OF SOUTH B URLINGTON 4 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\sub\wesco\sketch2.doc 5. If needed, the applicant shall obtain preliminary wastewater allocation approval from the Director of Planning and Zoning, Juli Beth Hinds, prior to final approval. Sufficient grading and erosion controls will be utilized during construction and after construction to prevent soil erosion and runoff from creating unhealthy or dangerous conditions on the subject property and adjacent properties. In making this finding, the DRB may rely on evidence that the project will be covered under the General Permit for Construction issued by the Vermont Department of Environmental Conservation. 6. The proposed project shall adhere to standards for erosion control as set forth in Section 16.03 of the South Burlington Land Development Regulations. In addition, the grading plan shall meet the standards set forth in Section 16.04 of the South Burlington Land Development Regulations. The project incorporates access, circulation and traffic management strategies sufficient to prevent unreasonable congestion of adjacent roads. In making this finding the DRB may rely on the findings of a traffic study submitted by the applicant, and the findings of any technical review by City staff or consultants. Access to the property is proposed via a 40' wide curb -cut and a 44' wide curb -cut off of Shelburne Road. Pursuant to Section 15.12(D) of the Land Development Regulations, staff recommends that both of these curb -cuts be reduced to the maximum allowed width of 36'. In addition, there is an existing 20' wide access drive connecting to the property to the west of the subject property. There are no changes proposed to this access. Circulation appears to be sufficient within this site. At this time no traffic management strategies are proposed. However, staff has suggested that the applicant submit a traffic impact study with next plan submittal. Any traffic management strategies that are recommended through that traffic study should be incorporated into the plans. 7. The plans should be revised to depict the width of both of the curb -cuts off of Shelburne Road reduced to 36" prior to submittal of the preliminary plat application. The project's design respects and will provide suitable protection to wetlands, streams, wildlife habitat as identified in the Open Space Strategy, and any unique natural features on the site. In making this finding the DRB shall utilize the provisions of Article 12 of these Regulations related to wetlands and stream buffers, and may seek comment from the Natural Resources Committee with respect to the project's impact on natural resources. There are no wetlands, streams, wildlife habitat, or unique natural features on the site. The project is designed to be visually compatible with the planned development patterns in the area, as specified in the Comprehensive Plan and the purpose of the zoning district(s) in which it is located. Staff does not feel that the proposed structures are compatible with the planned development patterns in the area, as specified by the Comprehensive Plan or the purpose of the C1 Zoning District. The proposed use (service station with convenience store) is not a permitted or conditional use in the C1 Zoning District. CITY OF SOUTH BURLINGTON 5 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\sub\wesco\sketch2 doc Open space areas on the site have been located in such a way as to maximize opportunities for creating contiguous open spaces between adjoining parcels and/or stream buffer areas. Staff feels this requirement is met. The layout of a subdivision or PUD has been reviewed by the Fire Chief or his designee to insure that adequate fire protection can be provided. 8. The South Burfington Fire Chief should review and comment on the plans, prior to final plat approval. Roads, recreation paths, stormwater facilities, sidewalks, landscaping, utility lines and lighting have been designed in a manner that is compatible with the extension of such services and infrastructure to adjacent properties. Staff feels this criterion is met through the proposed project. Roads, utilities, sidewalks, recreation paths, and lighting are designed in a manner that is consistent with City utility and roadway plans and maintenance standards. The City Engineer reviewed the sketch plans for the proposed project and provided comments in a letter dated June 3, 2004 (attached). 9. The applicant should revise the plans to comply with the City Engineer's comments, as outlined in his letter dated June 3 2004, prior to submittal of the preliminary plat application_ 10. Pursuant to Section 15.13(E) of the Land Development Regulations, any new utility lines, services, and service modifications shall be underground. Pursuant to Appendix A.9 of the Land Development Regulations, luminaries shall not be placed more than 30' above ground level and the maximum illumination at ground level shall not exceed an average of three (3) foot candles. Pursuant to Appendix A.10(b) of the Land Development Regulations, indirect glare produced by illumination at ground level shall not exceed 0.3 foot candles maximum, and an average of 0.1 foot candles average. 11. The applicant shall submit a lighting point by point plan with the submittal of the preliminary plat application. The project is consistent with the goals and objectives of the Comprehensive Plan for the affected district(s). Staff does not feel that the proposed project is consistent with the goals and objectives of the Comprehensive Plan for the C1 Zoning District, as the proposed use (service station with convenience store) is not a permitted or conditional use in the C1 Zoning District. CITY OF SOUTH BURLINGTON 6 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \d rb\s u b\we sco\s ketch2 . do c SITE PLAN REVIEW STANDARDS Section 14.06 of the South Burlington Land Development Regulations establishes the following general review standards for all site plan applications: (a) The site shall be planned to accomplish a desirable transition from structure to site, from structure to structure, and to provide for adequate planting, safe pedestrian movement, and adequate parking areas. Staff feels the proposed project accomplishes a desirable transition from structure to site and from structure to structure. Staff feels that the site could use more landscaping, especially in the front yard, as the front yard coverage is far greater than what is allowed through the Land Development Regulations. According to Table 13-1 of the Land Development Regulations, a service station with a convenience store requires ten (10) parking spaces for every 1,000 square feet of gross leasable area (GLA) and a short-order restaurant requires twelve (12) parking spaces for every 1,000 square feet of GLA. The proposed 1,484 square -foot convenience store will require fifteen (15) parking spaces and the 400 square -foot short-order restaurant will require five (5) parking spaces. Thus, the total project will require twenty (20) parking spaces; the applicant is proposing twelve (12) parking spaces. This will require an eight parking space, or 40% waiver. Section 13.01(N) of the Land Development Regulations allows the Development Review Board to waive the parking requirement by no more than 25%. Thus, the applicant will need to provide at least three (3) additional parking space, for a total of fifteen (15), as this would require a 25% waiver. 12. The plans should be revised to depict a minimum of three (3) additional parking spaces, for a total of fifteen (15), prior to submittal of the preliminary plat application. (b) Parking shall be located to the rear or sides of buildings to the greatest extent practicable. All of the proposed parking is scattered throughout the subject property (c) Without restricting the permissible limits of the applicable zoning district, the height and scale of each building shall be compatible with its site and existing or adjoining buildings. Staff feels the height and scale of the proposed building are compatible with the site and the existing buildings in the area. The height of the building will be approximately 21', which is in compliance with the Land Development Regulations. (d) Newly installed utility services and service modifications necessitated by exterior alterations or building expansions shall, to the extent feasible, be underground. Pursuant to Section 15.13(E) of the Land Development Regulations, any new utility lines, services, and service modifications shall be underground. (e) The DRB shall encourage the use of a combination of common materials and architectural characteristics, landscaping, buffers, screens and visual interruptions to create attractive transitions between buildings of different architectural styles. CITY OF SOUTH BURLINGTON 7 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\sub\wesco\sketch2 doc The applicant should submit architectural details of the proposed structures. (f) Proposed structures shall be related harmoniously to themselves, the terrain, and to existing buildings and roads in the vicinity that have a visual relationship to the proposed structures. The proposed project is located in the C1 District. Staff feels the proposed building related harmoniously to the site and the existing buildings in the area. It is staff's opinion that the subject property would relate more harmoniously to the Shelburne Road area if the front yard coverage was reduced to come into closer compliance with the Land Development Regulations. Site plan applications shall meet the following specific standards as set forth in Section 14.07 of the South Burlington Land Development Regulations: (a) The reservation of land may be required on any lot for provision of access to abutting properties whenever such access is deemed necessary to reduce curb cuts onto an arterial of collector street to provide additional access for emergency or other purposes, or to improve general access and circulation in the area. A 20' wide access currently exists to the property to the west. (b) Electric, telephone and other wire -served utility lines and service connections shall be underground. Any utility installations remaining above ground shall be located so as to have a harmonious relation to neighboring properties and to the site. Staff has already stated that pursuant to Section 15.13(E) of the Land Development Regulations, any new utility lines, services, and service modifications shall be underground. (c) All dumpsters and other facilities to handle solid waste, including compliance with any recycling or other requirements, shall be accessible, secure and properly screened with opaque fencing to ensure that trash and debris do not escape the enclosure(s). The plans show an enclosed dumpster on the northwesterly comer of the property. This is sufficient to satisfy this requirement. (d) Landscaping and Screening Requirements Landscaping budget requirements are to be determined pursuant to Section 13.06(G)(2) of the Land Development Regulations. The landscape plan and landscape budget shall be prepared by a landscape architect or professional landscape designer. 13. The applicant should submit the estimated construction costs with the submittal of the preliminary plat application, so that the exact minimum landscaping requirement can be determined. 14. The plans should be revised to depict the additional landscaping (value to be determined via Section 13.06(G)(2) of the Land Development Regulations), prior to the submittal of the preliminary CITY OF SO UTH B URLINGTON 8 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \d rb\sub\wesco\sketch2. doc plat application. In addition, a landscape budget prepared by a landscaping professional should be submitted with the preliminary plat application. Pursuant to Section 13.06(B) of the Land Development Regulations, snow storage area must be specified and located in an area that will minimize the potential for run-off. The plans depict adequate snow storage areas. Other 15. No exterior storage outside of the approved screened dumpster storage areas shall be permitted. In addition, exterior product display shall not be permitted. RECOMMENDATION Staff does not recommend that the applicant submit a preliminary plat application for the proposed project, as the proposed use is not a permitted or conditional use in the underlying zoning district. Respect�lly submitted, C Ra'yJ. Belair, Administrative Officer Copy to: David Simendinger, Applicant BILL SZYMANSKI, City Engineer City of South Burlington 575 Dorset Street South Burlington, VT 05403 846-4io6 (phone) 846-4101 (fax) COMMENTS WESCO, INC. SHELBURNE ROAD 6/3/04 1. There exists a large storm drainpipe across the front of this property. This pipe should be shown on the plan. There should be an easement for this pipe to the state. The proposed canopy may be with the easement. A permanent structure should not be built over this pipe. 2. Water & sewer services should have a 10 ft minimum separation. The plans show about 4 ft. The water service should be a straight run from the curb stop to the building. 3. All curb work shall be concrete, not asphalt. 4. Final plans shall show existing and proposed contours. DEVELOPMENT REVIEW BOARD 3 AUGUST 2004 A minor change is being recommended to get front yard coverage from 32% to 30%. Members were not too concerned with the coverage, especially in light of the Shelburne Road project "taking." Stipulation 3(b) was deleted from the approval motion. Ms. Quimby moved to approve Site Plan Application #SP-04-26 of E. David Crane subject to the stipulations in the draft motion as amended. Mr. Bolton seconded. Motion passed unanimously. 9. Site Plan Application #SP-04-27 of E. David Crane to amend a previously approved site plan for a 6641 sq. ft. building used for car wash and into service. The amendment consists of site modifications, 1341 Shelbairne Rd: Mr. Crane showed the changes. Mr. Belair said staff has no issues. Ms. Quimby moved to approve Site Plan Application #SP-04-27 of E. David Crane subject to the stipulations in the draft motion. Mr. Kupferman seconded. Motion passed unanimously. 10 Continued Sketch Plan #SP-04-39 of Wesco, Inc., for a planned unit development nsisting of. 1) razing an existing service station with convenience store facility, 2) constructing an 1894 sq. ft. convenience store, 3) constructing a 24'x50' canopy, and 3) replacing two gas pumps with four fueling positions (service station use), 1041 Shelburne Road: Mr. Simindinger suggested the "use" issue at preliminary or final plat. He noted this is a pre-existing store with 2 gas pumps. He felt the Board can "create rules" as to how to deal with pre-existing uses. Mr. Belair said there is a fatal flaw with this application. This is a PUD, and "use" does come into play. This use is not allowed in the zoning district. The application is for expansion of a non -conforming use which is not allowed.. This cannot be waived. A convenience store without gas pumps would be allowed. Members did not support the application going forward though they were sympathetic to the problem. -8- CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONRIlG 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 ` V Permit Number SD- V - APPLICATION FOR SUBDIVISION SKETCH PLAN REVIEW All information requested on this application must be completed in full. Failure to provide the requested information either on this application form or on the plans will result in your application being rejected and a delay in. the review before the Development Review Board. For amendments, please provide pertinent information only. 1) OWNER OF RECORD (Name as shown on deed, mailing address, phone and fax #) w�-sco Inc 32 San Remo Dr., So Burlington, VT 05403 864 5155 (fax) 864-6234 2) LOCATION OF LAST RECORDED DEED (Book and page #) 1 7 9 / 1 9 9 - 2 0 0 3) APPLICANT (Name, mailing address, phone and fax #) Wesco, inc., 32 San Remo Dr., So Burlington, VT 05403 864-5155 (fax) 864-6234 4) APPLICANT'S LEGAL INTEREST IN THE PROPERTY (fee simple, option, etc.) 5) CONTACT PERSON (Name, mailing address, phone and fax #) T)ax,i rl s i menrli nner saMQ as ahovA 6) PROJECT STREET ADDRESS: 1 041 Shelburne Road 7) TAX PARCEL ID # (can be obtained at Assessor's Office) 1 5 4 0 - 01 0 41 - C 8) PROJECT DESCRIPTION a) Existing Uses on Property (including description and size of each separate use) 2 a G pumps convenience ct-ore� del i , canopy b) Proposed Uses on property (include description and size of each new use and existing uses to remain) 2 pumps., conveni.ence store, deli, canopy & 12 seat sit down c) Total building square footage on property (proposed buildings and existing buildings to remain) 1894 sa f ore; 12 sg ft. canopy d) Proposed height of building (if applicable) 21 feet e) Number of residential units (if applicable, new units and existing units to remain) N / A 0 Other (list any other information pertinent to this application not specifically requested above, please note if Overlay Districts are applicable) Traffic IV 9) LOT COVERAGE a) Building: Existing 6 % Proposed 11 % b) Overall (building, parking, outside storage, etc) Existing % Proposed 81 % c) Front yard (along each street) Existing 7 q__% Proposed 7 h % 10) TYPE OF EXISTING OR PROPOSED ENCUMBRANCES ON PROPERTY (easements, covenants, leases, rights of way, etc.) 11) PROPOSED EXTENSION, RELOCATION, OR MODIFICATION OF MUNICIPAL FACILITIES (sanitary sewer, water supply, streets, storm drainage, etc.) G p p -p l a n 12) OWNERS OF RECORD OF ALL CONTIGUOUS PROPERTIES & MAILING ADDRESSES (this may be provided on a separate attached sheet) City of So- Burlington, 575 Dorset St., So Burlington, VT _ Tony Pnmarl Burlington Mall, Inc., 169 College St., Burlington Shearer t-Sao=C-a d -tea c, 1 0 3 0 S hPlhurne Rd r S n R> > r 1 i n gt o n 13) ESTIMATED PROJECT COMPLETION DATE 6 months after bldg. permit 14) PLANS AND FEE issued. Plat plans shall be submitted which shows the information listed on Exhibit A attached. Five (5) regular size copies and one reduced copy (11 " x 17") of the plans must be submitted. A sketch subdivision application fee is $125. 2 I hereby certify that all the information requested as pa of this application has been submitted and is accurate to the best of my Pow1'erlge` 1 ,`e1 Do not write below this line DATE OF SUBMISSION: Y I have reviewed this sketch plan application and find it to be: U Complete 4,,�2 ❑ Incomplete of Planning & Zoning or Designee 3 April 29, 2005 Ray Belair City of So. Burlington 575 Dorset Street So. Burlington, VT 05403 RE: 1041 Shelburne Road, So. Burlington Dear Ray: Enclosed please find: 1) $125.00 2) Application for sketch plan 3) 5 copies plus reduced size of survey 4) 5 copies plus reduced size of the plan. Thank you. Esq. Corporate Counsel Enc. C:\Documents and Settings\tkelton\My Documents\2005docs\B3Beleir4.doc 32 San Remo Drive South Burlington, VT 05403 (802)864-5155 Fax:(802)864-6234 www.champlainfarms.com y4 CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING a& ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 August 18, 2004 David Simendinger P.O. Box 2287 South Burlington, VT 05407 Re: Minutes Dear Mr. Simendinger: Enclosed, please find a copy of the minutes from the August 3, 2004 Development Review Board meeting. If you have any questions, feel free to contact me. Sincerely, Betsy McDonough Administrative Assistant Encl. ves(O,Ks DEVELOPMENT REVIEW BOARD 3 AUGUST 2004 A minor change is being recommended to get front yard coverage from 32% to 30%. Members were not too concerned with the coverage, especially in light of the Shelburne Road project "taking." Stipulation 3(b) was deleted from the approval motion. Ms. Quimby moved to approve Site Plan Application #SP-04-26 of E. David Crane subject to the stipulations in the draft motion as amended. Mr. Bolton seconded. Motion passed unanimously. 9. Site Plan Application #SP-04-27 of E. David Crane to amend a previously approved site plan for a 6641 sq. ft. building used for car wash and auto service. The amendment consists of site modifications, 1341 Shelburne Rd: Mr. Crane showed the changes. Mr. Belair said staff has no issues. Ms. Quimby moved to approve Site Plan Application #SP-04-27 of E. David Crane subject to the stipulations in the draft motion. Mr. Kupferman seconded. Motion passed unanimously. 1 ,)Continued Sketch Plan #SP-04-39 of Wesco, Inc., for a planned unit development consisting of: 1) razing an existing service station with convenience store facility, 2) constructing an 1894 sq. ft. convenience store, 3) constructing a 24'x50' canopy, and 3) replacing two gas pumps with four fueling positions (service station use), 1041 Shelburne Road: Mr. Simindinger suggested the "use" issue at preliminary or final plat. He noted this is a pre-existing store with 2 gas pumps. He felt the Board can "create rules" as to how to deal with pre-existing uses. Mr. Belair said there is a fatal flaw with this application. This is a PUD, and "use" does come into play. This use is not allowed in the zoning district. The application is for expansion of a non -conforming use which is not allowed.. This cannot be waived. A convenience store without gas pumps would be allowed. Members did not support the application going forward though they were sympathetic to the problem. CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 July 30, 2004 David Simendinger PO Box 2287 South Burlington, VT 05407 Re: 1041 Shelburne Road Dear Mr. Simendinger: Enclosed is the agenda for next Tuesday's Development Review Board meeting and staff comments to the Board. Please be sure that someone is at the meeting on Tuesday, August 3, 2004 at 7:30 p.m. at the City Hall Conference Room, 575 Dorset Street. If you have any questions, please give us a call. Sincerely, <—B� �Icaool Betsy McDonough Administrative Assistant Encl. CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING DEVELOPMENT REVIEW BOARD Report preparation date: July 28, 2004 \drb\sub\wesco\sketch.doc Plans received: May 11, 2004 wESCO INC. _ 1041 SHELBURNE ROAD SKETCH PLAN APPLICATION #SD-04-39 Agenda #10 Meeting date: August 3, 2004 Owner/Applicant Wesco, Inc. 32 San Remo Drive S. Burlin ton, VT 05403 Engineer Property Information Griffin International Tax Parcel 1540-01041-C PO Box 943 C1 Zoning District; Traffic Overlay District 2A Williston, VT 16,500 square feet Location MaAL F. • • ,j • � h 'i CITY OF SOUTH BURLING7 ON DEVELOPMENT REVIEW BOARD DEPARTMENT OF PLANNING & ZONING \sub\wesco\sketch. doc Wesco Inc., hereafter referred to as the applicant, is requesting sketch plan review of a planned unit development consisting of: 1) razing an existing service station with convenience store facility, 2) constructing an 1,894 sq ft convenience store, 3) constructing a 24' x 50' canopy, anc 3) replacing two (2) gas pumps with four (4) fueling positions (service station use), 1041 Shelburne Road. The Development Review Board was scheduled to review this sketch plan on June 15, 2004 (minutes enclosed), but continued it until August 3, 2004, because the applicant was not present. The applicant submitted a letter, dated July 29, 2004, addressing their concerns with staff's assessment of the proposed project (attached). Associate Planner Brian Robertson and Administrative Officer Ray Belair, referred to herein as Staff, have reviewed the plans submitted on May 11, 2004 and have the following comments. Zoning District & Dimensional Requirements: Table 1, Dimensional Requirements C1 Zoning District Required Proposed ♦ Min. Lot Size 40,000 SF 16,500 SF �l Max. Building Coverage 40% 11 % 4 Max. Overall Coverage 70% 79% *Max. Front Yard Coverage 30% 76% • Min. Front Setback 30 ft. 5 ft. • Min. Side Setback 10 ft. 5 ft. + Min. Rear Setback 30 ft. 5 ft. � Max. Building Height 35 ft. 21 ft. zoning compliance zoning non-compliance pre-existing small lot Setbacks The proposed project does not meet the front, side, or rear setback requirements for the C1 Zoning District, as outlined in Table C-2 of the Land Development Regulations. Pursuant to Section 15.02(A)(3) of the Land Development Regulations, the Development Review Board may approve a reduction in setbacks up to a minimum of S from any property lines. Front Yard Coverage Pursuant to Section 3.06(H) of the Land Development Regulations, no more than 30% of the required front setback shall be used for driveways and parking and the balance shall be suitably CITY OF SOUTH BURLINGTON DEVELOPMENTT REVIEW BOARD DEPARTMENT OF PLANNING & ZONING \d rb\sub\wesco\sketch. doc landscaped and maintained in good appearance. The existing front yard coverage on the property is 79%, which exceeds the current limits as set forth in the Land Development Regulations. The applicant is proposing to reduce the front vard coverage by 3%, bringing the total to 76%. Staff feels this is an issue that the applicant and the Development Review Board can discuss at the meeting on June 15, 2004. 1. The plans should be revised to make all reasonable attempts to reduce the front yard coverage to come into closer conformance with Section 3.06(H) of the Land Development Regulations, prior to submittal of the preliminary plat application. Traffic Overlay District— Zone 2A Pursuant to Section 10.02(G) of the Land Development Regulations, a property in Zone 2A of the Traffic Overlay District can generate up to 20 peak hour trip ends per 40,000 square feet of land area. The subject property contains approximately 16,500 square feet of land area. Thus, the property may generate a maximum of 8.25 P.M. peak hour trip ends. Staff needs detailed information on the size of the existing and proposed convenience store and the size and number of seats of the existing and proposed deli to accurately calculate existing and proposed traffic generation for the subject property. In addition, the applicant should submit a traffic study analyzing the estimated traffic generation of the proposed uses on the property. 2. The applicant should submit detailed information on the size of the existing and proposed convenience store and the size and number of seats of the existing and proposed deli with the preliminary plat application. 3. The applicant should submit a traffic study analyzing the estimated traffic generation of the proposed uses on the property with the preliminary plat application. PLANNED UNIT DEVELOPMENT STANDARDS Pursuant to Section 15.18 of the Land Development Regulations the Development Review Board shall consider the following in its review of subdivision and Planned Unit Development (PUD) applications: Sufficient water supply and wastewater disposal capacity is available to meet the needs of the project in conformance with applicable State and City requirements, as evidenced by a City water allocation, City wastewater allocation, and/or Vermont Water and Wastewater Permit from the Department of Environmental Conservation. Pursuant to Section 15.13(B)(1), municipal water service must be extended to serve the proposed development. Prior to final plat approval, the applicant must obtain final water allocation approval from the South Burlington Water Department. 4. Occupancy shall not take place in the proposed building until the applicant has obtained final water allocation approval from the South Burlington Water Department. 5. The South Burlington Water Department shall review and comment on the plans. CITY OF SOUTH BURLINGTON 4 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \d rb\sub\wesco\sketch. doc 6. If needed, the applicant shall obtain preliminary wastewater allocation approval from the Director of Planning and Zoning, Juli Beth Hoover, prior to final approval. Sufficient grading and erosion controls will be utilized during construction and after construction to prevent soil erosion and runoff from creating unhealthy or dangerous conditions on the subject property and adjacent properties. In making this finding, the DRB may rely on evidence that the project will be covered under the General Permit for Construction issued by the Vermont Department of Environmental Conservation. 7. The proposed project shall adhere to standards for erosion control as set forth in Section 16.03 of the South Burlington Land Development Regulations. In addition, the grading plan shall meet the standards set forth in Section 16.04 of the South Burlington Land Development Regulations. The project incorporates access, circulation and traffic management strategies sufficient to prevent unreasonable congestion of adjacent roads. In making this finding the DRB may rely on the findings of a traffic study submitted by the applicant, and the findings of any technical review by City staff or consultants. Access to the property is proposed via a 34' wide curb -cut and a 46' wide curb -cut off of Shelburne Road. Pursuant to Section 15.12(D) of the Land Development Regulations, staff recommends that the larger curb -cut be reduced to the maximum allowed width of 36'. In addition, there is an existing 20' wide access drive connecting to the property to the west of the subject property. There are no changes proposed to this access. Circulation appears to be sufficient within this site. At this time no traffic management strategies are proposed. However, staff has suggested that the applicant submit a traffic impact study with next plan submittal. Any traffic management strategies that are recommended through that traffic study should be incorporated into the plans. 8. The plans should be revised to depict the larger curb -cut off of Shelburne Road reduced to 36' wide, prior to submittal of the preliminary plat application. The project's design respects and will provide suitable protection to wetlands, streams, wildlife habitat as identified in the Open Space Strategy, and any unique natural features on the site. In making this finding the DRB shall utilize the provisions of Article 12 of these Regulations related to wetlands and stream buffers, and may seek comment from the Natural Resources Committee with respect to the project's impact on natural resources. There are no wetlands, streams, wildlife habitat, or unique natural features on the site. The project is designed to be visually compatible with the planned development patterns in the area, as specified in the Comprehensive Plan and the purpose of the zoning district(s) in which it is located. Staff does not feel that the proposed structures are compatible with the planned development patterns in the area, as specified by the Comprehensive Plan or the purpose of the C1 Zoning District. The proposed use (service station with convenience store) is not a permitted or conditional use in the C1 Zoning District. CITY OF SOUTH BURLINGTON 5 DEPARTMENT OF DF,VELOPMENT RF.VIL'W BOARD PLANNING & ZONING \drb\sub\wesco\sketch.doc Open space areas on the site have been located in such a way as to maximize opportunities for creating contiguous open spaces between adjoining parcels and/or stream buffer areas. Staff feels this requirement is met. The layout of a subdivision or PUD has been reviewed by the Fire Chief or his designee to insure that adequate fire protection can be provided. 9. The South Burlington Fire Chief should review and comment on the plans. Roads, recreation paths, stormwater facilities, sidewalks, landscaping, utility lines and lighting have been designed in a manner that is compatible with the extension of such services and infrastructure to adjacent properties. Staff feels this criterion is met through the proposed project. Roads, utilities, sidewalks, recreation paths, and lighting are designed in a manner that is consistent with City utility and roadway plans and maintenance standards. The City Engineer reviewed the sketch plans for the proposed project and provided comments in a letter dated June 3, 2004 (attached). 10. The applicant should revise the plans to comply with the City Engineer's comments, as outlined in his letter dated June 3 2004, prior to submittal of the preliminary plat application. 11. Pursuant to Section 15.13(E) of the Land Development Regulations, any new utility lines, services, and service modifications shall be underground. Pursuant to Appendix A.9 of the Land Development Regulations, luminaries shall not be placed more than 30' above ground level and the maximum illumination at ground level shall not exceed an average of three (3) foot candles. Pursuant to Appendix A.10(b) of the Land Development Regulations, indirect glare produced by illumination at ground level shall not exceed 0.3 foot candles maximum, and an average of 0.1 foot candles average. 12. The applicant shall submit a lighting point by point plan with the submittal of the preliminary plat application. The project is consistent with the goals and objectives of the Comprehensive Plan for the affected district(s). Staff does not feel that the proposed project is consistent with the goals and objectives of the Comprehensive Plan for the C1 Zoning District, as the proposed use (service station with convenience store) is not a permitted or conditional use in the C1 Zoning District. CITY OF SOUTH BURLINGTON 6 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \d rb\sub\wesco\s ketch. doc SITE PLAN REVIEW STANDARDS Section 14.06 of the South Burlington Land Development Regulations establishes the following general review standards for all site plan applications: (a) The site shall be planned to accomplish a desirable transition from structure to site, from structure to structure, and to provide for adequate planting, safe pedestrian movement, and adequate parking areas. Staff feels the proposed project accomplishes a desirable transition from structure to site and from structure to structure. Staff feels that the site could use more landscaping, especially in the front yard, as the front yard coverage is far greater than what is allowed through the Land Development Regulations. According to Table 13-1 of the Land Development Regulations, a service station with a convenience store requires ten (10) parking spaces for every 1,000 square feet of gross leasable area (GLA). The proposed 1,994 square foot building will require nineteen (19) parking spaces. Only twelve (12) parking spaces are provided. This represents a nine (9) space, or 37%, shortfall. Section 13.01(N) of the Land Development Regulations allows the Development Review Board to waive this parking requirement by no more than 25%. The applicant should submit detailed information on the size of the convenience store, the size of the deli, and the size of the standard sit-down restaurant, so that the parking requirements for the property can be accurately calculated. 13. The applicant should submit detailed information on the size of the convenience store, the size of the deli, and the size of the standard sit-down restaurant with the preliminary plat application. (b) Parking shall be located to the rear or sides of buildings to the greatest extent practicable. All of the proposed parking is scattered throughout the subject property. (c) Without restricting the permissible limits of the applicable zoning district the height and scale of each building shall be compatible with its site and existing or adjoining buildings. Staff feels the height and scale of the proposed building are compatible with the site and the existing buildings in the area. The height of the building will be approximately 21', which is in compliance with the Land Development Regulations. (d) Newly installed utility services and service modifications necessitated by exterior alterations or building expansions shall, to the extent feasible, be underground. Pursuant to Section 15.13(E) of the Land Development Regulations, any new utility lines, services, and service modifications shall be underground. (e) The DRB shall encourage the use of a combination of common materials and architectural characteristics, landscaping, buffers, screens and visual interruptions to create attractive transitions between buildings of different architectural styles. The applicant should submit architectural details of the proposed structures CITY OF SOUTH BURLING7 ON 7 DEFARIMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\sub\wesco\sketch. doc (fl Proposed structures shall be related harmoniously to themselves, the terrain, and to existing buildings and roads in the vicinity that have a visual relationship to the proposed structures. The proposed project is located in the C1 District. Staff feels the proposed building related harmoniously to the site and the existing buildings in the area. It is staff's opinion that the subject property would relate more harmoniously to the Shelburne Road area if the front yard coverage was reduced to come into closer compliance with the Land Development Regulations. Site plan applications shall meet the following specific standards as set forth in Section 14.07 of the South Burlington Land Development Regulations: (a) The reservation of land may be required on any lot for provision of access to abutting properties whenever such access is deemed necessary to reduce curb cuts onto an arterial of collector street to provide additional access for emergency or other purposes, or to improve general access and circulation in the area. A 20' wide access currently exists to the property to the west. (b) Electric, telephone and other wire -served utility lines and service connections shall be underground. Any utility installations remaining above ground shall be located so as to have a harmonious relation to neighboring properties and to the site. Staff has already stated that pursuant to Section 15.13(E) of the Land Development Regulations, any new utility lines, services, and service modifications shall be underground. (c) All dumpsters and other facilities to handle solid waste, including compliance with any recycling or other requirements, shall be accessible, secure and properly screened with opaque fencing to ensure that trash and debris do not escape the enclosure(s). The plans show an enclosed dumpster on the northwesterly comer of the property. This is sufficient to satisfy this requirement. (d) Landscaping and Screening Requirements Landscaping budget requirements are to be determined pursuant to Section 13.06(G)(2) of the Land Development Regulations. The landscape plan and landscape budget shall be prepared by a landscape architect or professional landscape designer. 14. The applicant should submit estimated construction costs with the submittal of the preliminary plat application, so that the exact minimum landscaping requirement can be determined. 15. The plans should be revised to depict the additional landscaping (value to be determined via Section 13.06(G) (2) of the Land Development Regulations), prior to the submittal of the preliminary plat application. CITY OF SOUTH BURLINGTON 8 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\sub\wesco\sketch doc Pursuant to Section 13.06(B) of the Land Development Regulations, snow storage area must be specified and located in an area that will minimize the potential for run-off. The plans do not depict adequate snow storage areas. 16. The plans should be revised to clearly depict adequate snow storage areas, prior to submittal of the preliminary plat application. Other 17. The Superintendent of the South Burlington Water Department, Jay Nadeau, reviewed the proposed plans and did not have any concems at this time. 18. No exterior storage outside of the approved screened dumpster storage areas shall be permitted. In addition, exterior product display shall not be permitted. RECOMMENDATION Staff does not recommend that the applicant submit a preliminary plat application for the proposed project, as the proposed use is not a permitted or conditional use in the underlying zoning district. Respectfully submitted, Brian Robertson, Associate Planner Copy to: David Simendinger, Applicant oR000sD cc wasn� EDGnm .n4Rolm vaowaE twraee lwas snGnw bl [9S�vW Ln4D 9m %mac` � 1!• lYll YWY aUEffi _J � paw Sys __ ________________. 1 cxlooi lerx usrar� __ rw�lr FNot oYc wl� '�1 w a •.� tocasa — 5' m ulGION i l i � 1 � ,� i mart xe•a� --�nasoem uixma4d 'moos®x so• cYm.r/ ® 6[4DnC tOGTYI �, mnM 'ryA'y/ .. NDSE om nnly wunox i ,eaon� ea !.a © msMn loam D61N4 !ic cac eawR EWiK SOJIN G,OI 1A91 J VD C3'�Cj ms,¢ Fa! YDY.YiEO 9EOCle( ;;,j E3Sii GRWY nemso uwT. ?s �! o msvw Fa! YaYrt! swop! GeD1Ei • �yi Ynel !M s'xR YMNIXE Q sienl OlIIN 11IfIleE _ swN SHMURNE ROAD, U.S. ROUTE 7 ® Yu�lsm !tu 4a w wu! oa eum vN.Y: N eE.me swrar L RIFL maee R,! ___—___ lWaDMIY LLeC ,Tee snuissT D�vlrin anon Eec ro NRu,e,M— ,slw ssioe suN ..APffiC SCAB (�nml —oxu.— prsec oslwRnc purr ua —s— lnsnnc anise s,wa ues oROPDam nne ass— Flava® sirs sems¢ uee �nE� PR4RCaID UeOOKi14UlID 9Sn40 LLrE �n'�� PRD`OaTD 'iYiDl l'NC 9NFfL OCY�eILM L�OIOiA ftw a.oxm KiSHle1Y CDYKw. KA.eLWT OSe31 DRAFT FOR dN>Eh PENEW NOTFOR CONSTWIGTON SITE PLAN Sarvak & Simendinger AT1 ORNEYS AT LAW 32 San Remo Drive, So. Burlington, VT 05407-2287 (802) 658-9999 1 Fax (802) 864-6234 William E. Simendinger, Esq. Kathryn A. Sarvak, Esq. ext. 233 ext. 347 July 29, 2004 Development Review Board City of South Burlington 575 Dorset Street So. Burlington, VT 05403 RE: 1041 Shelburne Road Dear Board: The matter before the Board is sketch plan for a Planned Unit Development to redevelop an existing two -pump convenience store into a larger convenience store that retains the existing two pumps. At a meeting on November 19, 2003 with Ray Belair and Associate Planner Brian Robertson, the property owner was advised to apply as a PUD. The subsequent eight months and many thousands of dollars were spent to comply with this request. According to the principals of equitable estoppel, the City cannot now raise the issue that the use is not allowed. A convenience store is an allowed use. Gasoline sales are not excluded from the definition of convenience store and hence are allowed. Whether the board approves of the sketch plan or not, the two pumps will remain. The purpose of a PUD is to encourage new communities, innovation in design and layout and more efficient use of land. 24 V.S.A. §4407(12). The Board has the right to grant waivers from any standard in the Regulation. 15.04(B). Further, the Board can prescribe, from time to time, rules and regulations that are not inconsistent with the zoning regulations. 24 V.S.A. §4407(12). Permitted uses may include ...any nonresidential use ... 24V.S.A. §4407(12). In the alternative, if the Board finds the proposed use is non -conforming it can be allowed under 3.11(c) since the pump island floor space will not change and/or as a waiver under 15.04(B). Wherefore, the Board should approve of sketch plan review. Thank you. S* cerely, William E. Simending Esq. C:\Documents and Settings\tkelton\My Documents\2004docs\B3DRB.doc lu�cofib DEVELOPMENT REVIEW BOARD 15 JUNE 2004 Mr. Belair reminded members that this approval is for a generic auto repair business, not just this one. The Board would have no control if the business were to change to different auto repair business. Mr. Boucher said he was OK with fewer arborvitae. Mr. Kupferman had not problem approving it without a fence. Mr. Bolton had no problem with this owner, but didn't know how to prevent a problem with a future owner that can't be anticipated. Members agreed to delete stipulations 2a and 2c and to add a condition requiring a 3-year landscaping bond in an amount to be determined prior to permit issuance. Mr. Kupferman moved to approve Site Plan Application #SP-04-19 of Mike Hopwood subject to the stipulations in the draft motion as amended above. Mr. Farley seconded. Motion passed unanimously. 9. Site Plan Application #SP-04-20 of Pat and Terese Ayer to amend a previously approved plan for a 9,868 sq. ft. mixed use building consisting of auto repair and service use and automobile rental. The amendment consists of: 1) eliminating auto rental use, 2) expanding auto service and repair use within the building to 9,668 sq. ft., 3) 200 sq. ft. of general office use, and 4) adding 11,200 cubic yards of fill to expand parking area, 4 Berard Drive Mr. Ayer said they need a CO. Mr. Belair said this hearing is to correct a zoning violations so they can get a CO. It is basically an as -built filling plan with some use changes in the building. Ms. Quimby moved to approve site plan #SP-04-20 of Pat & Terese Ayer subject to the stipulations in the draft motion. Mr. Bolton seconded. Motion passed unanimously. d10. Sketch plan application #SD-04-39 of Wesco, Inc., for a planned unit development sisting of: 1) razing an existing service station with convenience store facility, 2) constructing an 1,894 sq. ft. convenience store, 3) constructing a 24'x50' canopy, and 3) replacing two gas pumps with four fueling positions (service station use), 1041 Shelburne Road: Mr. Belair said that earlier today, the applicant requested a continuance. Later, they said they would come in. Apparently they decided not to come. -7- DEVELOPMENT REVIEW BOARD 15 JUNE 2004 Mr. Belair noted this is no longer a permitted or conditional use in that district, and this cannot be waived. He suggested continuing the application until August. Ms. Quimby moved to continue Sketch Plan application #SD-04-39 of Wesco, Inc., until 3 August 2004. Mr. Kupferman seconded. Motion passed unanimously. As there was no further business to come before the Board, the meeting was adjourned at 11:30 p.m. Clerk Date & 7-[- q -8- CITY OF SOUTH BURLI1NGTON DEPARTMENT OF IPLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 July 21, 2004 William Simendinger Wesco, Inc. 32 San Remo Drive PO Box 2287 South Burlington, VT 05407 Re: Minutes — 1041 Shelburne Road Dear Mr. Simendinger: Enclosed, please find a copy of the minutes from the June 15, 2004 Development Review Board meeting. If you have any questions, feel free to contact me. Sincerely, Betsy McDonough Administrative Assistant Encl. CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING DEVELOPMENT REVIEW BOARD Report preparation date: June 10, 2004 \drb\sub\wesco\sketch.doc Plans received: May 11, 2004 WESCO, INC. — 1041 SHELBURNE ROAD SKETCH PLAN APPLICATION #SD-04-39 Agenda #10 Meeting date: June 15, 2004 Owner/Applicant Wesco, Inc. 32 San Remo Drive S. Burlington, VT 05403 Engineer Property Information Griffin International Tax Parcel 1540-01041-C PO Box 943 C1 Zoning District; Traffic Overlay District 2A Williston, VT 16,500 square feet Location Map S 14! I A is w� l'r � CITY OF SOUTH BURLINGTON 2 DEPARIMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\sub\wesco\sketch doc go i -cT DEsrR/pTION Wesco Inc., hereafter referred to as the applicant, is requesting sketch plan review of a planned unit development consisting of: 1) razing an existing service station with convenience store facility, 2) constructing an 1,894 sq ft convenience store, 3) constructing a 24' x 50' canopy, and 3) replacing two (2) gas pumps with four (4) fueling positions (service station use), 1041 Shelburne Road. Associate Planner Brian Robertson and Administrative Officer Ray Belair, referred to herein as Staff, have reviewed the plans submitted on May 11, 2004 and have the following comments. Zoning District & Dimensional Requirements: Table 1. Dimensional Requirements C1 Zoning District Required Proposed ♦ Min. Lot Size 40,000 S_F 16,500 SF �l Max. BuildingCoverage 40% 11 % _+ Max. Overall Coverage _ 70% 79% +Max. Front Yard Coverage 30% 76% • Min. Front Setback 30 ft. 5 ft. • Min. Side Setback 10 ft. 5 ft. + Min. Rear Setback 30 ft. 5 ft. � Max. Building Height 35 ft. 21 ft. q zoning compliance �• zoning non-compliance ♦ pre-existing small lot Setbacks The proposed project does not meet the front, side, or rear setback requirements for the C1 Zoning District, as outlined in Table C-2 of the Land Development Regulations. Pursuant to Section 15.02(A)(3) of the Land Development Regulations, the Development Review Board may approve a reduction in setbacks up to a minimum of 5' from any property lines. Front Yard Coverage Pursuant to Section 3.06(H) of the Land Development Regulations, no more than 30% of the required front setback shall be used for driveways and parking and the balance shall be suitably landscaped and maintained in good appearance. The existing front yard coverage on the property is 79%, which exceeds the current limits as set forth in the Land Development Regulations. The applicant is proposing to reduce the front yard coverage by 3%, bringing the total to 76%. Staff CITY OF SOU]HBURLINGTON 3 DEPAR7i11F.NT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\sub\wesco\sketch.doc I eels this is Gn i---- that the applicant and the Development Review Board can discuss at the meeting on June 15, 2004. 1. The plans should be revised to make all reasonable attempts to reduce the front yard coverage to come into closer conformance with Section 3.06(H) of the Land Development Regulations, prior to submittal of the preliminary plat application. Traffic Overlay District — Zone 2A Pursuant to Section 10.02(G) of the Land Development Regulations, a property in Zone 2A of the Traffic Overlay District can generate up to 20 peak hour trip ends per 40,000 square feet of land area. The subject property contains approximately 16,500 square feet of land area. Thus, the property may generate a maximum of 8.25 P.M. peak hour trip ends. Staff needs detailed information on the size of the existing and proposed convenience store and the size and number of seats of the existing and proposed deli to accurately calculate existing and proposed traffic generation for the subject property. In addition, the applicant should submit a traffic study analyzing the estimated traffic generation of the proposed uses on the property_ 2. The applicant should submit detailed information on the size of the existing and proposed convenience store and the size and number of seats of the existing and proposed deli with the preliminary plat application. 3. The applicant should submit a traffic study analyzing the estimated traffic generation of the proposed uses on the property with the preliminary plat application. PLANNED UNIT DEVELOPMENT STANDARDS Pursuant to Section 15.18 of the Land Development Regulations, the Development Review Board shall consider the following in its review of subdivision and Planned Unit Development (PUD) appplication& Sufficient water supply and wastewater disposal capacity is available to meet the needs of the project in conformance with applicable State and City requirements, as evidenced by a City water allocation, City wastewater allocation, and/or Vermont Water and Wastewater Permit from the Department of Environmental Conservation. Pursuant to Section 15.13(B)(1), municipal water service must be extended to serve the proposed development. Prior to final plat approval, the applicant must obtain final water allocation approval from the South Burlington Water Department. 4. Occupancy shall not take place in the proposed building until the applicant has obtained final water allocation approval from the South Buffington Water Department. 5. The South Burtington Water Department shall review and comment on the plans. 6. If needed, the applicant shall obtain preliminary wastewater allocation approval from the Director CITY OF SOUTH BURLINGTON 4 DF,PARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\sub\wesco\sketch.doc vF Ol�nn ,g and �oninn .luli Beth Hoover, prior to final approval. � ,G,,,, „y - ,, Sufficient grading and erosion controls will be utilized during construction and after construction to prevent soil erosion and runoff from creating unhealthy or dangerous conditions on the subject property and adjacent properties. In making this finding, the DRB may rely on evidence that the project will be covered under the General Permit for Construction issued by the Vermont Department of Environmental Conservation. 7. The proposed project shall adhere to standards for erosion control as set forth in Section 16.03 of the South Burlington Land Development Regulations. In addition, the grading plan shall meet the standards set forth in Section 16.04 of the South Burlington Land Development Regulations. The project incorporates access, circulation and traffic management strategies sufficient to prevent unreasonable congestion of adjacent roads. In making this finding the DRB may rely on the findings of a traffic study submitted by the applicant, and the findings of any technical review by City staff or consultants. Access to the property is proposed via a 34' wide curb -cut and a 46' wide curb -cut off of Shelburne Road. Pursuant to Section 15.12(D) of the Land Development Regulations, staff recommends that the larger curb -cut be reduced to the maximum allowed width of 36'. In addition, there is an existing 20' wide access drive connecting to the property to the west of the subject property. There are no changes proposed to this access. Circulation appears to be sufficient within this site. At this time no traffic management strategies are proposed. However, staff has suggested that the applicant submit a traffic impact study with next plan submittal. Any traffic management strategies that are recommended through that traffic study should be incorporated into the plans. 8. The plans should be revised to depict the larger curb -cut off of Shelburne Road reduced to 36' wide, prior to submittal of the preliminary plat application. The project's design respects and will provide suitable protection to wetlands, streams, wildlife habitat as identified in the Open Space Strategy, and any unique natural features on the site. In making this finding the DRB shall utilize the provisions of Article 12 of these Regulations related to wetlands and stream buffers, and may seek comment from the Natural Resources Committee with respect to the project's impact on natural resources. There are no wetlands, streams, wildlife habitat, or unique natural features on the site. The project is designed to be visually compatible with the planned development patterns in the area, as specified in the Comprehensive Plan and the purpose of the zoning district(s) in which it is located. Staff does not feel that the proposed structures are compatible with the planned development patterns in the area, as specified by the Comprehensive Plan or the purpose of the C1 Zoning District. The proposed use (service station with convenience store) is not a permitted or conditional use in the C1 Zoning District. I ' CITY OF SOUTH BURLINUTON 5 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\sub\wesco\sketch.doc Open space areas on the site have been located in such a way as to maximize opportunities for creating contiguous open spaces between a -oi ing parcels andlor stream buffer areas. Staff feels this requirement is met. The layout of a subdivision or PUD has been reviewed by the Fire Chief or his designee to insure that adequate Fire protection can be provided. 9. The South Burlington Fire Chief should review and comment on the plans. Roads, recreation paths, stormwater facilities, sidewalks, landscaping, utility lines and lighting have been designed in a manner that is compatible with the extension of such services and infrastructure to adjacent properties. Staff feels this criterion is met through the proposed project. Roads, utilities, sidewalks, recreation paths, and lighting are designed in a manner that is consistent with City utility and roadway plans and maintenance standards. The City Engineer reviewed the sketch plans for the proposed project and provided comments in a letter dated June 3, 2004 (attached). 10. The applicant should revise the plans to comply with the City Engineer's comments, as outlined in his letter dated June 3 2004, prior to submittal of the preliminary plat application. 11. Pursuant to Section 15.13(E) of the Land Development Regulations, any new utility lines, services, and service modifications shall be underground. Pursuant to Appendix A.9 of the Land Development Regulations, luminaries shall not be placed more than 30' above ground level and the maximum illumination at ground level shall not exceed an average of three (3) foot candles. Pursuant to Appendix A.10(b) of the Land Development Regulations, indirect glare produced by illumination at ground level shall not exceed 0.3 foot candles maximum, and an average of 0.1 foot candles average. 12. The applicant shall submit a lighting point by point plan with the submittal of the preliminary plat application. The project is consistent with the goals and objectives of the Comprehensive Plan for the affected district(s). Staff does not feel that the proposed project is consistent with the goals and objectives of the Comprehensive Plan for the C1 Zoning District, as the proposed use (service station with convenience store) is not a permitted or conditional use in the C1 Zoning District. CITY OF SOUTHBURLINGTON 6 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \d rb\sub\wesco\sketch.doc 0ITE v1 4N REVIEW STANDARDS ..Is. a.. . �.. . -- - Section 14.06 of the South Burlington Land Development Regulations establishes the following general review standards for all site plan applications: (a) The site shall be planned to accomplish a desirable transition from structure to site, from structure to structure, and to provide for adequate planting, safe pedestrian movement, and adequate parking areas. Staff feels the proposed project accomplishes a desirable transition from structure to site and from structure to structure. Staff feels that the site could use more landscaping, especially in the front yard, as the front yard coverage is far greater than what is allowed through the Land Development Regulations. According to Table 13-1 of the Land Development Regulations, a service station with a convenience store requires ten (10) parking spaces for every 1,000 square feet of gross leasable area (GLA). The proposed 1,994 square foot building will require nineteen (19) parking spaces. Only twelve (12) parking spaces are provided. This represents a nine (9) space, or 37%, shortfall. Section 13.01(N) of the Land Development Regulations allows the Development Review Board to waive this parking requirement by no more than 25%. The applicant should submit detailed information on the size of the convenience store, the size of the deli, and the size of the standard sit-down restaurant, so that the parking requirements for the property can be accurately calculated. 13. The applicant should submit detailed information on the size of the convenience store, the size of the deli, and the size of the standard sit-down restaurant with the preliminary plat application. (b) Parking shall be located to the rear or sides of buildings to the greatest extent practicable. All of the proposed parking is scattered throughout the subject property. (c) Without restricting the permissible limits of the applicable zoning district, the height and scale of each building shall be compatible with its site and existing or adjoining buildings. Staff feels the height and scale of the proposed building are compatible with the site and the existing buildings in the area. The height of the building will be approximately 21', which is in compliance with the Land Development Regulations. (d) Newly installed utility services and service modifications necessitated by exterior alterations or building expansions shall, to the extent feasible, be underground. Pursuant to Section 15.13(E) of the Land Development Regulations, any new utility lines, services, and service modifications shall be underground. (e) The DRB shall encourage the use of a combination of common materials and architectural characteristics, landscaping, buffers, screens and visual interruptions to create attractive transitions between buildings of different architectural styles. The applicant should submit architectural details of the proposed structures. CITY OF SOULH BURLINGTON 7 1)APARIMENT OF DEVELOPMF.N7' RF,VIEW BOARD PLANNING & ZONING \drb\sub\wesco\sketch doc (f;> Proposed structures shall be related harmoniously to themselves, the terrain, and to existing buildings and roads in the vicinity that have a visual relationship to the proposed structures. The proposed project is located in the C1 District. Staff feels the proposed building related harmoniously to the site and the existing buildings in the area. It is staff's opinion that the subject property would relate more harmoniously to the Shelburne Road area if the front yard coverage was reduced to come into closer compliance with the Land Development Regulations. Site plan applications shall meet the following specific standards as set forth in Section 14.07 of the South Burlington Land Development Regulations: (a) The reservation of land may be required on any lot for provision of access to abutting properties whenever such access is deemed necessary to reduce curb cuts onto an arterial of collector street to provide additional access for emergency or other purposes, or to improve general access and circulation in the area. A 20' wide access currently exists to the property to the west. (b) Electric, telephone and other wire -served utility lines and service connections shall be underground. Any utility installations remaining above ground shall be located so as to have a harmonious relation to neighboring properties and to the site. Staff has already stated that pursuant to Section 15.13(E) of the Land Development Regulations, any new utility lines, services, and service modifications shall be underground. (c) All dumpsters and other facilities to handle solid waste, including compliance with any recycling or other requirements, shall be accessible, secure and properly screened with opaque fencing to ensure that trash and debris do not escape the enclosure(s). The plans show an enclosed dumpster on the northwesterly comer of the property. This is sufficient to satisfy this requirement. (d) Landscaping and Screening Requirements Landscaping budget requirements are to be determined pursuant to Section 13.06(G)(2) of the Land Development Regulations. The landscape plan and landscape budget shall be prepared by a landscape architect or professional landscape designer. 14. The applicant should submit estimated construction costs with the submittal of the preliminary plat application, so that the exact minimum landscaping requirement can be determined. 15. The plans should be revised to depict the additional landscaping (value to be determined via Section 13.06(G)(2) of the Land Development Regulations), prior to the submittal of the preliminary plat application. CITY OF SOUTH BURLINGTON 8 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\sub\wesco\sketch.doc Pursuant to Section 13.06(B) of the Land Development Regulations, snow storage area must be specified and located III an area that will rininirnize the potential for ruri-off. Tile plans do not depict adequate snow storage areas. 16. The plans should be revised to clearly depict adequate snow storage areas, prior to submittal of the preliminary plat application. Other 17. The Superintendent of the South Burlington Water Department, Jay Nadeau, reviewed the proposed plans and did not have any concems at this time. 18. No exterior storage outside of the approved screened dumpster storage areas shall be permitted. In addition, exterior product display shall not be permitted. RECOMMENDATION Staff does not recommend that the applicant submit a preliminary plat application for the proposed project, as the proposed use is not a permitted or conditional use in the underlying zoning district. Respectfully submitted, Z Brian Robertson, Associate Planner Copy to: David Simendinger, Applicant WESCO, INC. June 15, 2004 City of South Burlington Development Review Board 575 Dorset Street So. Burlington, VT 05403 Aw%k III E*(ON Gulf TEXACO DISTRIBUTOR OF TEXACO, EXXON, GULF AND SHELL PRODUCTS RE: 1041 Shelburne Road, So. Burlington Dear Sir or Madam: Please continue Wesco's PUD sketch plan application scheduled for June 15, 2004 to allow us time to consider and respond to staff's comments. Thank you. -% William E. Simendinger, Esq. Corporate Counsel C:\Documents and Settings\tkelton\My Documents\2004docs\B3B—d.duc 32 SAN REMO DR. P.O. BOX 2287 PHONE 802-864-5155 SO, BURLINGTON, VT 05407-2287 CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 June 11, 2004 William Simendinger Wesco, Inc. 32 San Remo Drive South Burlington, VT 05403 Re: 1041 Shelburne Road Dear Mr. Simendinger: Enclosed is the agenda for next Tuesday's Development Review Board meeting and staff comments to the Board. Please be sure that someone is at the meeting on Tuesday, June 15, 2004 at 7:30 p.m. at the City Hall Conference Room, 575 Dorset Street. If you have any questions, please give us a call. Sincerely, Betsy McDonough Administrative Assistant Encl. Permit Number SD- - 3 7 APPLICATION FOR SUBDIVISION SKETCH PLAN REVIEW All information requested on this application must be completed in full. Failure to provide the requested information either on this application form or on the plans will result in your application being rejected and a delay in the review before the Development Review Board. For amendments, please provide pertinent information only. 1), OWNER OF RECORD (Name as fling address, phone and fax #) VAP`i 5155 . -F7n X P" Ll - to 2 3`>H " 2) LOCATION OF LAST RECORDED DEED (Book and page #) I r1 G(I �61 -too 3) APPLICANT (Name, mailing address, phone and fax #) V5(0 ) IV) G '32 Sa D kem0 DJi- O. (7�U✓1t►'1u y1. VT OCCL-f03 eWL1'S11515, fix eU)y "1P23L4 4) APPLICANT'S LEGAL INTEREST IN THE PROPERTY (fee simple, option, etc. 5) CONTACT PERSON (_Name, mailing address, phone and fax #) Dili I I ' San &-,M6 VY , OC403 �31a- 6) PROJECT STREET ADDRESS: 10Lf I ',5VY XY1?, 9d , SD. &ihnUltOn vT Ur)qO3 7) TAX PARCEL ID # (can be obtained at Assessor's Office) 1240 - 0104 1 - G 8) PROJECT DESCRIPTION a) Existing Uses on Property (including description and size of each separate use_.'?-...-Ga, (i7Y`N-ev) i-e vi r,r_ S'tvY-G . 0? 1 i . Ora n r)a .i b) Proposed Uses on property (include description and size of each new use and existing uses to remain) Z GAS tA. m,05. eOnVev)iPv)(e, . gar li (10 vinaI a ►n,-1 c) Total building square footage on property (proposed buildings and existing buildings to remain) 17AL4 v. Ave. FPrt* I -L00 Cilutli (� + r^ nnaI d) Proposed height of building (if applicable) 21 e) Number of residential units (if applicable, new units and existing units to remain) �j 1 A f) Other (list any other information pertinent to this application not specifically requested above, please note if Overlay Districts are applicable) __j (a � L (NC4144 Z 9) LOT COVERAGE a) Building: Existing (.0 % Proposed % b) Overall (building, parking, outside storage, etc) Existing 1 q % Proposed 1 C1 % c) Front yard (along each street) Existing 1� % Proposed 7 10) TYPE OF EXISTING OR PROPOSED ENCUMBRANCES ON PROPERTY (easements, covenants, leases, rights of way, etc.) MarK VI-04 Im-les DYooa4 Q . o tl 1 14 eaSCVYx n i S 11) PROPOSED EXTENSION, RELOCATION, OR MODIFICATION OF MUNICIPAL FACILITIES (sanitary sewer, water supply, streets, storm drainage, etc.) WC4YC.Y (AM SCW P.- 12) OWNERS OF RECORD OF ALL CONTIG,jJOUS PRPPERTIES & MAILING ADDRESSES (this m be provided on a separate attached sheet) (_,;11� C7 5�1�1 b) ✓I �ly)Q fto.� , 5� J 13) ESTIMATED PROJECT COMPLETION DATE SI X IfYX nq)S afte K I i li i no pey-M,1-t 1`>SU-eCj 14) PLANS AND FEE Plat plans shall be submitted which shows the information listed on Exhibit A attached. Five (5) regular size copies and one reduced copy (11" x 17") of the plans must be submitted. A sketch subdivision application fee is free. 2 I hereby certify that all the information requested asp f this application has been submitted and is accurate to the best of my knowle e. 10 �rPS►clrYl � n , �) V A� OFj PPLICANT WC ` G 1� SIG ATURE 010ROPERTY OWNER Do not write below this line DATE OF SUBMISSION: I have reviewed this sketch plan application and find it to be: ❑ Complete ❑ Incomplete Director of Planning & Zoning or Designee Date 3 STEVEN F. STITZEL PATTI R. PAGE* ROBERT E.FLETCHER JOSEPH S. McLEAN TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y.) STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/'TDD) FAX (802) 660-2552 or 660-9119 E-MAI L(FI RM2555 @FIRMSPF. COM) WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 June 4, 2003 Raymond Belair Administrative Officer City of South Burlington 575 Dorset Street South Burlington, VT 05403 Re: Appeal of Wesco (1041 Shelburne Road) Docket Nos. 152-7-02 Vtec, 153-7-02 Vtec, 6-1-03 Vtec Dear Ray: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Enclosed please find correspondence I received today from Attorney Marc Heath in connection with the above -referenced matter. Please call with any questions. Thank you. Sincerely, Amanda S. E. Lafferty ASEL/jp Enclosure son5211.cor .J1,!N - 4 2003 STITZEL, PAGE & FLETCHER PC MARL B. HEATH mheath@drm.com (802)846-8306 June 3, 2003 Ms. Jacalyn M. Stevens Environmental Court 255 North Main Street, Suite 2 Barre, VT 05641 jVjL DOWNS 1,A(III_IN MARTIN PLLC Re: IN RE: Appeal of Wesco, Inc. (1041 Shelburne Road, South Burlington Vermont) Docket Nos. 152-7-02 Vtec, 153-7-02 Vtec & 6-1-03 Vtec DRM File No. 07356-00013 Dear Ms. Stevens: This letter is to advise the Court of the status of the above -referenced matter. Applicant's have hired a new engineer due to their prior engineer's time restraints. The new engineer will be redeveloping a plan which Applicant will be resubmitting to the City. We therefore ask the Environmental Court to continue to keep this matter on hold while a revised plan is drafted and considered. We will continue to report monthly to the Court on the status of this plan. Sincerely, Marc Heath mbh:kmb2 cc: Amanda S.E. Lafferty Esq. COURTHOUSE PLAZA ■ 199 MAIN STREET ■ PO BOX 199 ■ BURLINGTON, VT ■ 05402-0190 ■ T: +1.802.863.2375 ■ F: +1.802.862.7512 BURLINGTON, VT 0 ST. JOHNSBURY, VT 0 BRATTLEBORO, VT 8 MONTPELIER, VT ■ LITTLETON, NH ■ WWW.DRM.COM CITY OF SOUTH BURLINGTON DEPARTMENT OF }PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 January 29, 2005 William E. 5imendinger, Esq. 32 5an Remo Drive 5. Burlington, Vermont 05403 Re. Appeal of Wesco, Inc. Docket No. 6-1-05 Vtec Dear Mr. 5imendinger: Pursuant to V.R.C.P. 76 (e), I am required to provide you with a list of all interested parties who appeared and were heard at the Development Review Board hearing on this matter. Please be advised that no one appeared or spoke at the public hearing held relative to this matter. 5incerely,;� . f. '� �,,...,"••ram„ � �. Raymond J. Belair Administrative Officer CC: Amanda 5.E. Lafferty, Esq, Vermont Environmental Court STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/"CUD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE• E-MAIL(FIRM2555 a FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY a FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE (-ALSO ADMITTED IN N.Y.) January 27, 2003 Mr. Raymond Belair City or South Burlington 575 Dorset Street South Burlington, VT 05403 Re: Appeal of WESCO, Inc. Docket No. 6-1-03Vtec Dear Ray: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN I have enclosed a copy of a letter regarding the above - referenced appeal. Please note that in accordance with paragraph 3 of the enclosed letter, you should provide William Simendinger, Esq., attorney for the Appellant, with a list of all "interested parties" (persons who appeared before the development review board on this matter) with instructions that he send a copy of his notice of appeal to all the interested parties in accordance with the Court's letter. You should also send a list of the interested parties to the Vermont Environmental Court. Please call if you have any questions regarding this. Sincerely, Amanda S. E. Lafferty. ASEL/gmt Enclosure SON5050.COR 7228 VERMONT ENVIRONMENTAL COURT ---------------------------------------- Amanda Lafferty, Esq. Stitzel, Page & Fletcher PO Box 1507 Burlington VT 05402 ---------------------------------------- Appeal of Wesco (1041 Shelburn Road) (802)479-4486 255 North Main Street, Suitex Barre, Vermont 05641. -- January January 23, 2003 Docket No. 6-1-03 Vtec The above -referenced appeal from a zoning board, planning commission or development review board was received at the Environmental Court on 01/09/2003. It appears to have been filed with the board from which it was appealed on January 7, 2003. Environmental Court docket number 6-1-03 Vtec has been assigned to this appeal. Please use the Environmental Court docket number and the above case name when filing any documents or asking any questions concerning this case. All documents should be filed with the Environmental Court at the address below the Clerk's name at the foot of this letter. Also, if you have not provided the Court with a telephone number where you can be reached during working hours for the purpose of telephone conferences, please do so as soon as possible. The Vermont Rules of Civil Procedure (in particular Rule 76(e)) and the state zoning and planning statute (24 V.S.A. Chapter 117) set out the procedures to follow for this appeal, including the following: 1. The person filing the appeal is called "the appellant". The appellant must take certain actions in order to assure that this appeal is not dismissed. 2. The appellant must file a "statement of questions" as required by V.R.C.P. 76(e)(4)(B) no later than thirty (30) days from the date the notice of appeal was filed. This statement of questions should be specific because it will govern the scope of the appeal. � •_ w 1 F t, rnC January 23, 2003 - Page 2 - 6-1-03 Vtec 3. The clerk of the zoning board/planning commission/development review board is required by V.R.C.P. 76(e) to provide the appellant with a list of all interested parties who appeared and were heard at the board hearings on this matter. 24 V.S.A. Section 4471(a). The clerk of the board appealed from must also advise the appellant to serve notice upon the interested parties that the appeal has been filed and to give the interested parties notice that they have twenty (20) days to give the Environmental Court notice that they wish to participate in the case before the Court, and to provide the interested parties the address of the Court. The clerk is requested to send to the Court a copy of the list of interested parties it provided to the appellant and the accompanying letter sent to the appellant. 4. The appellant must provide notice of this appeal to each interested party on the list, including a copy of the notice of appeal and information about the interested party's responsibility to inform the Environmental Court within twenty (20) days of his or her interest in participating in the case on appeal. The appellant's notice to each interested party must also include the name and address of the Enviromental Court and the Court's telephone number. Within seven days of sending this letter, we request that the appellant also send the Court the list of the people to whom the appellant sent notice and a copy of the appellant's notice to interested parties. 5. A person with standing to appear in the appeal is called an "appellee" or an "interested party." This may include the permit applicant, if an approved permit was appealed by some other party. See 24 V.S.A. Section 4464(b). Appellees and other interested parties have twenty (20) days from the date the appellant serves them with the notice of appeal to file their entry of appearance (request to participate) with the Environmental Court. If appellees or other interested parties fail to file an appearance or to make a request to participate within this time frame, the case may proceed to a decision without any further notice to them and without their involvement. 6. This case will be ready for hearing or other appropriate disposition when the time for filing the appellant's statement of questions has expired, or 20 days after the notice to interested parties has been sent, whichever occurs later. The Court may extend that time if a request is made by written motion filed with the Court before the deadline has expired. If this case is set for a hearing on the merits, the hearing will take place in or near the county in which the case originated. Please note that under 24 V.S.A. Section 4471(a) these appeals are de novo, unless the municipality has adopted procedures to make certain appeals on the record. January 23, 2003 - Page 3 - 6-1-03 Vtec 7. FAXing a copy of a document is not sufficient to meet deadlines for filing documents with the Court. FAXed copies may be authorized by the Court in certain circumstances, but the Court will not accept FAXed documents unless the sender has first telephoned the Court and obtained permission to do so. 8. The person filing any document (including letters) with the Court must also send a copy of that document to each of the other parties. The Clerk of the Environmental Court will contact the parties to arrange for a pre -hearing conference in person or by telephone with the judge or with the Environmental Court Case Manager. Sincerely, lw_-VWA,� 9ica�lyyn �Mstevens, Clerk Vermont Environmental Court 255 N. Main Street, Suite 2 Barre, VT 05641 (802) 479-4486 CC: William E. Simendinger, Attorney for Appellant, Wesco, Inc. Amanda Lafferty, Attorney for Appellee, South Burlington, City of STEVEN F. STITZEL PATTI R. PAGE* ROBERT E.FLETCHER JOSEPH S. McLEAN TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y) STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) FAX (802) 660-2552 or 660-9119 E-MAI L(FI RM2555@FIRMS PF. COM) WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 January 8, 2003 Jacalyn Stevens, Clerk Vermont Environmental Court 255 North Main Street, Suite 2 Barre, VT 05641 Re: Appeal of WESCO, Inc. Docket No. Dear Jackie: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Enclosed please find the Notice of Appeal of WESCO, Inc., the Decision of the South Burlington Review Board dated December 17, 2002, and WESCO, Inc.'s check to the Vermont Environmental Court in the amount of $150.00. Please also find for filing my Entry of Appearance on behalf of the City of South Burlington. Please call with questions. Thank you. Sincerely, } i. tiwo'vAa Amanda S. E. Lafferty ASEL/jp Enclosure CC: Raymond Belair William E. Simendinger, Esq. son503O.cor STATE OF VERMONT ENVIRONMENTAL COURT IN RE: WESCO, INC. ) DOCKET NO. 1041 SHELBURNE ROAD ) Appeal of So. Burlington Development Review Board ENTRY OF APPEARANCE NOW COMES AMANDA S. E. LAFFERTY, of the firm Stitzel, Page & Fletcher, P.C., and hereby enters her appearance in the above - referenced matter by and on behalf of the City of South Burlington. Dated at Burlington, Vermont, this 8th day of January, 2003. son1006.1iteoa STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET FO BOX 1507 BURLINGTON, VERMONT 05402-1507 STITZEL, PAGE & FLETCHER, P.C. Amanda S. E. Lafferty STATE OF VERMONT ENVIRONMENTAL COURT IN RE: WESCO, INC. ) DOCKET NO. (1041 Shelburne Road) ) Appeal of So. Burlington Development Review Board NOTICE OF APPEAL Wesco, Inc. b; and through their attorneys, Sarvak and Simendinger, hereby appeals the December 17, 2002 decision the South Burlington Development Review Board on CU-01-46 ar SP-02-17, a copy of which is attached as follows: 1. Wesco, Inc., 32 San Remo Drive, South Burlington, VT 05403 are the property owners. 2. The property at issue is Shelburne Road Texaco 1041 Shelburne Road in Burlington, VT. 3. Regulations applicable to the appeal are the South Burlington zoning regulations and Vermont Statutes. 4. The project and relief is proper because it complies with the applicable laws. WHEREFORE, the Court should reverse the decision of the Development Review Board and grant permits for the project. Dated at South Burlington, VT this�day of January, 200Y W/sc�, Ing' .--- RECEIVED JAN 0 7 2003 B City of So. Burlington vVilliam E—Simendinger, Esq. Sarvak and Simendinger 32 San Remo Drive So. Burlington, VT 05403 C\Documents and SettingsUelton\My Doc uments\2002docs\B3NoticeofAppealldoc 1 #5F-02-17 #CU-01-46 STATE OF VERMONT COUNTY OF CHITTENDEN CITY OF 50UTH BURLINGTON 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" for a 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 5q. ft. convenience Store and replacing an existing gas island canopy with a new 24' x 32' canopy,1041 5helburne Road, as depicted on a plan entitled "5ite Flan Wesco Inc. Champlain Farms Texaco 1041 5helburne Road 5outh 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 consiote 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 sq. ft. convenience store and constructing an 1104 sq. ft. convenience Store and replacing an existing gas island canopy with a new 24' x 32' canopy, 1041 5helburne Road. 2. The owner of record of this property is Wooco, Inc. 3. This property located at 1041 5helburne Road lies within the C1 District. It i5 bounded on the north and west by a reotaurant, on the north by a cemetery and on the east by 5helburne Road. 4. The property ha5156 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 i5 developed with a 559 SGI, ft. convenience Store with gas Sales (4 fueling positions) and 1344 5q, ft. canopy over the pump islands. 6. This convenience Store building hao 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. 8. Conditional use criteria under 5ection 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. 9. AccroolCirculation: Access is currently provided by two (2) curb cuts. The northerly curb cut is 42 feet in width and the Southerly curb cut 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. Coves: Duilding coverage io 11.5% (maximum allowed is 5041.). 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. 5etbacks: 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). 13. Pam: Eight (6) 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. 1 iQht�: 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. 16. This property is currently developed with: 1) a 559 sa,. ft. convenience Store - building, 2) an approximately 1300 sq. ft. gas island canopy, and 3) a 48 sq. ft. wood Shed. All three (5) 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 1500 sq. ft;. canopy and replace it with a 768 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 such that it will not meet the 50 foot front yard Setback requirement. It is proposed to project 12 feet into this Setback area. 19. Section 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)o 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 ao 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 io a non -conforming use. See In r Miserocchi, 170 Vt. 520. 525-324 (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 & Nock, Inc. v. Village -Of Eooex nction• 135 Vt. 481, 463 (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 t6 obtain all necessary approvals under the 5outh 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. Dy 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. DECI5ION Based on the above Findings of Fact and Conclusion of Law, the 5outh Burlington Development Review Board hereby Denies the Applicant's request for conditional use and Site plan approval for a 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 orb f 5outh Bu i on Development Review Poard Please note: You have the right to appeal this decision to the Vermont Environmental Court, pursuant to 24 V5A 4471 and VRCP 76 in writing, within30 days of the date of this decision is 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). #5P-02-17 #CU-01-46 STATE OF VERMONT COUNTY OF CHITTENDEN CITY OF SOUTH BURLINGTON 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 Weoco, Inc. hereinafter "Applicant" for a project consisting of amending a plan fora 559 sq. ft. convenience Store with gas sales (4 fueling positions) and a 1344 sq. 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 1344 oq, ft. canopy. The amendment consists of removing the existing 559 oq- ft. convenience store and constructing Lan 1104 oq- ft. convenience store and replacing an existing gas island canopy with a new 24' x 52' 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 5q. ft. convenience store with gas sales (4 fu!cling 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. FAGE #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 USE 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. A / it Ala ion: Access is currently provided by two (2) curb cuts. The northerly curb out is 42 feet in width and the southerly curb cut 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. Coyera6je: 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. 5etbacks: 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). 13. Pam: Eight (5) 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. Lighter: 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. 16. This property is currently developed with: 1) a 559 sq. ft. convenience store buil(.1ing, 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 768 sq. ft, canopy, and 3) remove entirely the 559 sq. ft. convenience store and replace it with a new 1104 aq. ft. building for convenience store use. 18. The new convenience store building will be located such 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 such that it will not meet the 50 foot front yard setback requirement. It is proposed 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 Cour-Co charge is under 5ection 26.002 of the zoning regulations. However, Weaco does not propose an alteration to a non -complying structure. An alteration is defined in this manner. "(a)a 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 ouch a structure is "destroyed by fire, collapse, explosion or similar cause". 5ee 5ection 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 otate's policy against the "undue perpetuation on non- conforming uses." 20. In addition, 5ection 26.003 of the zoning regulations, which provides, in part, that "(a) non -conforming use shall not be extended or enlarged", forbids Weoco's proposal. A non -complying structure is a non -conforming use. 5ee In r , Miserocchi, 170 Vt. 320. 325-324 (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." V-ermont Brick & 5lo k, Inc.v WOO,— of I=ssex 1 un tiail- 135 Vt. 481, 483 (1977). Weaco proposes to construct a new, large structurc 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 td obtain all necessary approvals under the South Burlington Zoning Regulations, Applicant first must obtain a variance for: I. The proposed new convenience store building to project 21 feet into the rear yard setback. 5y Decision dated May 21, 2002, (Application #VR-01-02), the South 5urlington 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. DECISION 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 for a proposal to construct a new 1104 sq. ft. convenience store with gas sales 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. 7 a .y Cha i r o t'�fie4 South 5u 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 VRCP 76 in writing, within30 days of the date of this decision is 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). CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANN➢NG & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 January 7, 2003 Amanda 5.E. Lafferty, Esq. 5titzel, Page & Fletcher, P.C. PO Box 1507 Durlington, Vermont 05402-1507 Ke: Weoco, Inc. Appeal, 1041 Shelburne Road Dear Amanda: Enclosed, please find the following documents pertaining to the above referenced appeal: 1. Original Notice of Appeal dated January 2, 2003 received on January 7, 2003. 2. Check in the amount of $150 dated January 6, 2005 made payable to "Vermont Environmental Court." 3. Copy of DFL3 decision being appealed. 4. Copy of transmittal letter from William E. 5imendinger, Eoq. dated January 2, 2003. Please forward the Notice of Appeal to the Vermont Environmental Court and enter an appearance on behalf of the City. Sincerely, Ka�ymond J. Pelair Administrative Officer End. STATE OF VERMONT ENVIRONMENTAL COURT IN RE: WESCO, INC. ) DOCKET NO. (1041 Shelburne Road) ) Appeal of So. Burlington Development Review Board NOTICE OF APPEAL Wesco, Inc. by and through their attorneys, Sarvak and Simendinger, hereby appeals the December 17, 2002 decision the South Burlington Development Review Board on CU-01-46 and SP-02-17, a copy of which is attached as follows: 1. Wesco, Inc., 32 San Remo Drive, South Burlington, VT 05403 are the property owners. 2. The property at issue is Shelburne Road Texaco 1041 Shelburne Road in Burlington, VT. applicable to the appeal are the South Burlington zoning regulations and 3. Regulations Vermont Statutes. 4. The project and relief is proper because it complies with the applicable laws. WHEREFORE, the Court should reverse the decision of the Development Review Board and grant permits for the project. Dated at South Burlington, VT thisday of January, 2003 4 Wisco, Inv. -- RECEIVED JAN 9 7 ZOOS illiam E-*19-imendinger, Esq. Sarvak and Simendinger City of So. Burlington 32 San Remo Drive So. Burlington, VT 05403 C:\Documents and Settings\tkeltonNY Documents\2002docs\B3NoticeofAppeal3.doc 1 01/06/2003 59749 o� ,are ✓y ********150 Dollars and 00-Cents ***-***150.00 VT ENVIRONMENTAL COURT 255 NORTH MAIN ST 1ST FLOOR BARRE, VT 05641 ii®0 59 749,10 'MOO L &60006 21m P 1-6 711, 24 26,11 211a Sarvak & Simendinger ATTORNEYS AT LAW 32 San Remo Drive, So. Burlington, VT 05407-2287 (802) 658-9999 1 Fax (802) 864-6234 William E. Simendinger, Esq. ext. 233 Certified RRR January 2, 2003 Clerk, So. Burlington Development Review Board 575 Dorset Street So. Burlington, VT 05403 RE: 1041 Shelburne Road, South Burlington Dear Clerk: Kathryn A. Sarvak, Esq. ext. 347 Enclosed please find $150.00 and Notice of Appeal in reference to the above property. Thank you. Enc. cc: Marc Heath, Esq. C:\Documents and Settings\tkelton\My Documents\2002decs\B3C1erk.doc RECEIVED JAN 0 7 2003 City of So. Burlington J CITY OF SOUTH BURLINGTON DEPAP,TMENT OF PIANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 becember 18, 2002 William 5imendinger WeSco, Inc. 32 5an Remo Drive 5. Burlington, Vermont 05403 Re: 1041 Shelburne Road Dear Mr. 5imendinger: Enclosed please find a copy of the South Burlington Development Review Board's decision (#CU-01-46 & 5P-02-17) for the above referenced property. If you have any questions, please feel free to contact me. 5incerely�._, Raymond J. Belair Administrative Officer Encl. Certified Mail Receipt #7002 0510 00015466 0937 #5P-02-17 #CU-01-46 STATE OF VERMONT COUNTY OF CHITTENDEN CITY OF 5OUTH BURLINGTON RE: APPLICATION 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 #51F-02-17 of WeSco, Inc. hereinafter "Applicant" for a project consisting of amending a plan for a 559 aq. 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 5helburne Road, ae depicted on a plan entitled "site Plan WeSco Inc. Champlain Farms Texaco 1041 5helburne Road 5outh Burlington VT" prepared by 5MM Environmental Engineering, dated 7/25/01, 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 5outh 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 sq, ft. convenience store with gas Sales (4 fueling positions) and a 1344 aq. ft. canopy. The amendment consists of removing the existing 559 sq. ft. convenience store and constructing an 1104 Sod. ft. convenience store and replacing an existing gas island canopy with a new 24' x 32' canopy, 1041 5helburne Road. 2. The owner of record of this property is WeSco, Inc. 3. This property located at 1041 5helburne 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 5helburne Road. 4. The property has 156 feet of frontage along 5helburne 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 1344 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 36 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. 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. 9. Access/Orculation: Access is currently provided by two (2) curb cuts. The northerly curb cut 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). 13. Parkina: 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. Light: 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. 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 46 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 46 sq, ft. wood shed, 2) remove the existing 1300 sq. ft. canopy and replace it with a 768 act. 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 such 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 such that it will not meet the 50 foot front yard setback requirement. It is proposed 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 CourtVs charge is under 5ection 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". 5ee 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, 5ection 26.003 of the zoning regulations, which provides, in part, that "(a) non -conforming use shall not be extended or enlarged", forbids Weaco's proposal. A non -complying structure is a non -conforming use. See 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 &Block, Inc. v Village of s x .1 un . ion. 135 Vt. 481, 485 (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. 5y Decision dated May 21, 2002, (Application #VR-01-02), the South 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. DEC15ION 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 for a proposal to construct a new 1104 sq. ft. convenience store with gas sales 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 Clerk South Burlington Development Review Board Please note: You have the right to appeal this decision to the Vermont Environmental Court, pursuant to 24 V5A 4471 and VRCP 76 in writing, within30 days of the date of this decision is 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). i, DEVELOPMENT REVIEW BOARD MEMO December 17, 2002 MEETING Appeal of a decision of the Administrative Officer to issue Notice of Violation #NV-02-39 alleging that the property owned by Two O'Brien's Properties, LLC located at 1475 Shelburne Road is being occupied without a Certificate of Occupancy. In 1992, the Planning Commission approved an addition for "vocational training" use to the O'Brien's Training Center. In 1994 the Planning Commission approved an amendment to the site plan to relocate a garage, revise parking layout, and revise the landscaping. In 1995, the Planning Commission approved another amendment which eliminated a condition to construct a sidewalk. In 1999 the Appellant requested a Certificate of Occupancy (C.O.) which was denied because the parking aisle serving the single row of parking along the south boundary was too narrow. The three (3) previously approved plans showed this aisle meeting the 22 foot minimum width requirement. Staff measured this aisle at it's narrowest point at 13 feet. The Appellant was informed of the violation and the response was that they would take care of it. Staff recently discovered that the Appellant opened up a retail store in the building without a zoning permit. A Notice of Violation (N.O.V.) was sent to the Appellant for this violation and for occupying the building without a C.O. The N.O.V. for the occupancy violation was appealed and the N.O.V. for the retail store was not. The Appellant is occupying the addition without a C.O. and one can not be issued unless the parking aisle is widened as shown on the approved plan or an alternate plan approved. L WESCO, REMAND BY VERMONT ENVIRONMENTAL, COURT, 1041 SHEiLBURNE ROAD Remand by Vermont Environmental Court of conditional use application #CU-02-46 and site plan application #SP-02-17 of Wesco, Inc. for a project consisting of amending a plan for a 559 sq. ft. convenience store with gas sales (4 fueling positions) and a 1344 sq. ft. canopy. The amendment consists of removing the existing 559 sq. ft. convenience store and construction an 1104 sq. ft. convenience store and reducing the size of the canopy. The DRB denied this project on 6/18/02 (decision enclosed). This property located at 1041 Shelburne Road lies within the C 1 District. It is bounded on the north by a restaurant, and on the east by Shelburne Road, on the south by a cemetery, and on the west by a restaurant parking lot. Legal Issues: The recent denial by the Board was appealed to the Vermont Environmental Court. Please review letter from City Attorney, Amanda Lafferty. CONDITIONAL USE CRITERIA 7 DEVELOPMENT REVIEW BOARD MEMO December 17, 2002 MEETING 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. SITE PLAN CRITERIA Access/Circulation: Access is currently provided by two (2) curb cuts. The northerly curb cut is 42 feet in width and the southerly curb cut is 40 feet in width (measured at the property line). Both curb cuts are proposed to be reduced in width to 36 feet. Circulation on the site is adequate. 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%). 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). Parking: Eight (8) parking spaces are required and eight (8) spaces are provided including one (1) handicapped space. No bike rack is proposed as required. Traffic: No additional traffic expected since no additional fueling positions proposed. Lim: 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 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. 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 768 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. The new convenience store building will be located such that it will not meet the rear yard setback requirement of 30 feet. It is proposed to project 21 feet into this setback area. The new canopy will be located such that it will not meet the 50 foot front yard setback requirement. It is proposed to project 12 feet into this setback area. 8 a DEVELOPMENT REVIEW BOARD MEMO December 17, 2002 MEETING Section 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 of non -conforming uses." In addition, Section 26.003 of the zoning regulaitons, 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. See In re Miserocchi, 170 Vt. 320. 323-324 (2000). "An enlargement or expansion of a non -conforming use, rather than a mere increase in business, is indicated where new facilities or a new product is involved." Vermont Brick & Block, Inc. v. Village of Essex Junction, 135 Vt. 481, 483 (1977). Wesco proposes to construct a new, larger 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. 13) WESCO, SITE PLAN, 1108 ANI) It 18 WILLISTON ROAD This application consists of amending a site plan for an existing 1,600 square foot service station with eight (8) fueling position positions [six (6) gasoline and two (2) diesel]. The amendment consists of: 1) converting the service station to a convenience store, 2) constructing a 456 square foot addition for convenience store use, 3) replacing the three (3) gas pumps [six (6) fueling positions] with two (2) gas pumps [four(4) fueling positions], and 4) replacing existing diesel pump [two (2) fueling positions] with a new pump [two (2) fueling positions] and a 24' x 24' canopy. The Board denied a similar proposal for this site on 3/7/00 (decision enclosed). This property located at 1108 and 1118 Williston is within the Commercial 1 District. It is bounded on the north by a hotel/restaurant (Econolodge), on the west by a hotel /restaurant (Holiday Inn), on the east by a medical office, and on the south by Williston Road. Access/ circulation: The proposal includes the following access modifications: 1) a reduction in width from 40' to 36' for two (2) existing curb cuts for the service station, and 2) the removal of the existing residential garage curb cut. These modifications result in (2) I 1 November 19, 2002 Raymond Belair City of So. Burlington 575 Dorset Street So. Burlington, VT 05403 RE: 1041 Shelburne Road Dear Ray: Please continue the meeting of November 19, 2002 to the December 17, 2002 meeting. We have two applications on the December 17, 2002 meeting and logistically it's more convenient to hold these hearings together. Thank you. Corporate Counsel C: \Documents and Settings\tkelton\My Documents \2002docs\MBelair2.doc 32 San Remo Drive, P.O. Box 2287 Phone (802) 864-1519 So. Burlington, `L705407-2287 Fax (802) 860-5841 CAT, Rescued. gorgecus long haired calico 2 years. very loving, will spay betore adoption. Ca11 (5181 585-7271 or e- mail: lovdobies@webt- v.net COMPOST, tumbler. Gardener s Supply Green Magic great condi- tion but needs easy re- pair on mounting frame. Call J802) 985.3611 DISHWASHER Fun size, portable. Butcher block top. No room, must go. Call (802)864-7313 NO CALL BEFORE 9am, DISHWASHER, 9 years old works well a little noisy Call (802) 878-0048 DOORS (2) Impact traffic doors for loading dock warehouse use. 7 ft. w x 8 ft. In. Call (802)951-8900 ENTERTAINMENT,section dimensions 49'H by 51" W by 15' 0. Holds 36" TV. 3 shelves plus space on bottom. Dark fake wood model by O'Sullivan Call(802) 865- 8026 EXERCISE BIKE Westo t Lifestyler 550. Dual ac- tion. Sturdy. Great for r rehab. Calt (802) 899- G 3395. r FREE CATS 2 Sweet li Cat, Sisters, Both 6 Years Old. Very Affectionate, Short Hair, Indoor Only, Please Call (802) 878-5924 o FRONT DOOR. 36' alu- tminum with 13.5" side It light, all framed together. In. 52.5 x 81.5 opening. 01 Cali (802) 899-3811 2 GERBILS Male, Free To Good Home Only, Because of Severe Ailer- gies,1802) 899.1939 GERMAN SHEPHERD/PI. TBULL MIX, 4 year old neutered male. Very loy- 31. I'm moving, must find a new home for my pet. Call 1802) 888.5083 ar (802) 859-070& HORSE MANURE 30 yards, easy pick up. mil Call (802) 482-2204. e *ale** Uo' LAYING HENS (5) ,us 2 yyears old. 'M Call(8021864-9308 due lio ***** Ila; METAL DESKS (2) )Olt Good condition. NO Cali 1802) 865-3663. OFFICE DESK, metal (2) ®pool condition you take =way, Call (802) 877- fau?)'bb-6115 RABBITS, 2 black males. Approx. o mos. old. Please call f802) 893- 6708 after 9 am. RABBIT, 2 year old adult male, brown and white, adorable.Yours! Call Jeff or Cliff (802) 879-9491. REFRIGERATOR, 12 cu. ft. ALSO ELECTRIC 1,_a_qi_S_a 16 iF BURLINGTON, Moving Sale! Chairs, couches, dressers, dining room table and buffet, lamps, and other household items. 10 Eastman Farm Rd. Left off North Ave. by firestation to Apple - tree Point. Sat. 8:30- 12:30 STOVE, 4-burner Both clean & serviceable rea- SO BURLINGTON, Multi dy for camp! Please call family sale, indoors, ;l02)5'53-4261 books. mirrors, and tables, old records, SCREEN DOOR 32' dishes, clothing, and lots Have Glass Too of goodies. 64 Swift St. SLIDING GLASS WIN- Turn at Denny's. Fri and DOWS (2) Windows Only Sat. 10-4pm. No Frame. Good Shape, Call (802) 862 4969 SO BURLINGTON New SHUTTERS (@ IS). 16 x & used toys, kids wear, house items. 24 Mill 61 inches. ELECTRIC Pond, 54 Moss Glen. WATER PUMP, & CHICK- Sat , 9.3. EN FEEDER. Please call 8U21 4' S-7766 WILLISTON, 845 Gover- nor Chittenden Rd. Thule SELL IDLE ITEMS' 91TH A ski box, canoe, (2) 7 ft. CLASSIFIED AD. CAU115%I21, Pompanousic Mills style SINK couches, white water White porcelain double kayak, parquet low boy, bowl cast iron kitchen 65 sq ft. of Italian Terra - sink. (802) 878.5538. cotta tile, student desk, beds, radio arm saw. SKIS, Dynastar equip CX 9-5 Sunday 190 cm with saloman 647 bindings. Good con- WILLISTON dition. Call (802) 985- PLANT SALE 3611 Sat 1112, 10 am - 2 pm. SLIDING GLASS DOOR 312CommerceSL Coming from Burlington; Good sand. Above the 2ndrightafterIndustrial r range microwave Sharp Carousel older model., Caro r m el., Ave. Coming from Taft s solid. excel4869 Corners; tat left after Harvest Lane. WIL IS TUB, 1 piece, including shower head faucet and gglass doors. Call Jeff or CI'iff (802) 879-9491. UPRIGHT PIANO Free to Anyone Who Can Pick Up and Carry Away I Call (802) 425-2354 WATER PURIFICATION SYSTEM Shakley. Two out 3 filters are good. (802)864.2978 WINDOWS, 2 sliding glass. 46 in. x 41 in., $10 each. Removed for remodeling. Please call (802)864-6013 WOOD STOVE Great For Camp, Good Shape, Call 1802)453-4731 Between B-10 PM U Pink Up. ems. Option * ABORTION? WHY? CONSIDER ADOPTION* Warm, secure, loving home available for new- born baby. Please call attorney at: 1.800-606-4411 A-823 A CARING CHILDLESS Couple seeks infant to join our family through adoption. We can help with medical and legal expenses. Please call Sam and Ellen Toll - Free 1866)-213.4971 L TON Sat Nov.., From 8.4. Computers, Card Top Carrier, Baby Items, Household Items, Sports Items, Books And More. 343 Handon Dr. Off Mountain View Rd. Sell your Pets Free Press Classified 658-3321 Leasaa Notices AGENCY OF TRANSPORTATION MONTPELIER INVITATION FOR BIDS Sealed bids, on forms furnished by the State, will be received until 11:00 a. in. prevailing time on Friday, Novemb- er 15, 2002, at the Office of Contract Administra- tion, Room 219, North Lobby, National Life Building, Montpelier, VT for the construction of the project hereinafter described. The time of receiving and opening bids may be postponed due to emergencies or unforeseen conditions. LOCATION: Cambridge BHO 1448(31)C/2 (Re - advertised): Beginning at a point approximately 475 FT northerlyy of the intersection of TH23 and VT 15 and extending nor- therly along TH23 for a distance of 446 FT, CONSTRUCTION BE- ING: Work to be per- formed under this project consists of the rehabilita- tion of the Cambridge Junction covered bridge and any associated ap proach work. Plans and Bid Proposals may be seen and ob- tained at the Agency of Transportation, Montpe- lier, VT and may be seen at the office of Gil New- bury, District Transporta- any formality ano any and all technicalities in bids and to accept such bid as may be deemed in the best interest of the awarding agency. October 31, 2002 November 2, 2002 PUBLIC NEARING SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD The South Burlington Development Review Board will hold a public hearing at the South Bur- lington City Hall, Confer- ence Room, 575 Dorset Street, South Burlington, Vermont an Tuesday, November 19, 2002, at 7:30 P.M. to consider the following: 1. Remand by Vermont Environmental Court of conditional use application #CU-01-46 and site plan application #SP-02-17 of Wesco, Inc. for a project. consist- ing of amending a plan for a 559 sq. ft, conveni- ence store with gas sales (4 fueling positions and a 1344 sq. ft cano- py. The amendment consists of removing the existing 559 sq. ft. con- venience store and cons- tructing a 1104 sq. ft. convenience store and reducing the size of the canopy, 1041 Shelburne Road. Copies of the application are available for public inspection at the South Burlington City Hall. John Dinklage, Chairman South Burlington Development Review Board. November 2.2002. VILLAGE OF ESSEX JUNCTION PLANNING COMMISSION NOVEMBER 7, 2002 PUBLIC HEARING 7:30 p.m. A. Amended site plan for PRO to construct a Wendy's restaurant with drive thru at 110 Pearl St in the HC District, by David Spitz, agent for Jo Wall Limited Partnership, owners. PUBLIC MEETING A. Sketch plan for a two lot subdivision at 37 Drury Drive in the R-1 District, by Center for Tochnology at E3sez, owners. B. Site plan review to construct six carriage homes at 10 Hubblells Falls Drive in the R-1 District, by William and Maryjean Kalanges, owners. C Site plan for drive thru coffee Shnp at 141 Pearl St. in the HC Dis- trict, by John and Rachel Mower, agent for Bras- sard Automotive Ser- vices, Inc., owners. D. Work Session for Land Development Code. ror ren )m rear setbbcxs rage shed at wood Ave. in District, by Wakefield, owner. sloe ana Administrative Secretary for a sto- Essex High School 26 Green. the R-2 Lawrence B. Variance application for an additional external sign at 18 Main St. in the VC District, by Matthew Cohen, agent for BSA Associates, owners. C. Appeal of Administra. tive Officer's decitiion regarding issuance of Home Occupation permit limiting number of anim- als and retail sales at 41 Pearl St. In the RO Dis- trict, by CV Second Chance Pet Rescue, Inc., agent for Albert Ol- ney, owner. This meeting will be held in the Meeting Room at the Village Office, 2 Lin- coln St. Reasonable ac- commodations will be provided upon request to the Village, 878-6950, to assure that Village meet- ings are accessible to all individuals regardless of disability. November 2, 2002 .a. Lost& Found FOUND BOX OF TOILET PAPER, That fell off truck. Large amount. Call to identify (802) 862- 5876. FOUND DOG, Male brown dog with black mask. Possibly Husky mix, in Burlington on 10/28. Call (802) 985- 2248. FOUND DOG Male cho- colate lab in Colchester on 11/1. Call (802) 985- 2248. FOUND GLASSES Found on Sun., 10/28 on the Bolton Valley Access Rd. Tortoise shell rim in a handmade purple bag. (802)434-4180 FOUND JACKET Polartec Jacket Found at Snake Mountain Tradhead Oct. 31. Call to identify. (802) 864-5901. FOUND KITTEN, Dark gray. Found near Home Ave. and Austin Dr. No collar 2-3 months? Call (802)660.9295. FOUND RING, Men's class ring, Mt. Mansfield 2000, found in Jericho on river bank. Call to des- cribe.(802)878-5444. FOUND SMALL BLACK THERMAL CASE, On Wil- kins Rd. in Fletcher. Call to claim (802) 893-7003. LOST GREEN PARROT LARGE REWARD Blue Headed Green Par- rot Named Leia. Collect 440-835-1631. Ask For Micheal or Robin. LOST 12) WINDSOR CHAIRS on October 15 on Interstate 89, RE- WARD $100. Call (802) 563-3082. REWARD For The Safe Rcturn Of L,1us, A Mole Siamese Cat. Lost In Leddy Park / Shore Rd. Area Of Burlington. 10/11 Call (802) 652.4027 Even (802)656-4086 Days. VT NOTARY SEAL in black leather pouch in Essex High School is seeking an experienced secretary to work in their Main Office. Job duties will Include coordinating and carrying out a varie- ty of clerical/secretarial administrative tasks. Good communication skills and computer ex- perience required. Microsoft Office exoeri- ence proterred. Position is a full-time, school year position (7.5 hours/day, 196 days/year). Position pays $10,07 per hour with an excellent bene- fits package. For more details, visit our web -site at www.ccsu.kl2.vt.us (click on employment opportunities). To apply, send cover letter and resume (including 3 names of reference) to the address below, or stop by to complete an application: Chittenden Central Supervisory Union 21 New England Dive Essex Jct, VT 05452 Attn: Human Resources EOE Assembly Technicians Needed. Assemble complex parts to within close toler- ances on electro mecha- nical systems. Must be able to understand blue- print symbols & all draw- ings of complex parts & be able to use complex measuring tools. 2-4 yrs experience in a manufac- turing environment. Call: Synergy Staffing 802-872-7191 ASSISTANT PUBLIC WORKS, The Town of North Hero is accepting applications- CDL is a must. Applications can be picked up at the Town Office, along with a job description. Dead- line has been extended to November 10, 2002. * SALES * New Foreign & Used Car Dealership is looking For An Individual To Join Our Team I We would like someone with an outgoing personality who works well with others and isn't afraid of phone work. We provide Salary, Commission, Bonus 401K, Health, Dental and Disability Insurance. If you are interested in Cars & Trucks & En oy Talking to The i'ublic. Please apply in person or call Todd for an appointment. (802) 527.8129 x 516 North Country Nissan Franklin Park West ST• Albans, VT i•,. AVON N—t. rmmndim . Start immediately Call (802)644.5695 CARPENTERS/ROOFI Experienced. Work Chittenden County ' round1802)425.3090/eve CARPENTERS, with inc , exterior siding rior trim experie Start ASAP. Vact and holiday pay b, on dependability. T transportation and re must. Call '802) 2100 or,802)223-4026. IM ARPENTER ears experienc arpenter's help - years experieni ostly framin ome remodelin ust have own ha tools and transpor tion. Mainly Chitts den County war (802) 893-89( Please leave me sage, will return ca in evening. CAR & TRUCK REM MANAGER, Budget Ct Truck Rental of But ton has an immed opening for a Iota manager. Prior Car Truck Rental expert preferred. Apply in c dense to bracne@ midmaine.com or tax sume to Scott Lanl (207) 621.2125. CHILDCARE FT 3choc age (40 hrs�l & PT school -age ipreschDol teaching positions (M-F 3.6pm). Exper required 802-878-9465 CHILDCARE FT Toddle teacher needed for Cot chester Center Exper Preferred, 802 863-594 �y CHILDCARE- Infant I tion in high qualityty, b tiful center. 6duca and experience prefe Call Crystal 434-3891. CHILDCARE- PreTgd co -teacher to join our tensed, protessto child care ctr. Educ d,ror exper pref. Coml live salary offered. Sarah: VIP Childcare 802-655-9400 x218 CHILDCARE TEACH • Large Center. • Team Approach. • NAEYC Accredited. • 2 yr olds. Degrea/expariance i (erred Competitive so 8 benefits. 802.482-2525 CHILD CARE TEACHEI A New Licensed Child Cme Centei Luui,iiig Fu Ff ! PT Dedicated and Experienced Teachers For All Age Groups. Competitive Salary and Benefits Including A Nur turing Work Environmenl Call Gail or Tricia (8021872.1152 CLEANERS WANTE FT PT, early ovening hours, must be able to work independently & own transportation, grea starting wage. please call 802-878-1669 for in- terview. Jobs are locate( in Burl., Colchester area. CLEANING PROF, Di eves. Trans needed. t 10/09/E00E TUE SO:JT FAX ®osocoalie STITZEL PAeE & FLETCHER !! OCT Z ,ij j Environmental Court of Vermont �J �1 (--+ State of Vermont ,g 3 -- RRTRY RBGARD I NG Wesco (Shelburne Rd.Texaco)-Sp Fc Cn [Heath/Lafferty] M O T I O N Title: Motion Rewand to W,No. 1 Filed on. Auguot 29, 2D02 Filed By: Co-CbUnael for party I William E. 5imendinger Reaponse filed on 09/11/02 by Attorney Lafferty L Granted Compliance by Denied FILL OCT -12 ENi+!R011EN MI COURT 153--7-02 Vtoc Scheduled for hearing on: at Time Allotted Other-F"r-w% ''} _ %> R�ws 4— Yr7i— �..�lw.ire.�a,... '�Z oo edge Date Date ^copies sent to: 7 clerk's Initials 7 Copies sent to: Attorney Marc B. Heath for Appellant Wesco, Inc. Attorney Amanda Lafferty for Appellee South Burlington, City of Co -counsel for party 1 William E. Simandinger libOOC t ; OCT - 4 2002 #' Environmental Court -of Vermont State of Vermont STITH*-T"E itt 'ENTRY REGARDING MOTION FILED OCT - 12002 Wesco (Shelburne Rd.Texaco)-SP & CU 153-7-02 Vtec [Heath/Lafferty) g 'DR Title: Motion Remand to No. 1 Filed on: August 28, 2002 c l Filed By: Co -counsel for party 1 William E. Simendinger Response filed on 09/11/02 by Attorney Lafferty Granted Compliance by Denied COURT Scheduled for heal' Time Allotted X Other -95 1 QY1 ymZ — ooZ P.Uwber 1 2 oat owe m 4 Judge /J Date ___ - 7---------------___ - Date copies sent to: UL Clerk's Initials - Copies sent to: Attorney Marc B. Heath for Appellant Wesco, Inc. Attorney Amanda Lafferty for Appellee South Burlington, City of Co -counsel for party 1 William E. Simendinger +� Environmental Court of Vermont h OC� 4 State of Vermont --_______ _______________________________________ c FlE1C`' R n n FILED 1 20M V�\rUIMT STtT7 F- t- Wesco (Shelburne Rd.Texaco)-variance 152-7-02 Vtec (Heath/Lafferty] Title: Motion To Remand to DRB, No. 1 Filed on: August 28, 2002 Filed By: Co -counsel for party 1 William E. Simendinger Response filed on 09/11/02 by Attorney Lafferty Granted Compliance by Denied tM TVA CLIO(D-J ' Scheduled for hearing on: Other at ; Time Allotted V ce-- wO-,S aA u� ��� I R 8 .J n C,UV4 c o _ � ��u-o & <� 1d ov\ car o A I Zoo Z (� aAvv,�e- fG-(2- u)� (/ ,��W1. Cvi/in, �� via G � L'� Uk l _ / Judge Date Date copies sent to: v Clerk's Initials Copies sent to: Attorney Marc B. Heath for Appellant Wesco, Inc. Attorney Amanda Lafferty for Appellee South Burlington, City of Co -counsel for party 1 William E. Simendinger STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555(c FIRMSPRCOM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTYLFIRMSPRCOM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE ('ALSO ADMITTED IN N.Y) October 4, 2002 Raymond J. Belair City of South Burlington 575 Dorset Street South Burlington, VT 05403 Re: Wesco, Inc. Appeals (1041 Shelburne Road) Docket No.'s 152-7-02 Vtec and 153-7-02 Vtec Dear Ray: AMANDA S.E. L,AFFERTY EDWARD G. ADRIAN Please find enclosed the Judge's entries regarding the Motion to Remand in connection with the above -referenced matter. Please give me a call if you have any questions. Thank you. Sincerely, Amanda S. E. Lafferty ASEL/jp Enclosure Son4958.cor CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 June 2I, 2002 William Simendinger Wesco, Inc. 32 San Remo Drive S. Burlington, Vermont 05403 Re: I041 Shelburne Road Dear Mr. Simendinger: Enclosed, please find copies of the South Burlington Development Review Board's decisions (#VR-of-02, #CU-01-46 & 4*SP-02-17) for the above referenced property. If you have any questions, please feel free to contact me. SinceretY" I.yay n I Belair Administrative Officer EncVtd CERTIFIED MAIL RECEIPT #7001 2510 0003 9976 o800 , EXISTING CHAIN LINK FENCE ALONG PROPERTY LINE — _.N25'00'00_E_____ 165.00, EXISTING WOOD SHED I 4I TO BE REMOVED --------------------- L _ 61't PROPOSED SETBA NON-RETI EXf B,rG BUILDING SPACE, Tl 1 1 R• BI-. REMOVED DUMPSTER SCREENED L___J BY STOCKADE FENCE ------------ - PROPANE CYLINDER RACK O1 PROPOSED PARKING SPACE ® NEW CANOPY RECESSED LIGHT WITH175 WATT FIXTURE EXISTING POLE MOUNTED SHOEBOX I LIGHT WITH NEW 175 WATT FIXTURE IIFFS� 11,E EXISTING CANOPY RECESSED LIGHT, TO BE REMOVED EXISTING POLE MOUNTED SHOEBOX LIGHT, TO BE REMOVED CORNER G.M.P. #17 UTILITY POLE • IRON BAR OO SEWER MANHOLE ® STORM DRAIN MANHOLE SIGN CATCH BASIN ® MONITOR WELL-- DQ GAS VALVE Cd WATER VALVE EXISTING SOUTH CATCH BASIN TO BE REFITTED AS OIL/WATER WATER SHUTOFF SEPARATOR 0 FUEL FILLER PIPE -- w -- WATER LINE --- 9 GAS LINE -� - - — - - — BOUNDARY LINE — — — — — SETBACK LINE - — - — EASEMENT LINE EXISTING CURB RLFNAYE 9NEUPJRNE-tA GRAPHIC SCALE � - -- -- - - -- q f0 (81 /lg: ) m 1 Inch - 10 EL 1 DRAMNG i OF I 1041 SHELBURNE ROAD AVE vnGENINC AVE LOSA11ON COMMERCIAL PARKING REQUIREMENTS NIS CONVIENCE STORE: ONE SPACE FOR EACH 100 SF OF RETAIL AREA GROSS FLOOR AREA 1,104 SF (23 X 48) RETAIL FLOOR AREA 804 SF (1,104 SF - 300 SF) PARKING SPACE _ 8 (804 DIVIDED BY 100) COMMERCIAL 1 DIMENSIONAL REQUIREMENTS DESCRIPTION REQUIRED EXISTING PROPOSED TOTAL LOT SIZE 40, 000 SF 16,500 SF 16,500 SF MINIMUM LOT FRONTAGE 200 FEET 165 FEET 165 FEET MINIMUM SETBACKS (CANOPY): FRONT YARD 50 FEET 37 FEET 37 FEET (FROM EXISTING 100' ROW) - NORTH SIDE YARD 15 FEET 64 FEET 64 FEET SOUTH SIDE YARD 15 FEET 69 FEET 69 FEET REAR YARD 30 FEET 17 FEET 17 FEET MINIMUM SETBACKS (BUILDING): FRONT YARD 50 FEET 70 FEET 69 FEET (FROM EXISTING 100' ROW) - NORTH SIDE YARD 15 FEET 55 FEET 45 FEET SOUTH SIDE YARD 15 FEET 60 FEET 50 FEET REAR YARD 30 FEET 8 FEET 9 FEET • CONFORMS NTH PROPOSED SHELBURNE ROAD IMPROVEMENT PLAN. COVERAGE CALCULATIONS EXMW FIIOPOED�� DESCRIPTION _ AREA SF S—OF TOTAL LIMIT AREA (SF) X OF TOTAL� SLIM, TOTAL LOT AREA !— 16,500 16,500 BUILDING AND CANOPY 1,903 11.5% 30% 1,972 11.3X 30X PAVEMENT AND WALKS 9,335 56.6% 81229 49.97 TOTAL COVERAGE 11,238 68. 1X 707 10, 101 61,2% 70% GREEN SPACE 5,262 31.9% 30% 6, 399 38.8Y, 30'L W BNELD. AD FRONT YARD 9,251 81251 CANOPY 387 4.7X 3820 4.6% PAVEMENT AND WALKS 61101 73. 9% 5,228 63. 4% TOTAL COVERAGE 6,488 78.6% 30% 5,608 68.0% 30% GREEN SPACE 1,763 21.4% 70% 2,643 32,0% 70% NOTES`__ 1. BOUNDARY AND PHYSICAL FEATURES SHOWN ON THIS DRAWING ARE TAKEN FROM A DR�WV FROM A DRAIWNG BY WILLIAM A. ROBENSTIEN, L.S., DATED FEBRUARY 1, 2001, PROJECT N0. 677-21, DRAWING NO. 1. 2. WESCO INC., IS RESPONSIBLE FOR SECURING ALL APPLICABLE STATE AND LOCAL PERMITS, 3. UTILITY INFORMATION SHOWN IS TAKEN FROM A PLAN PREPARED FOR GULF OIL COMPANY, U.S, DATED SEPTEMBER 24, 1975 AND LAST REVISED FEBRUARY 12, 1976 AND APPROVED BY THE ' SOUTH BURLINGTON PLANNING COMMISSION ON MARCH 9, 1976. 4. FIELD VERIFY ALL UTILITY, BUILDING & CANOPY DATA SHOWN ON THIS PLAN. 5. ALL LANDSCAPING IS EXISTING, EXCEPTING NEW RAISED ISLAND IN FRONT YARD. PROPOSED LANDSCAPING & LIGHTING:_ 1. PROVIDE TWO 2" CAL. RED MAPLES IN NEW RAISED ISLAND. 2. PROVIDE AN ADDITIONAL 900 SF OF LAWN (GREEN SPACE) IN NEW RAISED ISLANDS. 3. EXISTING CANOPY LIGHT FIXTURES ARE SURFACED MOUNTED WITH DROP LENS 400 WATTMH TO BE REPLACED WITH RECESSED 175 WATT MH FIXTURES (e TOTAL). 4. EXISTING POLE MOUNTED LIGHT FIXTURES ARE 1000 WATT MERCURY VAPER TO BE REPLACED WITH POLE MOUNTED SHOEBOX 175 WATT MH FIXTURES (2 TOTAL). SITE PLAN WEISC® SMM INC. CHAMPLAIN FARMS SCOTT MICHAEL MAPES TEXACO POST OFFICE BOX 5517 BURLINGTON. VERMCNT 1041 SHELBURNE ROAD W2_064-0100 SOUTH BURLINGTON, VT 23 JULY 2001 STATE OF VERMONT ENVIRONMENTAL LAW COURT In Re: Appeal of Wesco, Inc. ) Docket No. 152-7-02 Vtec (1041 Shelburne Road ) South Burlington) ) Docket No. 153-7-02 Vtec NOTICE TO INTERESTED PARTIES TO: Interested Parties RE: Appeal of South Burlington Development Review Board Decision on VR-01-02, SP-02-17, and CU-01-46 of June 18, 2002 FROM: Appellant Wesco, Inc. PLEASE TAKE NOTICE that Wesco, Inc. has taken an appeal to the Environmental Court from the June 18, 2002 decision of the South Burlington Development Review Board which denied a request for a variance, site plan, and conditional use application for property located at 1041 Shelburne Road, South Burlington, Vermont. You are receiving this Notice because you are an "interested person" as defined by statute, 24 V.S.A. §4464. According to the letter you furnished us on August 6, 2002, no one else appeared or spoke at the public hearings held relative to this matter. Interested parties who wish to participate as a party in the proceedings in the Environmental Court with regard to Wesco's appeal of the South Burlington Development Review Board approval of a variance, site plan, and conditional use application for 1041 Shelburne Road, South Burlington, Vermont, under V.R.C.P. 76(e)(2), you must file a Notice of Appearance with the Environmental Court within twenty (20) days of your receipt of this Notice. The mailing address of the Environmental Court is as follows: Carolyn Hutchinson, Clerk Vermont Environmental Court 255 North Main Street, Ist Floor Barre, VT 05641 DOWNS RACHLIN MARTIN PLLC If you have any questions, please call the Clerk of the Environmental Court at (802) 828- 3192. 1" \ Dated at Burlington, Vermont this 14 day of August, 2002. BTV/222615.1 DOWNS RAC,HLIN MARTIN PLLC Wesco, Inc. By: wa4lt- A Marc B. Heath, Esq. Downs Rachlin Martin PLLC P.O. Box 190 199 Main Street Burlington, Vermont 05401-0190 (802)863-2375 2 William E. Simendinger, Esq. Sarvak & Simendinger 32 San Remo Drive South Burlington, Vermont 05403 (802) 864-5155 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/I'DD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M.EUSTACE (*ALSO ADMITTED IN N.Y.) September 9, 2002 Jackie Stevens, Clerk Vermont Environmental Court 255 North Main Street, Suite 2 Barre, VT 05641 Re: Wesco, Inc. Appeals (1041 Shelburne Road) Docket No.'s 152-7-02 Vtec and 153-7-02 Vtec Dear Jackie: Enclosed for filing please find the City of South Burlington's Response to Appellant's Motion to Remand in connection with the above -referenced matters. AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Please give me a call if you have any questions. Thank you. Sincerely, Amanda S. E. Lafferty ASEL/jp Enclosures CC: Raymond J. Belair William E. Simendinger, Esq. s=4935 . corfax STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1.507 STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) DOCKET NO. 152-7-02 Vtec APPEALS OF WESCO, INC. ) DOCKET NO. 153-7-02 Vtec CITY OF SOUTH BURLINGTON'S RESPONSE TO APPELLANT'S MOTION TO REMAND NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and requests that the Court deny Appellant's Motion to Remand. Memorandum On or about August 26, 2002, Appellant requested that the Court remand these matters to the City Development Review Board. In so requesting, Appellant failed to provide even a minimum of reasoning or basis for such a remand, failing even to provide a description of its proposed project. Therefore, the Court should deny Appellant's request for a remand. Assuming arguendo that the Court may consider Appellant's request for a remand, the City Development Review Board (hereinafter the "DRB") has fully adjudicated Appellant's applications and this Court has jurisdiction to consider these appeals. There is no reason to remand these matters to the DRB at this time. On or about October 17, 2001, Appellant made application for conditional use and site plan approval for property it owns in the Commercial One Zoning District.' ' These applications and the variance request were continued several times, at the request of the applicant, and applicant withdrew the original site plan application in January STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 RORLINGTON, VERMONT 05402-1507 Specifically, Appellant proposed to remove the existing 559 square -foot convenience store building and to construct an 1,104 square -foot convenience store building. In addition, Appellant proposed to reduce the size of the 1,344 square -foot canopy located above 4 fuel pumps on the property. A true and correct reduced -size copy of the proposed site plan, marked as Exhibit A, is attached hereto. Pursuant to the City Zoning Regulations, the rear yard setback for this property should be 30 feet. See the Regulations, Sections 25.00 and 25.101. A true and correct copy of the relevant provisions of the City Zoning Regulations, marked as Exhibit B, are attached hereto. The existing structure is located 8 feet from the rear yard property line. See Exhibit A. Upon completion, the new convenience store building is proposed to be 9 feet from the rear property line. See Exhibit A. However, Appellant proposed to demolish the existing building and construct a new, larger building within the rear yard setback. The Regulations provide that "[i]n the event an addition or an expansion to a building or structure is proposed, the addition or expansion must comply with the provisions of these regulations (e.g., setback requirements)." See the Regulations, Section 26.002. Appellant proposed an addition or 2002. Applicant submitted a new site plan application on or about March 18, 2002. N STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 an expansion of a non -complying structure which itself did not comply with the setback requirements of the Regulations. See Exhibit A. The City then properly required Appellant to make application for and obtain a variance. On or about November 7, 2001, Appellant made application for a variance. By Findings of Fact, Conclusions of Law and Decision dated June 18, 2002, the DRB denied Appellant's application for a variance. Without a variance, Appellant may not construct its proposed project. Therefore, the DRB did not reach the merits of Appellant's applications for site plan and conditional use approval. Appellant and the City disagree as to the application of Section 26.002 to Appellant's proposed project and whether Appellant requires a variance. The City DRB has already determined that Section 26.002 prevents the addition or expansion of the building that Appellant proposes and that Appellant requires a variance. These are threshold issues that Appellant has asked the Court to consider in its Statement of Questions dated August 1, 2002. Therefore, these matters are properly before this Court and should be considered by this Court either through motions for summary judgment or a hearing on the merits. It would only be proper to remand these matters to the DRB either if the Court determines that Appellant does not require a variance or if the Court determines that Appellant 3 requires a variance and grants Appellant's variance application. However, the Court must first make these determinations. There is nothing to remand to the DRB at this time. CONCLUSION For the above -stated reasons, the City of South Burlington requests that the Court deny Appellant's Motion to Remand. DATED at Burlington, Vermont this 9th day of September, 2002. son965.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Its attorneys Amanda S. E. Lafferty T. '_EG£ND 9 MAR 18 2uut c1twofRSo. FLAME: SHEWLI -1C N25.00.00-E_�_� EXISTING WOOD SHED 165.00' w y- No a TO BE REMOVED yl a o \ ---1 r---------------------- �� 1 I 61't PROPOSED SE-TBA_ ` I 1 EXISTING BUILDING NON -RETAIL FLOOR I -- I TO BE REMOVED SPACE, TYPICAL —' 1 DUMPSTER SCREENED I BY STOCKADE FENCE ------------------- 1 1 1 PROPANE CYLINDER RACK i J EXISTING CHAIN 1 6't PROPOSED SETBACK LINK FENCE ALONG 1 PROPERTY UNE 0L • ------------------- I I PROPOSED 1 I BUILDING REPLACE EX. BLDG. I 15' 1 I (/ �, \ 15' i I 1 AIR HOSE I © 1 ® ® O O I 1 FUEL �-D. TWO 3l o _.._.. _. .. — . . — .. — .. — .. .. — .. — .. — - �aiP ISLANDS .. sI ® 1©© I ® ®®I I 1 � ---- - ----------- 25 a EXISTING CANOPY-- TO BE REMOVED EXISTING NORTH 1 1 O * m 2' CAL RED MAPLE (TYPICAL) --- 41 M CATCH BASIN - PAY PHONE --� NEW RAISED ISLAND LIMIT WITH NEW LAWN I PROPOSED PARKING SPACE NEW CANOPY RECESSED LIGHT WITH 175 WATT FIXTURE ---------'---'^-- -- ----------- a '----- ------- f EXISTING POLE MOUNTED SHOEBOX I NEW LAWN IN UGHT WITH NEW 175 WATT FIXTURE EXISTING CANOPY RECESSED UGHT, %TO BE REMOVED - - -- - - EXISTING POLE MOUNTED SHOEBOX F� UGHT, TO BE REMOVED CORNER G.M.P. #17 UTILITY POLE IRON BAR SEWER MANHOLE STORM DRAIN MANHOLE SIGN CATCH BASIN MONITOR WELL GAS VALVE WATER VALVE EXISTING SOUTH CATCH BASIN TO BE REFITTED AS OIL/WATER WATER SHUTOFF SEPARATOR FUEL FILLER PIPE WATER LINE GAS LINE BOUNDARY LINE SETBACK LINE EASEMENT UNE EXISTING CURB N25V_0 OO;E _ _ lu=h Tnw —� - 65.00' _36' 1I 5% CONC. SIDEWALK EXISTING SEWER SERVICE — SHELBURNE ROAD, U.S. ROUTE 7 GRAPHIC SCALE; ,a o ,o m ( IN PEEL ) 3 Inch a 10 tt PROPOSED 321t X 24ft. EW CANOPY TO REPLACE CANOPY -- — — 1 O PROVIDE CURB T TO ALLOW RUNOFF EXIST. CATCH BASIN _ _ NEW RAISED ISLAND LIMIT SIGN—, 36 PER :SERVAlrCE OVERHEAD UTIUTY UNE S�XISTING 5---�5-- SEWER MAIN I I I I I I 1 (I G.M.P. #16 UTILITY POLE EXHIBIT 1041 SHELBURNE ROAD Ko PRIVATE E A Z m j BALDWIN AVE W y BALDWIN AVE GREENING AVE a RD MACINTOSH AVE LOCATION MAP NIS COMMERCIAL PARKING REQUIREMENTS CONVIENCE STORE: ONE SPACE FOR EACH 100 SF OF RETAIL AREA GROSS FLOOR AREA = 1,104 SF (23 X 48) RETAIL FLOOR AREA - 804 SF (1,104 SF - 300 SF) PARKING SPACE - B (804 DIVIDED BY 100) COMMERCIAL 1 DIMENSIONAL REQUIREMENTS DESCRIPTION REQUIRED EXISTING PROPOSED TOTAL LOT SIZE 40, 000 SF 16,500 SF 16,500 SF MINIMUM LOT FRONTAGE 200 FEET 165 FEET 165 FEET MINIMUM SETBACKS (CANOPY): FRONT YARD 50 FEET 37 FEET 37 FEET (FROM EXISTING 100' ROW). NORTH SIDE YARD 15 FEET 64 FEET 64 FEET SOUTH SIDE YARD 15 FEET 69 FEET 69 FEET REAR YARD 30 FEET 17 FEET 17 FEET MINIMUM SETBACKS (BUILDING): FRONT YARD 50 FEET 70 FEET 69 FEET (FROM EXISTING 100' ROW) - NORTH SIDE YARD 15 FEET 55 FEET 45 FEET SOUTH SIDE YARD 15 FEET 60 FEET 50 FEET REAR YARD 30 FEET 8 FEET 9 FEET • CONFORMS WITH PROPOSED SHELBURNE ROAD IMPROVEMENT PLAN. COVERAGE CALCULATIONS BUILDING AND CANOPY 1,903 PAVEMENT AND WALKS 9,335 TOTAL COVERAGE 11,238 GREEN SPACE 5,262 60' SHELS. RD FRONT YARD 8,251 CANOPY 387 PAVEMENT AND WALKS 6,101 TOTAL COVERAGE 6, 488 GREEN SPACE 1,763 NOTES: 11.5X 30X 56.6X 68.1Y. 70X 31,9Y, 30% 4.7% 73.9X 78.6Y, 30% 21.0 70% 1,872 11.3X 30Y. 81229 49.9% 10,101 61.2% 70% 6, 399 38.8X 30X 8,251 380 4.6% 51228 63.4% 5,608 68.0% 30% 2.643 32.0% 70% 1. BOUNDARY AND PHYSICAL FEATURES SHOWN ON THIS DRAWING ARE TAKEN FROM A DRAWING FROM A DRAWING BY WILLIAM A. ROSENSTIEN, LS., DATED FEBRUARY 1, 2001, PROJECT NO, 677-21, DRAWING NO. 1. 2. WESCO INC., IS RESPONSIBLE FOR SECURING ALL APPUCABLE STATE AND LOCAL PERMITS. 3. UTILITY INFORMATION SHOWN IS TAKEN FROM A PLAN PREPARED FOR GULF OIL COMPANY, ILLS DATED SEPTEAIBER 24, 1975 AND LAST REVISED FEBRUARY 12, 1976 AND APPROVED BY THE SOUTH BURLINGTON PLANNING COMMISSION ON MARCH 9, 1976. 4. FIELD VERIFY ALL UTILITY, BUILDING & CANOPY DATA SHOWN ON THIS PLAN. 5. ALL LANDSCAPING IS EXISTING, EXCEPTING NEW RAISED ISLAND IN FRONT YARD. PROPOSED LANDSCAPING & LIGHTING: TO BURLNGTON--- 1. PROVIDE TWO 2' CAL. RED MAPLES IN NEW RAISED ISLAND. S 2. PROVIDE AN ADDITIONAL 900 SF OF LAWN (GREEN SPACE) IN NEW RAISED ISLANDS. 3. EXISTING CANOPY UGHT FIXTURES ARE SURFACED MOUNTED WITH DROP LENS 400 WATT MH TO BE REPLACED WITH RECESSED 175 WATT MH FXTURWS (6 TOTAL). 4. EXISTING POLE MOUNTED LIGHT FIXTURES ARE 1000 WATT MERCURY VAPER TO BE REPLACED WITH POLE MOUNTED SHOEBOX 175 WATT MH FIXTURES (2 TOTAL). PROGRESS PRINT SITE PLAN DATE PLOTTED — 3/13/02 _ — WE C � smmINC. CHAMPLAIN FARMS SCOTT MICHAEL lZ TEXACO POST OFFICE BOX 5517 1 B 1041 SHELBURNE ROAD URLINGTON, VERMONT tIRAwNO t OF t SOUTH BURUNGTON, VT tpY-°es-ma° 23 JULY 2001 ARTICLE X11 C®1VMERCA.I, I DISTRICT (Cl) 12.00 Purpose EXHIBIT D E B m A Commercial 1 District is hereby formed in order to encourage the location of general retail and office uses in a manner that serves as or enhances a compact central business area. Other uses that would benefit from nearby access to a central business area including clustered residential development and small industrial employers, may be permitted if they do not interfere with accessibility and continuity of the commercial district. Large -lot retail uses, warehouses, major industrial employers, and incompatible industrial uses shall not be permitted. Planned Unit Developments are encouraged in order to coordinate traffic movements, promote mixed -use developments, provide shared parking opportunities, and to provide a potential location for high - traffic generating commercial uses. Any uses not expressly permitted are prohibited, except those which are allowed as conditional uses. 12.10 Permitted Uses The following uses are permitted in the Commercial 1 District. 12.101 General office 12.102 Medical office 12.103 Retail businesses, not including shopping centers, supermarkets, department stores and discount stores. 12.104 Hotels and motels 12.105 Standard restaurant, excluding fast food. 12.106 Service stations 12.107 Indoor theaters 12.108 Radio and television studios 12.109 Personal Service 12.110 Accessory uses to the uses listed above. 12.20 Conditional Uses The following uses are permitted in the Commercial 1 District as conditional uses subject to approval by the Development Review Board in accordance with the provisions of Section 26.05. 12.201 Taverns, night clubs and private clubs 12.202 Indoor and outdoor recreational facilities .12.203 Printing, bookbinding, publishing and engraving 12.204 Research and testing laboratories 12.205 . Manufacturing and assembly from previously prepared materials and components 12.206 Public utility power generating plants, substations and transmission lines. Review of these facilities shall include an evaluation of safety, aesthetics, noise, and availability of alternate sites. 12.207 Federal, State and municipal facilities 12.208 Day care center 12.209 Rooming and boarding houses 12.210 Bed and breakfasts, tourist homes 12.211 Educational facilities, including offices, classrooms, and support services but excluding - buildings tbr reside—n-tfial use. 12.212 Amusement arcades 12.213 Convenience store 12.214 Bakery and delicatessen restaurants 12.215 Bus terminal 26 12.216 Public and private parking facilities 12.217 Churches, synagogues and houses of worship. 12.218 Accessory uses to the uses listed above. 12.30 Area, Density and Dimensional Requirements In the Commercial 1 District all requirements of Article XXV governing lot size, lot coverage, frontage, and setbacks shall apply. 12.40 Planned Unit Developments Planned Unit Developments (PUD's) are hereby permitted in the C1 District in order to encourage innovation of design and layout, encourage more efficient use of land for commercial development, promote mixed -use development and shared parking opportunities, provide coordinated access to and from commercial developments via public roadways, and maintain service levels on public roadways with a minimum of publicly financed roadway improvements. Accordingly, the modification of the South Burlington Zoning Regulations by the Development Review Board is permitted simultaneously with the approval of a subdivision plat subject to the conditions of Section 26.15 and this section. 12.401 Permitted Uses (a) Those uses set forth in Sections 12.101 - 12.110 and 12.201 - 12.216. (b) Fast food restaurants (e) Banks with drive -through service (d) Supermarkets (e) Department and discount stores (1) Shopping Centers (g) Public parking facilities (h) Multi -family dwellings 12.402 Area, Density and Dimensional Requirements (a) Minimum area - 4 acres (b) Minimum frontage - 350 feet (c) Area and frontage requirements may be met by the consolidation of contiguous lots under separate ownership. Any requirements for shared access and/or parking must be secured by permanent legal agreements. (d) Construction of a new public street may serve as the minimum frontage requirements. (e) Maximum lot coverage shall be the normal maximum for the Cl District. (t) Maximum density for residential uses shall be 7 units per acre. 12.403 Standards for Use of Public Roadways (a) The nearest signalized intersection or those intersections specified by the Development Review Board, shall have an. overall level of service of "D" (as defined in Transportation and Traffic Engineering Handbook, ITE) or better, at the peak street hour, including the anticipated impact of the fully developed proposed PUD. In addition, the level of service of each through movement on the major roadway shall have a LOS "D" or better. 27 (b) Entrances to PUD's shall be separated by a minimum distance of 400 feet either side of a public street. However, entrances to PUD's may be allowed on opposite sides of a public street if substantially aligned with each other. (c) Signalized entrances to PUD's shall be separated from signalized intersections (measured between the near edges of the driveway and intersection) based on the following projected street traffic volumes: Projected Peak Hour Volume Distance (vph per access lane) (feet) below 450 300 450-550 350 550-650 400 650-750 450 above 750 500 (d) The location and design of project access shall address the following criteria: (i) Possible use of secondary streets for access. (ii) Alignment of access points with existing intersections or curb cuts; consolidation of exiting curb cuts. (iii) Provision of access to abutting properties. , (iv) Safety of access location including consideration of sight distance and previous accident patterns. (v) Provision of deceleration, acceleration and/or left -turn stacking lanes. (vi) Provision of adequate curb radii to accommodate anticipated speed and type of vehicles. (e) Coincidence of peak hours of traffic on adjacent arterial/collector street with peak hours of traffic generated by project should be minimized. 12.404 Standards for Internal Circulation and Parking Design of internal circulation patterns and parking areas shall address the following criteria: (a) Distance between access points and parking areas shall be adequate to minimize blockage and to prevent back-ups onto the public street. (b) Parking areas shall provide convenient access to building entrances and shall minimize conflict between pedestrian and vehicle circulation. (c) Screening shall be provided where headlights from vehicles on site may be visible and project parallel to a public street. 12.405 Additional Standards 28 All PUD's shall be serviced by municipal water and sewer. 12.406 Modification of Standards (a) Where limitations of a site may cause unusual hardship in complying with any of the standards provided in Sections 12.403 and 12.404, the Development Review Board may modify such standards as long as the general objectives of the PUD are met. (b) The following requirements of the zoning regulations may be modified in accordance with the conditions and objectives of this section: Section 25.00 (but not maximum density and maximum lot -coverage) and Sections 25.101 through 25.109. 12.50 Automobile Sales Zone (CI -Auto) Automobile sales and related service use shall be permitted as a conditional use in the portions of the C1 District designated on the Zoning Map as CI -Auto. This area is generally bounded to the south by Holmes Road, to the west by the western boundaries of 1185 - 1325 Shelburne Road and Fayette Drive, to the north by the northern boundary of the South Burlington Cemetery Property west of Shelburne Road and the northern boundary of 1030 Shelburne Road east of Shelburne Road, and to the east by the R4 District boundary north of Baldwin Avenue and the centerline of Shelburne Road south of Baldwin Avenue. The purpose of the CI -Auto zone is to recognize the existence of several automobile sales and service facilities in this area of the City and allow for their continued operation and improvement, while not detracting from the overall purpose of the Cl District. 12.501 Permitted uses shall be those uses set forth in Sections 12.101 - 12.110. 12.502 Conditional uses shall be those uses set forth in Sections 12.201 - 12.216, and -automobile sales, including service and sale of related accessories. 12.503 Area, Density and Dimensional Requirements All provisions of Section 12.30 shall apply. 12.504 Planned Unit Developments Planned Unit Developments are hereby permitted in the C 1-Auto zone. All provisions of Section 12.40 shall apply except as provided below: (a) Permitted Uses (i) Those uses set forth in Sections 12.401(a)-(h). (h) Automobile sales, including service and sale of related accessories. 29 ARTICLE XX AREA, DENSITY ]L AND DEVi iNSIONAL REQUIREMENTS S 25.00 Area, Density and Dimensional Requirements The size and dimensions of lots and yards, lot coverage and density for the 1A, SEQ, R1, R2, R4, R7, QCP, C1, C2, I-C, AIR, AIR I, and I-O Districts shall be as indicated in Table 25-1. 25.10 Additional Requirements for all Districts Except as otherwise provided in Section 14.40, the following area, density and dimensional requirements shall apply in all districts, notwithstanding the provisions of Section 25.00. 25.101 For the arterial and collector streets listed below, minimum front yard setbacks shall be 50 feet from the edge of the planned right-of-way or greater if so provided in Section 25.00: EXISTING PLANNED STREET ROW (ft) ROW (ft) Williston Road 66 80 Shelburne Road 100 100 Kennedy Drive 100 100 Dorset St., no. of Swift 66 100 Dorset St., so. of Swift 66 66 Kimball Avenue 100 100 Hinesburg Road 66 80 Airport Drive 66. 80 Patchen Road 66 66 Airport Parkway 66 66 Spear Street 66 66 Swift Street 50 66 Allen Road . 66 66 Shunpike Road, east of 80 80 Kimball Ave. 25.102 Yards abutting a right-of-way designated for a future street shall have a minimum setback equal to the front yard setback requirement for the district in which the lot exists, unless the yards abut any of those streets listed in Section 25.101, in which case the minimum setback shall be 50 feet from the edge of the planned right-of-way. 25.103 New arterial and collector streets, as designated by the Development Review Board, shall be subject to the provisions of Section 25.101 and 25.102 and the minimum lot frontage requirements of Section 25.00. 25.104 Setbacks for any district may overlap the Conservation and Open Space District. Lands within the CO District under the same ownership may be added for computing density, except as provided in Section 26.152(a) of these regulations. 25.105 The front yard, side yard and rear yard setback provisions in Sections 25.00 and 25.10 shall apply to stru es, except or residential ublity sheds which o not necessitate pilings, footings or a foundation attached to the land, or which do not exceed 100 square feet in floor area. The PUD - perimeter setback provisions in Sections 25.00 and 25.10 shall apply to structures, parking areas, and access drives other than those connecting directly to a street. Also, no trees may be cut within the PUD perimeter setback except as may be approved by the Development Review Board during PUD review. 78 Table 25-1 Area, Density, & Dimensional Requirements Minimum Maximum Lot Lot Coverage Minimum Frontage Setbacks Maximum Buildings Minimum On Local On Arterial (2) Residential Parking & Front Side Rear PUD District Use 1 Lot Size Streets or Collector Density (7) Buildings Outside Storage Yard Yard Yard Penr IA ALL 10 acres 300 300 1 u/10acres 10% 20% 75 50 50 SEQ Single Family 12,000 s.f. 85 100 1.2 u/acre 20% 40% 20 10 30 Two Family & 12,000 s.f.(3) 100 125 1.2 u/acre 20% 40% 20 10 30 Daycare . Multi -Family 12,000 sJ.(3) 120 170 1.2 u/acre 20% 40% 20 20 30 Other 1 acre 120 170 N/A 20% 40% 20 25 30 R1 ALL 1 acre (6) 120 170 1 u/acre 15% 25% 50 25 30 50 R2 Single Family 19,000 s.f. 100 100 2 ulacre 20% 40% 30 10 30 50 Two Family & 22,000 s.f. 100 100 2 u/acre 20% 40% 30 10 30 50 Daycare Muff -Family 11,000 s.f. (3) 120 170 2 u/acre 20% 40% 30 Conditional 1 acre (6) 120 170 WA 20% 40% 30 15 30 50 Use R4 Single Family 9,500 s.f 80 100 4 u./acre 20% 40% 30 10 30 50 Two Family & 12,000 s.f. 85 100 4 uJacre 20% 40% 30 10 30 50 Daycare Multi -Family 6,000 s.f. (3) 120 170 4 u./acre 20% 40% 30 15 30 50 Conditional 1 acre (6) 120 170 WA 20% 40% 30 15 30 50 Use R7 Single Family 9,500 s.f 80 100 7 uJacre 20% 40% 30 10 30 30 Two Family & 12,000 s.f. 85 100 7 u./acre 20% 40% 30 10 30 30 Daycare Mufti -Family 6,000 s.f. (3) 120 170 7 uJacre 20% 40% 30 15 30 30 Conditional 40,000 s.f. 120 200 25% 60% 40 15 30 30 Use QCP Single Family 7,500 s.f 80 N/A 5 uJacre 20% 40% 10 5 10 30 Two Family & 12,000 sJ 85 N/A 5 u./acre 20% 40% 10 5 10 30 Daycare Multi -Family 6,000 s.f. (3) 120 NIA 5 uJacre 20% 40% 10 10 10 30 Non- 12,000 s.f. 85 N/A WA 20% 40% 10 10 10 30 residential (6) LN Single Family 12,000 s.f. 80 NIA 3 uJacre 20% 40% 20 10 30 30 Two Family 12,000 s.f. 100 NIA 3 uJacre 20% 40% 20 10 30 30 (3) Other 1 acre 120 NIA N/A 20% 40% 20 10 30 30 C1&C2 Commercial & 40,000 s.f. 120 200 30% 70% 40 15 30 Industrial Multi -Family 6,000 s.f. (3) 120 200 7 uJacre 20% 40% 40 30 I-C, ALL 40,000 s.f. 120 200 30% 70% 40 15 30 AIR & AIR1 1-O ALL 3 acres (4) 200 200 30% 50% 50 35 (1) Are, density and dimensional requirements for permitted or conditional uses that are not specifically listed above shall be equal to those for the first category of the district in which the use is located; e.g., in R2 single-family requirements would apply. (3) Per unit. (4) Average lot size shall be at least 8 acres. (5) Minimum rear yard and side yard setbacks for accessory residential structures shall be 10 feet, except for garages which shall comply with the normal setback requirements. (6) Minimum lot size for agricultural activities shall be 10 acres. 50 79 (7) No parcel of land or portion thereof shall be developed for a greater number of residential units than specified under "Maximum Residential Density". The provisions established under " Mirnimum Lot Size shall not supersede the maximum residential density requirements. 25.106 The Development Review Board may reduce the frontage requirements for lots on the outside curved portions of a cul-de-sac to 50% of the normal frontage requirement if it determines that such reduction would improve lot layout. 25.107 Front Yard Setbacks - Non -Residential -In the case of nonresidential uses, not more than 30% of the area of the required front yard setback shall be used for driveways and parking and the balance shall be suitably landscaped and maintained in good appearance. No portion of the required front yard setback shall be used for storage or for any other purpose except as provided in this section. In addition, a continuous strip 15 feet in width traversed only by driveways and sidewalks, shall be maintained between the street r.o.w. line and the balance of the lot, which strip should be suitably landscaped and maintained in good appearance. This provision shall apply also to yards which abut a right-of-way designated for a future street. 25.108 Buffer strip -Where new nonresidential uses are adjacent to or within 50 feet from the boundary of a Residential District, the required side or rear yard shall be increased to 65 feet and a strip not less than 15 feet shall be maintained as a buffer and shall be suitably landscaped with dense evergreen or other suitable planting as a screen. 25.109 No space which for the purpose of a building or dwelling has been counted or calculated as part of a side yard, front yard, or other open space required by this ordinance may be counted or calculated to satisfy or comply with a yard or space requirement of or for any other building. 25.110 No land development may be permitted on lots which do not have either frontage on a public road or public waters, unless, with the approval of the Development Review Board, such lots have access to a public road or waters by a permanent easement or right-of-way at least 20 feet in width. Approval of permanent easements or rights -of -way shall be in accordance with Section 26.20 25.111 Pre-existing small lots -any lot held in individual and separate and non-affiliated ownership from surrounding properties in existence on the effective date of these regulations, and thereafter, may be developed for any use allowed as a permitted or conditional use in the district in which it is located even though not conforming to minimum lot size requirements, if such lot is not less than 1/8 acre in area with a minimum width or depth dimension of 40 feet. 25.112 No shrubbery shall be erected, maintained, or planted on any lot which obstructs or interferes with traffic visibility. In the case of comer lots, the restricted area shall be the triangular area formed by the lot lines along the streets and a line connecting them at points 30 feet from the intersection. 25.113 Height of Structures Except as otherwise provided under Sections 11.40 (Queen City Park District), 14.403 (Central District), and 7.501(d) (RI-PUD Lakeshore) of these regulations, structures in all districts shall comply with the height standards below: kiTJ cep under-subparagraph-9 c and (g) below, no porno anpitched roo structure shall rise more than 40 feet, and no point of any other structure shall rise more than 35 feet, above the average preconstruction grade adjoining such structure. Maximum allowable building heights are illustrated in Exhibit 25A. 80 ARTICLE XXVI GENERAL PROVISIONS 26.00 Nonconforming Uses and Noncomplying Structures Any lawful building or structure or any lawful use of any building, structure or land existing at the time of the enactment of these regulations may be continued, although such building, structure or use does not conform with the provisions of these regulations, provided the following conditions are met: 26.001 Unsafe structures. Nothing in these regulations shall permit the use of any portion of a building or structure declared unsafe by a proper authority nor the continuation of a condition declared to be a health hazard by an appropriate authority. 26.002 Alterations to Noncomplying Structures. Except as otherwise provided in sub -sections (a) and (b) below, and in Section 11.50 of these regulations, any noncomplying building or structure may be altered, including additions to the building or structure, provided such alteration does not exceed in aggregate cost thirty-five (35) percent for residential properties and twenty-five (25) percent for industrial and commercial property of the fair market value as determined by the City Assessor or by a separate independent appraisal approved by the Zoning Administrator. 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). (a) The thirty-five (35) percent limitation for residential properties described above shall not apply to structures on lots that were in existence prior to February 28, 1974. (b) . In the CD1, CD2, CD3, and CD4 zones, the aggregate cost of such alteration shall not exceed thirty-five (35) percent of the fair market value of the structure being altered. Notwithstanding the foregoing, within the CD I, CD2, CD3 and CD4 zones, a noncomplying building or structure may not be altered by increasing the height or increasing the footprint, or otherwise increasing the square footage of the building or structure. The Development Review Board may approve an alteration that results in an aggregate cost that exceeds thirty-five (35) percent of the fait market value of the structure being altered and/or which involves an increase in the height or the footprint, or otherwise an increase in the square footage of the building or structure, provided all of the following criteria are met: (i) an application for alteration involves an increase in the amount of building square footage located within a designated building envelope, (H) the alteration does not exceed in aggregate cost 100 percent of the fair market value of the structure being altered. Alternatively, if the alteration involves reducing the degree of nonconformity by removing building square footage that is considered nonconforming (i.e., does not meet setback requirements), the alteration shall not exceed 125 percent of the fair market value of the structure being altered, and (M) the application for alteration involves other improvements, such as site improvements, which the Development Review Board finds to be in conformance with the goals of the City Center plan. cAlterations to facades and exterior finishes shall not be subject to the twenty-five percent or thirty-five percent limitations described above. 26.003 Extension of Nonconforming Uses. A nonconforming use shall not be extended or enlarged. The extension of a lawful use to any portion of a noncomplying building or structure which existed prior . to the enactment of these regulations shall not be deemed the extension of a nonconforming use. 86 26.004 Nonconforming Use Changes. No nonconforming use of a building, structure or land shall be changed to another nonconforming use. 26.005 Restoration of Noncomplying Structures. Any noncomplying building or structure damaged or destroyed by fire, collapse, explosion or similar cause may be reconstructed, repaired, or restored if such is completed within one year of the damage or destruction. 26.006 Abandonment of Nonconforming Use. No non -conforming use may be resumed if such use has been abandoned for a period of six (6) months. A nonconforming use shall be considered abandoned when any of the following conditions exist: (a) When the intent of the owner to discontinue the use is apparent. (b) When the characteristic equipment and furnishings have been removed from the premises and have not been replaced by similar equipment and furnishings within six (6) months. (c) When it has been replaced by another use. 26.007 Displacement. No nonconforming use shall be extended to displace a conforming use. 26.008 Construction Approved Prior to Regulations. Nothing contained in these regulations shall require any change in plans, construction or designated use of a structure or building for and the construction of which shall have been diligently pursued within thirty days of the date of such permit and which structure or building shall be completed according to such plans and permit within six months from the date of these regulations. 26.009 Unlawful Use. Nothing in these regulations shall be interpreted as authorization for or approval of the continuance of the use of a structure, building or land in violation of zoning prior to the effective date of these regulations. 26.05 Conditional Uses A use designated as a conditional use in any district may be permitted by the Development Review Board, after public notice and public hearing, according to the following procedures: 26.051 The Development Review Board shall review the proposed use for compliance with all applicable standards as contained in these regulations. This review shall specifically include consideration of the stated purpose of the district in which the proposed use is to be located. 26.052 The Development Review Board shall determine that the proposed use will not adversely affect: (a) The capacity of existing or planned municipal or educational facilities. (b) The essential character of the neighborhood or district in which the property is located, nor the ability to develop adjacent property for appropriate uses. (e) Traffic on roads and highways in the vicinity. (d) Bylaws in effect. (e) Utilization of renewable energy resources. (f) General public health and welfare. 26.053 The Development Review Board may require submission of plans, data, or other information as it deems necessary. 97 26.054 The Development Review Board shall act to approve or disapprove a requested conditional use within 60 days after the final public hearing held under this section, and failure to so act shall be deemed approval. 26.055 In approving a conditional use, the Development Review Board may attach additional requirements as it may deem necessary to implement the provisions of the Vermont Planning and Development Act and these regulations. 26.056 Any alteration, extension or other change to an existing conditional use shall require review under the requirements of this section. 26.057 Technical Review - The Development Review Board may require an applicant for conditional use review to pay for reasonable costs of an independent technical review of the application. The Development Review Board may table review of the application pending receipt of an independent technical review. 26.10 Site Plan Review The approval of a site plan shall be required prior to the issuance of a zoning permit for any new use, change in use, or expansion of use in any district, other than agricultural and forestry uses and one and two-farriily dwellings on single lots. In reviewing site plans, appropriate conditions and safeguards may be imposed with respect to the adequacy of pedestrian and vehicular access, circulation, parking, landscaping and screening, and to protecting the utilization of renewable energy resources. The Development Review Board shall review all site plans except as provided below. Where Development Review Board review is required, the Development Review Board shall act to approve or disapprQve any such site plans within 60 days after the date upon which it first reviews the proposed plan, and failure to so act within said period shall be deemed approval. Copies of the Development Review Board's decision, along with findings of fact, shall be sent to the applicant. The City Planner may act to review and approve or disapprove any site plan application that involves the following: (a) A change of use which involves no exterior changes to the property including modifications to building or lot coverage, parking and circulation, landscaping, and grading. For purposes of this provision, exterior changes do not include modifications to a building's facade. (b) A modification to an approved site plan provided the modification does not result in an increase of more than 10% or 5,000 square feet, whichever is less, in a building's gross floor area or total lot coverage, or a combination thereof. Notwithstanding the above, the City Planner may choose to forego review of any site plan, in which case, the Planner shall submit the site plan application to the Development Review Board for review. Where review by the City Planner is conducted pursuant to (a) or (b) above, the City Planner, or the Planner's designee, shall act to approve or disapprove any such site plans within 60 days after the date upon which- a complete site plan application is submitted, and failure to so act within said period shall be deemed approval. Copies of the City Planner's decision, along with findings -off pplieant. A r summarizing all site plan review decisions made by the City Planner shall be presented at the next Development Review Board meeting following such decision. Any interested party may appeal a decision of the City Planner to the Development Review Board within 15 days of the date the City Planner's is reported to the Development Review Board. Notice of an appeal shall 89 comply with the provisions of 24 VSA, Section 4465. The Development Review Board shall review an appeal in accordance with the standards and procedures applicable to site plan review. 26.101 Applications A site plan application and five sets of plans, drawn to scale shall be submitted and shall include the following information: (a) Features of the existing site including lot dimensional information, survey data and contours (i.e., if required by the Development Review Board), vegetation and natural features, structures, access points, easements and zoning boundaries. Existing structures and access points on adjacent properties, including those directly across a public street may also be required. (b) Proposed improvements including structures, parking areas, access points, sidewalks and other walkways, loading docks, outside storage areas, sewage disposal areas, landscaping, screening and site grading. Building information, including elevations and floor plans, may also be required. (c) Detailed specifications of the exterior lighting, planting and landscaping materials to be used. (d) Period of time in which all site improvements will be completed. (e) Cost estimate of all site improvements. (f) Estimate of daily and peak hour traffic generation, and an estimate of traffic generation during the peak hour of the adjacent street traffic. (g) Lot coverage calculations including building, overall and front yard coverage. (h) Any other information or data that the Development Review Board shall require. 26.102 Review Standards During site plan review, consideration shall be given to and conditions may be imposed on the following items: (a) Pedestrian and vehicular access: including location, number and width of access points, curve radii at access points, acceleration or deceleration lanes on adjacent public streets, sight distance improvements, shared access with adjoining properties, and location of sidewalks and/or other walkways. (b) Circulation: including appropriate aisle widths to accommodate emergency vehicles and vehicular and pedestrian movement patterns, location of parking areas to prevent conflicts with entering and exiting traffic onto a public street, prevention of conflicts between vehicles and pedestrians, and location of loading docks. re' P,- a arldn��ekud� g nainber ng�Paees; and appropriate aisle — widths to access parking spaces. (d) Landscaping and screening: including size, variety, number and location of trees, front yard green space, other buffer yards, and screening of outside storage areas, other unsightly areas and exterior lighting from public streets and/or adjoining properties. 1, 89 (e) Other: including drainage, fire protection, outdoor lighting, aesthetics, and similar site factors that are directly interrelated with the above aspects of site plan review. 26.103 Driveway and Street Requirements The following standards for driveways and their intersections with public streets shall apply during site plan review: (a) Unless specifically approved, there shall be a maximum of one driveway per lot accessing a public street. This provision shall not exclude a shared driveway between two or more lots, or dual driveways where one lane is marked for entering traffic and one lane for exiting traffic. (b) Driveways shall meet the following standards unless a different size is required by the Development Review Board due to special circumstances: Residential - 12 feet minimum width, 36 feet maximum width; Commercial - 20 feet minimum width, 36 feet maximum width. (e) The installation of acceleration and/or deceleration lanes on the adjacent public street may be required if deemed necessary. (d) Driveways shall be located more than 200 feet from signalized street intersections (measured between the near edges of the driveway and intersection). Greater distances shall be encouraged on streets with high traffic volumes (see PUD guidelines in Section 12.403). 26.104 Access to Abutting Properties The reservation of land may be required on any lot for provision of access to abutting properties whenever such access is deemed necessary to reduce curb cuts onto an arterial or collector street, to provide additional access for emergency or other purposes, or to improve general access and circulation in the area. 26.105 Landscaping and Screening Requirements The following standards for landscaping, screening and buffer yards shall apply during site plan review. (a) Minimum planting costs for all site plans shall be according to the following schedule: Minimum Planting Cost Total Building Construction/ (% of Total Building Improvement Cost Construction/Improvement Cost) 0 4250,000 3% Next $250,000 2% Excess over $500,000 1% In evaluating landscaping requirements, some credit may be granted for existing trees or for site improvements other than tree planting as long as the objectives of this section are not reduced. (b) Front Yards - In the case of non-residential uses, the required front yard shall be suitably landscaped and maintained in good appearance. (c) Additional landscaping above and beyond the formula may be required for the purpose of adding a buffer strip along I-89 to properly screen development from the highway. 90 (d). Additional Screening - Additional planting or attractive solid fencing, above the normal landscaping requirement, may be required whenever it determines a particular site warrants such additional landscaping, such as to adequately screen two adjacent dissimilar uses from each other, or to improve the appearance of a property which is covered excessively with pavement or structures or is otherwise insufficiently landscaped. All outdoor lighting or parking from public or commercial uses shall be screened from the view of the ground floor of adjacent residential buildings. Auto service stations shall be screened in the same manner from all abutting properties. Recreational vehicle parking areas shall be screened with evergreen trees and shrubs and such landscaping plan shall be part of the application. (e) Exterior lighting shall be down -casting and properly shielded so as not to cast light beyond the property line. ($) Site Restoration - Grading or seeding may be required to restore the condition of any portion of a site that is disturbed during construction. 26.106 Technical Review The Development Review Board may require an applicant for site plan review to pay for reasonable costs of an independent technical review of the application. The Development Review Board may table review of the application pending receipt of an independent technical review. 26.107 Bonding Requirements The owner or developer shall provide a suitable performance bond, escrow account, or other surety to guarantee the completion of all required landscaping, site restoration, and public improvements. In the case of landscaping, the performance bond, escrow account, or other surety shall be sufficient to guarantee all planting for a period of three years. 26.108 Alteration to an Approved Site Plan Any alteration or change to an approved site plan shall require review and approval under the requirements of this section. 26.15 Planned Unit Developments and Planned Residential (Developments In accordance with the provisions of 24 VSA 4407 (12) and (3), Planned Unit Developments and Planned Residential Developments are hereby permitted to encourage innovation in design and layout, and more efficient use of land. Accordingly, the modification of the South Burlington Zoning Regulations by the Development Review Board is permitted simultaneously with the approval of a subdivision plat subject to the conditions set forth herein. In addition to meeting the requirements of the South Burlington Subdivision regulations, Planned Unit Developments and Planned Residential Developments shall meet the standards below. 26.151 General Standards A Planned Unit Development and Planned Residential Development shall comply with the following standards and conditions: (a) Will not result in undue water or air pollution. In making this determination the Development Review Board shall at least consider (1) the availability and capacity of municipal . 91 28.140 RESIDENTIAL DISTRICT - A zoning district established in these zoning regulations which permits primarily residential uses and shall include the Residential 1, Residential 2, Residential 4, Residential 7, Queen City Park and Southeast Quadrant Districts. 28.141 RESOURCE EXTRACTION - The removal or recovery by any means whatsoever of soil, rock, minerals, mineral substances, or organic substances, other than vegetation, from water or land, on or beneath the surface thereof or beneath the land surface, whether exposed or submerged. 28.142 RESTAURANT, FAST-FOOD - An establishment whose principal business is the sale of foods or beverages, for consumption either on or off the premises, and whose operation is characterized by (1) service of food or beverage in containers or in paper, plastic or other disposable containers, (2) availability of food or beverages for immediate consumption upon short waiting time, and (3) insufficient seating facilities within the restaurant building for the volume of food sold. This definition shall not include delicatessen or bakeries (see definition below). 28.143 RESTAURANT, BAKERY/DELICATESSEN - An establishment typically small in size whose principal business is the sale of sandwiches, baked goods or beverages for consumption primarily off the premises, and whose peak hours of operation typically coincide with the morning rush and lunch-time hours. 28.144 RESTAURANT, STANDARD - An establishment whose principal business is the sale of foods or beverages for consumption within the restaurant building and whose operation is characterized by (1) service by a restaurant employee at the same table or counter at which food or beverage is to be consumed or (2) a cafeteria -type operation. 28.145 RETAIL STORE - A building or portion of a building where the principal activity is the offering of goods and/or services at retail cost. 28.146 ROOMING AND BOARDING HOUSE - Any building where sleeping accommodations with or without meals are provided for compensation for more than one and less than ten persons for longer than a week at a time. 28.146(a) SCHOOL, ELEMENTARY - any school that meets state standards and requirements for elementary education. 28.146(b) SCHOOL, SECONDARY - any school that meets state standards and requirements for secondary education. 28.147 SERVICE STATIONS - Any building, land area, or other premises, or portion thereof, used for the retail dispensing or. sales of vehicular fuels, and may include the servicing and repair of automobiles. 28.148 SHOPPING CENTER - An area of land containing two or more commercial establishments which .is. developed and/or managed as a total entity in terms of combined access, shared parking, etc. and which meets the following criteria: development contains 30,000 or more square feet of gross floor area; predominant use is devoted to retail (including supermarkets and convenience stores), restaurant and/or personal service use, and; may include other uses such as offices, theaters, hotels, and automotive repair facilities. 28.149 SETBACK - The distance from the nearest portion of a structure to any property line including the street right-of-way. For purposes of this section, a structure shall not include: (a) eaves, sills, pilasters, gutters, leaders, cornices, and roof overhangs provided such features do not extend more than two (2) feet from the remainder of the structure, (b) steps to first floor entries provided such features do not extend more than five (5) feet from the remainder of the structure, and (c) ramps for the disabled. 113 I Permit Number 1- �;) - City of South Burlington, Vermont Application for Wastewater Connection PropertyOwner: l�e ;19i2t�rrr� Phone: Address: !1r►.�, Applicant: Phone: Address: Project Location: 7-4& CoBaL_ a®r3e_ Ctic-e_ residential ❑ Commercial ❑ On -Site Septic Person or firm doing the work: (gg_A oo Phone: 8673 -(r22Z Address: Sketch of Sewer Connection (For inspector Use In consideration ofthe granting of this permit, the undersigned agrees: 1. To accept and abide by all provisions of the Sewer Ordinance, as from time to time amended, ofthe City of south Burlington, and all other pertinent ordinances or regulations that may be adopted in the future. 2. To maintain the building sewer at no expense to the City. 3. To notify the Department of Public Works when the sewer is ready for inspection and connection to the public sewer before any portion of the work is covered. 4. To notify the Department of Public Works at least two (2) working days in advance of the requested time for sewer inspection. Call 658-7961 for an appoint eat. Applicant Signature: ' --- — Date:=� inspection Fee: [, Recording Fee: LD , (/U Application: ❑Rejected - roved Code Officer Signature: a;— Date: �— Date of inspection: Inspector's Signature: DEVELOPMENT REVIEW BOARD 21 MAY 2002 PAGE 4 Mr. Dinklage noted receipt of a memo from staff regarding concerns with the quality of the proposed development. Ms. Hoover said the site is appropriate for the uses as is the overall density. Staff has concerns about reserving lots for commercial uses here and also with endorsing further residential development. Ms. Hoover said traffic will be a tricky issue, but she did not feel it was insurmountable. Ms. Hoover said the site layout does not appeal to staff. She suggested: reworking lot configurations, providing a buffer to East Terrace, extending the East Terrace street network to create a grid, mixing unit types (with the lower buildings closer to East Terrace), orienting residences to a street network, having a landscaping and lighting plan that is consistent with the existing neighborhood. Mr. Kupferman said he agreed with all staff recommendations. He felt this parcel allows for master planning. He particularly agreed that all parking should not face East Terrace. Mr. Rabideau said he appreciate the constructive input and embraced the design principles. They will come back with a redesigned project. He noted that Resource Systems is looking at traffic issues. The shift to residential will help address traffic concerns. He added that they will have a lot more Ahorizontal@,development. Mr. Dinklage said the Board would not look favorably on any commercial use that would direct commercial traffic onto East Terrace. Mr. Dinklage also asked the applicant to work with the Rec Path Committee and City Engineer regarding emergency access to Staples Plaza. Mr. Kupferman said he would like to see an effort made to direct traffic through the Staples network. He encouraged the applicant to work with the neighbors. 9. Continued Public Hearing: Application #VR-01-02 of Wesco, Inc., seeking a variance from Section 25.00, Area, Density and Dimensional Requirements, of the South Burlington Zoning Regulations. Request is for permission for a 221x70' convenience store building to: 1) project 21 feet into the 30 foot rear yard setback requirement, and 2) exceed the overall lot coverage maximum of 70% by 4.5% for a total lot coverage of 74.5%, 1041 Shelburne Road, and 10. Continued Public Hearing: Application #CU-01-46 of Wesco, Inc., seeking conditional use approval under Section 26.05, Conditional Uses, of the South Burlington Zoning Regulations. Request is for permission to expand a convenience store with gas sales to 1540 sq. ft., 1041 Shelburne Road, and DEVELOPMENT REVIEW BOARD 21 MAY 2002 PAGE 5 11. Continued site plan application #SP-02-17 of Wesco, Inc., to amend a site plan for a 502 sq. £t. convenience store with gas sales (4 fueling positions) and a 1344 sq. ft. canopy. The amendment consists of tearing down the existing structure and canopy and building a new 1104 sq. ft. convenience store and 768 sq. ft. canopy, 1041 Shelburne Road. The applicant was not present. Mr. Dinklage said they are at the end of the time frame for the site plan. Mr. Kupferman noted that the proposed setback is actually the driveway to the neighboring property. Mr. Cameron said it makes sense to try to do something better with the site, but that is physically not possible with this site. Ms. Quimby moved to deny Application #VR-01-02 of Wesco, Inc., based on the findings of fact and conclusions. Mr. Cameron seconded. Motion passed unanimously. Ms. Quimby moved to deny Application #CU-01-46 and Site Plan Application #SP- 02-17 of Wesco, inc., based on the finding of fact and conclusions. Mr. Cameron seconded. Motion passed unanimously. As there was no further business to come before the Board, the meeting was adjourned at 8:55 p.m. Cle r L '7- o 2 Date 0 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI K PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE (-ALSO ADMITTED IN N.Y.) August 20, 2002 Jackie Stevens, Clerk Vermont Environmental Court 255 North Main Street, Suite 2 Barre, VT 05641 Re: Wesco, Inc. Appeals (1041 Shelburne Road) Docket No.'s 152-7-02 Vtec and 153-7-02 Vtec Dear Jackie: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Enclosed for filing please find a Stipulated Order Appellant's counsel and I have agreed upon in connection with the above -referenced matter. Please give me a call if you have any questions. Thank you. Sincerely, Amanda S. E. Lafferty ASEL/jp Enclosure CC: Raymond J. Belair '_� William E. Simendinger, Esq. Son4919.cor STATE OF VERMONT ENVIRONMENTAL COURT IN RE: WESCO, INC. (1041 Shelburne Road) ) DOCKET NO.'s 152-7-02 Vtec and 153-7-02 Vtec Appeal of South Burlington Development Review Board STIPULATED ORDER Now Comes the City of South Burlington and Wesco, Inc and stipulates the following discovery schedule. I . Wesco, Inc. to file Motion to Remand on or before August 27, 2002. 2. 3. 4. Agreed has to Wes�S, /Inc. City of South Burlington to respond to Motion to Remand on or before September 10, 2002. Wesco, Inc. to file Summary Judgment 45 day after decision on Motion to Remand, if matter is not remanded. City of Soi)th Burlington to respond as provided in the rules. Sarvak and ime dinger 32 San Remo Drive South Burlington, VT 05403 So Ordered By: Environmental Court Judge City of South Burlington By: Cy41vio, A. �v - J Amanda S. E. Lafferty, E . ` Stitzel, Page & Fletcher, P.C. 171 Battery Street PO Box 1507 Burlington, VT 05402-1507 C\Documents and SettingsUelton\My Documents\2002docs\B30rder.doc o'3ladbZ -1- CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTI I BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 August 6, 2002 Marc Heath, Esq. Downs, Rachlin & Martin, PLLC PO Box 190 Burlington, Vermont 05402-0190 Re: Wesco, Inc. Appeal Docket No. 153-7-02 Vtec Dear Mr. Heath: Pursuant to V.R.C.P. (e), I am required to provide you with a list of all interested parties who appeared and were heard at the Development Review Board hearings on this matter. Please be advised that no one appeared or spoke at the public hearings held relative to this matter. Sincerely, Raymond J. Belair Administrative Officer CC: Amanda S.E. Lafferty, Esq. Vermont Environmental Court CITY OF SOUTH BURLINGTON DEPARTMEW Oi� PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 August 6, 2002 Marc Heath, Esq. Downs, Rachlin & Martin, PLLC PO Box 190 Burlington, Vermont 05402-0190 Re: Wesco, Inc. Appeal Docket No. 152-7-02 Vtec Dear Mr. Heath: Pursuant to V.R.C.P. 76 (e), I am required to provide you with a list of all interested parties who appeared and were heard at the Development Review Board hearings on this matter. Please be advised that no one appeared or spoke at the public hearings held relative to this matter. Sincerely,.' Raymond J. Belair Administrative Officer CC: Amanda S.E. Lafferty, Esq. Vermont Environmental Court STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 AMANDA S.E. LAFFERTY PATTI R. PAGE" E-MAIL(FIRM2555@FIRMSPF.COM) EDWARD G. ADRIAN ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE (-ALSO ADNU=D IN N.Y.) July 15, 2002 Jackie Stevens, Clerk Vermont Environmental Court 255 North Main Street, Suite 2 Barre, VT 05641 Re: Wesco, Inc. Appeals 1041 Shelburne Road Dear Jackie: Enclosed please find the following documents: 1. Original Notice of Appeal of Development Review Board decision #VR-01-20; 2. Original Notice of Appeal of Development Review Board decisions #SP-01-17 and #CU-01-46; 3. Two (2) checks made payable to the Vermont Environmental Court for $150 each; 4. Copy of transmittal letter dated July 9, 2002 from Marc Heath, Esq.; and 5. Two Entries of Appearance Please give me a call if you have any questions. Thank you. Sincerely, c, 4 Amanda S. E. Lafferty ASEL/jp Enclosures CC: Raymond J. Belair (w/entries of appearance only Marc Heath, Esq. (w/entries of appearance only) William E. Simendinger, Esq. (w/entries of appearance only) son4881.cor STATE OF VERMONT ENVIRONMENTAL COURT IN RE: WESCO, INC. ) DOCKET NO. 1041 SHELBURNE ROAD ) Applications ) #SP-01-17 and ) #CU-01-46 ) ENTRY OF APPEARANCE NOW COMES AMANDA S. E. LAFFERTY, of the firm Stitzel, Page & Fletcher, P.C., and hereby enters her appearance in the above - referenced matter by and on behalf of the City of South Burlington. Dated at Burlington, Vermont, this 15th day of July, 2002. son943.1iteoa STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 STITZEL, PAGE & FLETCHER, P.C. By: U vvti Amanda S. E. Lafferty STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) WESCO, INC. ) DOCKET NO. 1041 SHELBURNE ROAD ) Application #VR-01-20 ) ENTRY OF APPEARANCE NOW COMES AMANDA S. E. LAFFERTY, of the firm Stitzel, Page & Fletcher, P.C., and hereby enters her appearance in the above - referenced matter by and on behalf of the City of South Burlington. Dated at Burlington, Vermont, this 15th day of July, 2002. son944.1iteoa STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P-O BOX 1507 BURLINGTON, VERMONT 05402-1507 STITZEL, PAGE & FLETCHER, P.C. By. �Ui.�w�✓lU'� �� Amanda S. E. Laffer jj CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 July 11, 2002 Amanda S.E. Lafferty, Esq. Stitzel Page & Fletcher, P.C. PO Box 1507 Burlington, Vermont 05402-1507 Re: Wesco, Inc. Appeals — 1041 Shelburne Road Dear Amanda: In regards to the above appeals, enclosed please find the following: 1. Original Notice of Appeal of Development Review Board decision #VR-01- 20. 2. Original Notice of Appeal of Development Review Board decisions #SP-01- 17 and #CU-01-46. 3. Two (2) checks made payable to the Vermont Environmental Court for $150 each. 4. Copy of transmittal letter dated July 9, 2002 from Marc Heath, Esq. Please forward these appeals to the Vermont Environmental Court and enter an appearance on behalf of the City. Sincerely, Raymond.J' Belair Administrative Officer Encl./td )OwNs RACHLIN & MARTIN PLLC STATE OF VERMONT ENVIRONMENTAL LAW COURT IN RE: WESCO, INC. ) DOCKET NO. (1041 Shelburne Road) ) Appeal of So. Burlington Development Review Board NOTICE OF APPEAL Pursuant to 24 V.S.A. §§ 4471 and 4475, and Rule 76 of the Vermont Rules of Civil Procedure, notice is hereby given that Wesco, Inc. ("Wesco"), by and through their attorneys, Downs Rachlin Martin PLLC and Sarvak and Simendinger, appeals to the Vermont Environmental Court the June 18, 2002 decision of the South Burlington Development Review Board on VR-01-02, a copy of which is attached, as follows: owners; and 1. Wesco, Inc., 32 San Remo Drive, South Burlington, VT 05403 are the property 2. The property at issue is at 1041 Shelburne Road in South Burlington, Vermont: 3. Regulations applicable to the appeal are the South Burlington zoning regulations and Vermont Statutes. WHEREFORE, the Court should reverse the decision of the Development Review Board and grant permits for the project. Dated at Burlington, Vermont this day of July, 2002. BTV/219740.1 Wesco, By: Marc B. Heath, Esq. Downs Rachlin Martin PLLC P.O. Box 190 199 Main Street Burlington, Vermont 05402-0190 (802) 863-2375 William E. Simendinger, Esq. Sarvak and Simendinger 32 San Remo Drive South Burlington, Vermont 05403 BURLINGTON VT BRATTLEBORO VT LITTLETON NH iT ,1014WRITV VT )oWNs RACHLIN & MARTIN PLLC STATE OF VERMONT ENVIRONMENTAL LAW COURT IN RE: WESCO, INC. ) DOCKET NO. (1041 Shelburne Road) ) Appeal of So. Burlington Development Review Board NOTICE OF APPEAL Pursuant to 24 V.S.A. §§ 4471 and 4475, and Rule 76 of the Vermont Rules of Civil Procedure, notice is hereby given that Wesco, Inc. ("Wesco"), by and through their attorneys, Downs Rachlin Martin PLLC and Sarvak and Simendinger, appeals to the Vermont Environmental Court the June 18, 2002 decision of the South Burlington Development Review Board on SP-02-17 and CU-01-46, a copy of which is attached, as follows: owners; and 1. Wesco, Inc., 32 San Remo Drive, South Burlington, VT 05403 are the property 2. The property at issue is at 1041 Shelburne Road in South Burlington, Vermont; 3. Regulations applicable to the appeal are the South Burlington zoning regulations and Vermont Statutes. WHEREFORE, the Court should reverse the decision of the Development Review Board and grant permits for the project. Dated at Burlington, Vermont this day of July, 2002. BTV/219746.1 Wesco, 1111 By: Marc B. Heath, Esq. Downs Rachlin Martin PLLC P.O. Box 190 199 Main Street Burlington, Vermont 05402-0190 (802) 863-2375 William E. Simendinger, Esq. Sarvak and Simendinger 32 San Remo Drive South Burlington, Vermont 05403 BURLINGTON VT BRATTLEBORO VT LITTLETON NH )T. JOHNSBIIRY VT PAY DOWNS RACHLIN MARTIN PLLC A T T 0 R N E Y S A T L A W 199 MAIN STREET• PO Box 190 • BURLINGTON VT 05402 0190 +1 802 8632375 • FAX +1 802 8627512 TO THE ORDER OF THE HOWARD BANK, N.A. BURLINGTON, VERMONT DATE INVOICE AMOUNT 58-3/116 15747 Y1D r AUTH. SIG. 11'0 IS 7 Ll 7119 1:0 1 16000 3 31: II' 60 Z 5 6 LOP="' r— ; P, DOLLARS $1'7a'' UUVVINO RACHLIN MARTIN PLLC CORPORATE ACCOUNT DOWNS RACHLIN MARTIN PLLC A T T O R N E Y S A T L A W 199 MAIN STREET o PO Box 190 • BURLINGTON VT 05402 0190 +1 802 8632375 • FAX +1 802 862 7512 DATE INVOICE AMOUNT 58-3/ 116 153748 DOLLARS $ {. UUVVNS KAI;HLIN IVIAK I IN VLL: TO 1 w CORPORATE ACCOUNT THE ORDER r " �— ' ���+ �iY u L '.-' OF THE HOWARD BANK, N.A. �-.:'__..__ �(1 ��.LK �. 1 � .� -/U� BURLINGTON, VERMONT AUTH. SIG. fie 1 5 7 4181118 1:0 1 16000 3 31: 118 G0 1 5 6 10 611' E T DKM DOWNS RACHLIN MARTIN PLLC MARL HEATH mheath@drm.com 802-863-2375 July 9, 2002 Certified Mail, Return Receipt Requested Development Review Board Secretary Planning and Zoning Office City of South Burlington 575 Dorset Street South Burlington, Vermont 05403 Re: 1041 Shelburne Road, South Burlington, Vermont VR-01-02, CU-01-46 & SP-02-17 DRM File No. 07356-00013 Dear Secretary: Enclosed please find two checks for $150.00 and two Notices of Appeal with regard to the above -referenced matter. Please feel free to contact me if you have any questions. Sincerely, CGS �- arc 1 eath Enclosures cc: William E. Simendinger, Esq. COURTHOUSE PLAZA ■ 199 MAIN STREET ■ PO BOX 190 ■ BURLINGTON, VT ■ 05402-0190 ■ T:+1.802.863.2375 ■ F:+i.802.862.7512 BURLINGTON, VT ■ ST. JOHNSBURY, VT■ BRATTLEBORO, VT■ MONTPELIER, VT■ LITTLETON, NH ■ WWW.DRM.COM �� D , F11 rpSTATE OF VERMONT #V R-o1-oz COUNTY OF CHITTENDEN CITY OF SOUTH BURLINGTON Re: APPLICATION OF WESCO, INC. This matter came before the South Burlington Development Review Board pursuant to the provisions of 24 VSA Section 4468 on application of Wesco, Inc., hereinafter "Appellant" for a project consisting of amending a plan for a 502 sq. ft. convenience store with gas sales (4 fueling positions) and a 1344 sq. ft. canopy. The amendment consists of increasing the size of the convenience store by 1038 sq. ft. for a total of 1540 sq. ft. Appellant requests variances to: 1) allow the expanded building to project 21 feet into the required 30 foot rear yard setback area, and z) exceed the overall lot coverage maximum of 70% by 4.5% for a total lot coverage of 74.5oib, 1041 Shelburne Road, as depicted on a plan entitled, "Site Plan Wesco Inc. Champlain Farms Texaco 1041 Shelburne Road, South Burlington, VT" prepared by SMM Environmental Engineering, dated 7/23/01. The Appellant was represented at the public hearing held on 1/8/02 relative to this application. Based on evidence submitted at the hearing and as part of this application, the South Burlington Development Board hereby renders the following decision on this application: FINDINGS OF FACT i. This project consists of amending a plan for a 502 sq. ft. convenience store with gas sales (4 fueling positions) and a 1344 sq. ft. canopy. The amendment consists of increasing the size of the convenience store by 1038 sq. ft. for a total Of 1540 sq. ft. Appellant requests variances to: 1) allow the expanded building to project 21 feet into the required 30 foot rear yard setback area, and z) exceed the overall lot coverage maximum of 7o0/o by 4.5% for a total lot coverage of 74.5°%o• z. This property located at 1041 Shelburne Road lies within the CI District. It is bounded on the west by a restaurant parking lot, on the south by a cemetery, on the north by a restaurant, and on the east by Shelburne Road. 3. This property has 165 feet of frontage along Shelburne Road and has a depth of too feet for a lot size of 16,500 sq. ft. 4. This property is developed with a 502 sq. ft. convenience store with gas sales (4 fueling positions) and a 1344 sq. ft. canopy over the pump islands. 5. The current overall coverage is 68.Io/. (maximum allowed is 70%). The proposal is to increase the overall coverage by 4.50i1 more than permitted. 6. The convenience store and canopy are non -complying structures because they currently do not meet the front and rear setback requirements. 7. The owner of record of this property is Wesco, Inc. Page #z CONCLUSIONS OF LAW Setback Variance i. There are no unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to this particular property. The unnecessary hardship claimed by the Appellant is not due to such conditions, but by the circumstances or conditions generally created by the provisions of the zoning regulations in the neighborhood or district in which the property is located. z. The authorization of a variance is not necessary to enable the reasonable use of the property. The property is currently being used as a convenience store with gas sales which is a reasonable use of the property. 3. The unnecessary hardship has been created by the Appellant by desire to expand the non -complying structure on the property. 4. The authorization of the variance would alter the essential character of the neighborhood or district in which the property is located. It would result in over i,000 sq. £t. of additional building area located within the rear yard setback area in an area where most buildings are not located within the rear yard setback area. 5. The authorization of the variance would not represent the minimum variance that would afford relief. Appellant has a reasonable use of the property and does not require relief. The authorization of the variance would not represent the least deviation possible from the zoning regulations since the use already exists in a non -complying structure. Coverage Variance 6. There are no unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property that would necessitate the need to increase overall coverage beyond the current coverage of 68.a%. 7. There is a possibility that the property can be developed in strict conformity with the provisions of the zoning regulations because the property is currently in strict conformance with the overall coverage requirement. The authorization of a variance is therefore not necessary to enable the reasonable use of the property. 8. The unnecessary hardship has been created by the Appellant's desire to increase coverage beyond the limitations allowed. 9. The authorization of the variance would alter the essential character of the neighborhood or district in which the property is located. The authorization to exceed overall coverage limitations on this property would not be in keeping Page #3 with the character of the area which is characterized by properties in conformance with the overall coverage limitations. io. The authorization of the variance will not represent the minimum variance that will afford relief. Appellant has a reasonable use of the property, and does not require relief. The authorization of the variance would not represent the least deviation possible from the zoning regulations since Appellant already has a reasonable use of the property. DECISION Based on the above Findings of Fact and Conclusions of Law, the South Burlington Development Review Board hereby denies the Appellant's request for variances to: i) allow the expanded building to project 21 feet in the requested 30 feet area yard area, and z) exceed the overall lot coverage maximum of 7o-ie by 4.5% for a total lot coverage of 74.50ia, 1041 Williston Road. Dated this day of January, 2002 at South Burlington, Vermont 05403. Chairman/Clerk South Burlington Development Review Board Date Please note: You have the right to appeal this decision to the Vermont Environmental Court, pursuant to 24 V.S.A. 4471 and V.R.C.P. 76, in writing, within 3o days of the date this decision is issued. The fee is $i5o.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 V.S.A. 4472 (d) (exclusivity of remedy finality). DEVELOPMENT REVIEW BOARD 2 APRIL 2002 PAGE 6 235 sq. ft. control building, and 3) a 1500 gallon capacity underground pump station, 403 Queen City Park Road: Mr. Pratt said the site is 11.5 acres on Queen City Park Road They are proposing a pair of freeze dry beds to dewater and prepare for disposal of residuals. Natural freezing breaks down chemicals and gets water out. They will landfill what is left after freeze-drying. A land swap was done with the Humane Society and Baird Center and GMP. Mr. Pratt showed the land owned by the applicant as well as Class 2 and 3 wetlands. They have applications for Act 250 and wetlands ecologist. They are asking to use 4200 sq. ft. of the Class 2 buffer zone. They will replace the area with a vegetated landscape slope. They don't have a final landscape plan, but Mr. Pratt gave members a preliminary plan. Ms. Quimby asked if there will be any odor. Mr. Pratt said no. They have piloted the program in a small area and had no odors and no complaints. Mr. Belair asked what the residuals are composed of. Mr. Pratt said what you filter out of the lake water. They are a bit slimy because some alum is added. Ms. Quimby moved to approve Application 4CU-02-03 and Site Plan application 4SP-02-15 of Champlain Water District subject to the stipulations in the draft motion of 2 April 2002. Mr. Kupferman seconded. Motion passed unanimously. 12. Continued Public Hearing: Application #VR-01-02 of Wesco, Inc., seeking a variance from Section 25.00, Area, Density and Dimensional Requirements, of the South Burlington Zoning Regulations. Request is for permission for a 1104 sq. ft. convenience store building to: 1) project 21 feet into the 30 foot rear yard setback requirement and 2) to exceed the overall lot coverage maximum of 70% by 4.5% for a toal lot coverage of 74.5%, 1041 Shelburne Road, and DEVELOPMENT REVIEW BOARD 2 APRIL 2002 PAGE 7 13. Site plan application #SP-02-17 of Wesco, Inc., to amend a site plan for a 502 sq. ft. convenience store with gas sales (4 fueling positions) and a 1344 sq. ft. canopy. The amendment consists of tearing down the existing structure and canopy and building a new 1104 sq. ft. convenience store and 768 sq. ft. canopy,1041 Shelburne Road, and 14. Continued Public Hearing: Application #CU-01-46 of Wesco, Inc., seeking conditional use approval under Section 26.05 , Conditional Uses, of the South Burlington Zoning Regulations. Request is for permission to expand a convenience store with gas sales to 1104 sq. ft. , 1041 Shelburne Road: Mr. Simindinger reviewed the history of the requests. He said the goal is to make the site more attractive and noted the proposal won't encroach any further into the setback area. They would eliminate half of the canopy that does not meet the setback. Mr. Simindinger said it is their belief that the do not need any variances. Mr. Cameron asked the size of the existing building. Mr. Simindinger said about 800 sq. ft., not counting the canopy. The new building would be 100 sq. ft. There would be 2 pumps, 4 fueling positions. Mr. Cameron asked if there is any precedent for doing this. Mr. Belair said none. Mr. Boucher noted that the Board required the new convenience store with gas pumps on the former Wesson's Diner site to build within their setbacks. Mr. Simindinger said Bournes was allowed to do this. Mr. Belair said Bournes had repair bays that were converted to a convenience store. In this case, the applicant would be tearing down a building to build a larger one. Bournes did not change the footprint of their building. Mr. Boucher said in his opinion the Board has no ability to grant a variance in this instance. Ms. Quimby and Mr. Kupferman agreed. Mr. Cameron said it is hard to know what would be the best use of that property. He said he would be inclined to abstain. Mr. Belair said since 4 votes are needed, there could be no decision if Mr. Cameron abstains. Mr. Kupferman moved to continue Application #VR-01-02 of Wesco, Inc., until 21 May 2002. Ms. Quimby seconded. Motion passed unanimously. l l DEVELOPMENT REVIEW BOARD 2 APRIL 2002 PAGE 8 Ms. Quimby moved to continue Site Plan Application SP-02-17 and Application #CU- 01-46 of Wesco, Incl, to 21 May 2002. Mr. Kupferman seconded. Motion passed unanimously. As there was no further business to come before the Board, the meeting was adjourned at 10:15 p.m. Date ('ITY OF SOUTH BURLINGTO T DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 May 16, 2002 David Simendinger Wesco, Inc. 32San Remo Drive S. Burlington, VT 05403 Re: 1041 Shelburne Road Dear Mr. Simendinger: Enclosed is the agenda for next Tuesday's Development Review Board meeting and my comments to the Board. Please be sure that someone is at the meeting on Tuesday, May Zi, zooz at 7:30 p.m. at the City Hall Conference Room, 575 Dorset Street. Sincerely, Raymond J. Belair Administrative Officer Encl./td nMM� �a r #SP-oI-81 #CU-oI-46 O STATE OF VERMONT COUNTY OF CHITTENDEN CITY OF SOUTH BURLINGTON Re: APPLICATION OF WESCO, INC. This matter came before the South Burlington Development Review Board pursuant to the provisions of Sections 26.o5 and 26.io of the South Burlington Zoning Regulations on application of Wesco, Inc., hereinafter "Applicant" for a project consisting of amending a plan for a 5o2 sq. ft. convenience store with gas sales (4 fueling positions) and a 1344 sq. ft. canopy. The amendment consists of increasing the size of the convenience store by 1038 sq. ft. for a total of 1540 sq. ft., I041 Shelburne Road, as depicted on a plan entitled, "Site Plan Wesco Inc. Champlain Farms Texaco I041 Shelburne Road, South Burlington, VT" prepared by SMM Environmental Engineering, dated 7/23/01. The Applicant was represented at the public hearing held on i/8/02 relative to this application. Based on evidence submitted at the hearing and as part of this application, the South Burlington Development Review Board hereby renders the following decision on this application: FINDINGS OF FACT i. This project consists of amending a plan for a 5o2 sq. ft. convenience store with gas sales (4 fueling positions) and a 1344 sq. ft. canopy. The amendment consists of increasing the size of the convenience store by 1038 sq. ft. for a total Of 1540 sq. ft. The owner of record of this property is Wesco, Inc. z. This property located at 1041 Shelburne Road lies within the CI District. It is bounded on the west by a restaurant parking lot, on the south by a cemetery, on the north by a restaurant, and on the east by Shelburne Road. 3. This property has 165 feet of frontage along Shelburne Road and has a depth of ioo feet for a lot size of 16,5oo sq. ft. 4. This property is developed with a 5oz sq. ft. convenience store with gas sales (4 fueling positions) and a 1344 sq. canopy over the pump islands. 5. This convenience store building has a 70 ft. front yard setback, a 7 ft. rear yard setback and side yard setbacks of 61 ft. and 55 ft. Applicant proposes to amend the setbacks in the following manner: the front yard setback will be 69 ft., the rear yard setback will be 9 ft. and the side yard setbacks will be 5o ft. and 45 ft. 6. The canopy has a 37 ft. front yard setback, an 18 ft. rear yard setback and side yard setbacks of 64 ft. and 69 ft. The canopy setbacks will not change. 7. The current building coverage is I1.5% (maximum allowed is 30%), the current front yard coverage is 78.6% (maximum allowed is 300101 and the current overall coverage is 68.i0/o (maximum allowed is 70%). Applicant proposes to increase the building coverage to 15.3% and the overall coverage to 74.I%. 8. Access is currently provided by two (z) curb cuts. The northerly curb cut is 42 feet in width and the southerly curb cut is 40 feet in width (measured at the property line). Both curb cuts are proposed to be reduced in width to 36 feet. Access is also provided to a parking area for an adjacent restaurant to the west. 9. Twelve (U) parking spaces are proposed on the plan. io. Applicant does not request additional sewer allocation. ii. The dumpster storage area is screened. Iz. New exterior light fixtures are proposed. Details of these new fixtures have not been provided, nor has a point by point lighting plan. 13. This property is located in Traffic Overlay Zone z. ITE estimates that the proposed site plan and conditional use will generate 76.88 vte's. CONCLUSIONS 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: i. The proposed expansion of the existing non -complying structure into the rear yard setback and z. The resulting increase of the overall lot coverage to 74.10%o. By Decision dated January ,zooz, (Application #VR-of-oz), the South Burlington Development Review Board denied Applicant's request for such variances. Therefore, the Board does not reach the merits of Applicant's request for conditional use and site plan approval. DECISION Based on the above Findings of Fact and Conclusions of Law, the South Burlington Development Review Board hereby Denies the Applicant's request for conditional use and site plan approval for a proposal to expand a structure used for convenience store with gas sales from 5o2 sq. ft- to 1504 sq. ft. Chair or Clerk South Burlington Development Review Board Date Please note: You have the right to appeal this decision to the Vermont Environmental Court, pursuant to 24 V.S.A. 4471 and V.R.C.P. 76, in writing, within 3o days of the date this decision is issued. The fee is $i5o.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 V.S.A. 4472 (d) (exclusivity of remedy; finality). CITE' OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 March 28, 2002 David Simendinger Wesco, Inc. 32 San Remo Drive S. Burlington, VT 05403 Re: I041 Shelburne Road Dear Mr. Simendinger: Enclosed is the agenda for next Tuesday's Development Review Board meeting and my comments to the Board. Please be sure that someone is at the meeting on Tuesday, April 2, 2002 at 7:30 p.m. at the City Hall Conference Room, 575 Dorset Street. w Sincereli , Raymond J. Belair Administrative Officer Encl./td RE SEWED �. CITY OF SOUTH BURLINGTON MW49AWirOF PLAIUITING & ZONING 575 DORSET STREET SOL'T 3IJRLIl�iC011, VERMOI's�' 05403 City ,j Of �O - d '(802) 846-4106 FAX (802) 846-4101 Permit Number SP APPLICATION FOR SITE PLAN REVIEW All information requested on this application must be completed in full. Failure to provide the requested information either on this application form or on the site plan will result in your application being rejected and a delay in the review before the Development Review Board. 1) OWNER OF RECORD (Name as shown on deed, mailing address, phone and fax #) Wesco, Inc., PO Box 2287, So. Burlington, VT 05407 864-SlSS (fax) 864-6234 2} LOCATION OF LAST RECORDED DEED (Book and page #) Book 179 n a g es 19 9 - 2 n n 3) APPLICANT (Name, mailing address, phone and fax#) Wesco, Inc., 32 San Remo Drive So. Burlington, VT 05403 864-SlS5 ext. 233 (fax) 864-6234 4) CONTACT PERSON (Name, mailing address, phone and fax #) David S i m en d i n a er same 5) PROJECT STREET ADDRESS: 1041 Shelburne Road o) TAX PARCEL ID # (can be obtained at Assessor's Office) 15 a n - gj n 43 r 7) PROJECT DESCRIPTION a) Existing Uses on Property (including description and size of each separate use) gas station and convenience store b) Proposed Uses on property (include description and size of each new use and existing uses to remain) gas station and convenience store in a 23 x 48 building c) Total building square footage on property (proposed buildings and existing buildings to remain) 1104 square feet building, other existing structures remain d) Height of building & number of floors (proposed buildings and existing buildings to remain, specify if basement and mezzanine) 20 feet in height, one story e) Number of residential units (if applicable, new units and existing units to remain) N / A r) Number of employees & company vehicles (existing and proposed, note office versus non -office employees) g) Other (list any other information pertinent to this application not specifically requested above, please note if Overlay Districts are applicable): Traffic Overlay oZ g) LOT COVERAGE a.) Building: Existing--11 . 5 % Proposed 11 . 3 % b) Overall (building, parldng, outside storage, etc) Existing 6 8 % Proposed 61 % c) Front yard (along each street) Existing 7 ) % Proposed 9) COST ESTII`igATES a) Building (including interior renovations): $ 60,000. 00 b) Landscaping: $ S,000. 00 c) Other site improvements (please list with cost): 10) ESTI1b1ATED TRAFFIC a) Average daily traffic for entire property (in and out): 2170 b) A.M. Pear hour for entire property (in and out): 69 c) P. Vl. Peak hour for entire property (Ira and gout): 11) PEAK DOUR S OF ,OPERATION: 5-6 pm 12) PEAK DAYS OF OPERATION: F r i cj ay 68 % 13) ESTIMATED PROJECT CONIPLETION DATE: September 1 2 0 n 2 14) STE PLA1X AND fEE A site plan shall be submitted which shows the information listed on Exhibit A attached. Five (5) regular size copies and one reduced copy (11" x 17") of the site plan must be submitted. A site plan application fee shall be paid to the City at the time of submitting the site plan application (see Exhibit A). 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. Wesco, Inc. By: President nc. Do not write below this line DATE OF SUBMISSION: U^� REVIEW AUTHORITY: Development Review Board ❑ Director, Planning & Zoning I have reviewed this site plan application and find it to be: Complete Director ❑ Incomplete /vC anning & Zoning or Designee f 61 (A -- Date CITY OF SOUTH BURRLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 March 28, zooz Jaques Burton E. Revocable Living Trust Sig Shore Acres Drive Colchester, Vermont 05446 Dear Property Owner: Enclosed is a copy of a public notice published in the Burlington Free Press. It includes an application for development on property located near your property. This is being sent to you to make you aware that a public hearing is being held regarding the proposed development. If you would like to know more about the proposed development, you may call this office at 846-4io6 or attend the schedule public hearing. Sincerely, J ,C L iyrn d J. Belair Administrative Officer Encl./td CITY OR SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 March 28, 2002 Webster Martin, Inc. PO Box 2246 S. Burlington, VT 05403 Dear Property Owner: Enclosed is a copy of a public notice published in the Burlington Free Press. It includes an application for development on property located near your property. This is being sent to you to make you aware that a public hearing is being held regarding the proposed development. If you would like to know more about the proposed development, you may call this office at 846-41o6 or attend the schedule public hearing. Sincerely, Raymond J. Belair Administrative Officer Encl./td CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 March 28, zooz Investors Corp. of Vermont 30 Main Street, Suite 401 Burlington, VT 05401 Dear Property Owner: Enclosed is a copy of a public notice published in the Burlington Free Press. It includes an application for development on property located near your property. This is being sent to you to make you aware that a public hearing is being held regarding the proposed development. If you would like to know more about the proposed development, you may call this office at 846-4io6 or attend the schedule public hearing. Sincerely, i Z/Y�MLJ. Belair Administrative Officer Encl./td CITY OF SOUTH BUR,LINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 March z8, zooz Walter Simendinger Timberlake Assoc. PO Box zz87 S. Burlington, VT 05403 Dear Property Owner: Enclosed is a copy of a public notice published in the Burlington Free Press. It includes an application for development on property located near your property. This is being sent to you to make you aware that a public hearing is being held regarding the proposed development. If you would like to know more about the proposed development, you may call this office at 846-41o6 or attend the schedule public hearing. Sincerely, Raymond J. Belair Administrative Officer Encl./td CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 March 28, zooz Maynard Auto Supply Lee Maynard PO Box 9o8 Burlington, VT 05402 Dear Property Owner: Enclosed is a copy of a public notice published in the Burlington Free Press. It includes an application for development on property located near your property. This is being sent to you to make you aware that a public hearing is being held regarding the proposed development. If you would like to know more about the proposed development, you may call this office at 846-41o6 or attend the schedule public hearing. Sincerely, r J /. Raymond J. Belair Administrative Officer Encl./td ,) CITY OF SOUTH BURL,INGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 March 28, zooz Spencer Baker Scott Hallock 123 Shunpike Road S. Burlington, VT 05403 Dear Property Owner: Enclosed is a copy of a public notice published in the Burlington Free Press. It includes an application for development on property located near your property. This is being sent to you to make you aware that a public hearing is being held regarding the proposed development. If you would like to know more about the proposed development, you may call this office at 846-41o6 or attend the schedule public hearing. Sincerely, Raymond J. Belair Administrative Officer Encl./td CITY OF SOUTH BURLINGTON DEPAKrMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 March z8, zooz James & Mary Bergan 68 Airport Road S. Burlington, VT 05403 Dear Property Owner: Enclosed is a copy of a public notice published in the Burlington Free Press. It includes an application for development on property located near your property. This is being sent to you to make you aware that a public hearing is being held regarding the proposed development. If you would like to know more about the proposed development, you may call this office at 846-4io6 or attend the schedule public hearing. Sincerely, Raymond J. Belair Administrative Officer Encl./td WESCO9 INC. March 5. 2002 Ray Belair City of S. Burlington Planning and Zoning Fax 846-4101 Re: Texaco, 1041 Shelburne Rd. Dear Ray, /IL j EIKON Ga.�f ,4L4 C, TEUCO DISTRIBUTOP OF TEXACO, EXXONGULF AND SHELL PRODUCTS Unfortlinately, we could not complete our plans for our project and ask that this be continued to the nex� available date. We apologize for any inconvenience this may have caused. Sincerely, S David S' ndinger President 32 SAN RF:MO DR. P.O. BOX 2287 SO, BUR-!NG?ON, VT 05407-2287 PHONE 802-864-5155 �rzL3 2 - "? 6 z y T -d --1041 SHELBURNE ROAD ' c:GEND 04 0 9 FILENAME: SHELBU41NE-1 N25'00'00_E____ EXISTING WOOD SHED TO BE REMOVED .H a o I 50't PROPOSED SETBACK EXISTING BUILDING r 1 DUMPSTD SCREENE n I BY STOCKADE FENCE PROPANE CYLINDER IRCIPOSED EXISTING CHAIN RACK LINK FENCE ALONG I i,,,^ 45't SETBACK PROPERTY LINE --- E"''. .. _. -.. ..-.. _...-..-.. _..-..-.. ---. 15 AIR HOSE 7PYF: PROPOSED 22ft. X 70ft. RETAIL BUILDING 8 O7 -- n t--_� ...... ...... . -. -.._--�.ZL1.. - - - - -- 819 M Z TWO FUE PUM IS � 11 n. EXISTING NORTH 1 O :H o 2" CAL. RED MAPLE CATCH BASIN 0 1 © (TYPICAL) - PAY PHONE NEW RAISED ISLAND 1 LIMIT WITH NEW LAWN NEW RAISED _____ ________ ISLAND LIMIT a____- ________________________ PROPOSED PARKING SPACE EXISTING CANOPY RECESSED LIGHT WITH NEW 175 WATT FIXTURE .. EXISTING POLE MOUNTED SHOEBOX LIGHT WITH NEW 175 WATT FIXTURE CORNER G.M.P. #17 UTILITY POLE IRON BAR SEWER MANHOLE MANHOLE STORM DRAIN MANHOLE SIGN -� CATCH BASIN MONITOR WELL ----5�------ GAS VALVE WATER VALVE WATER SHUTOFF FUEL FILLER PIPE WATER LINE GAS LINE BOUNDARY LINE SETBACK LINE EASEMENT LINE EXISTING CURB NEW LAWN IN RAISED ISLAND N25VO'00"E _ 165.00' _ 5ft. CONC. SIDEWALK �I EXISTING SEWER EXISTING >I" COPPER SERVICE - - I WATER SERVICE SHUTOFF EXISTING SOUTH CATCH BASIN REFITTED AS OIL/ WATER SEPARATOR SHELBURNE ROAD, U.S. ROUTE 7 GRAPHIC SCALE ,o � a I IN I.i-h-10 R SEWER MAIN SIGN OVERHEAD UTILITY I I I I I 1 G.M.P. #16 UTILITY POLE TO BURLINGTON- PROGRESS PRINT DATE PLOTTED - 16 JAN 02 1 DRAWING 1 OF 1 AVE �j vnccL NING AVE a -- LOCATION MAP N TS COMMERCIAL PARKING REQUIREMENTS CONVENIENCE STPRWt'071E SPACE FOR EACH 100 SF OF RETAIL AREA GROSS FLOOR AREA, F (22 x 70) RETAIL FLOOR AREA : 1155 75% OF 1540) PARKING SPACE - 12 45 Y 100) '( OMM L 1 -. ONAL REQUIREMENTS Y l IMCRIPTION % ." &IRd EXISTING PROPOSED MINIUWL FRONTAGE ��„i"� ,„200 F�ET.wW i i-FEET 165-FEET MINIMUM CKS (CANOPY): � �'w,I/ FRONT ARDL, 50 FEET 37 FEET 37 FEET (FROM EXIS '.100' ROW). NORTH SIDE YAo-/,: 15 FEET 64 FEET 64 FEET SOUTH SIDE YARR66 ,�• 15 FEET 69 FEET 69 FEET REAR YARD jA,� 30 FEET 17 FEET 17 FEET x MINIMUM SETBACKS (BUILD �:^ FRONT YARD ��150 FEET 70 FEET 69 FEET (FROM EXISTING 100' ROW) r�. NORTH SIDE YARD 15 FEET 55 FEET 45 FEET SOUTH SIDE YARD 15 FEET 60 FEET 50 FEET REAR YARD 30 FEET 8 FEET 9 FEET r CONFORMS WITH PROPOSED SHELBURNE ROAD IMPROVEMENT PLAN. COVERAGE CALCULATIONS DESCRIPTION AREA (SF) "Sm e X OF TOTAL LIMIT TOTAL LOT AREA 1650o BUILDING AND CANOPY E903 11.5% 30% PAVEMENT AND WALKS 9, 335 56.6% TOTAL COVERAGE 11,238 68.1% 70% GREEN SPACE 5,262 31,9X 30% DO. *MJL RD FRONT YARD 8,251 CANOPY 387 4.7% PAVEMENT AND WALKS 6,101 73.97 TOTAL COVERAGE 6,488 78.6% 30% GREEN SPACE 1,763 21.4% 70% NOTES: PROPOSED AREA SF X OF TOTAL LIMI' 16, 500 2,518 15.3% 30% 9,393 56.9% 11,911 72.2X 70% 4, 589 27.8% 30% 8,251 387 4.7% 5,726 69.4X. 6,113 74.1% 30% 2,138 25.9X 70X 1. BOUNDARY AND PHYSICAL FEATURES SHOWN ON THIS DRAWING ARE TAKEN FROM A DRAWING FROM A DRAWING BY WIWAM A. ROBENSTIEN, L.S., DATED FEBRUARY 1, 2001, PROJECT NO. 677-21, DRAWING NO. 1. 2. WESCO, INC., IS RESPONSIBLE FOR SECURING ALL APPLICABLE STATE AND LOCAL PERMITS. 3. UTILITY INFORMATION SHOWN IS TAKEN FROM A PLAN PREPARED FOR GULF OIL COMPANY, U.S., DATED SEPTEMBER 24, 1975 AND LAST REVISED FEBRUARY 12, 1976 AND APPROVED BY THE SOUTH BURLINGTON PLANNING COMMISSION ON MARCH 9, 1976. 4. FIELD VERIFY ALL UTILITY, BUILDING & CANOPY DATA SHOWN ON THIS PLAN. 5. ALL LANDSCAPING IS EXISTING, EXCEPTING NEW RAISED ISLAND IN FRONT YARD. PROPOSED LANDSCAPING & LIGHTING: 1. PROVIDE TWO 2" CAL. RED MAPLES IN NEW RAISED ISLAND. 2. PROVIDE ADDITIONAL 375 SF OF LAWN (GREEN SPACE) IN NEW RAISED ISLANDS. 3. EXISTING CANOPY LIGHT FIXTURES ARE SURFACED MOUNTED WITH DROP LENS 400 WATT MH TO BE REPLACED WITH RECESSED 175 WATT MH FIXTURES (8 TOTAL). 4. EXISTING POLE MOUNTED LIGHT FIXTURES ARE 1000 WATT MERCURY VAPOR TO BE REPLACED WITH POLE MOUNTED SHOEBOX 175 WATT MH FIXTURES (5 TOTAL). SITE PLAN wTipl:s (Z:� ® SMM INC. �NN��N.,��,A� m� CHAMPLAIN FARMS SCOTT MICHAEL MAPES TEXACO POST OFFICE BOX 5517 1041 SHELBURNE ROAD BURLINGTON. VERMONT SOUTH BURLINGTON, VT \ 23 JULY 2001 =-S6-0100 SPERO ELECTRIC CORPORATION &1705 S P E R*J Noble Road, Cleveland, Ohio 44112 L I G H T I N G 416 A 851 A 3300 FAX: 416,L851 a 0300 http:,'Avww speroirghting com Scale: 1 inch= 30 Ft. COVER MATERIAL VARIES 10" ADS N-12 PIPE OR APPROVED EQUIVALENT 93 GALLON PER FT CAPACITY 48" I.D. PRECAST MANHOLE PROGRESS PRINT - NOT FOR CONSTRUCTION DATE PLOTTED - 9/23/94 L, 'V ATER SCOTT MICHAEL MAPES, P.E. LEBARON CATCH BASIN FRAME AND GRATE LK120 OR APPROVED EQUIVALENT CAPPED CLEANOUT �I N INSTALLATION NOTES: 1, CRUSHED STONE, GRAVEL OR COMPACTED SOIL BACKFILL MATERIAL SHOULD BE USED ` AS THE BEDDING AND ENVELOPE MATERIAL. 2. BACKFILL AROUND THE PIPE SHALL BE COMPACTED TO A DENSITY OF 907. PER AASHTO T-99. 3. CONCRETE STRUCTURES BY GRISWOLD H•-20 LOADING OR APPROVED EQUIVALENT PROPOSED OIL/WATER SEPERATOR INVERT TABLE (FT,) I MAIN LINE (FT.) DI # GRATE EL, IN OUT A 342.00 N/A 339.20 B 342,00 338,70 338,60 EXISTING CATCHBASIN (GRATE EL. TO BE MODIFIED) GRATE ELEV, (FT,) INV, EL CB # 4 EXISTING 347,57 PROPOSED 346.8 OUT 344,87 PROPOSED SEPERATOR SOUTH BURLINGTON EXXON WILLISTON ROAD NTS SOUTH BURLINGTON, VT ' S P E R 0 SPERO ELECTRIC CORPORATION 17d5 Noblc Road, Cleveland, Ohio 4At14 LIGHTING 416A851,L3300 FAX:216,•851A0300 http:Jwww rperotighting Com ----------------------------------------------- - - ------- - ----T I I I I 0 1 'o-a -0_z 'n.l j I I I I I I I 'D . 7 .4 '0.7 b.4 I I I I '0.5 '1 '2.1 m T '11 �5.6 `1..7 'I. I I 0. .D t.3 9.6 j1.3 .4 .5 .5 I ❑ '0.7 '1 .3 2.5 6.1 rO F2.9 1.0 '6.5 '2.6 '0.7 I I I �- J- I'0.I o o I I 8 •1 .4 '?.. 4 4 . 8 7 . F y 7_ . 7 'S . 1 •2 •I . '0 .4 I I r I I 4 '0 . 8 ] .5 2.2 3 . 3 .4 5 . 7 5 . 8 5 . 5 '4 .0 2 .2 •1 . 8 b . 4 I ..t_ J2 I �I 0.4 2_`1 v l) 4 3.0 .6 4 t I I 1 4 '0 i 1- ' b- - S. 1 1 .3 1 .1 0 r7 0.3--0 a 2.6 '2 .2 2 -- - --+-- --- 3 -0 . 7 -1 .1 V3 3 .1 `2 .2 1 - 4 �l . 5 '3 . 1 '.2 . 0 '1 . 0 '0 . 6 '0 .3 SHELMRNE ROAD, Ll% "M 7 • i•Y1,.iTrLl4.ai:�kk������i��� fif.•killn•) xysmrwain�af.•�'Yk�.�ikC�el.��•��' ,,� �•�� (1]I) •i.•I: �: iws>♦ II s 21a� f iYr iOr� `i�i.•f4•x�bL) 98Lr.<wtf es;1:���i rl:��s`•�`� • (�•:•xi6fi73tl:y=w(t�ll:•;!.•���;�'irl:�E}�(i(•' `�ii.4•k�SU�)J.K iawtillu:f.•�i4'f•I4�iHt�i4��-��� kale: 1 inch= 30 Ft. ,CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 February 28, 2002 Mr. David Simendinger Wesco, Inc. P.O. Box 2287 South Burlington, Vermont 05403 Re: I041 Shelburne Road Dear Mr. Simendinger: Enclosed is the agenda for next Tuesday's Development Review Board meeting and my comments to the Board. Please be sure that someone is at the meeting on Tuesday, March 5, zooz at 7:30 p.m. at the City Hall Conference Room, 575 Dorset Street. Sincerely, Raymond J. Belair Administrative Officer Encl./td µ DEVELOPMENT REVIEW BOARD 22 JANUARY 2002 PAGE 9 14. Continued Public Hearing: Application #VR-01-02 of Wesco, Inc., seeking a variance from Section 25.00, Area, Density and Dimensional Requirements of the South Burlington Zoning Regulations. Request is for permission for a 22'x70' convenience store building tol) project 21 feet into the 30 foot rear yard setback requirement, and 2) exceed the overall lot coverage maximum of 70% by 4.5% for a total lot coverage of 74.5%, 1041 Shelburne Road: and 15. Continued Public Hearing: Application #CU-01-46 of Wesco, Inc., seeking conditional use approval under Section 26.05, Conditional Uses, of the South Burlington Zoning Regulations. Request is for permission to expand a convenience store with gas sales to 1540 sq. ft., 1041 Shelburne Road: and 16. Continued site plan application #SP-01-81 of Wesco, Inc., to amend a site plan for a 502 sq. ft. convenience store with gas sales (4 fueling positions) and a 1344 sq. ft. canopy. The amendment consists of increasing the size of the convenience store by 1038 sq. ft. for a total of 1540 sq. ft., 1041 Shelburne Road: Mr. Simindinger explained that they have been trying to get into compliance. This is the Texaco Station next to the Olive Garden. It is very small, almost non-functional. 50% of sales are "liquids." They want to create a square out of the building. The only area they can develop is 2000 sq. ft. which is about 12% of the lot. This is a hardship. Mr. Dinklage noted there is an existing building which already intrudes into the rear yard setback. Mr. Belair noted that the new building is being proposed in the setback area which requires a variance. Mr. Simindinger said they would provide improvements: lights, landscaping, etc. Mr. Belair said the criteria for a variance are not being met according to staff and the City Attorney as the property is developed and the applicant has reasonable use of it. Mr. Schmitt asked the applicant to consider putting the building in the center and the pumps at either end. Mr. Simindinger said the maximum he could get is 1000 sq. ft. which would be a long, skinny building. He said he needs the depth. Mr. Belair suggested the applicant withdraw the site plan application. The variance request and conditional use request can be continued indefinitely. Mr. Simindinger then withdrew the site plan application. .1 } DEVELOPMENT REVIEW BOARD 22 JANUARY 2002 PAGE 10 Mr. Boucher then moved to continue the variance and conditional use requests until 5 March. Ms. Quimby seconded. Motion passed unanimously. As there was no further business to come before the Board, the meeting was adjourned at 10:30 p.m. Cler Date FIRE CHIEF'S COMMENTS FOR 1/22/02 DEVELOPMENT REVIEW BOARD MEETING GATEWAY THE BUILDING SHOULD BE SPRINKLER WITH FIRE ALARMS INSTALLED MUCKLOW-CHAMBERLAIN THE FIRE SUPRESSION METHODS SHOULD BE DISCUSSED WITH THE FIRE CHIEF (MIKE O'NEIL) CITY ENGINEER'S COMMENTS FOR 1 /22/2002 DEVELOPMENT REVIEW BOARD MEETING AutoHaus —Shelburne Road 1) Site plan prepared by Krebs & Lansing Engineers dated 3-09-01 is acceptable. 2) Shelburne Road is a State maintained road and a permit from the state is required for the work. Burlington Self Storage —Shelburne Road 1) The site plan needs a north arrow 2) Water and sewer lines under buildings shall be in concrete pipe sleeves. 3) The landscape and planting plan shall be submitted Barone Construction, Inc. Lot 3B will have a run of about 1,000 ft to a fire hydrant. This may not be acceptable to the Fire Chief. Electric and telephone service should come from an existing power pole on Spear Street and not a new pole as plan shows. The sewer system serving the four lots and the entire force main including that portion on Spear Street shall be privately maintained by the four lot owners. They shall also be responsible to locate it for Dig Safe. The construction of the sewer pumping station, water, sewer services, and driveways shall be under the supervision of Trudell Engineering of another engineer and approved in writing to the City. Gateway —Shelburne Road Revised plans dated 12-3-01 prepared by O'leary-Burke Engineers are acceptable. /.� LAU. "e" �67 41� A/ ��b A/ rre Ga'.e: *- g`3 P.1 WESCO, INC. 3anuary 8, 2002 Ray Beiair City of S. Burlington Zoning Department Dorset St. S. Burlington, VT 05403f Re: 1041 Shelburne Rd. Dear Ray, Affu E* ,,ONI Ca If*41# TEXACO DIST'kSUTOR OF TEXAM EXXON. GULF ANU SHELL PROQUCTS We are attempting to get our plans in compliance with your concerns to the best of our ability and they are sirnply not complete at this time. Would you please re -schedule us for January 22 to continue the application. We apologize about this issue but the engineers are extremely busy this time of year. President 32 SAN REIr'U DR. PHONE 602-864-5155 P.O. BOX 2287 so. BURL! NGTON,VT0540?228? Le `'�`� CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 January 3, zooz Mr. David Simendinger Wesco, Inc. P.O. Box 2287 South Burlington, Vermont 05403 Re: I041 Shelburne Road Dear Mr. Simendinger: Enclosed is the agenda for next Tuesday's Development Review Board meeting and my comments to the Board. Please be sure that someone is at the meeting on Tuesday, January 8, zooz at 7:30 p.m. at the City Hall Conference Room, 575 Dorset Street. Sincerely, Raymond J. Belair Administrative Officer Encl./td LEGEND EXISTING CHAIN LINK FENCE ALONG PROPERTY LINE - vr-'-� 4r��� N25T)0'OO�E. etc x en. WOODEN SHED —J.J�JJ`-hJ'-J�,.I-A,.�. 1 1 I�f' T� );fig 016 NIA mlz 1 EXISTING CANOPY LIGHT WITH NEW 175 WATT FIXTURE - EXISTING POLE MOUNTED UGHT WITH NEW 175 WATT FIXTURE G.M.P. #17 CORNER UTILITY POLE IRON BAR _.� _....- SEWER MANHOLE STORM DRAIN MANHOLE DRAIN SIGN CATCH BASIN MONITOR WELL -- S GAS VALVE WATER VALVE WATER SHUTOFF FUEL FILLER PIPE WATER LINE GAS LINE BOUNDARY LINE SETBACK LINE EASEMENT LINE EXISTING CURB EXISTING BUILDING PROPANE CYLINDER RACK P s - I 13 13 AIR HOSE ® CANOPY 13 TWO FUEL PUMP ISLAND`.: �I I CATCH BASIN w/DROP INLE (TYPICAL) N25'00'00"E - - 185.00' 5ft. CONC. SIDEWALK EXISTING SEWER SERVICE -- PAY PHONE "W 45'f PROPOSED SETBACK �— PROPOSED 22ft. X 70fL RETAIL BUILDING I ._.._.._.. —..—..—..—..—..—.._..I WATER SHUTOFF `-EXISTING SEWER MAIN SHELBURNE ROAD, U.S. ROUTE 7 GRAPHIC !.KALE m �+ I Ino6 - 10 tL OVERHEAD UTILITY LINE IV I I I t 1 G.M.P. #16 UTILITY POLE TO BURLINGTON— ___-S-- I OCATION MAP NTS COMMERCIAL 1 DIMENSIONAL REQUIREMENTS DESCRIPTION REQUIRED EXISTING PROPOSED TOTAL LOT SIZE 40,000 SF 16,500 SF 16,500 SF MINIMUM LOT FRONTAGE POO FEET 165 FEET 165 FEET MINIMUM SETBACKS (CANOPY): FRONT YARD 50 FEET 37 FEET 37 FEET (FROM EXISTING 100' ROW). NORTH SIDE YARD 15 FEET 64 FEET 64 FEET SOUTH SIDE YARD 15 FEET 69 FEET 69 FEET REAR YARD 30 FEET 17 FEET 17 FEET MINIMUM SETBACKS (BUILDING} FRONT YARD 50 FEET 70 FEET 69 FEET (FROM EXISTING 100' ROW). NORTH SIDE YARD 15 FEET 55 FEET 45 FEET SOUTH SIDE YARD 15 FEET 60 FEET 50 FEET REAR YARD 30 FEET 8 FEET 9 FEET • CONFORMS WITH PROPOSED SHELBURNE ROAD IMPROVEMENT PLAN. COVERAGE CALCULA11ONS Ek151YJG DESCRIP.10N ARFA (!F' UM" PROPOSED _..._ _I.i_-,T,;:. 1L lV JTA1 AREA v i5,-�Oo � -- —16; 500 BUILDING AND CANOPY 1,903 11.57. 30% 2,518 15, 3X 30% PAVEMENT AND WALKS 9,335 56.6% 9, 768 59. 2% TOTAL COVERAGE 11,238 68,1X 70% 12,286 74.5% 70% GREEN SPACE 5,262 31.9% 30% 4,2L4 W SFELIL 10 FRONT YARD 6,251 8,251 CANOPY 387 4.7X 387 4.7% PAVEMENT AND WALKS 6,101 73.9% 6,101 73.9% TOTAL COVERAGE 6, 488 78,6% 30X 6,488 78.6'L 30% GREEN SPACE 1,763 21.4X 70% 1,763 21.4Y, 707 NOTES: 1. BOUNDARY AND PHYSICAL FEATURES SHOWN ON THIS DRAWING ARE TAKEN FROM A DRAWING FROM A DRAWING BY WILUAM A. ROBENSTIEN, L.S., DATED FEBRUARY 1, 2001, PROJECT NO. 677-21, DRAWING NO. 1. 2. TIMBERLAKE ASSOCIATES IS RESPONSIBLE FOR SECURING ALL APPLICABLE STATE AND LOCAL PERMITS. 3. UTILITY INFORMATION SHOWN IS TAKEN FROM A PLAN PREPARED FOR GULF OIL COMPANY, U.S., DATED SEPTEMBER 24, 1975 AND LAST REVISED FEBRUARY 12. 1976 AND APPROVED BY THE SOUTH BURLINGTON PLANNING COMMISSION ON MARCH 9, 1976. 4. FIELD VERIFY ALL UTILITY, BUILDING B CANOPY DATA SHOWN ON THIS PLAN. 5. ALL LANDSCAPING IS ExISTING, NOT PROPOSED. Awo �V &i PROGRESS PRINT DATE PLOTTED — 7-23-=OIV � 7 2001 vwx ORAWNC I OF I P.1 WESCO, INC. December 3, 2001 Stephanie Smith South Burlington Planning and Zoning Fax 846-4101 Re: 1041 Shelburne Rd. Stephanie, AM 1 E)J(O i Giulf TEXACO (D DISTRIBUTOR OF TEXACO, EXXON, GULF AND SMELL PROOJCTS Would you please postpone this hearing until the next meeting so that we can work on sonic of the concerns of the staff.. ::L 32 SAN ?EMO DR. R.O. BOX 2287 PHONE BC2-864-5 55 SO. BURLINGTGN. VT C5407-2287 CITY ENGINEER'S COMMENTS FOR DEVELOPMENT REVIEW BOARD MEETING 12/4/01 The Gateway - Shelburne Road i. Large trees such as sugar maples must not be planted on top of or close to water and sewer mains. A sugar maple appears to be planted on top or close to the 24 inch C.W.D. main located in the south-east corner of the project. z. Site plans prepared by O'Leary -Burke Engineers dated I0-21-99 are acceptable. 3. Plans should include water, sewer, road details, sheets 9, io & ii. Wesco Inc. - Shelburne Road i. There are a lot of trees and shrubs on the property but they are in need of cleaning and trimming especially behind the existing building. GOVERNMENT Ch. 117 " preceding "grant a stay" in the first or "county court" )ment review board shall set a ppeal under this chapter, which .he notice of such appeal under djustment or the development hearing, and shall mail to the 'teen days prior to the hearing ction 4464 of this title to take an ue may appear and be heard in attorney at such hearing. Any adjourned by the board of rd from time to time, provided, e adjourned hearing shall be ler this section shall be open to )le at such hearings shall be the in contested cases in hearings in 3 V S.A. section 810.—Added 3, 1968; amended 1973, No. 255 ), § 18, eff. March 15, 1995. development review board" following !nt or the development review board" owing "adjourned by the board" in the !ssary by zoning board of adjustment at e required so that applicant could have of subject to adjourned hearing notice 't. 59, 564 A.2d 1064. �2d 256. ection 4471 of this title wherein regulation is requested for a energy resource structure, the Ch. 117 MUN. & REGIONAL PLANNING & DEVEL. T.24 § 4468 board of adjustment or the development review board, or the environmen- tal court created under 4 V. S. A. chapter 27 shall grant variances, and render a decision in favor of the appellant, if all the following facts are found and the finding is specified in its decision. (1) That there are unique physical circumstances or conditions, includ- ing irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that unnecessary hardship is due to such condi- tions, and not the circumstances or conditions generally created by the provisions of the zoning regulation in the neighborhood or district in which the property is located; (2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning regulation and that the authorization of a variance is therefore necessary to enable the reasonable use of the property; (3) That the unnecessary hardship has not been created by the appellant; (4) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, substantially or permanently impair the appropriate use or development of adjacent property, reduce access to renewable energy resources, nor be detrimental to the public welfare; and (5) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least deviation possible from the zoning regulation and from the plan. (b) On an appeal under section 4464 or section 4471 of this title wherein a variance from the provisions of a zoning regulation is requested for a structure that is primarily a renewable energy resource structure, the board of adjustment or the development review board or the environmental court may grant such variances, and render a decision in favor of the appellant if all the following facts are found and the finding is specified in its decision. (1) It is unusually difficult or unduly expensive for the appellant to build a suitable renewable energy resource structure in conformance with the regulations; and (2) That the hardship was not created by the appellant; and (3) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, substantially or permanently impair the appropriate use or development of adjacent property, reduce access to renewable energy resources, nor be detrimental to the public welfare; and 127 CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 November 30, 2001 Mr. David Simendinger Wesco, Inc. P.O. Box 2287 South Burlington, Vermont 05403 Re: 1041 Shelburne Road Dear Mr. Simendinger: Enclosed is the agenda for next Tuesday's Development Review Board meeting, and my comments to the Board. Please be sure that someone is at the meeting on Tuesday, December 4, 2001 at 7:30 p.m. at the City Hall Conference Room, 575 Dorset Street. Sincerely`, Raymond J. Belair Administrative Officer Encl./td 6383betweenr7-tOpm. ELECTRIC STOVE Kenmore, exc. cond. 10 LOST BRACE- LET thin yrs old. White. 802-247-6114 chain w/peridot [green] stones. in Burlington. ELECTRIC TYPE- Very sentimental. Re - WRITERS IBM and ward. Call802-864-4495 Royal. Also Wooden Plav-Pen. 863-2615 LOST CAT Nip long hair, tight gray & white Placing a Free Press Clasefffed male neutered cat. Has 4 ad is easy, Well help you white paws & bushy tail. Missing word your ad to get the results you want! Charge it since 10/25/01in Dorset St/ Golf Course with your VISA or Mastercard. area in So. Burlington. If ----- ----- Ty s� * seen him please Call 658- 1793 anytime. ENCYCLOPEDIA SET LOST Complete Encyclopedia CAT small fe- aritannica set. Please call male, black k & white 802-759-2081. black spot nose. Lost CHICKENS [5] laying collar day before. Miss - ing since 11/7 C II 80 hens & (4) young roost- 863-5790. a ers. Several OEG ban- 'ams.Cali 802-372-4486 LOST CELL PHON sfter 6 pm. Church St., Fri., 1 FUEL OIL TANK eatherMcase. Rew =mpty, In good condition. 802-872-9650iHarold. 4eeds to be brought up LOST ENGAGEM short stairwayy from base. 'lent.802-862-6632. RING 10/26/01 in lington. Single me artist's last name. inside !AS GRILL Works. band.dPLEASE RETU eeds some work. Call for reward and 93-4478 karma. 802-862-0404 * * * * LOST SIAMESE C l O N D A ACCORD Female, Sealpoiht, 1 98S parts car. Take it on College St. in Burli ,vay. Call 802-888-9160, ton. Answers to "MI ITTEN male tiger. All Call 802.860-6074 lots, except rabies. Incl. 802"864-7655. rods toys and box. Call LOST Small wood ?2-859-9557. step ladder and tools lTTENS Litter trained tober 30 on Spear lonely for 'families to Swift St. or Shelbur ve them. Helpll Cali Rd.802-863.5397. 8-585-7271. LOST A PET? VING ROOM SET Please contact wch and over -sized The Franklin Coun air. Call 802-879-2837. Humane Sacloty 4GAi1NES National 324-9650 ; raphic; 1968 to 98. Sports PN and illustrated, TA ced for Kids Sports44-5515 SALELLotss of great stut furniture, etc. t. earl birds.. 8-12. Sat. 11/1 sTTRESS Boxspring 139 Shelburne Rd. led frame. 244-1886 COLCHESTER Christ mas shop nowt uallt kids' toys 8 books, bob VING BOXES with stuff too. Househol ppings. Call 879-7523 items, weight machine garage furnace & mu JNO Upright piano to more. 2 families. at. it/ home. You take it 17-Sun.11/18, 9am-2p%m. y. Will need to be 144 Aurielie Dr. :d. Call 802-985-2583. " * ISO. ndoorsl RGTooN furn- 40E HOOD Silver ishings, lamps, kitchen blower and light. wares & more! Fri 8-2 Sat 864-0904. 8-11 725 Hinesburg Rd. -RtEVER MIX to MOVING SALE Furni- i home. 8 mos old. ture, misc. household s, jet black, name is items, winter clothing, ious, very energetic, plus much morel 11/16- t with kids, needs 11/17 8 a.m. to i p.m. In - of room to run, all side 1-7 Grandview 3. Call 802-859-1517. Condo in So. Burlington, go FREE WOODEN SKIDS. Contact Bob Peeters at the: Puriington free press 9 LOCAL CUSTOM 802-660-1801 aged to attend. Nove 17 18 19 2001 5 PEOPLE NEEDED We are taking applica- ions for full,part-time PU IC HEARING employment. We provide SOUTH BURLINGTON training. Earnings oppor- DEVELOPMENT tunity of $500-$750 per REVIEW BOARD week to start. if you're ready to start work imme- The South Burlington De- diately, Call 802-658- velopment Review Board 2082 between the hours Will hold a public hearing of 10am-6pm on Monday, at the South Burlington 11/19/01. City Hall Conference Room, 575 Dorset Street, South Burlington, Ver- mont on Tuesday, De- cember 4, 2001, at 7:30 P.m . to consider the fol- lowing: 2- E ENT Bur- ond, num 1. Final plat application #SD-01-66 of Acadia Re- on alty Trust to amend a previously approved lack planned unit develop- ard. ment consisting of a 100,470 sq. ft. shopping center in two [21 build- ings. The amendment consists of reducing the en- size of one [I of the RN buildings b- 2,5 0 sq. ft. for a total of 97,970 sq. Make Your ad BOLDI TO RESPOND � TO •ASST MANAGER 'Sinion's Plaza, Williston on 'Gracie's, Williston Rd. For all positions, applyy oof at Handy's Texaco, 75 as So. Winooski, Burlington CASHIER We are look. NEFCU offers 100°, in for someone to help em- greet, service and cash ployer paid medical, den- out our customers, tal and life insurance for full time on at staff, 401k, vaca- iffy Please Lubely 15in 25rsShel- tion and 12 paid holidays, burne Rd, So Burlington. gain share, tuition reim- bursement and an on site CHAMPLAIN FARMS exercise facility. Please Hinn , for all positions e-mail resume to and shifts in the Burling- HR nefcu.com or send to ton/St. Albans/Colches- NE CU, PO Box 527, ter areas. These are not Attn: HR, Williston, VT seasonal or temporary 05495-5027. EOE. positions! We offer Com- Sr. Tel Manages teller ti to ensure en 1Ci n Must have a minimum one year's experience a Teller. A F R E E BARTEND PRESS BOX NUMBER BARTENDING SCHOOL Of NEW ENGLAND Send to: Certification/Training Burlington Free Job Assistance 1-888-4DRINKS P reSs P.O. Box 10 www.bartendingsehool com 108 Church Street, Burlington, VT 05402 Burlington Aft: Free Press Box BUILDER- #_ Chittenden County's e oad. AGRICULTURAL 2. Application #VR-01- LABORATRY/FIELD AT 02 of Wesco, Inc. seeking TECHNICIAN ost a variance from Section Northeast Federal Milk n9- 25.00, Area, Density and Market Administrator . Dimensional Require- [USDA) seeking dairy or ments, of the South Bur- lab/field tech. Visit dairy lington Zoning Regula- farms, processors, haul - en tions. Request is for ers to obtain milk sam- Oc. permission for a 22' x 70' ples Test milk [chemical St, convenience store build- and IR analyzer methods] lie ing to: 1] project 21 feet and prepare milk Sam - into the 30 foot rear yard ples for industry labs. As - setback requirement, and sist in daily lab office 2]exceed the overall lot functions. Drive single - coverage maximum of axle truck and operate 70% by 4.5% for a total calibration equipment to lot coverage of 74.5%. check farm tanks. One 1041 Shelburne Road. area position open: White ALtS 4 3. Application #CU-01- River Junction, Vermont. 46 of Wesco, Inc. seeking Effective communication G conditional use approval and computer skills, lab under Section 26,05, skills, dairy background, f, Conditioning Uses, of the Assoc, degree in ag re- f South Burlington Zoning lated field. Must be U.S. Regulations. Request is citizen. Minimum Sala for permission to expand $21.372 [based on exp a convenience store with Full benefits. Submit re- y gas sales to 1540 sq, ft., sume by Nov. 29, 2001. d1041 Shelburne Road, Federal Milk Market Ad- I 4. Application #CU-01- ministrator's Laboratory 47 of Great Northern Attn: Mr. Gary Hodc9don c Construction, Inc. seek- 226 Holiday Dr., Suite 4 / Ing conditional use ap- White River Junction, VT proval under Section 05001-1519 26.05, Conditional Uses, Fax:802-296.3658 and Section 3.506(c] of the South Burlington ASSOCIATE Zoning Regulations. Re- TEACHER quest is for permission to For Infant program in construct a 12' x 16' ad- NAEYC accredited ren- dition to a single family ter. Minimum require - dwelling, 58 Bartlett Bay ments of relevant associ- Road. ate's degree or a CDA 5. Final ptat application and experience working #SD-01-63 of Ronald La- with young children. Full - Bounty to amend a time Position begins in planned residential devel- January; competitive sat- - leading new home builder is seeking an individual to help manage all aspects of new home construc- tion. The successful can- didate must be person- able and be able to manage subcontractors, suppliers and work closely with home own- ers through all phases of construction. Some com- puter skills will be helpful. Great benefits. Please send your resume to: The Snyder Companies Mark Lords - petitive wages, health & dental insurance, 401k and flexible schedules. Must be highly motivated and friend)yy. Please call 1-800.999-3726 ext. 351 or stop by any Champlain Farms store. CHILD & FAMILY THERAPIST VT Lic./Cert. to join multidisciplinary health practice in Hardwick, Vermont. Send letter of i interest and resume to Wellspring, P.O, Box 147, i Hardwick, VT 05843 CHILOCAME f Do you love working ti with children? Seeking p FT preschool teaching t assist & PT teacher for all ages. Exper required for t our fully licensed child F care facility. Call; Si 802 878-9465, p Need to sell your car? 2 Give us a call at 6513 3321. P Pa 15BrickyardRoad Essex Jct, VT 05452 CLERICAL/CLIENT WORK Entry level posi- Make extra cash buytion for person w/ excel - selling your stuff. Call Free Press lent office skills, 40 wpm, ability to juggle mutiple Classifieds 838.3321 tasks & environments. Eve. MAINTENANCE Grow- ing req. Knowledge of 1uslice & area non -profits property manage- ment or res T helpful. Send letter & re- i4 mainte ance d neks tial apt. properties. Skills 1526, Bu lington V T 05402. By 12/5/01. required: plumbing, paint- ng, & general carpentry. Driver's license required. Send resume: Attn J. Hunt, Coburn & Feeley, PO Box 923, Burlington, VT 05402 or stop in for an ap��ilcation at 125 Col- ege St. opment consisting Of ary and benefits pack- CARE GIVER Live -In @ eight [8) units in four (41 agge. Send cover letter by The Pines Senior Com- buiidings. The amend. 12/1 to Anne Powell, munity on Dorset St. Car ment consists of the re- YMCA, 266 College St., a plus. Prepare meals, moval of: 11 two [2] ac- Burlington, VT 05401. accompany on short cessory structures, and AUTOMOTIVE trips, for elderly woman 21 the elimination of the Our Professional Detail who uses walker. Must dumpster storage area, Shop and Service 55 years or olmessggder. Call 1366 & 1386 Williston Departments are looking 862 0921 or 863-270 802 Road. Copies of the applica- tions are available for public inspection at the South Burlington City Hall. John Dinklage Chairman Convert clutter to cash with a Free Press Classified ad. t Call658-3321. for individbackground with a CAREGIVER Male background in detail work or dealer lot quad. Housekeeping, etc. support. We need self- Days or nigghts. 802-865- starters that are quality 4153 or 86Y 1104. work oriented. If you feel C A R P E N TER S, you can make the grade METAL FRAMERS, with us call B.J. Bedard DRYWALL HANGERS, or Jim Cross FINISHERS: Top wages 802-658-1130 & Benefits for qualified Lewis Motors tradespersons. Local 1325 Shelburne Road work. East Shore Dry- S Burlington Vermont wall, Inc. 802-860-5040 www.lewisautos.com for Interview. EOE. y avucauun or re- d field plus two year of experience in youth service program manage- ment, or a combination of education and experi- ence from which compa- rable skills and knowl- edge are acquired. Responsibilities shall in- clude development and delivery of the after - school program, daily communication with par- ents and school faculty, supervision of staff, pro- gram purchasing, record keeping, childcare train- ing, preparing weekly schedules and managing budget. All applicants must have ability to ob- tain Red Cross CPR and First -Aid certification. Pays $13.00 per hour, approximately 38 hours/ week. Deadline: November 27, 2001. ASSISTANT[S] - The s u d cessful candidate must be age 18 or older and have experience working with youth. Responsibil- ties shall include day-to- day set up, communicat- ng daily with parents, as- suring safety of students, acilitating program activ- es, supervising daily ac- vity of students, and anticipating in childcare raining. All applicants must have ability to ob- ain Red Cross CPR and first -Aid certification. Po- tion available 38 hours er week [may be split to two positions at 18- 0 hours/'week each]; $8.00 per hour. ladline: December 3, 101. For additional infor- mation, please call 802-878-1375, For consideration, please send letter and resume to the Program Supervisor, Essex Junction Recreation and Parks, 75 Maple Street, Essex Jct., VT 05452. EOE. C s at df CI dr le Ft clt fit: pa de ins pie err trit fan cot Se mu anc For tior site t.u; Odt lent dreg to p Alt 21 Es FINi 3-51 Datl regqd w/Bt conk to: 2 F IMM 2001 'Fi 'Sul 'Clan fl Pleat Fa Justin Thoelke - Snowmaking Supervisor Smuggs Family Member for 1.5 years! Check us out online at www.-sm�u! Employment Opportunities & Job F. {k tiU4 Li ilk a� CITY OF SOUTH BURLINGTON DEPAKFMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 November 27, 2001 Olive Garden 1025 Shelburne Road South Burlington, Vermont 05403 Dear Property Owner; Enclosed is a copy of a public notice published in the Burlington Free Press. It includes an application for development on property located near your property. This is being sent to you to make you aware that a public hearing is being held regarding the proposed development. If you would like to know more about the proposed development, you may call this office at 846-4106 or attend the scheduled public hearing. Sincerely, Raymond J. Belair Administrative Officer Encl/td R 575 Dorset Street Phone: 846-4106 Fax: 846-4101 Fm To: David Simendinger From: Stephanie A. Smith Fax: 864.6234 Date: November 21, 2001 Phone: Pages: 2 Re: CC: Re: Applications #SP-01-81, #VR-01-02, and # CU-01-46 of Wesco, Inc., 1041 Shelburne Road. Dear Mr. Simendinger Please find attached the preliminary comments on the above referenced application. The project is currently scheduled to be considered by the Development Review Board on December 4, 2001. If you wish to respond to these comments or submit additional information, please do so no later than November 27, 2001. Please be sure that someone is at this meeting to represent your application. If you have any questions, please feel free to give me a call. Sincerely, Stephanie A. Smith Associate Planner City of South Burlington, Planning & Zoning 1 To: Applicants From: Stephanie Smith, City of South Burlington RE: Project Staff Notes Date: November 20, 2001 Applications #SP-01-81, #VR-01-02 and#CU-01-46 of Wesco, Inc.1041 Shelburne Road Overview: Site plan approval for a 22' x 70' convenience store building to: 1) project 21 feet into the 30 foot rear yard setback requirement, and 2) exceed the overall lot coverage maximum of 70% by 4.5% for a total lot coverage of 74.5%; request is for permission to expand a convenience store with gas sales to 1540 sq. ft The applicant requests a variance from Section 25.00, Area, Density and Dimensional Requirements, and conditional use approval under Section 26.05, Conditional Uses, of the South Burlington Zoning Regulations, 1041 Shelburne Road. Issues: 1) The applicant should be aware of the following: a) The proposed site plan is in non- agreement with Section 26.002, Alterations of Non- complying structures, of the zoning regulations. b) The application for a variance must satisfy the requirements found in 24VSA § 4468. 2) It is the staffs position that the requirements for granting a variance are not met. 3) The applicant should provide retail floor area of convenience store and provide one (1) space for every 100 square feet of retail floor area, including one (1) handicapped space for every 25 spaces and a bike rack 4) The applicant should provide details (cut sheets) of the existing lights to remain and any proposed lighting. A point by point lighting plan should also be included. 5) The dumpsters should be screened and so noted on the plan. 6) The minimum landscape requirement, based on building cost is $300, which is not being met. The Plan should be revised to show additional landscaping to meet this requirement. 7) Staff recommends the plan be revised to show more green space in the front yard to bring the property closed into compliance with the front yard coverage requirement. Completeness of Plan: The applicant has submitted sufficient information for Development Review Board to consider the final plat application with the above exceptions noted. Please provide additional information by November 27, 2001. Recommendation: Staff recommends that this application be authorized to proceed for conditional use, site plan and variance consideration at the December 4, 2001 meeting. CITY OF SOUTH BURLINGTON DEPARTMENT Oil' PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 November 27, 2001 Olive Garden 1025 Shelburne Road South Burlington, Vermont 05403 Dear Property Owner: Enclosed is a copy of a public notice published in the Burlington .Free Press. It includes an application for development on property located near your property. This is being sent to you to make you aware that a public hearing is being held regarding the proposed development. If you would like to know more about the proposed development, you may call this office at 846-4106 or attend the scheduled public hearing. Sincerely, -y P Raymond J. Belair Administrative Officer Encl/td This application is Jng filed that no variance is required.: with full reserva..ion of rights City of South Burlington Application to Development Review Board Official Use APPLICATION # 1 1 Il...—V l — 02— HEARING DATE ) 2— Q 1 Y FILING DATE ,^Da FEE AMOUNT �'` �� . V Name of applicant(s) Wes , Inc. Address 3 2 San Remo Drive Telephone # 8 6 4- S l S S So. Burlington, VT 05403 Represented by Landowner i i e s c o, Inc. Location and description of property 1041 Shelburne Rd. , So. Burlington. VT Adjacent property owner(s) & Address Olive Garden , 1025 Shelburne R d . Type of application check one: ( ) appeal from dP ;. ;,)n of Administrator Officer (includes appeals from Notice of Violation) ( ) request for a conditional use (X) request for a variance ( ) other I understand the presentation procedures required by State Law (Section 4468 of the Planning & Development Act). Also that hearings are held twice a month (first and third Tuesdays). That a legal advertisement must appear a minimum of fifteen (15) days prior to the hearing. I agree to pay a hearing fee which is to off -set the cost of hearing. Provision of zoning ordinance in question setbacks Reason for appeal/application to allow building to be altered Other documenta 'on v Datd S gn SOUTH BURLINGTON ZONING NOTICE In accordance with the South Burlington Zoning Regulations and Chapter 117, Title 24 V.S.A. the South Burlington Development Review Board will hold a public hearing at the South Burlington Municipal Offices, Conference Room, 575 Dorset Street, South Burlington, Vermont on Tuesday, at 7:30 P.M. to consider the following: Application of seeking a from Section R of the South Burlington Zoning Regulations. Request is for permission to City of South Burlington Application to Development Review Board Name of applicant(s) Wesco , Inc. Address —PO BOX 2287 Telephone # So. Burlington, VT OS407 Represented by T) a Landowner Wesco , Inc. Official Use APPLICATION # HEARING DATE ( Z FILING DATE to Q FEE AMOUNT 864-51SS Location and description of property 1041 Shelburne Rd., So. Burlington, VT OS403 Adjacent property owner(s) & Address Olive Garden, 10 2 S Shelburne Rd ,1FreFdoim Ch ��sler/P1p��1�ut � . 1Of95 SheIbafFne. Rd. ype o app ication c c one: ( ) ap om �n o Administrator icer (mc udes appeals from Notice of Violation) (� request for a conditional use ( ) request for a variance ( ) other I understand the presentation procedures required by State Law (Section 4468 of the Planning & Development Act). Also that hearings are held twice a month (first and third Tuesdays). That a legal advertisement must appear a minimum of fifteen (15) days prior to the hearing. I agree to pay a hearing fee which is to off -set the cost of hearing. Provision of zoning ordinance in question conditional U S e Reason for anneal/annlication to enlarge building Other documentation 10/10/01 Date SOUTH BURLINGTON ZONING NOTICE In accordance with the South Burlington Zoning Regulations and Chapter 117, Title 24 V.S.A. the South Burlington Development Review Board will hold a public hearing at the South Burlington Municipal Offices, Conference Room, 575 Dorset Street, South Burlington, Vermont on Tuesday, , at 7:30 P.M. to consider the following: Application of seeking a from Section of the South Burlington Zoning Regulations. Request is for permission to J et� -- - _ - ------------------------- CITY OF SOUTH BU INGT sy I V E D DEPARTMENT OF IPLAra1INIE�TG & ZONEgG 575 DORSET STREET OCT 17 SOUTH BURLINGTON, VERMONT 05403 (302) 546-4106 City nt So. Burlington FAX (802) 346-4101 Permit Number SP- APPLICATION FOR SITE PLAN REVIEW All information requested on this application must be completed 4--1 full. ;failure to provide the requested information either on this application form or on the site plan will result in your application being rejected and a delay in the review before the Development Review Board. 1) OWNER OF RECORD (Name as shown on deed, mailing address, phone and fax #) Wesco, Inc., PO Box 2287, So. Burlington, VT 05407 864-SISS (fax) 864-6234 2) LOCATION OF LAST RECORDED DEED (Book and page 3) APPLICANT (Name, mailing address, phone and fax #) same 4) CONTACT PERSON (Name, mailing address, phone and fax #) David S imendinger same as above 5) PROTECT STREET ADDRESS: 1041 Shelburne Rd., So. Burlington, VT 054n3 6) TAX PARCEL ID # (can be obtained at Assessor's Office 7) PROJECT DESCRIPTION a) Existing Uses on Property (including description and size of each separate use) gas station and convenience store b) Proposed Uses on property (include description and size of each new use and existing uses to remain) gas station and convenience store c) Total building square footage on property (proposed buildings and existing buildings to remain) IS40 so, feet d) Height of building & number of floors (proposed buildings and existing buildings to remain, specify if basement and mezzanine) one story, 20 feet _ e) Nurnber of residential units (if applicable, new units and existing units to remain) N/A f) Number of employees & company vehicles (existing and proposed, note office versus non -office employees) 2 employees vehicles plus 2 vehicles g Other (list any other information pertinent to this application not specifically requested abode, please note if Overlay Districts are applicable): g) LOT COVERAGE a) Building: Existing 11 „ S '% Proposed 1 S . 3 % b) Overall (building, parking, outside storage, etc) Existing 7 8, 6 ®/® Proposed-2 8• 6 % c) Front yard (along each street) Existing 73 ° n % Proposed 7 3. 9 % 9) COST ESTIIiiIATES a) building (including interior renovations): $ 10,000.00 b) Landscaping: $ 10 , 0) 0. 0 0 c) Other site improvements (please list with cost): ` ? n , 0 0 0 . 0 0 10) ES'TEVATED TRAFFIC a) Average daily traffic for entire property (in and out): 217 n b) A.M. Peak hour for entire property (in and out): 69 c) P.M. Peak hour for entire property (In and out): 77 11) PEAK HOURS OF OPERATION- S - 6 n m 12) PEAK DAYS OF OPERATION: r r i d a.y s 13) ESTIMATED PROJECT CONIPLETION DATE: 8 / 1 / 0 2 14) SITE PLAN AND FEE A site plan shall be submitted which shoves the information listed on Exhibit A attached.. Five (5) regular size copies and one reduced copy (I 1" x 17") of the site plan must be submitted. A site plan application fee shall be paid to the City at the time of submitting the site plan application (see Exhibit A). 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. 'N -4 �,4'-� Y-1 - SIGNA APP ICANT SIGNATURE OF PROPERTY OWNER Do not write below this line DATE OF SUBMISSION: REVIEW AUTHORITY: LlDevelopment Review Board ❑ Director, Planning & Zoning I have reviewed this site plan application and find it to be: ❑ Complete ❑ Incomplete Director of Planning & Zoning or Designee Date 9- /O r .9�vo, r►cw /o X �8 O OFF/C"i BLOG I �I oCl [� ��t/Ef✓ D/ESEL G O Al ( D/3 PENMR I cam,✓ . VT '•�-/ 'T.1- .�.i-,-.�,•,, � i25i T6LfPNON � OOr� ' GUI s N R ad SNRa's W a ...�-.� �i��c,alZ i� •CFFT 3•oE ®B. I I . I I - i I I I I 1 I I I I I I I I REA»VE AND ✓UNK EX 15T/A/v I NO /- 6,6100 GAL 5 l � tuna � c ladr L Nl �� �p 4/ 0 r- w 4 / "r -- SOUTH BURLINOTO' ZONING NOTE" In accords nce with the Burl ton Zoning R Sostllt i the Ater 117, rill. isr, tie Board of Ad'uB ftnen on ZVon"19 I �blic hearing sat t will hold a; ington Mun..o1 pff.�5e th lkw-_ Sfer«nce Room. 575 DorsaN on M Burkngton, Vermont 5:00 PY• May 14, 1984, at Ong M. to consider the fagaw_ 0 N :A�� °!oW�� of Oua Hill Tennis approval, (ram loaners N Section 19.05, 19.056 alter uses, subsection the anon,' extension of south Burlington R Request is for pe Regulations. shv"40' n^'aswn to c 16'x o 30•x on houseded` to the a �g dub i360 Spear Street. Mey's Inc Y Lacey la_ Section 19.35, F a�aval, from __ ing with earth oducy o/ the South regulations. Request isfar farngton mission to fill an area loco Per - the rear of M1972 and 4ed to Williston Rood. 70pp 03 APpeol of Nicholas in s R 1took' 113, Mi�sin dwslli S°Ct�io^o dords of the _ ^9. stan- miss ions two � Resat isBufa n gton nstruc on feet Partment containing 612 My 38 Pines treanaexisting garage, t. it, 04 Appeal of Dennis and ptana S^Yder seekxtg a variance, h'om 1J Section 18.0IF D ahap o gavemems of the ton Regulations. R Per*nisson to cons °quest is for odddtiaa to hurt a 15'x 18' within six (6) feet of Dovisoutherly side Yard, at 15 Das ParkwoY. N5 for �Wd of Wesco, Inc., Wal, once, �fo� seeking a von- Sectron I8.00, I South arorwl requirements of the quest i'� ton Regulation. Re - permission to con- atnxt . add Lion 10'x48' to within nine 19) feet of the wester- ntl r Yard, of 1041 Shslbume I Zonuq Richard Ward, Ad ini April 2B, I strotive Officer April 30, 1984 Mr. Walter Simendinger Wesco, Inc. 25 North Prospect Street Burlington, Vermont 05401 Re: Zoning appeal Dear Mr. Simendinger. Be advised that the South Burlington Zoninq Board of Adjustment will hold a public hearing at the City Offices, Conference Room, 575 Dorset Street, on Monday, May 14, 1984 at 5:00 P.M. to consider your request for a zoning variance. Please plan to attend this meeting. Very truly, Richard Ward, Zoning Administrative Officer RW/mcg -,.t . _ O I I; y WESCO, INC. W. Simendinger 1041 Shelburne Road Area zoned C-1 District Section 18.00 Dimensional requirements Minimum rear yard - 30 feet Proposed rear yard - 9 feet Proposed addition 10'x48' April 23, 1984 Wesco, Inc. 25 North Prospect Street P.O. Box 1425 Burlington, Vermont 05402 Re: 1041 Shelburne road Dear Mr. Simendinger: The plan as submitted is not adequate. No property lines are shown. Your proposed addition requires a variance from the dimensional requirements, plus a m multiple use permit should you wish to relocate your offices. I'm not able to schedule any hearing with options. Increasing the present building from 232 square feet to approximately 900 square feet may be a big problem. Enclosed is a zoning application please complete this application and return it along with eight (8) copies of the revised plan. very truly,, Richard Ward, Zoning Ackinistrative Officer RW/=l 1 Enc1 WESCO, INC. Mr. Richard Ward Zoning Administrator City of South Burlington City Nall, Dorset St. So. Burlington, VT 05401 Dear Mr. Ward: Gulf DISTRIBUTOR OF GULF PRODUCTS April 21, 1984 Re: 1041 Shelburne Rd. So. Burl incrton , VT . As we discussed on April 19th we have had a high turnover of business operators at our location at 1041 Shelburne Rd. The primary reason is that the present building is too small to carry on any practical type of retailing. We request your approval of adding an additional structure of cinder block per the attached site plan. The building will be faced of the same material as the building that is presently there and the present roof line will be carried across the sides and front. The proposed use will be one of two things: 1. We will expand the sales of fast snack/beverage items as we are presently doing or 2. We will move our corporate offices there. We are presently at 25 No. Prospect St, near Prospect and Pearl in a very conjested area with no parking for visitors. We generate only about 5-6 visitors per day and have six employees. If we needed the extra room we would do away with the snacks and beverages except perhaps for a coke machine etc. If this proposal is approved the odds are perhaps 75% that we would take advantage of being able to solve our office space needs. We would however like to have the option of being able to fall back on option #1 and have an operator be able to make a living wage from this location. Thank you for your consideration of our serious problems at this location. /1 S)--VcArix 1y, W. Simendinger President (.) 25 NORTH PROSPECT ST., P.O. BOX 1485, BURLINGTON, VT 05402-1485 PHONE 802-864-5155 114 HANOVER ST., P.O. BOX 759, LEBANON, NH 03766-759 WESCO, INC. Mr. Richard Ward Zoning Administrator City of South Burlington City Hall, Dorset St. South Burlington, Vt. 05401 Dear Mr. Ward: Gulf DISTRIBUTOR OF GULF PRODUCTS April 24, 1984 Re: 1041 Shelburne Rd.. So. Burlington, VT. As we have discussed this past week, we have had a high turnover of operators at our location at 1041 Shelburne Rd in South Burling- ton. The primary reason is that the present building is too small to carry on any practical type of retailing. We request your approval to enlarge the present building by adding a 10' X 48" cinderblock addition to the back of the existing build- ing per the attached site plans. The building addition will be faced of the same material as the building that is presently there and the present roof line will be carried across the front and two sides. The proposal is to: 1. Construct the addition mentioned above. 2. Remove most of the rear wall of the existing building once the addition is complete. 3. Install a glass window in the frontsimilar to the one left of the front door. The proposed use will be the same as present - snack/beverage sales along with t-e gasoline. This additional space should make it possible for an operator to make a living wane from this location. Thank you for your consideration of this serious problem we have at this location. See the attached answers to the five questions asked in the zonina application;. 25 NORTH PROSPECT ST., P.O. BOX 1485, BURLINGTON, VT 05402-1485 PHONE 802-864-5155 114 HANOVER ST., P.O. BOX 759, LEBANON, NH 03766-759 NOTICE OF APPEAL SOUTH BURLINGTON ZONING BC%ARD OF ADJUSTMENT ' Name, address and telephone # of applicant �/'"7" .5"1iyl�n/�r'✓ir�/r Z.S Gl'a /'.4s/7s'cr "T% /L.L`/-v.4�"o-/. V% O �� I c. co T../ A40 sit is 4. r- Sr Name, address of property owner ZJ' No i' /5""x,, ../ �✓ �/Tu��� � Property location and description G ur I hereby appeal to the Zoning Board of Adjustment for the following: conditional use, variance or decision of the administrative officer. I understand the meetings are held twice a month (second and fourth Mondays). The legal advertisement must appear a minimum of fifteen (15) days before the hearing. I agree to pay the hearing fee of $30.00 which is to off -set the cost of the hearing. z'� Hearing Date Signatur of App r lant Do not write below this line --------------------------------------------------------------------------------------- SOUTH BURLINGTON ZONING NOTICE In accordance with the South Burlington Zoning Regulations and Chapter 117, Title 24 V.S.A. the South Burlington Zoning Board of Adjustment will hold a public hearing at the South Burlington Municipal Offices, Conference Room, 575 Dorset Street, South Burlington, Vermont on at (day of week) month and date) time to consider the following: Appeal of A04" 4 G n G �• (.. _ " f seeking a �,�-�+fi��f-�N ce •, from Section /,So' of the South Burlingto/Regulations. Request is for permission to iC-/Y1.4� t..