Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
BATCH - Supplemental - 1041 Shelburne Road (2)
�`( Y Y Y Y Y Y , > , 1 Y Y Y • , 1 T Y 1 M/1_ i \ EnYmg 51orags Shad le be remored Exisrin9 Cml-CompressorandhVACn,rc m —Proposed Store/Restaurant I 24' x 6_0 I ____208-_ I 1 ® 1 1 1 Exbr(rg Treed Arm - 35 frees 6"-24" c iW. Sumoc. Rax 0I , Where AA. RW Mapk, Elm. Ice M.N. is ntback,l � I Nomwy Mapk �` Y � `I ' I' I I m vnmpr ro rmw,n J � / sherbarne rd I J — 1 j No I O O -_ rT - cWnw rumen I / Rnpored Telephon ux ;n, white R-a (5) saw -replace osrpked R bM rxistirg pole lamp I /3' setback -Extshtg cnrwroro Pad fun rnNsroremaln) flow I '. I I• I I Ak and wxuwn narlan \ I I OLRDEN RESTAU5rAURANT I I\ E,dsmgsnmdm \\ I 1 ` Exkrrrg roan mrch bmM rhn 2a6.9 Sp-(3) I I I I I Potenttlla(2) -I'� aratmppl-(2) I I I I I J I I I I I ````� ` ` Extnhg nMh mroh baNn nm 2075 ``� i le-mb (1) Maw'rg Rwh (1) I' � / / / 1 ``� `` \ • • � fxining algn ro nmaln w/ F,'.. _ - •• � \ ________ ______________ ___________________ ____________ EMsttrgpok /amp rorematn 1 Entmgpa,L �n� I, Il `\ --'.-____ ..' __� / i \.11'''A\ II'• ` Enm spar. mmv ro remain II I I End End .^.. .�' I• ` .` nv6 .. L'•__ _-�{. __________.''._ L O It �\ ` ' Rmpwed F/a9 pob (3 typ.) II Ordrtrpok . II wlm smurllghr Endcwb .. �� IIwlm sheer hshr w •: \ ._..........._.....__----.........._aw_._....-................ ................ .•' �1II ---_ —__� �J L= I I a I I ------,_-..,...........,..,.,...........M,,.,..,_._....._s_,..,....,.........-----®®r�.��._s®----i.-....,_................}........:.,..,�....._®s®---.,_®®®._-----.............s®.-....,...,.m..,.,.................,...,.......,...,,. Exlsllr8 warorsluroff � I LEGEND ProposeA Exlsting Property Line Ewe,nmt Line 13u0d1n9 Setback contour- St-m Sewer Inlet ■ D Switay Sew----9--Cpw-- St- Sew- -sr-lY os- •--sw--car av- - Water Supply -R-rd---�`--s'G-- Footing D M -ID ._ip- ................. - Roof Drain -Ra -Aa---..•.._• O eod Wire -atM ._.--.-,.............. Chah Link Fwm �r�o --•••'- Tns LMe rvv-wv�"'rr`r, Q-d Ras Lumkaaks * # unity Pole / gp Sign - - LOCUS RECEIVED DEC 2 9 20 8 C4 of So. Burlington NOTES 1. Owmr•/Applicant: WESCO,T-, 32 5an Remo Drive South Burlington, VT 05403. 2. Project Description: Demolition of the existing store and the construction of a new 1,632 s.f. Restaurant/Store with 20 Deli seats. 3. Zoned: Commerclall-Automobile Setbacks 50' Front, 15' Side, 30' Rear Allowed Coverage 40% Building, 70% Total Subject to Traffic Overlay 4. Coverages: Total lot: 16,500 SF Existing Building 862 sf 5.2% Existing Pavement d caulks 10,376 sf 62.9% Total Existing 11,238 sf 68.1% Proposed Building 1,632sf 9.9% Proposed pavement d -11. 9,468 sf 57.4% Total Proposed 11,100 sf 67.3% Total Front yards 8,251 sf Existing covered 6,488 sf 78.6% Proposed covered 5,033 sf 61.0% 6, Parking: Building size: 1,632 s.f. (832 s.f. restaurant 4 800 s.f. stare) Restaurant =12 spaces/1,000 s.f. = 832/1000 -12 = 9.9 spaces req'd Store = 4 sP-11,0W s.f. = 900//000 w 4 = 3.2 spaces reg'd total = 9.9 t 3.2 =13.1 spaces required, call it 13 spaces Total number of spaces provided =13, inck dihq I handicap accessible 7 Existing utilities, contours and features provided by Robert M. Alexander, Consulting Engineer, P.O. Box 68, Craftsbury, VT05827 8. Existing site and abuttor information taken from plan entitled "B3 WESCO, 0K..e by ESPC Engineering and Environmental Services dated 1212104, last revised 5ept 27, 2006. No research or field investigations per fa med by this office. 9. Landscape Inventory by Michael Lawrence Landcsape Architecture Site Planning, Essex Jct., VT "' "" ""°"° -, 6i}1 2006075 cnArrcscAle '�LLEWELLYN - HOWLEY o* IWARG oft M RFlan D tD• 30' 40• - INCORPORATED `+ ewtn sumegtw ve...K MR 44 = OonwNing SeMcae Englne,ndng PeemRtdng -' _ Drawn try: FLw +I 20 RAaeball Ave Ste. 202N P (802) 8S8.2M2 A D D"InP 2005075 wen ' Site Plan xo. Rwwon Dec 7 Inch ■ 10 R. m Sauna gwrMngmn T ;8D2) Ahin et d eanahactlen nsu.r.,-w-tram.-�w...n •.su. rn.�.s.i i.e.w. ,'/ t a I a Y`,, 1/CaenMai f15MC§8 h4tPdtveWW.Fhhac.Det 8h..b 7 v f 1-Ba• m� PPLB MOInn 16" (406 mm) WEDGE AREA CUTOFF LIGHT alnlf Y®I[II4R m R_- " Nsae m"scr vPml vac 1ryMsIM re IPPsw-No"t vrtca IaPSPPmI 51eNaBM PM*s Pommel iMP BmrN"vi-m rarem nlawatlw+wl attrme v_— vsee BPS wLtrt�el a sewl��ensr Wt 'wn'7m uwm M.n Nwew. q netnw �,. hH+Ma 3 NB'a rt tom M-rorw"e mmw mmn c4m mm�se wim Fwme itxBleM elms. memlePmee mea. LmBa. oeNcmmrBxm ttmFvm E.--�. amwtmse.m ae rmmet msHm lWw, Pemaadw" mmme an..am sca"- mmP Pruw�mrtlb umb�aBMtawmr aaPlelxMal4oee6m- seM ek he aRaW .lawn - IUCeC. "mmm.Lmm Ps�met s ,ne Iry ae halal hu are nqn- Bpmal,mwiavpmwnmttslmse;P ,atateuJee,aeaea aaaBNsme. Is.;wl1 as BPzs(a aml meshy oP.e mph Bw Pea^W ,rt rows, 'Ire "n'scB.a.4lN musw"rywa BmlPo- (3Btaa1 m9 oe,edealmninum Th AaP�[f11N PSMHI a a.lea wm .va (s r+al P Ismu Ps mmp. !vtls aeknm ba.T.ePhaNlN pemapm me flaxur aria, ad try!wo naN nske mablumlusp9. IYW: IBB 8 �.SG'M HPS undiq J ieee Masda9 Yx -,IpB PeuvlerSe U PB9,R9, 18♦62,I�Gamea ]a2W h. xafer leA�e. Lem ICBW MH',1W 15Wl NPS BmMY iW Yomirium,reem. nP.,aw � oau. caM r vmrawampmuwme. 125.15UW P,IIIY tI5W MH wCfe wmBmM mLae IhWY+!!dW - Pest amP "awes seal seepae, Vaima aHee mwrq. Ul LisIM In US Wm farem for Ieeallhns aM emmam ea69M IPBfi Ba.E�� ItElIJUi� 9801 Wapnpaa aYenue Nero, Wucma e34QF3)!R USa PIMNE (ffif BB6-:9® FA%l�PY19Kd3m AN.Ilwmro;,. .,,m..w. W,Bm. c(cr+nwc' WPe z i DESCRIPTIOM uIIY sNeldetl Fiil CUWt WelPace t«.�igM1v waeePest Futl rYlOfl opks wim flat 1BaP.,� Bm�a .Bes. E<meue ww�soum a aesv �� ump.wcyemn SPmEh IFICATIONS 01YL9190NS cmP am ,Belmmowve�rnewea a' t,re °as no,W �ro s.wms <a� .— , o' ea - �aPtywn,y t„ppro a•,BFe J BwN tram er hm rt o m m z uPSmppe mP eaw n mom dmem BP \ Mumwrou raaaa-n _ IWm>; rwmtm B `1 'Br irmWiMb"SymnaMCN tlgN f<br. D �mO,m:xee Jismnra E&xwen N� an (3ROERIMG ?IFORIfATIOM L4tlaoa mc. � 11f1 waNW AVP• rewmYae, w oTs4r -rat; am RAaraao.. F .. eae RAa-1]32,• W W w..,mwn�m" PARCEL B SUSAN GENTES I PARCEL os<oamn 3L — - B PROPERTIES. LLC PARCEL 0800-0OOrS ]S ETETK4NNANALlEN ORNE I J n ETLIAN ALIEN DHNE 1 O — — — — — — — — — — — — — — — -- FNnB-=-0----s-- COMMERCE AVENUE 1 I I Enalroa T__ I I I PARVNG I 31 I I I I I SAME- l?LLC PARCEL OaSe0G29 19COMMERCEAW. 1 l I l I I 1 o 30 I ROTH FAMILY PARTNERSHIP PARCEL assmaev I ZJ O I I ✓ ES BARRON I 1 I sl comBBERCEavE. I I I P 01'00015 a MI;RCEvE I, I I 28 I I I^ II I _ I EoSnNo I JOE EDDY HOLDINGS, LLC erT. C WC. I PARCEL 043500037 I I _4 1.I - PARKING I 37COMMERCEAbE JOE EDDYHOLDINGS, LLC 1 >< _ _ msn� W. Cam. PARCEL 0435-00041 I ExlsnNc oRaoE1. PARgNG I 1 z I l 1 I I I _ __ { PARNNG _ _ I 41 COMMERCEAVE elr. coNc. I I I II I I �I I PARION------------- I 6S t2 p , - �._ _ _ t,� `�' �, a�' oa +� o\q `\ °�' �, °6' i a�° �, b�" a11• °� b ttIIbb- x L a1^ bbR \�, ]� •!ii \� pay \ V\ \s+ °"' ° \ l 10� �,, 4!3 av z a );WARS—;1 WAREHOUSE WAREHOUSE WAREHOay blm °S \�i B pn\ tl n a1 l . 00 ob\ 4\3 10 z3h 1\ % b a. ✓OHN& ✓OYCEBELTER PARCEL 0m000102 t 02EMANALLENDRFVE ✓AMES BARRON PARCEL 011Se00e5 <5COMMERCEAVE. OWNER and APPLICANT e0a CIO AL SENECAL 300 CORNERSTONE DRIVE -SUITE 130 WILLISTON, VT05495 GRAPHIC SCALE b m b a All ( IN 7m) B `o�`, 1 1—h - 40 R o1Pll1 *411 0PF-it7-nHa6L\ VICINITY PLAN NTe LEGEND PROJECT BOUNDARY OTHER PROPERTYLINE SIDELINE OF EASEMENT CONTOUR LINE UTILITY POLE EDGE OF WOODS BUILDING SETBACK — — — — — — — — — — — WETLAND BUFFER EDGE OF WETLAND Symbol DescrlpRon Number Lamp Lumens Mount O-� Ruud WAC1-16 Series 2 PSMW 150W 18,000 2a TAN Pole Mount Ruud WAC1-18 Series 8 PSMW 150W 18,000 15Ta11 Budding Mount RAB WPIFCF32 2 32WFNorescent 2,400 12' TAN Budding Mount Grid Type # of Points Average Max Min 10'x 10 Gdd — I,- /0.8 FC 0.0 FC C�/ cil 0 f SD gvr�ln gtOn Z:\2005\5050\dwg\5050-SrrEPLAN.dwg, 12/23/2008 1:50:17 PM, \\SERVER\Imagisdcs cm4530 PSL3 s� 8� Ail >IAIII � L UU 1'I I^ z lit All NIX D FKag N N $€€FAR € j jo,I "q Jim Rill it e r ra E $ MIN 70 ¢� b�q _ w ,l CN R ; � 2; _ r 79 79 79 -- g o° awu�c ARIA r, 21 Ff � kP It III a i1q, z Z --I 779 $ R <A Q'6762V0 _ v r N a �'� ll� ��o� ��i Q�� z �• 8. ND �� 79 P. }/ QI F �.S.79 11I»r��� 1 xgap 79 Eli 1 M 4! no T •. ORO o a rrri £ Rx _ �� HAI rri '01 Pm fT 1 a �s CZav Q f Z:\2005\5050\dwg\5050-SITEPLAN.dwg, 12/23/2008 1:49:44 PM, \\SERVER\Imagistic an4S30 PSU O rn D Z + e i wnrer Q * 9 w Q T V' sF 3 Sill rnK mn �� ay rn''^^ g V' Q Q G•��j QiF2 C V' s 4 < D i 9 a8p� > z JP'T �;I. 'g 5g, 11 79 RPM R -C790 >G U%> ill AR:�'Joj. Jr4jr Om Z 'Rap it :A0 0 m ITA 14 4 Z AP man 2TP J g d rn , �€ fill Ir o� ti n m h. �v go J g � 11''ll ®�S r I U FIE 11111"XINN'. lip all limp.no., g 2 1; al ° r 8 g >1"vl jig =qI! lull:11, a a Ir tRIF1 � v� �_ ' R €9. 11 IT, 11 94 Cl) ilg m Z:\2005\5050\dwg\5050-SrrEPLAN.dwg, 12/23/2008 1:49:15 PM, \\SERVER\Imagistics cm4530 PSL3 Ra 4�2 (l%/r1/ (/// / r���\�\I1 // III %/ i i 2 31/ > 1/%/%/// / /Ile Z/ // /% J q • \ I / �� ----- ZE rri ;- T2ill m CL y?I �� � �l/%////j /l�lilll�%/j^ �r �/i♦ 1 � 1���� I I _ � '=----I— I AIL r / 'QX8 I l s "� 1 • I \^ II\ I ( _ I �I �I p —*--1- r%//l /' —1 a J,Ij ml � J 11 Sa A i/// � ��/ I I` I��� I I •` II�I9y aii?i I �� � l �"rS � I I a I \ IN I I LLL _ \ ♦\ \ I ? �\ f Il\(� I 1 \ ( rwo-smear \ I \ �� ,� /% \\\\1 \� \ 4i��_�°o ces /� I mov'iz n9 �flIIr -' -41' \,\ \I 1\ \11 ` \ u�a /� I Uzi! � ��// ��,I It��, v %II I \ � I�q' I no ■❑ IN \\1• \ 01 \ \', � I 2 — V >,,�? $ no ch 1 11 \ Z C 1 \\ I ! I c Z Q ' .?- ,sv O 2 g 4 J lr \ \ gnaw, o WESCO, Inc. G �IA� � FARM April 30, 2007 Ray Belair City of So. Burlington 575 Dorset Street So. Burlington, VT 05403 RE: 1041 Shelburne Road Dear Ray: E ON Gulf Distributor of Exxon, Shell and Gulf Products Enclosed is a plan we would like to review with you. Could you take a look at it and we could meet to discuss it with you? Thank you. Williarh'E. Simendinger, Esq. Corporate Counsel Enc. \ \—I—geW \ u serhom es \tkelton \2007docs \MBelai,.doc 32 San Remo Drive South Burlington, VT 05403 802-864-5155 Fax: 802-864-6234 www.champlainfarms.com fl, Vermont Environmental Court 2418 Airport Road, Suite 1 Barre, VT 05641-8701 (802) 828-1660 January 8,, 2007 ---------------------------------------- Amanda Lafferty, Esq. Stitzel, Page & Fletcher »PO Box 1507 Burlington VT 05402 ---------------------------------------- Wesco (Shelburne Rd.Texaco)-variance Docket No. 152-7-02 Vtec See, enclosed Stipulation for Dismissal'"SO ORDERED" by Judge Thomas S. Durkin. CC: Marc B. Heath, Attorney for Appellant, Wesco, Inc. Amanda Lafferty, Attorney for Appellee, City of South Burlington Co -Counsel for party 1, William E. Simendinger Co -Counsel for party 1, Kathryn Sarvak JF 7r� -_ /ST ,?F- P;iG "� I, FILED STATE OF VERMONT JAN 8 2007 ENVIRONMENTAL COURT VERMONT Ent COURT APPEALS OF WESCO, INC. ) DOCKET NO. 152-7-02 Vt� DOCKET NO. 153-7-02 Vtec DOCKET NO. 6-1-03 Vtec DOCKET NO. 207-10-05 Vtee STIPULATION FOR DISMISSAL WITHOUT PREJUDICE The parties to the above -captioned actions, by and through their respective attorneys, hereby stipulate that these actions may be dismissed without prejudice by the Court, on the following terms and conditions: 1. On June 29, 2006, the Environmental Court entered a written decision on Cross Motions for Summary Judgment in these actions (hereinafter the Decision). The Court did not enter final judgment on these Cross Motions, and instead directed the parties to meet and confer and consider how best to proceed on these matters; 2. The City of South Burlington has filed a Motion to Alter or Amend, asking the Court to revise portions of the Decision; 3. Wesco respectfully disagrees with the City's Motion to Alter or Amend, and has contemplated filing its own Motion to Reconsider portions of the Court's decision as well; 4. At this time, Wesco does not wish to proceed with the applications in the above - captioned appeals but instead prefers to redesign its proposal and submit a new application to the City; 5. Under these circumstances, neither party wants to be forced to appeal the Decision. NOW THEREFORE, the parties hereby stipulate and agree that the above -captioned matters may be dismissed without prejudice, subject to the Court vacating the Decision on Pending Cross -Motions for Summary Judgment entered June 29, 2006, in the above -captioned 1 t, matters, without prejudice to Wesco filing a similar or non -similar application or applications for the subject property. The issue of whether Wesco can pursue multiple applications at the same time is not being finally decided and the respective parties fully preserve their rights and arguments on this issue. DowNs RACHLIN MARTIN PLLC Dated at Burlington, Vermont this, day of December 2006. WESCO, INC. By:_�'` Marc Heath, Esq. Downs Rachlin Martin PLLC 199 Main S%� eet, P.O... ox 190 BuWnatoi VT 0540 Un `UCfilliar E. Si' 6ndi er, Esc Sarvak and Simendinger, PC 32 San Remo Drive So. Burlington, VT 05403 Dated at Burlington, Vermont this 18th day of December 2006. CITY OF SOUTH BURLINGTON /r By: Amanda S.E. Lafferty, Esq. Stitzel, Page & Fletcher, P.C. 171 Battery Street, P.O. Box 1507 Burlington, VT 05402-1507 2 1 l ORDER The Court hereby VACATES the June 29, 2006, Decision on Pending Cross -Motions for Summary Judgment in the above -captioned matters and DISMISSES the appeals in Docket No. 152-7-02 Vtec, Docket No. 153-7-02 Vtec, Docket No. 6-1-03 Vtec and Docket No. 207-10-05 Vtecr�'prejudice to'Wesco filing similar or non -similar applications for the subject property. The issue of whether Wesco can pursue multiple applications at the same time is not being finally decided and the respective parties fully preserve their rights and arguments on this issue. So Ordered:0 6_'s 1 • �' ' ° . HonoraAe Thomas S. Durkin Date BTV.52:193.1 q t STATE OF VERMONT ENVIRONMENTAL COURT } In re: Appeals of Wesco, Inc. } Docket Nos. 152-7-02 Vtec; (1041 Shelburne Rd., } 153-7-02 Vtec; South Burlington) } 6-1-03 Vtec; and } 207-10-05 Vtec Decision on Pending Cross -Motions for Summary Judgment This matter concerns appeals by Wesco, Inc. (Appellant) from four decisions of the City of South Burlington (City) Development Review Board (DRB) denying site plan, conditional use and variance approval and refusing to consider Appellant's application for a planned unit development (PUD). Each decision relates to proposed improvements of the same property, used as the "Champlain Farms Texaco," on Shelburne Road. Appellant is represented jointly by Marc B. Heath, Esq. and William E. Simendinger, Esq.; the City is represented by Amanda S. E. Lafferty, Esq. Procedural History Before reaching the substantive issues presented by the parties' cross -motions for summary judgment, a brief review of the substantial and protracted history of this proposed development is warranted. On October 17, 2001, Appellant submitted an application to the DRB requesting conditional use approval for improvement of their gasoline service station and convenience store located at 1041 Shelburne Road. Less - - ---- -than a z*nonthlater.on November 7,.200.1, Appellant submitted a second application to the DRB requesting approval of a variance from setbacks on the property. See Exhibit H attached to City's Mot. for Summ. J. in Docket Nos. 152-7-02 Vtec, 153-7-02 Vtec and i 6-1-03 Vtec. On March 18, 2002, Appellant submitted another application to the DRB, this one for site plan review for the proposed improvements on the property. After reviewing the conditional use and variance applications at three public hearings on January 22, April 2, and May 21, 2002, and after reviewing Appellant's application for site plan review at public hearings on April 2 and May 21, 2002, the DRB denied all three applications by two written decisions on June 18, 2002. Appellant appealed the denial of its application for variances in Docket No. 152-7-02 Vtec and appealed the denial of its applications for conditional use approval and site plan review in Docket No. 153-7-02 Vtec. In Docket No. 153-7-02 Vtec, this Court granted Appellant's motion to remand to the DRB to consider Appellant's conditional use and site plan review applications under § 26.002 of the City's Zoning Regulations, relating to alterations to noncomplying structures. On remand, the DRB again denied Appellant's applications on December 17, 2002. Appellant thereafter appealed the DRB's denial to this Court in Docket No. 6- 1-03 Vtec. After that appeal, the parties agreed to consolidate all the then pending appeals and to put the appeals on inactive status, pending AppelIant's submission of yet another application to the DRB, this time for planned unit development approval. On July 1, 2005, Appellant submitted a complete application to the DRB for preliminary and final plat review requesting to have their gasoline service station and convenience store improvements approved as a planned unit development (PUD). By letter dated July 8, 2005, the City's Zoning Administrative Officer (Administrative Officer) refused to accept the applications and returned them to Appellant. In his letter refusing the applications, the Administrative Officer wrote that because Appellant's otherapplications for improvement of the same property were on appeal to the Environmental Court, any subsequent application to develop or improve the property constituted a request for an advisory opinion, which the Administrative Officer could not render. Appellant appealed the Administrative Officer's decision not to accept the applications for preliminary and final plat review to the DRB, which held a public hearing on the appeal on August 16, 2005. By decision dated September 21, 2005, the 2 DRB upheld the Administrative Officer's decision to refuse to consider and to return the applications. Appellant subsequently appealed the DRB's decision to this Court in Docket No. 207-10-05 Vtec. Issues Presented Both parties filed cross -motions for summary judgment in the consolidated appeals and in Docket No. 207-10-05 Vtec. The issues raised by the cross -motions for summary judgment and by Appellant's Statement of Questions in the consolidated appeals -- Docket Nos. 152-7-02 Vtec, 153-7-02 Vtec and 6-1-03 Vtec -- may be summarized as follows: (a) Whether Appellant's proposed improvements to the gasoline station and convenience store require a variance or variances? (b) Whether Appellant can obtain a variance? (c) Whether Appellant's proposed site plan should be approved? (d) Whether Appellant's proposed improvements are entitled to approval as a conditional use? (e) Whether Appellant must still obtain a conditional use permit for its new convenience store, given that amendments to the City's Zoning Regulations, effective September 6, 2005, now allow as. a permitted use convenience stores under 3,000 square feet that are located in a principal structure on propertyin the Commercial 1 zoning district? Both Appellant and the City have also filed cross -motions for summary judgment based on Appellant's Statement of Questions in Docket No. 207-10-05 Vtec. The issues raised by the Statement of Questions and cross -motions for summary judgment in that docket may be summarized as follows: (a) Whether Appellant is entitled to submit an application for a planned unit development (PUD), despite the fact that this Court has not yet ruled on the previously filed variance, site plan and conditional use application appeals? (b) Whether Appellant's application for a PUD constitutes a request for an advisory. opinion, which the DRB can refuse to provide? 9 (c) Whether the DRB is prevented from hearing and ruling on Appellant's application for a PUD based on the doctrine of res 'udt icata? (d) Whether Appellant's PUD application should be deemed approved under 24 V.S.A. § 4448(d) for the failure of the Administrative Officer to act on the application in a timely manner? (e) Whether this Court can rule on the merits of Appellant's PUD application or whether it should be remanded to the DRB for their consideration? (f) Whether Appellant's PUD application satisfies the Zoning. Regulations' criteria for approval of a PUD? Factual Background For purposes of our analysis of each party's motion, any facts in dispute are viewed in a light most favorable to the non-moving party. Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44,48 (1990). The following facts are undisputed unless otherwise noted: 1. Appellant owns a 0.38-acre, 100-foot deep (east -west) and 165-foot wide (north -south), rectangular parcel of property at 1041 Shelburne Road in the City's Commercial 1 (Cl) zoning district. The property has 156 feet of frontage on the west side of Shelburne Road. 2. The existing uses of the property are as a convenience store and gasoline service station, now or formerly known as the Champlain Farms Texaco. The service station consists of two fuel pump islands with a total of four fueling positions, roughly in the middle of the parcel. The building housing the convenience store use was' originally only 8' x 28' with the long side oriented north -south' (i.e.: parallel to Shelburne Road). --- ---- ---- — 3. In 1984, Appellant applied for and received a variance from the rear setback requirements of the City's Zoning Regulations to construct a 10' x 48' addition to the rear of the convenience store nine feet from the rear lot line. After the 1 Most building dimensions are approximate as they are estimates taken from measurement by scale on Appellant's 1984 and March 13, 2002 site plans. 4 construction of the addition, the convenience store, as it exists now, is 559 square feet and shaped like a short T with the length of the rear wall being forty-eight feet long. Due to an apparent error in constructing the 10' x 48' addition, Appellant's existing structure was built one foot closer to the rear lot line (i.e.: eight feet away) than authorized by the 1984 variance. No Certificate of Occupancy was issued after the construction of the 10' x 48' addition, presumably because the structure did not comply with the variance authorizing its construction. 4. The convenience store building has an eight -foot rear setback, a seventy- foot front setback, a sixty -one -foot southerly side setback, and a fifty-five foot northerly side setback. The existing building coverage is 11%. 5. In addition to the T-shaped convenience store and the two gasoline islands, there is a 1,344 square -foot canopy over the original front portion of the convenience store and the pump islands. The canopy is set back approximately thirty- seven feet from the front, easterly lot line; approximately twenty feet from the rear (i.e.: westerly) lot line; approximately sixty-eight feet from the southerly side lot line and approximately sixty-five feet from the northerly side lot line. 6. There is also a forty-eight square -foot wood shed near the southwesterly comer of the convenience store. 7. The majority of Appellant's parcel is paved with asphalt or concrete, though there are shrubs located between the parcel's two curb cuts onto Shelburne Road. The northerly curb cut is forty -two -feet -wide; the southerly curb cut is forty -feet - wide. There. is also significant vegetation which wraps around the southerly and westerly boundaries of the parcel from the southeast corner to just north of the rear of the existing convenience store. 8. The total lot coverage of the existing convenience store and gasoline service station is 68%, and the existing coverage within the thirty-foot front setback area (i.e.: along Shelburne Road), excluding landscaping, is 79% 5 9. As stated above, in the fall of 2001, Appellant applied for conditional use approval and a variance from the C1 District's thirty-foot rear setback to replace the existing convenience store, proposing to enlarge it to 1,104 square feet or 23' x 48'. In the spring of 2002, Appellant also applied for site plan approval for replacing and enlarging the convenience store and to replace the existing 1,344 square -foot canopy with a new 768 square -foot, 24' x 32' canopy. All approvals sought by Appellant were denied and appealed to this Court. 10. In the first three consolidated dockets, Appellant proposes replacing and upgrading the existing convenience store and service station canopy. Appellant proposes to replace the existing T-shaped convenience store building with a rectangular building. The new building's rear wall will be in the same location as the existing T- shaped convenience store's forty -eight -foot -long north -south rear wall, just one foot further from the rear (westerly) lot line. Effectively, this replacement adds two areas of new floor space on both the north and south sides of the original, pre-1984 convenience store building to the east of the 10' x 48' addition built in 1984, 11. The proposed 1,104 square -foot, 23' x 48', rectangular convenience store would have a nine -foot rear setback, a sixty -rune -foot front setback, a fifty -six-foot northerly side setback anda sixty -one -foot southerly side setback. - 12. Appellant's proposed new 24' x 32' canopy would have thirty -eight -foot front and rear setbacks and would maintain the existing sixty -eight -foot southerly side setback and sixty -five-foot northerly side setback. 13. The aggregate cost of Appellant's proposed improvements would not exceed 25% of the fair market value of the property. The proposed improvements would also reduce the total lot coverage from 68% to 61%. The front setback coverage, excluding landscaping, would also be reduced from 79% to 68%. The existing building coverage would remain at 11%. 09 14. Aside from the changes to the convenience store building and canopy, Appellant proposes reducing the width of both curb cuts to thirty-six feet, designating eight parking spaces, screening the dumpster near the southwesterly corner of the property, constructing a new landscaped island between the curb cuts and installing new exterior light fixtures. Appellant has not provided a point -by -point lighting plan of the new fixtures. 15. Also as mentioned above, on July 1, 2005, Appellant submitted a complete application to the DRB for preliminary and final plat review to have their gasoline service station and convenience store improvements approved as a PUD. The merits of Appellant's PUD application were never addressed by the DRB because it upheld the Administrative Officer's decision not to accept the application. While the Administrative Officer recognized that this new application related to an alternative development proposal, he concluded that the application constituted a request for an advisory opinion that the DRB and Administrative Officer cannot give. Appellant appealed the DRB's refusal to consider the merits of the PUD application to this Court in Docket No. 207-10-05 Vtec. Discussion Appellant's proposed improvements to the gasoline service station and convenience store conform to only some of the dimensional standards for the C1 District. Appellant's project does not exceed the C1 District's maximum lot coverage of 70%, the fifteen -foot side setback standards and the required parking of eight spaces, ........ _. _........... ._._..........___................... .........._.___......._...... ._............._... .... _ _ ................. . due to the fact that the convenience store contained 804 square feet of retail floor area. City of S. Burlington Zoning Regulations Tbl. 25-1, App. A (Aug. 21, 2001). Appellant's 16,500 square -foot lot is noncomplying, as it is less than the 40,000 square -foot minimum lot size. The parcel also does not conform to the 200-foot minimum frontage required along Shelburne Road; the fifty -foot front setback; the thirty-foot rear setback; or the maximum front yard coverage of 30%. Regulations Tbl. 25-11; §§ 25.101, 25.107. N Although facts have not been provided regarding the date the lot was created, we presume for the sake of our analysis here that Appellant's lot qualifies as a lawful, pre-existing small lot. Regulations § 25.111. However, this does not exempt Appellant from meeting the C1 District's minimum setback requirements. See In re LaBounty, Enters., Inc., Docket Nos. 232-12-04 Vtec and 85-5-05 Vtec, slip op. at 4 (Vt. Envtl. Ct. Sept. 16, 2005); In re: Appeal of Tenness & Berrie, Docket No. 134-7-04 Vtec, slip op. at 1 (Vt. Envtl. Ct., Sept. 6, 2005). Notably, Appellant does not qualify for any of the exceptions to the setback and lot coverage requirements in Regulations § 25.118 because its proposed principal use is neither a single or two-family residential use. Thus, the full setback and lot coverage requirements in the C1 District apply, unless all variances needed for Appellant's improvements are granted. ILDocket No. 152-7-02 Vtec: Appellant's variance applications and the need for them_ A: Are variances needed? Both Appellant and the City have filed cross -motions for summary judgment on the issues of whether Appellant needs to obtain a variance for its proposed improvements and whether such variance can be granted. Appellant's previously - approved variance, obtained in 1984, allows the existing, twenty -foot -high, T-shaped convenience store to be located nine feet from the rear (westerly) lot line and wholly within the 30-foot minimum rear setback required by. Regulations Table 25-1. The existing convenience store is located only eight feet from the rear lot line, and as such does not -conform to-th"reviously- approved -variance - Appellant's _propo_sed_..1,144 __-- square-foot, 23' x 48', rectangular convenience store will also be located almost entirely within the rear setback, except for a small 3.75' x 48' rectangular sliver composing the easterly side or front of the building, which is outside the rear setback. Regarding the rear setback variance, the .question becomes whether Appellant's 1984 variance allows for the construction of the new convenience store nine feet from the rear lot line, or E:l whether an additional dimensional variance is needed. We,_conclude _that additional variances are needed. B: variances needed for new convenience store. "[A] variance is granted on proof of circumstances peculiar to the land of the applicant, not on the ground that the applicant himself has a special problem. A variance is granted, not as a right vested in the applicant, but as a right of use which applies to and runs with specific land." K. Young, Anderson's American Law of Zoning § 20.71 (4th ed. 1996). Thus, if Appellant's new convenience store was to occupy the same volume of the rear yard as the existing convenience store, he would not need a new dimensional variance, as a yard is "open space on a lot, unoccupied and unobstructed from the ground upward," Regulations § 28.163. However, while both buildings are twenty feet tall, a portion of the new rectangular convenience store building occupies space within the rear setback where the existing T-shaped convenience store does not. Thus, Appellant's proposed new structure will encroach rther upon the rear setback and therefore requires additional variances. See Appeal of Barnes, 154-8-04 Vtec, slip op. at 6-7 (Vt. Envtl. Ct., May 18, 2005) (additional height added to a pre-existing noncomplying structure inside setback needs a variance); 'see also In re A121eal of Tucker. Docket No. 123-7-98 Vtec (Vt. Envtl. Ct., Aug. 2, 1999); aff'd Docket No. 1999-399 (Vt., Mar. 10, 2000) (unreported mem.) (three -justice panel) (permit to build one-story building extending into side setbacks does not authorize expansion to two stories within the setbacks, even though it would not have violated the height limitations or extended laterally any farther into the setbacks). Thus, Appellant must obtain an additional dimensional variance for any new construction in the rear setback that was not covered by the 1984 variance. Appellant proposes moving the new convenience store one foot closer to the center of the lot from the rear westerly lot line to comply with the 1984 variance, which allowed a twenty -foot -high convenience store to be built nine feet from the rear lot line. C, A majority of the volume of the new convenience store would be included in the 1984 variance. But Appellant proposes a rectangular building in lieu of the existing T- shaped structure; the northeasterly and southeasterly corners of the new convenience store will be new construction that will encroach upon additional areas within the rear setback. Excluding a 3.75' x 48' narrow rectangular sliver composing the front of the new building that is outside the rear setback area, there is an approximately 10' x 8.75' area on southerly side of the new structure and an approximately 10" x 9.38'2 area on the northerly side of the new structure in the rear setback for which a dimensional variance from the rear setback requirement is needed but has not as of yet been applied for or obtained. Aside from those two rectangular areas on the northerly and southerly ends of the building, the new convenience store would be constructed within Appellant's 1984 variance. Appellant must therefore apply for a new dimensional variance from the rear setback requirement for any new construction in the rear . setback, but not for any construction nine feet easterly of the rear lot line that corresponds to the footprint of the old T-shaped convenience store. Thus, additional variances are needed before the proposed new construction can be authorized. We discuss below whether new construction in this instance is permitted under the Regulations. But we cannot reach the issue of whether these additional variances should be allowed, as that request was never posed to or acted upon by the DRB. We r-egret-that_we cannot reach the substantive analysis of Appellant's needed variances, but must respect the limits of this Court's jurisdiction. Our Supreme Court has repeatedly stated that this Court is without jurisdiction to entertain zoning applications that have not first been reviewed by the appropriate municipal panel. See Simendinger -2 The dimensions of these two rectangular areas are approximate as they are estimates taken by measurement from the scale on Appellant's March 13, 2002 site plan. 10 and Wesco, Inc. v�CitY of Barre 171 Vt. 648, 651 (2001) and In re Torres, 154 Vt. 233, 235 (1990). C: variances needed for new canoUY. Appellant also proposes to replace the existing canopy over the two gasoline pump islands with a new, 24' x 32' canopy that extends into the required fifty -foot front setback. Regulations § 25.102. An 11.25' x 32' section of the new canopy extends easterly into the front setback.3 In relation to the front setback requirement, Appellant's proposed new canopy has a similar footprint to the existing canopy, which also extends into the fifty -foot front setback. Since the existing canopy does not meet the C1 District's front setback requirement, it is a noncomplying structure and subject to Regulations § 26. Under the law in effect when Appellant filed its application for the new canopy in 2002, noncomplying structures were also nonconforming uses, 24 V.S.A. § 4408 (2002); In re Miserocchi, 170 Vt. 320, 323 (2000); see also Smith v. Winhall Planning Comm'n 140 Vt. 178, 181-182 (1981) (rights vest under the existing regulations as of the time when proper application is filed). In this instance however, modifying or replacing canopies over existing gasoline pumps are not classified as extending or enlarging the nonconforming use of the property and are to be treated as noncomplying structures, not nonconforming uses. In re Pearl Street Mobil, Docket No. 2001-249, slip op. at 3 (Vt., Dec. 21, 2001) (unreported mem.) (three -justice panel). Unlike the proposed complying canopy over the gasoline pumps at issue in In re ..__............. ...._.... _...... Appeal of Wesco Inc., Docket No. 107-6-04 Vtec (Vt. Envtl. Ct., June 10, 2005)-, aff~d Docket No. 2005-277 (Vt., Mar. 29, 2006) (unreported mem.) (three -justice panel), the new canopy proposed here violates the Regulations' front setback requirement. As 3 The dimensions of the new canopy's area in the front setback area are taken by scale measurement from Appellant's March 13, 2002 site plan. We also note that it appears that Appellant's March 13, 2002 site plan should have the canopy size listed as 24' x 32' instead of 32' x 24' to be consistent with other area measurements on the plan, including the dimensions of the new convenience store. 11 such, the proposed canopy may only be built if it is allowed as a replacement of a noncomplying structure under Zoning Regulations § 26 or if a variance is granted from the front setback requirements. Zoning ordinances are .interpreted according to the general rules of statutory construction. In re Weeks, 167 Vt. 551,' `554 (1998). Thus, we first look to the plain meaning of the ordinance. In re Stowe Club Highlands, 164 Vt. 272, 279 (1995). If the plain meaning "resolves the conflict without doing violence to the legislative scheme, there is no need to go further ...." Lubinsky v.'Fair Haven Zoning Bd., 148 Vt. 47, 49 (1986). Section 26 of the City's Zoning Regulations is clear and unambiguous. Section 26.002, the Regulations' only section authorizing changes to noncomplying structures, provides in part: [A]ny 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 . . . of the [commercial property's] fair market value .... 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). Regulations § 26.002. The Regulations further define the term "alterations" to a building or structure as, "a change or rearrangement in the structural parts or in the exit facilities, or an enlargement, whether-b-y-extend-ing._on_a_side tZr_by increasing in height." Id. § 28.101 Nothing in the record before us suggests that Appellant's proposed plans meet this definition of "alterations." The plain language of this section and the definition of "alterations" dictate that Regulations § 26.002 is not applicable to Appellant's proposed canopy because Appellant does not propose to alter the existing structure, but rather to replace it 12 entirely. Although the new canopy is smaller than the existing canopy, Appellant does not propose to alter the existing canopy, which is permitted by the terms of § 26.002. Nothing in § 26 allows for the replacement of a noncomplying structure, in the absence of damage or destruction "by fire, collapse, explosion, or similar cause." See id. § 26.005. Nothing in the record here reveals that such a calamity has occurred here. Therefore, in order to replace the existing canopy over the gas pumps, Appellant must obtain a variance for the proposed.new canopy's 11.25' x 32' intrusion into the fifty -foot front setback. D: variances needed for front setback coverage. Regulations § 25.107 requires that "[i]n 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." Id. § 25.107. Appellant's existing front yard coverage is 79% and is therefore noncomplying with Regulations § 25.107. Appellant proposes reducing the front yard coverage to 68%, but that does not obscure, the fact that the structures proposed for Appellant's lot will remain noncomplying with the front yard coverage requirement. As noncomplying structures are also nonconforming uses, Miserocchi, 170 Vt. at 323, Appellant's change, albeit a reduction in the nonconforming use, is prohibited by § 26.004 of the Zoning Regulations, which explicitly prevents changing from one nonconforming use to another. Therefore, Appellant also needs to obtain a variance from the 30% maximum front yard coverage requirement. E: summary of needed variances. In sum, Appellant must obtain at least three variances to build the proposed replacement gasoline service station and convenience store —one from the rear setback requirement for the new building construction in the rear setback outside the existing building's footprint, one for the new canopy's intrusion into the front setback and one from the front yard coverage requirement. 13 While the standards to be applied to the variance application above are clear, 24 V.S.A. § 4468(a) (2003), facts are in dispute as to whether'Appellant's application for a variance from setbacks requirements can, satisfy those standards. Moreover, an application was never presented to the DRB below regarding a variance from the front yard coverage requirements. Therefore, we must remand part of the appeal in Docket No. 152-7-02 Vtec for Appellant to submit to the DRB an application for a variance from the front yard coverage requirements." Il. Docket Nos.153-7-02 Vtec and 6-1-03 Vtec: Appellant's Conditional Use and Site Plan Applications Appellant originally applied for conditional use and site plan approval for replacing the existing convenience store and canopy over the gasoline pump islands in the fall of 2001. After an initial denial by the DRB and this Court's remand for the DRB to consider Appellant's site plan under Regulations § 26, relating to nonconforming uses and noncomplying structures, the DRB again denied conditional use and site plan approval.. At that time, service stations were permitted uses and convenience stores were conditional uses in the C1 District. Regulations §§ 12.106, 12.213. "Service stations" are defined by the applicable Regulations as, "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." Id. § 28.147. "Convenience store" is also defined by the applicable Regulations as, "A retail establishment, typically less than 4,000 square feet, offering for sale prepackaged food products, household items, newspapers and magazines, and may include sandwiches and other freshly prepared I I foods for off -site consumption." Id. § 28.108. I As the City correctly points out, the Regulations limit principal uses to one per lot. Id. § 26.651. Fortunately for Appellant however, the Regulations provide that the 14 DRB may approve two uses, even if one use is a conditional use, so long as the standards in § 26.651(a)(i) and (a)(ii) are satisfied. These provisions require that the two uses be compatible in their normal manner of operation, including hours of use, types of traffic generated, and lack of objectionable noise, odor, or dust, as well as requiring that both uses share common facilities, such as parking and outdoor storage areas. We find that the material facts, even when viewed in a light most favorable to the City, evidence that Appellant's combined convenience store (which is a conditional use) and gasoline service station (which is a permitted use) to be sufficiently compatible so as to satisfy § 26.651 (a)(i) and (a)(ii), as they generate similar traffic, have compatible hours of operation, and share common facilities effectively. Thus, Appellant's two uses may be allowed, provided the convenience store can satisfy the requirements for approval of a conditional use. Id. § 26.0.5. Appellant argues in its cross -motion for summary judgment that because the City recently amended its Zoning Regulations to allow convenience stores as a permitted use in the C1 District, Appellant should not have to undergo conditional use review. Appellant's position ignores the venerable rule mentioned above that we are to apply the regulations in effect when a proper application is filed. Smith v. Winhall Planning Comm'n, 140 Vt. 178, 181-82 (1981Y. Appellant's suggestion implies that an applicant can choose to have its proposed development reviewed under differing zoning provisions, depending upon which regulations label which component of its development as permitted. We are not aware of any authority for such a proposition, and decline to follow it here. Thus, regardless of whether subsequent amendments to a zoning ordinance change a particular .use's classification from a conditional use to a permitted use, we must still apply the City's August 28, 2001 Regulations to Appellant's 15 pending application, as those Regulations were in effect when Appellant applied to improve its gasoline station and convenience store.4 The existing convenience store, gasoline pumps and canopy are noncomplying structures because they do not ''satisfy the Regulations front and rear setback requirements.5 Under the law in effect when Appellant applied for site plan review, noncomplying structures were defined as nonconforming uses. 24 V.S.A.. § 4408 (2003); Miserocchi, 170 Vt. at 323; see also In re Appeal of Wesco, Inc., 2006 VT 52, 124. As such, Appellant's replacement of the existing convenience store may only be authorized by Regulations § 26. Before examining the plain language of § 26, we note that there is a strong preference for phasing out nonconforming uses because they are inconsistent with the purposes of zoning. See, p.Z , Hinsdale v. Vill. of Essex function', 153 Vt. 618, 626 (1990) ("Nonconforming uses are inconsistent with the purpose of zoning and are tolerated only because they are antecedent to the applicable zoning provisions. A goal of zoning must be to phase out such uses."). The replacement of nonconforming uses may only be conducted if allowed by the applicable zoning regulations. 24 V.S.A. § 4408 (2003). Examining the plain language of Regulations § 26, no provision authorizes the replacement of a nonconforming use with another nonconforming use.6 Similarly, no provision in § 26 allows for the replacement of a noncomplying structure, unless the need for the replacement is due to damage or destruction "by fire, collapse, explosion or similar cause ..:." Regulations § 26.005. There is no evidence in the record before us 4 Appellant could resolve this quandry by withdrawing its pending application and resubmitting a new application under the new Regulations. We presume that Appellant has considered this option and rejected it for strategic reasons. 5 Although Appellant obtained a variance in 1984 from the rear setback requirement to place the convenience store nine feet from the rear (westerly) lot line, the convenience store was actually constructed one foot closer to the rear lot line than authorized by the variance. Thus, it is a noncomplying structure. 6 Without obtaining the variances'required by Part I above, Appellant's proposed convenience store is also a nonconforming use because it does not comply with the C1 District's rear setback requirement. 16 that such damage or destruction has occurred here. We therefore conclude that Appellant is prohibited from replacing its nonconforming convenience store and the associated canopy with new structures, since the only authority in the Regulations to do so is not applicable here. Regulations § 26.005 Appellant suggests an alternative characterization of its improvements —that its proposed improvements be viewed as enlargements or extensions of pre-existing structures. It stretches the imagination to characterize Appellant's proposed improvements as anything other than outright replacements, since Appellant proposes removing the entire existing building and canopy and replacing them with new structures. Thus, we decline to adopt Appellant's characterization of its replacement of the convenience store and canopy as an addition or expansion. But even if we were to characterize Appellant's proposed improvements as enlargements or extensions,. nonconforming uses may not be extended nor enlarged. Zoning Regulations § 26.003. Changes in nonconforming uses are also prohibited. Id. § 26.004. Thus, Appellant's alternate characterization of its proposed improvements does not lead us to the conclusion that the applicable Regulations allow for the proposed improvements. Because Appellant proposes an unlawful replacement of a nonconforming use with another nonconforming use, site plan approval must be denied until Appellant receives the necessary variances from the applicable dimensional requirements mentioned in Part I above. Once all of Appellant's variance applications are granted, site plan review can be conducted under Regulations § 26.10. If such variance requests remain unauthorized, we cannot envision how Appellant's site plan application could be granted under the Regulations, even as now amended. In either instance, summary judgment in favor of the Town is appropriate at this time in both of these dockets. (i.e.: Docket No. 153-7-02 Vtec and No. 6-1-03 Vtec). 17 M. Docket No. 207-10-05: Vtec App Mant's PUD A lication Lastly, we are presented with an appeal of the DRB's decision to uphold the Administrative Officer's refusal to accept Appellant's application for preliminary and final plat review so that Appellant can develop its parcel as a planned unit development (PUD). Appellant has moved for summary judgment, arguing that its application for preliminary and final plat review should be deemed approved because the Administrative Officer failed to issue a decision or refer the application to the DRB within thirty days as required by' 24 V.S.A. § 4448(d) (2005). The City argues in its cross -motion for summary judgment that Appellant's preliminary and final plat review applications were barred by .the doctrine of res judo icata and constitute requests for impermissible advisory opinions. As noted above, when analyzing each party's motion, any facts that are material to our present analysis of the parties' dispute are viewed in a light most favorable to the non-moving party. Toys Inc. v. F.M. Burlington Co.,, 155 Vt. 44,48 (1990). Beginning in April 2005, Appellant began submitting materials in support of its application for preliminary and final plat approval to the DRB. On July 1, 2005, Appellant submitted all remaining materials required for such application, and the City considered the application complete. On July 8, 2005, the Administrative Officer returned the application to Appellant, noting that the application constituted a request for an advisory opinion that the DRB had no legal authority to render. Appellant argues that its application should be deemed approved because the zoning Administrative Officer failed to act on the application for a permit within thirty days. Essentially, .Appellant argues that the provisions of 24 V.S.A. g 4448(d) require the Administrative Officer to "issu[e] a decision or [make] a referral to the appropriate municipal panel," id., which Appellant alleges did not. occur. FR Our Supreme Court has "cautioned against using the deemed approval remedy beyond its purpose to remedy indecision and protracted deliberations." In re Fish, 150 Vt. 462, 464 (1988); see also Hinsdale v. Village of Essex Tunction 153 Vt. 618, 623-24 (1990). Because improper application of the deemed approval remedy can operate to grant permits wholly at odds with the zoning ordinance, we strictly construe the remedy to apply only when it clearly implements the statutory purpose. In re Appeal of Newton Enters., 167 Vt. 459, 465 (1998); see also In re Appeal of McEwing Servs., LLC, 2004 VT 53, 1121. This is not an instance where the Administrative Officer was indecisive. In fact, just a week after the Administrative Officer determined, however incorrectly, that the application was improper and could not be referred to the DRB, he announced his decision in writing and returned the application to Appellant. Thus, the Administrative Officer did not "fail to act with regard to a complete application for a permit within 30 days," 24 V.S.A. § 4448(d), as he promptly issued his written determination and returned the application to Appellant. The remedy of deemed approval is therefore not appropriate here. In its cross -motion for summary judgment, the City argues that the doctrine of res 'udi icata bars Appellant's PUD application from being considered because Appellant had already submitted the variance, conditional use and site plan review applications addressed above. The City relies on In re Application of Carrier,, 155 Vt. 152,158 (1990), for the proposition that a second application for development of the same property cannot be reviewed "'after a previous application has been denied ...."' Id., quoting Silsby v. Allen's Blueberry Freezer, Inc., 501 A.2d 1290, 1295 (Me. 1985). However, the City fails to emphasize the remainder of the quoted sentence in Carrier; the subsequent phrase makes clear that a second application for development of the same property may be allowed if "'a substantial change of conditions ha[s] occurred or other considerations 19 materially affecting the merits' of the request have intervened between the first and second application." Id., again quoting Silsby at 1295 (other references omitted). Here, Appellant's application for PUD approval was applied for after such a change in conditions, as the applicable development regulations have changed since Appellant's 2002 applications. Appeal of Wesco, Inc., Docket No. 39-3-03 Vtec, slip op. at 3-4 (Vt. Envtl. Ct., Nov. 29, 2004) (stating that a change in circumstances may include a "material change in the applicable law or regulation.") Moreover, this is not an impermissible successive application, as the 2005 application is materially different in content from the 2002 application. The two. applications presented by Appellant were submitted under different provisions of the Regulations —the 2002 application was for the development of a permitted and conditional use and the 2005 application is for approval of a planned unit development under completely different standards. By the City's own admission, both applications "propose completely different development scenarios for the Property." City's Mot. for Summ. J., at 6. Thus, the applications are not only different in content, but the City's amendment of their Zoning Regulations amounts to a substantial change in conditions barring application of the doctrine of res jud1 icata. The City also argues that Appellant's 2005 PUD application is a request for an impermissible advisory opinion. The City relies on our Supreme Court's opinion in Appeal of Bennington School, Inc., 2004 VT 6, to argue that Appellant's 2005 PUD application constituted a request for an advisory opinion, which the Administrative Officer and DRB cannot render. The situation at bar is quite different from that presented in Bennington School. There, the Supreme Court refused to rule on a hypothetical alternative development proposal that was presented to the Environmental Court on appeal but was never presented to the zoning board of adjustment in the first instance. 20 In .contrast here, the City was presented with an application but chose not to rule on it. Appellant then appealed. We can not rule on the merits of Appellant's PUD application, since we are jurisdictionally prohibited from ruling on zoning applications that have not been considered by the appropriate municipal panel. See Simendinger, 171 at 651, and Torres, 154 at '235. But we are jurisdictionally authorized to render determinations on matters properly appealed from the municipal panels. The DRB determined that Appellant's application constituted an improper request for an advisory opinion. We see no foundation for such a legal determination and therefore reverse. We are aware of no statutory or zoning provision that prevents Appellant from going forward with the proposed PUD if it is eventually approved by the DRB, or this Court on appeal. As we stated in our September 12, 2005 Entry Order, "The marketplace will often dictate whether development will actually occur, and the marketplace sometimes dictates that the property owner seek permission to develop their property in an alternate manner." Appeal of Wesco, Inc., Docket No. 152-7-02 Vtec; 153-7-02 Vtec; and 6-1-03 Vtec, slip op. at 3 (Vt. Envtl. Ct., Sept. 12, 2005). Moreover, aside from successive applications that are similar in content, there is no prohibition on the submission of more than one development proposal for the same property. Thus, as we stated in a different case involving -the Appellant here, "Appellant is entitled to have the DRB fully consider its proposal or proposals on their merits, and to appeal the merits of any denial, not merely whether [the application] is or is not an impermissible successive application." Appeal of Wesco, Inc., Docket No. 39- 3-03 Vtec, slip op. at 4 (Vt. Envtl. Ct., Nov. 29, 2004) (emphasis added). Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellant's cross -motion for summary judgment in Docket No. 152-7-02 Vtec is DENIED in part and the City's cross -motion for summary judgment is GRANTED in 21 part, as Appellant needs to obtain a variance ` from the front and rear setback requirements, as well as a variance from the front yard coverage requirements. Appellant's variance application is hereby REMANDED for the DRB to consider in the first instance whether a variance should be allowed from the 30% maximum front yard coverage requirement. The Court is prepared to schedule a trial on Appellant's appealed application for a variance from the "setbacks" on the parcel, particularly from the rear setback requirement for the approximately 10' x 8.75' area on southerly side of the new structure and for the approximately 9.38' x 10' area on the northerly side of the new structure. Appellant's cross -motion for summary judgment in Docket No. 153-7-02 Vtec and 6-1-03 Vtec is also DENIED and the City's cross -motion for summary judgment is GRANTED, as Appellant's present use is nonconforming and cannot be replaced under Regulations § 26. Even when the facts are viewed in a light most favorable to it, Appellant is unable to show that it has in hand all three variances required for the Court to possibly render positive findings in its review of Appellant's conditional use application. The appeals in these two dockets must therefore be DISMISSED at this time. Appellant's cross -motion for summary judgment in Docket No. 207-10-05 Vtec is also DENIED, as is the City's cross -motion for summary judgment, because the remedy` of deemed approval is not appropriate, because Appellant's 2005 PUD application was not a request for an advisory opinion, and because the doctrine of res 'udicata does not prevent Appellant from receiving a decision on the merits of its PUD application. Appellant's complete application for preliminary and final plat approval is herby REMANDED to the DRB with this Court's directive that the DRB consider the merits of Appellant's proposed PUD in conformance with this Decision. 22 R The Court will delay issuing the appropriate judgment orders in Docket Nos. 153-7-02 Vtec, 6-1-03 Vtec and 207-10-05 Vtec, and the scheduling of a merits hearing in the two retained variance requests in Docket No.152-7-02 Vtec until Monday, August 7, 2006, so that the parties may suggest the schedule for such proceedings. The parties are directed to confer and then submit their procedural suggestions (whether they be joint or not), in regards to whether the Court should stay or dismiss the remaining proceedings, without prejudice, pending the resolution of the variance and PUD applications remanded to the DRB in accordance with this Decision. Done at Berlin, Vermont, this 2911, day of June, 2006. QO ai4 5-". QL--� - - - Thomas S. Durkin, Environmental Judge 23 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' WWW.FIRMSPF.COM ROBERT E. FLETCHER E-MAIUFIRM2555@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) TIMOTHY M. EUSTACE WRITER'S FAX (802) 660-2552 AMANDA S. E. LAFFERTY (-ALSO ADMITTED IN N.Y.) December 18, 2006 William Simendinger, Esq. Sarvak & Simendinger PC 32 San Remo Dr. South Burlington, VT 05403 WILL S. BAKER Re: Appeals of Wesco, Inc. Docket Nos. 152-7-02 Vtec, 153-7-02 Vtec, 6-1-03 Vtec, 207- 10-05 Vtec Dear Bill: In connection with the above -referenced matters, enclosed please find the original Stipulation for Dismissal Without Prejudice and Order. Thank you. Sincerely, Amanda S. E. Lafferty Enclosures cc: Raymond J. Belair son06-280.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 DOCKET NO.207-10-05 Vtec STIPULATION FOR DISMISSAL WITHOUT PREJUDICE The parties to the above -captioned actions, by and through their respective attorneys, hereby stipulate that these actions may be dismissed without prejudice by the Court, on the following terms and conditions: On June 29, 2006, the Environmental Court entered a written decision on Cross Motions for Summary Judgment in these actions (hereinafter the Decision). The Court did not enter final judgment on these Cross Motions, and instead directed the parties to meet and confer and consider how best to proceed on these matters; 2. The City of South Burlington has filed a Motion to Alter or Amend, asking the Court to revise portions of the Decision; 3. Wesco respectfully disagrees with the City's Motion to Alter or Amend, and has contemplated filing its own Motion to Reconsider portions of the Court's decision as well; 4. At this time, Wesco does not wish to proceed with the applications in the above - captioned appeals but instead prefers to redesign its proposal and submit a new application to the City; 5. Under these circumstances, neither party wants to be forced to appeal the Decision. NOW THEREFORE, the parties hereby stipulate and agree that the above -captioned matters may be dismissed without prejudice, subject to the Court vacating the Decision on Pending Cross -Motions for Summary Judgment entered June 29, 2006, in the above -captioned matters, without prejudice to Wesco filing a similar or non -similar application or applications for the subject property. The issue of whether Wesco can pursue multiple applications at the same time is not being finally decided and the respective parties fully preserve their rights and arguments on this issue. DowNs RACHLIN MARTIN PLLC Dated at Burlington, Vermont this day of December 2006. WESCO, INC. LI-M Lo Marc Heath, Esq. Downs Rachlin Martin PLLC 199 Main Street, P.O. Box 190 Burlington, VT 05401 William E. Simendinger, Esq. Sarvak and Simendinger, PC 32 San Remo Drive So. Burlington, VT 05403 Dated at Burlington, Vermont this 18th day of December 2006. CITY OF SOUTH BURLINGTON By; Amanda S.E. Lafferty, Esq. Stitzel, Page & Fletcher, P.C. 171 Battery Street, P.O. Box 1507 Burlington, VT 05402-1507 2 ORDER The Court hereby VACATES the June 29, 2006, Decision on Pending Cross -Motions for Summary Judgment in the above -captioned matters and DISMISSES the appeals in Docket No. 152-7-02 Vtec, Docket No. 153-7-02 Vtec, Docket No. 6-1-03 Vtec and Docket No. 207-10-05 Vtec without prejudice to Wesco filing similar or non -similar applications for the subject property. The issue of whether Wesco can pursue multiple applications at the same time is not being finally decided and the respective parties fully preserve their rights and arguments on this issue. So Ordered: BTV.525197.I Honorable Thomas S. Durkin Date 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 WRITER'S E-MAIL(ALAFFF.RTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 July 13, 2006 HAND DELIVERED Jackie Stevens, Manager Vermont Environmental Court 2418 Airport Road Barre, VT 05641-8701 Re: Appeals of Wesco Docket No. 152-7-02 Vtec Docket No. 153-7-02 Vtec Docket No. 6-1-03 Vtec Dear Jackie: JILL E. SPINELLI WILL S. BAKER Enclosed please find for filing the Motion to Alter or Amend on behalf of the City of South Burlington in the above -referenced matter. Please feel free to contact me with any questions or concerns. Thank you. Sincerely, �. / Amanda S. E. Lafferty ASEL/af Enclosure cc: Marc Heath, Esq. Ray Belair son06-167.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 MOTION TO ALTER OR AMEND NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C., and pursuant to V.R.C.P. 59(e), asks that the Court reconsider and amend its Decision on Pending Cross -Motions for Summary Judgment, entered June 29, 2006, as follows. Memorandum Rule 59(e) of the Vermont Rules of Civil Procedure provides the court an opportunity to "reconsider issues previously before it, and generally ... examine the correctness of the judgment itself." In re Robinson/Keir Partnership, Jack C. Keir & Jack C. Keir, Inc., 154 Vt. 50, 54 (1990). "A motion under Rule 59(e) suspends the finality of the judgment, and allows the trial court to revise its initial judgment if necessary `to relieve a party against the unjust operation of a record resulting from the mistake or inadvertence of the court and not the fault or neglect of a party."' Osborn v. Osborn, 147 Vt. 432, 433 (1986). The Decision states on page 8 that "Appellant's previously- approved variance, obtained in 1984, allows the existing, twenty -foot -high, T-shaped convenience store to be located nine feet from the rear (westerly) lot line and wholly within the 30-foot minimum rear setback required by Regulations Table 25-1 and 1 G STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 on page 9 that " ... if Appellant's new convenience store was to occupy the same volume of the rear yard as the existing convenience store, he would not need a new dimensional variance." Footnote 5 of the Decision provides that because the addition to the convenience store was constructed one foot further into the setback, it is a noncomplying structure. As provided in the City's statement of undisputed facts and admitted by Appellant, Wesco obtained a variance in 1984 that allowed, in a location no closer than nine feet to the rear property line, a 480-square-foot addition to the then - existing rectangular shaped building, which was a noncomplying structure because it did not comply with the rear yard requirement. See the City's Exhibits C, D. However, Wesco constructed the addition as an illegal structure because Appellant did not have approval for an addition that is eight feet from the property line'. See the City's Motion for Summary Judgment, FN 2. At least a portion, if not all, of that addition is neither a complying nor a noncomplying structure because it never conformed to the City Zoning Regulations. See the Regulations, Section 28.130; see also 24 V.S.A. §4408(2) in effect in 2001 and 2002("`Noncomplying structure' means a structure or part thereof not in conformance with the zoning regulations covering. .. yards ... where such structure conformed to all applicable laws, ordinances and regulations prior to the enactment of such regulations.") (emphasis added). There is no authority either in the Regulations or under State law that allows the ' Wesco also lacked approval to construct an addition that exceeded 480 square feet in area. 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 replacement of an illegal structure. Even assuming that Appellant has a vested right to reconstruct that portion of the structure for which the City Zoning Board of Adjustment granted a variance, said portion consists of a 480-square-feet footprint that may not extend closer than nine feet to the rear property line. The remaining portion of the existing convenience store building is a noncomplying structure and nonconforming use which, as the Court ruled, may not be replaced. See the Decision at pages 16-17. A variance is an authorization for the construction or maintenance of a building or structure ... which is prohibited by a zoning ordinance. K. Young, Anderson's American Law of Zoning §20.02 Wh ed. 1996)(Variance defined). The granting of a variance is an exercise of administrative power, not legislative authority ... Whe power to amend the zoning ordinance is legislative; it may not be exercised by a board of adjustment, or other administrative body. Id. at §20.04. In the present matter, it is clear that the City Zoning Board of Adjustment granted the variance after review of the plan under the variance standards of the Regulations and based on the facts that then existed. See Exhibits C, D. It is clear that Appellant proposed the 480 square foot structure as an addition to then -existing much smaller building because of an alleged need for additional space. See Exhibit D. The Board granted the variance under a very particular set of circumstances, not for all time. See K. Young, Anderson's American Law of Zoning §20.71 (4111 ed. 1996)("[A] variance is granted on proof of circumstances peculiar to the land of the 3 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 applicant, not on the ground that the applicant himself has a special problem."). The Board did not have authority to amend permanently the required setback. Appellant now proposes to change the facts that the Board considered and which formed the basis for the grant of the variance in 1984. Appellant proposes, voluntarily, to remove the existing building and to construct a new building in almost the exact same footprint and beyond. It would be speculation to assume that the Board would have granted a variance for the 480-square-foot portion of the existing convenience store building if the building that existed in 1984 had been larger than it was. In reliance on cases from other states, the Decision provides that a variance runs with the land and is not particular to the owner or applicant. See the Decision at page 9; see also K. Young, Anderson's American Law of Zoning §20.71 (4th ed. 1996). Those cases consider whether the benefit of a variance continues when the subject property is conveyed. The City does not dispute that it is unlikely that a new owner of Appellant's property would have to remove the addition approved by variance in 1984. The cases do not consider the situation present in this case, where an owner voluntarily removes a structure that exists by way of a variance and proposes to replace completely and to enlarge said structure. There is no authority for Appellant to reconstruct a portion of a structure approved by variance where Appellant voluntarily removes the existing structure. The Decision reviews Appellant's proposal under Section under 26.651 of the Regulations. However, there is no evidence that Appellant ever made such an 4 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT I.AW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 application or that the Development Review Board ever considered such an application. In fact, Appellant's application was for approval of a conditional use, which the Development Review Board denied because, without variances, the proposed use adversely affected the bylaws in effect. A true and correct copy of said Decision, marked as Exhibit L, is attached hereto. As the Court pointed out repeatedly in the Decision, the Court lacks authority to consider an application that was not submitted or reviewed in the first instance by the appropriate municipal panel. See Simendinger v. City of Barre, 171 Vt. 648, 651 (2001); see also In re Torres, 154 Vt. 233, 235 (1990). Moreover, Section 26.651 requires that a combination of permitted and/or conditional uses be reviewed as a whole as a conditional use. See Exhibit A, page 99 (Section 26.651(a)). As both the Development Review Board and this Court have noted, Appellant lacks numerous required variances. Until Appellant obtains said variances, Appellant's proposal cannot be approved as a conditional use. See Exhibit A, page 85(Section 26.052(d)). Conclusion For all the reasons set forth above and in the City's Motion for Summary Judgment and Reply to Appellant's Opposition to the City's Motion for Summary Judgment, the City respectfully requests that the Court revise the Decision and Order on Pending Cross -Motions for Summary Judgment in order to relieve the City from the unjust operation of the record in the following manner: 1. Holding that Appellant must obtain a new variance for every portion of the proposed convenience store building located in the rear yard based on the 5 changed circumstances of the new proposed project and remanding to the Development Review Board for review of said application; or To the extent that the Court determines that Appellant may replace the existing convenience store, that Appellant requires a variance for all portions of the proposed convenience store that were not approved by the variance in 1984; 2. Remanding the conditional use application to the Development Review Board for review under Section 25.65. DATED at Burlington, Vermont this 13th day of July 2006. son06-069wesco.1it STITZEL, PAGE &. FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1 507 STITZEL, PAGE & FLETCHER, P.C. Attorneys for the CITY OF SOUTH BURLINGTON By: C. �. Amanda S. E. Lafferty 1.1 #5P-02-17 #CU-01-46 STATE OF VERMONT COUNTY OF CHITTENDEN CITY OF SOUTH 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 rite plan application #51'-02-17 of Wesco, Inc. hereinafter "Applicant" for a project consisting of amending a plan for a 559 oq. ft. convenience Store with gar sales (4 fueling positions) and a 1344 oq. ft. canopy. The amendment consi5t5 of removing the existing 559 oq. ft. convenience Store and construction of 1104 oq. ft. convenience more and replacing an existing gas inland canopy with a new 24' x 32' canopy,1041 51-ielburne Road, ar depicted on a plan entitled "site Plan Werco Inc. Champlain Farms Texaco 1041 5helburne Road 5outh Burlington VT" prepared by 5MM Environmental Engineering, dated 7/23/01, last revised on 3/13102. The Applicant war present at the public meeting held on 12/17/02 relative to thin 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 or, thin application: FINDINGS OF FACT I. This project conoirto 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 an 1104 15q. ft. convenience store and replacing an existing gar island canopy with a new 24' x 32' canopy, 1041 5helburne Road, 2. The owner of record of this property is Werco, 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 cart 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 5q. ft. convenience store with gas sales (4 fueling positions) and 1544 oq. ft, canopy over the pump iolando. 6. This convenience store building has a 70 foot front yard setback, a 7 foot rear yard setback and ride yard setbacks of 61 feet and 55 feet. Applicant proposes to amend the Setbacks in the following manner: the front yard retback will be 68 feet, the rear yard setback will be 9 feet and the side yard setbacks will be 56 feet and 61 feet. EXHIBIT r L E m PAGE #2 7. The new canopy will have a 38 foot front yard Setback, a 30 foot rear yard Setback and Side yard -,etbacks of 64 feet and 69 feet. The canopy setbacks will change slightly. CONDITIONAL IJ5E 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 io needed to develop the property ao proposed and a variance was denied. Conditional use request must therefore be denied. SITE PLAN CRITERIA 9. Access/ it ,la ion: Acccoo is currently provided by two (2) curb cuts. The northerly curb cut io 42 feet in width and the southerly curb out io 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. C v raae: Building coverage i511.5% (maximum allowed i5 30%). Overall coverage io 61.29% (maximum allowed is70%) Front yard coverage is being reduced from 78.6% to 68% (maximum allowed is 30%). 12. Set__ bask: 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 diocussion below regarding non -complying structures). 13. Parking: Eight (8) parking spaces are required and eight (8) Space-, are provided including one (1) handicapped space.:No bike rack i5 proposed as required. 14. Try: No additional traffic expected Since no additional fueling positions proposed. 15. Lighting: New exterior light fixture-, are proposed. Details of these new fixtures have not been provided, nor has a point by point lighting plan been provided. 16. This .property io currently developed with: 1) a 559 oq. ft. convenience Store -- building, 2) an approximately 1500 sq. ft. gas island canopy, and 3) a 48 Sq. ft. wood Shed. All three (3) of theoc Structures are non -complying structures because they do not meet setback requiremento. PAGE #3 17. The proposal is to:1) remove entirely the 48 oq. ft. wood Shed, 2) remove the existing 1300 oq. ft. canopy and replace it with a 7(58 5q. ft. canopy, and 3) remove entirely the 559 oq. ft. convenience Store and replace it with a new 1104 oq. ft. building for convenience store use. 18. The new convenience otore building will be located ouch that it will not meet the rear yard Setback requirement of 30 feet. It io proposed to project 21 feet into the Setback area. The new canopy will be located ouch that it will not meet the 50 foot front yard Setback requirement. It io proposed to project 12 feet into thin oetback area. 19. Section 26.002 of the zoning regulations relating to alterationo to non- complying otructureo states that "in the event an addition or an expansion to a building or Structure io proposed, the addition or expansion itself must comply With the provioiono of theoe regulations (e.g., setback requiremento) " The Environmental Court'o charge is under Section 26.002 of the zoning regulationo. However, Weoco does not propooe an alteration to a non -complying Structure. An alteration io defined in this manner. "(a)o applied to a building or structure, a change or rearrangement in the Structural parto 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 otructure a5 an "alteration" The only instance in which the Zoning Regulationo permit the replacement of a non -complying structure is when Such a otructure io "destroyed by fire, collapoe, explooion or oimilar cauoe". See Section 26.006 of the City Zoning Regulations. Even in thooe in5tanceo, the replacement work muot be "completed within one year of the damage or deotruction." This reoult io consiotent with the otate's policy againot the "undue perpetuation on non- conforming uoeo." 20. In addition, Section 26.003 of the zoning regulationo, which provides, in part, that "(a) non -conforming use ohall not be extended or enlarged", forbids Wesco'o propooal. A non -complying Structure io a non -conforming use. See In r, Miserocchi,170 Vt. 320. 325-524 (2000). "An enlargement or expansion of a non -conforming use, rather than mere increaoe in buoineoS, is indicated where new facilities or a new product io involved." Vermont Brick & Block- Inca v Village, of Eeeex. hinction, 135 Vt. 481, 483 (1977). Weoco propo5eo to conotruct a new, large Structure to house the convenience store on the Subject property. The City Zoning Regulationo expressly prohibit this propooal because it conotituteo the extendion or enlargement of a non -conforming use. PAGE #4 CONCLU510N5 OF LAW The convenience Store and canopy are non -complying structures because they currently do not meet the front yard and rear yard oetback requirements. In order to 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. By Decision dated May 21, 2002, (Application #VR-01-02), the 5outh Burlington Development Review Board denied Applicant's request for this variance. Therefore, the Board does not reach the merits of Applicant's request for conditional use and Site plan approval. DEC1510N Based on the above Findings of Fact and Conclusion of Law, the South Burlington Development Review Board hereby Denies the Applicant's request for conditional use and - site plan approval 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 orrgign South B 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 loot because you waited too long. You will be bound by the decision, pursuant to 24 V5A 4472 (d) (exclusivity of remedy; finality). STEVEN F. STITZEL PATTIR.PAGE* ROBERT E.FLETCHER JOSEPH S. McLEAN TIMOTHY M. EUSTACE AMANDA S. E. LAFFERTY (*ALSO ADMITTED IN N_Y.) April 19, 2006 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/IDD) FAX (802) 660-2552 or 660-91 19 WRITER'S E-MAIL(ALAFFERTY(a.FIRMSPF.COM) WRITER'S FAX (802) 660-2552 Raymond Belair City of South Burlington 575 Dorset Street South Burlington, VT 05403 Re: Appeal of Wesco (Shelburne Rd.) Docket No. 207-10-05 Vtec Dear Ray: JILL E. SPINELLI WILL S. BAKER In connection with the above -referenced matter, enclosed please find a copy of the Environmental Court's Entry Regarding the City's Motion to Strike Appellant's Surreply. Please call with questions. Thank you. Sincerely, ("I ma � , k Amanda S. E. Lafferty Enclosure son06-086.cor Environmental Court of Vermont State of Vermont E N T R Y R E G A R D I N G M O T I O N Wesco Shelburne Rd Texaco Project: Wesco Shelburne Road Texaco Applicant: Wesco-, Inc. S Docket No. 207-10-05 Vtec Municipal Planning Commission Title: Motion to Strike Appel.lant's Surreply, No. 3 Filed: February 27, 2006 Filed By: Lafferty, Amanda, Attorney for: Appellee City of South Burlington Granted Denied Other The portions of Appellant's surreply of February 16, 2006, that reference the City attorney's advice or recommendations to their clients are hereby stricken and will be disregarded by the Court, as they involve potentially privileged communications between attorneys and their clients. To this extent, the City's motion to strike is GRANTED. The Court does not intend to allow multiple and duplicitous replies to pre-trial motions. But there are issues that warrant the allowance of surreplies, particularly when, such as here, the issue at hand has not been squarely addressed by this Court or our Supreme Court. Nothing contained in V.R.C.P. 56, 78 or. 12(f) specifically prohibits the filing of surreplies. It does not appear that Appellant violated those Rules, either by filing its surreply or by failing to first seek leave of the Court to make such a filing. We therefore DENY the City's motion to strike in all other respects. The City also requests in its pending motion that the Court impose sanctions against Appellants pursuant to V.R.C.P. 11. The Court declines to do so, given its ruling on the motion to strike and the high thresholds that must first be exceeded for sanctions to be warranted under that Rule. The Court intends to render a decision on the pending motions for summary judgment within the next 30 days. In the event any party desires to make further filings, before the Court renders its. decision, the party. must first request and receive leave to make such a filing. Vv Judge Date ' Date copies sent to: Clerk's Initials Copies sent to: Attorney Marc B. Heath for Appellant Wesco, Inc. Attorney Amanda Lafferty for Appellee City of South Burlington Attorney William E. Simendinger for Co -Counsel for Appellant 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* WRITER'S E-MAIL (SSTITZEL@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) February 24, 2006 Jacalyn M. Stevens, Court Manager Vermont Environmental Court 2418 Airport Road Barre, VT 05641 Re: Appeal of Wesco, Inc. (Shelburne Road) Docket No. 207-10-05 Vtec Dear Jackie: JILL E. SPINELI I WILL S. BAKER Enclosed for filing with regard to the above -captioned matter is a Motion to Strike Appellant's Surreply. Please call with questions. Thank you. Sincerely, Amanda S. E. Lafferty Enclosure CC: Raymond Belair, Administrative Officer Marc B. Heath, Esq. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON,VERMONT 0540E-1507 STATE OF VERMONT ENVIRONMENTAL COURT APPEAL OF WESCO, INC. ) DOCKET NO. 207-10-05 Vtec (SHELBURNE ROAD) ) MOTION TO STRIKE APPELLANT'S SURREPLY NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and requests that the Court strike Appellant's Surreply from the record for the following reasons. Memorandum ... if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party ... the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. V.R.C.P. 120emphasis added). The Vermont Rules of Procedure set forth a specific procedure for motions for summary judgment and responses thereto. See V.R.C.P. 56 and 78. An adverse party may serve affidavits, memorandum and a statement of facts opposing a motion for summary judgment within 30 days after the service of a motion for summary judgment. See V.R.C.P. 56(c)(1) and (2). Any party may file a reply to a memorandum in opposition. See V.R.C.P. 78(b)(1). There is no authority under the Rules for Appellant to file a surreply and Appellant has not sought permission from the court to file any further responses in this matter. Moreover, Appellant's surreply does not actually reply to the City's Reply to Appellant's Opposition to the City's Motion for Summary Judgment. Rather, Appellant raises, for the first time and without any factual basis, two new arguments and fails to cite 1 STITZEL, PAGE & FLETCHER, PC. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 any reasons for its failure to raise these arguments in its motion for summary judgment. The court should not countenance Appellant's attempts to raise new and baseless arguments after the City has filed the last response allowed under the Rules of Civil Procedure and to deprive the City of an opportunity to respond. For these reasons, Appellant's surreply is immaterial, impertinent and scandalous matter and should be stricken from the record. See V.R.C.P. 12(0. Appellant argues that V.R.E.C.P. 2(b) trumps the Vermont State Constitution and gives the court subject matter jurisdiction to consider concurrently two completely different projects for the same property. See Appellant's Surreply, pages 1-2. Appellant misstates the meaning and purpose of this rule. "Rule 2(b) gives the court broad discretion to determine the sequence and possible coordination of separate hearings or appeals concerning the same violation or project or involving significant common questions of law or fact ... [t]he rule is intended to give the court a flexible case management tool." See the Reporter's Notes to V.R.E.C.P. 2. This Rule does not affect or enlarge the court's subject matter jurisdiction. Instead, it gives the court the authority to consider, for example, an appeal of a district commission decision and an appeal of an appropriate municipal panel decision at the same time if the appeals relate to the same project for the same property. V.R.E.C.P. 2(b) allows the court to manage efficiently its docket by considering concurrently the merits of the 2002 Plan in Docket Nos. 152-7-02 Vtec, 153-7-02 Vtec and 6-1-03 Vtec and the jurisdictional issue raised by the City in connection with the 2005 Plan in the above -captioned matter. This Rule does not, and could 2 5TITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 not, under the Vermont Constitution, give the court authority to consider the merits of two completely different applications for the same property and thereby render an advisory opinion. Appellant also contends in the second paragraph of its surreply that simultaneous pursuit of multiple applications seeking approval for incompatible development proposals on a single property is necessary because, "Mr. Stitzel's firm consistently advises municipalities that only Development Review Boards, Zoning Boards of Adjustment or Planning Commissions should settle disputed cases involving municipal planning appeals, - not the Board of Selectman." As an initial point, we ask that this and the related statements be stricken unless Appellant is able to demonstrate some basis consistent with the requirements of V.R.C.P. 11 to support the statements. Additionally, absent provision of such basis, we ask that the court impose on Appellant's attorneys the sanction of reimbursing the City an appropriate portion of its attorneys' fees incurred because of the need to prepare this response. With regard to the substance of the statements, we understand these to mean that Appellant recognizes that it routinely submits applications to boards and commissions which deny them because they do not meet the requirements of applicable regulations. Appellant apparently does this with appeal in mind and the belief that a community's legislative body provides a more favorable forum for review of its proposals. We are at a loss to understand why Appellant's failure to obtain the settlement it anticipates by taking an appeal necessitates the filing of 3 subsequent applications while refusing to abandon the initial appeal. If Appellant believes the appealed application has merit, it should pursue the appeal even if settlement does not occur. If instead, Appellant believes a new application has greater merit than the one denied (presumably Appellant would not submit a subsequent application which has less merit), it should withdraw the appeal and pursue the more meritorious application. To do otherwise constitutes a further violation of the requirements of V.R.C.P. 11. Conclusion For all the reasons set forth herein, Appellant's Surreply is immaterial, impertinent or scandalous matter and the Court should strike it from the record. DATED at Burlington, Vermont this 24th day of February 2006. son06-019.1it 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: law Cf . Amanda S. E. Lafferty 0 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 WRITER'S E-MAIL (SSTITZEL@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 February 24, 2006 Jacalyn M. Stevens, Court Manager Vermont Environmental Court 2418 Airport Road Barre, VT 05641 Re: Appeal of Wesco, Inc. (Shelburne Road) Docket No. 207-10-05 Vtec Dear Jackie: JILL E. SPINELI.I WILL S. BAKER Enclosed for filing with regard to the above -captioned matter is a Motion to Strike Appellant's Surreply. Please call with questions. Thank you. Sincerely, ()NVQ�� J Amanda S. E. Lafferty Enclosure CC: Raymond Belair, Administrative Officer Marc B. Heath, Esq. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PO. BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT APPEAL OF WESCO, INC. ) DOCKET NO.207-10-05 Vtec (SHELBURNE ROAD) ) MOTION TO STRIKE APPELLANTS SURREPLY NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and requests that the Court strike Appellant's Surreply from the record for the following reasons. Memorandum ... if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party ... the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. V.R.C.P. 120emphasis added). The Vermont Rules of Procedure set forth a specific procedure for motions for summary judgment and responses thereto. See V.R.C.P. 56 and 78. An adverse party may serve affidavits, memorandum and a statement of facts opposing a motion for summary judgment within 30 days after the service of a motion for summary judgment. See V.R.C.P. 56(c)(1) and (2). Any party may file a reply to a memorandum in opposition. See V.R.C.P. 78(b)(1). There is no authority under the Rules for Appellant to file a surreply and Appellant has not sought permission from the court to file any further responses in this matter. Moreover, Appellant's surreply does not actually reply to the City's Reply to Appellant's Opposition to the City's Motion for Summary Judgment. Rather, Appellant raises, for the first time and without any factual basis, two new arguments and fails to cite 1 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 any reasons for its failure to raise these arguments in its motion for summary judgment. The court should not countenance Appellant's attempts to raise new and baseless arguments after the City has filed the last response allowed under the Rules of Civil Procedure and to deprive the City of an opportunity to respond. For these reasons, Appellant's surreply is immaterial, impertinent and scandalous matter and should be stricken from the record. See V.R.C.P. 12(0. Appellant argues that V.R.E.C.P. 2(b) trumps the Vermont State Constitution and gives the court subject matter jurisdiction to consider concurrently two completely different projects for the same property. See Appellant's Surreply, pages 1-2. Appellant misstates the meaning and purpose of this rule. "Rule 2(b) gives the court broad discretion to determine the sequence and possible coordination of separate hearings or appeals concerning the same violation or project or involving significant common questions of law or fact ... Whe rule is intended to give the court a flexible case management tool." See the Reporter's Notes to V.R.E.C.P. 2. This Rule does not affect or enlarge the court's subject matter jurisdiction. Instead, it gives the court the authority to consider, for example, an appeal of a district commission decision and an appeal of an appropriate municipal panel decision at the same time if the appeals relate to the same project for the same property. V.R.E.C.P. 2(b) allows the court to manage efficiently its docket by considering concurrently the merits of the 2002 Plan in Docket Nos. 152-7-02 Vtec, 153-7-02 Vtec and 6-1-03 Vtec and the jurisdictional issue raised by the City in connection with the 2005 Plan in the above -captioned matter. This Rule does not, and could oil STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 not, under the Vermont Constitution, give the court authority to consider the merits of two completely different applications for the same property and thereby render an advisory opinion. Appellant also contends in the second paragraph of its surreply that simultaneous pursuit of multiple applications seeking approval for incompatible development proposals on a single property is necessary because, "Mr. Stitzel's firm consistently advises municipalities that only Development Review Boards, Zoning Boards of Adjustment or Planning Commissions should settle disputed cases involving municipal planning appeals, - not the Board of Selectman." As an initial point, we ask that this and the related statements be stricken unless Appellant is able to demonstrate some basis consistent with the requirements of V.R.C.P. 11 to support the statements. Additionally, absent provision of such basis, we ask that the court impose on Appellant's attorneys the sanction of reimbursing the City an appropriate portion of its attorneys' fees incurred because of the need to prepare this response. With regard to the substance of the statements, we understand these to mean that Appellant recognizes that it routinely submits applications to boards and commissions which deny them because they do not meet the requirements of applicable regulations. Appellant apparently does this with appeal in mind and the belief that a community's legislative body provides a more favorable forum for review of its proposals. We are at a loss to understand why Appellant's failure to obtain the settlement it anticipates by taking an appeal necessitates the filing of 3 subsequent applications while refusing to abandon the initial appeal. If Appellant believes the appealed application has merit, it should pursue the appeal even if settlement does not occur. If instead, Appellant believes a new application has greater merit than the one denied (presumably Appellant would not submit a subsequent application which has less merit), it should withdraw the appeal and pursue the more meritorious application. To do otherwise constitutes a further violation of the requirements of V.R.C.P. 11. Conclusion For all the reasons set forth herein, Appellant's Surreply is immaterial, impertinent or scandalous matter and the Court should strike it from the record. DATED at Burlington, Vermont this 24" day of February 2006. son06-019.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET P.O. BOX 1507 BURLINGTON, VERMONT 05401-1507 STITZEL, PAGE & FLETCHER, P.C. Attorneys for the CITY OF SOUTH BURLINGTON By: % "c--" Amanda S. E. Lafferty W. 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* WRITER'S E-MAIL(ALAFFERTY(a.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.) February 24, 2006 Raymond Belair Administrative Officer City of South Burlington 575 Dorset Street South Burlington, VT 05403 Re: Appeal of Wesco, Inc. (Shelburne Rd.) Docket No. 207-10-05 Vtec Dear Ray: JILL E. SPINELLI WILL S. BAKER In connection with the above -referenced matter, enclosed please find a copy of Wesco's Surreply to the City of South Burlington's Motion for Summary Judgment. We have filed a motion requesting that the Environmental Court strike this surreply from the record in this appeal. Please review and call with any questions. Thank you. Sincerely, 01VL_A Amanda S. E. son06-042.cor Lafferty STATE OF VERMONT ENVIRONMENTAL COURT IN RE: WESCO, INC. ) DOCKET NO.207-10-05 Vtec (Shelburne Road Texaco) ) Appeal of So. Burlington Development Review Board WESCO'S SURREPLY TO THE CITY OF SOUTH BURLINGTON'S MOTION FOR SUMMARY JUDGMENT Wesco, Inc. is pursuing an update to its convenience store at 1041 Shelburne Road. Its first proposal was rejected by the City of South Burlington's Development Review Board because of claimed setback non-compliance. In an effort to resolve the matter, Wesco proposed a revised site plan. Unfortunately, the Development Review Board never had a chance to consider it because the Zoning Administrator deliberately decided to take no action on the application, �and instead just mailed it back to Wesco along with Wesco's filing fee. Significantly, the firm of Stitzel Page & Fletcher PC represents municipalities around the State of Vermont. Mr. Stitzel's firm consistently advises municipalities that only Development Review Boards, Zoning Boards of Adjustment or Planning Commissions should settle disputed cases involving municipal planning appeals, — not the Board of Selectman. Accordingly, subsequent applications are the sole settlement method Mr. Stitzel's firm approves of. Mr. Stitzel's firm always advises against selectboards settling cases. The City's current argument, Development Review Boards have no jurisdiction over different permit applications designed to resolve disputes, will result in a waste of judicial resources, contradicts the legislature's directive to encourage alternative dispute resolution, and will clog the Court with cases that are otherwise resolvable. Env. Court Rule 2(d). The City of South Burlington argues that this Court has no jurisdiction over Wesco's continued efforts to update a convenience store at 1041 Shelburne Road in South Burlington. Rule 2(b) of the Environmental Court Proceeding provides: (b) Coordination of Proceedings. On motion of a party, or on the court's own motion, where the same violation or project involves multiple proceedings that have resulted or may result in separate hearings or appeals in the Environmental Court, or where different violations or projects involve significant common issues of law or fact, the court may advance, defer, coordinate, or combine proceedings and may make other orders that will promote expeditious and fair proceedings and avoid unnecessary or delay. Accordingly, the legislature envisioned that the Environmental Court will have jurisdiction over multiple proceedings arising out of one project. Further, the Environmental Court can advance, defer, coordinate or combine proceedings. The City has cited no authority for its proposition that there can be only one site plan application proceeding per project at a time. WHEREFORE, the Court should deny the City's motion for summary judgment. Dated at South Burlington, VT this 15th day of February, 2006. WESCO, INC. Y• �C William E. Simendin sq. Sarvak and Simendinger PC 32 San Remo Drive South Burlington, V 5403 By:e-, Marc Heath, Esq. Downs Rachlin Martin PLLC 199 Main Street Burlington, VT 05401 BTV.469502.I 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' WRITER'S E-MAIL (SSTITZEL@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) February 6, 2006 HAND DELIVERED Jacalyn M. Stevens, Court Manager Vermont Environmental Court 2418 Airport Road Barre, VT 05641 Re: Appeal of Wesco, Inc. (Shelburne Road) Docket No. 207-10-05 Vtec Dear Jackie: JILL E. SPINELLI WILL S. BAKER Enclosed for filing with regard to the above -captioned matter is the City of South Burlington's Reply to Appellant's Opposition to the City's Motion for Summary Judgement. Thank you. Sincerely, Amanda S. E. Lafferty Enclosure cc: Marc B. Heath, Esq. Raymond Belair, Administrative Officer SON06-029.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 APPEAL OF WESCO, INC. ) DOCKET NO. 207-10-05 Vtec (SHELBURNE ROAD) ) CITY OF SOUTH BURLINGTON'S REPLY TO APPELLANTS OPPOSITION TO THE CITY'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 the City's favor. Statement of Undisputed Facts As to the City's Motion for Summary Judgment, there is no dispute of material fact. See Appellant's Response to City's Statement of Undisputed Facts, dated January 18, 2006. Appellant attempts to deny, in part, Paragraph 3 of the City of South Burlington's Statement of Undisputed Facts. The City's statements are based on and supported by Exhibit A, which Appellant submitted to the City in 2002. See Exhibit A, Coverage calculations, existing building and canopy. Appellant's attempted denial is not supported by affidavit or in the record. See V.R.C.P. 56(c). The size of the existing building does not alter the fact, which Appellant admits, that Appellant seeks approval of two completely different layouts of the Property. See the City's Exhibits A, B. Appellant's "Background" information and motion allege the existence of certain provisions of the City Land Development Regulations and fails to provide 1 STITZEL, PAGE & FLETCHER, PC. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 any basis in the record'. See Appellant's Opposition at pages 2, 4. These statements do not comply with V.R.C.P. 56 and are not relevant to the issues properly before this Court, which are jurisdictional and do not require review of or interpretation of the City Land Development Regulations. Memorandum There is no authority for Appellant to submit, or for the Court to review, concurrently, two completely different applications for the same property. Appellant admits that "should both applications [for the 2002 and 2005 plans] be granted simultaneously, Wesco would only build one of them." See Appellant's Opposition to the City's motion for summary judgment, page 4. Appellant therefore concedes that one of its applications is merely a hypothetical question, not an actual controversy. See J.L. v. Miller, 174 Vt. 288, 292-293 (2002). Appellant has the burden of demonstrating the existence of an actual case or controversy in this appeal. As the Vermont Supreme Court has repeatedly and consistently held, Vermont courts do not have jurisdiction to consider and render a decision on an application for land development that is not an actual controversy. See id.; see also In re Constitutionality of House Bill 88, 115 Vt. 524 (1949), Appeal of Bennington School, Inc., 176 Vt. 584, 586, 2004 VT 6 ¶ 19 (2004), Anderson v. State, 168 Vt. 641, 644 (1998). 1 To the extent that the Court considers Appellant's allegations regarding the City Land Development Regulations, the uses proposed by Appellant, service station and convenience store, are no longer permitted or conditional uses in the C1 District. 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 Appellant attempts to confuse the issues before the Court with a lengthy and irrelevant argument that, in arguing that Appellant may not submit two inconsistent applications, the City misapplies the doctrine of election of remedies. See Appellant's Opposition to the City's motion for summary judgment, pages 2-4. Appellant concedes that "it is highly doubtful whether the doctrine of election of remedies even applies in zoning appeals." See Appellant's Opposition to the City's motion for summary judgment, page 3. Indeed, the City's argument has nothing to do with the doctrine of election of remedies. See Gallipo v. City of Rutland, 173 Vt. 223, 228 (2001)2. Rather, the City argues that the jurisdiction of the Environmental Court jurisdiction is limited in the same manner as all Vermont state courts. The Vermont State Constitution requires that state courts only consider actual controversies. See In re Constitutionality of House Bill 88, 115 Vt. 524 (1949), see also J.L v. Miller, 174 Vt. 288, 293 (2002). Without conceding the relevance of Appellant's argument that, under the doctrine of election of remedies, it may submit as many applications as it likes at the same time for the same property and decide later which project it wants, the City does not ask that Appellant choose one remedy 2 "Election exists when a party has two alternative and inconsistent remedies, and is determined by a manifestation of choice; but the fact that a party wrongly supposed he had two such rights, and attempted to choose the one to which he was not entitled is not enough to prevent his exercising the other, if entitled to it." 3 5TITZEL, PAGE & FLETCHER, PC. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 from several available under tort law. Rather the City asks, and the law requires, that Appellant choose one project for the subject property. Appellant also argues that to deny either the 2002 or 2005 plan would "deny Wesco vested rights under the zoning regulations in effect at the time of the application and according to the type of permit being sought." See Appellant's Opposition to the City's motion for summary judgment, page 4. Appellant is correct that, under Vermont law, an appropriate municipal panel must review a properly fled application for land development under the zoning bylaw in effect at the time of application. See Smith v. Winhall Planning Comm'n, 140 Vt. 178, 181 (1981)(emphasis added). However, Appellant's right to have the 2005 Plan reviewed under the zoning regulations in effect at the time of complete application is not at issue. See id. The first question that the Environmental Court must answer, before it reaches the question of which regulations are at issue, is whether the Court has jurisdiction to consider the subject application. The vested rights doctrine does not absolve applicants of demonstrating compliance with all other requirements under the law. Appellant misstates the Vermont Supreme Court's basis for refusing to consider a second proposed development proposal. See In re Bennington School, Inc., 176 Vt. 584, 588 (2004).; see also Appellant's Opposition to the City's motion for summary judgment, page 5. The Court's determination that said second scenario was "merely a hypothetical question" was not based on the Court's observation that the applicant failed to submit the scenario to the Zoning Board of S Adjustment. See In re Bennington School, Inc. at 588. The Court cited none of the cases that hold the Environmental Court lacks jurisdiction where an argument is not submitted to the appropriate municipal panel in the first instance. See id; see e.g., In re Torres, 154 Vt. 233, 235 (1990), Simendinger v. City of Barre, 171 Vt. 648, 651 (2001). Instead, based on its determination that consideration that the "hypothetical" second scenario would be speculation, the Court refused to give an advisory opinion. See In re Bennington School, Inc., 176 Vt. 584, 588 (2004). The City has not argued that Appellant lacks standing to bring this appeal. See Appellant's Opposition to the City's motion for summary judgment, page 6. Rather, the City argues that Appellant has failed to demonstrate that the Environmental Court has authority to speculate about a second hypothetical application. The case cited by Appellant in support of its apparent claim that jurisdiction necessarily leads from a successful demonstration of standing specifically states that " ... standing requirements are determinative of who may bring an action in the first instance; they are not indicative of the quality of remedies available." See In re Appeal of Gadue, 149 Vt. 322, 326 (1988). In that case, the court considered the question of whether the plaintiff had standing to seek a mandatory injunction. See id. at 324. There was no question of the jurisdiction of the court to consider the matter. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 5 Conclusion For all the reasons set forth herein and in the City of South Burlington's Motion for Summary Judgment, the City respectfully requests that the Court enter an Order granting the City's Motion for Summary Judgment, holding that 1. There is no authority for Appellant 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; 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 6t' day of February 2006. son06-012a.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 3 / : By: 01 �{ Amanda S. E. Lafferty STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURUNGTON, 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.) January 10, 2006 Jacalyn Stevens Manager Vermont Environmental Court 2418 Airport Road Barre, VT 05641-8701 Re: Appeals of Wesco, Inc. Docket No. 152-7-02 Vtec Docket No. 153-7-02 Vtec Docket No. 6-1-03 Vtec Dear Jackie: JILL E. SPINELLI WILL S. BAKER Enclosed please find for filing the City of South Burlington's Sur -Reply to Wesco, Inc.'s Reply to the City's Opposition to Wesco, Inc.'s Cross Motion for Summary Judgement. Please call with questions. Thank you. Sincerely, (,,Vwv,_a� A ,C( � Amanda S. Lafferty Enclosure CC: Raymond Belair, Administrative Officer Marc B. Heath, Esq. SON06-007.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 THE CITY OF SOUTH BURLINGTON'S SUR-REPLY TO WESCO,__ INC.'S REPLY TO THE CITY'S OPPOSITION TO WESCO, INC.'S CROSS MOTION FOR SUMMARY JUDGMENT NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and, responds to facts and arguments raised for the first time in Wesco, Inc.'s Reply and Sur -Reply. Memorandum The Vermont Rules of Civil Procedure do not provide for sur-replies in connection with motions for summary judgment. See V.R.C.P. 56 and 78(b)(1). However, Appellant raised facts and citations to the record for the first time in its Reply and Sur -Reply that it could have and was required to raise in its cross -motion for summary judgment. See Appellant's Reply and Sur -Reply, dated December 15, 2005, at pages 5-6, see also Exhibit B. As requested in its Reply and Opposition Memorandum, the City responds as follows. See the City's Reply and Opposition, dated November 29, 2005, page V 1 There is no authority for Appellant to raise facts and to attempt to support its cross motion for summary judgment, for the first time, after the City has filed the only response allowed under the Rules. See V.R.C.P. 56 and 78. The City does not waive its arguments regarding Appellant's failures to comply with the requirements of V.R.C.P. 56. 1 STITZEL, PAGE & PLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET PO. BOX 1507 BURLINGTON, VERMONT 05402-1507 Appellant does not dispute that it proposes to use the Property to offer for sale prepackaged food products, household items, newspapers, magazines, sandwiches, other freshly prepared foods for off -site consumption, and vehicular fluids. As the City has demonstrated, Appellant's combination of proposed uses is neither a permitted nor conditional use under the Regulations in effect at the time of Appellant's applications. Appellant now requests, without citing any basis therefor, that the Court review an application to use the Property only as a convenience store under the Regulations in effect of as September 6, 2005. Appellant has not demonstrated any right to review of the subject applications under the Land Development Regulations in effect on September 6, 2005, and may not submit an application for review in the first instance by this Court. See Smith v. Winhall Planning Comm'n, 140 Vt. 178, 181-182 (1981); see also In re Torres 154 Vt. 233, 236 (1990), Simendinger v. City of Barre, 171 Vt. 648, 651-652 (2001). Moreover, Appellant has not demonstrated that it actually proposes to use the Property for only a convenience store, let alone a convenience that consists of less than 3,000 square feet within a structure where the principal use is other than convenience store. See Appellant's Exhibit B(emphasis added). E Conclusion For all the reasons submitted by the City in connection with the above - captioned matter, the Court should deny Appellant's applications for approval of a site plan, an alleged conditional use and a variance. DATED at Burlington, Vermont this loth day of January 2006. son06-002.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PO. BOX 1507 BURLINGTON, VERMONT 05402-1507 STITZEL, PAGE & FLETCHER, P.C. Attorneys for the CITY OF SOUTH BURLINGTON By: 1 ti Amanda S. E. Lafferty 3 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* WRITER'S E-MAIVALAFFERTY@FIRMSPRCOM) ROBERT E. FLETCHER WRITER'S FAX (802) 660-2552 JOSEPH S. McLEAN TIMOTHY M. EUSTACE AMANDA S. E. LAFFERTY (*ALSO ADMITTED IN N.Y.) December 19, 2005 Jackie Stevens, Manager Vermont Environmental Court 2418 Airport Road Barre, VT 05641-8701 Re: Appeal of Wesco, Inc. (Shelburne Road) Docket No. 207-10-05 Vtec Dear Jackie: JILL E. SPINELLI WILL S. BAKER Enclosed please find the City of South Burlington's Motion for Summary Judgement in the above -referenced matter. Please feel free to contact me if you have any questions or concerns. Thank you. Sincerely, Ow�� > I Amanda S. E. Lafferty ASEL/af Enclosure CC: Raymond Belair Marc B. Heath, Esq. (hand delivery) s=6016 . 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 APPEAL OF WESCO, INC. ) DOCKET NO.207-10-05 Vtec (SHELBURNE ROAD) ) 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 the City's favor. Statement of Undisputed Facts Pursuant to V.R.C.P. 56(c)(2) the City contends that there is no genuine issue to be tried as to the following statement of material facts. 1. The City of South Burlington is a Vermont municipality in Chittenden County. At all times material to this matter, the City has had Land Development Regulations in effect. 2. Wesco, Inc. (hereinafter the "Appellant") owns and/or occupies the property located at 1041 Shelburne Road in the Commercial 1 zoning district in South Burlington, Vermont (hereinafter the "Property"). 3. 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, located in the center rear of the Property, 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, stretching from the center to the rear of the Property, has a 37-foot front yard, a 17-foot rear yard, a 64-foot northern 1 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 side yard and a 69-foot southern side yard. The front yard coverage of the Property is approximately 79%. True and correct copies 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 A, and entitled "Wesco, Inc., 1041 Shelburne Road, South Burlington, Vermont" Site Plan dated 12/2/04, last revised June 27, 2005, and prepared by ESPC Engineering and Environmental Services, marked as Exhibit B, are attached hereto and incorporated herein by reference. 4. On March 18, 2002, Appellant applied to the City for approval of a site plan for the Property (hereinafter the "2002 Plan"). Specifically, Appellant proposed to remove the existing 559 square foot convenience store building and to construct in substantially the same location a new convenience store building consisting of 1,104 square feet. Appellant also proposed to remove the 1,344 square foot canopy and to construct 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 proposed 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%. A true and correct copy of the 2002 Plan, marked as Exhibit A, is attached hereto and incorporated herein by reference. 5. By decision dated June 18, 2002, the Development Review Board (hereinafter the "Board") denied Appellant's application for approval of the 2002 Plan. Appellant appealed this denial in Docket No. 153-7-02 Vtec. 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PO. BOX 1507 BURLINGTON, VERMONT 05402-1507 6. The Environmental Court remanded the 2002 Plan in Docket No. 153-7-02 Wee to the Board for consideration of the 2002 Plan under section 26.002 of the Zoning Regulations then in effect. By decision dated December 17, 2002, the Board again denied Appellant's application for approval of the 2002 Plan. Appellant appealed said denial in Docket No. 6-1-03 Vtec. 7. In Docket Nos. 153-7-02 Vtec and 6-1-03 Vtec, Appellant has opposed the City of South Burlington's Motion for Summary Judgment and has filed a cross - motion for summary judgment. Appellant has failed and/or refused to withdraw from this Court's consideration its appeals with respect to the 2002 Plan that is the subject of Docket Nos. 153-7-02 Vtec and 6-1-03 Vtec. 8. Commencing in April 2005, Appellant submitted to the City materials in support of applications for preliminary and final plat approval for the Property. These applications were not complete until approximately July 1, 2005, (hereinafter the "2005 Plan"). Specifically, Appellant proposed to remove the existing 559 square foot convenience store building and the existing 1,344 square foot canopy. Appellant then proposed to construct a new convenience store building consisting of 1,894 square feet in the southwestern corner of the Property and a new 24' x 50' canopy stretching from the center to the front of the Property. A true and correct reduced copy of the 2005 Plan, marked as Exhibit B, is attached hereto and incorporated herein by reference. 9. By written determination dated July 8, 2005, the Administrative Officer informed Appellant that Appellant's applications for preliminary and final plat approval were "not a request for approval of specific development, but instead 3 STITZEL, PAGE & FLETCHER, PC. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 [sought] an advisory opinion." The Administrative Officer further determined that "[t]he South Burlington Development Review Board has no legal obligation or authority to render advisory opinions." The Administrative Officer returned to Appellant all materials submitted in connection with Appellant's applications for preliminary and final plat approval. A true and correct copy of the written determination of the Administrative Officer, marked as Exhibit C, is attached hereto and incorporated herein by reference. 10. On July 13, 2005, Appellant submitted to the City an "Application for the Development Review Board," appealing the Administrative Officer's written determination, referenced in paragraph 9, above. 11. On August 16, 2005, the Board held a duly warned hearing on Appellant's appeal, referenced in paragraph 10, above. By Findings of Fact and Decision dated September 21, 2005, the Board denied Appellant's appeal. A true and correct copy of said Decision, marked as Exhibit D, is attached hereto. This appeal followed. Standard of Review Rule 56 of the Vermont Rules of Civil Procedure provides that summary judgment shall be rendered forthwith where it is "show[n] that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law." See V.R.C.P. 56(c)(2)(3). Summary judgment 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 4 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 judgment motion may not rest on mere allegations or denials to rebut credible documentary evidence or affidavits. See id., see also V.R.C.P. 56(e). Memorandum 1. Whether Wesco is entitled to submit a Planned Unit Development ("PUD") Application, despite the fact that this Court has not yet ruled on an alternative site plan for the subject property? [T]he principles of res judicata and collateral estoppel generally apply in zoning cases as in other areas of the law. Thus as a general rule, a [development review] board ... "may not entertain a second application concerning the same property after a previous application has been denied, unless a substantial change of conditions had occurred or other considerations materially affecting the merits" of the request have intervened between the first and second application. In re Application of Carrier, 155 Vt. 152, 158 (1990)(emphasis added)(citations omitted); see also In re Crescent Beach Association, 126 Vt. 140, 141 (1966)("In order that there be some finality to administrative determinations it is a requirement that successive applications be different in content or show that a change in circumstances has intervened."); In re Appeal of Simoneau & Penrod, Docket No. 210-9-00 Vtec (Vt. Envtl. Ct., May 29, 2001)(where Planning Commission entertained an application in 2000 after 1998 denial concerning same property). In the present matter, the Appellant's applications for the 2002 Plan and the 2005 Plan are not successive applications because Appellant's application for the 2002 Plan has not been denied or even finally adjudicated. The need for the general rule regarding successive applications, in order to provide finality to zoning 5 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PO. BOX 1507 BURLINGTON, VERMONT 05402-1507 determinations and to protect the integrity of the zoning review process, is not present where there is not yet a determination that requires finality. See In re Application of Carrier, 155 Vt. 152, 158 (1990). Where Appellant seeks approval of two completely different site plans at the same time, one of the plans is a purely hypothetical proposal of which there is no reasonable and realistic expectation of its actual implementation. See Beacham v. Leahy, 130 Vt. 164, 168 (1972); see also Appeal of Bennington School Inc., 176 Vt. 584, 588, 2004 VT 6, 1[ 18 (2004). 2. Whether Wesco's PUD Application constitutes a request for an "advisory opinion," which the South Burlington Development Review Board can refuse to provide? Appellant may not simultaneously seek approval for two mutually exclusive development plans for a single property. As noted above, Appellant currently has two appeals pending in this Court, Docket Nos, 153-7-02 Vtec and 6-1-03 Vtec, seeking approval of the 2002 Plan. By this appeal, Appellant seeks approval of the 2005 Plan. The 2002 and 2005 plans propose completely different development scenarios for the Property. Approval and implementation of either Plan excludes implementation of the other Plan. For this reason, if both plans are approved as requested by Appellant, one of the requested approvals will be purely advisory. The jurisdiction of Vermont courts "is limited to issuing opinions determining actual controversies." See id. at 586, ¶ 19 (citing In re Constitutionality of House Bill 88, 115 Vt. 524 (1949)). r STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 The presence of an actual controversy "turns on whether the plaintiff is suffering the threat of actual injury to a protected legal interest, or is merely speculating about the impact of some generalized grievance." ... Absent an actual controversy, any decision of the judicial branch is merely an advisory opinion, and is consequently beyond the authority vested in the judicial branch by the Vermont State Constitution. J.L. v. Miller, 174 Vt. 288, 292-293 (2002)(citations omitted); see also Appeal of Bennington School, Inc., 176 Vt. 584, 586, 2004 VT 6 ¶ 19 (2004). The requirement of an actual or justiciable controversy "requires us to distinguish the `probable' from that which is merely `possible."' See Anderson v. State, 168 Vt. 641, 644 (1998). By way of example, the consequences giving rise to the seeking of declaratory relief must be set out so that the court can see they are based upon a reasonable and realistic expectation of their actual occurrence, and not on a concern merely anticipatory or feared ... Having in mind the constraints against purely advisory opinions already mentioned, no Vermont case has gone to the point of permitting resort to the declaratory device where the action or activity to be tested is still only anticipatory and subject to voluntary avoidance. Beecham v. Leahy, 130 Vt. 164, 168 (1972)(emphasis added). The Supreme Court has declined to consider hypothetical zoning application scenarios, holding that to do so constitutes speculation resulting in an advisory opinion. See Appeal of Bennington School, Inc., 176 Vt. 584, 588, 2004 VT 6, 119 (2004). In the Bennington School case, the applicant proposed two different types of residences in connection with a facility for developmentally disabled adolescent children. See id. at 585, ¶8. Approval and implementation of either application would exclude the implementation of the other proposal. See id. at 585-586, ¶8, 9. The Court determined that the second proposed scenario, which the applicant had not presented to the zoning board of adjustment, was a purely hypothetical question 7 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PO. BOX 1507 BURLINGTON, VERMONT 05402-1507 and that application of the zoning regulations and state statute thereto would be speculation. See id. at 588 (stating that the "existence of an actual controversy turns on whether plaintiff is suffering the threat of an actual injury to a protected legal interest ... the parties failed to articulate an actual controversy with respect to BSI's hypothetical second scenario.")(citations omitted). Appellant has the burden in this appeal of demonstrating the existence of an actual controversy with respect to the 2005 Plan. Appellant cannot meet this burden while continuing to seek approval of the 2002 Plan'. Under these circumstances, the 2005 Plan is merely a hypothetical alternative proposal that requires the Court to speculate about the possible rather than the probable. See Appeal of Bennington School, Inc., 176 Vt. 584, 588, 2004 VT 6, ¶ 18, 19 (2004); see also Anderson v. State, 168 Vt. 641, 644 (1998). This Court lacks jurisdiction to consider the 2005 Plan since doing so would result in rendering an advisory opinion. 3. Whether Wesco's PUD Application is "deemed approved" as a result of the City of South Burlington Zoning Administrator's failure to either approve or reject the application within the time limits permitted under the City Zoning Ordinances and state law? Appellant's application for the 2005 Plan has not been deemed approved. The purpose of the deemed approval remedy in 24 V.S.A. sections 4448(d) and I. The City of South Burlington has moved for summary judgment seeking denial of Appellant's application for the 2002 Plan. Appellant has opposed the City's motion for summary judgment and has refused to withdraw its appeal of the Development Review Board's denial of the 2002 Plan. 4464(b)(1) is to "remedy indecision and protracted deliberations on the part of zoning boards and to eliminate deliberate or negligent inaction by public officials." See Hindsale v. Village of Essex Junction, 153 Vt. 618, 623-624 (1990). This case involves neither indecision nor protracted deliberation. Id. at 624. Appellant's application for the 2005 Plan was not complete, and the Administrative Officer therefore was not required to take any action thereon, until approximately July 1, 2005. See 24 V.S.A. §4448(d). The Administrative Officer sent his written determination to Appellant on July 8, 2005, and Appellant submitted its appeal thereof to the Board on July 13, 2005. See In re Application of White, 155 Vt. 612, 616 (1990)("[O]nce a board decision is `rendered' - i.e., the board has made a decision and communicated it to the applicant, as was done here - the applicant is not entitled to the deemed -approval remedy ..."). Therefore, within two weeks after Appellant submitted a complete application to the City, Appellant submitted its appeal of the Administrative Officer's written determination. Moreover, as demonstrated above, this Court does not have jurisdiction to consider the 2005 Plan, nor did the Board. The Administrative Officer is not required to refer to the Board an application which the Board does not have any legal obligation or authority to review. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 G Conclusion For all the reasons set forth above, the City of South Burlington respectfully requests that the Court enter an Order granting the City's Motion for Summary Judgment, holding that 1. There is no authority for Appellant 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; 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 19' day of December 2005. son2153wescoshelyd.lit STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET PO. BOX 1507 BURLINGTON, VERMONT 05402-1507 STITZEL, PAGE & FLETCHER, P.C. Attorneys for the CITY OF SOUTH BURLINGTON Amanda S. E. Lafferty 10 L r J l �SREMT1NG WOOD SHED o0 r � how PROPOSED EXISTING CHAIN LINK FENCE ALONG PROPERTY LINE TO RETRAIN CONTRACTOR TO ENSURE PROPOSED BLDG FOOTING IS A MINIMUM V LONER THAN GRADE APPROXIMATE LOCATION OF 30' ACCGMP PROPOSED ICE MACHINE - LOCATION PROPOSED PROPANE CYLINDER RACK LOCATION PROPOSED RETAWWG W/ AND HANDRAIL SNOW STORAGE AREA - PROPOSED UNDERGROUND ELECTRIC LOCATION 0 2D31 Zi 204.1 205A PROPOSED SDEWALK- GJAY, /17 UTILITY POLE WITH STREET LEGEND R0P0= PURJDwG 1 I * U )A 400� Oi7 BATS i I ISHT-FLOOR ELEV-RELOCATE ENSTI G PROPANE CYLIN` I AR HOSE RACK 208.0007/ RE U \PROPOSED 3' WWALK i •,o � 1 i PROPOSED WATER 1 SleTdNC E�DCEp � � SERVICE LINE LOCATION + I \ - PROPOSED_ - SERVICE LOCATI --. PROPOSED AIR HOSE ITION RELOCATE w VACUUM LOCATION LOCATIQY A E o` / BIKE RACK / \ P(ZLE MOUNTED SHOEBOX � I EXISTING SOUTH CATCH BASIN RIM EIEV- ^206.IY u l l EXISTING POLE MOUNTED SHOEBOX EXISTING CANOPY RECESSED LIGHT, r-i (_� I EXISTING POLE MOUNTED SHCEBOX -� TO BE REMOVED o CORNER + IRON BAR O SLR MANHOLE SIGN CATCH BASIN 6^gj MONITOR WELL -3. CURB CUT TO BE EXISTING SEWER SERVICE TO 30 FT �) OLIVE GARDEN "'�1l��- I STING BUILDING-850 I Y pftl/ (DELI - 400 qR) �1 I PAINTED AABO� --1 IE(�/W A TE ---------� DUSTING ICE MACHINE 1 1 I I � CANOPY i FRONT SETBACK I I f® / I � I PROPOSED 24'x50' CAN 8 ry� I _ 3 4'x6' PUMP ISLAND \ viEXOSTNC NORTH �cA77]1 N I R9,1 ELEV-BASI-2O7S' ❑0 SHELBURNE ROAD,\tkS. ROUTE 7 GAS VALVE WATER VALVE WATER SHUTOFF FUEL FILLER PIPE WATER LINE GAS LINE BOUNDARY LINE SETBACK LINE EASEMENT LINE EXISTING CURB EXISTING SEWER LINE IVE EASTNG CURB \f EGT DOSING SR CONC. SIDEWALK SHUTOFF O.H.U. ss UE w 8-0 ---203.00--- ----203.D0----- fI PROPOSED DUMPSTER/ F=- ' FENCE ENCLOSURE LOCATION o c� to v EXISTING CONCRETE PAD .-(UST TANKS TO REMAIN) 1 1 Y I I 1 I `1 OVERHEAD UTILITY UNEJ 6. CURB CUT TO BE REDUCED TO 336 FT S S 5 TO BURlNC1T]N— SEWER M.VN GRAPHIC SCALE I IK 'T ) I tmh - t0 R EXISTING OVERHEAD UTILITY LINE FASTING SEWER SERVICE LINE PROPOSED CONCRETE CURB PROPOSED SEWER SERVICE LINE PROPOSED UNDERGROUND ELECTRIC LINE PROPOSED WATER LINE FROPOSED POLE MOUNTED SHOfDOX EXISTING CONTOURS FROPOSED CONTOURS LIGHT DRIVE PKWY SHELBURHE ROAD AVE LOCATION MAP NTS �nO eCSTA(G PRE TREE 'I EXISTING TREE DOSIT4G TREE 11 �jj PROPOSED KNOCKOUT ROSES 14 PROPOSED PEPPERMINT STICK 35 PROPOSED DARK AMERICAN ARBORVITES 22 ` PROPOSED NEWS JUG?N F� ?0Ds n vvn7'to/ WESCO, INC. 32 SAN REMO DRIVE SOUTH BURLINGTON, VERMONT 05403 EXHIBIT 6 E B m SOURCE ROBERT M. ALEXANDER CIVIL ENGINEER CONSULTING PG BOX 68 SITE PLAN CRAFTSBURY COMMON, VERMONT 05827 11 Z 00 U ww Z z > 0CU m 0 J {r—nn V LU Ll1 Z (y) J m O � m 0 U) CITY OF SOUTH BURLINGTON DEPARTM ,'NT OF PLANNING & 7,ONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403- (802) 846-41.06 FAX (802) 846-4.101 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 reader 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 filiyg a. written notice of appeal (see enclosed) and one hundred tea 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: 575 Dorset Street, South Burlington, VT 05403. ay Belair Administrative Officer Enclosures cc: Amanda S. R. Lafferty Corti_ -feed Mail Reoeipt # 7002 2030 0002 0651 �^412) 0 EXHIBIT Z E C m CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING AND ZONING WESCO, INC. — 1041 SHELBURNE ROAD APPEAL #AO-05-02 FINDINGS OF FACT AND DECISION Wesco, Inc., hereinafter referred to as Appellant, appeals the determination of the Administrative Officer dated July 8, 2005. The Development Review Board held a public hearing on this appeal on August 16, 2005. Based on testimony provided at the above -mentioned public hearing, supporting materials contained in the document file for this appeal and the written argument presented by Appellant, the Development Review Board finds, concludes and decides the following: FINDINGS OF FACT 1. Appellant appeals the determination contained in the letter of the Administrative Officer dated July 8, 2005. 2. Appellant is the owner of record of the subject property. 3. The subject property is located in the Commercial 1 Zoning district. 4. There are currently three appeals before the Environmental Court in connection with the subject property. 5. Beginning several weeks ago, Appellant started submitting materials to the Planning and Zoning Department in support of applications for both preliminary and final plat review. Said application was not complete. 6. Over the course of several weeks, Appellant, attempting to make the application complete, submitted additional material to the Planning and Zoning Department in support of the applications referenced above. 7. Once complete, the Administrative Officer reviewed the application and compared it to the applications that are the subject of the appeals before the Environmental Court. Based on this comparison, the Administrative Officer determined that the applications for preliminary and final plat review proposed a substantially different layout/site plan for the subject property than that which is currently before the Environmental Court. EXHIBIT -1- z E D m 8. Based on this determination, the Administrative Officer concluded that it was possible for Appellant to construct only one of the two plans and that it was unclear as to which layout/site plan of the subject property was specific development for which Appellant sought approval. 9. The Administrative Officer concluded that Appellant requested that the Development Review Board render an advisory opinion and that the Development Review Board lacks authority to render such an opinion. Conclusions of Law 10. Appellant appeals the determination of the Administrative Officer pursuant to 24 V.S.A. section 4465(a) and Section 17.13 of the Land Development Regulations. 11. Under Vermont law, the Development Review Board is a "quasi-judicial body" because it performs "a quasi-judicial function in determining the applicability of a valid city ordinance to the facts of a case, i.e., in applying the law to the facts." See Chioffi v. Winooski Zoninq Board, 151 Vt. 9, 11, 13 (1989); see also 1. V.S.A. §310(5)(B). 12. The jurisdiction of Vermont courts is limited to actual cases or controversies. See J.L. v. Miller, 174 Vt. 288, 292 (2002)(emphasis added); see also In re Appeal of Bennington School Inc., 176 Vt. 584, 588 (2004). "The existence of an actual controversy turns on whether the [applicant] is suffering the threat of actual injury to a protected legal interest, or is merely speculating about the impact of some generalized grievance." Id. "An actual or justiciable controversy requires the court to distinguish the 'probable' from that which is merely `possible."' See Anderson v. State, 168 Vt. 641, 644 (1998). "Absent an actual controversy, any decision of the judicial branch is merely an advisory opinion, and is consequently beyond the authority vested in the judicial branch by the Vermont State Constitution." J.L. v. Miller, 174 Vt. 288, 293 (2002)(emphasis added). 13. With its most recent applications, Appellant asks the Development Review Board to render an advisory opinion. Appellant has sought review by the Environmental Court of this Board's denial of specific land development. While that application remains under the jurisdiction of the Environmental Court, Appellant seeks approval of a second proposed scenario for the same property. 14. As long as Appellant pursues the Environmental Court appeals, the most recent application is merely a hypothetical alternative proposal that requires the Board to speculate about the possible rather than the probable. The Vermont Supreme Court has refused to render purely advisory opinions where the parties -2- failed to articulate an actual controversy with respect to a "hypothetical second scenario" in an appeal from a zoning board of adjustment decision. See In re Appeal of Bennington School, Inc., 176 Vt. 584, 588 (2004). Only if Wesco withdraws the application in Environmental Court will the Development Review Board have jurisdiction to review a different application for land development at 1041 Shelburne Road. 15. Appellant attempts to claim that the applications for preliminary and final plat are deemed approved. Appellant alleges that the preliminary and final plat applications were complete as of July 1, 2005. For the purposes of reviewing Appellant's deemed approval claim, we will accept Appellant's date of completion as true. The Administrative Officer's letter is dated July 8, 2005, and Appellant submitted its appeal of said letter on July 13, 2005. 16. The purpose of the deemed approval remedy in 24 V.S.A. sections 4448(d) and 4464(b)(1) is to "`remedy indecision and protracted deliberations on the part of zoning boards and to eliminate deliberate or negligent inaction by public officals."' See Hinsdale v. Village of Essex Junction, 153 Vt. 618, 623-624 (1990). "This case involves neither indecision nor protracted deliberation." Id. at 624. Appellant's applications are not deemed approved. Decision Based on the Findings of Fact and Conclusions of Law set forth above, the Development Review Board approves Appellant's appeal of the Administrative Officer's letter dated July 8, 2005. Mark Behr — yea/nay/g sl�# pnot present Matthew Birmingham — yea/nay/ st ' of present Chuck Bolton — yea/nay/abstain/rtq!]FgrgD:b John Dinklage — yeq�abstain/not present Roger Farley — yea/cV;7abstain/not present Larry Kupferman — yea/ a�/abstain/not present Gayle Quimby — yea/c5?abstain/not present Signed thisl__U day of September 2005, by John Dinklage, hair -3- Please note: You have the right to appeal this decision to the Vermont Environmental Court, pursuant to 24 VSA 4471 and VRCP 76 in writing, within 30 days of the date this decision is issued. The fee is $225.00. 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). -4- CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURL.INGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 October 14, 2005 William E. Simendinger, Esq. Sarvak & Simendinger 32 San Remo Drive South Burlington, VT 05403 Re: 1041 Shelburne Road — Notice of Appeal Dear Mr. Simendinger: Please be advised that there are no interested persons with whom Wesco, Inc. must serve the Notice of Appeal. If you have any questions, please let me know. Since R�Upf-cd J . fir' ' Ad inistrative Officer cc: Amanda S.E. Lafferty, Esq. Page 1 of 1 Ray Belair From: Amanda Lafferty [ALafferty@firmspf.coml Sent: Thursday, October 06, 2005 11:40 AM To: Ray Belair Subject: wesco appeal Ray, In connection with Wesco's appeal of your decision to send the application for 1041 Shelburne Rd. back to them, would you please send Bill Simendinger a letter, copy to me, that says that there are no interested persons with whom Wesco, Inc. must serve the notice of appeal? If there were interested persons, please let me know. Thanks, Amanda S. E. Lafferty Stitzel, Page & Fletcher, P.C. 171 Battery Street P.O. Box 1507 Burlington, VT 05402-1507 ---------------------------- This Electronic Mail transmission and any accompanying documents contain information belonging to the sender which are CONFIDENTIAL and legally PRIVILEGED. This information is intended only for the use of the individual or entity to whom this transmission was addressed, as indicated above. If you are not the intended recipient, any disclosure, copying, distribution, or action taken in reliance on the contents of the information in this transmission is strictly prohibited. If you have received this transmission in error, please reply to the sender at 802-660-2555 or the above e-mail address and delete this message and all attachments from your storage files. Thank you. 10/6/2005 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-05-5 7 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: 575 Dorset Street, South Burlington, VT 05403. Sincely Cr,t l a on 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 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.) October 5, 2005 Jacalyn Stevens, Manager Vermont Environmental Court 2418 Airport Road Barre, VT 05641-8701 JILL E. SPINELLI WILL S. BAKER Re: Appeal of Wesco, Inc (Administrative Officer determination) Docket No. Vtec Dear Jackie: In connection with the above -referenced matter, please find the enclosed for filing: 1. Wesco Inc.'s Notice of Appeal 2. The Findings of Fact and Decision of the Development Review Board 3. Wesco, Inc.'s check to the Environmental Court in the amount of $225.00 4. My Entry of Appearance. Please call with questions. Thank you. Sincerely, Amanda S. E. Lafferty CC: (w/o the first three attachments) Raymond Belair William E. Simendinger, Esq. Marc B. Heath, Esq. son5957.cor STATE OF VERMONT ENVIRONMENTAL COURT APPEAL OF WESCO, INC. ) DOCKET NO. (Administrative Officer determination) ) ENTRY OF APPEARANCE Vtec 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 5Ih day of October, 2005. son2119.1iteoa STITZEL, PAGE & FLETCHER, PC. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 STITZEL, PAGE & FLETCHER, P.C. By: A14- Amanda S.E. Lafferty Sarvak & Simendinger ATTORNEYS AT LAW 32 San Reino Drive, So. Burlington, VT 05407-2287 (802) 658-9999 1 Fax (802) 864-6234 William E. Simendinger, Esq. ext. 233 Certified RRR September 30, 2005 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 $225.00 and Notice of Appeal in reference to the above property. Thank you. RECEIVED OCT 0 4 2005 City of So. Burlington Enc. cc: Marc Heath, Esq. C:\Documents and Settings\tkelton\My Documents\2005docs\BMerk2.doc 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 September 21, 2005 decision the South Burlington Development Review Board on Appeals #AO-05-02, 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 the application was properly filed. WHEREFORE, the Court should reverse the decision of the Development Review Board and order the permit to be deemed approved or in the alternative, remanding the case to have the application filed and set to be heard. Dated at South Burlington, VT this 3o day of September, 2005. Wesco, Inc By: - � I WilliYm E. Simendinger, E Sarvak and Simendinger 32 San Remo Drive So. Burlington, VT 05403 C:\Doeumente end Seuings�dcelwnVvty Docnmmts\2005docs\B3NodemfAppeaIDRB.doc CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING AND ZONING WESCO, INC. — 1041 SHELBURNE ROAD APPEAL #AO-05-02 FINDINGS OF FACT AND DECISION Wesco, Inc., hereinafter referred to as Appellant, appeals the determination of the Administrative Officer dated July 8, 2005. The Development Review Board held a public hearing on this appeal on August 16, 2005. Based on testimony provided at the above -mentioned public hearing, supporting materials contained in the document file for this appeal and the written argument presented by Appellant, the Development Review Board finds, concludes and decides the following: FINDINGS OF FACT I. Appellant appeals the determination contained in the letter of the Administrative Officer dated July 8, 2005. 2. Appellant is the owner of record of the subject property. 3. The subject property is located in the Commercial 1 Zoning district. 4. There are currently three appeals before the Environmental Court in connection with the subject property. 5. Beginning several weeks ago, Appellant started submitting materials to the Planning and Zoning Department in support of applications for both preliminary and final plat review. Said application was not complete. 6. Over the course of several weeks, Appellant, attempting to make the application complete, submitted additional material to the Planning and Zoning Department in support of the applications referenced above. 7. Once complete, the Administrative Officer reviewed the application and compared it to the applications that are the subject of the appeals before the Environmental Court. Based on this comparison, the Administrative Officer determined that the applications for preliminary and final plat review proposed a substantially different layout/site plan for the subject property than that which is currently before the Environmental Court. - 1 - failed to articulate an actual controversy with respect to a "hypothetical second scenario" in an appeal from a zoning board of adjustment decision. See In re Appeal of Bennington School Inc., 176 Vt. 584, 588 (2004). Only if Wesco withdraws the application in Environmental Court will the Development Review Board have jurisdiction to review a different application for land development at 1041 Shelburne Road. 15. Appellant attempts to claim that the applications for preliminary and final plat are deemed approved. Appellant alleges that the preliminary and final plat applications were complete as of July 1, 2005. For the purposes of reviewing Appellant's deemed approval claim, we will accept Appellant's date of completion as true. The Administrative Officer's letter is dated July 8, 2005, and Appellant submitted its appeal of said letter on July 13, 2005. 16. The purpose of the deemed approval remedy in 24 V.S.A. sections 4448(d) and 4464(b)(1) is to "`remedy indecision and protracted deliberations on the part of zoning boards and to eliminate deliberate or negligent inaction by public officals."' See Hinsdale v. Village of Essex Junction, 153 Vt. 618, 623-624 (1990). "This case involves neither indecision nor protracted deliberation." Id. at 624. Appellant's applications are not deemed approved. Decision Based on the Findings of Fact and Conclusions of Law set forth above, the Development Review Board approves Appellant's appeal of the Administrative Officer's letter dated July 8, 2005. Mark Behr — yea/nay/� not present Matthew Birmingham — yea/nay/ st" of present Chuck Bolton — yea/nay/abstain/tom John Dinklage — yegabstain/not present Roger Farley — yea/tomabstain/not present Larry Kupferman — yea/6557/abstain/not present Gayle Quimby — yea/ r5abstain/not present Signed this�� day of September 2005, by John Dinklage, hair -3- PAY NbsA- a-:.�I WESCO, INC. I�bl��a:�ta - �Ic „ P.O. BOX 2287 32 SAN REMO DRIVE SO. BURLINGTON, VERMONT 05407-2287 1 1 1 �� IT CONTAINS MICROPRINTING 1N THE BORDER AND A CARBON BAND ON THE REVERSE. SIDE 6 - REMITTANCE ADVICE TO THE ORDER OF DATE DESCRIPTION CHECK ACCT. NO. CHECK AMOUNT SUB GEN 3 ► iz31 a; as IIKI ,� rmii3ia;a eIiIa .,.,r, 4bAy� diu& � � iR t—s7%eie �• •••�_ -,m sw •• ,W. v{ xrs� v xI WESCO, INC. r x�. / R'4 qN,B yJo F:. 04 igpoghn BURLINGTON, S a A K VERMONT AUTH SIG. 11800923111' 1:01L6000621: 11'lII16711,242611I211' CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 September 22, 2005 Dave Simendinger Wesco, Inc. 32 San Remo Drive South Burlington, VT 05403 Re: Minutes - 1041 Shelburne Road Dear Mr. Simendinger: For your records, enclosed is a copy of the minutes from the August 16, 2005 Development Review Board meeting. If you have any questions, feel free to contact me. Sincerely, "BetsyycDonough Planning & Zoning Assistant Encl. DEVELOPMENT REVIEW BOARD 16 AUGUST 2005 4. Review technical corrections of South Village Master Plan approval regarding timing for construction of Phase II recreation path: It was noted that the language relating to the timing of the rec path construction is not what the DRB had intended. A new decision will be drafted indicating building of the rec path at the end of each phase. Mr. Kupferman moved to amend the South Village Master Plan by changing condition #21 in accordance with Mark Hall's letter of 9 August 2005. Ms. Quimby seconded. Motion passed unanimously. 5. Public Hearing: Appeal #AO-05-02 of Wesco, Inc., appealing decision of Administrative Officer dated 7/8/05 relative to 1041 Shelburne Road: Mr. Simendinger gave members a letter relating to return of a preliminary and final plat PUD. Mr. Belair indicated he received a preliminary and final plat application from Wesco for redevelopment of the property at 1041 Shelburne Road. The original application came in incomplete and was returned to the applicant. It then came back complete. The City Attorney then advised Mr. Belair to return the application because there are 3 appeals pending on the property and these plans substantially differ from what is in court. The City Attorney said any decision by the Board would be "an advisory opinion" and the Board does not render such opinions. Mr. Belair noted that the letter Mr. Simendinger gave the Board indicated that the city had received a "zoning permit application" which it did not. Mr. Simendinger said he felt it is not right of a Zoning Administrator to return an application. He said the court has ruled he doesn't have authority to mail it back. Mr. Simendinger acknowledged that this application is different from what is under appeal in the Court. He felt that if it is different, the Board has to hear it. Members felt they would like to discuss this with the City Attorney. Mr. Kupferman moved to close the public hearing for Appeal #AO-05-02. Ms. Quimby seconded. Motion passed unanimously. 6. Continued sketch plan application #SD-05-52 of Allen Road Land Co., to amend a previously approved planned unit development consisting of four 2- family dwellings and one existing single family dwelling. The amendment consists of: 1) constructing a four story 33 unit multi -family dwelling, and 2) eliminating the four 2-family dwellings, 725 Hinesburg Road: -2- CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 September 22, 2005 Bill Simendinger Wesco, Inc. 32 San Remo Drive South Burlington, VT 05403 Re: Appeal #AO-05-03, 1118 Williston Road & Appeal #AO-05-02 Dear Mr. Simendinger: Enclosed are copies of the Findings of Fact and Decisions regarding the above referenced projects. Please contact us with any questions. Sincerely, 16! Betsy cDonough Administrative Assistant Encl. CERTIFIED MAIL: 7005 0390 0003 0241 0303 SEP-13-200``5 TUE 00:04 PH STITZEL PAGE FLETCHER PC FAX NO. E026602552 P, 02 i ATTOUN VTS AT LAW 171 'SAId N:[t1' S t'ii Nk;T rtl, ik 1Ar,1;JMA1 QN.vi'31MONT 01414 15n7 STATE OF VEItMONT ENVIRONMENTAL COURT A.PIPEALS OF V4'E, SCO, RNC, DOCKET NO, 152-7-02 Wee DOCKET NO. 163.7-02 Vtec ROCKET NO.6-1-03 Vtec AFFIDAVIT I, Raymond Belair, having been duly sworn, depose and state, based upon my porsonfal knowlodge, as follows: 1. I riln 010 cl«ly rIpj)oiI1Le(i Administrative Officer for the City of South l;'uxlingon, tt position that I have held since 1999. This Affidavit is made it stitaport of the City of South Burlington's Motion for Surnrntary Judgment, pursuant to V<R.C.P. 5fi. 2. On Novesn'bor 7, 2001, Wosco, Inc., Appolj&nt, stibmit'ted to the Development Review Bonrd kin Lipp icotion for a variance in connection with the proporty located at,10.11. Shelburyio Road in South Burlington, Vermont. 1SpeciricAly, Wesco, ine. requested a varianco "to allow building to be filtered" and citc<l "sotbacks" as tho relevant provision of the Regulations. 3. The IDevelopinent Review Board opened its hearing on this application (),11 January 22, 2002, mid eonti,nLied it to April 2, 2002, and May 21, 2002, 1 attended caell cif these meetings. 4. During one of these mootings, William Sirziendinger, on behalf of Wesco, Tile., stato(l his beliefthat Wesco, Inc, did not need a variance in connection with the I SEP-13-200++5 TJE 03:05 PH STITLEL PAGE FLETCHER PC FAX Kd 5026602552 P. 03 T7a.'O 130S']1 W 1'0inovO the existing convenl(3n Q store building and service aarion canopy and to construct a now, larger convenience store buildia- and a new canopy. 4. This st:ltomont was t'iie extont of the analysis that '.Nlr. Simondinror presented to tho Devolopment Revicw Board. Mr. Sirnendingesr did not snake any oi:hu st ttel;aont.s about tho need Or 4telc of need for a variance, nor did, he provide Fifty further explanotion of his claim that Wesco, Inc, did not need a vallance, IIe di.i not prosont. any facts, or argument in support ofthis claim. 5. Mr. Siniendingor also dz(i not submit any written momoranda to the 1, ovelop-niont review I3w)rd tint in any way addressed his claim that ` asc:.o, Inc. di'd riot n, od a Variarice in connection with the, above•do;_cribocl pxc�taosrll. DATED tit South Biurlingtcn, In the Coll of Chitt.ende and State of Ver•nuint, this 13"' ciay ofSeptc-inber 2005, Bolair STATE OF" VEItMONT 011ITTENDEN COUNTY, SS. StrbscIibo,d an0, sworn to bofore in is ].3'h day e e rnlyer Notary Publie My Commission Expireti�h� -,-RoO kiT i"FT , PA.I iIT,, G j F'l i.;1'F.111U ?, P.(I, A`1"11 tliTdl 1';� A'i' 1 AW xrc !tk'r'r�ar�f vrpf•:cq ;,rnn:,rar,n.�rtvt•an,r,r1,' i jl PROPOSED LANDSCAPING44 EXISTING CHAIN j I } LINK FENCE ALONG PROPERTY LINE (t I PROPOSED ICE MACHINE - LOCATION PROPOSED PROPANE CYLINDER RACK LOCATION SNOW STORAGE AREA PROPOSED UNDERGROU ELECTRIC LOCATION qrq �Wa PROPOSED SIDEWALK EXISTING WOOD ,SSHH�_ may_ �y _ _ N_25'00'00'E _ �y zIP 'qP 165.00" SIP PROPOSED BUILDING 54'x36'-1894sq.ft i 1 i -DEMO TO OLIVE GARDEN (DEL 400 agft, 12 SEATS I n O (DELI � O BUILDING-850 agft RELOCATE L-__J N='Jill EXISTING PROPANE I --r -- -------_--� I CYLINDER RACK ANTED I PAY PHONE NONG r- -----i RELOCATE I © W AY I ESS EXISTING AR HOSE II 1 i LOCATION - "T i t j l rJ. ----------- —'i EXISTING — ICE MACHINE I I I �- DEMO EXISTING CANOPY 'FRONT SETBACK S� LEE 3' SIDEWALK _ PROPOSED WATER g1 GE SERVICE LINE LOCATION OO I 1 I '--D6STING EDGE I 'PROPOSED 24'x5O' CANOPY / I EXISTING Q8 OF PAVEMENT PROPOSED SEWER 10 _ SERVICE LOCATI PROPOSED AR HOSE OCATION J RELOCATE ROPOSED VACUUM LOCATION\STING PP LOCATION ROPOSED BIKE RACK �\ PROPOSED POLE MOUNTED SHOEBOX G.M.P. 017 -- UTILITY POLE y, WITH STREET LIGHT NO CURB O.H.U. EXISTING SOUTH CATCH BASIN -J LEGEND PROPOSED C N25TX)'00'E � _ 1 (USCONCRETE T TANS TOF U O N 4'x8' PUMP ISLAND u� NE EXISTING SEWER SERVICE — EXISTING NORTH CATCH BASIN (D INSTALL 1. 1/2" PVC OVER PROPOSED WATERLINE OVE EXISTING CLRB r-i 1 'ROPOSED WATER SERVICE UqE TO CONNECT EXISTING 5fL GONG. SIDEWALK STING CURB CUT TO REMAIN SHELBURNE ROAD, U.S. ROUTE 7 I I PROPOSED DUMPSTER/ i FENCE ENCLOSURE LOCATION "STING SIGN G.M.P. #16 UTILITY POLE WITH STREET LIGHT ................ SHUTOFF OVERHEAD UTILITY LINEJ EIGSTMIG CURB CUT TO REMAIN TO BURLINGTON— EXISTING POLE MOUNTED SHOEBOX D4 GAS VALVE --O.H.U. D4 WATER VALVE SS EXISTING CANOPY RECESSED LIGHT, +Iy WATER SHUTOFF EXISTING POLE MOUNTED SHOEBOX FUEL FILLER PIPE SS - TO BE REMOVED WATER LINE CORNER UE 9 GAS LINE ° IRON BAR W — - - — - - — BOUNDARY LINE — ^ sO SEWER MANHOLE (�J SETBACK LINE s SIGN - EASEMENT LINE CATCH BASIN EXISTING CURB MONITOR WELL S EXISTING SEWER LINE SEWER MAN GRAPHIC SCALE la s s w (DInff) I. hmh _ LO IL EXISTING OVERHEAD UTILITY LINE EXISTING SEWER SERVICE LINE PROPOSED CONCRETE CURB PROPOSED SEWER SERVICE LINE PROPOSED UNDERGROUND ELECTRIC LINE PROPOSED WATER LINE PROPOSED POLE MOUNTED SHOEBOX BREWER PKWY HANNAFORD DRIVE W LAUREL HILL DRIVE T� 1041 SHELBURNE ROAD PRIVATE S4 RN wqY BALDWIN AVE BALDWIN AVE GREENING AVE CORTLAND AVE LANDSCAPING LEGEND O� EXISTING PINE TREE A/ 6 EXISTING TREE EXISTING TREE EXISTING kNOCKOUT ROSES . S PROPOSED PEPPERMINT STICK PROPOSED YEWS I ANDC - PIN CCH 1 F: SMALL HARDY PLANTS - S7,000 TOTAL $7,000 LANDSCAPING: $250,ODOx3% - S7,500 50,000x2% - $1.000 TOTAL 58,500 RECEjvED w 2 g 2005 Cty of So, Burlington WESCO, INC. 32 SAN REMO DRIVE SOUTH BURLINGTON, VERMONT 05403 SOURCE: ROBERT M. ALEXANDER CONSULTING CIVIL ENGINEER PO BOX 68 CRAFTSBURY COMMON, VERMONT 05827 SITE PLAN w U w H � Z W O z cro5 502 zw z j z ¢3 J z Z K N Z m wp z co waw Q z c0 G U w Z > Z oU z O J LLJ SI L M m _J O �m 0 U) 3 0 0 0 0 0 Ln t,,D Z LEGEND, ® Existing Iron Pipe n survey iraverese Point To the best of my knowledge and belief this survey Is based upon physical evidence found In the field Information abstracted from deeds, parol evidence information supplied by the owner and other pertinent records. --- - --- A ens---t-ei-- ---------------- IlUam n Professional Land Surveyor GRAPHIC SCALE 10 0 5 to 20 40 ( IN FEET ) i inch - 10 R I00O1" GENERAL NOTES This survey Is not Intended I:o delineate local areas of particular concern, wetlands or any other jurisdicitional boundari( s There may be additional easements restrictions and/or reservations not-4,own, The surveyor makes no claim as to subsurface features other than the surface evidence of same as shown hereon Acceptance of this survey plat or use of the corner monuments found or set during the performance of the field siirvey hereby limit the undersigned Uability related to professional negligent acts, errors, omissions or breach of contract to an amount not to exceed the fee charged. Existing Building Shelburne Road U.S. Route 7 To Burlington 'EIVED 29 2005 City of So. Burlington LOCATION PLAN Sarvak & Simendinger ATTORNEYS AT LAVV 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 August 16, 2005 Development Review Board City of South Burlington 575 Dorset Street So. Burlington, VT 05403 RE: 1041 Shelburne Road, South Burlington Dear Board: In this matter, the South Burlington Zoning Administrator returned a complete application for a preliminary and final plat planned unit development at 1041 Shelburne Road in South Burlington. The zoning administrator had no authority to return the application. Upon receiving a zoning permit application, the zoning administrator has three options. The administrator may grant or deny the application or refer it to a board or commission. Wesco, Inc. v. City of Montpelier, 169 Vt. 520, 523, 739 A.2d 1241, (1999). A zoning administrator authority is limited by statute. 24 V.S.A. §4448(d). Indeed since the zoning administrator picked none of the allowed options, the permit is now deemed approved. The application was complete on July 1, 2005. By failing to issue a decision to approve or deny or referring it makes the permits deemed issued on the 31st day or on August 1, 2005. Richardson v. Rutland, 164 Vt. 422, 425, 671 A.2d 1245, (1995) (a zoning administrator must act upon a remedy within his discretion in order to perform a duty imposed by law). 24 V.S.A. §4448 (d). Only an appropriate municipal panel has authority to reject a successive appeal and only if the prior case contained the same facts. 24 V.S.A. §4470 (a). Neither scenario applies here. Significant prejudice occurs by failing to act in accordance to the law - the date of filing fixes the version of zoning ordinance in effect. In Re Champlain Oil, 2004 Vt. 44, 176 Vt. , 852 A.2d 622. Further, sketch plan would need to occur a third time. Further, the reasons the zoning administrator lists for returning the application has no merit. The zoning administrator concluded that the applications were nothing more than "a request for an advisory opinion." This is a conclusion that has no basis in fact or law. Obviously the applicant is trying to secure permits. In conclusion, the zoning administrator's decision should be vacated and the matter remanded for the permits to be issued as deemed approved. Thank you. C:\Documents and Settings\tkc1ton\My Documents\2005docs\B3DRB.doc 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 July 12, 2005 Clerk Development Review Board 575 Dorset Street So. Burlington, VT 05403 RE: 1041 Shelburne Road Dear Clerk: Kathryn A. Sarvak, Esq. ext. 347 Enclosed please find $110.00 and a Application for the Development Review Board in regards to the above property. Thank you. S 4*a cerel , William E. Simendinger, Enc. C:\Documents and Settings\tkelton\My Documents\2005docs\B3C1,,k.doc RECEIVED JUL 13 2005 City of So. Burlington CITY OF SOUTH BURLINGTON DEPARTPAENT OF PLANNING, ZONING 575 DORSET STREET SOUTTI-1 EURLI�IGTOAI, VERA,1O!'-1T 05403 (802) 846-4106 FAX (802) 846-4101 Permit # 4b APPLICATION FOR THE DEVELOPMENT REVIEW BOARD 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. I understand the presentation procedures required by State Law (Section 4468 of the Planning & Development Act). Also that hearings are held twice a month. 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 the hearing. Type of application (check one): (X) Appeal from decision of the Administrative Officer (includes appeals from Notice of Violation ( ) Request for a conditional use ( ) Request for a variance ( ) Other PROVISION OF ZONING ORDINANCE IN QUESTION (IF ANY): see attached letter dated July 8, 2005 WHAT ACTION OF THE ADMINISTRATIVE OFFICER ARE YOU APPEALING ? The return of our application for PUD 1) OWNER OF RECORD (Name as shown on deed, mailing address, phone & fax #): WPscn, Tnc_, 32 San Remo Dr., So Burlington, VT 05403 864-51 (fax) 864-6234 2) LOCATION OF LAST RECORDED DEED (book & page #) 179/199-200 3) APPLICANT (name, mailing address, phone and fax #) Wesco, Inc., 32 San Remo Dr., So. Burlington, VT 05403 864-5155 (fax) 864-6234 4) CONTACT PERSON (person who will receive staff correspondence. Include name, mailing address, phone & fax # if different from above): William E. Simendinger, 32 San Remo Dr., So. Burlington, VT 05403 5) PROJECT STREET ADDRESS: 1 041 Shelburne Road 6) TAX PARCEL ID #: 1 540-01 041 -C 7) PROJECT DESCRIPTION A. Existing Uses on Property (including description and size of each separate use): B. Proposed Uses on Property (include description and size of each new use and existing uses to remain): C. Total building square footage on property (proposed buildings & existing building to remain): D. Height of building & number of floors (proposed buildings and existing buildings to remain, specify if basement & mezzanine): E. Number of residential Units (if applicable, new units & existing units to remain): F. Number of employees & company vehicles (existing & proposed, note office vs. non -office employees): O. Other (list any other information pertinent to this application not specifically requested above, please note if overlay districts are applicable): S) LOT CIOVERACE A. Total parcel size: Sq. Ft. B. Buildings: Existing _ Proposed Sq. Ft _Sq. Ft. 4) CONTACT PERSON (person who will receive staff correspondence. Include name, mailing address, phone & fax # if different from above): William E. Simendinaer, 32 San Remo Dr. , So Burlington, VT 05403 5) PROJECT STREET ADDRESS: 1 041 Shelburne Road 6) TAX PARCEL ID #: 1 540-01 041 -C 7) PROJECT DESCRIPTION A. Existing Uses on Property (including description and size of each separate use): B. Proposed Uses on Property (include description and size of each new use and existing uses to remain): C. Total building square footage on property (proposed buildings & existing building to remain): D. Height of building & number of floors (proposed buildings and existing buildings to remain, specify if basement & mezzanine): E. Number of residential Units (if applicable, new units & existing units to remain): F. !lumber of employees & company vehicles (existing & proposed, note office vs. non -office employees): G. Other (list any other information pertinent to this application not specifically requested above, please note if overlay districts are applicable): 3) LOT COVERAGE A. Total parcel size: Sq. Ft. B. Buildings: Existing % / Sq. Ft Proposed % / Sq. Ft. C. Overall impervious coverage (building, parking, outside storage, etc) E.isting % / Sq. Ft. Proposed % / Sq. Ft. D. Total area to be disturbed during construction: Sq. Ft. * * Projects disturbing more than one-half acre of land must follow the City's specifications for erosion control in Article 16 of the Land Development Regulations. Projects disturbing more than one acre require a permit from the Vermont Department of Environmental Conservation. 9) COST ESTIMATES A. Building (including interior renovations): $ B. Landscaping $ C. Other site improvements (please list with cost): 10) ESTIMATED TRAFFIC: A. Average daily traffic for entire property (in and out): B. A. M. Peak hour for entire property (in and out): C. P.M. Peak hour for entire property (in and out): 11) PEAK HOURS OF OPERATION 12) PEAK DAYS OF OPERATION 13) ESTIMATED PROJECT COMPLETION DATE 14) LIST ABUTTING PROPERTY OWNERS: (list names and address of all abutting property owners, including those across any street or right-of-way. You may use a separate sheet of paper if necessary): I hereby certify that all the information requested as part of this application has been submitted and is accurate to the best of my knowledge. SIGNATURE OF APPLICANT SIGNATURE OF PROPERTY OWNER Do not write below this line DATE O v r= suBMlssloN: REVIEW AUTHORITY: Development Review Board ❑ Director, Planning &:Zoning I have reviewed this application and find it to be: ❑COMPLETE, ❑ Incomplete Dfecror df Planning & Zoning or Designee ID RECEIVED .JUL 13 2005 City of So. Burlington C. Overall impervious coverage (building, parking, outside storage, etc) Existing % / Sq. Ft. Proposed % / Sq. Ft. D. Total area to be disturbed during construction: Sq. Ft. * * Projects disturbing more than one-half acre of land must follow the City's specifications for erosion control in Article 16 of the Land Development Regulations. Projects disturbing more than one acre require a permit from the Vermont Department of Environmental Conservation. 9) COST ESTIMATES A. Building (including interior renovations): $ B. Landscaping $ C. Other site improvements (please list with cost): 10) ESTIMATED TRAFFIC: A. Average daily traffic for entire property (in and out): B. A. M. Peak hour for entire property (in and out): C. P.M. Peak hour for entire property (in and out): 11) PEAK HOURS OF OPERATION 12) PEAK DAYS OF OPERATION 13) ESTIMATED PROJECT COMPLETION DATE 14) LIST ABUTTING PROPERTY OWNERS: (list names and address of all abutting property owners, including those across any street or right-of-way. You may use a separate sheet of paper if necessary): CITY OF SOUTH BURLING TON DEPARTMENT OF PLANNE14G & ZONING 575 DORSET STREET SOUTH BURLINGTON, VEEM01W 05403 (802) 846-4106 FA'X (802) 846-4101 August 11, 2005 Bill Simendinger Wesco, Inc. 32 San Remo Drive South Burlington, VI' 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, August 16, 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, Betsy AcDonough Planning & Zoning Assitant Encl. legals PUBLIC HEARING SOUTH BURLINGTON DEVELOP- MENT REVIEW BOARD The South Burlington Development Review Board will hold a public hearing at the South Burlington City Hall Conference Room, 575 Dorset Street, South Burlington, Vermont on Tuesday, August 16, 2005, at 7:30 P.M. to consider the following: 1. Final plat application #SD-05- 62 of Shearer Chevrolet, Inc. to amend a previously approved planned unit development for an existing 48,538 sq. ft. gfa of auto sales and service facility and 26,358 sq. ft. expansion. The amendment consists of: 1) minor adjustments to proposed expansion which will increase expansion to 27,539 sq. ft., and 2) other site modifications, 1675 Shelburne Road. boundary Line adjustment between lots #8 & 9, 3) reduce size of mixed -use building to 64,350 sq. ft. to include 40,000 sq. ft. of office use, 7,000 sq. ft. of retail use and six (6) dwelling units, 4) site modifications to 370 Farrell St, 5) increasing the expansion of indoor recreational facility by 210 sq. ft to 4,460 sq. ft., and 6) constructing a 71 unit 4-story multi -family dwelling on lot #9, FarreLL St. 3. Final plat application #SD-05- 63 of Diemer Properties, LLC for a planned unit development con- sisting of: 1) razing a 16 room motel and single family dwelling, 2) constructing a 6,000 sq. ft. 2-story multi -use building (requesting umbrella approval), and 3) constructing a 14 unit multi -family dwelling, 490 Shelburne Road. 4. Application #CU-05-13 of Ready Funeral Home for condi- tional use approval under Section 14.10, Conditional Use 2. Final plat application #SD-05- Review, of the South Burlington 60 of F&M Development Co, LLC Land Development Regulations. to amend a previously approved Request is for permission to: 1) planned unit development con- raze the existing buildings, and sisting of: 1) 309 residential 2) construct a 3168 sq. ft. build - units in six (6) buildings, 2) ing for funeral home and morti- subdividing two (2) parcels of tiary use (crematorium & office), 24.458 acres into eight Lots, 3) 75 Allen Road. 5. Final plat application #SD-05- 67 of University Mall Realty Trust to amend a previously approved planned unit develop- ment consisting of a 675,115 sq. ft. GFA shopping center complex with 614,338 sq. ft. of GLA. The amendment consists of: 1) raz- ing an existing single family dwelling, and 2) constructing a 2,624 sq. ft. retail store, 155 Dorset Street. 6. Appeal #AO-05-02 of Wesco, Inc. appealing decision of Administrative Officer dated 7/8/05 relative to 1041 Shelburne Road. Copies of the applications are available for public inspection at the South Burlington City Hall. John Dinklage, Chairman South Burlington Development Review Board July 27, 2005 i5,Ad - otc)4a kaU, I�IC_ 3l,;,g Codtc�.e Sf. -cv ono i Va.� CC6 otcas ' "t1r /6glvL*-*,w 60s l03a 2 d &Atj &� SP, \(a� MEMORANDUM (, f TO: Development Review Board FROM: Raymond J. Belair, Administrative Office DATE: August 12, 2005 RE: 'WESCO Appeal #AO-05-02 1041 Shelburne Road The Applicant; Wesco, Inc.; had submitted preliminary plat application #SD-05- 56 and final plat application #SD-05-57 for a planned unit development to redevelop their 1041 Shelburne Road property. Upon advice of the City Attorney, I returned both applications explaining my reasoning for doing so in a letter dated July 8, 2005 (copy enclosed). The appeal being taken is due my decision to return the applications for the reason given in my letter. The City Attorney has written a letter to the Board, (copy enclosed, which I am not allowed to read) which further explains the legal issues which prompted me to issue my 7/8/05 decision. 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: 575 Dorset Street, South Burlington, VT 0540 3. SincerL-ly 7 Ida on Belair Administrative Officer Enclosures cc: Amanda S. E. Lafferty Certified Mail Receipt 9 7002 2030 0002 0651 3412 MEMORANDUM TO: Development Review Board FROM: Raymond J. Belair, Administrative Office 4 k' DATE: August 12, 2005 RE: WESCO Appeal #AO-05-02 1041 Shelburne Road Agenda #5 The Applicant; Wesco, Inc.; had submitted preliminary plat application #SD-05- 56 and final plat application #SD-05-57 for a planned unit development to redevelop their 1041 Shelburne Road property. Upon advice of the City Attorney, I returned both applications explaining my reasoning for doing so in a letter dated July 8, 2005 (copy enclosed). The appeal being taken is due my decision to return the applications for the reason given in my letter. The City Attorney has written a letter to the Board, (copy enclosed, which I am not allowed to read) which further explains the legal issues which prompted me to issue my 7/8/05 decision. 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: 575 Dorset Street, South Burlington, VT 05403. Sinc9r fy aBair Administrative Officer Enclosures cc: Amanda S. E. Lafferty Certified Mail Receipt # 7002 2030 0002 0651 3412 R�epl;lj L&,f low -5Aeli., &. (-A) v 5-q 8 2. ICA f ref. Pic 5 7-{al Aj / . 3t I , c lid ec �,prop 1. ----------- 1> 0) ffl- tlel 40 cil 1w 4c> Fee ca SA Qh 5 lZ7- AL-5feug"WI Ant L 4 7 �6. is x&5�-�'d y � ray From: David McQuade <dmcquade@champlainfarms.com> Sent: Wednesday, October 15, 2014 11:13 AM To: ray Cc: Eric Simendinger; Dave Simendinger Subject: 1041 Shelburne Road Zoning App. withdrawal Ray, After deliberating on our plans to change our landscaping in the front island we have decided to withdraw our application for design/review. As our plantings in the front island were badly damaged during construction we will be replacing them with exactly what we had (Yews taxus deniformis) We will plant the same # and duplicate the size. If we provide a letter of credit can we open are facility prior to the planting. Thank you, David J. McQuade Director of Environmental Compliance Authorized Agent Wesco Oil Company 32 San Remo Drive South Burlington, VT 05403 Ph: 802-864-5155 ex 252 Cell: 802-373-5958 Fax: 802-864-6234 1 r� southburlington PLANNING & ZONING APPLICATION FOR SITE P i Administrative ❑ Dev pme All information requested on this application must b information either on this application form or on the rejected and a delay in the review before the Dey,� 1.OWNER(S) OF RECORD (Name(s) 2. LOCATION OF LAST 3. APPLICANT (Name, -51 4. CONTACT PERSON (person who address, phone 4a. CONTACT 0. L ADDRESS: Permit Number SP- (office use only) ��Ire to provide the requested t in your application being Board. phone and fax #): 5. PROJECT STREET AD ESS: \ C3y1 Sile1 cne �=, S• vT 05y p�, 6. TAX PARCEL ID # (can be obtained at Assessor's Office): k540 — 0 � 0 LA 575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburl.com 7. PROJECT DESCRIPTION a. General project description (explain what you want approval for): b. Existing Uses on Property (including description and size of each separate use): c. Proposed Uses on property (include description and size of each new use and existing uses to remain): 2p m n', n 4te. SO,m(' , d. Total building square footage on property (proposed buildings and existing buildings to remain): 8-'-0 sq . �A . e. Height of building & number of floors (proposed buildings and existing buildings to remain, specify if basement and mezzanipe): f. Number of residential units (if applicable, new units and existing units to remain): " Y- L--- g. Number of employees (existing and proposed, note office versus non -office employees): h. Other (list any other information pertinent to this application not specifically requested above, please note if Overlay Districts are applicable): iris \pca��on jS c-1l►n�� Site Plan Application Form. Rev. 12-2011 8. LOT COVERAGE Total Parcel Size: \(0500 Sq. Ft. a. Building: Existing rJ % / Rj� sq. ft. Proposed 5 % / 650 sq. ft. b. Overall impervious coverage (building, parking, outside storage, etc) Existing -75 % / sq. ft. Proposed -75 sq. ft. c. Front yard (along each street) Existing % / sq. ft. Proposed % / sq. ft. d. Total area to be disturbed during construction (sq. ft.) U9, * Projects disturbing more than one-half acre of land must follow the City's specifications for erosion control in Article 16 of the Land Development Regulations. Projects disturbing more than one acre require a permit from the Vermont Department of Environmental Conservation. 9. COST ESTIMATES a. Building (including interior renovations): $ 0 b. Landscaping: $ f L*0 , a c. Other site improvements (please list with cost): We, rnp\0,(2 4-C on,, - nrN)�s, n. -�n ✓n�r�nA M.(�nf�.� ro,.l n., , .. .r�r. rn ni..r.�, .L !'...r. �n_� ... r.l.r�\ ,. .. � 10. ESTIMATED TRAFFIC a. P.M. Peak hour for entire property (In and out): 5 c_afs hour 11. PEAK HOURS OF OPERATION: L4 = 3O — 5 ' 30 oK, 12. PEAK DAYS OF OPERATION: �Y �daU Sa�tutc�nv 13. ESTIMATED PROJECT COMPLETION DATE: \ 0 1201H 14. SITE PLAN AND FEE A site plan shall be submitted which shows the information required by the City's Land Development Regulations. Five (5)1 regular size copies, one reduced copy (11" x 17"), and one digital (PDF-format) copy of the site plan must be submitted A site plan application fee shall be paid to the City at the time of subming the site plan application in accordance with the city's fee schedule. 7 4 M /h M l'i Administrative site plan applications require three (3) regular size copies, one reduced copy (11" x 17"), and one digital (PDF-format) copy. 3 Site Plan Application Form. Rev. 12-2011 NOTE: NOTIFICATION of ADJOINING PROPERTY OWNERS: Notification of adjoining property owners, in accordance with 24 V.S.A. §4464(a) and Section 17.06(B) of the South Burlington Land Development Regulations, is the responsibility of the applicant. After deeming an application complete, the Administrative Officer will provide the applicant with a draft meeting agendas or public hearing notice and sample certificate of service. The sworn certificate of service shall be returned to the City prior to the start of any public hearing. I hereby certify that all the information requested as part of this application has been submitted and is accurate to the best of my knowledge. SIGN T APPLICANT re TURE OF PERTY OWNER PRINT NAME Do not write below this line DATE OF SUBMISSION: v 0 / # REVIEW AUTHORITY: ❑ Development Review Board [� Administrative Officer I have reviewed this site plan application and find it to be: Iomplete n The applicant or permittee retains the obligation to identify, apply for, and obtain relevant state permits for this project. Call (802) 879-5676 to speak with the regional Permit Specialist. Site Plan Application Form. Rev. 12-2011 WESCO, Inc. Distributor of Shell and Gulf Products September 24, 2014 Gardener's Supply Co. 128 Intervale Road Burlington, VT 05401 Fax: 1-800-551-6712 Verify and Quote Plants Can you please verify that the following plants will grow in South Burlington in front of a gas station? 1. Hydrangea Bobo (Hydrangea paniculata 'Bobo') 2. Goldmound Spirea (Spiraea bumalda 'Goldmound') 3. Wintercreeper Moonshadow (Euonyinus fortunei 'Moonshadow') 4. Japanese Spirea Double Play Gold (Spiraea japonica double play gold) If they will, please quote 2 of each plant. A4 90 //V I- & /-/ 7. 9 � 4 g �1. 9 5P z@ ,7. gypz s9, (✓z2 7 r G c- 8' lv (1\1tC4l C Thank you, Eric Simendinger P: (802) 881-9400 F: (802) 864-6234 Wesco Oil Inc. 32 San Remo Drive S. Burlington, VT 05403 www.champlainfarms.com 37.g9= 79-9F' fi Z, Z- /0 z-- //f 111�1?-�)Iltre5s W � /rL (�D �0D�N �¢/1'i Proposed Landscaping Plan 2014 1 of 11 Wooded Area N25°00'00_E r— — — — — — — — — — — — — — — — — — O LEGEND I O la — — Property Line Shed I ❑ Building O O Power Line c 850 sgft. O ❑ Grass I 0 G s I Vent, ❑ Paved .Canopy o n I Vending Machine 0 31'x46' I W © Light Pole ------- I - On' ❑� O e O o O Electric Pole Sf10 O o p Bike Rack I Du p , 0 �' •---- ---- ---1 Concrete Pad I Proposed Plants: 2 Japanese Spirea Neon Flash 2 Moonshadow Euonymus PLANT LIST 2 Hydrangea I 2x ' "y Hydrangea Bobo 3gal Hydrangea paniculala'Bobo' I 2 Japanese Spirea I 2x Goldmound Spirea 3gal Spiraea bumalda'Goldmound' I I 2x "}r Wintercreeper Euonymus fortunei Moonshadow 3gal 'Moonshadow' o 40" � Japanese Spires Spiraea japonica double play 2 EAsting 5ft. Conc. Sidewalk 5 50' G Double Play Gold 3gal gold oc C- NOTES 36' 42' 1. Store will be closed 2. Pumps will be self service 3. No Marked Parking Spots 4. No Dumpster Shelburne Rd U.S. Route 7 Stage n Progress Submitted Approved Date Sunoco Gas Station 1041 Shelbure Rd. S. Burlington, VT 05403 ' Scale Wesco Oil Inc. YY ESCO 32 San Remo Drive S. Burlington, VT 05403 OIL COMPANY � Phone: (802) 864-5155 Date 9/25/2014 PO# 63 Sketch + 3/14/12 0 7.5 15 30 L - _ V. = 30' Drawn b Eric Simendin er Site Plan + 9/25/14 Company Wesco Oil Inc. 3d Model File Name B3 Landsca in 2014 ray From: Eric Simendinger<esimend inger@champlainfarms.com> Sent: Thursday, October 09, 2014 3:45 PM To: ray Subject: 1041 Shelburne Road: Site Plan Review from State Hi Ray, Please see the attached email. From: Clancy, James [mailto:James.Clancy@state.vt.us] Sent: Thursday, October 09, 2014 9:19 AM To: Eric Simendinger Cc: Clancy, James Subject: Site Plan Review Hello Eric, Thank you for sending the site plan along for review. As we discussed earlier this week, and in reviewing your plan, no permit from VTrans will be required. These accesses have previously been permitted and were upgraded during the recent VTrans Shelburne Road Project. Also, given that you propose no work within the highway right-of-way VTrans will not require a permit for this work. We here at VTrans are coming up with standard letters for both those developments requiring permits and letters of intent (LOI), and for those not requiring permits or LOI's. So presently this e-mail confirms from VTrans that you do not need a permit or LOI. If a letter is needed to satisfy your process for development please give me a call or send an e- mail, otherwise I trust this e-mail suffices. Sincerely, Jim Clancy Project Supervisor Utilities and Permits Unit Vermont Agency of Transportation One National Life Drive Montpelier, Vermont 05633 (802)828-2486 1 ray From: Craig Lambert Sent: Wednesday, October 01, 2014 9:31 AM To: ray Subject: landscape plans Ray, Just a note approving the landscape proposals for the new Junior's on Shelburne Rd, and the filling station adjacent to the Shelburne Rd cemetery. Craig Lambert South Burlington City Arborist 104 Landfill Rd South Burlington, VT 05403 Ph: 802-658-7961 Fax: 802-658-7976 email: clam bert(dsburl.com Notice - Under Vermont's Public Records Act, all e-mail, e-mail attachments as well as paper copies of documents received or prepared for use in matters concerning City business, concerning a City official or staff, or containing information relating to City business are likely to be regarded as public records which may be inspected by any person upon request, unless otherwise made confidential by law. If you have received this message in error, please notify us immediately by return email. Thank you for your cooperation. WESCO, Inc. GSA --^AWN FARMS March 14, 2014 Ray Belair City of S. Burlington City Hall S. Burlington, VT 05403 Re: 1041 Shelburne Rd. Ray, Distributor of Shell and Gulf Products MAR 1 4 2014 City of So. Budington As we discussed, we have closed our store and have stopped all business operations. We plan on replacing the tanks at this site and desire to become a fuel only operation. I am not sure what permits are required as the only difference is that we will only sell fuel and not all the other convenience store and deli items. Please confirm that this is in line with what we discussed. upgrade the tanks, just let me know. Thank you, David Simendinger President 32 San Remo Drive South Burlington Vermont 05403 802-864-5155 Fax 802-864-6234 www.champlainfarms.com And if you require any permits to City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403-6260 OFFICE OF CITY CLERK DONNA S. KINVILLE TEL. (802) 846-4105 September 23, 2009 To whom it may concern: I, Donna Kinville, City Clerk for the City Of South Burlington certify that the following data is copied directly from our permit recording book: Williston Road 1068 SP-09-04 Champlain School Apartments 3 /19/2009 Williston Road 1068 CU-09-01 Champlain School Apartments 3 /19/2009 Williston Road 1076 ZP-09-177 Best Western/ Windjammer Inn 7 /8 /2009 Williston Road 1108 CO-09-10 Wesco, Inc. 2 /20/2009 Williston Road 1118 " Discharged3 Dismissal of NV-08-01 and NV-08-02 9 /8 /2009 Williston Road 1118 ZP-09-012 Timberlake Association 2 /4 /2009 Williston Road 1174 ZP-09-184 Precourt Investment 7 /15/2009 Williston Road 1210 SP-09-28 Jarvis, Merrill and Lucille 3 /26/2009 Williston Road 1210 CO-09-07 Jarvis, Merrill 2 /2 /2009 Williston Road 1233 CC-09-096 Two O'Briens Properties, LLC 6 /12/2009 If you have any further questions, please feel free to call me at 802-846-4119. Sincerely, Donna Kinville S Burlington City Clerk AAW WESCO, Inc. EiXON Gulf Distributor of Exxon, Shell and Gulf Products January 27, 2009 Ray Belair So. Burlington Planning 8v Zoning 575 Dorset Street So. Burlington, VT 05403 RE: 1041 Shelburne Road, So. Burlington S Dear Ray: Please be advised that we withdraw without prejudice our application for site plan approval. We will be applying as a PUD. Thank you. Sincerely, David Simendinger President 32 San Remo Drive \\excha geW\userho—\tkelton\2009docs\BSouth South Burlington, VT 05403 802-864-5155 Fax: 802-864-6234 www.champlainfarms.com January 8, 2009 Wesco, Inc. c/o David Simendinger 32 San Remo Drive South Burlington, VT 05403 Re: 1041 Shelburne Road Dear Property Owner: Enclosed is the draft agenda for the January 20, 2009 South Burlington Development Review Board Meeting. Please note that this hearing will be held at South Burlington Public Works, 104 Landfill Road (off Patchen Road) in the 2"d floor conference room. It includes an application for development on your property. This is being sent to you and the abutting property owners to make aware that a public meeting is being held regarding the proposed development. The official agenda will be posted on the City's website (www.sburl.com) by the Friday prior to the meeting. Under Title 24, Section 4464 of State law, participation in a municipal regulatory proceeding is required in order to preserve your right to appeal a local development approval to the Vermont Environmental Court. State law specifies that "Participation in a local regulatory proceeding shall consist of offering, through oral or written testimony, a statement of concern related to the subject of the proceeding." If you would like to know more about the proposed development, you may call this office at 846-4106, stop by during regular office hours, or attend the scheduled public meeting. Sincerely, -Jejtj&-, Betsy McDonough Brown Planning & Zoning Assistant Encl. 675 Dorset Straet South BurlinUian. VT 05403 lei 802_ 4 .t�Uf£ Ian 802.846AID1 www.sbuH.c,�m h� I�,. FLANNtWGM-&, i0N114G January 8, 2009 Burlington Mall, Inc. Antonio Pomerleau 69 College Street Burlington, VT 05401 Dear Property Owner: Enclosed is a copy of the draft agenda for the January 20, 2009 South Burlington Development Review Board meeting. Please note that this hearing will be held at South Burlington Public Works, 104 Landfill Road (off Patchen Road) in the 2"d floor conference room. The enclosure includes a proposal that abuts property you own. The official agenda will be posted on the City's website (www.sburl.com) by the Friday prior to the meeting. Under Title 24, Section 4464 of State law, participation in a municipal regulatory proceeding is required in order to preserve your right to appeal a local development approval to the Vermont Environmental Court. State law specifies that "Participation in a local regulatory proceeding shall consist of offering, through oral or written testimony, a statement of concern related to the subject of the proceeding." If you would like to know more about the proposed development, you may call this office at 846-4106, stop by during regular office hours, or attend the scheduled public meeting. Sincerely, Betsy Mc onough Brown Planning & Zoning Assistant Encl. 75 Durset Itrect South urknvlan, °r 0541D3 Eel fax 0011 84t,41Di °ate +w,s,,hur9,r am LAWNING & Zt NIN'0 January 8, 2009 Shearer SDMWN Associates, LLC 1675 Shelburne Road South Burlington, VT 05403 Dear Property Owner: Enclosed is a copy of the draft agenda for the January 20, 2009 South Burlington Development Review Board meeting. Please note that this hearing will be held at South Burlington Public Works, 104 Landfill Road (off Patchen Road) in the 2"d floor conference room. The enclosure includes a proposal that abuts property you own. The official agenda will be posted on the City's website (www.sburl.com) by the Friday prior to the meeting. Under Title 24, Section 4464 of State law, participation in a municipal regulatory proceeding is required in order to preserve your right to appeal a local development approval to the Vermont Environmental Court. State law specifies that "Participation in a local regulatory proceeding shall consist of offering, through oral or written testimony, a statement of concern related to the subject of the proceeding." If you would like to know more about the proposed development, you may call this office at 846-4106, stop by during regular office hours, or attend the scheduled public meeting. Sincerely, �-&N --A� Betsy McDonough Brown Planning & Zoning Assistant Encl. cc: Michael W. Wool, Registered Agent 7 Ga rt Street: "Rou n d£-arkrigltan, YT MAU W BIM9 AM IAx 641,0MA101 �r�ce� .s ur�.crssar A e► southburlington PLANNING & ZONING January 16, 2009 Dave Simendinger Wesco, Inc. 32 San Remo Drive South Burlington, VT 05403 Re: January 20, 2009 Hearing — 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, January 20, 2009 at 7:30 p.m. Also, please note that this hearing will be held at the Department of Public Works, 2nd Floor Conference Room, 104 Landfill Road (off Patchen Road). If you have any questions, please give us a call Sincerely, bzhq Betsy McDonough Brown Planning & Zoning Assistant Encl. 575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburl.com Permit Number SP- 05 - r � 0 CITY OF SOUTH BURLINGTON 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, 32 San Remo Drive, So. Burlington, VT. (802) 864-5155 v, (802) 864-6234 f 2) LOCATION OF LAST RECORDED DEED (Book and page #) V. 762, Pg. 291-299 3) APPLICANT (Name, mailing address, phone and fax #) WESCO Inc, 32 San Remo Drive, So. Burlington, VT. (802) 864-5155 v, (802) 864-6234 f 4) CONTACT PERSON (Name, mailing address, phone and fax #) David Simendinger 5) PROJECT STREET ADDRESS: 1041 Shelburne Road, So. Burlington, VT 6) TAX PARCEL ID # (can be obtained at Assessor's Office) 1540 01041 C 7) PROJECT DESCRIPTION a) General Project Description (explain what you want approval for): Demolish existing Convenience Store and construct new 1632 sf Convenience Store with Deli and gas pumps (existing). Add parking spaces, improve Site circulation and add picnic tables. No new landscaping is proposed. b) Existing Uses on Property (description and size of each separate use) Convenience Store with gas pumps. c) Proposed Uses on property (description and size of each new use and existing uses to remain) Above d) Total building square footage on property (proposed buildings and existing buildings to remain) Existing building to be razed: 862 sf.....to be replaced with 1632 sf building e) Height of building & number of floors (proposed buildings and existing buildings to remain, specify if basement and mezzanine) One floor, 1632 sf f) Number of residential units (if applicable, new units and existing units to remain) N/A g) Number of employees & company vehicles (existing and proposed, note office versus non - office employees): 6 Employees (2 per shift) h) Other (list any other information pertinent to this application not specifically requested above, please note if Overlay Districts are applicable): 8) LOT COVERAGE Total Parcel Size: 16,500 sq.ft. a) Building: Existing 5.2% 862 sq.ft. Proposed 9.9% 1,632 sq.ft. b) Overall (building, parking, outside storage, etc) Existing 68.1 % 11,238 sq.ft. Proposed 67.3% 11,100 sq.ft. c) Front yard (along each street) Existing 78.6% 6,488 sq.ft. Proposed 61.0% 5,033 sq.ft. d) Total area to be disturbed during construction (sq.ft.) 10,000 sf* * Projects disturbing more than one-half acre of land must follow the City's specifications erosion control in Article 16 of the Land Development Regulations. Projects disturbing more than one acre require a permit from the Vermont Department of Environmental Conservation. 9) COST ESTIMATES a) Building (including interior renovations): $300,000.00 b) Landscaping: None Proposed c) Other site improvements (please list with cost) $40,000.00 (Site) 10) ESTIMATED TRAFFIC See attached Technical Memorandum bV Lamoureau & Dickinson a) Average daily traffic for entire property (in and out): b) A.M. Peak hour for entire property (in and out): c) P.M. Peak hour for entire property (In and out): 11) PEAK HOURS OF OPERATION: 7:OOam — 11:OOpm 12) PEAK DAYS OF OPERATION: M-S 13) ESTIMATED PROJECT COMPLETION DATE: 2009 14) ABUTTERS (please list all abutting landowners. Include mailing addresses. Also include those across a street or right-of-way. You may use a separate sheet if necessary) Burlinaton Mall, Inc. Antonio Pomerleau, 69 Colleae St., Burlinaton. VT 05401 City of South Burlington, 575 Dorset St., South Burlington, VT 05403 Shearer SDMWN Associates, LLC,t675 Shelburne Rd., South Burlington, VT A , Pal'O 6W �C�d� l -Uio�� 15) SITE PLAN 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. DATE OF SUBMISSION: REVIEW AUTHORITY I n 1" -r ( rPs:Jen�— Pt"5 "j 04 Do not write below this line evelopment Review Board ❑ Director, Planning & Zoning I have reviewed this site plan application and find it to be: ❑ Complete Incomplete Director of I g & Wing or Designee Da�S/ I CITY OF SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD \drb\sub\wesco\l 040ShelburneRd.doc enda #9 DEPARTMENT OF PLANNING & ZONING Report preparation date: January 16, 2009 Plans received: December 29, 2008 WESCO, INC. — 1041 SHELBURNE ROAD SITE PLAN APPLICATION #SD-08-120 Meeting date: January 20, 2009 Owner/Applicant Wesco, Inc. 32 San Remo Drive S. Burlington, VT 05403 Engineer Property Information Llewelyn Howley Inc Tax Parcel 1540-01041-C 20 Kimball Avenue Suite 202 C1 Zoning District; Traffic Overlay District 2A South Burlinaton VT 05403 16.500 sauare feet Location Map CITY OF SOUTH B URLINGTON 2 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\sub\wesco\siteplan_1041 ShelburneRd.doc Wesco Inc., hereafter referred to as the applicant, is requesting site plan review to amend a previously approved plan for an 832 sq. ft. convenience store with gas sales (4 fueling positions). The amendment consists of: 1) razing the existing 832 sq. ft. convenience store and 2) constructing a 1632 sq. ft. building consisting of convenience store use with deli, 1041 Shelburne Road (Champlain Farms). Associate Planner Cathyann LaRose and Administrative Officer Ray Belair, referred to herein as Staff, have reviewed the plans submitted on December 29, 2008 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 4 Max. Building Coverage 40% 9.9% + Max. Overall Coverage 70% 67.3% 4Max. Front Yard Coverage 30% 61.0% Min. Front Setback 50 ft. 68 ft. Min. Side Setback 10 ft. >15 ft. 4 Min. Rear Setback 30 ft. 8 ft. 4 Max. Building Height 35 ft. J1 21 ft. 4 zoning compliance + zoning non-compliance ♦ pre-existing small lot �► The front yard setback is listed as measured to the building; ordinarily the measurement would be to the canopy but no changes are proposed as part of this application The plan shows a 15 foot side setback requirement and the requirement is 10 feet. This should be adjusted on the plans. ********************************* It is extremely important to note that under site plan review, the Board has no authority to grant waivers or other relief of dimensional standards. Therefore, the overall coverage, front yard coverage, and rear setback non -conformities are not reviewable or permissible via this Board. CITY OF SOUTH BURLINGTON 3 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\sub\wesco\siteplan_1041 ShelburneRd.doc 1. As the Board is not permitted to grant waivers of dimensional standards in response to a site plan application, the applicant shall revise the plans such that the Board is not asked nor required to grant any waivers of the dimensional requirements. 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). Using trip generation rates published by the ITE in the 8th Edition of Trip Generation, the existing convenience store (ITE Land Use Category #853 — Convenience Store with Gasoline Pumps) has an existing pm peak hour trip generation of 51 vte/hr (862 sf x 59.69 vte/hr/ksf). Under Section 10.02H.(2) of the Traffic Overlay District regulations, the maximum allowed number of peak hour trips generated by this parcel is established at this higher level. Peak hour trips of the proposed new convenience store and restaurant were also estimated using ITE trip generation rates for the same ITE convenience store category and a fast-food restaurant category (ITE Land Use Category #933 — Fast -Food Restaurant without Drive - Through Window). With more than one commercial/retail use being proposed, there will be some cross -traffic, or multi -purpose internal trips, between those users. The ITE has developed a methodology for estimating such trips, and recommends using a 20% internal capture rate between retail uses during the weekday pm peak hour period. Using ITE calculation procedures, the 20% ratio is applied to the lowest number of each trip interchange, which in this case are the numbers of trips entering and existing the restaurant. The proposed building would generate an estimated 66 pm peak hour vehicle trip ends. In summary, the existing convenience store with gasoline pumps is grandfathered at a higher number of peak hour trips (51 vte/hr) than what would ordinarily be permitted by the Traffic Overlay District regulations for this parcel. The proposed redevelopment of this facility with a new convenience store having the same number of gasoline pumps but also containing a new restaurant is estimated to increase the peak hour trip generation to 66 vte/hr. The Board has no authority to grant an increase in the pm peak trip ends generated on the site, beyond the traffic budget or the existing grandfathered value. 2. The applicant shall revise the plan such that the traffic generated will remain below the existing 51 vehicle pm peak trip ends. CITY OF SOUTH B URLING TON 4 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\sub\wesco\sitepIan _1041 ShelburneRd.doc 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. The information submitted as part of this application was incomplete. There are no water or sewer services shown on the site. Staff could not review this criterion for compliance. 3. The applicant shall submit water and sewer details for review prior to plan 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. The applicant has not submitted a grading or erosion control plan. Staff could not review these criteria for compliance. 4. The applicant has not submitted a grading or erosion control plan. The applicant shall submit these details prior to plan approval. 5. 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 two curb cuts from Shelburne Road: the southern entrance is approximately 28 feet wide and the northern access is approximately 31 feet wide. To discourage left turns across traffic, staff strongly recommends that the curb cuts be narrowed to a width sufficient only to accommodate one -directional traffic. In a similar project on Williston Road, CITY OF SOUTH B URLINGTON 5 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\sub\wesco\siteplan_1041 ShelburneRd.doc the Board approved two curb cuts of 20 feet and 25 feet. They should also be limited to one - directional travel. 6. The applicant should work with staff to reduce the widths and design of the curb cuts so to discourage turns across traffic. 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. 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. It is unclear if this application represents an allowable use in the district. Staff is unsure what type of "restaurant" that the applicant is requesting. The applicant should clarify which uses they are proposing, and what square footage is proposed to be allocated to each. Interior plans should corroborate this. 7. The applicant must clarify which uses are being proposed and to which extent. The applicant shall submit interior plans which corroborate the uses proposed. 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 to the best ability of the parcel. 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. As the plans are incomplete, the Fire Chief has not reviewed the plans. 8. The South Burlington Fire Chief should review and comment on the plans, prior to any approvals. CITY OF SOUTH B URLING TON 6 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\sub\wesco\siteolan 1041 ShelburneRd.doc 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. As the plans are incomplete, the City Engineer has not reviewed the plans. 9. The City Engineer shall review the plans and provide comments prior to any approvals. 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. The applicant has not submitted any lighting details. 11. The applicant shall submit a lighting point by point plan and cut sheets prior to any approvals. The project is consistent with the goals and objectives of the Comprehensive Plan for the affected district(s). It is unclear if this application represents an allowable use in the district. Staff is unsure what type of "restaurant" that the applicant is requesting. The applicant should clarify which uses they are proposing, and what square footage is proposed to be allocated to each. Interior plans should corroborate this. 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 CITY OF SOUTH B URLINGTON 7 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\sub\wesco\siteplan_1041 ShelburneRd.doc yard, as the front yard coverage is far greater than what is allowed through the Land Development Regulations. Staff is unable to assess the parking required or met as part of this application as it remains unclear specifically which uses are being proposed. When those uses are clear, staff will reassess the parking demands in accordance with Table 13-1 of the Land Development Regulations. The applicant is proposing seven parking spaces and four spaces at the pumps. 12. The plans shall meet the minimum parking requirements as established by the Board in conjunction with Staff. (b) Parking shall be located to the rear or sides of buildings to the greatest extent practicable. Some of the parking is located to the side of the building. Some parking spaces are located to the front, including those at the fueling pumps. Staff finds that this meets the practicality standard set forth in the regulations. (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. The applicant has not stated the height of the building except to state that it is one story. 13. The applicant shall submit the height of the building. (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. 14. The applicant should submit architectural details of the proposed structures. (� 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. Again, the applicant should submit details of the proposed structures. ( CITY OF SO UTH B URLING TON 8 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\sub\wesco\siteplan_1041 ShelburneRd.doc Site plan applications shall meet the followina 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. Staff does not advocate for any additional accesses. (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 corner 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. The applicant is not proposing any additional landscaping. They are requesting a credit for existing landscaping. Staff does not support this request. 15. The applicant should submit the estimated construction costs so that the exact minimum landscaping requirement can be determined. 16. 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) as well as 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 do not depict adequate snow storage areas. 17. The plans shall be revised to show snow storage areas. Other CITY OF SOUTH B URLINGTON 9 DEPARTMENT OF DEVELOPMENT REVIEW BOARD PLANNING & ZONING \drb\sub\wesco\siteplan_1041 ShelburneRd.doc 18. No exterior storage outside of the approved screened dumpster storage areas shall be permitted. In addition, exterior product display shall not be permitted. 19. The plans should be revised to include lot dimensions. RECOMMENDATION Staff recommends that this application be continued until all missing information is provided. Respectfully submitted, Cathyann LaRose, Associate Planner Copy to: David Simendinger, Applicant Technical Memorandum Peak Hour Trip Generation Champlain Farms -1041 Shelburne Road South Burlington, Vermont December 15, 2008 Background WESCO, Inc. presently operates a Champlain Farms convenience store with gas pumps at 1041 Shelburne Road; located on the west side of Shelburne Road between Fayette and Hannaford Drives. The existing convenience store is 862 sf in size and includes four vehicle fueling positions at the multi- product gasoline dispensers. The lot is 16,500 sf (0.38 acres) in size, and is accessed via two curb cuts onto Shelburne Road. Access to the Olive Garden parcel to the rear (west) is also provided. The purpose of this Project is to replace the existing convenience store building with a new 1,632 sf building, in which 800 sf would be used for the convenience store and 832 sf would be used for a restaurant. The existing canopy and gas pumps will remain in their current locations. The existing curb cuts will be modified to add corner radii and reduce their throat widths. Access throat lengths will also be lengthened through the removal of existing pavement. These modifications will improve stacking organization and length for exiting vehicles. They will also facilitate entering and exiting movements and minimize potential conflicts with Shelburne Road traffic by better accommodating vehicle turning paths. Nine new designated parking spaces plus four vehicle fueling positions will provide parking for a total of 13 vehicles at any one time. Existing Peak Hour Trips This parcel is located in Zone 2A of the City of South Burlington's Traffic Overlay District. As such, it is permitted to generate 20 peak hour vehicle trip ends per 40,000 sf of lot area during the pm peak hour of adjacent street traffic. For this parcel, that equals 8 vehicle trip ends per hour (vte/hr). Using trip generation rates published by the ITE in the 81h Edition of Trip Generation, the existing convenience store (ITE Land Use Category #853 - Convenience Store with Gasoline Pumps) has an existing pm peak hour trip generation of 51 vte/hr (862 sf x 59.69 vte/hr/ksf). Under Section 10.02 H.(2) of the Traffic Overlay District regulations, the maximum allowed number of peak hour trips generated by this parcel is established at this higher level. Although Shelburne Road does not have a median at this location, existing traffic patterns entering and exiting the existing Champlain Farms are almost exclusively right -turns in and right -turns out. Proposed Peak Hour Trips Peak hour trips of the proposed new convenience store and restaurant were also estimated using ITE trip generation rates for the same ITE convenience store category and a fast-food restaurant category (ITE Land Use Category #933 - Fast -Food Restaurant without Drive -Through Window). Lamoureux & Dickinson Consulting Engineers, Inc. Technical Memorandum December 15, 2008 Page 2 With more than one commercial/retail use being proposed, there will be some cross -traffic, or multi- purpose internal trips, between those uses. The ITE has developed a methodology for estimating such trips, and recommends using a 20% internal capture rate between retail uses during the weekday pm peak hour period. Using ITE calculation procedures, the 20% ratio is applied to the lowest number of each trip interchange, which in this case are the numbers of trips entering and exiting the restaurant. Table 1 shows the resulting peak hour trip calculations for the proposed uses. Table 1 - Proposed Peak Hour Trips Use Size (sf) Avg. Trip Rate (vte/hr/ksf) Peak Hour Trips (vte/hr) Convenience Store 800 59.69 48 Restaurant 832 26.15 22 Internal Trips 20% of 22 trips -4 Total 66 Conclusion In summary, the existing Champlain Farms convenience store with gasoline pumps located at 1041 Shelburne Road is grandfathered at a higher number of peak hour trips (51 vte/hr) than what would ordinarily be permitted by the Traffic Overlay District regulations for this parcel. The proposed redevelopment of this facility with a new smaller convenience store having the same number of gasoline pumps but also containing a new restaurant is estimated to increase the peak hour trip generation to 66 vte/hr. With entering and exiting traffic at this location being almost exclusively right -turns, it is our opinion that the potential impacts of the proposed 15 vte/hr increase will be effectively mitigated by improving the two curb cuts (narrower, longer accesses plus new corner radii), providing delineated parking spaces and related improvements to the internal traffic circulation. \ � I I % I I I I F I / I ///,, 74 1` N 5 Z;* o w �ONALV� ` Lamoureux & Dickinson Consulting Engineers, Inc.