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BATCH - Supplemental - 0801 Williston Road (3)
WESCO, INC. December 30, 2003 Ray Belair City of So. Burlington 575 Dorset Street So. Burlington, VT 05403 RE: 801 Williston Road Dear Ray: Affuk III EON G'ulfTEXACO (D DISTRIBUTOR OF TEXACO, EXXON, GULF AND SHELL PRODUCTS In reference to your December 23, 2003 letter. The signs were ordered on December 26, 2003. College students stole the signs and we will replace them. Thank you. Si 7ZDavid ger President C:\Documents and Settings\tkelton\My Documents\2003docs\B9Belair2.doc 32 SAN REMO DR. P.O. BOX 2287 PHONE 802-864-5155 SO. BURLINGTON, VT 05407-2287 12,'31/03 WED 03:55 FAX Z002 WESCO, INC. %w u TEXACO 01STRI8UTOR OF TEXACO, EXXON, GULFAND SHELL PROOLICTS December 30, 2003 Ray Beiair City of So. Burlington 575 Dorset Street So, Burlington, VT 05403 RE: 801 Williston Road Dear Ray: In reference to your December 23, 2003 letter. The signs were ordered on December 25, 2003. College students stole the signs and we will replace them, Thank you. Davi7-�S* ger President CADncutnmts and Setdnpltkdto \My Doaumantn1R003dso.\B9H.)altg duc 32 SAN REMO DR. P.O. BOX 2287 PHONE 8C2-864-5155 SO, BURLINGTON, VT064C7-2287 CITY OF SOUTH BURLI GTON DEPARTMENT OF PLANNflNG & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 December 23, 2003 William E. Simendinger, Esq. P.O. BOX 2287 South Burlington, VT 05407-2287 Re: 801 Williston Road — Zoning Violation Dear Mr. Simendinger: A recent inspection of your 801 Williston Road property revealed that you have removed two (2) "Do Not Enter" signs which you are required to maintain at the terminus of your one-way access drive. You have one (1) week from the date of this letter to replace these signs or I will be forced to issue you a Notice of Violation. I am in hopes that this step will not be necessary. Smcer�l)t, �k 14 e 2R� nd I: Belair administrative Officer CLE�'IS OFFXCE p $ CI'1'Y 2 on Pa9; Gam—' Received �Jo1' �.ecotds STATE OF VERMONT Recorded +n ton L4;�d J ^ „ pf So . Qu�tin9 � (� ENVIRONMENTAL COURT Attest. Clerk o tr.v�ile. cm ) IN RE: Appeal of Timberlake Associates ) (801 Williston Road ) South Burlington) ) Case No. 204-12-01 Vtec Upon the City of South Burlington's Motion for an Order of Contempt, and after hearing dated May 13, 2003, the Court enters the following order: Timberlake Associates (hereinafter the "Appellant") shall revise the Spear Street entrance to the site so that it is in accordance with the plan attached hereto as Exhibit A; 2. Appellant shall make application to and obtain a zoning permit from the City of South Burlington for the subject property prior to commencement of any construction and/or work in accordance with paragraph 1, above; Appellant shall obtain a certificate of occupancy from the City of South Burlington for the subject property as soon as Appellant has complied with paragraph 1, above; 4. Appellant shall pay to the City of South Burlington $1,500.00 (One Thousand Five Hundred Dollars) in order to cover the attorneys' fees and costs the City of South Burlington has incurred in connection with this matter. So ordered. ,J Lo 3 Date DowNs RACHLIN MARTIN PLLC A �, _. / Wo—n-.1kelAien B. Martin e �c I' ' 1 1 II d H J� a 1• , , I � ----- . r- o eeu.di . .•iiSfr -- ____ r►+ KIUISPON ROAD U.S. ROUTS #2 aver r �; 1 i \ a.. Ilk- \ so - -- ar ,nc +- Y. LOCA- l0k MAP PI sa. MAPN. 1 YF 631r6 1.4 ull ( II NL7tw YCL'3U :x .r,.in..t ..orw . ate,„ LJ f; " W` j IOa�A /M i1MM[ Mf wasm 1 r Q� C QI�r AY t 11 ��^ �o�m [as ae7aR't �u ts] iy a u® J WL,af l�l LW to a SW AILS .m a►.it ,I/U YAt N6 34 7J/ICI , ]. ►,10�• \ Ci®19a0C .M8' 4,l: a2s 42, �` �_ . — .. � ,~. ��'"' �"' .•• �' � —.� _ �� — _�.�•*'•.ate- -- �_ �� ete�s ru RWAX \ \ _ ice:_ �....__ IL,•J ��•���•�} M'r W�hRvfMrOL'p!�'fS A./bad WU """`..--� _ i 4 5 w i cCM-� � � $ o.m na.T - ac r rca 1 W aka "a "M" 11.c i .u''s.x-- 1 `\ if :.iw°�rc`-�i�xia a 14" ADCOM DMA" m ,rr is .."A �r�y , » olsw, w roa O wnwwm� auo we j a eyl,p wan. -M isss l r• wa ..... Ov,ro dsiriliiL •S.M.M R1111 T k1 h l4-,111.T fG116 R fYPT M:.1 i.IW tYa YRc.W u ® � f JWMWA fU UM.M r1W L8M I" °• ESL re.,i PATH .r+. ,rL M M ils;A r PRIOR TO CONSTRLCT,C,` THE CONTr"LICT✓R SHALL � u'!/ia .m* rs•wa..® Dun= l.O..al .r+w.assr.ani.,or ma Blumberg No. 5119 9 i CA.i 'DIGSAW AT 1-6E8-34+-7233 TO LOCATE 1-UNDER13ROLND i a w cans LW L'TILTIsS. 7 _ �.j„f ftz o 1 , i,,�r.. ,co,s.ntvxsr s,a,ea oaN+R WAWA i.4.v.,w� � ( � aIa aanra _.•..-•••� :• �sace grads w It \ vaA• rasn..iwecoamewe SOMA, wa.oi.a dj..��t . %ttsw IIG► an LAC a.6YA.Y ¢ns m.ma •aasoa. ° SITE P1iA PLAN Yi YL w,a daae 4ra/li• ► Id: i i:7i.IN 4[ - - �4 YiN.NG 11 � fii6TSrC OCR[$ lxrws a.•.an n.. aO.G a..,m[ askaa •:�: < :::::?::<.•r :.:-:: - 7 J IMB KE � � •.naac�caw a.s■,a f_.•Ir,a . •_• c ^r.� /��*L.R ASSOAT i1►T /�(j %a� r SI V FI Y 1 ossttc s.us: eow =.�.®� a„°ica.,o uK (.'rl 1 •+• r s �( Sa,7H 8{,Kt1NGTQp SOOT' Li YCi,•RL f.14� rur.V.40iar �• 11 J(' _ I rt' aciatcPr awl I1 ,al aaa,i,. 0a49 i.a+.a10.. Iaolo►f .s-cr+s.i ,a.s a+uam aT IT 1H►raT W. a..r > =I Samak & Simendinger ATTORNEYS AT LAW 32 San Remo Drive, So. Burlington, VT 05407-2287 (802) 658-9999 1 Fax (802) 864-6234 William E. Simendinger, Esq. Kathryn A. Sarvak, Esq. ext. 233 ext. 347 July 30, 2003 Raymond Belair City of So. Burlington 575 Dorset Street So. Burlington, VT 05403 Dear Ray: Please consider this letter to withdraw our two appeals relative to 801 Williston Road pending before the South Burlington Development Review Board. Thank you. C. DmunimB and Satings\tkclton\My Dm metns,2003docs\B9Belair.doc CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 August 15, 2003 David 5imendinger Timberlake Associates 32 5an Remo Drive 5. Burlington, Vermont 05405 Re: 801 Williston Road Dear Mr. 5imendinger: 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 19, 2005 at 7:50 p.m. at the City Hall Conference Room, 575 Dorset Street, Sincerely, Raymond J. Belair Administrative Officer Encl. 1 CITY OF SOUTH BURLING` ON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 June 27, 2003 David 5imendinger Timberlake Associates 32 5an Remo Drive 5. Burlington, Vermont,05403 Re: 801 Williston Road Dear Mr. 5imendinger: Enclosed io the agenda for next Tuesday's Development Review Board meeting and staff comments to the Board. Pleaoe be sure that someone io at the meeting on Tuesday, July 1, 2005 at 7:30 p.m. at the City Hall Conference Room, 575 Dorset Street. Sincerely,,,. e F� Raymond J. 5elair Administrative Officer Encl. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FUtNU555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPRCOM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE (*ALSO ADWTTED IN N.Y.) May 5, 2003 Juli Beth Hoover City of South Burlington 575 Dorset Street South Burlington, VT 05403 Raymond J. Belair City of South Burington 575 Dorset Street South Burlington, VT 05403 Re: Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Dear Juli Beth and Ray: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Enclosed please find a Notice from the Environmental Court for a Motion Hearing scheduled for May 13, 2003 at 9:00 a.m. in connection with the above -referenced matter. Sincerely, Amanda S. E. Lafferty ASEL/jp Enclosure Son5163.cor STEVEN F. STITZEL PATTI R. PAGE* ROBERT E.FLETCHER JOSEPH S. McLEAN TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y.) STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) FAX (802) 660-2552 or 660-9119 E-MAIU FIRM2555@FI RMSPF. COM) WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 June 6, 2003 Raymond Belair Administrative Officer City of South Burlington 575 Dorset Street South Burlington, VT 05403 Roger Dickinson Lamoureux & Dickinson 14 Morris Drive Essex Junction, VT 05452 Re: Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Dear Ray and Roger: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Please give me a call to discuss the attached Site Plan prepared by Scott Michael Mapes dated February 17, 1997 in connection with the above -referenced matter. Thank you. Sincerely, Amanda S. ferty ASEL/jp Enclosure Son5216.cor NIP_...... .. ---'- --- I�i i•�Uvm ID• NV. N - Ae.{i - - CAL POfla --'-- N� TO °- ,,\ i .'4=. i ����� \_ .♦`\ v;•Rn +`.,•out` t�u.\`�� ����--•_--� _ r°mTMiM�iswD.---. •--- SHERATON B WlNOOSHI II. r_i_i_ \ ♦ ----------sa w _ .__. ,• 1'�1 r`r_r-r_r-i-i_>.-i_.L_.1__—ia -------- aa _ a- _____♦TIP ° ! 1 ---. WILLTSTON ROAD m' ro l 3+z.of U.S. ROUTE #Qa a f� •, ': 1 a � iW � e' TOE �4M,;� �. -------------- I°• ea EDESTINO� '- � g 'J ----------- -------` ------- PA �BS11NC CATCH eASN _ iW]MM I _' ����.• S SGD.00 � '+i4+i41N:N:e4'M1'+iMe:.::. •-�-+T� .. __ � _ IJP�wm YLv. ' �' ( veDPaem onRFEla " s s�F .« . - «« : ; SOUTH BURUNGTON my w \ I a P 1r wv IN - 335l LOCATION MAP le' NV. OUT - 33602 TUTS I I lrr, I B N/F N MOBIL OIL CO. 'Y1° VOL 34 PG. 288 W i ! I -L -.. — .Be• I Qat r I IZ f C:ANC>PY' . �4' CONEAEIE HB' F� Ewsnwc APPBDAwA E LaunaN I _ I I. aC PAD PIQD® M 1 S' urvltt OF UNOERCflOUND EASENELT D STOflAGE i, �� PROPOSED PAY Murmw I 7 PAVED \ EDPamI I COINDqEi2 PAD •• 1 I . .f 4q-Glit CANS 343.lD' I I f n T. I I / �` `� PROPOSES,Q PAPW6 CCIQEiE 2 � J i �� EoratlDll ('R-Yr-1 PAD I ----' DEaor� the nnPoam7 AREA roef IF OF TOTAL un i I I I —\ LL..U.J 3 TOTAL lDT AREA 78.180 GUIDING AND CANOPY - E.180 Z.OI 30% PAVELENT NOD WALKS - 20,505 25M PICNIC / ! ! Cl 1 + 900 ° 4 TOTAL COVERAGEA - 7.316 EF S.ex 1 eRl I I I I • 1 `.,,. e I1�-� WISH SPACE . 61.e64 All ]OR ♦S jl 11 �4,: ■ 313YtUT a o PA■"� 1 I I �P�"� PAVEAAE T µ0 WRVS �A. a.111 362R - ]Oi GREEK SPACE - 10.77B 71.- 7Dx PAVED GiEAg / -i IBO.W' — — / SURFACE DUYPG�EAJ — PA 94M AN PWAU TARO _ 10.157 PAVEMENT AND WAlR9 - 1.806 1].BS ]OZ / I IIIL ! ORKIN SPACE - 4131 8225- ]OS .� NI.e41 M. AOWO +"+ ►+��w �. F�+. ARCH =�c---z�----� ------ NOTES NOTES GRAM AKA 1. BOUNDARY AND SM FEATURES CRNARM SHOPN M TAKEN FRON A LieBSNAP ENS A'PIARO AT OF DARED DDI TRUST lA•. MDARG, HANDICAP ACClimmem Iii ' _ h+ ` "..JJ fT���, / I MM DEPRESSED CURB Z77= ip.B _' O S-O•GSI; �`R �_ N-.2♦r.•i I ]. Oil TaoaH. B6IpY wldWAnON Wald ON MSS LN.BtAN eASFD 6 / — — CCMUERGAL 1 � \ \ - jNVV� �—�••E/�a1H��AAee--�AAR• ON GRAPH. B0g1aMm PI UW LAN. RECONS 731.63 RESDENTIAL i Aim PAN \ RF31EAS-Bi FEATURES ONLY TO TITS EXTENT NOTm IN T 1M1N 11C REVl9ON5 BL(MX ALL O1HF11 FEAIUIEi AAC OWIPC91/ FAOI M Wfi11Al A'PP04m PRDECT, w1E f3NL C� N/F 1 I \ \ INV.IN A. ai°seY BA50 PC,30 EON All NSTAUJD AD MR. IOSTRIOR \ YOVOL50 PG. OOOLE R AND PROIME TAM - I $ PPOCR�cSwvsm"ucnor"+aT FDR g DATE PLOITELI - B/30/N NIQT flAVATION AT \ I - M-F - SS171' \ \ I e 4/3/01 ADDED ENTRANCE Sp! AND ICE YA. I El BURLlNGTON TENNIS CLUB INC. N� _ 7 1/20/01 ADDED PAY PHONE AND M O,SPENSER EXISTINGIll9EWFA MAIN easy" ill POST D 6 U/T+ ADDED 4M FUEUNO POSTION AND OMER EXISTING IZ• G WATER MAN �I[ EXISTING SEWOR MANHOLE ® I AS -BUILT FEATURES SB5 P1/ CLIENT/29DATA e {/e/8e REASONS PER SBPC 1/26/B8 DECISION EXISTING B' ASB CEWENT WATER MAN F-- FASTING MANHOLE ® yl I 4 2/17/9e ADDED AS -INSTALLED DUMPSITA LOCATION EXISTING TELEPHONE WE COSTNO CATCHBASIN o PRIOR TO CONSTRUCTION THE CONTRACTOR SHALL �1 AND CONCRETE PAD MOUND BUILDING EIRGnND NATURAL DAS LINER ecslwo ROAD awl ,r CALL "DIGSAFE" AT 1-•888-344-7233 TO LOCATE 1 3 1o/1h/B ADDED AS-NSTAUFD AC UNIT, EXTERIOR EAllil EXISTING UIUTY POE o UNDERGROUND UTILITIES. ADDED AND WADPME S AN .. Z 7/ii/eC ADDm AS-BUB.T WADES AND flE1i5'� 1' WATER SEANCE Ft "AM SFPEAATOR!CA1ppA5N .■� EENEiP STANCE - NECnON ♦• sil S vlcc _.�yy� EASING FIRE NYORAN1 T 1 Z/09/OB RENSED IINLSH CRME DaHTTJURS MO 5 B MWSTON fl0. CURB LINE CONSISTENT Even"G CONTOUR "�° `"'°"""' SITE PLAN MM TB PLAN DATED 1 /86 Yo, PRQ°EAtt LINE -- SAVER CUANWf ®` No. DATE AD PR0.k"M� Sml DAIm 9 f0 C7 GRAP}IIC SCALE ,,(( MS71NO CONCRETE CURB Cal lD CONCRETE SDEWAIR[ TIb1BERLAKE � /j CONCAl CURB CONCRETE Sol/ PAD T- - . ASSOCIATES S �� V I M GR.WITE SLOPE EDGING E1051NG CLAR) PNL to 10. OI SOUTH BURLINGTON SCOTT MICNP— tv1A A SLUNG Pavna F EXXON- POST OFFICE BOX 5517 M NWSTON ROAD BU. CTa. VTRYONT DIUDIAND INSURL-11 -- —I., SO lm BURIRIDTpI, VT 17 FEBRUARY 1"I ES j �6N-TIN PUBLIC HEARING SOUTH BURLINGTON' DEVELOPMENT` REVIEW BOARD The -South 'Burlington Development Review Board will hold a public hearing at the South Bur- lington City_ Hall, confer once Room, .575. Dorset Street, South Burlington, iVermont of Tuesday, (June 3, 2003, at 7:30 P.M. to consider the fol- lowing: 1, Appeal #AO-03- 01 of Timberlake Asso cisfes appealing decision of Administrative officer May 17, 2003 regarding the issuance of Notice. of Violation #NV- 03-04 alleging that the appellant is in _violation of the zoningregulations for conducting land dove- lopment at 801 Williston Road _ without a zoning ppermit 2,. Preliminary play application #SD-03-28 of the. Snyder Group, Inc: for Planned unit deve- lopment consistingg of 31 single - family; dweilings and one (1) existing sing- le family dwelling on 26.8. acres, 1700 Spear, Street. Copies, of the applica- tions are available for. on at the, Soun public IBurlliigton City'. Hall John Dlnkfage, Chairman South Burlington Dove- i,..,.,.e„ r P.A.W RnRrd. 14 Morse Drive Essex )unction, Vermont 05452 April 24, 2003 )LAMOUREUX & DICKINSON Consulting Engineers, Inc. Raymond J. Belair, Administrative Officer City of South Burlington 575 Dorset Street South Burlington, Vermont 05403 RE: 801 Williston Road Dear Ray, (802) 8784450 fax (802) 878-3135 As requested, we have reviewed the sketch showing the proposed narrowing of the Spear Street entrance at the above -referenced site. It appears that this sketch is at a scale of 1" = 20'. In our opinion, the proposed narrowing shown on that sketch, which is limited to just the easterly end of that entrance drive, does not sufficiently discourage the wrong way use of that drive to exit back onto Spear Street. Fourteen feet is an appropriate width, but motorists will ignore a short neckdown because of the wider width beyond should they encounter a entering vehicle. To be effective, the drive should be narrowed to an uniform width of 14 ft. over its entire length. The enclosed revised sketch shows the narrowing that we recommend. The pavement to be removed has been highlighted in orange. Should you have any questions concerning the above, please feel free to call me. Sincerely, Roger ckinson, P.E. Pmfessi l Traffic Operations Engineer P:\2001\01-118\belair-4-23-03.wpd Civil • Environmental • Transportation • Planning • Landscape Architecture • Land Surveying FROM City of So. E FAX N0. 1 802 658 4748 ' Apr. 15 2005 04:08PM P1 1 - = 300.00' 1 I •• � I � 1 1 7, r -0 I ONE WAY � APPROXIMATE LOCATION f - -- EXISTING ` OF UNDERGROUND I `n 5' UTILITY TORAGE TANKS I EASEMENT i 1 � PAVED • SURFACE 1 A BANNEME®EMENNEQ PA\ SUF Post -it' Fax rJote 7E71 Dale G w os I. pages TO ' From Go 1Dept. co - Phone Phone n Fax is ... Fay, H S STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAI14FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y.) May 7, 2003 William E. Simendinger, Esq. Sarvak & Simendinger 32 San Remo Drive South Burlington, VT 05403 Re: Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Dear Bill: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Enclosed please find the Notice of Hearing, dated May 2, 2003 in connection with the above -referenced matter. Please sign the enclosed Acceptance of Service form and return it to me. Sincerely, Amanda S. E. Lafferty ASEL/jp Enclosure cc: Raymond J. Belair, Administrative Officer son5186.cor STATE OF VERMONT ENVIRONMENTAL COURT APPEAL OF TIMBERLAKE ASSOCIATES ) Environmental Court Docket No. 204-12-01 ACCEPTANCE OF SERVICE I, William E. Simendinger, hereby accept service of the Notice of Hearing, dated May 2, 2003, in the above -referenced matter on behalf of the Appellant, Timberlake Associates, and waive any and all other manner of service whatsoever. Dated at Burlington, Vermont, this day of May, 2003. son1079.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 William E. Simendinger, Esq. I e Environmental Court of Vermont State of Vermont 255 North Main St., Suite 2 Barre, Vermont 05641 (802) 479-4486 Amanda Lafferty, Esq. Stitzel, Page & Fletcher PO Box 1507 Burlington VT 05402 1 't ; 10 STITZE4 PAGE & FLUCHER PC �I N 0 T I C E O F H E A R I N G �I 9 May 2, 2003 Appeal of Timberlake Assoc.(So.Burlington) Docket No. 204-12-01 Vtec This is to notify you in connection with the above named case for the following: Motion Hearing Regarding Motions(s): 6) Motion Motion for Order of Contempt Tuesday May 13, 2003 at 09:00 AM This hearing is going to be held at the Cost e o Courthouse, 3X Cherry Street, Burlington. p ViEn onmen al Court Clerk Notice sent to: William E. Simendinger, Attorney for Appellant, Timberlake Assoc. Amanda Lafferty, Attorney for Appellee, South Burlington, City of Co -counsel for party 1, Marc B. Heath CITY OF SOUTH BURLINGTON DEPARTMENT OF PIIUNNE�,TG & ZONiIT�JG 575 DORSET STREET SOUTH BURLINGTON, VERMONI' 05403 (802) 846-4106 FAX (802) 846-4101 ) Permit Number 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 hearing. Type of application check one: ( Appeal from decision of Administrator Officer (includes appeals from Notice of Violation) ( ) Request for a conditional use { ) Request for a variance (X) Other Request for Stay of Enforcement PROVISION OF ZONING ORDINANCE IN QUESTION (IF ANY) 24 Y.S.A. 447 Cc) WHAT ACTION OF THE ADMINISTRATIVE OFFICER ARE YOU APPEALING? Administrative officer's determination of violation dated J— 373oj03 1) OWNER OF RECORD (Name as shown on deed, mailing address, phone and fax #) Timberlake Associates, 32 San Remo Dr., So. Burlington, V7 2) LOCATION OF LAST RECORDED DEED (Book and page #) 3) APPLICANT (Flame, mailing address, phone and fax #) T i mb e r l a k e Associate same as above 4) CONTACT PERSON (Name, mailing address, phone and fax #) David S i m e n d i n g e r same as above 5) PROJECT STREET ADDRESS: 801 Williston Road 6) TAX PARCEL ID 9 (can be obtained at Assessor's Office) 14 9 0 0 0 0 3 2 0 i) PROJECT DESCRIPTION a) Existing Uses on Property (including description and size of each separate use) N/A 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 and existing buildings to remain) N / A d) Height of building & number of floors (proposed buildings and existing buildings to remain, specify if basement and mezzanine) N/A e) Number of residential units (if applicable, new units and existing units to remain) N / A f) Number of employees & company vehicles (existing and proposed, note office versus non -office employees) N/A g) Other (list any other information pertinent to this application not specifically requested above, please note if Overlay Districts are applicable): N/A 3) LOT COVERAGE N/A a) Building: Existing % Proposed % b) Overall (building, parking, outside storage, etc) Existing _% Proposed % c) Front yard (along each street) Existing % Proposed % (does not apply to residential uses) 9) COST ESTIMATES a) Building (including interior renovations): $ b) Landscaping: $ N / A 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): N/A c) P.M. Peak hour for entire property (In and out): N/A 11) PEAK HOURS OF OPERATION: 12) PEAK DAYS OF OPERATION: NT/ 13) ESTIMATED PROJECT COMPLETION DATE: N/A 14) LIST ABUTTERS ( List names and addresses of all abutting property owners on a separate sheet of paper). N/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. a T,jM �e'r Ass c ates BV Dartner Al - OF' P ANT SIGNATURE O - PEATY OWNER Do not write below this line DATE OF SUBMISSION: REVIEW AUTHORITY: ❑ Development Review Board ❑ Director, Planning & Zoning I have reviewed this site plan application and find it to be: ❑ Complete ❑ Incomplete Director of Planning & Zoning or Designee Date A Statement under Oath The City Attorney has brought an enforcement action to require the driveway to be narrowed. If we rip out the narrowing required by the City Attorney it will cause irremediable damage. Signed and sworn this day of May, 2003. David Simendinger STATE OF VERMONT ) ss CHITTENDEN COUNTY ) BEFORE ME, the undersigned authority, personally appeared David Simendinger, who first being duly sworn, deposed and stated that he signed the above Statement under Oath by his free act and deed. At South Burlington, VT this rday of May, My commission explfe—s X 10-07 C.Documents and SeuingsUkelton\My Doc,nimits\2003docs\B9DSStatement2.doc 410 CITE' OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 April 30, 2003 David 5imendinger Timberlake Associates 32 5an Remo Drive South Burlington, Vermont 05403 Re: Zoning Violation, 801 Williston Road Dear Mr. 5imendinger: PIeaSe be advised that based on information available to the City, you have commenced land development on your property at the above address without obtaining a zoning permit from the City as required by Section 27.10 of the Zoning Bylaws and 24 V5A 4443 (a) (1). 5pecifically, you have initiated the following activities on the above - described property. Revised a driveway without a zoning permit and using 'the revised driveway without a Certificate of Occupancy/Compliance. You have Seven (7) days from the date of this letter to discontinue this violation and take appropriate remedial action. 5pecifically, you must accomplish the following: Obtain a zoning permit and Certificate of Occupancy/Compliance for the revised driveway. If you do not accomplish the actions directed in this letter within seven (7) days of the date of this letter, the City may pursue this matter in court. In such court proceedings, the City will be entitled to seek appropriate injunctive relief and fines of up to $100.00 per day for each day your violation continues beyond the Seven (7) day period provided in this letter. If the violation described in this letter occurs within twelve (12) months of the date of this letter, you will not be entitled to receive a further Notice of Violation from the City before the City pursues further enforcement proceedings. You may appeal this Notice of Violation to the Development Review Board by filing a written notice of appeal (see enclosed) and eighty five ($85) dollars 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, Vermont 05403. 5incerely,? b� 4y oJ. Belair Administrative Officer Encl. CC: Amanda 5.E. Lafferty, Esc. Marc B. Heath, Esc. Certified Mail Receipt #7002 0510 0001 54661286 STEVEN F. STITZEL PATTI R. PAGE* ROBERT E.FLETCHER JOSEPH S. McLEAN TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y.) STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) FAX (802) 660-2552 or 660-9119 E-MAIL(FIRM2555@FIRMSPF. COM) WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 May 5, 2003 Juli Beth Hoover City of South Burlington 575 Dorset Street South Burlington, VT 05403 Raymond J. Belair City of South Burington 575 Dorset Street South Burlington, VT 05403 Re: Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Dear Juli Beth and Ray: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Enclosed please find a Notice from the Environmental Court for a Motion Hearing scheduled for May 13, 2003 at 9:00 a.m. in connection with the above -referenced matter. Sincerely, 1 Amanda S. E. Lafferty ASEL/jp Enclosure Son5163.cor 0 Environmental Court of Vermont State of Vermont 255 North Main St., Suite 2 Barre, Vermont 05641 (802) 479-4486 Amanda Lafferty, Esq. Stitzel, Page & Fletcher PO Box 1507 Burlington VT 05402 r ; ,17Uf��� STITZEL, PAGE II& FLEs CHER PC II N O T I C E O F H E A R I N G II I� �I May 2, 2003 Appeal of Timberlake Assoc.(So.Burlington) Docket No. 204-12-01 Vtec This is to notify you in connection with the above named case for the following: Motion Hearing Regarding Motions(s): 6) Motion Motion for Order of Contempt Tuesday May 13, 2003 at 09:00 AM This hearing is going to be held at the Costello, Courthouse, 3: Cherry Street, Burlington. EniVironmenlal Court Clerk Notice sent to: William E. Simendinger, Attorney for Appellant, Timberlake Assoc. Amanda Lafferty, Attorney for Appellee, South Burlington, City of Co -counsel for party 1, Marc B. Heath STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE' E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (SSTITZEL@FIRMSPF.COM) IOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE (-ALSO ADMITTED IN N.Y.) April 21, 2003 Jacalyn Stevens, Clerk Vermont Environmental Court 255 North Main Street, Suite 2 Barre, VT 05641 Re: Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Dear Jackie: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Please find enclosed for filing a Motion for an Order of Contempt and Memorandum of Law. Also enclosed for scheduling is an Order to Show Cause in connection with the above -referenced matter. Please give me a call with any questions. Thank you. Sincerely, n Amanda S. E. Lafferty ASEL/jp Enclosure CC: Raymond J. Belair, Administrative Officers/ William E. Simendinger, Esq. S=5156.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 IN RE: APPEAL OF ) DOCKET NO. 204-12-01 Vtec TIMBERLAKE ASSOCIATES ) MOTION FOR AN ORDER OF CONTEMPT NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and alleges as follows: 1. This proceeding is commenced by the City of South Burlington (hereinafter the City") to enforce the provisions of its Zoning Regulations and the Findings of Fact, Conclusion and Order (hereinafter the "Order"), dated January 23, 2003, in connection with this matter, against Appellant, Timberlake Associates. 2. In the Order, the Environmental Court granted Appellant's application for conditional use and site plan approval to add a fourth fueling position, an air dispenser and a pay phone and to relocate the ice dispenser and grease dumpster on the property located at 801 Williston Road in South Burlington, Vermont (hereinafter the "Property"). 3. Regarding the Spear Street one-way entrance to the Property, the Order required that Appellant: g. . . . install additional "do not enter" and "one way" signs to make it very clear that customers are not permitted to exit from the site onto Spear Street. In addition, narrow the driveway so that it will be more apparent to customers on site that only one direction of traffic is permitted on that driveway. See the Order, page 10. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 4. By Acceptance of Service dated April 16, 2003, the City served the Decision on Appellant. A true and correct copy of said Acceptance of Service, marked as Exhibit A, is attached hereto. 5. To date, Appellant has failed and/or refused even to make application for the necessary zoning permit in order to comply fully with the Order. Meanwhile, Appellant has added and has begun operating a fourth fueling position, thereby receiving economic benefit from a refusal to comply with this Court's Order. 6. Upon information and belief, Appellant will continue its failure to comply with the Order until further ordered by this Court. WHEREFORE, the City prays: 1. That upon consideration of the allegations of the foregoing petition for an Order for Contempt, the Court advance the cause for hearing. 2. That the Court find and adjudge Appellant in contempt of the Findings of Fact, Conclusions and Order of the Environmental Court dated January 23, 2003. 3. That the Court order that Appellant: a. No later than five (5) days from the date of the Court's Order, obtain from the City Administrative Officer a zoning permit for the Property; and 2 b. No later than thirty-five (35) days from the date of the Court's Order, obtain from the City Administrative Officer a Certificate of Occupancy for the Property. 4. That the Court determine the reasonable attorney's fees, costs and damages incurred in connection with the within proceeding and enter an award of such sum as may be just under the circumstances. 5. That the Court award such other relief as the Court deems proper. DATED at Burlington, Vermont this 21" day of April 2003. son1064.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Its Attorneys i i 4 Amanda S. E. Lafferty -- 3 EXHIBIT E A m STATE OF VERMONT ENVIRONMENTAL COURT APPEAL OF TIMBERLAKE ASSOCIATES ) Environmental Court Docket No. 204-12-01 ACCEPTANCE OF SERVICE I, William E. Simendinger, hereby accept service of the Findings of Fact, Conclusions and Order, dated January 23, 2003, in the above -referenced matter on behalf of the Appellant, Timberlake Associates, and waive any and all other manner of service whatsoever. Dated at Burlington, Vermont, this ay of April, 2003. VI A iam . Sime inger, Esq. son1061.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 1 IN RE: APPEAL OF TIMBERLAKE ASSOCIATES STATE OF VERMONT ENVIRONMENTAL COURT DOCKET NO. 204-12-01 Vtec MEMORANDUM OF LAW This Court, in the Findings of Fact, Conclusions and Order dated January 23, 2003, ordered that Timberlake Associates install additional signs and narrow the driveway that exits the Property onto Spear Street. To date, Appellant has failed and/or refused to comply with the Court's Order in this matter. V.R.C.P. 70 provides for an Order for Contempt in proper cases. Appellant has clearly demonstrated that it will not comply with the Court's Order entered in this case. Therefore, an Order for Contempt pursuant to V.R.C.P. 70 is necessary and appropriate. DATED at Burlington, Vermont this 21st day of April 2003. son1066.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Its Attorneys Amanda S. E. Lafferty h STATE OF VERMONT ENVIRONMENTAL COURT IN RE: APPEAL OF ) DOCKET NO. 204-12-01 Vtec TIMBERLAKE ASSOCIATES ) ORDER TO SHOW CAUSE Upon the Motion for an Order for Contempt attached hereto, it is ordered that Timberlake Associates show cause before this Court on the day of 2003 at am / pm, or as soon thereafter as it may be heard, why this Court should not adjudge Timberlake Associates in contempt of this Court on the grounds set forth in the Motion for an Order for Contempt. DATED at son1067.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 , Vermont this day of April 2003. Presiding Judge CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONDTG 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 n Permit Number f I o - 03 - 01 All information requested on this application must be completed in full. Failure to provide the requested information either m on this application foror 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 4465 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 hearing. Type of application check one: ( Appeal from decision of Administrator Officer (includes appeals from Notice of Violation) ( ) Request for a conditional use ( ) Request for a variance (X)Other Request for Stav of Enforcement PROVISION OF ZONING ORDINANCE IN QUESTION (IF ANY) 2d- �T i rk 4470 Cc) WHAT ACTION OF THE ADMINISTRATIVE OFFICER ARE YOU APPEALING? Administrative officer's determination of violation dated 4/15/03 1) OWNER OF RECORD (Name as shown on deed, mailing address, phone and fax #) Timberlake Associates, 32 San Remo Dr., So. Burlington, 1TT 05403 2) LOCATION OF LAST RECORDED DEED (Book and page #) 3) APPLICANT (Name, mailing address, phone and fax #) Timberlake Associates same as above 4) CONTACT PERSON (Name, mailing address, phone and fax #) T) a v i d S i m e n d i n g e r same as above 5) PROJECT STREET ADDRESS: 801 Williston Road 6) TAX PARCEL ID # (can be obtained at Assessor's Office) 14 9 0 - 3 9 9 3 2 9 7) PROJECT DESCRIPTION a) Existing Uses on Property (including description and size of each separate use) N/A 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 and existing buildings to remain) N / A d) Height of building & number of floors (proposed buildings and existing buildings to remain, specify if basement and mezzanine) N/A e) Number of residential units (if applicable, new units and existing units to remain) f) Number of employees & company vehicles (existing and proposed, note office versus non -office employees) N/A g) Other (list any other information pertinent to this application not specifically requested above, please note if Overlay Districts are applicable): N/A 3) LOT COVERAGE N/A a) Building: Existing -% Proposed % b) Overall (building, parking, outside storage, etc)) Existing _% Proposed % c) Front yard (along each street) Existing % Proposed % (does not apply to residential uses) 16 9) COST ESTIMATES a) Building (including interior renovations): $ b) Landscaping: $ N / A c) Other site improvements (please list with cost): N/A 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): N/A 11) PEAK HOURS OF OPERATION: 12) PEAK DAYS OF OPERATION: N/A 13) ESTIMATED PROJECT COMPLETION DATE: N/A 14) LIST ABUTTERS ( List names and addresses of all abutting property owners on a separate sheet of paper). N/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. amber �17,( ates Dartne A OF APPLICANT SIGNATURE OF PROPERTY OWNER Do not write below this line DATE OF SUBMISSION: Z REVIEW AUTHORITY: development Review Board ❑ Director, Planning & Zoning I have reviewed this site plan application and find it to be: Comp A Statement under Oath I, David Simendinger, hereby state that irremediable damage will result if the stay is not granted, as follows: A hazard exists for people to be attracted to a broken pump as found by Judge Martin. 2. Lost profits are irremediable. Signed and sworn this 1�& day of April, 2003. David Simendinger STATE OF VERMONT ) ss CHITTENDEN COUNTY ) BEFORE ME, the undersigned authority, personally appeared David Simendinger, who first being duly sworn, deposed and stated that he signed the above Statement under Oath by his free act and deed. At South Burlington, VT this 1b day of April, 2003. I V c6 ►4- V-16— --rOj Notary Public My commission expires 2-10-07 CADoc—ts and SettingsUkcllonNy Docummts\2003dm\B9DSSlat=mW c CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 April 15, 2005 David 5imendinger Timberlake Associates 32 San (demo Drive 5. l urlington, VT 05403 Re: Zoning Violation, 801 Williston Road Dear Mr. 5imendinger: please be advised that based on information available to the City, you have commenced land development on your property at the above address without obtaining a zoning permit from the City ao required by 5ection 27.10 of the Zoning Bylawo and 24 V5A 4443 (a) (1). 5pecifically, you have initiated the following activities on the above- de5cribed property. Expanded the use of your property by installing a fourth fueling position without a zoning permit and using the additional fueling position without a Certificate of Occupancy/Compliance. You have seven (7) days from the date of this letter to discontinue this violation and take appropriate remedial action. Specifically, you much accomplish the following: Obtain a zoning permit and Certificate of Occupancy/Compliance for the fourth fueling position. If you do not accomplish the actions directed in this letter with seven (7) days of the date of this letter, the City may pursue this matter in court. In such court proceedings, the city will be entitled to seek appropriate injunctive relief and fines of up to $100.00 per day for each day your violation continues beyond the seven (7) day period provided in this letter. If the violation described in this letter occurs within twelve (12) months of the date of this letter, you will not be entitled to receive a further Notice of Violation from the City before the City pursues further enforcement proceedings. You may appeal this Notice of Violation to the Development Review Board by filing a written notice of appeal (see enclosed) and eighty five ($85) dollars 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, Vermont 05403. sinter r v R moncl .5elair Administrative Officer Encl. CC: Amanda S.E. Lafferty, Esc. Marc 5. Heath, Esc. Certified Mail Receipt # 7002 0510 0001 54661118 VERMONT ENVIRONMENTAL COURT In Re: Appeal of Timberlake Associates Docket Number 204-12-01 Vtec Dear Parites: All -t-y (802)479-4486 255 North Main Street, Suite 1 Barre, Vermont 05641 - 4164 January 24, 2003 Enclosed is a copy of the Findings of Fact, Conclusions and Order Awb� issued by Judge Stephen B. Martin January 23, 2003 in the above captioned case. Sincerely, � Ja �Zlyn M. Stevens Clerk Environmental Court cc: William E. Simendinger, Esq. Amanda S.E. Lafferty, Esq. Marc B. Heath, Esq. —W—S -J* i -� 1 " �_� !• /' j ��; : • �,:,_:►' • : �t��'Li9:'2Q}'fit/: • �� �`'_�-:- _ 300.00' I I I , I E--► I I ��y � W I W I �A �' DO NO I I ENTER l R5--1 ONE WAY I APPROXIMATE LOCATION I - --- - EXISTING \ OF UNDERGROUND I 5' UTILITY TORAGE TANKS I EASEMENT / PAVED SURFACE I 1 q i 1 •' f t 4' • ..� W i Cn C fl) O n Post -it® Fax Note. 7671F*pjaogoes�6 Co./Dept. Phone # Phone # Fax # / Fax # P A% SUF STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE' E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (SSTITZEL@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE ("ALSO ADMITTED IN N.Y.) April 15, 2003 William E. Simendinger, Esq. Sarvak & Simendinger 32 San Remo Drive South Burlington, VT 05403 Re: Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Dear Bill: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Enclosed please find the Findings of Fact, Conclusions and Order in connection with the above -referenced matter. Please sign the enclosed Acceptance of Service form and return it to me. Sincerely, (' 1, �> Amanda S. E. Lafferty ASEL/jp Enclosure cc: Raymond J. Belair, Administrative Officer Son5151.cor STATE OF VERMONT ENVIRONMENTAL COURT APPEAL OF TIMBERLAKE ASSOCIATES ) Environmental Court Docket No. 204-12-01 ACCEPTANCE OF SERVICE I, William E. Simendinger, hereby accept service of the Findings of Fact, Conclusions and Order, dated January 23, 2003, in the above -referenced matter on behalf of the Appellant, Timberlake Associates, and waive any and all other manner of service whatsoever. Dated at Burlington, Vermont, this day of April, 2003. son1061.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 William E. Simendinger, Esq. LI STATE O TERIMONT EI: VIRON E i Al, (", irv%T FILED earl 2 3 �ooc�� YEft^UT FNA COUNT I/IRf1P1�Vii� i 'T RE: �ppeaf o- Tiriiveriaise Associates j Docket INTos. 2041-12-011 Vtec. ��c'3citli Burhii�Lcrii} i INIDIVNIG S OF FACT, x-A-Y" LU SIONI TS AND ORDER the above matter was heard by the Enviicnll`iieutal Court on .Tulle 24 and 25, 2002. he APP-1llant, Timberlake Associates (hereafter Timberlake), was represented by Marc B. Heath, Esq., a ti,.� + f South u Burlington (hereafter South $ was t ariz.i trs:. Appellee, City ci � rI�I.� tii�. i ilrlin�Laii}, t'0'(.a.J rclireSeir..eEi by Attorney AiiianUa S. E. Lafferty. FINDINGS OF FACT ,.j Upon cons icAeration of the oral testimony, the exhibits and the requests to find, the Court hinds and concli.iUes as follw s. Background 1. This action is aIi appeal, taken by Timberlake IiChii the Decision of the South Burlington Development D .a .a + A �l 1. /1 ' i iTV I C3 { ' + f '+ Development Review hoard, uaceu December T denying Tirn rlaite s request or site %hail a rv'vai �r�,CiP-�il-��l and CGii iticiiiai iise a Ivvai kAC 11, to: Iv add cone kf iv aduitionai fueiiil I p C' 1 ppro. ,., v, � � j v j �u +. A 7\ 7 A L ul + +L A. A pvsttivn, anu j add an air dispenser anu pay phone, and relocate trio Ice uispenser anu grease Uumrpster, at 801 Williston Road. 2. Timberlake owns the property at 801 '""111i1ston Road in +the City of South I�iur fingt 7vil, ti + +. '^/ Q +' + :� 7 District -IuTraffic QL��rIal� i errmlont, consisting of 17, I OV square feet In the Ct}mmercial One l.�l�}�i,�]if i�h., Distrl /ct a2 Overlay y Lone 11. Tiilh»I lake acquired the propei ty in 197974 fto In the Chnittenden 17a.nk- it orporatioii7.,j At Lhatt dine +t to property had a Chittenden Bank branch o ice locateu on .L. f VIE, f�if t tlank lhilfitiiig ita[f a drive -up vVii�Ut� w IaGility, in i774 the hank vvas only operating a fall�-7'ser`vice [rank ATM machine at +the property. Under the terms of the purchase anu .Sale agreement Timberlake was obligated to allow tIle bank's ATM machine to continue operating on the property. J. T*mberlake sought both conditional use approval and site plan approval to convert the Williston DC;aU pr@perty to a convenience store with gasoline sales an" a Rill -se; vice bank ATM. Timber lake's initial proposal was for a 1700 square foot convenience store building, two {'2} pumps with four k�j tiering positions, and a fall -se vice Bank ATM facility located in the convenience store building. Timber lake subsequently proposed several'v`ersions Cif this plans, involving different building Qr nc* number fii n positions. subsequent .,1 n b:,.,., included « l sizes, and differing number of fueling positions. Each subsequent propose u ay s nc uded the fii 1- service bank ATM facility. 4. In 1996, Timberlake obtained a conditional use permit from the Sout " Burlington Zoning Board of Adjustment, and site plan approval from the South Burlington Planning Commission, for a plan consisting of a 900 square foot convenience store building, two (2) pumps with three (3) fueling positions, and a full -service bank ATM facility. The two approvals differed, however, in the access plans to and from the site. The ZBA preferred to have traffic enter and exit from Williston Road, while the Planning Corm-nission preferred to have traffic enter and exit from Spear Street, also known as the "jughandle." 5. Timberlake's attempt to have both boards approve one consistent access plan was unsuccessful. To resolve the impasse, Timberlake appealed both decisions to the Environmental Court. At the same time a group of neighbors also appealed the approvals. 6. One of the central issues before the Environmental Court was whether Timberlake's project would generate traffic in excess of what was allowed under the City's Traffic Overlay District zoning requirements. Under those regulations the property was limited to 30 vehicle trip ends during the peak p.m. hour. Timberlake's traffic engineer, Dr. Thomas Adler, testified that the proposed project would generate 79 vehicle trip ends during the peak p.m. hour. He calculated these trip end using the Institute of Traffic Engineers (ITE) trip generation manual (5th edition), which predicted that each fueling position would generate 19.2 vehicle trip ends during the peak p.m. period. These projections were based on traffic counts at a number of convenience stores with gasoline sales around the country. The South Burlington Zoning Regulations specifically require that traffic generation be calculated based on ITE (5th Edition) trip generation manual. 7. Dr. Adler also testified that the bank AT L facility would generate 21 vehicle trip ends during the peak p.m. hour, based on actually counts that had been done at that facility in previous years. Dr. Adler based his prediction on these counts, because there was no ITE data for such a function. Dr. Adler further testified that although the 79 vehicle trip ends predicted for the three fueling positions and the bank ATM would exceed the trip ends allowed under the traffic overlay district regulations, the project should still be permitted because Timberlake was proposing a number of significant improvements which would create a net benefit to the traffic flow in the vicinity. The South Burlington Zoning Regulation specifically provided that projects generating more traffic than allowed could still be permitted where such improvements were being proposed. S. Specifically, Dr. Adler testified that Timberlake was proposing three (3) significant improvements which would have a positive impact on traffic flow in the vicinity. They were as follows- (1) installation of a median on Williston Road to prohibit left-hand turns into or out of the property from Williston Road; (2) elimination of two of the four existing driveways to the property, and locating the two 'o remaining driveways away from the intersection of Spear Street and Williston Road; (3) making the entrance on Spear Street a one-way in only, reducing congestion and potential conflicts on Spear Street. Timberlake was also proposing extensive additional improvements, 2 L iincluding installation of sidewalks and pedestrian walkways along and through the property, installation of extensive landscaping, installation of curbed driveways on Williston Road to further encourage right -turns only, installation of shielded downcast lights, and a bicycle rack. 9. The Environmental Court concluded that the 79 vehicle trip ends anticipated for the project were more than offset by the improvements proposed by Timberlake. On January 28, 1998, the Court approved Timberlake's project, and accepted the access plan that the Zoning Board of Adjustment had approved: namely locating the ingress and egress driveway on Williston Road. 10. The neighborhood association appealed the Environmental Court's decision to the Vermont Supreme Court. The Vermont Supreme Court affirmed the Environmental Court's decision, and agreed that the 79 vte's anticipated by the project were justified based on the improvements proposed by Timberlake. See In Re: Dooley, 170 ['t. 108, 113, 742 A.2d 761, 7G 1-5(1999). 11. In 1998, Timberlake built the project, as approved by the Environmental Court, and it became operational in October, 1998. The project as approved and built is contained on a site plan I admitted as Exhibit 3. 12. Timberlake did not, however, install the full -service Chittenden Bank ATM in its convenient store. This was because in July, 1997, after permits had been obtained from both the Zoning Board and Planning Commission, and shortly before trial in the Environmental Court, the Chittenden Bank announced that it not longer intended to install or operate an ATM at the facility. Timberlake's current ATM does not generate traffic like a full -service bank ATM would generate traffic. Timberlake's Current Permit Amendment Proposal 13. Timberlake's current proposal seeks to eliminate the bank ATM facility, and in its place activate the fourth fueling position. Timberlake maintains that the fourth fueling position, once activated, will generate 192 vte's, two less than the full -service bank ATM approved for the site. Since the facility incorporated significant improvements warranting 79 vte's, a reduction in vte's would not have any adverse impact on traffic. Moreover, position #4 (the non-functioning position depicted on Exhibit 4) currently has the unintended affect of generating vte's equivalent to a fueling position. Thus, activating this position would not increase vte's above existing traffic levels to the site. On the other hand, activating position #4 would improve on -site safety, and improve on -site circulation, by reducing the amount of vehicular jockeying around the pumps that currently exists. Timberlake's proposal also seeks to add an air dispensing machine and pay telephone, neither of which would generate any traffic to the site. Timberlake also wishes to relocate the ice machine and grease dumpster. 14. Shortly after the new convenience store opened Timberlake noticed that motorists were pulling up to the side of the pump that did not have gasoline dispensing equipment referred to as fueling position #4. Timberlake observed that these motorists would become irritated and annoyed when they discovered that there was no li I dispensing equipment in this position, and would then attempt to jockey the vehicle around the pumps to another available position. 15. Timberlake thought that as their customers became familiar with the facility they would eventually become accustomed to the lack of fueling equipment in position #4, and the problem would resolve. As time passed, however, Timberlake continued to observe the phenomenon of motorists pulling up to position #4 expecting to get fuel. Timberlake continued to experience irritated motorists jockeying around the pumps looking for an open fueling position. The fact that this phenomenon continued appears to be caused by the fact that a number ofTimberlake's customers are tourists or other out-of-state motorists who visit the station due to its proximity to the interstate. In addition, the number of motorists, including new motorists, traveling along Williston Road, tend to provide a steady stream of new customers to the facility, who are not aware of the lack of a fueling position at position 44. 16. Also, Timberlake has noticed that a number of its customers routinely ask to use a pay phone, or an air hose to check their tire pressure. These are two conveniences Timberlake does not have at its facility. Thus motorists in need of these services have to get them elsewhere. Both of these conveniences are located next door at the neighboring Mobil station. 17. None of the experts for either Timberlake, the City, or the neighborhood association, had anticipated during the original Environmental Court trial that the two pump; three dispenser layout would create a phenomenon where the non-functioning fueling position what actually generate traffic to the site. 18. During the peak p.m. period, motorists are often seen pulling up to position 44, and then attempt to jockey around to an actual fueling position. The jockeying often involves attempts to back into a fueling position. Drivers become irritated and annoyed at this situation. Fortunately, no vehicular accidents have occurred on the property. 19. A series of photographs were taken during a 10 - 20 minute period one afternoon during "rush hour." These photographs show a series offour vehicles (all are out-of-state vehicles) pulling into position #4, and then maneuvering into other available fueling positions. During this same time period a total of 3 other vehicles can be seen at the other fueling positions. During the time period shown in the photographs, position #4 attracted 4 vehicle visits (8 vte's) while the other three positions combined attracted 3 vehicle visits (6 vte's). On a per fueling position basis, position 1#4 (the non-functioning position) attracted 4 times as many motorists as each ofthe functioning positions did. 20. The reason position #4 attracts more vehicles is that motorists pulling into position 94 do not remain there very long. As soon as they realize the position is not a functioning fueling position they immediately move out of it. Thus, to passing motorists on Spear Street and Williston Road, position #4 appears to be an open and available fueling position and they are attracted to it by its apparent availability. A 14 Facts that do not appear to be contested 21. A service station is a building, land, or premises used for sales of vehicular fuel. South Burlington ZoningRegulatlons .18.174. The property is located in the Commercial One (C 1) District. Zoning Map Appendix to Zoning Regulations, Exhibit S. The gasoline pump is a permitted use. South Burlington Zoning Regulations 12.106., Exhibit S. 22. A convenience store is a conditional use in the C 1 District. Section 12.213 of South Burlington's Zoning Regulations. Conditional use criteria are found in 24 V.S.A. §4407(2). 23. The project provides for appropriate and adequate pedestrian access and circulation and, in general, for adequate vehicular access and circulation. The elimination of wasted trips, confused motorists and jockeying vehicles to the "phantom" fueling position #4 will be an improvement to circulation. There are other improvements that Timberlake could make to the site that would produce a benefit for traffic flow in the vicinity. The Spear Street or western entrance to the site is required by Timberlake's zoning approvals to be an entrance only. However, customers can and do exit from that driveway which can potentially inhibit traffic that flows from Spear Street onto Williston Road, east and west bound, and on East Avenue. Both experts testified that this driveway requires additional "do not enter" and one way signs to make it very clear that customers are not permitted to exit from the site onto Spear Street. In addition, narrowing the driveway would make it more apparent to customers on the site, that only one direction of traffic is permitted on that driveway. 24. Landscaping is adequate. Allegations related to zoning violations are not before the Court. Parking is adequate. Protection of renewable energy resources is not impacted in this case. 25. Loading facilities are not contested in this case. 26. Minimum lot size frontage is in compliance. Maximum lot coverage and setbacks are in compliance. Drainage, fire protection, lighting, noise, vibration, odor, air pollution, heat, glare, waste and other hazards are all admitted to be in compliance. The aesthetics of the property will not be impacted from the project and the view of the property will be virtually identical. 27. The project does not adversely effect the capacity of existing or planned municipal services. '18. South Burlington, Zoning Regulations have Traffic Overlay District Regulations concerning traffic volume generation. The projected traffic volume of the proposed traffic volume is to be calculated "during the peak hour of adjacent street traffic." Findings based on testimony of the transportation consultants, Thomas J. Adler and Roger J. Dickinson 29. The cash dispensing machine currently located in the convenience store does not generate c 1 any traffic. No exterior advertising is visible to passing motorists, and such devices are common features at many convenience stores. In addition, these cash dispensing machines do not have features found in full -service bank ATMs, (the ability to make deposits, transfer funds, and make payments). They are significantly less attractive than a full -service bank ATM. 30. According to ITE (5th Edition) (which is substantially identical to the 5th Edition) the fourth fueling position, if activated, will generate I9.2 vte's during the peak p.m. period. This is I dentical to the other 3 existing fueling positions. According to § 21.500 of the South Burlington Zoning Regulations the ITE Trip Generation Manual is the appropriate method for calculating a proposed use's vte's. The total vte's for this site, under the pending proposal, is 77. This is 2 vte's less than the original number of vte's predicted for this site. 31. The improvements originally installed to improve the flow of traffic along Williston Road are effective. No left-hand turns occur into or out of the site from Williston Road. While the one- way entrance onto the property from Spear Street appears to be reasonably effective, Timberlake could improve the situation as previously discussed in paragraph 23, supra. 32. The peak p.m. period for Williston Road in the vicinity is between 4:30 p.m. and 5:30 p.m. Dr. Adler conducted a traffic count for this facility on June 17, 2002 from 4:45 p.m. to 6:00 p.m. and made specific observations about the movement and behavior of motorists at the facility. He observed the phenomena of position #4 generating traffic, despite its non-functional condition. He observed 8 vehicles pull up to the fueling position to get fuel. One vehicle left in a apparent hurry by traveling the wrong way out to Spear Street. The other 7 vehicles proceeded to jockey around the pumps in an effort to find an open position. During this same period Dr. Adler observed twenty- one (21) vehicles pull directly up to the gas dispensing positions. Thus on average, the working fueling positions each generated 7 vehicle visits, or 14 vte's. During that same time position #4 generated 8 visits, or 16 v'te's. 33. Based on Dr. Adler's observations, the Court finds that activating fueling position #4 will not result in an increase in vte's at the site during the peak p.m. period. Any increase will be nominal at best. 34. Activating fueling position #4 will have the benefit of reducing the amount of vehicular jockeying currently taking place around the pumps. This will provide an improvement to safety, circulation and provide a net benefit to tra:'fic flow in the vicinity. 35. Aii air dispenser and pay phone will not generate any new vte's to the site. These Sei Jices typically exist at convenience stores, and navy' motorists assume they exist at this Site currently. Installing them will not generate additional traffic. 36. The existing convenience store at 801 Williston Road does not "generate" any new traffic on Williston Road. That is because 1000,'0 of the vte's to the site are "pass by" vehicles. Pass by vehicles are those motorists who are traveling along Williston Road for other reasons, and choose 0 to stop at this site while traveling to their other destinations. The number of vehicles traveling on Williston Road is unaffected by the existence of this convenience store. Adding a fourth Fuelinig position will have no affect on Williston Road traffic. 37. In opposition to Timberlake's request to add a fourth fueling position, South Burlington contends that Timberlake could have, and should have, taken steps to change the appearance of the fourth fueling position such as placing "out of order" signs on it. South Burlington criticizes Timberlake for never making it more apparent to customers that the fourth fueling position is not available and does not function, and for never taking steps to prevent customers from pulling up to it. And finally, South Burlington takes Timberlake to task for not seeking advice from qualified professionals, such as a traffic consultant, on how to remedy the problems created by the fourth fueling position. These arguments are not persuasive. Pay Phone and Air Dispenser 38. Timberlake seeks permission to install an air dispenser and a pay phone on site. Installing a pay phone on the front exterior surface of the convenience store, and installing an air dispenser in the vicinl;ty of the existing parking spaces along the easterly boundary of the property would have no adverse impact on on -site vehicular traffic and circulation. These requests are appropriate and should be approved. These services typically exist at convenience stores, and motorists assume they exist at this site. Actually installing them would not generate any additional traffic. Crease Dumpster 39. Timberlake seeks to relocate the grease dumpster om its approved position ini the southeast corner of the property to a location, behind the convenience store itself because it will be more convenient for its employees. Waste cooking grease is carried in a five (5) gallon container from the store to the dispenser. The container is heavy to and there is some risk of spillage when it is carried any distance. The proposed new location is well screened by existing shrubbery andA out of the way of any pedestrian or motorist path. It will be more convenient for store employees, without having any adverse impact in anyway on the site. Timberlake's request to relocate the grease dumpster is appropriate. Ice Cooler 4f. Timberlake wants to place the ice cooler outside on the west exterior side of the convenience store building to reduce air conditioning expenses. The ice cooler operates much like a chest freezer. It runs on an internal compressor and it throws off considerable heat into the store. To keep the store cool it is necessary to operate two air conditioning units during the summer. if th e ice cooler is placed outside, Only one air conditioning unit will be necessary. 41. The exterior location proposed far the ice cooler is well screened by existing landscaping at the site. The location will not interfere with pedestrian or motorists travel. Timberlake's proposal to relocate the ice cooler to the west exterior side of the building is reasonable. This request wiii be approved. Sinall Entrance Marker 42. Timberlake would like to place a small entrance marker by the Williston Road entrance in order to make it more clear to cars inhere to enter the facility. It will provide a net benefit to traffic flow in the vicinity. The City of South Burlington offered no objection to the request and it will be approved. CONCLUSIONS 43. In this action, Timberlake seeks approval for its request to add one additional fueling position, an air dispenser and a pay phone, and to relocate its ice dispenser and grease dumpster. South Burlington opposes the application claiming that there have not been any changes of conditions that justify the alterations. Obviously, Timberlake disagrees and submits that its application complies with all of the pertinent criteria. 44. In 1996, Timberlake obtained approval for a conditional use permit from the South Burlington Zoning Board of Adjustment, and site plan approval from the South Burlington Planning Commission, for a plan consisting of a 900 square foot convenience store building, two (2) pumps with three (3) fueling positions, and a full -service bank ATTM facility. The two approvals differed, however, in the access plans to and from the site. The ZBA preferred to have traffic enter and exit from Williston Road, while the Planning Commission preferred to have traffic enter and exit from Spear Street, also known as the "jughandle." In 1998, the Environmental Court approved the access plans preferred by the ZBA and granted Timberlake's request for a conditional use permit. In 1999, the Environmental Court's decision was affirmed by the Supreme Court. ,fee In Re: Dooley, supra. The Environmental Board has developed a set of standards for processing Act 250 amendment requests which have applicability for municipal permit cases. These standards have found acceptance by the Supreme Court. See, In Re Stowe Club Highlands, 166 Vt. 33 (19°5); In Re Nehemiah Associates, Inc. 168 Vt. 288 (1998). .'hen the Board weighs the competing values of flexibility and finality in arriving at a decision, it considers three kinds of changes to determine whether an amendment to a permit condition should be allowed. The Standards used by the Board are set out in Nehemiah at page 294: (a) changes in factual or regulatory• circumstances beyond the control of a permittee: (b) changes in the construction or operation of the permittee's project, not reasonable foreseeable at the time the permit was issued; or (c) changes in technology. 9 These standards are fair and reasonable and will be used here. They are appropriate for weighing the competing values of flexibility and finality in applications requesting amendments to municipal zoning permits, and Standardlb) is the one which applies to Timberlake's request for an additional fueling position. Since Timberlake is not seeking an amendment which was previously denied, the standards set out in In Re Application of Carrier, 155 Vt. 152 (1990) will not be used. Additional Fueling Position 45. Neither the Zoning Board of Adjustment, the Planning Commission, the Environmental Court, the City of South Burlington's Planning and Development office, nor any of the experts for the various parties to this action anticipated that the fourth fueling position would generate traffic to the site. Likewise, none of the above entities anticipated such traffic would result in confused and unsafe jockeying around the pumps by motorists seeking to get into an available position. The current situation was not anticipated by anyone. Initially, Timberlake thought that motorists would become amiliar with the site layout, and the problem would subside. That has proven not to be the case, no doubt due to the large number of tourists and a steady stream of new customers visiting the site. This situation clearly constitutes an unforeseen condition justifying a permit amendment. Timberlake's proposal will deal effectively with the current problem at the site in that it will provide for safer on -site vehicular movements. The proposal will not generate any noticeable new vte's to the site, and will reduce unnecessary turning movements. Pay Phone and Air Dispenser 46. Pay phones and air dispensers are common amenities found at convenience store locations. Timberlake's request to add these services is reasonable and South Burlington has not advanced any credible reasons why they should not be allowed. These services will not generate any additional traffic at Timberlake's site. Grease Dumpster and Ice Cooler 47. Timberlake seeks to relocate its grease dumpster to a location behind the convenience store and its ice cooler outside on the west exterior side of the convenience store building. Again, South Burlington has not advanced any credible reasons why these relocations should not be allowed. Both will be well screened and out of the way of pedestrian and vehicular traffic. The requests are reasonable and will be granted. ORDER N,A'I-MREFORE, upon consideration of the foregoing, Timberlake's application to amend its site plan and conditional use approvals, incorporating the following changes, is granted: a. Add fuel dispensing services at position #4; a b. Add a pay phone to the exterior of the front of the convenience store building; C. Add an air dispensing unit in the area ofdesignated parking to the east side of the lot; d. Relocate the waste cooking grease dumpster to the rear of the building in the area of the propane tank where landscape screening already exits; e. Relocate the ice machine from inside of the building to the west exterior side of the building in the area of the picnic table; f. Place a small "Enter" sign at the Williston Road entrance, to assist motorists in locating the entrance lane to the site; and g. At the Spear Street or western entrance to the site, install additional "do not enter" and "one way" signs to make it very clear that customers are not permitted to exit from the site onto Spear Street. In addition, narrow the driveway so that it will be more apparent to customers on site that only one direction of traffic is permitted on that driveway. Date at Barre, Vermont this 23`d day of Januarv. 2003. J,Xa4 Sto'phen W Martin Presiding edge 10 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/iDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE ('ALSO ADMITTED IN N.Y.) March 5, 2003 Marc B. Heath, Esq. Downs Rachlin & Martin, PLLC PO Box 190 Burlington, VT 05402-0190 Re: Appeal of Timberlake Docket No. 204-12-01 Vtec Dear Marc: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Pursuant to our conversation earlier today, enclosed please find a copy of a portion of the site plan for the property located at 801 Williston Road with Roger Dickinson's suggestion for the narrowing of the one-way entrance from Spear Street. Thank you. Sincerely, Amanda S. E. Lafferty ASEL/jp Enclosure cc: Raymond Belair, Administrative Officer son5108.cor 01-29-'03 10:52 FROM-Lamoureux&Dickinson 80287831 T-274 P02/02 U-671 ��� Y�'G—a-.� � \ \ � \ \ � � \ � -air tfr. `p�•. �E_.�_ r 4vRUTr ratE 'Q I �. � i � r / l � R1o►Oef9 F7r1lIAe1C'i •� 1 1XI C-if f co if I r�J r i r � I norai�c TE nqi z . � uwcMr-.�:.�. FA9DrE7�T � 1�� 1 f ► Y Icur"m lam' UON 1 f � i �C�AIFI CAlra'p� �.ed I tJAN,wm l PAD MOM f f / 1 rAG YAKS 4_ 1 0 SEWM M pyT ta°ir,c 341.14 W. a ura_oAp�j C t cif fiA""'vnw �CLM ,., ---_. N/F A. BAtLLARGEON VOL 60 m � *= At V*t EXTOWR rimCOOIBt AM MWAK TANK LEEND aur:uNou Ommm r St" mw EXSTMo " POST O VOSTRM IY oI MAIM MM f76 Its SE" MAt*Wf On'TMC r AM C04W WAWA WAN .r r oastMc MAK4= To cowthoo TarE WAK LOK , oasro+o CATpe>AM a LCALLOR "DI G `WOW_._.__-0031 aesaa OAVJOX 4" tr+� . c4tl a ROAD seats v +c U7%m Paz $DERDE�O Y NAT4R il'a:SCQ IMA d1•I1rAlER 9EPOtATtM/C r mma =Ayom Uesmo nw wmf( n y/.� cm-m C COMtom YAP.p G1ckoAm M � pit"TY twDr — — SEA" aArwur F �-EarrRB Ei"I" ......OM CU C) swx OO KKW mm a�•:•:•:•:•:•:�:•: •t ����•�- CONCKM cm o*a (4 st4Flr" / P 0 1 Its =r.—r O MMTE Kam U—C EXSrMO %A(M RAR wim r+ a" �AlMuc eoaxd u 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 660-91 l9 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y) January 27, 2003 Raymond Belair City of South Burlington 575 Dorset Street South Burlington, VT 05403 Re: Appeal of Timberlake Docket No. 204-12-01Vtec Dear Ray: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Enclosed please find a copy of the Findings of Fact, conclusions and Order of the Vermont Environmental Court, dated January 23, 2003 in connection with the above -referenced matter. The court has granted Timberlake's application for site plan and conditional use approvals, with two conditions. (See said decision at page 10, f. and g.) Please review and call me to discuss. Thank you. sincerely, h Amanda S. E. Lafferty ASEL/gmt Enclosure cc: Roger Dickinson SON5052.COR 7029 E STATE OF XTE, WMONT ENVIRONMENTAL COURT FILED JAN 2 3 _ v=ftha � NT ENVIRONMENTAL COURT ITNI RE: Appeal a Timberla'Ke Associates } �k et N�. 2�-I2-4I 'tee(S�Yjth Burlington) rPNDING3 0F rACT, CGNICL1JTSIONTS AND ORDER The above matter was heard by the Environriiental Coul'`I, on June 24 and ems, 21002. The Appellant, Timberlake Associates (hereafter Timberlake), was reps esented by -Tare B. i ieath, Esq., a +1,,� A f ti Burlington C Burlington), t a1ru-4 +1, 1 ppell€e, City o South a lington (hereafter.siuth Burlistgton), was represented by Attorney Amanda S. E. Lafferty. F11NTDi14GS 0117 r ISri I Upon consideration of the l�}i all te.�tii l Its, the exhibits L.rS and the requests to find, the Court finds aiiu eoth.ILides as follows. Background I . This action i$ CLfI appeal taken by i imbei Iak from +he Decisionof the South Burlington D,velopment Review Board, date" December -fir, '1001, denying Tiif'Iberlake's request for Site plan approval (#SD-nv 1-771 and conditional use- approval (4CU-01-44) to: 1) add one (1) additional Iueling position, and ?} add an air dispenser anu pay phone, and relocate the fee dispenser and grease Ui. mpster, at SV 1 Williston Road. 7 Timberlake 1 +1 + Q(� `I7'1 D--A +1 City F C ..+1 D,. 1: i iti berlake owns the property at Ci01 Williston Iston D uau iII Like. City of south lyu Itn"gtC II, i er nion , consistIng of 7 9, I QUO .PSq�uare f%e.-t} in tIly L(�ioi�i��Imereitai /O'�171„e +L��Tf��i.Iijng District alto i I a TV V"V�eriay Lone I . T inw riake acquired the proper ty In 197`^T IiC�i� Life i iiSLLeiIC[eII Biirili C fII �Ii�ratt�fi. �L that +; +i. + A 1 L.located + 1 +1. L. 1 Iliad. nitre the ro rt ' had a Chittenuen Bal-MIc branch o ice oc.ate on it. tilt oug I the yank b i inn a Ur'ive-up windov� taellity, in 1991-, the balik was on!y operating a. �d111-sertvifce Uai-ik CAi I iivi Iiiaiii]fiie at tIIe property. Under the terms of the purchase and sale agr eemeIit T IIYiberlake was obligated to +l bank- IS A Tl1 1{{ 1 '« + the allow the � ank- 3 !T i iv2 I ia-ChiIte to continue operating on tI a property. 3. Timberlake sought both co titional use approval and site plan approval to convert the Williston. Road property to a convenience stare with gasoline sales and a full -service bank ATM. Timberlake's initial proposal was for a 1 700 square foot convenience store building, two (2) Vamps with four (4) fuelling positions, and a full-SP.i Jiee bank ATM facility located in the convenience store building. Timberlake subsequently proposed several versions ofthis plan, involving different building sizes, and differing number of fueling positions. Each subsequent proposal .-!ways included the full - service bank ATM facility. T. In 1996, Timberlake obtained a conditional use permit from the South Burlington Zoning Board of Adjustment, and site plan approval from the South Burlington Planning Commission, for a plan consisting of a 900 square foot convenience store building, two (2) pumps with three (3) fueling positions, and a full -service bank ATMs facility. The two approvals differed, however, in the access plans to and from the site. The ZBA preferred to have traffic enter and exit from Williston Road, while the Planning Commission preferred to have traffic enter and exit from Spear Street, also known as the "jughandle." 5. Timberlake's attempt to have both boards approve one consistent access plan was unsuccessful. To resolve the impasse, Timberlake appealed both decisions to the Environmental Court. At the same time a group of neighbors also appealed the approvals. 6. One of the central issues before the Environmental Court was whether Timberlake's project would generate traffic in excess of what was allowed under the City's Traffic Overlay District zoning requirements. Linder those regulations the property was limited to 30 vehicle trip ends during the peak p.m. hour. Timberlake's traffic engineer, Dr. Thomas Adler, testified that the proposed project would generate 79 vehicle trip ends during the peak p.m. hour. He calculated these trip end using the Institute of Traffic Engineers (ITE) trip generation manual (5th edition), which predicted that each fueling position would generate 19.2 vehicle trip ends during the peak p.m. period. These projections were based on traffic counts at a number of convenience stores with gasoline sales around the country. The South Burlington Zoning Regulations specifically require that traffic generation be calculated based on ITE (5th Edition) trip generation manual. 7. Dr. Adler also testified that the bank ATM facility would generate 21 vehicle trip ends during the peak p.m. hour, based on actually counts that had been done at that facility in previous years. Dr. Adler based his prediction on these counts, because there was no ITE data for such a function. Dr. Adler further testified that although the 79 vehicle trip ends predicted for the three fueling positions and the bank ATM would exceed the trip ends allowed under the traffic overlay district regulations, the project should still be permitted because Timberlake was proposing a number of significant improvements which would create a net benefit to the traffic flow in the vicinity. The South Burlington Zoning Regulation specifically provided that projects generating more traffic than allowed could still be permitted where such improvements were being proposed. 8. SYeeifically=, Dr. Adler testified that Timberlake was proposing three (3) significant improvements which would have a positive impact on traffic flow in the vicinity. They were as follows: (1) installation of a median on Williston Road to prohibit left-hand turns into or out of the property from Williston Road; (2) elimination of two of the four existing driveways to the property, and locating the two remaining driveways away from the intersection of Spear Street and Williston Road; (3) making the entrance one Spear Street a one-way in only, reducing congestion and potential conflicts on Spear Street. Timberlake was also proposing extensive additional improvements, 2 including installation of sidewalks and pedestrian walkways along and through the property, installation of extensive landscaping, installation of curbed driveways on Williston Road to further encourage right -turns only, installation of shielded downcast lights, and a bicycle rack. 9. The Environmental Court concluded that the 79 vehicle trip ends anticipated for the project were more than offset by the improvements proposed by Timberlake. On January 28, 1998, the Court approved Timberlake's project, and accepted the access plan that the Zoning Board of Adjustment had approved: namely locating the ingress and egress driveway on Williston Road. 10. The neighborhood association appealed the Environmental Court's decision to the Vermont Supreme Court. The Vermont Supreme Court affirmed the Environmental Court's decision, and agreed that the 79 vte's anticipated by the project were justified based on the improvements proposed by Timberlake. See In Re: Dooley, 170 17t. 108, 113, 742 A. 761, 764-5 (1999). 11. In 1998, Timberlake built the project, as approved by the Environmental Court, and it became operational in October, 1998. The project as approved and built is contained on a site plan admitted as Exhibit 3. 12. Timberlake did not, however, install the full -service Chittenden Bank ATM in its convenient store. This was because in July, 1997, after permits had been obtained from both the Zoning Board and Planning Commission, and shortly before trial in the Environmental Court, the Chittenden Bank announced that it not longer intended to install or operate an ATM at the facility. Timberlake's current ATM does not generate traffic like a full -service bank ATM would generate traffic. Timberlake's Current Permit Amendment Proposal 13. Timberlake's current proposal seeks to eliminate the bank ATM facility, and in its place activate the fourth fueling position. Timberlake maintains that the fourth fueling position, once activated, will generate 19.2 vte's, two less than the full -service bank ATM approved for the site. Since the facility incorporated significant improvements warranting 79 vte's, a reduction in vte's would not have any adverse impact on traffic. Moreover, position #4 (the non-functioning position depicted on Exhibit 4) currently has the unintended affect of generating vte's equivalent to a fueling position. Thus, activating this position would not increase vte's above existing traffic levels to the site. On the other hand, activating position #4 would improve on -site safety, and improve on -site circulation, by reducing the amount of vehicular jockeying around the pumps that currently exists. Timberlake's proposal also seeks to add an air dispensing machine and pay telephone, neither of which would generate any traffic to the site. Timberlake also wishes to relocate the ice machine and grease dumpster. 14. Shortly after the new convenience store opened Timberlake noticed that motorists were pulling up to the side of the pump that did not have gasoline dispensing equipment referred to as fueling position #4. Timberlake observed that these motorists would become irritated and annoyed 3 ,vhen they discovered that there was no fael dispensing equipment in this position and would then attempt to jockey the vehicle around the pumps to another available position. 15. Timberlake thought that as their customers became familiar with the facility they would eventually become accustomed to the lack of fueling equipment in position #4, and the problem would resolve. As time passed, however, Timberlake continued to observe the phenomenon of motorists pulling up to position 1rF14 expecting to get fuel. Timberlake continued to experience irritated motorists jockeying around the pumps looking for an open fueling position. The fact that this phenomenon continued appears to be caused by the fact that a number of Timberlake's customers are tourists or other out-of-state motorists who visit the station due to its proximity to the interstate. In addition, the number of motorists, including new motorists, traveling along Williston Road, tend to provide a steady stream of new customers to the facility, who are not aware of the lack of a fueling position at position #-4. 16. Also, Timberlake has noticed that a number of its customers routinely ask to use a pay phone, or an air hose to check their tire pressure. These are two conveniences Timberlake does not have at its facility. Thus motorists in need of these services have to get them elsewhere. Both of these conveniences are located next door at the neighboring Mobil station. 17. None ofthe experts for either Timberlake, the City, or the neighborhood association, had anticipated during the original Environmental Court trial that the two pump/three dispenser layout would create a phenomenon where the non-functioning fueling position what actually generate traffic to the site. 14. During the peak p.m. period, motorists are often seen pulling up to position 44, and then attempt to jockey around to an actual fueling position. The jockeying often involves attempts to back into a fueling position. Drivers become irritated and annoyed at this situation. Fortunately, no vehicular accidents have occurred on the prope Ly. 1 �. A Series of photographs were taken during a 10 - 20 minute period one afternoon during "rush hGiir." T l ese photographs show a series of f sur vehicles tali are out -off -state vehicles) puiiiijg I nto position #i, and ti;en maneuvering into Gtner avaiiatite rae.Zng positions. Eluting Luis Same time period a total of 3 other vehicles can be seen at the other fueling positions. During the time period shGLn vin the photographs, position 744 attracted 4 vehicle visits (S vte's) while the other three positions combined attracted 3 vehicle visits (6 `v'te's). On a per fueling position basis, position #4 14, n �., +: .:„.7 + + n +: P m c, f + rt1 + r kthe non-ffin Toni .g position) attracted -r times as any motorist as each ofthe fun positions did. 20. The reason poSltlon #4 attracts n1Gre vehicles 1S that motorists pu111ng into position #4 do not remain there very long. As Soon as they realize the position is not a functioning fueling position they immediately move out of it. Thus, to passing motorists on Spear Street and Williston Road, position #4 appears to be an open and available fueling position and they are attracted to it by its apparent availability. 4 Facts that do not appear to be contested 7 A t t' 1 land, 1 3 a t' 1fuel. 21. A service station is a building, land, or premises useu for sales o vehicular �vrrrn Burlington Zon.ngRegulations 28.174. The property is located in the Commercial One (C I ) District. 7-oning,k1ap Appendix to Zoning Regulations, Exhibit S. The gasoline pump is a permitted use. South Burli;zgton Zoning Regulations 12.106., Exhibit S. A convenience store is a coniditional use in the Cl ' ?' th Distrlet. Secrtor( 1 � - 13 o Gorr. Burlington's Zoning Regulations. Conditional use criteria are found in 24 V.S.A. §4407(2). 23. The project provides for appropriate and adequate pedestrian access and circulation and, in general, for adequate vehicular access and circulation. The elimination of wasted trips, confused motorists and jockeying vehicles to the "phantom" fueling position #4 will be an: improvement to circulation. There are other improvements that Timberlake could make to the site that would produce a benefit for traffic flow in the vicinity. The Spear Street or western entrance to the site is required by Timberlake's zoning approvals to be an entrance only. However, customers can: and do exit from that driveway which can potentially inhibit traffic that flows from Spear Street onto Williston Road, east aiid west bound, and on East Avenue. Both experts testified that this driveway requires additional "do not enter" and one way signs to make it very clear that customers are not permitted to exit from the site onto Spear Street. In addition, narrowing the driveway would make it more apparent to customers on the site, that only one direction of traffic is permitted on that driveway- 2 A Landscaping is adequate. Allegations related to zoning violations are not before the Court. Parking is adequate. Protection of renewable energy resources is not impacted in this case. 25. Loading facilities are not contested in this case. 26. Minimum lot Size frontage is to compliance. Llai�imurn lot coverage and Setbacks are in compliance. Drainage, fire protection, lighting, noise, vibration, odor, air pollution, heat, glare, waste and other hazards are all admitted to be in compliance. The aesthetics of the property v:'ill not 1... .! tl,., „♦ "and the view% Q{7 aL,a property rt 1 be vil ��: ll :,7�.,t: Lie impacted from thle project and t the w i a �` identical. 17 The project does not adversely effect the capacity of existing or planned municipal services. 7Q C ,.tl rlingto r. DQg. 1 t; e T � 11 t. 'Reo- :3. 0ouc:i Bu:ii.i�vn ZQniin: �w�uiai3OnS ha`v. iiaii:C O`v'era5' LsiSciict ice.ncilationiS concern :ng traffic c volume generation. The projected traffic volume of the proposed traffic v olu ne is to be calculated "during the peak hour of adjacent street traffic." Findings based on testimon7' of the tranisportation con sultants, Thomas J. Adler and Roger J. Dickinson 29. The cash dispensing machine currently located in the convenience Store does not generate any traffic. No exterior advertising is visible to passing motorists, and such devices are common features at many convenience stores. In addition, these cash dispensing machines do not have features found in full -service bank ATMs, (the ability to make deposits, transfer funds, and make payments). They are significantly less attractive than a full -service bank ATM. 30. According to ITE (6th Edition) (which is substantially identical to the 5th Edition) the fourth fueling position, if activated, will generate 19.2 vte's during the peak p.m. period. This is identical to the other 3 existing fueling positions. According to § 21.500 of the South Burlington Zoning Regulations the ITE Trip Generation Manual is the appropriate method for calculating a proposed use's vte's. The total vte's for this site, under the pending proposal, is 77. This is 2 vte's less than the original number of vte's predicted for this site. 31. The improvements originally installed to improve the flow of traffic along Williston Road are effective. No left-hand turns occur into or out of the site from Williston Road. !While the one- way entrance onto the property from Spear Street appears to be reasonably effective, Timberlake could improve the situation as previously discussed in paragraph 23, supra. 32. The peak p.m. period for Williston Road in the vicinity is between 4:30 p.m. and 5:30 p.m. Dr. Adler conducted a traffic count for this facility on June 17, 2002 from 4:45 p.m. to 6:00 p.m. and made specific observations about the movement and behavior of motorists at the facility. He observed the phenomena of position #4 generating traffic, despite its nor, -functional condition. He observed 8 vehicles pull up to the fueling position to get fuel. One vehicle left in a apparent hurry by traveling the wrong way out to Spear Street. The other 7 vehicles proceeded to jockey around the pumps in an effort to find an open position. During this same period Dr. Adler observed twenty- one (21) vehicles pull directly up to the gas dispensing positions. Thus on average, the working fueling positions each generated 7 vehicle visits, or 14 vte's. During that same time position #4 generated 8 visits, or 16 vte's. 33. Based on Dr. Adler's observations, the Court finds that activating fueling position, 1#4 will not result in an increase in vte's at the site during the peak p.m. period. Any increase will be nominal at best. 34. Activating fueling position 44 will have the benefit of reducing the amount of vehicular jockeying currently taking place around the pumps. This will provide an improvement to safety, circulation and provide a net benefit to traffic flow in the vicinity. 35. An air dispenser and pay phone will not generate any new vte's to the site. These services typically exist at convenience stores, and new motorists assume they exist at this site currently. Installing them will not generate additional traffic. 36. The existing convenience store at 801 Williston Road does not "generate" any new traffic on, Williston Road. That is because 100% of the vte's to the site are "pass by" vehicles. Pass by vehicles are those motorists who are traveling along Williston Road for other reasons, and choose to stop at this site while traveling to their other destinations. The number of vehicles traveling on Williston Road is unaffected by the existence of this convenience store. Adding a fourth fueling position will have no affect on Williston Road traffic. 37. In opposition to Timberlake's request to add a fourth fueling position, South Burlington contends that Timberlake could have, and should have, taken steps to change the appearance of the fourth fueling position such as placing "out of order" signs on it. South Burlington criticizes Timberlake for never making it more apparent to customers that the fourth fueling position is not available and does not function, and for never taking steps to prevent customers from pulling up to it. And finally, South Burlington takes Timberlake to task for not seeking advice from qualified professionals, such as a traffic consultant, on how to remedy the problems created by the fourth fueling position. These arguments are not persuasive. Pay Phone and Air Dispenser 38. Timberlake seeks permission to install an air dispenser and a pay phone on site. Installing a pay phone on the front exterior surface of the convenience store, and installing an air dispenser in the vicinity ofthe existing parking spaces along the easterly boundary of the property would have no adverse impact on on -site vehicular traffic and circulation. These requests are appropriate and should be approved. These services typically exist at convenience stores, and motorists assume they exist at this site. Actually installing them would not generate any additional traffic. Grease Dumpster 39. Timberlake seeks to relocate the grease dumpster from its approve"' position in the southeast corner of the property to a location behind the convenience store itself because it will be more convenient for its employees. `'Waste cooking grease is carried in a five (5) gallon container from the store to the dispenser. The container is heavy to and there is some risk of spillage when it is carried any distance. The proposed new location is well screened by existing shrubbery and out of the way of any pedestrian or motorist path. It will be more convenient for store employees, without having any adverse impact in anyway on the site. Timberlake's request to relocate the grease dumpster is appropriate. Ice Cooler 40. Timberlake wants to place the ice cooler outside on the west exterior side of the convenience store building to reduce air conditioning expenses. The ice cooler operates much like a chest freezer. It runs on an internal compressor and it throws off considerable heat into the store. To keep the store cool it is necessary to operate two air conditioning units during the summer. If the ice cooler is placed outside, only one air conditioning unit will be necessary. 41. The exterior location proposed for the ice cooler is well screened by existing landscaping at the site. The location will not interfere with pedestrian or motorists travel. Timberlake's proposal �...- 4(, 4t, i. ...i.n4 4.�.-. ...- .:A- F41,- �.. ..��....� ... t.�.. rt.... 4 .` 1... to relocate the ice cooler to .111C West extel svt slut vs tlsc vussuusS s5 r GdSVnaUJC. t Isis request vvill vc approved. Sinall Eiitrance Marker 42. Timberlake would like to place a small entrance marker by the Williston Road entrance in order to make it more clear to cars where to enter the facility. It will provide a net benefit to traffic flow in the vicinity. The City of South Burlington offered no objection to the request and it will be approved. CONCLUSIONS 43. In this action, Timberlake seeks approval for its request to add one additional fueling position, an air dispenser and a pay phone, and to relocate its ice dispenser and grease dumpster. South Burlington opposes the application claiming that there have not been arty changes ofconditions that justify the alterations. Obviously, Timberlake disagrees and submits that its application complies with all of the pertinent criteria. t4. In 1996, Timberlake obtained approval for a conditional use permit from the South Burlington Zoning Board of Adjustment, and site plan approval from the South Burlington Planning Commission, for a plan consisting of a 900 square foot convenience store building, two (2) pumps with three (3) fueling positions, and a full -service bank ATM facility. The two approvals differed, however, in the access plans to and from the site. The ZBA preferred to have traffic eater and exit from Williston Road, while the Planning Commission preferred to have traffic enter and exit from Spear Street, also known as the "jughandle." In 1998, the Environmental Court approved the access plans preferred by the ZBA and granted Timberlake's request for a conditional use permit. In 1999, the Environmental Court's decision was affirmed by the Supreme Court. See In Re: Dooley, supra. The Environmental Board has developed a set of standards for processing Act 250 amendment requests which have applicability for municipal permit cases. These standards have found acceptance by the Supreme Court. See, In Re Stowe Club Highlands, 166 Vt. (1996); In Re Nehemiah Associates, Inc. 168 Vt. 288 (1998). :Then the Board weighs the competing values of flexibility and finality in arriving at a decision, it considers three kinds of changes to determine whether an amendment to a permit condition should be allowed. The Standards used by the Board are set out in Nehemiah at page 294: (a) changes in factual or regulatory circumstances beyond the control of a permittee: AI (b) changes in the construction or operation of the permittee's project, not reasonable foreseeable at the time the permit was issued; or (c) changes in technology. 0 These standards are fair and reasonable and will be used here. They are appropriate for weighing the competing values offlexibility and finality in applications requesting amendments to municipal zoning permits, and Standard (b) is the one which applies to Timberlake's request for an additional fueling position. Since Timberlake is not seeking an amendment which was previously denied, the standards set out in In Re Application of Carrier, 155 Vt. 152 (1990) will not be used. Additional Fueling Position 45. Neither the Zoning Board of Adjustment, the Planning Commission, the Environmental Court, the City of South Burlington's Planning and Development office, nor any of the experts for the various parties to this action anticipated that the fourth fueling position would generate traffic to the site. Likewise, none of the above entities anticipated such traffic would result in confused and unsafe jockeying around the pumps by motorists seeking to get into an available position. The current situation was not anticipated by anyone. Initially, Timberlake thought that motorists would become familiar with the site layout, and the problem would subside. That has proven not to be the case, no doubt due to the large number of tourists and a steady stream of new customers visiting the site. This situation clearly constitutes an unforeseen condition justifying a permit amendment. Timberlake's proposal will deal effectively with the current problem at the site in that it will provide for safer on -site vehicular movements. The proposal will not generate any noticeable new vte's to the site, and will reduce unnecessary turning movements. Pair Phone and Air Dispenser 46. Pay phones and air dispensers are common amenities found at convenience store locations. Timberlake's request to add these services is reasonable and South Burlington has not ad%:ranced any credible reasons why they should not be allowed. These services will not generate any. additional traffic at Timberlake's site. Grease Dump ster and Ice Cooler 47. Timberlake seeks to relocate its grease dumpster to a location behind the convenience store and its ice cooler outside on the west exterior side of the convenience store building. Again, South Burlington has not advanced any credible reasons why these relocations should not be allowed. Both will be well screened and out of the way of pedestrian and vehicular traffic. The requests are reasonable and will be granted. ORDER IA'I IEREFORE, upon consideration of the foregoing, Timberlake's application to amend its site plan and conditional use approvals, incorporating the following changes, is granted: a. Add fuel dispensing services at position #4; 9 �u a pay phone to the ex erior of the front of the convenience store building, b. Au.. li t C. Add an air dispensing unit in the area of designated parking to the east side of the lot; d. Relocate the waste cooking grease dumpster to the rear of the building in the area of the propane tank where landscape screening already exits; e. Relocate the ice machine from inside of the building to the west exterior side of the building in the area of the picnic table; Place a small "L;:ter" sign at the Williston Road entrance, to assist motorists in locating the entrance lane to the site; and g. At the Spear Street or western entrance to the site, install additional "do not enter" and "one way" signs to make it very clear that customers are not permitted to exit from the site onto Spear Street. In addition, narrow the driveway so that it wit] be more apparent to customers on site that only one direction, of traffic is permitted one that driveway. ram_._ �___ ��______. L _ Ord "ate at Bane, Vern-tont this 2_J da_v of January, 200J. Ste"phen Ef Martin Presiding Judge 10 II 01-29-'03 10:53 FROM -Law our eux&Dickinson 8028733135 lQ' V. 4 T��—C—•�—g 'if• _ �NPSI - 33Y.4i. RLF m-.,0Lq .. 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ORIGINAL TO Nt MAILED: 11 YES t60 # (IF PAGES (including this transmittal); DA:rk DESCRIPTION Shop Dta-Mngn Copy of r cuer--i Vh1kn.-V CSrzter Specilkatbow For Apyr,-'Oval JLE YOU KC- LJ () r,,)DC- Q rJ C:, L:) 1-4 7- For rev"- Foi your u5e Tm For tol"Witcut /4 77-4 -r-t 4 20 Fur car"Cuitim. Signature: COPY TO: L/ :3 Front Office CoTw 16-flacd 2, 1+ ,:3 Project yfic Copy 14 Morse Drive Essex Junction, Vermont 05452 September 12, 2001 LAMOUREUX & DICKINSON Consulting Engineers, Inc. Raymond J. Belair, Administrative Officer City of South Burlington 575 Dorset Street South Burlington, Vermont 05403 RE: 801 Williston Road Dear Ray, (802) 878-4450 Fax (802) 878-3135 As requested, we have reviewed the August 2, 2001 letter from Tom Adler of Resource Systems Group concerning the proposed addition of one fueling position at the above -referenced convenience store in South Burlington. In reviewing that letter, we noted the following representations as worthy of comment: 1. The third paragraph references a traffic impact assessment prepared for University Texaco dated October 12, 1999. We have a copy of that study, dated "Revised October 13, 1999". In Table 1 of that study, the actual peak hour trip generation of this site (Chittenden Bank Exxon) is given as 63 trip ends per hour. This presumably is what was observed on May 28, 1000, and subsequently "seasonally adjusted" to 61 vte/hour. 2. To the best of our knowledge, there has not been any published data relative to seasonal variations in convenience store trip generation. Lacking such data, that adjustment falls outside accepted engineering practice. 3. The above traffic count was performed on only one day. To call this an "average" is a misrepresentation of the data. 4. There was no data submitted with the above letter to substantiate the conclusion that the lack of traffic at the ATM is responsible for the difference between the originally estimated peak of 79 vte/hour and the actual peak of 63 vte/hour. Having said that, we do believe that it is reasonable to conclude that the existing ATM generates little traffic. As you know, before the convenience store was constructed, the Chittenden Bank operated a drive -up ATM at this location. It was that facility which apparently generated 21 vte/hour during the weekday p.m. peak hour. Currently, the ATM at the convenience store is a small walk-up unit located inside the store, and is not visibly operated by a local banking institution. This type of ATM has Civil • Environmental • Transportation • Planning 9 Landscape Architecture 9 Hydrogeology • Land Surveying Raymond J. Belair September 12, 2001 Page 2 become relatively common at convenience stores, and is not a traffic generator in the same sense that a drive -up ATM would be at a local bank branch. Although it would be beneficial to seek clarification of the above comments, we concur that increasing the number of fueling positions from three to four will not cause the original peak hour estimate of 79 trip ends to be significantly exceeded. We base that conclusion on the following: ► ITE Trip Generation Rates - For a convenience store with gas pumps, the ITE' has published a rate of 19.22 vte/hour per vehicle fueling position for the weekday p.m. peak hour. Applying that rate results in the following: Weekday # Vehicle P.M. Peak Hour Fueling Positions Trip Generation 3 58 vte/hour 4 77 vte/hour Local Trip Generation Data - In our review of the University Texaco project on behalf of the City, we developed the following regression equation using local convenience store traffic count data. This equation estimates the weekday p.m. peak hour vehicular trip generation based on the number of vehicular fueling positions. Vehicle Fueling Positions (x) T = 16.5x + 15.5 (RZ = 0.97) Weekday # Vehicle P.M. Peak Hour Fueling Positions Trip Generation 3 65 vte/hour 4 82 vte/hour Should the City approve the proposed change, we recommend that a permit condition be included in the approval which restricts the ATM at this site to a walk-up unit located completely inside the store. Trip Generation, Institute of Transportation Engineers, 6'h Edition Raymond J. Belair September 12, 2001 Page 3 Should you have any questions concerning the above, please feel free to call me. Sincerely, rkI)CM, Roge rional son, P.E. ProfeTraffic Operations Engineer Q:\2001 \01-118\belair.9-12-01.wpd STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE" E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE ('ALSO ADMITTED IN N.Y.) August 9, 2002 Jackie Stevens, Acting Clerk Vermont Environmental Court 255 N. Main Street, Suite 2 Barre, VT 05641 Re: Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Dear Jackie: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Enclosed for filing with regard to the above -captioned matter is the City of. South Burlington's Proposed Findings of Fact and Conclusions of Law. Also enclosed is a disk for the Judge's use. Thank you. Sincerely, iI 7 Amanda S. E. Lafferty ASEL/jp Enclosure CC: Marc B. Heath, Esq. (via hand delivery) Raymond J. Belair -- son4912.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 IN RE: APPEAL OF ) DOCKET NO. 204-12-01 Vtec TIMBERLAKE ASSOCIATES ) CITY OF SOUTH BURLINGTON'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and asks that the Court make the following findings of fact and conclusions of law in the above -captioned matter. Proposed Findings of Fact 1. The City of South Burlington (hereinafter the "City") is a. Vermont municipality situated in Chittenden County, Vermont. At all times material to this proceeding, the City has had zoning regulations (hereinafter the "Regulations") in effect. Exhibit S. 2. Timberlake Associates (hereinafter the "Appellant") owns and/or occupies property consisting of 79,180 square feet and located at 801 Williston Road in the Commercial One Zoning District and Traffic Overlay Zone 1 of the City (hereinafter the "Property"). A 900 square foot convenience store with deli, gasoline sales and a cash dispensing machine exist on the Property. There are also on the Property two fueling dispensers with three functioning fueling positions located under a 1,280 square foot canopy. The Property is located next to the Spear Street jug handle and in close proximity to the entrance to STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 Interstate 89. Consequently, the Property receives a lot of out- of-state traffic. The Regulations limit the Property to 29.69 vte's in the p.m. peak hour. Testimony of Raymond Belair, Roger Dickinson and David Simendinger, Exhibits 3 and S. 3. In 1994, Appellant obtained the Property and first sought zoning approvals from the City to locate a convenience store and deli with gasoline sales and an automated teller machine (hereinafter "ATM") on the Property. Originally, Appellant proposed a building larger than the one that currently exists on the Property, as well as four fueling positions, for approval by the City. Chittenden Bank, which sold the Property to Appellant, required that Appellant permit a full service Chittenden Bank ATM on the Property. Testimony of David Simendinger and Ray Belair, Exhibits O, P, Q and R. 4. Three appeals of City Board of Adjustment and Planning Commission decisions were filed in Environmental Court. Testimony of David Simendinger and Ray Belair, Exhibit O, P, Q and R. 5. In July 1997, prior to the Environmental Court's hearing on the appeals, Chittenden Bank terminated the lease it had with Appellant to locate a full service Chittenden Bank ATM on the Property. Appellant continued with its proposal to locate a full service ATM on the Property. Testimony of David Simendinger, Exhibits 15 and O. G STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 6. In January 1998, Appellant received approval from Environmental Court. Said approval found that the proposed uses - gas station with three fueling positions, convenience store and deli with ATM - were expected to generate 79 vte's in the peak hour. Specifically, the ATM use was expected to generate 21 vte's. Exhibit O, page 5. 7. By Application for Zoning Permit dated February 4, 1998, Appellant made application to "Demo[lish] existing Bank Building [and] Construct 900 [square foot] mini mart". The application did not include a proposal for the ATM. On or about February 5, 1998, the City Administrative Officer approved said application. No one appealed this determination of the Administrative Officer. Appellant finished construction of the structures, canopy and fueling dispensers on the Property and opened for business in October 1998. Testimony of David Simendinger and Ray Belair, Exhibit T. 8. Appellant never located a full service ATM on the Property. Instead, Appellant located a machine that only dispenses cash inside the convenience store and deli building. Appellant does not plan to remove the cash -only machine nor does Appellant plan to locate a full service ATM on the Property. The cash dispensing machine does not generate a discernible level of traffic. Testimony of Roger Dickinson, Thomas Adler, David Simendinger and Ray Belair, Exhibit I. 3 9. The two fueling dispensers on the Property have three fueling positions. There is one fueling position on each side of the eastern most dispenser. The northern side of the western most dispenser also has a fueling position. The southern side of the western dispenser, which is on the store side of the dispenser, does not have a fueling position that functions (hereinafter the "fourth fueling position"). However, Appellant set up the fourth fueling position so that there are spaces for the fueling nozzles and "Price per gallon" signs on the face of the position. There are also advertisements on top of and next to the dispenser. Testimony of Roger Dickinson, David Simendinger, Exhibits 3, J and K. 10. Since Appellant opened the Property to gasoline sales in 1998, customers have consistently pulled their cars up to the fourth fueling position to pump gas. They are unable to tell that the fourth fueling position does not function until they either park in front of it or get out of their car and see that there are no hoses or nozzles. As a result, customers that pull up to the fourth fueling position then make extra vehicular maneuvers in order to relocate their cars to one of the three remaining fueling positions. There have not been any vehicular accidents on the Property. Testimony of David Simendinger, Roger Dickinson, Exhibits J and K. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET FO BOX 1507 BURLINGTON, VERMONT 05402-1507 4 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 11. In the three and one half years that Appellant has been aware of the problems created by the fourth fueling position, Appellant has not taken any steps to change the appearance of the fourth fueling position. Appellant has never placed "out of order" signs on the fourth fueling position. Appellant has never attempted to make it more apparent to customers that the fourth fueling position is not available and does not function or to prevent customers from pulling up to the fourth fueling position. Appellant never sought advice from qualified professionals, such as a traffic consultant, as to how to remedy the problems created by the fourth fueling position. Testimony of David Simendinger. 12. By Application to Development Review Board dated September 28, 2001, Appellant requested conditional use approval to "Amend conditional use approval to allocate 21 VTE approved for a 4th fueling position. Also adding air and ice dispenser and payphone". Also on or about September 28, 2001, Appellant made application for site plan review, proposing to incorporate the conditional use requests on the Property. Testimony of Ray Belair, Exhibit 2. 13. Mr. Dickinson, a professional engineer, has over twenty years of experience providing transportation engineering and planning services throughout Vermont, including the preparation of traffic impact studies for commercial developments and the 5 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 collection of traffic data for the Vermont Agency of Transportation. Testimony of Roger Dickinson, Exhibit A. 14. The Trip Generation Manual published by the Institute of Traffic Engineers establishes an average rate of trip generation for the uses that exist on the Property - a convenience market with three gasoline pumps. This rate is 19.22 vehicle trip ends (vte's) per position during the p.m. peak hour, or 57.66 vte's. Testimony of Roger Dickinson, Thomas Adler, Exhibit 12. 15. The trip generation for the proposed use on the Property, a convenience market with four gasoline pumps, is 76.88 vte's during the p.m. peak hour. Testimony of Roger Dickinson, Thomas Adler, Exhibit 12. 16. The weekday peak hours of the convenience market with gasoline pumps use typically coincide with the peak hours of the adjacent street traffic and can change from day to day. Peak hour data for adjacent street traffic was not available from either the State of Vermont Agency of Transportation or the Regional Planning Commission. Testimony of Roger Dickinson, Exhibits M and S, page 61. 17. The trip generation rate predicted by the Trip Generation Manual is based on studies conducted between 1982 and 1995. ATM's were not commonly found with convenience markets 0 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 with gasoline pumps during this time period. Testimony of Roger Dickinson. 18. On June 11, 2002, the Property generated 68 VTE's during a p.m. peak hour of 4:00 to 5:00. Testimony of Roger Dickinson, Exhibits B and C. 19. On June 12, 2002, the Property generated 101 VTE's during a p.m. peak hour of 5:00 to 6:00. Testimony of Roger Dickinson, Exhibits D and E. 20. On June 13, 2002, the Property generated 81 VTE's during a p.m. peak hour of 4:45 to 5:45. Testimony of Roger Dickinson, Exhibits F and G. 21. The Property is unique because it has an odd number of functioning fueling positions. In addition, Appellant proposes to add two new uses, an air dispenser and a pay telephone and to relocate one existing use, an ice storage machine. The Trip Generation Manual does not note the presence of such amenities in the studies of convenience markets with gasoline sales upon which it bases the average trip generation rate for said use. Testimony of Roger Dickinson. 22. In conformance with accepted traffic engineering practice, Mr. Dickinson conducted counts over three days during the middle of the week in June 2002. Dr. Adler's and Mr. 7 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 Alexander's counts do not meet these standards.' In addition, the Court rejects Appellant's arguments that Mr. Dickinson's counts are not reliable because he did not determine the peak hour of Williston Road traffic. As Mr. Dickinson testified, such information, which fluctuates from day to day, was not available and the trip generation manual expressly states that the generator's weekday peak hour typically coincides with that of the adjacent street. Moreover, Dr. Adler only knew what the peak hour for Williston Road was at the intersection with the Sheraton Hotel for one day in October 2001, and did not determine the peak hour Williston Road traffic volumes on the day that he counted traffic. Testimony of Roger Dickinson, Exhibits M and 13. 23. Finally, Appellant claims that Mr. Dickinson's traffic counts should have provided a breakdown of how many cars pulled up to the fourth fueling position. However, such information is not relevant. The Regulations require the Court to consider the traffic volumes "currently generated by the exiting use" and the traffic volumes predicted for the proposed use(s). The Regulations do not consider the number of vehicles that pull up to each fueling position. For all these reasons, the Court relies on Mr. Dickinson's traffic counts. Exhibit S. ' Mr. Adler counted traffic for a total of an hour and fifteen minutes on one day, a Monday. Mr. Alexander's traffic count was over three years ago on one day, a Friday. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET FO BOX 1507 BURLINGTON, VERMONT 05402-1507 24. The Property generated an average p.m peak hour traffic volume of 83 VTE's over the three days that the City's expert counted traffic. Based on these traffic counts, the uses on the Property - convenience market with three fueling positions - are already generating more traffic than the Environmental Court found would be generated by a convenience market with gasoline sales and ATM, or 79 vte's. Exhibit H. Testimony of Roger Dickinson, 25. Appellant has proposed the addition of a functioning fourth fueling position, ice and air dispensers and a pay telephone. These uses are not noted in the studies used in the Trip Generation Manual to determine the trip generation average for convenience market with gas sales. The addition of this combination of uses to the Property, however, is expected to increase the number of trips entering and exiting the site during the p.m. peak hour because said uses are amenities which draw customers. These amenities, in association with a total of four fueling positions, will increase the vehicle trip ends over and above the 83 p.m. peak hour trip ends generated by the current uses by 10 to 19 vte's, or slightly less than the average trip generation rate per vehicle fueling position (19.22 vte's). Testimony of Roger Dickinson. 26. The Property has a pass -by rate that approaches 1000. However, pass -by traffic generates turning movements. The 9 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 addition of the fourth fueling position, as well as the amenities proposed by Appellant, will result in an increase of turns on and off the Property in an area of Williston Road only a few yards from a high volume traffic signal and the Interstate. Testimony of Roger Dickinson. 27. Appellant has not proposed any site improvements to the Property, other than the uses that will result in an increase in traffic. There are site deficiencies and ill effects on traffic on roads in the vicinity caused by the site layout of the Property that Appellant could easily address. Traffic counts indicate that customers use the Spear Street entrance to the Property as an exit from the Property. Such use is contrary to Appellant's zoning approvals and can cause traffic problems because the closest traffic lane is for right turns (onto Williston Road) only. Anyone exiting from the Property onto Spear Street that wants to turn left onto Williston Road or continue straight onto East Avenue has to cross at least one lane of traffic to get in the correct lane. To discourage the use of the Spear Street entrance as an exit, Appellant could narrow the entrance and provide more signage or asphalt markings that alert drivers on the site to the "one-way" status of the Spear Street entrance. Testimony of Thomas Adler and Roger Dickinson, Exhibits C, E and G. 10 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171RATTERYSTREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 28. There are six proposed locations for the air dispenser. Locations A, B, C and D require customers to use parking spaces while they add air to their tires. Conversely, customers that want to add air to their tires may not be able to do so if the necessary parking space is filled. Locations E and F do not interfere with any parking spaces nor do they impede on -site traffic flow. 29. Appellant proposes to locate the ice machine outside near the northwestern corner of the building on the Property. Appellant does not propose any screening of the ice machine. 30. Appellant proposes to locate the pay telephone along the front of the building on the Property. Proposed Conclusions of Law Change of Circumstances The uses that Appellant proposes to add to the existing uses on the Property constitute amendments of a previously approved conditional use and site plan. However, there has not been a change of conditions that justifies the alteration of the previous approvals. See In re Stowe Club Highlands, 166 Vt. 33, 38 (1996); see also In re Nehemiah Associates, Inc., 168 Vt. 288, 294 (1998). "The central question . . . . is . . . . under what circumstances [] permit conditions may be modified." In re Stowe Club Highlands, 166 Vt. 33, 37 (1996). "After a permit is granted and circumstances change, existing permit conditions may 11 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 no longer be a cost-effective or efficient method to minimize the development or subdivision's impact . . . . [t]he permitting process should therefore be flexible enough to address changes in circumstance." In re Nehemiah Associates Inc., 168 Vt. 288, 294 (1998). There are three changes which justify an amendment to a permit condition: (a) changes in factual or regulatory circumstances beyond the control of a permittee; (b) changes in the construction or operation of the permittee's project, not reasonably foreseeable at the time the permit was issued; or (c) changes in technology. Id. (citing In re Stowe Club Highlands, 166 Vt. at 38). The permitting process requires some finality because, both at the time the permit issues and subsequently, the parties and other interested persons reasonably rely on the permit conditions in making decisions." Id. In the instant case, there have been no changes which justify the requested amendment. The proposed amendment adds a fueling position, for a total of four fueling positions, air and ice dispensers and a pay phone to the Property. None of the proposed amendments are the results of efforts by Appellant to respond to changes beyond its control or that were not foreseeable. Appellant claims that the "loss" of the ATM use as well as the problems associated with the fourth fueling position constitute changes in both factual circumstances and in the operation of the Property such that the amendments are justified. 12 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 Chittenden Bank notified Appellant in July 1997 that it would not locate a full service ATM on the Property. Rather than finding an alternative local provider of such an ATM, Appellant instead placed a cash dispensing machine on the Property and did not request approval of an ATM in 1998 when it made application for a zoning permit. Moreover, a representative of Appellant testified that the cash dispensing machine satisfied customer needs and Appellant did not intend to replace the cash only ATM with a full service ATM. Therefore, Appellant had known for four years at the time it made application for these amendments that Chittenden Bank would not provide a full service ATM. Appellant has not provided the Court with any evidence of its inability to find a similar alternative and has, in fact, provided instead a cash dispensing machine. Further, even if Appellant had not found a satisfactory substitute for the full service ATM, the amendments proposed by Appellant - the addition of a fueling position, air and ice dispensers and a pay phone - do not respond to the change of circumstances presented by Chittenden Bank's failure to provide an ATM. These facts fail to demonstrate a change in factual circumstances which was beyond Appellant's control and which justify the proposed amendments. In addition, problems resulting from the fourth fueling position do not constitute changes in the operation of the project that were not reasonably foreseeable at the time that 13 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 Appellant obtained its permit. See In re Nehemiah Associates, Inc. 168 Vt. 288, 294 (1998)(stating that "[e]ven where the Board finds such a change, there are certain situations where an amendment may not be justified, for instance where the change was reasonably foreseeable at the time of permit application.") The evidence demonstrates that Appellant immediately became aware after commencing operation in October 1998 that customers were failing to notice that the fourth fueling position did not function. Only after customers actually parked in front of the fourth fueling position or exited their cars to begin fueling did they notice that said position does not function. Thereafter, customers often maneuver their vehicles in order to get to one of the remaining three vehicles as quickly as possible. For over three years this problem has continued, yet Appellant has made no attempt to resolve it. Appellants have never put up signs, taken any steps to inform customers that the fourth fueling position does not function or sought the advice of a qualified professional. It is apparent to the Court that there are several alternatives to making the fourth fueling position operable that would effectively prevent customers from pulling up to the fourth fueling position in the first place and thereby oviate the need for customers to make extra and often unsafe traffic maneuvers. Moreover, it is not reasonable to conclude that the situation created by the fourth fueling position was not foreseen 14 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 by Appellant. The Property is located in a high traffic volume area that attracts out-of-state and local traffic. The traveling public that purchases gas at the Property does not have the opportunity that locals have to discover and remember that the fourth fueling position is not available. It only worsens the situation that Appellant placed the fourth fueling position on the store -side of the dispenser and did nothing to alter the face of the position. The appearance and location of the fourth fueling position make it difficult for customers to observe that it does not function until the customers actually pull up to the fourth fueling position. It is clear that Appellant first considered operating the Property as a convenience store with four fueling positions several years ago. Appellant cannot now amend its permit to add this fourth fueling position when it was foreseeable both that the fourth fueling position would result in customer confusion and that Appellant would one day want to operate the Property in such a manner: Permit applicants should consider foreseeable changes in the project during the permitting process, and not suggest conditions that they would consider unacceptable should the project change slightly. Otherwise, the initial permitting process would be merely a prologue to continued applications for permit amendments. In re Stowe Club Highlands, 166 Vt. 33, 39 (1996). Moreover, the previous litigation should be considered final since interested parties participated in the process of review of the then 15 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 proposed convenience store with three fueling positions. See Exhibit O; see also In re Dooley, 170 Vt. 108 (1999). They should be able to continue to rely on said decisions without concern that Appellant might make application for that for which it either did not plan appropriately or could not obtain approval in the previous litigation. There has not been any unforeseeable change in the operation of the Property which justifies Appellant's proposed amendment. Appellant has also presented no evidence of changes in technology that justify an amendment. Appellant claims, with no basis, that cash dispensing machines are a new technology. However, Appellant has not provided any explanation as to how the availability of cash dispensing machines justifies the addition of a fourth fueling position.' There have been no changes in the circumstances or operation of the Property that justify an amendment to Appellant's previous approvals. Appellant's application for conditional use and site plan approval is DENIED. Traffic Overlay District Appellant's application to add a fourth fueling position, air and ice dispensers and a pay phone does not comply with the requirements of the Traffic Overlay District. Appellant claims ' Appellant claims that a certain level of traffic was approved by the Environmental Court. Appellant now attempts to argue that it may replace the level of traffic that was "approved" for the ATM with the level of traffic predicted for a fourth fueling position. As the City will point out, the Regulations approve uses, not levels of traffic. 16 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 that it currently has approval for a convenience store/deli with gas sales via three fueling positions and an ATM. Therefore, Appellant argues, the uses approved for the Property already generate 79 vte's in the p.m. peak hour. Instead of placing the ATM on the Property, Appellant placed a cash dispensing machine. Appellant proposes to give up the ATM use and instead seeks approval of the fourth fueling position. Converting the Property from a convenience store with three fueling positions and an ATM to a convenience store with four fueling positions does not result in an increase of generated trips. However, Appellant no longer has approval of the ATM use. The Regulations provide: Variances, conditional uses, and site plan approval shall expire six months from the date of their approval by the Development Review Board as the case may be, unless there is a reasonable amount of objective evidence of intent to pursue the furtherance of the project for which the permit was issued. The Regulations, Section 27.302. In the current matter, Appellant sought zoning approvals beginning in 1994 to use the Property as a convenience store/deli with gas sales and ATM. In July 1997, Chittenden Bank informed Appellant that it would not provide a full service ATM as they had agreed. Appellant continued to seek approval of the ATM use from the Environmental Court and obtained said approval in January 1998. However, when the Appellant applied for a zoning permit in February 1998, it did not include an ATM in the uses proposed nor did Appellant 17 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 appeal the permit that it received. Thereafter, Appellant placed a cash dispensing machine on the Property. In three and a half years of operation, there has never been a full service ATM on the Property and Appellant has no intention of ever placing an ATM on the Property. Under the Regulations, Appellant's conditional use and site plan approvals of the ATM have expired. Appellant cites Franklin County v. City of St. Albans in support of its claim that it has not abandoned the ATM use. In that case, the Franklin County jail housed overnight prisoners until September 1981. Franklin County v. City of St. Albans, 154 Vt. 327, 328 (1990). From that time, it was used solely for daytime lockup. Id. As of 1977, the St. Albans zoning regulations did not permit jails in that zoning district, thereby making the jail a non -conforming use. Id. In February 1988, the jail sought to resume the housing of overnight prisoners and the City of St. Albans denied the request. Id. at 329. The Supreme Court held that "the use of the jail changed significantly in 1981, but the jail did not disappear. A reduction in the level of activities does not imply abandonment." Id. at 330. In the present case, Appellant lacks a zoning permit for an ATM and there has never been an ATM on the Property in the three and a half years of operation. Further, the Vice President of Appellant testified that the cash dispensing machine satisfies the needs of Appellant's customers and therefore Appellant does STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 not ever intend to place an ATM on the Property. This combination of evidence of expiration of approvals of the ATM use, failure to ever place the ATM on the Property and intent to abandon the ATM use demonstrates that Appellant no longer has approval of the ATM use. Appellant only has approval for a convenience store and deli with gasoline sales and three fueling positions. Appellant's proposed addition of a fourth fueling position alone results in an increase in traffic. The Property is located in Traffic Overlay District One and consists of 79,180 square feet. Any use of the Property is permitted to generate a maximum peak hour volume of 29.69 vte's. See the Regulations, Section 21.303. The Trip Generation Manual, 61' Edition, published by the Institute of Traffic Engineers estimates that the current use of the Property actually generates 57.66 vte's in the p.m. peak hour. See the Regulations, Section 21.201. The Trip Generation Manual predicts that the conversion of the Property to a convenience store with four fueling positions will result in the generation of 76.88 vte's in the p.m. peak hour. Therefore, Appellant proposes an increase in traffic volume above a level that already fails to comply with the standards for Traffic Overlay District One. This Court "may approve peak hour traffic volumes above the normal standards for a pre-existing lot" only if the Court "determines that other site improvements will 19 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 produce a net benefit for traffic flow in the vicinity." See the Regulations, Section 21.50. Appellant proposes no such site improvements. Further, the Property, with only three fueling positions and no ATM, is already generating more traffic than was predicted by the ITE Trip Generation Manual and other sources at the time of the original approval of the Property, or 79 vte's, and by the ITE Trip Generation Manual for the proposed uses. See Exhibit O, page 5. The Court may approve estimates from other sources, including local traffic counts, if the above source does not contain data for a specified use or if a use contains unique characteristics that cause it to differ from national traffic estimates. See the Regulations, Section 21.301. Based on the traffic counts upon which the Court relies, the uses that currently exist on the Property actually generate an average of 83 vte's in the p.m. peak hour. The addition of the fourth fueling position, air dispenser and pay phone as well as the relocation of the ice machine to a location outside the building will generate an additional 10 to 19 vte's above the 83 vte's that the current uses generate. In considering both what the Trip Generation Manual predicts and what the City's expert and traffic counts predict, Appellant proposes an increase in traffic volumes above a level that already exceeds the maximum levels of Traffic Overlay District One. The Court may not approve such an increase 20 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 without first determining that Appellant proposes site improvements that will produce a net benefit for traffic flow in the vicinity. See the Regulations, Section 21.50. Appellant has not proposed any such site improvements. Both experts testified that the site is generally well designed. However, there are improvements that Appellant could make to the site which would produce a benefit for traffic flow in the vicinity. The Spear Street or western entrance to the Property is required by Appellant's zoning approvals to be entrance only. However, customers can and do exit from that driveway which can potentially inhibit traffic that flows from Spear Street onto Williston Road, east and west bound, and onto East Avenue. Both experts testified that this driveway requires additional "do not enter" and one way signs to make it very clear that customers are not permitted to exit from the Property onto Spear Street. In addition, narrowing the driveway would make it more apparent to customers on the Property, that only one direction of traffic is permitted on that driveway. Appellant argues that the addition of the fourth fueling position is a site improvement in and of itself because customers will no longer have to maneuver from the fourth fueling position to one of the remaining three once they realize that the fourth fueling position does not function. However, as stated above, there are other ways to inform customers that the fourth fueling 21 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 position does not function and which would prevent customers from having to maneuver their vehicles. Also, the addition of the fourth fueling position would increase the number of turning movements into and out of the Property. Finally, even if the addition of the fourth fueling position were the only method of addressing the on -site circulations problems, that remedy does not address problems of traffic flow on roads in the vicinity of the Property, as required by Section 21.50 of the Regulations. Appellant's application for an increase in peak hour traffic volumes is DENIED. Appellant proposes to relocate an ice dispenser from inside the building to location outside on the northwestern corner of the convenience store building. However, the Court is required to give consideration to, and may impose conditions on, the screening of outside storage areas. See the Regulations, Section 26.102(d). While there is some landscaping nearby this proposed location, the ice machine will be evident from many areas of the Property and, in the winter, from Williston Road. Appellant's proposed ice machine location is DENIED because Appellant has not proposed adequate landscaping. Appellant has proposed six possible locations for an air dispenser. Four of these locations, A, B, C and D, are DENIED because they either interfere with customer parking spaces or with on -site traffic flow. 22 CONCLUSION For all the reasons set forth above, the City of South Burlington requests that the Court deny Appellant's appeals of the Development Review Board's decision denying conditional use and site plan approvals. DATED at Burlington, Vermont this 9tn day of August 2002. son950.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Its attorneys s ' r �1(JV��1 0_. Amanda S. E. Lafferty 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* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE ('ALSO ADMITTED IN N.Y.) June 13, 2002 William E. Simendinger, Esq. Sarvak & Simendinger 32 San Remo Drive South Burlington, VT 05403 Re: Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Dear Bill: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN I am writing in connection with the above -referenced matter to confirm that you will make Thomas Adler and David Simendinger available for depositions at the offices of Stitzel, Page & Fletcher, P.C. on June 19, 2002. I will depose Mr. Adler at 10:00 a.m. and David Simendinger immediately after the completion of Mr. Adler's deposition (or possibly after a lunch break). I will arrange for the Court Reporter for these depositions. I will make Roger Dickinson available for deposition at the offices of Stitzel, Page & Fletcher, P.C. on June 20, 2002, at 10:00 a.m. You have agreed to arrange for the Court Reporter for Mr. Dickinson's deposition. In addition, as provided in the Notices of Deposition dated June 7, 2002, with which I served you, Mr. Adler and Mr. Simendinger are directed to make available at the depositions all writings, documents, photographs, maps, surveys and reports in his possession containing information pertaining to the property of Timberlake Associates located at 801 Williston Road in South Burlington, Vermont. If I do not hear otherwise from you, I will assume that you are in agreement with the information provided herein and that no other notice is required for the depositions of Mr. Adler and Mr. Simendinger and the information they are to William E. Simendinger, Esq. June 13, 2002 Page 2 make available at said depositions. If you have any questions, please do not hesitate to call. Thank you. Sincerely, } Amanda S. E. Lafferty ASEL/jp CC: Raymond J. Belair son4850.cor STEVEN F. STITZEL PATTI R. PAGE* ROBERT E.FLETCHER JOSEPH S. McLEAN TIMOTHY M. EUSTACE (*ALSO ADNUTIED IN N.Y.) STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) FAX (802) 660-2552 or 660-9119 E-MAI L(FIRM255 5 @FI RMSPF. CO M) WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 June 10, 2002 Jackie Stevens, Acting Clerk Vermont Environmental Court 255 North Main Street, Suite 2 Barre, Vermont 05641 Re: Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Dear Jackie: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Enclosed for filing please find a Certificate of Service evidencing service of Responses to Appellant's Requests to Admit and Responses to Appellant's Interrogatories and Requests to Produce on Appellant's attorney in connection with the above -referenced matter. Thank you. Sincerely, /,% /1 Amanda S. E. Lafferty ASEL/jp Enclosures CC: Raymond J. Belair f ,. William E. Simendinger, Esq. Son4842.cor STATE OF VERMONT ENVIRONMENTAL COURT IN RE: APPEAL OF ) DOCKET NO. 204-12-01 Vtec TIMBERLAKE ASSOCIATES ) CERTIFICATE OF SERVICE I, Amanda S. E. Lafferty, hereby certify that I served Responses to Appellant's Interrogatories and Requests to Produce and Responses to Appellant's Requests to Admint, dated June 10, 2002, upon Appellant's attorney, William E. Simendinger, Esq., at Sarvak & Simendinger, 32 San Remo Drive, South Burlington, VT 05403, via U.S. mail, postage prepaid, on June 10, 2002. DATED at Burlington, in the County of Chittenden and State of Vermont, this 10th day of June, 2002. Son934.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: Stitzel, Page & Fletcher, P.C. Its Attorneys Amanda S. E. Lafferty 1 STEVEN F. STITZEL PATTI R. PAGE* ROBERT E.FLETCHER JOSEPH S.McLEAN TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y.) STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) FAX (802) 660-2552 or 660-9119 E-MAIL(FIRM2555@FIRMS PF.COM) WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 June 10, 2002 William E. Simendinger, Esq. Sarvak & Simendinger 32 San Remo Drive South Burlington, Vermont 05403 Re: Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Dear Bill: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Please find enclosed Responses to Appellant's Interrogatories and Requests to Produce and Responses to Appellant's Requests to Admit in connection with the above - referenced matter. Sincerely, ,n �ry r Amanda S. E. Lafferty ASEL/jp / CC: Raymond J. Belair Son4843.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 IN RE: APPEAL OF ) Docket No. 204-12-01 Vtec TIMBERLAKE ASSOCIATES ) RESPONSES TO APPELLANT'S REQUESTS TO ADMIT NOW COMES the City of South Burlington (the "City" herein), by and through its attorneys, Stitzel, Page & Fletcher, P.C., and responds to Appellant's Interrogatories, as follows: 1. That the improvements proposed by applicant's conditional use permit amendment and site plan amendment, which are the subject of this appeal (hereinafter "the project") complies with the area, density and dimensional requirements under the City of South Burlington zoning requirements, including: a) minimum lot size; Admitted. b) minimum lot frontage; Admitted. c) maximum lot coverage; Admitted. d) minimum setback requirements. Admitted. 2. That the project complies with all height requirements imposed by the City of South Burlington zoning regulations. Admitted. 3. That the project will not adversely affect: a) The capacity of existing or planned municipal facilities; Admitted. b) The essential character of the area affected by the project; Admitted. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET P.0 BOX 1507 BURLINGTON, VERMONT 05402.1507 c) Traffic on roads and highways in the vicinity; Denied. See the City Development Review Board's decision dated December 4, 2001. d) Distances from adjacent or nearby uses; The City Zoning Regulations do not require a determination that the proposed use will not adversely affect distances from adjacent or nearby uses. e) Parking; The City Zoning Regulations do not require a determination that the proposed use will not adversely affect parking. f) Loading facilities. The City Zoning Regulations do not require a determination that the proposed use will not adversely affect loading facilities. g) Utilization of renewable energy resources; Admitted. h) General public health and welfare. Denied. See responses to Requests to Admit 3(c), 5, 10(a), (b), 14. 4. That the project provides for appropriate and adequate pedestrian access and circulation. Admitted. 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1607 BURLINGTON, VERMONT 05402-1507 5. That the project provides for appropriate and adequate vehicular access and circulation. The City's response to this request depends, in part, upon the proposed location of the air pump. Since the City is not sure where Timberlake Associates proposes to locate this air pump, the City lacks sufficient knowledge and information regarding this criteria to admit or deny. 6. That the project provides for appropriate and adequate parking. Admitted. However, as stated in the City Development Review Board's decision dated December 4, 2001, the handicapped parking space should be re -striped in order to comply with the proposed site plan. 7. That the project provides for appropriate and adequate landscaping and screening and that the landscaping for the project proposed for the lot in question meets or exceeds all pertinent zoning and planning requirements for site plan approval and conditional use approval. The City admits that the landscaping and screening proposed for the project is adequate under the City Zoning Regulations. However, as noted in the City Development Review Board's decision dated December 4, 2001, the landscaping that currently exists on the property does not comply fully with Appellants' approvals. 3 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1607 BURLINGTON, VERMONT 05402-1507 8. That the project provides for appropriate and adequate: a) Drainage; Admitted. b) Fire protection; Admitted. c) Lighting; Admitted. d) Aesthetics. See response to Requests to Admit 3(b), 7, 10(d) and (e) . 9. That the project complies with all standards or levels of performance required by the City of South Burlington zoning regulations including, but not limited to, the following: a) Noise; Admitted. b) Vibration; Admitted. c) Smoke and exhaust; The Performance Standards contained in Appendix B of the City of South Burlington Zoning Regulations do not specifically address smoke and exhaust. d) Dust; The Performance Standards contained in Appendix B of the City of South Burlington Zoning Regulations do not specifically address dust. e) Odors; Admitted. f) Air pollution; Admitted. g) Heat and cold; e3 II STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1607 The Performance Standards contained in Appendix B of the City of South Burlington Zoning Regulations do not specifically address cold. Admitted as to heat. h) Dampness; The Performance Standards contained in Appendix B of the City of South Burlington Zoning Regulations do not specifically address dampness. i) Radioactive radiation; Electromagnetic disturbance; Light; Direct and indirect glare; Admitted. Admitted. Admitted. Admitted. Liquid or solid refuse or waste; Admitted. n) Hazards relating to fire, explosions, noxious odors or gases, or other dangerous or injurious substances or activities; Admitted as to fire and explosions. The Performance Standards contained in Appendix B of the City of South Burlington Zoning Regulations do not specifically address the remaining standards. o) Traffic generation; Denied. Moreover, the Performance Standards contained in Appendix B of the City of South Burlington Zoning Regulations do not specifically address traffic generation. A STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402.1507 p) Any other requirements known by you. None. 10. Admit that the following are adequate and that no special or additional conditions or safeguards are needed for: a) Traffic access; Denied. See City Development Review Board's decision dated December 4, 2001. b) Circulation; See Response to Requests to Admit 4 and 5. c) Parking; See response to Request to Admit 6. d) Landscaping; See response to Request to Admit 7. e) Screening; See response to Request to Admit 7. f) The utilization of renewable energy resources; Admitted. g) Any other aspects of the project. Currently, several violations of the Zoning Regulations exist on the property. 11. That the project does not require any variances. Admitted. 12. That all handicap requirements are met by the project. .] The City admits that the proposed project will comply with the handicap requirements of the City Zoning Regulations if the handicap parking space is striped as proposed. 13. That the project complies with all applicable codes and standards on the design and location of structures and service areas. The City assumes that the term "service areas" refers to areas for the screened storage of dumpsters and other trash receptacles. The City admits that the location of the structures and service areas as proposed for this project will comply with the City Zoning Regulations. However, as stated in the City Development Review Board's decision dated December 4, 2001, there is currently a dumpster on the property that is not located in the approved screened dumpster area. 14. That the project will not increase peak hour traffic volume above that currently generated by the existing use as calculated by ITE 5th Edition. Denied. See City Development Review Board's decision dated December 4, 2001. 15. That the use contemplated by this project does not contain unique characteristics that cause it to differ from national traffic estimates. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET FO BOX 1507 BURLINGTON, VERMONT 05402-1507 7 The City lacks sufficient knowledge and information regarding this request to admit or deny. Dated in Burlington, Vermontot-hii day ofJune, 2002. M J. Belair Subscribed and sworn to before me this day of June 2002. As to objections: Amanda S. E. Lafferty, Espy Stitzel, Page & Fletcher, P.C. 171 Battery Street Burlington, VT 05401 Attorneys for the Defendants E:\WPDOC\Lit\son929.litrespadmit STITZEL, PAGE & PLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 �6t�y Public/ Co. ission expires: 2/10/03 9 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PA BOX 1507 BURLINGTON, VERMONT 06402-1507 STATE OF VERMONT ENVIRONMENTAL COURT IN RE: APPEAL OF ) Docket No. 204-12-01 Vtec TIMBERLAKE ASSOCIATES ) RESPONSES TO APPELLANT'S INTERROGATORIES AND REQUESTS TO PRODUCE NOW COMES the City of South Burlington (the "City" herein), by and through its attorneys, Stitzel, Page & Fletcher, P.C. , and responds to Appellant's Interrogatories, as follows: Interrogatory 1. Please identify the person who answered or helped to answer these interrogatories and requests to produce. If more than one person contributed, identify the particular area as to which each contributed. Response: Raymond Belair. Interrogatory 2. Identify all reports, studies, or other documents which discuss, reference or address in any way the Exxon Station at 801 Williston Road, South Burlington which are in your possession or control. Response: All reports, studies and other documents which are in the possession of the City are public records and Appellants do not have to conduct discovery in order to learn of their existence. See V.R.C.P. 26(b)(1)(allowing discovery to be limited where requested information is "obtainable from some other source that is more convenient, less burdensome or less expensive.") Moreover, many of these documents are already in Appellants, possession. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 Interrogatory 3. Identify every reason why you believe that the application amending the conditional use permit and site plan approval, which is the subject of this appeal (hereinafter "the project") ought not to be approved. Explain. Response: See City Development Review Board decision dated December 4, 2001. Interrogatory 4. Identify every reason why you believe the project ought to be approved. Response: The City does not agree that the project as Appellants proposed to the Development Review Board may or should be approved. Interrogatory 5. Identify all communications between you and with either Timberlake and/or any person about the Exxon Station, and identify: a. The date; b. The persons involved; C. Whether the communication was oral or written; d. The substance of the communications. Response: Objection. Attorney -Client privilege, overbroad. The City will only provide this information with regard to the proposals currently before the Environmental Court. Communications not privileged are: William and/or David Simendinger. I cannot recall the specific date(s), but oral communications regarding the project occurred between June 2001 and December 2001. Written communications in the possession of the City are public records and Appellants do not have to conduct discovery in order to learn of their existence. See V.R.C.P. 26(b)(1)(allowing discovery to be limited where requested information is "obtainable from some other source that is more convenient, less burdensome or less expensive.") Moreover, many of these documents are already in Appellants, possession. 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 Sandy Dooley. I received an email dated January 18, 2002, from her to John Dinklage regarding the City's participation in this appeal. Juli Beth Hoover, Sarah MacCallum and Stephanie Smith. I cannot recall the specific dates, but oral communications regarding the proposed project occurred between June 2001 and December 2001. Interrogatory 6. Identify each person that has knowledge about this matter, as to each set forth the subject matter and expected substance of his or her knowledge. Response: Objection. Overbroad - the City does not have knowledge of every individual that has knowledge of this matter. Without waiving said objection, the City responds as follows: Raymond Belair, Stephanie Smith, Sarah MacCallum, John Dinklage, Gayle Quimby, James Cameron, Lawrence Kupferman, Roger Farley and Mark Boucher have knowledge about this matter to the extent that each reviewed Appellants' proposals to the Development Review Board. Roger Dickinson has knowledge about this matter to the extent that he reviewed and commented on a letter dated August 2, 2001, from Tom Adler of Resource Systems Group, Inc. to William Simendinger and to the extent that he reviewed the site plan submitted by Appellants to the City Development Review Board. Interrogatory 7. Identify every way you believe the project is non -conforming with the zoning ordinance, bylaws or town plan. Response: See City Development Review Board decision dated December 4, 2001. Interrogatory 8. Identify every way you believe the project will increase the non-conformance of 801 Williston Road. 3 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171RATTERYSTREET P.O BOX 1507 BURLINGTON, VERMONT 05402.1507 Response: If the project is developed as proposed and the violations of the City Zoning Regulations that exist on the property are thereby corrected, the project will still have the effects described in the City Development Review Board decision dated December 4, 2001. Interrogatory 9. With respect to each person you expect to call as an expert witness at trial, please identify and state: testify; a. Name, business address, and phone number; b. Occupation, title or position, and employer; C. Educational background and relevant experience qualifying him as an expert; d. Subject matter on which he is expected to testify; e. Substance of facts to which he is expected to f. Any reports, documents, resumes, or letters; g. Dates and times the expert was at the Exxon station; and h. All opinions the expert has relative to this case. Response: a. Roger Dickinson, P.E. 14 Morse Drive Essex Junction, Vermont 05452 878-4450 b. Certified Professional Traffic Operations Engineer at Lamoureux & Dickinson Consulting Engineers, Inc. C. See attached resume. d. The proposed site plan for the property located at 801 Williston Road in the City of South Burlington. The impact the proposed use and site plan for the property located at 801 Williston Road in the City of South Burlington will have on traffic. e. The City does not know at this time the substance of the facts to which Mr. Dickinson is expected to testify. The City will supplement its responses as soon as it receives this information. e3 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTENYSTREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 f. Letter dated September 12, 2001, from Roger Dickinson to Raymond Belair. g. The City does not know at this time the dates and times that Mr. Dickinson has visited the Exxon station located at 801 Williston Road. The City will supplement its responses as soon as it receives this information. h. The City does not know at this time the opinions that Mr. Dickinson has formed with regard to this matter. The City will supplement its responses as soon as it receives this information. Interrogatory 10. Have you retained or employed any experts who are not expected to be called as witnesses at trial? If so, please give the name, business address, occupation, and present title or position of each. Identify all reports prepared by these experts. Response: No. Interrogatory 11. Identify all fact witnesses who have relevant evidence about this matter. Response: Objection. Attorney work product, overbroad (the City does not have knowledge regarding all individuals who have relevant evidence about this matter). Without waiving said objections, see the City's response to Interrogatories 5 and 6. Interrogatory 12. Identify all conditions which you feel ought to be imposed if the application is allowed. Response: As the Administrative Officer, I do not have any feelings regarding conditions that ought to be imposed on an approval of Appellants' proposal. N Interrogatory 13. In connection with the Requests to Admit filed with these interrogatories and requests to produce, for each request denied, state the basis for that denial. Response: See the City's responses to Appellants' Requests to Admit. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 R STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 REQUESTS TO PRODUCE 1. All reports, studies, or other documents identified in response to any of the interrogatories, including but not limited to traffic studies or counts, circulation studies, accident studies, and accident reports. 2. All photographs, diagrams, or other graphic representations identified in any response to these interrogatories. 3. Reports of any experts you expect to testify at trial, and of any experts retained or employed by you who are not expected to testify at trial. Road. 4. Produce your zoning and permit files for 801 Williston 5. Produce all documents which support any denial of appellant's requests to admit. Objection. V.R.C.P. 34(b) requires that Appellants specify a reasonable time, place, and manner of making the inspection of these documents. These requests do not include this information and the City is not willing, nor is the City required, to pay for copies of documents which are available to any member of the public. Appellants may contact the City Administrative Officer to arrange a time when Appellants may come to the City offices to review the relevant files and if necessary, make copies. NOTE: YOU ARE HEREBY CALLED UPON TO SUPPLEMENT YOUR ANSWERS TO THESE INTERROGATORIES AS ADDITIONAL KNOWLEDGE OR INFORMATION 7 SHALL, FROM TIME TO TIME, COME TO YOUR ATTENTION PERTAINING THERETO. Dated in Burlington, Vermont th day of June, 2002. a and J. Belair Subscribed and sworn to before me this day of June 2002. ,1,11 tary P6011is ,commission expires: 2/10/03 As to objections: Amanda S. E. Lafferty, 16s4. Stitzel, Page & Fletcher, P.C. 171 Battery Street Burlington, VT 05401 Attorneys for the Defendants son928.1 i trespi nterr STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 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 660-91 19 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPRCOM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y.) June 7, 2002 VIA FACSIMILE & FIRST CLASS MAIL William E. Simendinger, Esq. Sarvak & Simendinger 32 San Remo Drive South Burlington, Vermont 05403 Re: Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Dear Bill: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Please find enclosed Notice of Depositions for Thomas Adler and David Simendinger in connection with the above -referenced matter. Sincerely, Amanda S. E. ASEL/jp cc: Raymond J. Belair Son4839.corSon483 9 . cor Lafferty STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT IN RE: APPEAL OF ) Docket No. 204-12-01 Vtec TIMBERLAKE ASSOCIATES ) NOTICE OF DEPOSITION Please take notice that at 11:00 am on the 181h day of June 2002, at the offices of Stitzel, Page & Fletcher, P.C., 171 Battery Street, Burlington, VT 05401, the Appellee, City of South Burlington, will take the deposition of David Simendinger, upon oral deposition pursuant to the Vermont Rules of Civil Procedure, before a Notary Public or before some other officer authorized by law to administer oaths. The deponent, David Simendinger, is directed to make available at the deposition all writings, documents, photographs, maps, surveys and reports in his possession containing information pertaining to the property of Timberlake Associates located at 801 Williston Road in South Burlington, Vermont. DATED at Burlington, in the County of Chittenden and State of Vermont this 7th day of June 2002. son931.lit CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Its Attorneys Amanda S. E. Lafferty r: STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET RO BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT IN RE: APPEAL OF ) Docket No. 204-12-01 Vtec TIMBERLAKE ASSOCIATES ) NOTICE OF DEPOSITION Please take notice that at 9:30 am on the 181h day of June 2002, at the offices of Stitzel, Page & Fletcher, P.C., 171 Battery Street, Burlington, VT 05401, the Appellee, City of South Burlington, will take the deposition of Thomas Adler, upon oral deposition pursuant to the Vermont Rules of Civil Procedure, before a Notary Public or before some other officer authorized by law to administer oaths. The deponent, Thomas Adler, is directed to make available at the deposition all writings, documents, photographs, maps, surveys and reports in his possession containing information pertaining to the property of Timberlake Associates located at 801 Williston Road in South Burlington, Vermont. DATED at Burlington, in the County of Chittenden and State of Vermont this 7th day of June 2002. CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Its Attorneys ,- Amanda S. E. Laffert / son932.1it 1 STEVEN F. STITZEL PATTI R. PAGE* ROBERT E.FLETCHER JOSEPH S. McLEAN TIMOTHY M. EUSTACE ('ALSO ADMITTED IN N.Y) STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) FAX (802) 660-2552 or 660-9119 E-MAIL(FIRM2555@FIRMSPF. COM) WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 June 7, 2002 Jackie Stevens, Acting Clerk Vermont Environmental Court 255 North Main Street, Suite 2 Barre, Vermont 05641 Re: Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Dear Jackie: Enclosed for filing please find a Certificate of Service evidencing service of Notice of Depositions on Appellant's attorney in connection with the above - referenced matter. Thank you. Sincerely, Amanda S. E. Lafferty ASEL/jp Enclosures cc: Raymond J. Belair William E. Simendinger, Esq. Son4840.cor AMANDA S.E. LAFFERTY EDWARD G. ADRIAN STATE OF VERMONT ENVIRONMENTAL COURT IN RE: APPEAL OF ) DOCKET NO. 204-12-01 Vtec TIMBERLAKE ASSOCIATES ) CERTIFICATE OF SERVICE I, Amanda S. E. Lafferty, hereby certify that I served Notice of Depositions to Thomas Adler and David Simendinger, dated June 7, 2002, upon Appellant's attorney, William E. Simendinger, Esq., at Sarvak & Simendinger, 32 San Remo Drive, South Burlington, VT 05403, via U.S. mail, postage prepaid, on June 7, 2002. DATED at Burlington, in the County of Chittenden and State of Vermont, this 7th day of June, 2002. Son933.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: Stitzel, Page & Fletcher, P.C. Its Attorneys Amanda S. E. Lafferty 1 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 August 1, 2003 Raymond Belair City of So. Burlington 575 Dorset Street So. Burlington, VT 05403 Dear Ray: Kathryn A. Sarvak, Esq. ext. 347 Please consider this letter to withdraw our two appeals relative to 801 Williston Road pending before the South Burlington Development Review Board. Thank you. VV 11iiaL11 1.:. 0l<l<> I%'IJ<uiuscl, 1:OLJ. C_,Dgmcros mid SeningsUkellon\My Doc—Es\2003dom�Maelair.doc MEMORANDUM TO: Development Review Board FROM: Raymond,). Belair, Administrative Officerf DATE: ,June 27, 2003'` RE: Appeal of Timberlake Associates - 801 Williston Road The appellants have requested that this be continued to a future meeting to provide time for the court to settle this matter without the need of this hearing (see enclosed letter). I recommend that this hearing be continued to the 8/19f03 meeting. m 32 San Remo Dive June 18,2003 Re: 801 WHistor Rd., S. Burington, VT 05403 Ray Belair City of S. Buriington Please postpone the hearing dated Julyl until the environmenta9 court has issued its order. Sincerely, �UaW Simendinger Presinent MEMORANDUM TO: Development Review Board FROM: Raymond.J. Belair, Administrative Officer DATE: ,June 27, 2003 RE: Appeal of Timberlake Associates - 801 Williston Road The appellants have requested that this be continued to a future meeting to provide time for the court to settle this matter without the need of this hearing (see enclosed letter). I recommend that this hearing be continued to the 8/19f03 meeting. P. 1 32 Rem o Fax-Q34 June 18, 2003 Re: 801 Williston Rd., S. Burlington, VT 05403 Bay Belair City of S. Burlington Please postpone the raring dated Julyl untl the environmental court has issued its order. Sincerely, David Simend;ng r Pmsicent PUBLIC HEARING SOUTH BURLINGTON DEVELOPMENT REVIEW BOARD Legal NOt Ce The South Burlington plat. application #SD-03- D e v e l o p m e n t R e v i e.w 24 of Wedgwood - Corpo- Board will hold -"a public ration, Inc. to amend a hearin in, the Confer- PRD consisting of an 18 ence Room at the. South hole golf course -and. 295 Burlington , City Hall, 575 residential units. The 'Dorset Street, South Bur- amendment consists of lington; Vermont on increasing. the number of Tuesday;. July 1, 2003. at residential units on NI'- 7:30 PM to consider the cholas Circle form 4 to 9. following: 8. Reopened pub- t. Conditional., use lic hearing for preliminary application. #CU-03-10 of plat application. #SD43- Jason & Kerry Anderson 27 of. Wedgewood. Corpo- seeking approval . under ration, . Inc. to amend , a Section 14.10., Condi- PRD consisting of 295 ti.onal Use Review, of residential units and an '18 the South Burlington hole golf course. The Land Development Regu- amendment consists of lation8, for permission to adding landscaping con - increase the allowable touring, (berms) between Dorset Street and Old maximum height - of a Schoolhouse Road, new single-family dwel- ling from 25 feet to 28 above average .pre, 77. . Reopened pub - construction construction grade at 9 n 8 hearifor -preliminary plat, application . *SD-03- Pleasant Avenue. 28 of Wedgwood Corpo- 2. Appeal #AO-03- ration, Inc. to amend a PRD., consisting of 29.5 02. of Timberlake Asso- residential units and an crates appealing a deck. 18 hole golf course: The sion of the dministra- amendment consists' of Live Officer regarding the adding- _landscaping con - issuance of .Notice of touring (berms) between Violation #NV-03-11 ,al= Dorset Street and Nirho- leging . that the, appellant Ias Circle. . is in violation of the Land Development R,egufa- Copies of. the . applica- tions for conducting land lions are available for development at 801• Wil- public.. Inspection at the liston Road w;ithout a South Burlington. City Zoning Permit... Hall .between 8:00 AM and..4:30 PM, Monday 3. Reappro6al of . through Friday.' final plat application #SD- 02-83 of Lawrence Chefti John Dinkiage, Chairman for. a Planned Residential South Burlington Deve- Development . (PRD) con. toprnent Review Board sisting of 8 new duplex units . and 1 existing sing- le-family unit 'on- 4,98 June 14, 2003 acres at 725 Hinesburg Road. 4. Reopened -pub- fic . hearinq for. preliminary Plat application #SD=03- 25 of Wedgewood Corpo- ration, Inc. to amend a PRD 'consisting of an 18 hole golf course and 295 residential. units. The amendment consists of increasing the number of - units on Old School- house Road from 11 , to 15, 5. Reopened pub- lic hearing for 'preliminary STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURUNGTON, VERMONT 05402-1507 STEVEN F. STITZEL PATTI R. PAGE* ROBERT E.FLETCHER IOSEPH S. McLEAN TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y) VIA HAND DELIVERY (802) 660-2555 (VOICE/TDD) FAX (802) 660-2552 or 660-9119 E-MAIL(FIRM2555 @FIRMSPF. COM) WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 May 21, 2002 13 i7— d i William E. Simendinger, Esq. Sarvak & Simendinger 32 San Remo Drive City of South Burlington, Vermont OS403 `S�-a�. Re: Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Dear Bill: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN I have enclosed the City of South Burlington's First Set of Interrogatories and Requests to Produce in connection with the above -referenced matter. Sincerely, Amanda S. E. Lafferty ASEL/jp CC: Raymond J. Belair Son4823.cor STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT IN RE: APPEAL OF ) DOCKET NO. 204-12-01 Vtec TIMBERLAKE ASSOCIATES ) CITY OF SOUTH BURLINGTON'S FIRST SET ON INTERROGATORIES AND REQUESTS TO PRODUCE NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and submits the following interrogatories and requests to produce to the Appellant, Timberlake Associates. INSTRUCTIONS 1. Every interrogatory shall be answered separately and under oath. If any answer is based upon information and belief rather than personal knowledge, it shall state that it is made on that basis. 2. If the complete answer to an interrogatory is not known, so state and answer as fully as possible every part of the interrogatory to which an answer is known. 3. If an interrogatory seeks the identification of facts, persons having knowledge of facts, or documents supporting a particular allegation or contention, provide all information known to you at the present time, to be supplemented as further information becomes known. 4. These interrogatories and requests for production shall be continuing to the full extent permitted by law. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 5. If any information is withheld under a claim of privilege, immunity or qualified immunity, including, without limitation, the work product doctrine or attorney/client privilege, the following information shall be provided: (a) the basis upon which the privilege, immunity or qualified immunity is claimed; (b) the identity of the person who is the source of the information; (c) the identity of the person to whom the information has been communicated; (d) whether the information, or any part thereof, is based upon or evidenced by or is contained within any document(s) and the identity of all such documents; and (e) the subject matter of the information sufficient for its identification. 6. Each interrogatory that seeks information relating in any way to communications to, from, or within a business, public office, individual and/or corporate entity is hereby designated to mean, and should be construed to include, all communications, to, from, and/or between representatives, agents, officers, directors, managers, employees, independent contractors of an entity or individual, and/or anyone acting on their behalf. DEFINITIONS 1. As used in these discovery requests, "you" and "your" means the Appellants Timberlake Associates. 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 2. As used in these discovery requests, "City" means the City of South Burlington, and any and all of its agents, employees and contractors. INTERROGATORIES 1. Please state the name and address of the person answering these interrogatories. 2. Please identify all documents, written or electronic, in the possession of Timberlake Associates or in the possession of an employee or officer of Timberlake Associates, whether or not such documents will be presented as exhibits, including all plans, maps, surveys, records, reports, recordings, photographs and studies, pertaining to: a. Traffic on roads and highways in the vicinity of 801 Williston Road in South Burlington. b. Traffic generated by the current use for the property located at 801 Williston Road in South Burlington. C. Traffic generated by the proposed use for the property located at 801 Williston Road in South Burlington. d. Pedestrian access to and on the property located at 801 Williston Road in South Burlington. e. Vehicular access to and on the property located at 801 Williston Road in South Burlington. f. Vehicular circulation on the property located at 801 Williston Road in South Burlington. 3 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 3. Please identify each person whom you expect to call as an expert at trial. For each expert: a. Please state the subject matter on which each expert is expected to testify. b. Please state the substance of facts and opinion to which each expert is expected to testify. C. Please state the summary of the grounds for each opinion. 4. Please identify any and all persons, excluding City of South Burlington officials or employees, whom you have contacted regarding Timberlake Associates' proposal to add a fourth fueling position to the property located at 801 Williston Road in South Burlington. For each person please state the date of each conversation and the substance of each conversation. 5. Please identify any and all changes in factual or regulatory circumstances that have occurred since the last approval that Timberlake Associates obtained from the City of South Burlington for 801 Williston Road in South Burlington. Please include the date and substance of the approval that Timberlake Associates last obtained from the City. For each change please state: a. the date that Timberlake became aware of the change; b. whether the change was beyond the control of Timberlake Associates; 51 C. if the change was beyond the control of Timberlake Associates, why and how the change was beyond the control of Timberlake Associates, and d. why the change justifies the proposals made by Timberlake Associates in this appeal. 6. Please identify any and all changes in the construction or operation of the project located at 801 Williston Road in South Burlington that have occurred since the last approval that Timberlake Associates obtained from the City of South Burlington for said property. For each change please state: a. whether the change was foreseeable at the time that Timberlake Associates obtained the last approval; b. if the change was not foreseeable at the time that Timberlake Associates obtained the last approval, why and how the change was not foreseeable, and C. why the change justifies the proposals made by Timberlake Associates in this appeal. 7. Please identify any and all changes in technology that have occurred since the last approval that Timberlake Associates obtained from the City of South Burlington for 801 Williston Road in South Burlington. For each change please also state: a. the date that Timberlake Associates became aware of the change; and STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 5 b. why the change justifies the proposals made by Timberlake Associates in this appeal. REQUESTS TO PRODUCE 1. Please produce each document identified in Interrogatory) 2 at the offices of Stitzel, Page & Fletcher, P.C., located at 171 Battery Street, Burlington, Vermont, at 9:00 am on June 20, 2002, and permit the City of South Burlington's attorneys to inspect and, if the City finds necessary, to copy said documents. DATED at Burlington, Vermont this 21st day of May 2002. son895.1it STITZEL, PAGE & FLETCHER, PC. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Its attorneys r V�oLVC Oltrf Mo Amanda S. E. Lafferty - 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' E-MAIL(FIRM2555(a�FIRMSPRCOM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY(u)FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE ("ALSO ADMITTED IN N.Y.) May 21, 2002 Jackie Stevens, Acting Clerk Vermont Environmental Court 255 North Main Street, Suite 2 Barre, Vermont 05641 Re: Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Dear Jackie: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Enclosed for filing please find a Certificate of Service evidencing service of Appellee's, City of South Burlington's, First Set of Interrogatories and Requests to Produce in connection with the above -referenced matter. Thank you. ASEL/jp Enclosures CC: Raymond J. Belair V- William E. Simendinger, Son4822.cor Sincerely, Amanda S. E. Lafferty Esq. (via hand delivery) STATE OF VERMONT ENVIRONMENTAL COURT IN RE: APPEAL OF ) DOCKET NO. 204-12-01 Vtec TIMBERLAKE ASSOCIATES ) CERTIFICATE OF SERVICE I, Amanda S. E. Lafferty, hereby certify that I served Appellee's First Set of Interrogatories and Requests to Produce, dated May 21, 2002, upon William E. Simendinger, Esq., at Sarvak & Simendinger, 32 San Remo Drive, South Burlington, VT 05403, by hand delivery, on May 21, 2002. DATED at Burlington, in the County of Chittenden and State of Vermont, this 21st day of May, 2002. Son920.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: Stitzel, Page & Fletcher, P.C. Its Attorneys Amanda S. E. Lafferty 1 Barbara Bull, 05:01 PM +i).001 -0400, Tuesday hearing Page 1 of 1 X-Originating-IP: [63.24.73.88] From: 'Barbara Bull" <bktaurus@msn.com> To: "Julie Hoover" <jbhplanner@madriver.com> Subject: Tuesday hearing Date: Tue, 24 Jul 2001 17:01:00 -0400 X-Mailer: MSN Explorer 6.10.0016.1619 X-OriginalArrivalTime: 24 Jul 2001 22:01:44.0941 (UTC) FILETIME=[3A5069D0:01 C 1 148C] Dear Julie, I would be grateful if you would convey my feelings to the board which hears the Simendinger request for an additional gas pump this evening. As a neighbor on East Terrace I am strongly opposed to enlarging the pumping capacity. We are already in a worsened traffic situation as a result of this development, with cars frequently exiting illegally onto the jughandle, or turning west out of the Williston Rd. exit The decision on the original application, the one finally approved, was to limit the number of pumps and we certainly hope the city abides by that decision. Barbara Bull # 17 East Terrace Get more from the Web. FREE MSN Explorer download: http:/��Iorer.msn.com Printed for Juli Beth Hoover <jbhplanner4madriver.com> 7/24/2001 / AMOUREUX & DICKINSO? ) I 14 Morse Drive Consulting Engineers, Inc. Essex Junction, VT 05452 invoice Ray Belair Planning and Zoning 575 Dorset Street So. Burlington, VT 05403 Project: 01-1 18 801 WILLISTON ROAD Project Principal: RJD Project Manager: JLC Professional Services for the Period: 8/20/01 to 9/16/01 BILLING GROUP: 01 Provide engineering services to examine traffic impacts of proposed expansion. Professional Services 2 DESIGN DRAWING/ANALYSIS 09/12/01 Roger J. Dickinson letter & visited site 09/13/01 Roger J. Dickinson letter to Ray Belair Professional Services Totals Project Totals: Subtotal (802) 878-4450 Fax (802) 878-3135 Invoice #: 20213 Invoice Date: October 05, 2001 Hours Charge 2.50 212.50 1.00 85.00 3.50 $297.50 $297.50 Amount Due This Period: $297.50 Lamoureux & Dickinson • Project: 01-118 Amount Past Due: Total Amount Now Due: Invoice 20213 October 05, 2001 Page 2 of 2 $0.00 $297.50 Billing Summary Current Prior Total Professional Services $297.50 $0.00 $297.50 Reimbursable Expenses: $0.00 $0.00 $0.00 Outside Services: $0.00 $0.00 $0.00 Other Services and Fees: $0.00 $0.00 $0.00 Finance Charges: $0.00 $0.00 $0.00 Total: $297.50 $0.00 $297.50 CITY OF SOUTH H BURLINGTON DE1.FARTMEP,TT OlF' PLAINP,,TING & ZONE TG 575 DORSET STREET SOUTH EURLINGTOIT, VERMONT 05403 (802) 846-4106 EAIa (802) 846-4101 Permit Number SP- PLI ATION FOR SITE PLC REVIEW All information requested on this application must be completed iFz full. Failure to provide the requested information either on this application form or on the site plan will result in your application being rejected and a delay in the review before the Development Review Board. 1) OWNER TER OF RECORD (Name as shown on deed, mailing address, phone and fax #) Timberlake Associates, 32 San Remo Dr., So. Burlington, VT 05 -403 658-9999 ext 233 ffax) 864-6134 2) LOCATION OF LAST RECORDED DEED (Book and page #) 3) APPLICANT (Name, mailing address, phone and fax #) same 4) CONTACT PERSON {Name, mailing address, phone and fax #) David S imendinger same 5) PRO,TECT STREET ADDRESS: 801 Williston Road e5) TAX PARCEL ID 4 (can be obtained at Assessor's Office) 14 9 0 - 0 0 0 3 2 C 7) PROJECT DESCI$IPTION a) Existing Uses on Property (including description and size of each separate use). convenience s• - with •. positions b) Proposed Uses on property (include description and size of each new use and existing uses to remain) . convenience store with gas - 4 fueling positions, air dispenser ice dispenser, pay phone, relocate grease dumpster, entrance sign (over) c) Total building square footage on property (proposed buildings and existing buildings to remain) 900 square feet d) Height of building & number of floors (proposed buildings and existing buildings to remain, specify if basement and mezzanine) n n eN c i- n r - e) Number of residential units (if applicable, new units and existing units to remain) none 4 f) Number of employees & company vehicles (existing and proposed, note office versus non -office employees) 4 g) Other (list any other infor3na-don pertinent to this application not specifically requested above, please note if Overlay Districts are applicable): 21 Ar T F, previously aj)j)r o v e d for bank ATM will be used for fourth fueling -position 8) LOT COVERAGE a.) Building: Existing 2. 8 % Proposed 2. 8 % b) Overall (building, parking, outside storage, etc) Existing 3 4. 5 % Proposed 3 4. 5 % c) Front yard (along each. street) Existing 2 8. 2 °/m Proposed 28. 2 % 9) COST ESTD/fATES a) Building (including interior renovations): S b) Landscaping: $ zero zero c) Other site innprovements (please list with cost): $500 to turn on half of existing pump 10) ESTDAATED TRAFFIC a) Average daily traffic for entire property (in and out): b) A.M. Peak hour for entire property (in and out): eak hour - 63 tries 7 : 3 0 - 8 : 3 0 c) P.M. Peak hour for entire property (in and out): 5: 3 0 - 6 : 3 0 11) PEAK HOURS OF OPERATION: 12) PEAK DAYS OF OPERATION: 5:00 - 6:00 pm Friday 13) ESTIMATED PROJECT COMPLETION DATE: 12 / 2 5 / 01 14) SITE PLAN A1\TD 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. Timberlake Associates, Partner Do not write below this lime DATE OF SUBMISSION: REVIEW AUTHORITY: MI evelopment Review Board ❑ Director, Planning & Zoning I have reviewed this site plan application and find it to be: �Oomplete A ❑ Incomplete Director or Planning & Zoning or Designee 9 City of South Burlington Application to Development Review Board Name of applicant(s) Timberlake Associates Address 32 San Remo Dr. Represented by _ David S i m e n d i n g e r Landowner Timberlake Associates Official Use APPLICATION #(- HEARING DATE FILING DATE FEE AMOUNT Telephone # 6 S 8- 9 9 9 9 ext. 233 Location and description of property 8 01 Williston Road -convenience store W / a s Adjacent property owner(s) & Address M n h i 1 n i l - 81 1 W i 1 1 i S t p nR d Type of application check one: ( ) appeal from of Administrator Officer (includes appeals from Notice of Violation) (-19 request for a conditional use ( ) request for a variance ( ) other I understand the presentation procedures required by State Law (Section 4468 of the Planning & Development Act). Also that hearings are held twice a month (first and third Tuesdays). That a legal advertisement must appear a minimum of fifteen (15) days prior to the hearing. I agree to pay a hearing fee which is to off -set the cost of hearing. Provision of zoning ordinance in question Reason for appeaUapplication Amend conditional use approval to allocate 21 VTE approved for a 4th fueling position. Also adding air and ice dispensers Other doci mentation —I I pa p h o n e Timberlake Assoca es ' Date By : Partner SOUTH BURLINGTON ZONING NOTICE In accordance with the South Burlington Zoning Regulations and Chapter 117, Title 24 V.S.A. the South Burlington Development Review Board will hold a public hearing at the South Burlington Municipal Offices, Conference Room, 575 Dorset Street, South Burlington, Vermont on Tuesday, , at 7:30 P.M. to consider the following: Application of seeking a from Section a of the South Burlington Zoning Regulations. Request is for permission to DE1,17 ELOFTME T REVIEW BOARD MEMG DULY 24, 2001 MEETRi iL Coverage/setbacks: The preliminary plat submittal should include building and overall coverage information for the multi -Family lot. Setback requirements should be met or waivers requested. Dumpsters: The applicant should note the type of screening for the dumpsters on the preliminary plat plan. Any dumpsters proposed for the multi -family units should be shown. Recreation path: The Recreation path Committee reviewed these plans and submitted comments (see enclosed). Other: The open space and multi -family lots should be numbered. The plan should make provisions for mailbox clusters. The applicant should also clarify what is proposed for the proposed 6.8 acre and 36 acre parcels. If either is to be developed, the development must take place in the developable area. The minimum size of the proposed multi -family units should be noted on the preliminary plat application. The preliminary plat application should include street numbers using the E911 addressing system. The preliminary plat survey should be stamped by a licensed surveyor and note base flood elevations. Section 412 of the Subdivision Regulations should also be addressed concerning presen,,ation of site amenities such as trees, drainage ways, historic sites, and other features. Section 417(g) of the Subdivision Regulations should also be addressed concerning potential views and wildlife habitat. A report should be submitted addressing the PUD criteria under Section 26.151 of the Zoning Regulations. 3) & 4) THUB ERLAXE ASSOC. — SITE PLAN & CONDITIONAL USE — ADD FUELWG POSITION & MEIMR SITE AMENDMENTS, 801 WIELLISTON ROAD This project consists of a site plan and conditional use application to amend a previously approved site plan for a 900 square foot convenience store with three (3) fueling positions and a 34 foot by 60 foot canopy. The amendments consist of. 1) adding one (1) additional fueling position, and 2) adding ice dispensers and pay phone, 801 Williston Road. The Planning Commission previously considered the site plan for this property at their December 8, 1998 meeting (minutes enclosed). Site Plan Criteria: Access/Circulation: Access is currently provided via a 24 foot wide egress only curb cut on Williston Road, a 24 foot wide ingress only curb cut on Williston Road, and a 24 foot wide ingress only curb cut on East Terrace. No changes are proposed. The applicant has proposed adding an air pump adjacent to parking space # 1. This will create a circulation problem as only one vehicle at a time may utilize the pump and they may block a parking space or two. Stacking may occur as customers wait for the space to become available or try to park in the egress lane to Williston Road. The applicant should propose a different location for the air pump that will not interfere with circulation DEVELOPMENT REVIEW BOAS JUL`II 24, 200I ME]ZYIKG or parking. Circulation on the site is not adequate. The applicant should also install the "Do Not Enter" sign for the East Terrace entrance. Coverage/Setbacks: Overall coverage will increase from 32.3% to 34 5% (70% max) Building coverage will remain 2. o% (30% max). Front yard coverage along Williston Road will remain 208.2% and front yard coverage along East Terrace will remain 17.8% (30% max). All setback requirements are being met. Farming. A bike rack approved for the property is no longer located on the property. The one required handicapped parking space will need to be re -striped as it is no longer delineated as such on the site. Landscaping: The plans should be revised to depict approved landscaping. Staff noted during a site visit that several of the approved trees are dead. Dumpsters: There is an unscreened dumpster behind the building that must be removed or relocated to the screened dumpster area. Other: The proposed ice dispensers constitute outside display and storage. The January 23, 1996 approval of this project (see enclosed minutes) stated: "As expressly represented by the applicant, there shall be no storage or display of store merchandise outside the building." There are also cars stored on the eastern edge of the lot that should be removed as per the Board's decision. Traffic Overiav District Review: This property is located in Traffic Overlay Zone One which. allows this property to generate a maximum of 29.69 vehicle trip ends (vte's) during the P.M. peak hour. It is estimated that the current use of the property generates 57.66 P.M. peak vte's or 194% more than permitted. The proposed fueling position will generate 19.22 additional P.M. peak vte's. The applicant is therefore proposing a 19.22 or 33% increase above existing conditions which is 258% more vte's than permitted by the Traffic Overlay District. Section 21.50 of the .Zoning Regulations allows the Development Review Board to approve peak hour traffic volumes above the normal standards if the Board determines that other site improvements will produce a net benefit for traffic flow in the vicinity. The applicant is not proposing any site improvements at this time. A traffic study has not been submitted. Staff therefore recommends denial of the application. Conditional Use Criteria: The proposed use does comply with the stated purpose of Commercial One District: "Other uses that would benefit from nearby access to a central business area including clustered residential development and small industrial employers may be permitted if they do not interfere with accessibility and continuity of the cominercial district." The proposed use must not adversely affect: a) the capacity of existing or planned community facilities. No affect expected. El, DEVELOPMENT REVIEW BOARD XE1M® JULY 24, 2001 MIEE T UqG b) the character of the area affected. The proposed outside display area nnay detract corn the character of the area. c) traffic on roads or highways in the vicinity. The proposed use may adversely impact traffic by increasing traffic above the normal standards without producing a net benefit for traffic flow in the vicinity. d) bylaws in effect. The proposed building complies with the bylaws in effect. e) utilization of renewable energy resources. There is no utilization of renewable energy resources to be affected. f) general public health and welfare. No adverse affect expected. 5) ACAD11A REALTY TRUST — SKETCH PLAN — SHOPPING CENTER TER AMENDMENTS, 516 SHE LBURNE ROAD This project consists of sketch plan application to amend a previously approved planned unit development consisting of a 130,441 square foot shopping center. The amendment consists of. 1) razing a 114,771 square foot portion of the building, 2) constructing an 81,800 square foot building, and 3) constructing a 3,000 square foot addition to the remaining portion of the building, resulting in two (2) buildings With a total square footage of 100,470, 516 Shelburne Road. The Development Review Board approved the final plat for this property on February 20, 2001 (minutes enclosed). This property located at 516 Shelburne Road lies within the Cl and C.O. Districts. It is bounded on the north by a retail building and restaurant, on the east by undeveloped land (currently proposed for development), on the south by the 1-189 off ramp, and on the west by Shelburne Road. Access/circulation: Access is provided by one (1) 40 foot curb cut on Shelburne Road and a. shared r.o.w. (Farrell Street) which runs along the north side of the property. Three (3) curb cuts are proposed on Farrell Street (formerly ®'Dell Parkway). The applicant will be required to upgrade Farrell Street from Shelburne Road to the northeast corner of the property to City standards (including street lights). The design details for the upgrading should be the same as was approved for the O-Dell Parkway P.U.D. Circulation on the site is adequate. Coverage/setbacks: Building coverage is 23.3% (maximum allowed is 30%). Overall coverage is being reduced from 92.8% to 62.7% (maximum allowed is 70%). Front yard coverage along Shelburne Road is being reduced from 75% to 36% (maximum allowed is 30%). The front yard coverage along Farrell Street will increase from 67.5% to 69.9% (maximum allowed is 30%). The Board may modify the front yard coverage along Farrell Street under Section 12.406(b) of the zoning regulations. W DEVELOPMENT REVIEW BOARD MEMO November 20, 2001 MEETING e) utilization of renewable energy resources- there is no utilization of renewable energy resources to be affected. f) general public health and welfare - no adverse effect expected 13) AND 14JIMBERLAKE ASSOCIATES — SITE PLAN & CONDITIONAL USE — ADD FUELING POSITION & MINOR SITE AMENDMENTS, 801 WILLISTON ROAD This project consists of a site plan and conditional use application to amend a previously approved site plan for a 900 sq. ft. convenience store with three (3) fueling positions and a 34 ft. by 60 ft. canopy. The amendments consist of. 1) adding one (1) additional fueling position, and 2) adding ice dispensers, air pump, and pay phone, 801 Williston Road. The Planning Commission previously considered the site plan for this property at their December 8, 1998 meeting (minutes enclosed). This amendment request was reviewed at the 7/24/01 meeting and subsequently withdrawn (minutes enclosed). The amendment results in an increase in impact due to increasing traffic generation by 19.22 vehicle trip ends or 33% and increasing overall coverage. The Board must therefore review the three (3) kinds of changes that justify an amendment to a permit. The applicant should be prepared to explain which of the following changes happened to justify this amendment: a) changes in factual or regulatory circumstances beyond the control of the permittee; b) changes in the construction of operation of the permittee's project, not reasonably foreseeable at the time the permit was issued; or c) changes in technology It is staff s position that the applicant does not meet any of the above three (3) criteria. The applicant applied for and received approval for a convenience store with four (4) fueling positions by the Zoning Board of Adjustment on 10/24/94 (see enclosed decision by the ZBA). SITE PLAN CRITERIA: Access/Circulation: Access is currently provided via a 24 foot wide egress only curb cut on Williston Road, a 24 foot wide ingress only curb cut on Williston Road, and a 24 foot wide ingress only curb cut on East Terrace. No changes are proposed. The applicant has proposed adding an air pump adjacent to parking space #1. This will create a circulation problem as only one vehicle at a time may utilize the pump and they may block a parking space or two. Stacking may occur as customers wait for the space to become available or try to park in the egress lane to Williston Road. The applicant should propose a different location for the air pump that will not interfere with circulation or parking. Circulation on the site is not adequate with the proposed location of the air pump. C DEVELOPMENT REVIEW BOARD MEMO November 20, 2001 MEETING Coverage/Setbacks: Overall coverage will increase from 32.3% to 34.5% (70% max). Building coverage will remain 28.2% (30% max). Front yard coverage along Williston Road will remain 28.2% and front yard coverage along East Terrace will remain 17.8% (30% max). All setback requirements are being met. Parking: A bike rack approved for the property is no longer located on the property. The one required handicapped parking space will need to be re -striped as it is no longer delineated as such on the site. Landscaping: The plans should be revised to depict approved landscaping. Staff noted during a site visit that several of the approved trees are dead. Dumnsters: There is an unscreened dumpster behind the building that must be removed or relocated to the screened dumpster area. Other: The proposed ice dispensers constitute outside display and storage. The January 23, 1996 approval of this project (see enclosed minutes) stated: "As expressly represented by the applicant, there shall be no storage or display of store merchandise outside the building." There are also cars stored on the eastern edge of the lot that should be removed as per the Board's earlier decision. TRAFFIC OVERLAY DISTRICT REVIEW This property is located in Traffic Overlay Zone One which allows this property to generate a maximum of 29.69 vehicle trip ends (vte's) during the P.M. peak hour. ITE estimates that the current use of the property generates 57.66 P.M. peak We's or 194% more than permitted. The proposed fueling position would generate 19.22 additional P.M. peak vte's for a total of 76.88 vte's. The applicant therefore proposes a 19.22 or 33% increase above existing conditions which is 258% more we's than permitted by the Traffic Overlay District. Section 21.50 of the Zoning Regulations allows the Development Review Board to approve peak hour traffic volumes above the normal standards if the Board determines that other site improvements will produce a net benefit for traffic flow in the vicinity. The applicant is not proposing any site improvements at this time. The applicant has submitted a statement regarding traffic from Resource Systems Group dated 8/2/01 (see enclosed). The City's traffic consultant, Roger Dickinson, reviewed the applicant's statement (see enclosed). It is the applicant's position that the Supreme Court's approval of this project was for 79 vte's and since the proposed vte's are less than 79 vte's, there is no increase in traffic. The City Attorney disagrees with this position. The Development Review Board must look at existing traffic generation versus proposed traffic generation. Since the proposed traffic will increase by 19.22 vte's, the Board must determine that the proposal includes improvements that will result in a net benefit for traffic flow in the vicinity. Since there are no improvements proposed, the Board has no choice but to deny the request. CONDITIONAL USE CRITERIA: DEVELOPMENT REVIEW BOARD MEMO November 20, 2001 MEETING The proposed uses does comply with the stated purpose of Commercial One District: "Other uses that would benefit from nearby access to a central business area including clustered residential development and small industrial employers may be permitted if they do not interfere with accessibility and continuity of the commercial district." The proposed use must not adversely affect: a. the capacity of existing or planned community facilities. No affect expected. b. the character of the area affected. The proposed outside display area will detract from the character of the area due to nearby residences. c. traffic on roads or highways in the vicinity. The proposed use will adversely impact traffic by increasing traffic above the normal standards without producing a net benefit for traffic flow in the vicinity. d. bylaws in effect. The proposed increase in traffic does not comply with the zoning regulations since traffic is proposed above the normal standards without a net benefit for traffic flow in the vicinity. e. utilization of renewable energy resources. There is no utilization of renewable energy resources to be affected. f. general public health and welfare. No adverse affect expected. 11 ' -I 11 Y ® I-i•r � T-c iI EXISTING 5' UTILITY EASEMENT I / EXISTING CB -'--_- ~ UVM RIM - 344' 10 INV. IN - 339.42' T� -118' RCP INV.♦♦ OUT.= 131 ♦ ♦ ♦ ♦ ♦♦ ♦ ♦ ♦ ♦ ♦ \ PROPOSED 8 SIGN ® a R5-1 V) ONE MAY APPROXIMATE LOCATION Z OF UNDERGROUND STORAGE TANKS PAVED SURFACE PROPOSED ICE OISFFN51� LOCATION 1��111 e-e 343 8 e UTILITY POLE 343.95' JTILITY POLE 18" RCP fine, , ••7t: CANOPI�..::'' 3 (40' X 32� 4 CSN(,73ETE PAD -- EA CANOPY, EXISTING BLDG 900 SF SEWER INV, OUT = .69 n'+ PAVED \GREASE SURFACE OUMPSTER CL 34 HANDICAP ACCESSIBLE RAMP IWITH DEPRESSED CURB " N COMMERCIAL 1 151.52' RESIDEN— TIAL F G A. BAILLAARGEON VOL 50 PG. 30 LEUN EXISTING B" SEWER MAIN s-a EXISTING IRON POST O EXISTING 12' DI WATER MAIN W-12 EXISTING SEWER MANHOLE 0 EXISTING 8" ASB CEMENT WATER MAIN :-o EXISTING MANHOLE — EXISTING TELEPHONE LINE T EXISTING CATCHBASIN ❑ EXISTING NATURAL GAS LINE 9 EXISTING ROAD SIGN v EASEMENT EXISTING UTILITY POLE 0- 1" WATER SERVICE T►-1 OIL/WATER SEPERATOR/CATCHBASIN 4 SEWER SERVICE 8 4 EXISTING FIRE HYDRANT EXISTING CONTOUR YARD CATCHBASIN PROPERTY LINE - - SEWER CLEANOUT 01 EXISTING CONCRETE CURB EXISTING CONCRETE SIDEWALK CONCRETE CURB _ CONCRETE SIDEWALK / PADS GRANITE SLOPE EDGING EXISTING GUARD RAIL FILLING POSITION Qj FILDLIME 901KML-IJ INV. `-- --- --- --- B NGTONTYPICAL FOR N/F WINOOSHI -- DS OF u — ---- �11 MEDIAN ISLAND ---- SH RATON MEDIAN ISLAND. -- -"---------------------_-- - — WILLISTON ROAD —" e--__--- --- U.S. ROUTE #2 a 34203' EDGE O r ` 2 MEN GTON --- OF PAVEMENT Q z l MUNIgPAL Li OF PAVEMENT 341�.�1 -m .99' EDGE J 7 AIRPORT--- GF A ENTER �+�I ---- _--- m �1 343.79' EDGE I RS-1 O - < ' S1{�_ 340.86' EDGE `---' -- — _ — D OF PAVEMENT --- _ AKI RIM OF --- EXISTING CATCH BASIN WITH N MED ELEV 340 7 a 341 2' � n_ _ 4 1 :.... . ...........:..... :. .....---.... ------- . - SOUTH BURLINGTON CEI EDGE OF G', _ _ .......,., .1 SIDEWALK% � C EXISTING CB A1' Ce a RIM = . IN 7 f LOCATION MAP / 18" INV. {N 335.7'f 18. 111V. WT 335.6't TUTS h t A N /F MOBIL OIL CO. VOL. 34 PG. 288 34T.68' EDGE OF 341.69' FIRE CONCRETE HYDRANT l iil II 1 PAD /_ p�pOy�p AIR PROPOSED PAY IElEPF10NE / LOCATION b LOCATION ❑ N I 343.80' i EDGE OF CONCRETE 2 L344.83' PAD ----_ _ 69CRDP1ION [A3 PROPOSED] AREA iSl''. x OF TOTAL L119T BLDG CORNER 3 TOTAL LOT ARFA - 79,180 I BUILDING AND CANOPY = 2.180 2.5% 30% PAVEMENT AND WALKS - 20,508 25.9% PICNIC 4 GRAVEL PARKING AREA - 4,630 5.8% TABLE TOTAL COVERAGE = 27,318 34.5% 70% 5 GREEN SPACE = 51,882 65.5% 30% 8 i A PAVEDAVED W WILL BID FRONT YARD 15,D00 O PAVEMENT AND WALKS - 4,224 28.2% - 30% . aQ GREEN SPACE _ _ 10,776 71.8% 70% BLDG 7 a 160.00' ad SPEAR ST. FRONT YARD - 10,157 BLDG CORNER PAVEMENT AND WALKS = 1,806 17.8% 304 �\_3M14.40' TC LOADING/ < ,y A� CREEK SPACE a 8,351 82.2% 70% 3b3.90 FSFS UNLOADING �� \\�-Gfi .01 �r ----_ —_---- NOTES GRASS AREA --_ ;--- [[��''jjs�,,�� 1. BOUNDARY AND SITE FEATURES INFORMATION SHOWN IS TAKEN FROM A 34 71' 9-e l�+`^dTj MAP EN7ITLED, "PLAT OF SURVEY CHITTENDEN TRUST CO.% PREPARED N4 'may 0 3-e 157.40' �� JJ L BY WARREN A. ROSENSTEIN. LS., DATED JULY 1987. 133- `^ ,.t, S'mO.0---31.5��-�9s-e I 2 ORIGINAL TOPOGRAPHIC INFORMATION SHOWN ON THIS DRAWING IS ?75,0 W` 4J [ t �e BASED ON DRAWING FILE 8083S29 PROVIDED BY UVM LAND RECORDS. \ N4`�^'•� 3. THIS PLAN REFLECTS AS -BUILT FEATURES ONLY TO VE EXTENT NOTED RECYCLING/ Q FROM THE GRIGINAL APPROVED PROJECT SITE PLAN FEATURES ARE ND DESC BID IN THE REVISIONS BL. ALL OT DUMPSTER \ M.H. 335.89' \ RIM a 342.37 INV, IN - 335.87' INV. OUT a 335.87' AS -INSTALLED AC UNIT, EXTERIOR \ COOLER AND PROPANE TANK® ��� o INVERT ELEVATION AT �` I TIE-IN - 338.71' \ N/fr BURLINGTON TENNIS CLUB INC.(33A \ rPRIOR TO CONSTRUCTION THE CONTRACTOR SHALL CALL "DIGSAFE" AT 1-888-344-7233 TO LOCATE UNDERGROUND UTILITIES. 50.65' SITE PLAN GRAPHIC SCALE m a a TIMBERLAKE ( IN YE6T, ASSOCIATES 1 f-h - 20 m SOUTH BURLINGTON EXXON DRAWING I OF 1 801 WIWSTON ROAD SOUTH BURLINGTON, VT PROGRESS PRINT -NOT FOR CONSTRUCTION DATE PLOTTED - 5/30/01 8 4/3/01 ADDED ENTRANCE SIGN AND ICE MACHINE 7 1/20/01 ADDED PAY PHONE AND AIR DISPENSER 6 12/14/00 ADDED 4TH FUELING POSITION AND OTHER AS -BUILT FEATURES PER CLIENT DATA 5 4/6/99 REVISIONS PER SBPC 1/26/99 DECISION 4 2/17/99 ADDED AS -INSTALLED DUMPSTER LOCATION AND CONCRETE PAD. AROUND BUILDING 3 10/28/9 ADDED AS -INSTALLED AC UNIT, EXTERIOR COOLER AND PROPANE TANK 2 7/21/98 ADDED AS -BUILT GRADES AND REVISED SEWER SERVICE CONNECTION 1 2/25/98 REVISED FINISH GRADE CONTOURS AND WIWSTON ROAD CURB LINE CONSISTENT WITH TJB PLAN DATED 2/18/98 k AOT PROJECT FILE 04-8808 DATED 9 10 97 WO. DATE DESCRIPTION smmNo1NFdA�wO SCOTT MICHAEL MAPES POST OFFICE BOX 5517 BURLINGTON, VERMONT ' FEBRUARY 1997 eo2-ee4-eloo of/i5,:Qoz rra iz;*o rAx SUE o79 04ZO F TUAE rL.VfNIIYe [JQQZ Ray Belair From: sandy dooley [dooley@adelphia.net] Sent: Friday, January 18, 2002 5:38 PM To: dinklag@attglobal.net Cc: rbelair@sburl.com; jcondos@aol.com; sstitzel@firmspf.com Subject: City's decision to defend the DRB's 12/4/01 decision denying Simendinger/Timberlake application to expand gas station/mini-mart at 801 Williston Road Dear John, Because we attended the DRB meeting at which this decision (see subject above) was made, Barbara Bull and I received notice that the Simendingers are appealing the DRB's denial. As a result, I contacted Ray Belair this week to find out if the City had decided whether to defend the decision in light of the Simendinger appeal to Environmental Court. The neighborhood was very pleased to learn that the City has decided to defend the DRB decision. If the neighbors can be of assistance to the City in its appeal, please let us know. Relative to the 801 Williston Road gas station/mini-mart, the neighbors have noted a regular pattern of traffic ingress and egress to and from the property that does not comply with the development as it was approved. We are concerned about the traffic hazards these instances of noncompliant traffic flow create. Because Ray is responsible for enfov �ent of the conditions the City imposes on developments, we will be communicating our concerns in de.- �1 to nim. However, we wanted to make you aware of these concerns should they have any impact on the defense of t t.,, LAB's denial of the Simendinger/Timberlake application to add another gas pump, etc. to the property. On another matter, Ray has made us aware of the application for subdivision sketch plan review that Ralph DesLauriers, Jr. submitted last week. We very much appreciate the assistance that Ray has provided in this regard. As you can well imagine, the neighbors will be working to identify the impact this proposed development might be expected to have on the Spear Street/East Terrace neighborhood. Thanks so much for all of your work on behalf of the residents of South Burlington. Please say hello to Alida, and we extend our belated Happy New Year wishes. Sincerely, Sandy (Dooley) 44 East Terrace 1 Y OF SOUTH BIJRLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 November 13, 2001 Mobil Oil 811 Williston Road South Burlington, Vermont 05403 Dear Property Owner: Enclosed is a copy of a public notice published in the Burlington Free Press. It includes an application for development on property located near your property. This is being sent to you to make you aware that a public hearing is being held regarding the proposed development. If you would like to know more about the proposed development, you may call this office at 846-4106 or attend the scheduled public hearing. Sincerely, Raymond J. Belair Administrative Officer DEVELOPMENT REVIEW BOARD 1 FEBRUARY 2000 PAGE 9 25. Applicant shall submit detail of the proposed fencing between agricultural area and development. Mr. Roth seconded. The motion was then passed 5-0 with Mr. Chamberland abstaining. Mr. O'Rourke arrived at this point in the meeting. 5. PUBLIC HEARING: Application of #MS-99-03 Craig and Joanne Anderson seeking approval under Section 11.402, Height of Structures of the South Burlington Zoning Regulations. Request is for permission to construct a single family dwelling with a maximum height above 25 ft. and not to exceed 35 ft, 7 Pavilion Avenue: Mr. Anderson said the lot is L-shaped and they need to go up three stories to make it feasible. Mr. Dinklage noted receipt of letters from neighbors supporting the request. Mr. Belair said there have been no objections. Mr. O'Rourke moved the Development Review Board approve application #MS-99- 03 of Craig and Joanne Anderson seeking approval under Section 11.402, Height of Structures, of the South Burlington Zoning Regulations. Request is for permission to construct a single family dwelling with a maximum height above 25 feet and not to exceed 35 feet, 7 Pavilion Avenue, as depicted on a two page set of building elevation plans stamped received on 12/17/99 and on a site plan stamped received on 1/21/00, with the following stipulations: 1. All previous approvals and stipulations which are not superseded by this approval shall remain in effect. 2. The applicants shall obtain a zoning permit within six months pursuant to Section 27.302 of the zoning regulations or this approval is nu..' _ ad void. 3. The proposed single family dwelling is approved for a maximum height of 35 feet above preconstruction grade. Ms. Quimby seconded. Motion passed unanimously. 6. Public Dearing: Appeal of AO-99-02 Timberlake Associates from the decision of the administrative officer that their proposal to use a portion of DEVELOPMENT REVIEW BOARD I FEBRUARY 2000 PAGE 10 their property at 801 Williston Road for vehicle storage is not permitted under the South Burlington Zoning Regulations: Mr. Belair explained that David Simendinger submitted a site plan application for a portion of their property at 801 Williston Rd. to be used for parking and storage of vehicles. In reviewing that application, Mr. Belair said he came to the conclusion that what they are requesting is not allowed by zoning regulations. Storage use is not permitted in that district. He sent a letter to the applicant with that decision. The City Attorney agrees with this position. The applicant is now appealing that decision. Mr. Belair noted that the Zoning Board had granted Spillane's 10 vehicles for their towing/storage use on Spillane's property, 811 Williston Rd. The plan submitted by the appellant shows more than 10 cars. Mr. Belair stressed that there is no connection between his decision and the Zoning Board approval for the Spillane property. No approval was granted for 801 Williston Rd. for any storage use. Mr. Simendinger said they began this to try to clear a situation where the city said Spillane's was parking on their property. He gave members a letter and drawings and documents from the previous Zoning Board hearing. He showed a plan of what he said was approved. Mr. Belair gave members the original applications which, he noted, refers only to 811 Williston Rd. with the landowner indicated as Mobil Oil Corporation. i� Mr. Dinklage said that the city is always very specific that if a use Apecifically permitted, that use is not allowed. Mr. O'Rourke said he felt the city and City Attorney's interpretation is technically correct. Mr. Dinklage agreed that he felt staff made the right decision. Mr. O'Rourke moved that the South Burlington Development Review Board uphold the decision of the administrative officer made on 29 November 1999. Mr. Schultz seconded. Motion passed unanimously. - 7. Public Hearing: Application of #CU-00-02 Wesco, Inc., seeking conditional use approval from Section 26.05, Conditional Uses, and Section 26.65, Multiple Structures and Uses on hots, of the South Burlington Zoning Regulations. Request is for permission to convert a service station to a convenience store and retain the gas sales operation of the service station use, 1118 Williston Rd: and RESOURCE SYSTEMS GROUP INCORPORATE D 2 August 2001 William Simendinger WESCO, Inc. 32 San Remo Dr. S. Burlington, VT 05402 Dear Bill: The purpose of this letter is to describe the traffic -related effects of the proposed addition of one fueling position to the gasoline station and convenience store at 801 Williston Road in South Burlington. As you know, the original traffic impact studies for this project estimated that the project would generate 58 trips from the three permitted fueling positions (19 trips per fueling position) plus 21 trips from the ATM that was to be included in the convenience store, for a total of 79 trips. The permit that was issued by the Environmental Court found that the improvements to be constructed along with the development offset the impacts of those 79 trips. The traffic generated by the project as constructed was measured and compared to traffic from other facilities in the University Texaco Traffic Impact Assessment completed by Pinkham Engineering dated October 12, 1999. Those measurements indicate that the existing facility at 801 Williston Rd. generates, on average, 61 trips during the PM peak hour. This is 18 trips lower than the original estimate and it appears that the difference is primarily due to the fact that the ATM generates little car traffic beyond those that access the pumps and the convenience store. One additional fueling station would, according to the standard formula used by S. Burlington, bring the total trip count to 80 (61 current plus 19 from the new position); virtually identical to what was originally estimated and approved. Sincerely, Resource Systems Group, Inc. I ��� /. e�W4 Thomas J. Adler President 331 Olcott Drive, White River Junction, Vermont 05001 TEL802.295.4999 ■ FAx802.295.1006 ■ www.rsginc.com ±10! i Yi d 1,iJ I I r 7 1 4 , 9 fl I • R I � i 1 PLANNING COMMISSION 23 January 1996 The South Burlington Planning Commission held a meeting on Tuesday, 23 January 1996, at 7:30 pm, in the Conference Room, City Hall, 575 Dorset St. Members Present: William Burgess, Chair.; Mac Teeson, Mark Crow, Terry Sheahan, David Austin, Gayle Barone, Marcel Beaudin Also Present: Ray Belair, Planning Office; David & Bill Simendinger., Amy Lindsay, Elizabeth Scannell, Henry Atherton, Sandra Dooley, Barbara & Wilbur Bull, Kevin Baillargeon, Doug Hecotenette, Terry Boyle, Bob Alexander, Peter Judge 1. Other Business: No issues were raised. 2. Review Minutes of 12 December 1995: Mr. Austin moved the Minutes of 12 December 1995 be approved as written. Mr. Sheahan seconded. Motion passed unanimously. 3. Continued site plan application of David Simendinger to raze a bank building and construct a 900 sq. ft. convenience store with gas sales (2 pumps/3 fueling positions), deli, ATM machine and 1280 sq. ft. canopy, 801 Williston Rd: Mr.. Burgess reviewed the history of the application. Mr.. Boyle said the current plan has no left turns into the station from Williston Rd. and no traffic exiting onto Williston Rd. at all. All traffic would exit onto Spear St. He said the area would be '^^avily landscaped and showed the pedestrian link from WM. y'The canopy meets the 50 ft. setback. Mr. Beaudin said his main concern is traffic, but he had other concerns as well. He asked about the necessity for. 8 400-watt light fixtures and 8 pole mounted fixtures. Mr. Boyle said this was to keep contrast as low as possible. Mr. Boyle suggested that any approval be conditional on a review of foot candles. David Simendinger added that there can be a stipulation that the facia of the canopy not be lit. Mr. Beaudin asked if there would be any illuminated facia on the building. David Simendinger said there would not. Mr. Beaudin said he was not happy with the traffic situation and especially didn't like having to cross 3 lanes to get to the left turning lane to go to Burlington. Mr. Alexander said the 2 right turning lanes would shorten queuing. W " PLANNING COMMISSION 23 January 1996 page 2 Mr. Burgess noted receipt of a petition from 26 East Terrace residents who oppose the project on the grounds of traffic congestion. Mr. Burgess said he also had a call from Barbara Hammel who felt the site was not good for a gas station. Elizabeth Scannell gave the Commission an additional petition and noted that nobody they had been able to contact in the East Terrace Development favored this project. Mr. Burgess said that what people favor is not the issue. The proposed project is legal. If there are facts to refute the applicant's experts, the Commission would listen to those facts. Another resident said that it is a fact that during rush hour traffic is backed up and it is already extremely difficult to get to the left turn lane to get to Burlington. By the time traffic has gone through the light, it is backed up again. By putting something to attract people to the site, it will become. worse. Mr. Burgess said there is no question this project will make the traffic situation worse. Mrs. Dooley gave members a letter which she then read into the record. The letter questions whether a traffic waiver undermines the city's Comprehensive Plan in the area of protecting the older neighborhoods of the city. She felt that the project was contrary to the stated intention of the Comprehensive Plan. Mr. Bull said that the applicant's contention that the 2 right turn lanes would help things was wrong. People will now have 3 lanes of traffic to cross to make a left turn, and that is making things worse. Mr. Atherton expressed concern for University students walking over into the jughandle. They will now have 4 lanes of traffic to walk across. He was also concerned that the figures presented were for ari""ideal situation." He also said that when there is construction on Shelburne Road, there will be more traffic on Spear St. and thus more traffic in the judhandle. At the present time, traffic is often backed up onto the flat of Spear Street. Mr. Teeson felt this proposal would create a similar situation to the other side of the jughandle and that it was unsafe. Mr. Austin moved tt application of Davi construct a 900 scq. pumps/three fuelinc Lt. canopy, bul Will Tans, a e one entif Exxon_, U.S. Route #2, last revised 1/5/96, e Plannnin Commission a prove the site plan Simendin er to raze a bank buildin and t. convenience store with qas sales (two ositions), deli, ATM machine and a 1280 s . iston Road, as de icted on a two a e set of led "Timberlake Associates, South Burlin to South Burlington, VT " dated May 1, 1995, with the followinq stipulations:_ c 0 PLANNING COMMISSION 23 January 1996 page 3 1. All previous approvals and sti ulations which are not su er- seded b this approval shall remain in effect. 2. For the purpose of calculating re uir.ed road im act fees under the South BurlinSiton Impact Fee Ordinance, the Plannin Commission estimates that the pLMosed use will enerate 55.5 additional vehicle trip ends durina the P.M. peak hour. 3. An new exterior lighting shall consist of downcastin shielded fixtures so as not to cast light be and the propert line. An chan e in liqhtinq shall be approved by the City Planner prior to installation. 4. The 22j2licant shall post a $1500 landsca e bond prior to issuance of a zonin2 2ermit. The bond shall remain in effect_f three ears to assure that the landsca2inq takes root and has a Good chance of surviving. 5. Pursuant to Section 26.103 Plannin Commission approves on the approved plan. 6. The Planning Commission_ ap qpd. The applicant shall pay issuance of a zoning permit. f the zoning reaulations, the oves a sewer allocation of 885 for to 7. This property is located in Traffic Overlav Zone 1 which allows this-2roperty to 2enerate a maximum of 29.7 vehicle tri ends (vte's) during the P.M. eak hour. The a licant estimates the _p_ro_posed use to enerate 79 vte's which is 49.3 vte's or 166% more than perm,itted. The PlannincT Commission 2ursuant to Section 21.50 of the zonin re ulations may approve eak hour traffic volumes above the normal standards if the Commission benefit for,�traffic flow in the vicinity. It is the Plannin Commission's determination that limiting the Williston Road curb cut to inSiressonly, desi nin the Spear Street curb cut for both entering and exitin traffic and the other im rovements shown on the plan will produce a net benefit for traffic flow in the vicinity. 8. As expressly represented by the applicant, there shall be no stora-ge--or-display of store merchandise outside the buildin . 9. The abandoned sewer service shall be capped at the main. 10. The entrance construction shall be coordinated with the Cit Street Department. 11. The-22plicant shall submit for review and approvalby the PLANNING COMMISSION 23 January 1996 page 4 Citv Attorney the leqal documents for the sidewalk easement and fire hvdrant easement (if_needed) ._ These legal documents_ shall be recorded in the land ^records rior to ermit issuance. 12. Prior to issuance of a zoninSI permit. the a22licant shall ost a bond to cover the cost of constructinq a sidewalk alon the Spear Street frontage. The amount of the bond shall re uire approval of the City Engineer. 13. The construction of a sidewalk alon2 Spear -Street and construction of lane wideninq__iml2rovements on S ear Street shall be completed prior to _issuance of a certificate of occupancy/ compliance. 14. The a licant shall obtain .a zonin ermit within six months or this approval is null and void. 15. The applicant shall obtain a Certificate of Occu anc Com- pliance from the Administrative Officer prior to occupancy of the building. 16. An chap e to the site lap shall re uire a rovalby the South Burlin ton Plannin Commission. Mr. Beaudin seconded. The motion then 2assed 4-3 with Messrs Teeson, Crow and Sheahan.votinq against. 4. Sketch plan application of Century Partners, L.P, to amend a previously approved planned unit development consisting of 90,750 sq. ft. of general office and shopping center use in 4 buildings. The amendment consists of 1) relocating the 2-level parking garage, and 2) eliminating the proposed 3600 and 8350 sq. ft. buildings from Phase II and substituting the construction of a 15,000 sq. ft. building, 100 Dorset Street and 2 Corporate Way: el Messrs. Austin and Crow stepped down from this discussion due to a conflict of interest. Ms. Lindsay said they had soil reports done and found some problems. About 10 feet down, there is silty soil which would not support the parking structure, so they had to look for better soils on another part of the site. They are thus moving the parking structure to the area with the best soils. Mr. Judge said soils get poorer to the east, and this will have an impact on the City Center concept. He added that the proposed parking structure will be a steel structure instead of concrete. Ms. Lindsay showed the relocated parking spaces. She felt this made for a more even traffic flow. She noted that Gary Farrell is OK with the Ramada right-of-way. They have also kept the 05;,'08/02 WED 17: 11 FAX Z ppl STATE OF VERMONT ENVIRONMENTAL LAW COURT IN RE: TIMBERLAKE ASSOCIATES ) (801 Williston Rd., So. Burlington) ) Docket No. 204-12-01 Vtec TIMBERLAKE ASSOCIATES' RESPONSE TO SOUTH BURLINGTON'S MOTION FOR A CONTINUANCE Timberlake Associates, by and through its attorneys, Sarvak and Simendinger, files this Response to South Burlington's Motion for a Continuance, Timberlake Associates opposes the motion. This matter was specifically assigned by the Environmental Court for trial. A Continuance can therefore only be granted by consent of the parties, or by the Court for special and unavoidable circumstances such as unavailability of a material witness, or a significant scheduling conflict of counsel. See V.R.C.P. §40(c)(1). In this case, no such scheduling conflict exists. The City cannot claim unfair prejudice in proceeding to trial on May 20`h. This is a zoning matter that was fully reviewed by the City, its board, its planning staff and its expert in the local process. Opposing Counsel's reference as to what, if any, additional traffic is to be generated was fully developed in the local process by Timberlake's expert, Dr. Tom Adler, and David Simendinger, President of the Company. The City's expert and Wesco's experts both issued written reports. The City's Motion for a Continuance references recent discovery filed by Timberlake. Timberlake is willing, and has offered to cooperate with the City in expediting its response to this discovery. At its heart, this discovery simply asks what witnesses and evidence the City will use at trial. The accompanying Requests to Produce seek to eliminate numerous criteria which •08/02 \VED 17; 10 FAX Q003 Il � ► the City does not really contest and have not been issues raised in the past. Timberlake has also already responded to the City's informal discovery request to depose Dr. Adler by offering three dates for his deposition next week. As the Court is aware, the Environmental Court has a significant backlog of cases. Therefore attempts to delay these cases should not be routinely granted absent unusual circumstances. It would be harmful to Timberlake's business interest to delay this matter. For these reason Timberlake respectfully requests that the City's motion for a continuance be denied. Dated at South Burlington, VT this 1— day of May, 2002. 5arvak and Simendinger 32 San Remo Drive South Burlington, VT 05403 C-\Documents and Settings\tkelton\My Documents\2002docs\B9Response.doc 2 d8/02 WED 17:10 FAX Z 002 Sarvak & Simedinger ATTORNEYS AT LAW 32 San Remo .gave, So. Burlington, VT 05407-2287 (802) 658-9999 1 Pax (802) 864-6234 Wiflaam E. Simendinger Esq. ext. 233 May 8, 2002 Diane Lavallee, Clerk Chittenden Superior Court PO Box 187 Burlington, VT 05402-0187 RE: Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Dear Diane: Kathryn A. 5arvak, Esq, ext. 347 Enclosed please find Timberlake Associates' Response to the City of South Burlington's Motion for a Continuance in reference to the above matter. Thank you, Enc. cc: Amanda Lafferty, Esq, Jackie Stevens CADocuments and Settings\tkelton\My Doc uMen ts\2002docs\IavaileeB9#2.doc STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/fDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PAM R. PAGE* E-MAI4FIRM2555@FIRMSPF.COW ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y.) May 7, 2002 Jackie Stevens, Acting Clerk Vermont Environmental Court 255 North Main Street, Suite 2 Barre, Vermont 05641 Re: Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Dear Jackie: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Enclosed please find for filing, in connection with the above -referenced matter, the City of South Burlington's Motion to Continue and Response to Appellant's Motion to Shorten Time. Please call with questions. Thank you. Sincerely, Amanda S. E. Lafferty ASEL/jp Enclosures CC: Chittenden Superior Court (via hand delivery) Ray Belair William E. Simendinger, Esq. (via facsimile and first class mail) son4798.cor STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 IN RE: APPEAL OF TIMBERLAKE ASSOCIATES STATE OF VERMONT ENVIRONMENTAL COURT DOCKET NO. 204-12-01 Vtec CITY OF SOUTH BURLINGTON'S MOTION TO CONTINUE AND RESPONSE TO APPELLANT'S MOTION TO SHORTEN TIME NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and, pursuant to V.R.C.P. 40(c), requests that the Court continue the hearing currently scheduled for May 20, 2002. MEMORANDUM By filings dated December 26, 2001, February 4, 2002, February 21, 2002, and March 14, 2002, the parties in this matter submitted motions for summary judgment and responses to same. Through its Reply to South Burlington's Cross -Motion for Summary Judgment, dated February 21, 2002, the Appellant informed the City that, should this matter go to trial, Appellant will call an expert who will testify that "no additional traffic will be generated by [Appellant's] proposal." See page 5, footnote 1. However, as Appellant states in its Motion to Shorten Time, dated May 6, 2002, neither party in this matter has conducted discovery, given the potential that the Court's rulings on the motions for summary judgment may have made discovery unnecessary. See Motion to Shorten, dated May 6, 2002, page 1. 1 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 By Entry Order dated April 24, 2002, this Court denied the motions of both parties and provided notice dated April 30, 2002, that this matter had been set for hearing on May 20, 2002. The City received the Entry Order and Notice of Hearing on May 2, 2002. The City requests that the hearing in this matter be continued to a date no sooner than June 21, 2002, to provide the City time both to conduct its own discovery and to respond to the interrogatories, requests to produce and requests to admit that Appellant served on the City today. Pursuant to Rules 33(a), 34(b) and 36(a) of the Vermont Rules of Civil Procedure, the City has thirty (30) days to respond to Appellant's interrogatories, requests to produce and requests to admit, respectively. Appellant requests that the Court limit the City to eight (8) days to so respond because the Court has set this matter for May 20, 2002, and any continuance of that trial date would adversely affect Appellant's business interests. The City understands that Appellant has financial concerns such that it would like this matter to proceed to trial as quickly as possible. However, the number of interrogatories and requests to admit, as well as the information that they seek requires that the City have the thirty (30) days to which it is entitled, regardless of the fact that the Court has set this matter for a hearing. 2 In addition, the City would like to conduct its own discovery in connection with this matter. In an effort to schedule mutually agreeable times and dates for two depositions that the City wants to take, the City has contacted Appellant and hopes to conduct said depositions before the end of May. In addition, the City will be serving its own interrogatories on Appellant no later than May 9, 2002. CONCLUSION Based on the above -stated reasons, the City respectfully requests that the Court continue the trial currently scheduled for May 20, 2002, until a date no sooner than June 21, 2002, in order to allow the parties reasonable time to complete discovery. DATED at Burlington, Vermont this 7tn day of May 2002. son894.1it STITZEL, PAGE & FLETCHER, PC. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Its Attorneys C r 1 / y Amanda S. E. Laffert 3 0- Steak & Simendhiger ATTORNEYS AT LAW 32 San Bean® Drive, So. Burlington, VT 05407-2287 (802) 638-9999 1 Fax (802) 864-6234 William E. Simendinger, Esq. ext. 233 May 6, 2002 Diane Lavallee, Clerk Chittenden Superior Court PO Box 187 Burlington, VT 05402-0187 RE: Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Dear Jacalyn: Kathryn A. Sarvak, E5g. ext. 347 Enclosed please find a Motion to Shorten Time for Appellee to Respond to Interrogatories, Request to Produce and Requests to Admit. Also enclosed is a certificate of service on the discovery. Since the trial is set for May 20, 2002 we request this be brought immediately to the Court's attention. Thank you. Enc. cc: Amanda Lafferty, Esq. Jackie Stevens C:\Documents and Settings\tkelton\My Documents\2002dccs\LavalleeB9.doc STATE OF VERMONT ENVIRONMENTAL LAW COURT IN RE: TIMBERLAKE ASSOCIATES ) (801 Williston Rd., So. Burlington) ) Docket No. 204-12-01 Vtec MOTION TO SHORTEN TIME FOR APPELLEE TO RESPOND TO INTERROGATORIES, REQUEST TO PRODUCE AND REQUEST TO ADMIT Now Comes Timberlake Associates by and through their attorneys, Sarvak and Simendinger, and moves the Court pursuant to Rule 33(a), 34(b) and 36(a) to shorten the time Appellee to answer Interrogatories, Requests to Admit and Request to Produce, for the reasons set forth below: 1. On May 2, 2002 Timberlake Associates learned this matter is set for trial for May 20, 2002. On that same date the Court entered a decision on Timberlake's Motion for Summary Judgment. Given the potential dispositive nature of the motion, neither party had engaged in any discovery. 2. Timberlake would very much like to proceed to trail on May 20t", as it's business interests will be adversely affected by any delay. There are some basic pieces of information, however, that Timberlake needs from the Appellee City of South Burlington in order to prepare for trial. In addition, Timberlake has reason to believe that the issues in dispute are relatively narrow. 3. To narrow the issues and prepare for trial, Timberlake have today (May 6, 2002) served on the City of South Burlington Requests to Admit, Interrogatories and Requests to Produce. Copies of these documents are attached, and as the Court will see, are fairly specific and not burdensome. Timberlake will certainly work with the City's attorney if any on inquiry is going to be too time consuming. 4. Timberlake Associates would respectfully request that the deadline for responding to the discovery tools be shortened and that the Appellee response by May 15, 2002, the Wednesday before the trial date. WHEREFORE, the Court should order the Appellee to respond by May 15, 2002. Dated at South Burlington, VT thisiday of May, 2002. Sarvak and Simendinger 32 San Remo Drive South Burlington, VT 05403 CADocuments and SettingsUelton\My Documents\2002docs\B9MotionToShorten.doe STATE OF VERMONT ENVIRONMENTAL LAW COURT IN RE: TIMBERLAKE ASSOCIATES ) (801 Williston Rd., So. Burlington) ) Docket No. 204-12-01 Vtec Certificate of Service William E. Simendinger, a member of the firm of Sarvak and Simendinger, attorneys for Timberlake Associates hereby certifies that Appellant's First Set of Interrogatories, Requests to Produce and Requests to Admit were served upon the City of South Burlington by personal service to Amanda Lafferty, Stitzel Page & Fletcher, 171 Battery Street, Burlington, VT 05401 on May 6, 2002. Dated at South Burlington, VT this 6th day of May. 2002. Sarvak and Simendinger 32 San Remo Drive South Burlington, VT 05403 CADocuments and SettingsUelton\My Documents\2002docs\B9Cert.doc 1 AT 10RNEYS AT LAW 321 San Remo Dxiye, Se. Burffnngton, V7 05407-2287 (302) 658-9999 1 Fags (302) 864-6234 R ifflam E. Simendinngen; Esq. ext. 233 May 6, 2002 Amanda Lafferty, Esq. Stitzel Page & Fletcher PO Box 1507 Burlington, VT 05402 RE: Appeal of Timberlake Associates (801 Williston Road) Docket No. 204-12-01 Vtec Dear Amanda: Kathryn A. Saryak, Esq. ext. 347 Enclosed please find Appellant's Interrogatories and Requests to Produce and Requests to Admit in reference to the above matter. Thank you. Enc. CADocuments and Settings4kelton\My Documents\2002dacs\StevensB9].doc E STATE OF VERMONT ENVIRONMENTAL COURT IN RE: Appeal of Timberlake Associates ) Docket Nos. 204-12-01 Vtec (South Burlington) ) APPELLANT'S REQUESTS TO ADMIT Now comes Appellant Timberlake Associates, Inc., by its attorney William E. Simendinger, and requests that the City of South Burlington respond to the following requests to admit. If any item is denied, then please explain and identify with particularity, the reasons for the denial. 1. That the improvements proposed by applicant's conditional use permit amendment and site plan amendment, which are the subject of this appeal (hereinafter "the project") complies with the area, density and dimensional requirements under the City of South Burlington zoning requirements, including: a) minimum lot size; b) minimum lot frontage; c) maximum lot coverage; d) minimum setback requirements. 2. That the project complies with all height requirements imposed by the City of South Burlington zoning regulations. 3. That the project will not adversely affect: a) The capacity of existing or planned municipal facilities; b) The essential character of the area affected by the project; c) Traffic on roads and highways in the vicinity; d) Distances from adjacent or nearby uses; e) Parking; 0 Loading facilities. g) Utilization of renewable energy resources; h) General public health and welfare. 4. That the project provides for appropriate and adequate pedestrian access and circulation. 5. That the project provides for appropriate and adequate vehicular access and circulation. 6. That the project provides for appropriate and adequate parking. 7. That the project provides for appropriate and adequate landscaping and screening and that the landscaping for the project proposed for the lot in question meets or exceeds all pertinent zoning and planning requirements for site plan approval and conditional use approval. 8. That the project provides for appropriate and adequate: a) Drainage; b) Fire protection; c) Lighting; d) Aesthetics. 9. That the project complies with all standards or levels of performance required by the City of South Burlington zoning regulations including, but not limited to, the following: a) Noise; b) Vibration; c) Smoke and exhaust; d) Dust; e) Odors; f) Air pollution; g) Heat and cold; h) Dampness; i) Radioactive radiation; K j) Electromagnetic disturbance; k) Light; 1) Direct and indirect glare; m) Liquid or solid refuse or waste; n) Hazards relating to fire, explosions, noxious odors or gases, or other dangerous or injurious substances or activities; o) Traffic generation; p) Any other requirements known by you. 10. Admit that the following are adequate and that no special or additional conditions or safeguards are needed for: a) Traffic access; b) Circulation; c) Parking; d) Landscaping; e) Screening; 0 The utilization of renewable energy resources; g) Any other aspects of the project. 1.1. That the project does not require any variances. 12. That all handicap requirements are met by the project. 13. That the project complies with all applicable codes and standards on the design and location of structures and service areas. 14. That the project will not increase peak hour traffic volume above that currently generated by the existing use as calculated by ITE 5th Edition. 15. That the use contemplated by this project does not contain unique characteristics that cause it to differ from national traffic estimates. 3 Dated in South Burlington, Vermont this � day of May, . 002. VAK Attorney for Appellant, T-iifiberlake Associates 32 San Remo Drive So. Burlington, VT 05407-2287 C.\Documents and Settings\tkelton\My Documents\2002docs\B9RequestAdmit.rtf 0 STATE OF VERMONT ENVIRONMENTAL COURT IN RE: Appeal of Timberlake Associates ) Docket Nos. 204-12-01 Vtec (South Burlington) ) APPELLANT'S INTERROGATORIES AND REQUESTS TO PRODUCE Now comes Appellant Timberlake Associates, Inc., by its attorney William E. Simendinger, and requests that the City of South Burlington respond to the following interrogatories in writing and under oath, pursuant to Rule 33 of the Vermont Rules of Civil Procedure. INTERROGATORIES 1. Please identify the person who answered or helped to answer these interrogatories and requests to produce. If more than one person contributed, identify the particular area as to which each contributed. 2. Identify all reports, studies, or other documents which discuss, reference or address in any way the Exxon Station at 801 Williston Road, South Burlington which are in your possession or control. 3. Identify every reason why you believe that the application amending the conditional use permit and site plan approval, which is the subject of this appeal (hereinafter "the project") ought not to be approved. Explain. 4. Identify every reason why you believe the project ought to be approved. 5. Identify all communications between you and with either Timberlake and/or any person about the Exxon Station, and identify: a. The'date; b. The persons involved; C. Whether the communication was oral or written; E d. The substance of the communications. 6. Identify each person that has knowledge about this matter, as to each set forth the subject matter and expected substance of his or her knowledge. 7. Identify every way you believe the project is non -conforming with the zoning ordinance, bylaws or town plan. 8. Identify every way you believe the project will increase the non-conformance of 801 Williston Road. 9. With respect to each person you expect to call as an expert witness at trial, please identify and state: a. Name, business address, and phone number; b. Occupation, title or position, and employer; C. Educational background and relevant experience qualifying him as an expert; d. Subject matter on which he is expected to testify; e. Substance of facts to which he is expected to testify; f. Any reports, documents, resumes, or letters; g. Dates and times the expert was at the Exxon station; and h. All opinions the expert has relative to this case. 10. Have you retained or employed any experts who are not expected to be called as witnesses at trial? If so, please give the name, business address, occupation, and present title or position of each. Identify all reports prepared by these experts. 11. Identify all fact witnesses who have relevant evidence about this matter. 12. Identify all conditions which you feel ought to be imposed if the application is allowed. 13. In connection with the Requests to Admit filed with these interrogatories and requests to produce, for each request denied, state the basis for that denial. 2 REQUESTS TO PRODUCE All reports, studies, or other documents identified in response to any of the interrogatories, including but not limited to traffic studies or counts, circulation studies, accident studies, and accident reports. 2. All photographs, diagrams, or other graphic representations identified in any response to these interrogatories. Reports of any experts you expect to testify at trial, and of any experts retained or employed by you who are not expected to testify at trial. 4. Produce your zoning and permit files for 801 Williston Road. 5. Produce all documents which support any denial of appellant's requests to admit. NOTE: YOU ARE HEREBY CALLED UPON TO SUPPLEMENT YOUR ANSWERS TO THESE INTERROGATORIES AS ADDITIONAL KNOWLEDGE OR INFORMATION SHALL, FROM TIME TO TIME, COME TO YOUR ATTENTION PERTAINING THERETO. Dated in South Burlington, Vermont this day/May, 200'A. William E. SinTe5diYiger Attorney for Appellant, Timberlake Associates 32 San Remo Drive So. Burlington, VT 05407-2287 CADocuments and Settings4keltonNy Documents\2002docs\B9lnterro.rtf 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. S7TTZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE' E-MAIL(FIRM2555 a FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE ("ALSO ADMITTED M N.Y.) March 14, 2002 Jackie Stevens, Clerk Vermont Environmental Court 255 North Main Street Suite 2 Barre, Vermont 05641 Re: Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Dear Jackie: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Enclosed for filing please find the City of South Burlington's Response to Timberlake Associates' Reply in connection with the above -referenced matter. Thank you. Sincerely, tt�'vR Amanda S. E. Lafferty ASEL/myb Enclosure cc: Ray Belair William E. Simendinger, Esq. sorA768.cor STITZEL, PAGE & FLETCHER, EC. ATTORNEYS AT LAW 171BATTERYSTREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT IN RE: APPEAL OF ) TIMBERLAKE ASSOCIATES ) DOCKET NO. 204-12-01 Vtec CITY OF SOUTH BURLINGTON'S RESPONSE TO TIMBERLAKE ASSOCIATES' REPLY NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and asks this Court to issue an Order denying Appellants' Motion for Summary Judgment and granting summary judgment in the City's favor in the above - referenced matter. MEMORANDUM Vermont law does not favor successive applications unless an application raises new issues or there has been a substantial or material change of facts. See 24 V.S.A. §4470(b)(stating that a DRB "may reject an appeal without hearing and render a decision . . . . if . . . . the [DRB] considers the issues raised by the appellant in his or her appeal have been decided in an earlier appeal or the same in substantially or materially the same facts by or on behalf of the appellant . . .11); see also In re Crescent Beach Association, 126 Vt. 140, 141 (1966)(stating that i1[i]n 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."). The purpose of such finality is to permit amendments to permits only when unforeseeable circumstances require such amendments so that property interests are "settled 1 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 and stable." See id.(stating that "[t]his requirement is not to be technically and narrowly imposed, but yet enforced to the extent that property interests may be settled and stable, and property owners protected from harassment.). In the current matter, Appellant has not submitted an application that either is different in content from the one previously approved by the City or shows that an unforeseen change in circumstances has intervened. Appellant claims, without providing any factual basis, that due to its own poor planning, the site exists in chaos and that "[t]ime passage demonstrating poor layout is a change in circumstance". However, Appellant proposes no significant change to the layout of the site to address this supposed change of circumstances. See page 3 of Appellant's Reply dated February 21, 2002. The building, canopy and two fuel pumps' will remain in their present locations. In addition, it is hardly an unforeseen problem that a small number of customers would assume that the relevant pump contains two fueling positions. There are numerous solutions to this problem other than the addition of a fueling position with its accompanying increase in traffic generation. 1 Currently the Appellant has approval for only three of the four possible fueling positions (two on each pump). E STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P-O BOX 1507 BURLINGTON, VERMONT 05402-1507 In addition, Appellant argues that the loss of the ATM justifies a modification of the current plan.2 See page 2 of Appellants' Reply dated February 21, 2002. Appellant is mistaken, primarily because said loss does not result in a significant change of circumstances. The facts currently presented to this Court remain substantially or materially the same facts as the then Board of Adjustment considered in Appellant's previous application. Moreover, the loss of the ATM is not related to, and does not justify, Appellant's current proposal. The addition of a fueling position does not address the lack of an ATM. Appellant made a proposal to the City Development Review Board (hereinafter the 11DRB11) which it could have made at the time that it applied for approval of the site plan and use that currently exists on the subject property. Instead, in its previous application, Appellant submitted a plan for fewer fueling positions than it apparently wanted and now requests an amendment to the approval it last obtained from the City, without citing any changes in circumstances that are substantial or were unforeseeable at that time. This piecemeal approach deprives the DRB, and now this Court, of the opportunity to review Appellant's proposals simultaneously before Appellant changed the use of this property from a drive up ATM. z Once again, it is clear that Appellant does not actually propose a modification of its current plan because the location of the existing structures will not change. 3 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET P.O BOX 1507 BURLINGTON, VERMONT 054024507 This Court should not consider Appellant's current proposal because Appellant presents an application which does not differ in content from the previous application for which it received approval and because Appellant has not cited a change of circumstances which justifies the requested relief. Appellant cannot first seek approval for that which has the best chance of receiving approval and then request changes to said approval in successive applications. The requirement that there be some finality to administrative determinations requires that the Court refuse to consider the merits of Appellant's current proposal. Assuming arguendo that the Court may consider the merits of Appellant's application, said application should be denied because the addition of a fourth fueling position impermissibly increases traffic generated by the use on the subject property. Appellant has not submitted any viable arguments to contest the fact that the Zoning Regulations only consider the traffic volumes that are currently generated by the existing use and compare that level of traffic generation to what the proposed use is expected to generate. See Section 21.50 of the City of South Burlington Zoning Regulations (hereinafter the "Regulations"). In the current matter, Appellant proposes an increase in traffic generation above normal standards with no corresponding site improvements to address and limit the impact of said increase. Appellant's argument that the addition of the fourth fueling position constitutes a site improvement is unfounded. There are no facts on the record to support Appellant's claims 4 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 that traffic circulation problems exist on the site and that said problems are the result of the lack of the fourth fueling position. The Regulations do not consider the addition of a fueling position, which makes no changes to the layout of the site and which results in an increase of traffic above permissible standards to be a site improvement. See Section 21.50 of the Regulations. Appellant's application should be denied because it does not comply with the Traffic Overlay District. CONCLUSION For all the reasons set forth above, and in the City of South Burlington's Response to Appellants Motion for Summary Judgment and Cross -Motion for Summary Judgment, the City of South Burlington respectfully requests that this Court enter an Order, in the City's favor, denying Appellants' Motion for summary Judgment and ruling that the Appellant's proposed use for the subject property constitutes an amendment of a previously approved use which should be denied because there has not been a change of conditions that would justify the alteration of the previous approval. DATED at Burlington, Vermont this 14th day of March 2002. son876.1it CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Its Attorneys } Amanda S. E. Lafferty J MAR-12-2002 TUE 01:51 PM STTTJ�EL PACE FLETCHER PC FAX NO. 802?71552 Po 02 STATL? OF VrIiMC N'T ENVIRONMENTAL LAW C,Or1RI" IN IUl '1'YMBURIAKF. ASSO(JATES ) (fS01 Williston lid., So, 13urlington) ) Locke, No, 204-12-01 Vice 7Tllt'11ila;RLAKE ASS.00A'Cli.S' RVPI,V'C'O SOUTH BURLINGTON'S lCHONS-MOTION f'Olt SUMMARY JUDGMENT 1`,ro v Associates by and thrOUgh its attonycys, Sarvak and t it�acrr liryucr, .11ltl tilt:", [his Reply to 5or]tli Burlington's Cross-Motinil for Summary Judgment. 'I'lll.'l NUM BLR OIL PUMPS ARE NOT A I'l:?RNMFT CONDITION I3CUT .INS'i`l;AD PART OF' FIF USE, Zooing is in dc:rogati on of the common law and the construction ofthc law most �tzvr'ys,r'.>1w to the 11roiycrty owlrcr• is Cavored.. Soo In Re Weeks. 167 Vt. 551, 555-556 (1998). 'I11w genc;ral vido, is t1rat it propetty owncr can apply to make full use of his proporty. ',imply laxtmse 111z p:°oj,;ct is lawful and appropriate with three fueling positions has no res .ju.111cata d'CQCt to ++y ('otir l`uc,ling positions would not also he lawful. See In Re Carrier, 155 Vr. 1 `',,, srpplic; to (1enials.) It is for a board car a could to impose conditions, and in Judge W'rght'4 J�+rbnu.y �R, INS ecnditiom,; w ero irnposed, fi RLmSLT. 1N 1, J,,uwiiy28, 1999at pg� 15. llowevcr, the nuinbcr oi'lrumps was not a condition imposed; rather thin was hart of t(lc u,u it.,.�.11. [''caticlitic�rts arc cicsigucd to al'f5ut ccrtaiu ticbativc intl�acts ofa project a]nd rir+: not rin iss,.lc,11c'10sirlcc: the cotsditions tu-c not proposed to change. Accordingly, cases that djscu5< last)+.9i �iyirr,Y ccRr�clitir�ru; tsrc: t`nrtlll]liorlhlu. �1dGlitiirnally, the larin�ary issue itr the corlditio�l:� aru I,rtt(l ;4:](7ilitl,, TLC only co'dition pci-taininp to the pumps is that they have vapor recovcfy w1iich k oot ovQ11 1rc'Cesszlry '-Is a condifon since tl1C air rcgulations already rectiiirc that technology. MAR-12-2002 TUE 01:51 Phi STITZEL PAGE FLETCHER PC FAX NO, 802RR 2552 P, 03 1,110 prior use 1101-C was (ktermined to bo lawful and in compliance with the ordinance. ,1rO tj nujrtbcr Of V503 allMed for tbis coinmcrcial piece of property besides a bank ATM alld anot1wr gmt puntp) is one of tbose allowed uses. "1"llERE' HAVE, BEEN C:IIANGFS IN FACTUAL Olt REGULATORY CIRCUMSTANCE'S BEYOND THE CON'i'ROI, OF TiIF. PERMITTEE WITEN UIR C'I-IITTENDEN BANK TL'RMTNATED i'rS ATM LEASE On S;;ptcttibQr 1, 1994, ws a requirement to the s-ile of the sale of the property, in which 111.0 C11i[MidenDank sold the property to Timberlake Associates, the Scaler retained a lease to maint;iio an ATM at the prstpaerty flor an tjnlimited number of years. This is shown in n inci tiorandow of a Icnsc in Book 367, Page 688, of the South Burlington Land Records. Further, the Wjarronty Doed to the promises prohibits Timberlake Associates from installing a compolitor's ATM at the location and (.leis: i.y recorded at Book 367, Page 691, of the South Burlinl;toa land Rccot-Js. These were all contracts unposed upon Timberlake Associates by the C.'Ijittcnden hank when it sold the property, at which time the Chittenden retained an ATM at the lVj'rl%'rty. Thrcu ymrs halter, on September 1, 1997, after the local permit process was finished and the mauer %vas itndcr litigation in the Environmental Court, the Chittenden Bank terminated its loasc Associates without a feasible A'1'NI option. Bcc.&ISC IlIC clrcumstanccs by which the bank. ATM was proposed to be utilized completely changed, Timberlakc Associates c>jn'111l1ly to Modify its lsl;tn. 1p_f ;Stowe Club Fiij±hlands, 166 V!, 33, 37 (1996). B MAR-12-2002 TUE 01:52 PM STITZEL PAGE FLETCHER PC l l FAX NO. 802RQ2552 I I'. 04 WI. C PERATION OF T`1IF PROJECT HAS NOT FUNCTIONED W11*1L WITT 10UT TI-1F. FOURTH PUL LINO POSITION floc Eburth fuchng position itself will provide to net benefit to traffic flow. The current d' .:silitt algxnlrs to bo two full pumps from the street. A consltrnt problenm has emerged that a molotitit will bull up to the shut dawn feeling position, park and atiempt to pump gas. The cn.torncr ibon realizes it is not fLuictional znd has to reslart the car and maneuver around the site to airothcf shot. Often irritated or perhaps determined to get another fueling position, these nu ,divers can occur of relatively high speeds and in reverse whcre people are also walking from the T}vmp:a to the store, or watlldnE, from the store to the pumps, This will continue to be a vrobl,%mr t h,:ramse many of'tbe sttas customers are visitors and tourists unfamiliar with the store's kiyOut. 'I'lrl,s ()r0j)0SCd atticndntcnl will promote a safer traffic flow. Tho C:ity's arpumrnt St page 5 of its brief that projects not planned appropriately nu.tst Cgist ill cEtnos fotVvcr is had public policy and misstates how "changes" in circutmrances h w(! been imeraaMcd by tic Courts, l'imberl;tke v. Winooski, 1170 Vt. 643, 644, 756 A.2d 774 (April 25, 2000), Time pissage demonstrating a poor layout is a change in circumstance:. '11tis issue was not di ,covered by the: parties in the; prior pcimit process and hence, ipso rUL:W, mi.t not rmr;sormbty foresec<tble given the contested nature of the prior litigation. 79 VEHIC:LE"I'MPS ENDS IN RES JUUICATA IT;Ilie provisions intended for traffic control" were a primary issue addressed by the Vermont Supreme Court, Ire Rc,Do11py, 170 Vt. 109, 110, 742 A.2d 761 (1999). The level of tr;ri'lit gcr;crattu�l is eltiitc ccntrAl to such an analysis. The City's label of"dicta" at page 7 of its I rie t' i situl�ly irraccrtrartc. The. 79 ;rip ends were part of the local board's decision, Judge Wvik,lat"s ovicr arld in ilia Vc:rlvollt Suprerrrc Court decision. Accordingly, the: fact that tra (f is 3 MAR-12-2002 TUE 01:53 PM ST TZEL P3CE FLETCHER PC FAX Na 80%1'=g0E559- P, 05 ciiiitrolti in price Call b safely accommoduted 79 vehicle trip ends (slightly less than 40 cars) in ILC l-a Ok 110tir is res juclicryts. A PRIOR AP111.0VAL FOR FOUR. FUFI INO POSITIONS Sl I(.)WS TT TAT THE USE IS LAWFUL 4 he t..'ity poiniti to the fiat dint in 1994 it approved, as a (.*nditiorial USC, four fueling po"'111"oils fl)r till' property with a hank A' M usv. However, the City reinterprets that approval into �1 t)cni;il, '1110 tact 111,it Emir fueling positions With a bank ATM in 1994 were appWved eon,41111c.;; 11,0 b,u. wllai.ioover to the Court now approving four fueling position.q without the be A'i'K The prior approval simply nicans lbat four fueling positions arc a lawful and good plan, '11L (.ity's urguniciit might have muit if a plan for four E"uelirlg positions had bccit dooicdt Sr,155 Vt, at 158, But that is not thu case, and the prior npprov it suppolls this lippiicatioll, Liven assuming, arguciido, that there had been z prior denial (which then.- hasn't heed). 'l'irtll edoko Associiitcs could still mapply. A SUbstantial change in an application or a willii�tlp oss. to Comply with conditions allowson {applicant to reapply, In ire Carrier, 155 Vt. 152, 159, 582 A,2d 110, __ (1990), uitiil , Tn Re Crescent Beach, 126 Vt, 140,141, 224 A,2d 1)15, 1) I6 (1966). Where will be a suListantial improvement to traffic circulation by the project. As,,oci:itcs is willing; to comply with such conditions as are masonahly inipo!cd. Accordingly, Titnbcdake Associates is entiticd to be heard. 4 MAR-12-2002 TUE 01: 53 PM ST,TZE . PKE FLETC ER FC FAX NO. 802-- 2552 F, 06 I l'tlti 11R.OJEC:T C OMPLIES WITH THE TRAFFIC OVERLAY DISTIUCT 11wre aru ways a prc}ject can comply with the traffic overlay district, including if there is 1 act benclit to traffic liow or if the proposed use ckies not generate more traffic than the exislin u�,r,. As discussed above, there will bean immediate net bonefit to safety and traffic flow by oddintr tita' iixrrtlt lLle ilig position. •l'Iterofnre, the City's claim that th, xrc is no benefit to teal. is noo! fails, and the City is not entitled to Simir r;y Judgment. WhiIc it is a disl.-Rated fact whethLcr the pump provides a net betictit to tra f"tic flow, the Court can still grant Timberlake Associates summary judgment by finding the proposed u e c!c>'cs not ,ryctx:►•;ne more Irftt'l-t tha:i the oxistinr use, The "existing use" is the project as pct•tttitted by ilt - ticrisic►n in the }�ric,r })ortnit 1)roccss. 21.50 of the South lurlingion Zoning Regulations. '! ltc. hank ATM is an existing use that was ;allowed and it gcncratcs 21 vehicle trips ends. In ke Wright, 1129/99 p, 5• A ticw pump will only geuerate at most 19 vehicle trip ends. Accxurdingly, hero will not lac an increase in the trip end.; as ;originally approved, and instead a reduclion in cafe vchlolo (2 trip ends is one car catering and leaving.) The propowd t.L�e will not F,cIlemte more trtflic that the existing use, and therc,fore the Court can find that the Project ctni,iphXt with tits, tuiflie overlay district.. ' TIR: 19 vehicle trips ends arc cta;tccdo;i for the rurposos of Sumimary 1m]-m ut to give the City the benefit of rca!'on:154: io114-1,11cuS. Thotic tell em1s, however, were datemihlo i by fi4tituta of Traiiie kngintxsrs without eoasidoation, of 1114 IV)-i;iNIity that a sttbstantiat amot;mt of h•affic entering ilia proporty now dogs so based can the t)Qli;t(tt'r,Jt dturw is.i fUUrtll Riding position. At trial, Tintberkakc Associntos will be providing expert testimony that, i;l fiti.t, no'Iddhiumal tralllu w111 be gonei,iW by this prmx)sal. 5 MAR-12-2002 TUE 01:54 PM STiTZEL PAGE FLETCHER PC FAX N0. 802Pyg2552 F. 07 CONCLUSION Thc, C;oi,u-t should aUN,,ird 'rimbcrI3k-c Associates; Stimmaq Judgment. TIM Cnurt ShOUld c ',ny ihc'. (�ity's Motion for Sunirawy Judgment. I'Mlo,i of Soiah Burlington, VT this �_ (lay o.f February, 2002. r '1'ui�berlal;e Associ�tzs William 1✓. Sim6fidingcr, Esq. Sarvak and Simendinger 32 San Remo Drive SOULI-I Burlington, V"r 05403 ( ;D4ic iww6 nnJ SoNagAkdWW,&ty rluctutic ntc Ubxdu�ct('s9t2uply.doc 6 MAR-12-2002 TUE 01:54 PM STiTZEL PAGE FLETCHER PC FAX N0, 8OP-' 2552 P. 08 Affidavit of David Simondinger 1, D ivici Sinicadingcr, lhcreby state and deliose (lie fCllc�r� irrs �i�icl:.l r?elic� e tc� he ]. 1"imborlakc Associates owns 801 Williston Road, Soutar Burlington, 2, Join n ,Rartncr in Timbrrlalcc AssociaLms, and I have been involved Witi-r the dovc!Io pm4nt of thu property. 3. 'l ho racti described in Timberlake Associates' RcriJy to South l: urllw,-Al rr's Cross-MoLiOn for Sulrrniary Judgment are true and correct. 1�;stt" David Sire ink C:111'1"Fl7,,N[)17,N C,'DLJN".l'Y ) 1 E'FORE ME, talc undusign.ed authority, personally appcar.cl D vid Simnwndiugcr, cluly whorized agent ofTimberlake Aw;ociates, who first boing duly Syworo, dcrllos d mul ";Lated thr It lac SiL.,110d the above ARidavit by the fret;, Tact anti oiecd of �1t �;t}llltt l3url'srrt,tt�sr, V"C tlrisr � day cif fcbru y, 200 No ary Public My commission expires 2-10-03 ('VI xmmcula.r,ul :doe M.AR-12-2002 TUE 01: 50 PM PTTTZL PACE FLETCHER FC FAX NO, 80-92552 i SuT7GL, PAUI's & Fu-n, . MR, P.C. A'rroRNL•;Y5 AT LAW 171 T1AT I FRY STRl.l,"T P.0.13OX 1507 Rl IRMNI(iTON, VIAMt7N1' U54t)2.15O7 (402) 660.2555 (YOICE(mv) 1•AX(802)G(,6-3SSierU0.9II9 1'A'I i t It t'A .M* li-MAIt (FIRM': 5541,N-lItMBI-I'.(1UM) Pit In.It'i I� 1 1 L I't'IU (4 WrdURSE-MAIL (ALAFFr•ItTY(rr()FIRM5PF.00M) dl.NI,Hl t. MOA-AN WRYI1 l0 t:AX (ltAa)(ALLIMz 11a,01IIY M.IdiS I'M I: (MI DAIIt]tlIITI5NY FACSIM41.7 TRANSMITTAT, SI117ET March 12, 2002 1'I): R¢ly Belair 1" It;4: 846-4101 Re: )Ii Itc: Tinibcrlake Associates Docket No. 2041-12-01 Vice S-,,n(h�r: Amanda S. F'. Lall'buy, Esq, AMANDA S E. LAMERTY i.hWARIJG. ADRIAN _- YOU S110111d MCCivc _ 8 Pnge(S), ineluding this cover sheet. If you do not rVeoive all tht at res, lc.asc tall (802) 660-2555, MI ,SSACYF, Tralnsmitled herewith i:; the Timbcrrake Associates' Reply to South Burlington's Cross- N101inn fur Summary Judgment and Affidavit of David Simendinger in connection with t11ta ,II>a<<c•rcfcrcnr4ci matter, ThOnk you. 1 bis nn.-m- is iuit11&0 only I'm lhc kisv ol'the micisr ssec rind niny conmin infbrinn(ian that is privileged and conlidcnrinI, Tryon arc not the IIu4mIk,,IruciptcM. you hrc hervby naufled that any (Imsemmorinn of this communlendnn Is strictly pmhlhried. Tryon hnvc rcccive(f this Wi Mtllikalioll in error, pleniz iiohly us Immeduilely by tciephnne (802-660-2555), "('hank yry)u. r STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE ('ALSO ADMITTED IN N.Y.) February 4, 2002 VIA HAND DELIVERY Jackie Stevens, Acting Clerk Vermont Environmental Court 255 North Main Street Suite 2 Barre, Vermont 05641 Re: Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Dear Ms. Stevens: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Enclosed for filing please find the City of South Burlington's Response to Appellant's Motion for Summary Judgment and Cross -Motion for Summary Judgment in connection with the above -referenced matter. Thank you. Sincerely, Amanda S. E. Lafferty 14 ASEL/myb Enclosure cc: Ray Belair, Administrative Officer William E. Simendinger, Esq. son4745.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 IN RE: APPEAL OF ) TIMBERLARE ASSOCIATES ) DOCKET NO. 204-12-01 Vtec CITY OF SOUTH BURLINGTON'S RESPONSE TO APPELLANT'S MOTION FOR SUMMARY JUDGMENT AND CROSS -MOTION FOR SUMMARY JUDGMENT NOW COMES THE City of South Burlington; by and through its attorneys, Stitzel, Page & Fletcher, P.C. and asks this Court to issue an Order granting summary judgment in its favor in the above -referenced matter. STATEMENT OF UNDISPUTED FACTS The facts necessary to decide the City's Motion for Summary Judgment are not in dispute and are set forth as follows. 1. At all times material to the matter, the City of South Burlington (hereinafter the "City") has had Zoning Regulations (hereinafter the "Regulations") in effect. See Exhibit 2 of Appellant's Motion for Summary Judgment.' 2. Timberlake Associates. (hereinafter the "Appellant") owns and/or occupies property consisting of 79,180 square feet and located at 801 Williston Road in the Commercial One Zoning District and Traffic Overlay Zone 1 of the City (hereinafter the "Property"). Currently, a 900 square -foot convenience store, gas ' Appellant did not provide the City with a copy of its Exhibit 2 and did not include in its motion which version of the Regulations Appellant provided to the Court. For clarity, the Regulations which include amendments through November 27, 2001, are the relevant ones for this matter. 1 STITZEL, PAGE & PLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BCRUNGTON, VER.I.10NT 05402-1507 station with three fueling positions and a 32 foot by 40 foot canopy exists on the Property. 3. On or about October 4, 2001, Appellant made application to the City Development Review Board (hereinafter the "DRB") for site plan and conditional use approval to amend the current site plan. Specifically, Appellant proposed to add one fueling position, air and ice dispensers and a pay phone. 4. By Decision dated December 4, 2001, the DRB denied Appellant's applications for site plan and conditional use approval, referenced in paragraph 3, above. This appeal followed. SUMMARY JUDGMENT STANDARD Rule 56(c) of the Vermont Rules of Civil Procedure provides that summary judgment shall -be rendered forthwith where it is shown that "there is no -genuine issue as to any material fact and that any party is entitled to judgment as a matter of law." Rule 56 provides a "mechanism for the disposition of issues, claims and defenses which do not merit a full trial." Gore v. Green Mountain Lakes, Inc., 140 Vt. 262, 264 (1981). MEMORANDUM Appellant's proposed use for the Property constitutes an amendment of a previously approved use which should be denied because there has not been a change of conditions that would justify the alteration of the previous approval. See In re Stowe Club Highlands, 166 Vt. 33, 38 (1996); see also In re Nehemiah 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 Associates, Inc., 168 Vt. 2881 294 (1998). "The central question . _ is . . . . under what circumstances [] permit conditions may be modified." In re Stowe Club Highlands, 166 Vt. 33, 37 (1996). "After a permit is granted and circumstances change, existing permit conditions may no longer be a cost-effective or efficient method to minimize the development or subdivision's impact [t]he permitting process should therefore be flexible enough to address changes in circumstance." In re Nehemiah Associates, Inc., 168 Vt. 288, 294 (1998). There are three changes which justify an amendment to a permit condition: (a) changes in factual or regulatory circumstances beyond the control of a permittee; (b) changes in the construction or operation of the permittee's project, not reasonably foreseeable at the time the permit was issued; or (c) changes in technology. Id. (citing In re Stowe Club Highlands, 166 Vt. at 38). The permitting process requires some finality because, both at the time the permit issues and subsequently, the parties and other interested persons reasonably rely on.the permit conditions in making decisions." Id. In the instant case, there have been no changes which justify the requested amendment. The proposed amendment proposes to add a fueling position, for a total of four fueling positions, and to add air and ice dispensers and a pay phone. Appellant had been operating the existing use as it proposed and as the Environmental Court approved in 1998 for over a year at the time it made application for this amendment. None of the proposed amendments are the results of efforts by Appellant to respond to 3 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 factual or regulatory changes beyond its control or to changes in technology. Rather, the proposed amendments are of the type that are commonly provided by convenience stores with gas stations and are therefore an effort either to provide more services to current customers or to attract new customers. As such, these proposed changes were foreseeable and do not justify an amendment to Appellant's permit. See In re Nehemiah Associates, Inc. 168 Vt. 288, 294 (1998)(stating that "[e]ven where the Board finds such a change, there are certain situations where an amendment may not be justified, for instance where the change was reasonably foreseeable at the time of permit application.") In addition, there have been no changes in the construction or operation of the project that were not reasonably foreseeable at the time the permit was issued. As the DRB pointed out in its Decision, Appellant received approval in 1994 to use the Property as "a convenience store with .four (4) fueling positions." See DRB Decision, dated December 4, 2001, page 1. It is clear that Appellant first considered operating the Property as a convenience store with four fueling positions several years ago. Appellant cannot now amend its permit to add this fourth fueling position when it was foreseeable that it would one day want to operate the Property is such a manner: Permit applicants should consider foreseeable changes in the project during the permitting process, and not suggest conditions that they would consider unacceptable should the project change slightly. Otherwise, the initial permitting process would be merely a prologue to continued applications for permit amendments. 4 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON,\ERMONT 05402-1507 In re Stowe Club Highlands, 166 Vt. 33, 39 (1996). Moreover, the previous litigation should be considered final since interested parties participated in the process of review of the then proposed convenience store with three fueling positions. See In re Appeal of Spear Street/East Terrace Neighborhood Assn., Environmental Court Docket No. E96-045(copy attached to Appellant's Motion for Summary Judgment); In re Dooley, 170 Vt. 103 (1999). They should be able to continue to rely on said decisions without concern that Appellant might make application for that for which it either did not plan appropriately or could not obtain approval in the previous litigation. Appellant's proposed amendment should be denied because there has not been any change in conditions which justifies such an amendment. Assuming arguendo that the Court may review the merits of Appellant's proposed amendment, it does not comply with the requirements of the City Traffic Overlay District and should be denied. Since the Propertyis located in Traffic Overlay District One and consists of 79,180 square feet, any use of the Property is permitted to generate a maximum peak hour volume of 29.69 vehicle trip ends (hereinafter "vte's"). See Section 21.303 of the Regulations. The Trip Generation Manual, 6"' Edition, published by the Institute of Traffic Engineers estimates that the current use of the Property actually generateE 57.66 vte's in the peak hour. See Section 21.201 of the Regulations. Said Trip Generation Manual predicts that the proposed use will generate 76.88 vte's in the peak hour. 5 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BLRLINGTON, VERMONT 05402-1507 Therefore, Appellant proposes an increase in traffic volume above a level that already fails to comply with the standards for Traffic Overlay District One. The DRB "may approve peak hour traffic volumes above the normal standards for a pre-existing lot" if the DRB first makes certain determinations. See Section 21.50 of the Regulations. Appellant claims that it is entitled to generate up to 79 vte's in the peak hour. See page 4 of Appellant's Motion for Summary Judgment dated December 26, 2001. In support of this claim, Appellant attempts to argue that the Supreme Court has approved said traffic level in a previous litigation regarding the Property. See id. In In re Dooley, the Supreme Court considered an appeal by opponents of a project approved by the Environmental Court. See In re Dooley, 170 Vt. 108, 110 (1999). In part, the Supreme Court considered the issue of traffic under Section 21.50 of the Regulations because at that time, the Property was "a preexisting business lot (former drive -through bank depository and ATM location)" and Appellant proposed an increase in traffic volume. Id. at 112. As part of its review the Supreme Court noted: .the evidence disclosed that the discontinuance of all but the ATM use dropped the "currently generated" trip ends figure to 21. Testimony developed that the proposed use would enlarge the trip ends generated to 79, less than the old bank use but more than the later 21. This puts the generated peak hour traffic volume above both the 21 trip end and the regulatory limit of 29/30. Id. at 113. The Court went on to affirm the Environmental Court's conclusion that proposed improvements to the site would 6 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAN 171BATTERYSTREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 produce a net benefit for traffic in the area. See id. at 113, 114; see also Section 21.50 of the Regulations. It is upon this brief discussion of predicted trip generation for the use proposed at that time that Appellant hangs its argument that the Supreme Court has "approved" 79 vte's for this Property. However, Appellant fails to note that this discussion is not a part of the Court's ruling. Rather, this discussion is dicta and has.no precedential value. In addition, Appellant ignores that the Supreme Court, and the Environmental Court before that, in no way "approved" a specific traffic volume for the Property.2 Instead, both courts only noted that the evidence indicated that the proposed use was projected or predicted to generate 79 vte's during the peak hour. See id. at 113; see also In re Appeal of Spear Street/East Terrace Neighborhood Assn., Environmental Court Docket No. E96-045, page 5. This notation was necessary for the determination of whether the proposed use would increase peak hour volumes generated by -the previous use. Neither the Environmental Court nor the Supreme Court have approved a level of traffic generation for the Property. 2 The Regulations also do not anticipate the "approval" of any specific traffic volume. Estimates of traffic levels are not treated, as Appellant urges, in the same manner as discharges to water bodies, i.e., applicants are not allowed a certain level of traffic that is regularly monitored and for which a fine may be imposed if that level is exceeded. Rather, the Regulations attempt to prevent the ill effects of traffic increases by requiring site improvements which "produce a net benefit for traffic flow in the vicinity" during the review of the project by the DRB. 7 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LANV 171 BATTERY STREET M BOX 1507 BURLINGTO\, VERMONT 05402-1507 The Regulations only permit the DRB to "approve peak hour traffic volumes above the normal standards for a pre-existing lot in a traffic overlay zone if the [DRB] determines that a proposed use will not increase peak hour traffic volumes above that currently generated by the existing use . . ." See Section 21.50 of the Regulations (emphasis added); see also In re Appeal of Spear Street/East Terrace Neighborhood Assn., Environmental Court Docket No. E96-045, page 5(stating that "§21.50 does not compare the proposed use to uses currently permissible' on the site, but rather to the traffic volume -currently generated."). The Trip Generation Manual estimates that the existing use on the Property currently generates 57.66 vte's in the peak hour. Therefore, absent any site improvements that "will produce a net benefit for traffic flow in the vicinity" this Court may not approve Appellant's proposed amendment because it does not comply with the requirements of the Traffic Overlay District. The City DRB 's decision - to deny Appellant Is proposed amendment because it determined that the proposed project would result in an increase in traffic with no counterbalancing site improvements - does not amount to a taking. "A land use regulation does not effect a taking if it -substantially advance[s] legitimate state interests' and does not -den[y] an owner economically viable use of his land " Dolan v. City of Tigard, 512 U.S. 374, 385 (1994). In the previous litigation, Appellant proposed a use of the Property which would result in an STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 1 71 BATTERY STREET P.O BOX 1507 BLRLINGTON, VERMONT 05402-1507 increase in traffic levels.3 The Regulations are clear that in order to so increase traffic levels, the Court must determine that the proposed site plan includes improvements that "will produce a net benefit for traffic flow in the vicinity." See Section 21.50 of the Regulations. In other words, the Regulations required Appellant to make site improvements which offset the burden of increased traffic that Appellant's proposed use will create. See Dolan v. City of Tigard, 512 U.S. 374, 391 (1994)(stating that a "dedication should have some reasonable relationship to the needs created by the [development]"). In accordance with the Regulations and in order to decrease the burden on traffic in the vicinity that the Traffic Generation Manual predicted would result from the proposed use of the Property, Appellant proposed the necessary site improvements. However, it is in no way the City's responsibility that the traffic levels that the Property was expected to generate did not come to fruition nor has Appellant "earned" the right to generate 79 vte's. When an applicant proposes a use which will result in an increase in traffic levels above the levels generated by the current use, the Regulations require that the applicant make site improvements to address the increase. The City substantially advances legitimate state interests - control of traffic congestion, minimization of conflicting turning movements and prevention of worsening conditions in areas of high -volume flow - 3 Appellant has not questioned the City's nor the Court's reliance on the Traffic Generation Manual in determining the level of traffic generated by current and proposed uses. 9 by so requiring. See id. at 387(stating that the city's attempt to reduce traffic congestion qualifies as a type of legitimate state interest that the Supreme Court has upheld), see also Section 21.00 of the Regulations. In the current matter, Appellant has proposed no such improvements, yet maintains an economically viable use of his land. See id. at 385. The City's decision to deny Appellant's proposed use does not constitute a taking. CONCLUSION For all the reasons set forth above, the City of South Burlington respectfully requests that this Court enter -an Order, in the City's favor, denying Appellant's Motion for Summary Judgment and ruling that Appellants' proposed use for the Property constitutes an amendment of a previously approved use which should be denied because there has not been a change of conditions that would justify the alteration of the previous - approval. DATED at Burlington, Vermont this 4th day of February 2002. son869.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Its Attorneys 10 �G-3a Amanda S. E. LaffertT -- STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE' E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY ¢FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE ("ALSO ADMITTED IN N.Y.) January 25, 2002 Jackie Stevens, Acting Clerk Vermont Environmental Court 255 North Main Street Suite 2 Barre, Vermont 05641 Re: Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Dear Ms. Stevens: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Enclosed for filing please find the Motion for Enlargement of Time in connection with the above -referenced matter. Thank you. Sincerely, Amanda S. E. Lafferty ASEL/myb Enclosure cc: Ray Belair William E. Simendinger, Esq. son9742.cor STATE OF VERMONT ENVIRONMENTAL COURT IN RE: APPEAL ) DOCKET NO. 204-12-01 Vtec OF TIMBERLAKE ASSOCIATES ) MOTION FOR ENLARGEMENT OF TIME NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C., and requests that the Court permit the City to file its response to Appellant's Motion for Summary Judgment, dated December 26, 2001, no later than February 1, 2002. Attorney Simendinger has informed me that he has no objection to this extension of time. DATED at Burlington, Vermont, this 251.h day of January 2002. CITY OF SOUTH BURLINGTON BY: STITZEL, PAGE & FLETCHER, P.C. Its Attorneys Amanda S. E. Laffertp SO ORDERED: DATED at , Vermont this day of January 2002. son868.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 Presiding Judge 1 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON. VERMONT 05402-1507 (802) 660-2555 (VOICErFDD) STF.VFN F STITZEL FAX (802) 660-2552 or 660-9119 PAFFIR PAGE' E-MAIL(FIRM2555(a)FIRMSPF.COM1 ROBERT E FLETCHER WRITER'S E-MAIL (ALAFFFRTY(riFIRMSPF.COM) JOSEPH S McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M EUSTACE ('ALSO ADMITTED IN N Y ) January 4, 2002 Raymond Belair City of South Burlington 57 p, ?lr rcp C -_rpp South Burlington, Vermont 05403 Re: Timberlake Associates Docket No. 204-12-01 Vtec Dear Ray: AMANDA S.E. LAFFERTY EDWARD G. ADRIAN Enclosed please find the Statement of Issues in connection with the above -referenced matter. Thank you. Sincerely, (� Amanda S. E. Lafferty ASEL/myb Enclosure sor,4 / it .r-or STATE OF VERMONT ENVIRONMENTAL LAW COURT IN RE: TIMBERLAKE ASSOCIATES ) Environmental Court (801 Williston Rd., So. Burlington) ) Docket No. ,2oq — JA O1 Vk2C STATEMENT OF ISSUES Now Comes Timberlake Associates by and through its attorneys, Sarvak and Simendinger, hereby submits this statement of issues. 1. Whether the Court should grant summary judgment to Timberlake Associates since the proposal will generate less VTEs than which has already been approved in prior litigation. 2. Whether the Court should permit the project. 3. Timberlake Associates reserves the right to supplement this statement of questions in the future. Dated at South Burlington, VT this 28i" day of December,%2001 William E. SitntWinger, Esq. Sarvak and Simendinger 32 San Remo Drive South Burlington, VT 05403 CADocuments and SettincsUeltonNy Documents\2001docs\1391ssues.doc STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREF F P.O. BOX 1507 BURLINGTON, VERMON1' 05402-1507 (902) 660-2555 ( VOICE/TDD) STF:VFN F. SI IT/EL FAX (802) 660-2552 of 660-9119 PATTI R PAGE' F.-MAIL(FIRM2555W+1RMSPF.COM) ROBFRT E H-ETCHER WRITER'S EMAIL (ALAFFERIY(a)FIRMSPF.COM) JOSFPH S McLEAN WRI"I ER'S FAX (802) 660-2552 1IMOTHY M_ FUSTACE ('ALSO ADMIT"I ED IN N Y) January 2, 2002 Raymond Belair City of South Burlington 575 Dorset Street South Burlington, Vermont 05403 Re: Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Dear Ray: AMANDA SI' LAI FER"IY EDWARD G. ADRIAN Enclosed please find recent correspondence from the Environmental Court in connection with the above -referenced matter. In accordance with paragraph 2, please provide Timberlake Associates, with copy to the court and myself, a list of the interested parties in this matter. Please call with any questions. Thank you. Sincerely, �In Amanda S. E. Lafferty ASEL/myb Endo^ lir C son" 73U.cx>r December 28, 2001 ---------------------------------------- Amanda Lafferty, Esq. Stitzel, Page & Fletcher PO Box 1507 Burlington VT 05402 ---------------------------------------- Appeal of Timberlake Associates Docket No. 204-12-01 Vtec Environmental Court docket number 204-12-01 Vtec has been assigned to the above -referenced zoning board/planning commission appeal. The notice of appeal was received at the Environmental Court on December 19, 2001. Please use the Environmental Court docket number when filing any documents or asking any questions concerning this case. Vermont Rules of Civil Procedure No. 74 and 76(e), as amended, set out the procedures to follow in this appeal, including the following: 1. A person filing the appeal is called an "appellant". Appellant has thirty (30) days from the date the notice of appeal was filed to file with this Court the statement of questions required by V.R.C.P. 76(e)(4)(B). This statement should be specific because it will govern the scope of the appeal. 2. V.R.C.P. 76(e), as amended effective July 1, 1996, requires the clerk of the zoning board/planning commission to provide to the appellant a list of all interested parties, with instructions to serve notice upon the interested parties that the appeal has been filed and to give them the address of the Court to allow them to participate in the case here. We request that the town/city send to the Court a copy of the list of interested parties it provided to the appellant. The appellant must send a copy of its notice to interested parties to this court. Within seven (7) days of the date of this letter, we request that the appellant also send us a list of the people who received the appellant's notice to interested parties. 3. A person with standing to oppose the appeal is called an "appellee". Appellees have twenty (20) days from the date the appellant serves them with the notice that the appeal has been filed, to file their entry of appearance (request to participate) with this Court. Failure to file an appearance within this time may result in the case proceeding to a merits hearing without them. All parties who are participating in this case are responsible for sending copies of their court filings to the other parties. The case will be ready for hearing when the time for filing the appellant's statement of questions has expired. The Court may extend that time if requested by written motion. The Clerk of the Court will contact the parties to arrange for a pre -hearing telephone conference with Judge Merideth Wright, or the Case Manager and the case will be set for a merits hearing to be held in or near the county in which the case originated. Please note that under 24 VSA 4471 (1) these appeals are de novo, unless the municipality has adopted procedures to make them on the record. Sincerely, (I J,L-A ,,� Y�� Jacal M. Stev ns, Ac ing Clerk Vt. gakironmental Court CC: William E. Simendinger, Attorney for Appellant, Timberlake Assoc. Amanda Lafferty, Attorney for Appellee, South Burlington, City of FAXED COPIES DO NOT MEET FILING DEADLINES. FAXED DOCUMENTS MAY BE AUTHORIZED IN EXTREME CIRCUMSTANCES. PLEASE DO NOT FAX WITHOUT AUTHORIZATION. IF YOU HAVE NOT PROVIDED THE COURT WITH A TELEPHONE NUMBER WHERE YOU CAN BE REACHED FOR THE PURPOSE OF TELEPHONE CONFERENCES. PLEASE DO SO. CITY OF SOUTH BLIRLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 January 3, 2002 Carolyn A. Hutchinson, Clerk Vermont Environmental Court 255 North Main Street, is` floor Barre, Vermont o5641 Re: Appeal of Timberlake Associates Docket No. zoo-iz-oi Vtec Dear Ms. Hutchinson: The following is a list of the interested persons regarding the above referenced matter: i. Wilbur & Barbara Bull 17 East Terrace South Burlington, Vermont 05403 z. Sandra Dooley 44 East Terrace South Burlington, Vermont 05403 If you have any questions, please let me know. Sincerely, Raymond J. Belair Administrative Officer Td CC: Amanda S.E. Lafferty, Esq. William E. Simendinger, Esq. a STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY ST'RF FT P.O. BOX 1507 BURLINGTON, VERMONI' 05.102 - ! 507 (802) 660-2555 (VOICE/ -I DD) STEW-N F STITZEL FAX (802) 6b0-2552 or 660-9119 PA'r'rl R PAGE" E-MAIL(FIRM2555(dF!RMSPF.COM) ROBERT E. ELETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF COP•4) JOSEPH S. McLEAN WRITER'S FAX (802) 600-2552 TIMOTHY M. EUSTACE 0A L SO ADMITTED IN N.Y.) December 28, 2001 Raymond Belair City of South Burlington 575 Dorset Street. South Burlington, Vermont 05403 Re: Timberlake Associates Docket No. 204-12-01 Vtec Dear Ray: AMANDA S E. LAFFERTY EDWARD G. ADRIAN Enclosed please find the Appellant's Motion for Summary Judgment without attachments in connection with the above - referenced matter. Thank you. Sincerely, Amanda S. E. Lafferty ASELjmyb Enclosure son4729.cor STATE OF VERMONT ENVIRONMENTAL LAW COURT IN RE: TIMBERLAKE ASSOCIATES ) Environmental Court (801 Williston Rd., So. Burlington) ) Docket No. APPELLANT'S MOTION FOR SUMMARY JUDGMENT Appellant Timberlake Associates ("Timberlake"), by and through its attorneys, Sarvak and Simendinger, moves this Court, pursuant to V.C.R.P. 56, for summary judgment in the above -captioned appeal involving a certain lot of land at 801 Williston Road in South Burlington that Appellant owns (the "Property"). Appellant seeks a ruling that it can maintain uses at its property resulting in traffic volumes up to and including those levels approved for the Property and for which Appellants constructed improvements as required in In re Appeal of SETNA, Docket Nos. E96-045, E96-107, and E96-169 (Slip Op. dated January 28, 1998); In re Dooley, 170 Vt. 108, 742 A.2d 761 (1999) (the "Previous Litigation"). For reasons discussed in Appellant's supporting Memorandum of Law, there is no genuine issue as to any material fact and Appellant is entitled to judgment as a matter of law. The resolution of this purely legal issue should permit the parties to resolve the balance of this case without a great deal of further effort by the Court. Appellant proposes to eliminate the full service ATM use at the Property (which had 21 VTEs assigned to it) and instead to activately use the existing fourth fueling station at the Property without changing the size or appearance of the Property. Appellant contends that both these changes reduce traffic to the Property below 79 VTEs during the peak hour, which is the level of traffic already approved by this Court. STATEMENT OF UNDISPUTED FACTS l . Exhibit 1 is a copy of the Court's decision (the "Court's Decision") in the Previous Litigation. Such decision was upheld on appeal. See In re Dooley, 170 Vt. 108, 742 A.2d 761 (1999). The Court's Decision approved uses -- a bank ATM and three gas -fueling positions -- at the Property located in the Traffic Overlay District, resulting in 79 Vehicle Trip Ends ("VTEs") during the peak hour. In the Previous Litigation, the Court required Appellant to make sufficient site improvements so that this level of traffic at the Property could be accommodated with a "net benefit for traffic in the vicinity" as required for approval pursuant to S. Burlington Zoning Reg. § 21.50. 2. Exhibit 2 in the accompanying appendix is a true copy of the City of South Burlington Zoning Regulations (hereinafter "S. Burlington Zoning Regs" or "S. Burlington Zoning § _") in effect now and on the day of Appellant's application. S. Burlington Zoning, Article XXI, entitled "Traffic Overlay District", has not been amended since the Previous Litigation. S. Burlington Zoning, § 21.30 provides that the "permitted size of a use on any lot in the traffic overlay zone" shall be determined with reference to the "projected traffic volume of the use during the peak hour." 3. The South Burlington Development Review Board ruled that the proposed use with the fourth fueling position will only generate "76.88 VTEs." -2- MEMORANDUM OF LAW Appellant is entitled to partial summary judgment as a matter of law because it constructed traffic improvements at the Property to enable safe access and use of the Property foi a certain level of traffic. Zoning bylaws permit communities to make sure projects are well designed and safe for their anticipated use. Appellant bought and paid for improvements at its site to achieve this goal. S. Burlington Zoning Regs make no provision for taking back from property owners the benefit they earn from making such improvements. Moreover, there is no justification or provision for requiring still further improvements from Appellants beyond what i; justified to serve this level of traffic or for forcing Appellants to maintain traffic loads below those for which improvements to their Property were designed. Indeed, to do so violates "takings" decisions by the United States Supreme Court (see e.g. Nollan case discussed below). ARGUMENT Standard for Summary Judgment The Environmental Court may grant summary judgment pursuant to V.R.C.P. 56. See V.R.C.P. 76(a)(2). Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and a party is entitled to judgment as a matter of law. V.R.C.P. 56(c)(3). The movant must fulfill a two-part test: first, demonstrate that there are no material fact issues between the parties, and second, present a valid legal position that entitles the movant to judgment as a matter of law. See Gore v. Green Mtn. Lakes, Inc., 140 Vt. 262, 264, 438 A.2d 373, 374 (1981). -3- H. Appellant Bought and Paid for Sufficient Traffic Improvements to Allow 79 Peak Hour Vehicle Trip Ends to the Property. S. Burlington Zoning § 20.50 provides "The Planning Commission may approve peak hour traffic volumes above the normal standards for a pre-existing lot in a traffic overlay zone if the Commission determines ... that other site improvements will produce a net benefit for traffic flow in the vicinity." Acting as it does in the role of the Planning Commission, the Court appli this standard in the Previous Litigation. Thus, as approved by the Vermont Supreme Court, this Court approved 79-peak hour VTE's to the Property on condition of certain design changes providing a "significant and `net' benefit to traffic in the vicinity." In re Dooley, 170 Vt. 108, 742 A.2d 761 (1999). In particular, the Court required dramatic alterations to Appellant's design to produce large traffic improvements by eliminating left turns from Williston Road into the Property and from the Property westbound onto Williston Road. It is res judicata that 79 VTE can be safely handled by the approved design. III. S. Burlington Zoning Regulations Make No Provision for Revocation of Peak Hour Traffic Volume Allowances Permitted as a Result of Traffic Improvements. Because zoning restrictions are in derogation of private property rights, it is well established that zoning restrictions will not be presumed. Rather, unless a municipal zoning ordinance clearly expresses otherwise, it is presumed that a property owner may freely use his property in whatever manner he sees fit. See Appeal of Weeks, 167 Vt. 551, 555-56, 712 A.2d 907, 910 (1998). In keeping with this principle, courts should not find the implied existence of land use restrictions when such restrictions could easily have been provided for in the express language of a municipal zoning ordinance. In fact, the S. Burlington Zoning Regs are not even ambiguous. They contain no provision, not even an ambiguous one, for revocation of peak hour traffic volumes granted in -4- exchange for costly traffic improvements to allow such volumes. This result is sensible. Traffic improvements normally involve construction that is and should remain permanent. To be fair, the exchange must be permanent on both sides. IV. Revocation of Vehicle Trip Ends Earned for the Property by Improving It or Requiring Additional Improvements Violates Principles of Zoning as Well as the Takings Clause. Zoning exists to regulate land use — not to confiscate property. Zoning restrictions may be enforced only when: (1) they are related to an essential governmental purpose (the "Essential Nexus Test"), Alollan v. California Coastal Commission, 483 U.S. 825 0987); and (2) the de of burden "bears the required relationship to the projected impact of petitioner's proposed development" (the "Rough Proportionality Test"). Dolan v. City of Tigand, 512 U.S. 374 (1994). Zoning restrictions failing these tests may not be enforced because they amount to an "out-and- out plan of extortion" rather than regulation. Nollan v. California Coastal Commission, 483 U.S. 825, 837 (1981). Taking back the VTE allowance earned for the Property violates both tests. By definition, all traffic improvements necessary to justify and allow 79 VTEs to the Property have been made. Requiring further improvements or denying the benefit of such improvements violates both the Nexus Test because further improvements are unrelated to the proposed use of the Property and the Rough Proportionality Test because such improvements exceed this Court's previous determination of the impact of the Property's proposed development. -5- CONCLUSION For the reasons outlined herein, the Court should grant Appellant's Motion for Summary Judgment and rule that Appellant can maintain uses at its property resulting in traffic volumes up to and including those levels approved for the Property and for which Appellants constructed improvements as required in the Previous Litigation. Dated at South Burlington, VT this � day of T)Premher ?nnl 32 San Remo Drive South Burlington, VT 05403 CADocuments and SettingsUeltonNy Documents\2001docs\B9SummaryJudgment.doc M STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY S"IREGT P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE• E-MAIL(FIRM2555RFIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY(r FIRMSPF.COM) JOSEPH S_ McLEAN WRITER'S FAX (802) 660-2552 TIMOTIIY M. EUSTACE ("ALSO ADMITTED IN N.Y.) December 18, 2001 Carolyn Hutchinson, Clerk Vermont Environmental Court 255 North Main Street First Floor Barre, Vermont 05641 AMANDA S.E LAFFERFY EDWARD G ADRIAN Re: Timberlake Associates Appeal - 801 Williston Road Docket No. Dear Ms. Hutchinson: Enclosed for filing please find Timberlake's Noti: of Appeal, as well as a check in the amount of $150.00 for the fees associated with this above -referenced matter: Please also find for filing my Entry of Appearance in the above -referenced matter. Thank you. Sincerely, Amanda S. E. Lafferty ASEL/myb Enclosure cc: Raymond Belair William E. Simendinger, Esq. son4725.cor STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) TIMBERLAKE ASSOCIATES ) VERMONT ENVIRONMENTAL COURT APPEAL ) DOCKET NO. ENTRY OF APPEARANCE NOW COMES AMANDA S. E. LAFFERTY, of the firm Stitzel, Page & Fletcher, P.C., and hereby enters her appearance in the above - referenced matter by and on behalf of the City of South Burlington. Dated at Burlington, Vermont, this 18th day of December, 2001. son859.lit STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 STITZEL, PAGE & FLETCHER, P.C. Amanda S. E. Lafferty Sarvak & Simendinger ATTORNEYS AT LAW 32 San Remo Drive, So. Burlington, VT 05407-2287 (802) 658-9999 Fax (802) 864-6234 Certified RRR December 12, 2001 Development Review Board Secretary Planning and Zoning Office City of South Burlington 575 Dorset Street So. Burlington, VT 05403 RE: 801 Williston Road, So. Burlington Dear Secretary: Enclosed please find $150.00 and Notice of Appeal in reference to the above matter. Thank you. Enc. cc: Marc Heath, Esq. C:\Documents and Settings\tkelton\My Doc uments\2001docs\B9SoBurl.doc CITY OF WINOOSKI DEVELOPMENT REVIEW BOARD IN RE: TIMBERLAKE ASSOCIATES ) (801 Williston Rd., So. Burlington) ) DOCKET NO. Appeal of South Burlington Development Review Board TIMBERLAKE'S NOTICE OF APPEAL Timberlake Associates, (hereby called "Timberlake") by and through their attorneys, Sarvak and Simendinger, hereby appeals the December 4, 2001 decision of the South Burlington Development Review Board, a copy of which is attached, as follows: 1. Timberlake Associates, 32 San Remo Drive, South Burlington, VT 05403 is the property owner and appellant. 2. The property at issue is an Exxon station at 801 Williston Road in South Burlington, Vermont. 3. Regulations applicable to the appeal include but are not limited to the South Burlington zoning regulations. 4. The relief is proper because the project complies with the regulations and laws. WHEREFORE, the Court should approve of the conditional use permit and site plan approval. Dated at South Burlington, VT thisiakday of December, 2001. %i.; 1 7 2W City of So. Burlington Tim es William FY-05imVndirter, Esq. Sarvak and Simendinger 32 San Remo Drive South Burlington, VT 05403 CADocuments and Settings\tkelton\My Documents\2001docs\B9NoticeofAppeal.doc -1- #CU-01-44 #SP-01-77 STATE OF VERMONT COUNTY OF CHITTENDEN CITY OF SOUTH BURLINGTON RE: APPLICATION OF TIMBERLAKE ASSOCIATES This matter came before the South Burlington Development Review Board pursuant to the provisions of Sections 26.10 and 26.05 of the South Burlington Zoning Regulations on application of Timberlake Associates, hereinafter "Applicant" for approval to: 1) add one (1) additional fueling position, and 2) add air and ice dispensers and pay phone, 801 Williston Road, as depicted on a one (1) page set of plans, entitled, "Site Plan Timberlake Associates South Burlington Exxon 801 Williston Road South Burlington, VT," prepared by SMM Environmental Engineering dated 2/17/97, last revised on 4/3/01. The Applicant was present at the public hearing held on 11/20/01 relative to these applications. Based on evidence submitted at the hearing and as part of this application, the South Burlington Development Review Board hereby renders the following decision on this application: 1. This project consists of a site plan and conditional use application to amend a previously approved site plan for a 900 square foot convenience store with three (3) fueling positions and a 32 foot by 40 foot canopy. The amendments consist of: 1) adding one (1) additional fueling position, and 2) adding air and ice dispensers and pay phone, 801 Williston Road. 2. The owner of record of this particular property is Timberlake Associates. Amendment Criteria- 3.The amendment results in an increase in impact due to increasing traffic generation by 19.22 vehicle trip ends or 33%. The Board must therefore review the three (3) kinds of changes that justify an amendment to a permit. 4.The applicant has the burden of proof to explain which of the following changes happened to justify this amendment: a) changes in factual or regulatory circumstances beyond the control of the permittee; b) changes in the construction or operation of the permittee's project, not reasonably foreseeable at the time the permit was issued; or c) changes in technology. 5.It is the Board's position that the applicant does not meet any of the above three (3) criteria. The applicant applied for and received approval for a convenience store with four (4) fueling positions by the Zoning Board of Adjustment on 10/24/94. There have been no changes in factual or regulatory circumstances beyond the control of the permittee that justify the need for the additional fueling position. There have been no changes in technology which the Board's aware of that necessitates the need for an additional fueling position. Ske Plan C'.riteriae 6.Access/C'.ircnlation- Access is provided via a 24 foot wide egress only curb cut on Williston Road, a 24 foot wide ingress only curb cut on Williston Road, and a 24 foot wide ingress only curb cut on East Terrace. No changes were proposed. The applicant proposed adding an air pump adjacent to parking space #1. This would create a circulation problem as only one vehicle at a time may utilize the pump and they may block a parking space or two. Stacking may occur as customers wait for the space to become available or try to park in the egress lane to Williston Road. The applicant was asked to propose a different location for the air pump that will .not interfere with circulation or parking. The applicant has provided a plan with four (4) other possible locations for the air pump. It is not the other Board's charge to design the applicant's plan. 7. Coverrae/Sethacks- Overall coverage is 34.5% (70% max). Building coverage will remain 2.8% (30% max). Front yard coverage along Williston Road will remain 28.2% and front yard coverage along East Terrace will remain 17.8% (30% max). All setback requirements were being met. 8. Parking- A bike rack is being provided as required. The one required handicapped parking space will need to be re -striped as it is no longer delineated as such on the site. 9. LandscTg_ The plans should be revised to depict approved landscaping. Staff noted during a site visit that several of the approved trees are dead. 10. DumnaT tern- There is an unscreened dumpster behind the building that must be removed or relocated to the screened dumpster area. 11. The Board finds that the following zoning violations exist: a. The required handicapped parking space is no longer delineated. b. Several approved trees are dead. c. There is an unscreened dumpster located behind the building. d. Automobiles from the adjoining property are being stored on the Applicant's property on the eastern edge of the lot. 12. Other- The proposed ice dispensers constitute outside display and storage. The January 23, 1996 approval of this project stated: "As expressly represented by the applicant, there shall be no storage or display of store merchandise outside the building." On a recent site visit, the Administrative Office noted there were also cars stored on the eastern edge of the lot that should be removed as per the Board's decision. 2 12. Traffic Overlay District Review: This property is located in Traffic Overlay Zone One which allows this property to generate a maximum of 29.69 vehicle trip ends (vte's) during the P.M. peak hour. ITE estimates that the current use of the property generates 57.66 P.M. peak vte's or 194% more vte's than permitted. The proposed fueling position would generate 19.22 additional P.M. peak vte's for a total of 76.88 vte's. The applicant therefore proposed a 19.22 or 33% increase above existing conditions which is 258% more vte's than permitted by the Traffic Overlay District. Section 21.50 of the Zoning Regulations allows the Development Review Board to approve peak hour traffic volumes above the normal standards if the Board determines that other site improvements will produce a net benefit for traffic flow in the vicinity. The Applicant did not propose any site improvements as part of this application. 13. The applicant submitted a statement regarding traffic from Resource Systems Group dated 8/2/01. The City's traffic consultant, Roger Dickinson, reviewed the applicant's statement. It is the applicant's position that the Supreme Court's approval of this project was for 79 vte's and since the proposed vte's are less than 79 vte's, there is no increase in traffic. It is the Development Review Board's position that the Supreme Court did not approve this project with a maximum of 79 vte's. The Development Review Board must look at existing traffic generation versus proposed traffic generation. Since the proposed traffic will increase by 19.22 vte's, the Board must determine that the proposal includes improvements that will result in a net benefit for traffic flow in the vicinity. No such improvements are proposed. 14. Conditional Use Criteria: The proposed use does comply with the stated purpose of Commercial One District: "Other uses that would benefit from nearby access to a central business area including clustered residential development and small industrial employers may be permitted if they do not interfere with accessibility and continuity of the commercial district." 15.The proposed use must not adversely affect: a) the capacity of existing or planned community facilities. No effect expected. b) the character of the area affected. The proposed outside display area may detract from the character of the area. c) traffic on roads or highways in the vicinity. The proposed additional fueling position may adversely affect traffic by increasing traffic above the normal standards without producing a net benefit for traffic flow in the vicinity. d) bylaws in effect. The proposed additional fueling position does not comply with the bylaws in effect. e) utilization of renewable energy resources. There is no utilization of renewable energy resources to be affected. f) general public health and welfare. No adverse affect expected. 1. The subject property is located in Traffic Overlay Zone One which allows this property to generate a maximum of 29.69 vehicle trip ends (vte's) during the P.M. peak hour. It is estimated that the current use of the property generates 57.66 P.M. peak vte's (see the Institute of Transportation Engineers' Trip G neration, ft F.ditian). The proposed additional fueling position will generate 19.22 P.M. peak vte's. The Applicant is therefore proposing a 19.22 vte or 33% increase. Section 21.50 of the Zoning Regulations allows the Development Review Board to approve peak hour traffic volumes above the normal standards if the Board determines that other site improvements will produce a net benefit for traffic flow in the vicinity. In making its determination of whether other site improvements will produce a net benefit for traffic flow the Board may consider the criteria contained in Sections 21.501 - 21.504 of the Zoning Regulations. The Development Review Board concludes that: a)The current convenience store with three (3) fueling positions is estimated to generate 57.66 vte's. ITE estimates that the proposed additional fueling position will generate 19.22 additional vte's which is a 33% increase for a total of 76.88 vte's. It is concluded, therefore, that the proposed use will increase peak hour traffic volumes significantly above that which is currently generated by the convenience store with three (3) fueling positions. b)Section 21.501 of the Zoning Regulations is not met since this proposal does not qualify for a Planned Unit Development (PUD). c)Section 21.502 of the zoning regulations is not met since the applicant has not proposed any changes to existing curb cuts. d)Section 21.503 of the Zoning Regulations is not being met since the information provided on traffic volumes and effect on levels of service at nearby intersections was not shown to improve. e)Section 21.504 of the zoning regulations is not met since this is not a PUD review and there are no other factors deemed relevant by the Development Review Board. 10. In accordance with Section 26.102(b) of the zoning regulations, the Board concludes that the project will result in unsafe traffic access conditions due to the significant increase in turning movements in an area of high traffic volumes. 4 11. Section 26.05 of the Zoning Regulations requires that this proposed use not adversely affect: 1) the character of the area, 2) traffic on roads and highways in the vicinity, and 3) bylaws in effect. The Applicant is proposing to increase traffic on the property by 33% without site improvements to mitigate the impacts. The Board concludes that Section 26.05 of the zoning regulations is not being met. Based on the above Findings of Fact and Conclusions of Law, the South Burlington Development Review Board hereby denies the Applicant's request for site plan approval (#SP-01-77) and conditional use approval (#CU-01-44) to: 1) add one (1) additional fueling position, and 2) add air and ice dispensers and pay phone, 801 Williston Road, for the following reasons: 1. Due to not fulfilling the amendment criteria outlined in Findings of Fact #3-5. However, The Development Review Board has reviewed these applications on the merits. 2. The application does not comply with or satisfy the requirements of Article XXI, Traffic Overlay District of the Zoning Regulations. The proposed use would generate 19.22 vte's or 33% more vte's than currently generated. This increase would occur without any site improvements that would produce a net benefit for traffic flow in the vicinity. 3. The application does not comply with or satisfy the requirements of Section 26.05 of the Zoning Regulations. The project will adversely affect: 1) the character of the area, 2) traffic on roads and highwa ys in the vicinity, and 3) bylaws in effect. �t=c_ c--M L �z rN Dated this of44wember, 2001 at South Burlington, VT Chair or Clerk South Burlington Development Review Board Please Note: You have the right to appeal this decision to the Vermont Environmental Court, pursuant to 24 V.S.A. § 4471 and V. R.C.P. 76, in writing, within 30 days of the date this decision is issued. The fee is $150.00. If you fail to appeal this decision, your right to challenge this decision at some future time may be lost because you waited too long. You will be bound by the decision, pursuant to 24 V.S.A. § 4472(d) (exclusivity of remedy; finality). CITY OF WINOOSKI DEVELOPMENT REVIEW BOARD IN RE: TIMBERLAKE ASSOCIATES (801 Williston Rd., So. Burlington) DOCKET NO. Appeal of South Burlington Development Review Board 1 TIMBERLAKE'S NOTICE OF APPEAL Timberlake Associates, (hereby called "Timberlake") by and through their attorneys, Sarvak and Simendinger, hereby appeals the December 4, 2001 decision of the South Burlington Development Review Board, a copy of which is attached, as follows: 1. Timberlake Associates, 32 San Remo Drive, South Burlington, VT 05403 is the property owner and appellant. 2. The property at issue is an Exxon station at 801 Williston Road in South Burlington, Vermont. 3. Regulations applicable to the appeal include but are not limited to the South Burlington zoning regulations. 4. The relief is proper because the project complies with the regulations and laws. WHEREFORE, the Court should approve of the conditional use permit and site plan approval. Dated at South Burlington, VT this�day of December, 2001. Timber ates B}1 V William . 1.m ndi er, Esq. Sarvak and Simendinger 32 San Remo Drive South Burlington, VT 05403 CADocuments and SettingsUeltonNy Documents\2001docs\B9NoticeOfAppeal.doc -1- Sarvak & Simendinger ATTORNEYS AT LAW 32 San Remo Drive, So. Burlington, VT 05407-2287 (802) 658-9999 Fax (802) 864-6234 Certified RRR December 12, 2001 Development Review Board Secretary Planning and Zoning Office City of South Burlington 575 Dorset Street So. Burlington, VT 05403 RE: 801 Williston Road, So. Burlington Dear Secretary: Enclosed please find $150.00 and Notice of Appeal in reference to the above matter. Thank you. Enc. cc: Marc Heath, Esq. C:\Documents and Setting Uelton\My Documents\2001 dots\69SoBurl.doc 1 CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 December 18, 2001 Amanda S.E. Lafferty, Esq. Stitzel, Page & Fletcher, P.C. P.O. Box 1507 Burlington, Vermont 05402-1507 Re: Timberlake Associates Appeal - 8o1 Williston Road Dear Amanda: In regards to the above referenced matter, enclosed please find the following: 1. Original Notice of Appeal with attached Development Review Board decision. z. Check #8844 in the amount of s15o.00 dated 12/13/01 to the Vermont Environmental Court. 3. Copy of transmittal letter to the Development Review Board secretary from William Simendinger, Esq. dated 12/12/01. Please forward the Notice of Appeal to the Vermont Environmental Court and enter an appearance on behalf of the City. I will send you under separate cover a list of the interested parties. Sincere y, Raym ` n Belair Admini'strative Officer Encl/td ` E CO, INC. P.O. BOX 2287 32 SAN REMO DRIVE SO. BURLINGTON, VERMONT 05407-2287 PAY 17 Lc �E TO THE ORDER OF REMITTANCE ADVICE 58-6/116 8844 OLLARS DATE DESCRIPTION CHECK ACCT. NO, CHECK AMOUNT NO. SUB GEN D, INC. ��CCQ�G BURLINGTON, VERMONT II®0018844110 9m0 I I00006 29: ua &-G lam 24 26all 2u® CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 December 6, zooi David Simendinger Timberlake Associates 32 San Remo Drive South Burlington, Vermont 05403 Re: Additional Fueling Position, 8oi Williston Road Dear Mr. Simendinger: Enclosed please find a copy of the Findings of Fact, Conclusions and Decision on the above referenced project. If you have any questions, please feel free to contact me. Sincerely,,,'' Ra' mond J. Belair Administrative Officer Encl./td Certified Mail Receipt #7000 i670 ooio 62oo 9467 CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 November 16, 2001 Mr. David Simendinger Timberlake Associates 32 San Remo Drive South Burlington, Vermont 05403 Re: Site Plan Application — 801 Williston Road Dear Mr. Simendinger: Enclosed is the agenda for next Tuesday's Development Review Board meeting, and my comments to the Board. Please be sure that someone is at the meeting on Tuesday, November 20, 2001 at 7:30 p.m. at the City Hall Conference Room, 575 Dorset Street. Sincerely, Raymond J. Belair Administrative Officer EnclAd ,, PLANNING COMMISSION 23 January 1996 The South Burlington Planning Commission held a meeting on Tuesday, 23 January 1996, at 7:30 pm, in the Conference Room, City Hall, 575 Dorset St. Members Present: William Burgess, Chair.; Mac Teeson, Mark Crow, Terry Sheahan, David Austin, Gayle Barone, Marcel Beaudin Also Present: Ray Belair., Planning Office; David & Bill Simendinger, Amy Lindsay, Elizabeth Scannell, Henry Atherton, Sandra Dooley, Barbara & Wilbur Bull, Kevin Ba.illargeon, Doug Hecotenette, Terry Boyle, Bob Alexander, Peter Judge 1. Other. Business: No issues were raised. 2. Review Minutes of 12 December. 1995: Mr. Austin moved the Minutes of 12 December. 1995 be approved as written. Mr.. Sheahan seconded. Motion passed unanimously. 3. Continued site plan application of David Simendinger to raze a bank building and construct a 900 sq. ft. convenience store with gas sales (2 pumps/3 fueling positions), deli, ATM machine and 1280 sq. ft. canopy, 801 Williston Rd: Mr.. Burgess reviewed the history of the application. Mr. Boyle said the current plan has no left turns into the station from Williston Rd. and no traffic exiting onto Williston Rd. at all. A1.1 traffic would exit onto Spear St. He said the area would be . landscaped and showed the pedestrian link from UVM. The canopy meets the. 50 ft. setback. Mr. Beaudin said his main concern is traffic, but he had other concerns as well. He asked about the necessity for. 8 400-watt light fixtures and 8 pole mounted fixtures. Mr.. Boyle said this was to keep contrast as low as possible. Mr.. Boyle suggested that any approval be conditional on a review of foot candles. David Simendinger added that there can be a stipulation that the facia of the canopy not be lit. Mr. Beaudin asked if there would be any illuminated facia on the building. David Simendinger said there would not. Mr. Beaudin said he was not happy with the traffic situation and especially didn't like having to cross 3 lanes to get to the left turning lane to go to Burlington. Mr.. Alexander said the 2 right turning lanes would shorten queuing. PLANNING COMMISSION 23 January 1996 page 2 Mr. Burgess noted receipt of a petition from 26 East Terrace residents who oppose the project. on the grounds of traffic congestion. Mr.. Burgess said he also had a call from Barbara Hammel who felt the site was not: good for a gas station. Elizabeth Scannell gave the Commission an additional petition and noted that nobody they had been able to contact in the East Terrace Development favored this project. Mr. Burgess said that what people favor is not the issue. The proposed project is legal. If there are facts to refute the applicant's experts, the Commission would listen to those facts. Another resident said that it is a fact that during rush hour traffic is backed up and it is already extremely difficult to get to the left turn lane to get to Burlington. By the time traffic has gone through the light, it is backed up again. By putting something to attract people to the site, it will become worse. Mr.. Burgess said there :is no question this project will make the traffic situation worse. Mrs. Dooley gave members a letter which she then read into the record. The letter questions whether a traffic waiver undermines the city's Comprehensive Plan in the area of protecting the older neighborhoods of the city. She felt that the project was contrary to the stated intention of the Comprehensive Plan. Mr. Bull said that the applicant's contention that the 2 right turn lanes would help things was wrong. People will now have 3 lanes of traffic to cross to make a left turn, and that is making things worse. Mr. Atherton expressed concern for University students walking over into the jughandle. They will now have 4 lanes of traffic to walk across. He was also concerned that the figures presented were for an "ideal situation." He also said that when there is construction on Shelburne Road, there will be more traffic on Spear St. and thus more traffic in the judhandle. At the present time, traffic is often backed up onto the flat of Spear. Street. Mr. Teeson felt this proposal would create a similar situation to the other side of the jughandle and that it was unsafe. Mr.. Austin moved the Plannning Commission approve the site lan a lication of David Simendin er. to raze a bank buildin and construct a 900 s . ft. conveni.ence store with as sales (two pumps three fueling positions-)_, deli, ATM machine and a 1280 -sq. ft. cano , 801 Williston Road as depicted on a two .. age set of Tans a e one entitled "Timberlake Associates, South Burlin tc Exxon_,_U.S. Route #2 South Burlin ton, VT," dated May, 1 1995, last revised 1/5/96, with the ffollowinq stipulations: PLANNING COMMISSION 23 January 1996 page 2 Mr. Burgess noted receipt of a petition from 26 East Terrace residents who oppose the project: on the grounds of traffic congestion. Mr. Burgess said he also had a call from Barbara Hammel who felt the site was not: good for a gas station. Elizabeth Scannell gave the Commission an additional petition and noted that nobody they had been able to contact in the East Terrace Development favored this project. Mr. Burgess said that what people favor is not the issue. The proposed project is legal. If there are facts to refute the applicant's experts, the Commission would listen to those facts. Another resident: said that it i:, a fact that during rush hour traffic is backed up and it is already extremely difficult to get to the left turn lane to get to Burlington. By the time traffic has gone through the light, it is backed up again. By putting something to attract people to the site, it will become worse. Mr.. Burgess said there :is no question this project will make the traffic situation worse. Mrs. Dooley gave members a letter which she then read into the record. The letter questions whether a traffic waiver undermines the city's Comprehensive Plan in the area of protecting the older neighborhoods of the city. She felt that the project was contrary to the stated intention of the Comprehensive Plan. Mr. Bull said that the applicant's contention that the 2 right turn lanes would help things was wrong. People will now have 3 lanes of traffic to cross to make a left turn, and that is making things worse. Mr. Atherton expressed concern for University students walking over into the jughandle. They will now have 4 lanes of traffic to walk across. He was also concerned that the figures presented were for an "ideal situation." He also said that when there is construction on Shelburne. Road, there will be more traffic on Spear St. and thus more traffic in the judhandle. At the present time, traffic is often backed up onto the flat of Spear. Street. Mr. Teeson felt this proposal would create a similar situation to the other side of the jughandle and that it was unsafe. Mr.. Austin moved the Plannning.commission a rove the site a lic. t of David Simendi n e.r. to raze a bank buildin a construct a 900 scf. ft. convenience store with as sales UM s three fuelin ositions), deli, ATM machine and a 12 ft._canopy, 801 Williston Roads as depicted on a two a e lans, a e one entitled "Timberlake Associates, South Bur Exxon, U S. Route #2, South Burlin ton, VT," dated Ma 1, last revised 1/5/96, with the following stipulations: lan nd two 80 s . set of lin ton 1995, PLANNING COMMISSION 23 January 1996 page 3 1. All previous approvals and stipulations which are not super- seded -,by this approval shall remain in effect. 2. For the purpose of calculating re uir.ed road im act fees un the South Burli.ncton Impact Fee Ordinance, the Planning Commission estimates that the proposed use will enerate 55.5 additional vehicle trip ends durin the P.M. peak hour. 3. Any new exterior lighting shall consist of downcasting shielded fixtures so as not to cast light beyond the propert line. Any change in li hting shall be approved by the City Planner prior to installation. 4. The applicant shall ost a $1500 landscape bond prior to issuance of a Zoning permit. The bond shall remain in effect for three years to assure that the landscapina takes root and has a nce of survivin 5. Pursuant to Section 26.103 of the zonin regulations, the Planning Commission approves two driveways for this lot as shown on the approved plan. 6. The Planning Commission a' qpd. The applicant shall pa issuance�of a zonin pgw er.mit. roves a sewer allocation of t;he er. allon fee prior to 7. This property is located in Traffic Overla Zone 1 which allows this property to generate a maximum of 29.7 vehicle tri ends (vte's) during the P.M. peak hour.. The applicant estimates theproposed use to generate_79 vte's which is 49.3 vte's or�166% more than permitted. The Planning Commission pursuant to Section 21.50 of the zoning regulations ma_yr. _ app_ove peak hour_ traffic volumes above the normal standards if the Commission determines that other site improvements will produce a net benefit for traffic flow in t_he vicinity. It is the Pla_nnin_g Commission's determination that limitin the Williston Road curb cut to in ress onl deli pin the S ear Street curb cut for both enteri_nq and exitintraffic,.and the other improvements shown on the plan will produce a net benefit for traffic flow in the vicinity. 8. As ex ressl re resented b the a licant, there shall be storage or display of store merchandise outside_ the building, 9. The abandoned sewer service shall be ca ed at the main. 10. The entrance construction shall be coordinated with the CitN Street Department. 11. The a licant shall submit for review and a royal b the a PLANNING COMMISSION 23 January 1996 page 4 City Attorney the le al documents for the sidewalk easement and fire hydrant easement (if needed). These le al documents shall be recorded in the land records prior to permit issuance. 12. Prior to issuance of ar Street frontage. TY 1 of the Citv Enaineer.. . The construction of a si nstruction of lane widenin completed prior to issuan 14. The applicant shall or this approval is nul of construct licant shall he bond sha alk along Spear. Str. mpr.ovements on Spea of a certificate of MWOR E 15. The -applicant shall obtain a_ Cer_t liance from the Administrative.-Offic building,,_ 16. An chap e to the site lan. shall South Bur.lin ton Planning Commission. rmit with t _ and Street shall ncv/Com- r prior to occu r.eauire approval b Mr. Beaudin seconded. The motion thenpassed 4-3 with Messrs. Teeson. Crow and Sheahan voting- against. 4. Sketch plan application of Century Partners, L.P, to amend a previously approved planned unit development consisting of 90,750 sq. ft. of general office and shopping center use in 4 buildings. The amendment consists of 1) relocating the 2-level parking garage, and 2) eliminating the proposed 3600 and 8350 sq. ft. buildings from Phase II and substituting the construction of a 15,000 sq. ft. building, 100 Dorset Street and 2 Corporate Way: Messrs. Austin and Crow stepped down from this discussion due to a conflict of interest. Ms. Lindsay said they had soil reports done and found some problems. About 10 feet down, there is silty soil which would not support the parking structure, so they had to look for better soils on another part of the site. They are thus moving the parking structure to the area with the best soils. Mr.. Judge said soils get poorer to the east, and this will have an impact on the City Center concept. HE! added that the proposed parking structure will be a steel structure instead of concrete. Ms. Lindsay showed the relocated parking spaces. She felt this made for a more even traffic flow. She noted that Gary Farrell is OK with the Ramada right -of --way. They have also kept the PLANNING COMMISSION 23 January 1996 page 3 1. All previous approvals and stipulations whi seded by this approval shall remain in effect. 2. For the purpose of calculating -required road impact the South Burlington Impact Fee_Ordinance, the Planning Commission estimates that the proposed use will generat additional vehicle trip ends during the P.M. peak hour. 3. Anv new exterior liahtina shall consist of downcastin super - line. Any change in li hting shall be approved by the City Planner prior to installation. 4. The applicant shall__post a ;;1500 landscape bond prior to issuance of a zoninq permit. The bond shall remain in effect for three years to assure that the landscaping takes root and has a good -chance of surviving. 5. Pursuant to Section 26.103 o Planning Commission a22roves tw on the approved plan-' he zoninq r.e ulation3 the riveways for this lot as s 6. The Planning Commission approves a sewer allocation of 885 qpd . The applicant shall pay t:he per. gallon fee r. ior. to issuance of a zoning er.mit. 7. This property is located in Traffic Overlay Zone 1 which allows this property to generate a maximum of 29.7 vehicle tri ends (vte's) during the P.M, pEak hour.. The ap2licant estimates the proposed use to generate 79 vte's which is 49.3 vte's or. 166 more S;tc'c than permitted. The Plannin Commission ursuant to Section 21.50 of the zoning reculations mayapprove peak hour traffic volumes above the normal standards if the Commission determines that other site improvements willr.oduce a net benefit for traffic flow in the vicinit . It is the Planning Commission's determination that: limiting the Williston Road curb cut to in ress onl desi nin the S ear Street curb cut for bot entering and exitin traffic, and the other improvements shown o theplan will produce a net benefit for traffic flow in the vicinity. 8. As ex ressl re resented by the applicant,, there shall be storage or display of store merchandise outside the building. 9. The abandoned sewer service shall be ca ed at the main. 10. The entrance construction shall be coordinated with the Cit Street Department. 11. The a licant shall submit for review and a roval b the PLANNING COMMISSION 8 DECEMBER 1998 No issues were raised. Mr. O'Rourke moved the Planning Commission approve the final plat application of Dorset Hotel Associates to amend a planned residential development consisting of a 21,750 sq ft general office building, 184 unit congregate housing facility, and a 79 unit extended stay hotel, 401 Dorset Street The amendment consists of relocating and adding a dumpster, and revising the parking layout, as depicted on a plat entitled "Dorset Land Company Dorset Street South Burlington, VT Master Site Plan," prepared by Trudell Consulting Engineers, Inc, dated 11/4/96, last revised on 11/16/98, with the following stipulations: 1. All previous approvals and stipulations which are not superseded by this approval shall remain in effect 2. The Planning Commission, pursuant to Section 26.256 of the zoning regulations, waives the requirement for one parking space The applicant shall modify the Parking Management Plan for the entire PUD to reflect the loss of one space A revised "Notice of Condition" which references the modified Parking Management Plan shall be recorded in the land records prior to recording the revised plat. The Notice of Condition shall require approval of the City Attorney prior to recording 3. Any change to the final plat plan shall require approval by the South Burlington Planning Commission 4. The final plat plan shall be recorded in the land records within 90 days or this approval is null and void The plan shall be signed by the Planning Commission Chair or Clerk prior to recording. Ms. Barone seconded. Motion passed unanimously. Site Plan Application of Timberlake Associates to amend a previously approved plan to raze a bank building and construct a 900 sq. ft. convenience store with gas sales (2 pumps/3 fueling positions), deli, ATM machine and 1280 sq. ft. canopy. The amendment consists of making site modifications by adding a propane tank, walk-in cooler equipment and a/c compressors, 801 Williston Rd: Mr. Simendinger said they had never listed equipment at the other hearings. The were asked to do so tonight. They use propane to heat and cook. 2 PLANNING COMMISSION 8 DECEMBER 1998 The handicapped parking space has been finished. Mr. Dinklage asked about the pole lights. Mr. Simendinger said there is not enough lighting under the canopy and they would like to add additional light fixtures. Doing this will exceed the maximum foot candles allowed. Mr. Weith said one way to meet the standard is to reduce the canopy lights. Mr. Simendinger noted that Airport Mobil has more canopy lights. Mr. Weith said they comply with the standard. Mr. Dinklage said this is a troublesome issue. Mr. Weith suggested a condition that they install a light near the Spear St. entrance and sidewalk if they can prove they can meet the standard. Mr. Dinklage felt that if the lights are needed, they should be required and have the canopy lights reduced. He said he wanted to see the spirit of the regulations complied with. Ms. Barone asked about the flood light. Mr. Simendinger said it will be removed. Mr. Dinklage asked about vehicle storage. Mr. Simendinger said Spillane's has been parking there for years. Since this is a com- petitor, Mr. Simendinger said they decided "not to wage war." He showed the area where Spillane's is parking. Mr. Dinklage asked if there is any problem with the ingress only on Spear St. Mr Weith said not since the signs went up. Mr. Dinklage stressed that if the applicant wants to change any- thing they will have to return to the Commission. Mr. O'Rourke moved the Planning Commission approve the site plan application of Timberlake Associates to amend a previously approved plan to raze a bank building and construct a 900 sq. ft. convenience store with gas sales (two pumps/three fueling positions), deli, ATM machine and 1280 sq. ft. canopy. The amendment consists of making site modifications by adding a propane tank, walk-in cooler equipment and air conditioning compressors, 801 Williston Road, as depicted on a two page set of plans, page one entitled "As -Built Site Plan Timberlake Associates South Burlington, VT," prepared by SMM Environmental Engineering, dated February 17, 1998, last revised 10/28/98, with the following stipulations: 1 All previous approvals and stipulations which are not superseded by this approval shall remain in effect. 2 A pole light shall be installed at the Spear Street entrance and 3 PLANNING COMMISSION 8 DECEMBER 1998 along the sidewalk leading down from Spear Street. A revised point by point lighting plan shall be submitted prior to the installa- tion of these lights These lights shall be installed only if the applicant can meet the City's lighting standards. 3 The handicapped parking space shall be marked as- such on the site. 4 The plan shall be revised to show the changes below and shall require approval of the Director of Planning & Zoning. Three copies of the approved revised plan shall be submitted to the Director of Planning & Zoning prior to permit issuance. a) The site plan shall be revised to show the dumpsters where they are currently located. b) The site plan shall be revised to correct the note referring to the propane tank as a "heating oil" tank. c) The site plan shall be revised to accurately show the "as -built" conditions of the concrete pads on the east and west sides of the building and the sidewalk along the driveway to Williston Road. 5 The pole mounted floodlight east of the dumpsters shall be removed. 6 The applicant shall obtain a zoning permit within six months pursuant to Section 27.302 of the zoning regulations or this approval is null and void. 7 The applicant shall obtain a Certificate of Occupancy/Compli- ance from the Administrative Officer for the propane tank, walk-in cooler equipment and air conditioning compressor. 8 Any change to the site plan shall require approval by the South Burlington Planning Commission. Ms. Barone seconded. Motion passed unanimously. 6. Public Hearing: Preliminary Plat application of BDP Realty Associates for a planned unit development consisting of a 354,520 sq. ft. general office use facility and a 646 space parking structure, 1400 Shelburne Road: Mr. Caulo said BDP owns four parcels, 3 of which will be included in this project. The total acreage is 16.9. The fourth parcel is not part of this application, and the fourth parcel is not needed 575 Dorset Street Phone: 846-4106 Fax: 846-4101 FaX To: David Simendinger From: Stephanie A. Smith Fax: 864.6234 Date: November 8, 2001 Phone: Pages: J2 1J Re: CC: Re; #SP-01-77 and CU-01-44 Site Plan and Conditional Use Review Dear Mr. Simendinger Please find attached the preliminary comments on the above referenced application. The project is currently scheduled to be considered by the Development Review Board on November 20, 2001. If you wish to respond to these comments or submit additional information, please do so no later than V27 NovembeOT, 2001. Please be sure that someone is at this meeting to represent your application. If you have any questions, please feel free to give me a call. Sincerely, fi Sit hanie A. Smith Associate Planner City of South Burlington, Planning & Zoning 1 To: Applicants From: Stephanie Smith, City of South Burlington RE: Project Staff Notes Date: November 2, 2001 #CU-01-44 & SP-01-77 of Timberlake Associates, 801 Williston Road Previous Action: Administrative appeal February 2, 2000 Overview: Application #CU-01-44 & #SP-01-77 of Timberlake Associates seeking site plan and conditional use approval from Section 26.05, Conditional Uses, of the South Burlington Zoning Regulations. The request is to: 1) add one (1) additional fueling position to a convenience store with gas sales with three (3) fueling positions, and 2) add air and ice dispensers and pay phone, 801 Williston Road. Issues: ■ The location of the proposed air dispenser is in an inadequate place. It's usage is limited by where it is located and may inhibit circulation on the site ■ The plans should be revised to depict approved landscaping. ■ The proposed ice dispensers constitute outside display and storage. The January 23, 1996 approval of this project stated: "As expressly represented by the applicant, there shall be no storage or display of store merchandise outside the building." ■ This property is located in Traffic Overlay Zone One which allows this property to generate a maximum of 29.69 vehicle trip ends (vte's) during the P.M. peak hour. It is estimated that the current use of the property generates 57.66 P.M. peak vte's or 194% more than permitted. The proposed fueling position would generate 19.22 additional P.M. peak vte's. The applicant therefore proposes a 19.22 or 33% increase above existing conditions which is 258% more vte's than permitted by the Traffic Overlay District. Section 21.50 of the Zoning Regulations allows the Development Review Board to approve peak hour traffic volumes above the normal standards if the Board determines that other site improvements will produce a net benefit for traffic flow in the vicinity. The applicant is not proposing any site improvements at this time. Before Board reviews an amended plan, the Board must decide if the amended plan produces an impact on the site (increase in traffic due to the addition of the fueling position). If so they must find that you justify your amendments by one of the following criteria ■ Changes in factual or regulatory circumstances beyond the control of a permittee ■ Changes in the construction or operation of the permittee's project, not reasonably foreseeable at the time the permit was issued ■ Or there are changes in technology Completeness of Plan: a The applicant has submitted sufficient information for Development Review Board to consider the site plan and conditional use applications with the above exceptions noted. Please provide additional information and /or revised plans by November IT, 2001. Recommendation: Staff recommends that this application be authorized to proceed for site plan and conditional use consideration at the November 20, 2001 meeting. PUBLIC HEARING NOTICES ^' SOUTH BURUNGTON DEVELOPMENT � acre got �:nte six ioj os iREVIENI BQARD t: ranging in size ors a.32 J acres to ..32 -acres. 1200 The Scuth Burlington Oe- Dorest Street. velopment Review Board 1, Apolication=CU-01-45 will hold a public hearing gt Independent Wireless at the South Burlington One seeking conditionai City Hall, Oonferenca use approval :rcm Sac - Room. 575 Dcrset Street, Lion HC . Conditional Souti: Burlington. Ver- Uses. of the South Bur- mont on Tuesday No. lington Zoning Regula- vember 20, 2001 at 7:30 tions. Red,uest !s for per - P.M. to consider the fol- mission to: 11 install three lowing: [31 panel antennas on an existing farm silo, and 21 1. Application #CU-01-44 install ground equpment of Timberlake Associates on 9' X 12' concrete pad, seeking conditional use 850 Hinesburg Road. approval from Section 51 Final plat application 26.05, Conditional Uses. #SC-01-58 of South Bur - of the South Burlington lington Realty Company Zoning Regulations. The to amend a planned unit request is to: 11 add one develoment consisting of; (11 additional fueling posi- 1] a 2400 sq. ft. retail tion to a convenience building, 2] an 8016 sq. ft. store with gas sales with building consisting of three [3] fueling posi- 3500 sq. ft. of general of- tions, and 21 add air and fice use and 4560 sq. ft. ice dispensers and pay used for a number of phone, 801 Williston commercial uses for a Road.. multiple number of ten- t. Application .#CU-01-42 ants, 3] an 8944 sq. ft. of Tamarack Services of building for a number of Vermont, Inc. dba Thrifty commercial uses for a Car Rental seeking con- multiple number of ten- ditional use approval ants, and 4] a 20,000, sq. from Section 26.05, Con- 't. medical office building; ditional Uses, of the The amendment consists South Burlington Zoning of making site and fa - Regulations. Request is cade modifications, 364,- for permission to con- 366 and 363 Dorset struct an auto rental stor- Street. age facility, 7 Commerce 3] Final plat application Avenue. #SD-01-60 of Fairway 3. Final plat application Estates, LLC to amend a #SD-01-59 of Paul F. planned residential deve- Heald to subdivide a 5.32 loment consisting of 296 residential units and an 18 hole golf course. The amendment consisits of: 11 amending landscaping, i and 21 adding berms along Swift Street, Econ- omou Farm Road. 71 Final plat application #80-01-57 of Farwater, Ltd. to amend 'a planned unit development consis- iting of 85 'residential units in four [41 building and a 42 unit congregate housing facility. The amendment consists of. relocating electrical transformer, bike rack and dumpstern, 303-305 Lime Kiln Road. Copies of the applica- tions are available for public inspection at the South Burlington City Hall, John Dinklage, Chairman South Burlington Devel- opment Review Board November 3. 2001 DEVELOPMENT REVIEW BOARD 20 NOVEMBER 2001 PAGE 7 Mr. Cameron moved to continue the application until 8 January and request that the original approved plan be presented at that time. Mr. Farley seconded. Motion passed unanimously. 11. Public Hearing: Application #CU-01-42 of Tamarack Services of Vermont, Inc., dba Thrifty Car Rental seeking conditional use approval from Section 26.05, Conditional Uses, of the South Burlington Zoning Regulations. Request is for permission to construct an auto rental storage facility, 7 Commerce Avenue: and 12. Site Plan Application #SP-01-69 of Tamarack Services of Vermont, Inc., dba Thrifty Car Rental to construct an auto rental storage facility, 7 Commerce Avenue: Mr. Spillane said this is lot #35 of the development. They want to put a parking lot at 35 Commerce Avenue. Mr. Torrey noted the Board had approved this but it took a long time to get through Act 250 and the approval ran out. Mr. Belair asked that phases 2 and 3 be eliminated from the plan. Mr. Spillane said they would contribute toward the construction of a sidewalk. Mr. Dinklage asked about the retention pond. Mr. Belair said it is existing and serves the development. It is not affected by this development. Mr. Spillane said they understand they are responsible for upkeep of the pond. He added that Mr. Belter is also involved in this. Ms. Quimby moved that the Board approve Application #CU-01-42 and Site Plan application 4SP-01-69 of Tamarack Services of Vermont subject to the stipulations in the draft motion of 20 November 2001. Mr. Farley seconded. Motion passed unanimously. 13. Public Hearing: Application 9CU-01-44 of Timberlake Associates seeking conditional use approval from Section 26.05, Conditional Uses, of the South Burlington Zoning Regulations. The request is to: 1) add one additional fueling position to a convenience store with gas sales with three fueling positions, and 2) add air and ice dispensers and pay phone, 801 Williston Road: and DEVELOPMENT REVIEW BOARD 20 NOVEMBER 2001 PAGE 8 14. Site plan application #SP-01-77 of Timberlake Associates consisting of. 1) adding one additional fueling position to a convenience store with gas sales with three fueling positions, and 2) add air and ice dispensers and pay phone, 801 Williston Road: David Simendinger said they are looking to add a 4ch fueling position, provide a pay phone and air machine and possibly put the ice machine outside. They have only 3 Fueling positions on a 2-pump island and there is a potential for accidents and confusion. Mr. Adler addressed traffic concerns. He said the three pumps generate 58 trip ends. 21 had been allowed for the ATM and the 41h pump would use those trip ends for a total of 79. Mr. Dinklage said you cannot "bank" trip ends. An applicant has to go by the standards used across the city. The site is already over its trip end allotment. Mr. Simendinger said the Vermont Supreme Court approved them for 79 trip ends, and the full service ATM is not there. Mr. Cameron asked what the numbers say they would generate. Mr. Belair said today the overlay district allows 29.69. They are approved for 57.66. They are asking for 76.88. He said what this disagreement concerns is the Supreme Court decision. The city feels the Supreme Court did not approve 79 trip ends. It approved 3 fueling positions. Mr. Simendinger said they put in a very expensive median and one-way in and out. Mrs. Dooley said neighbors are requesting the DRB not approve this request. She said the Spear Street/East Terrace access is supposed to be enter only, but there continue to be people exiting there. There are unsafe conditions. Mrs. Dooley felt signage would help. She also felt there could be signage regarding the fueling position. She stressed that this is a very heavy traffic area. Mr. Kupferman felt that adding a 41h fueling position would alleviate unsafe conditions on the lot. He said it is the Spear Street connection that makes this a difficult situation. He suggested using the access in Staples Plaza. He felt the lot is too small for the traffic it is generating. Mr. Cameron was concerned with common sense and consistency. He asked if the standard is being applied consistently. Mr. Belair said the Board can approve increased traffic if an applicant provides improvements to traffic flow in the area. In this application, the applicant is not providing any benefits. Mr. Dinklage noted that DEVELOPMENT REVIEW BOARD 20 NOVEMBER 2001 PAGE 9 improvements were made in the original application which is what brought about this existing situation. Mr. Belair felt that closing the Spear Street access would be a significant improvement. Mr. Cameron agreed with Mr. Belair that nothing in the application improves the traffic situation. Walt Simindinger said the Shell Station on Dorset St. got 8 pumping stations and the Shelburne Road station got 4 pumping stations. Mr. Dinklage said the Board strives for consistence and possibly in the past mistakes were made. Mr. Dinklage asked about the location of the air pump. Mr. Belair said the applicant has proposed 5 locations. He was not sure the Board should make the choice. Dave Simindinger suggested alternative #E. Members were OK with that. They were also OK with the phone in front of the building. Mr. Dinklage said there can be no outside ice machine as the approval stipulates no outside storage of materials or display. A straw vote indicated that members did not see a way to approve the fourth fueling position without improvements to traffic flow. Mr. Belair recommended presenting a motion of approval for a vote. Ms. Quimby moved to approve Application #CU-01-44 and Site Plan application #SP-01-77 of Timberlake Associates as presented. Mr. Cameron seconded. The motion was defeated 0-5 with Mr. Cameron abstaining. Mr. Belair said he would bring amended findings of fact for signature at the next DRB meeting. As there was no further business to come before the Board, the meeting was adjourned at 10:25 p.m. PLANNING COMMISSION 8 DECEMBER 1998 No issues were raised. Mr. O'Rourke moved the Planning Commission approve the final plat application of Dorset Hotel Associates to amend a planned residential development consisting of a 21,750 sq. ft.general office building, 184 unit congregate housing facility, and a 79 unit extended stay hotel, 401 Dorset Street. The amendment consists of relocating and adding a dumpster, and revising the parking layout, as depicted on a plat entitled "Dorset Land Company Dorset Street South Burlington, VT. Master Site Plan," prepared by Trudell Consulting Engineers, Inc, dated 11/4/96, last revised on 11/16/98, with the following stipulations: 1 All previous approvals and stipulations which are not superseded by this approval shall remain in effect. 2. The Planning Commission, pursuant to Section 26.256 of the zoning regulations, waives the requirement for one parking space. The applicant shall modify the Parking Management Plan for the entire PUD to reflect the loss of one space. A revised "Notice of Condition" which references the modified Parking Management Plan shall be recorded in the land records prior to recording the revised plat The Notice of Condition shall require approval of the City Attorney prior to recording. 3 Any change to the final plat plan shall require approval bV the South Burlington Planning Commission. 4 The final plat plan shall be recorded in the land records within 90 days or this approval is null and void. The plan shall be signed bV the Planning Commission Chair or Clerk prior to recording. Ms. Barone seconded. Motion passed unanimously. 5. Site PlAn Application of Timberlake Associates to amend a previously approved plan to raze a bank building and construct a 900 sq. ft. convenience store with gas sales (2 pumps/3 fueling positions), deli, ATM machine and 1280 sq. ft. canopy. The amendment consists of making site modifications by adding a propane tank, walk-in cooler equipment and a/c compressors, 801 Williston Rd: Mr. Simendinger said they had never listed equipment at the other hearings. The were asked to do so tonight. They use propane to heat and cook. K PLANNING COMMISSION 8 DECEMBER 1998 Ili The handicapped parking space has been finished. Mr. Dinklage asked about the pole lights. Mr. Simendinger said there is not enough lighting under the canopy and they would like to add additional light fixtures. Doing this will exceed the maximum foot candles allowed. Mr. Weith said one way to meet the standard is to reduce the canopy lights. Mr. Simendinger noted that Airport Mobil has more canopy lights. Mr. Weith said they comply with the standard. Mr. Dinklage said this is a troublesome issue. Mr. Weith suggested a condition that they install a light near the Spear St. entrance and sidewalk if they can prove they can meet the standard. Mr. Dinklage felt that if the lights are needed, they should be required and have the canopy lights reduced. He said he wanted to see the spirit of the regulations complied with. Ms. Barone asked about the flood light. Mr. Simendinger said it will be removed. Mr. Dinklage asked about vehicle storage. Mr. Simendinger said Spillane's has been parking there for years. Since this is a com- petitor, Mr. Simendinger said they decided "not to wage war." He showed the area where Spillane's is parking. Mr. Dinklage asked if there is any problem with the ingress only on Spear St. Mr Weith said not since the signs went up. Mr. Dinklage stressed that if the applicant wants to change any- thing they will have to return to the Commission. Mr. O'Rourke moved the Planning Commission approve the site plan application of Timberlake Associates to amend a previously approved plan to raze a bank building and construct a 900 sq. ft. convenience store with gas sales (two pumps/three fueling positions), deli, ATM machine and 1280 sq. ft. canopy. The amendment consists of making site modifications by adding a propane_ tank, walk-in cooler equipment and air conditioning compressors, 801 Williston Road, as depicted on a two page set of plans, page one entitled "As -Built Site Plan Timberlake Associates South Burlington, VT," prepared by SMM Environmental Engineering, dated February 17, 1998, last revised 10/28/98, with the following stipulations: 1. All previous approvals and stipulations which are not superseded by this approval shall remain in effect. 2. A pole light shall be installed at the Spear Street entrance and 3 PLANNING COMMISSION 8 DECEMBER 1998 along the sidewalk leading down from Spear Street. A revised point by point lighting plan shall be submitted prior to the installa- tion of these lights These lights shall be installed only if the applicant can meet the City's lighting standards. 3 The handicapped parking_ space shall be marked as such on the site. 4 The plan shall be revised to show the changes below and shall require approval of the Director of Planning & Zoning. Three copies of the approved revised plan shall be submitted to the Director of Planning & Zoning prior to permit issuance. a) The site planvshall be revised to show the dumpsters where they are currently located. b) The site plan shall be revised to correct the note referring to the propane tank as a "heating oil" tank. c) The site plan shall be revised to accurately show the "as -built" conditions of the concrete pads on the east and west sides of the building and the sidewalk along the driveway to Williston Road. 5 The pole mounted floodlight east of the dumpsters shall be removed. 6 The applicant shall obtain a zoning permit within six months pursuant to Section 27.302 of the zoning regulations or this approval is null and void. 7 The applicant shall obtain a Certificate of Occupancy/Compli- ance from the Administrative Officer for the propane tank, walk-in cooler equipment and air conditioning compressor. 8 Any change to the site plan shall require approval by the South Burlington Planning Commission. Ms Barone seconded. Motion passed unanimously- 6. Public Hearing: Preliminary Plat application of BDP Realty Associates for a planned unit development consisting of a 354,520 sq. ft. general office use facility and a 646 space parking structure, 1400 Shelburne Road: Mr. Caulo said BDP owns four parcels, 3 of which will be included in this project. The total acreage is 16.9. The fourth parcel is not part of this application, and the fourth parcel is not needed DEVELOPMENT REVIEW BOARD 24 JULY 2001 PAGE 5 Mr. Cameron suggested a meeting to evaluate project context with all three developers invited. Ms. Hoover said for any such planning or discussion meeting the open meeting law would apply. It would also have to be clear that this is a discussion only. Members supported this idea. Ms. Hoover said this could take place on a night with the DRB invited. Ms. Fraser asked if the MPO study will be done before this meeting. Ms. Hoover said there is a complete draft of the study on the MPO on the website. Members agreed to attend the Planning Commission meeting on 14 August. Mr. Farley then moved to continue the sketch plan hearing until 4 September. Mr. Boucher seconded. Motion passed. 3. Public Hearing: Application #CU-01-24 of Timberlake Associates seeking conditional use approval under Section 26.05, Conditional Uses of the South Burlington Zoning Regulations. Request is for permission to 1) add one additional fueling position, and 2) add ice dispensers and pay phone, 801 Williston Road, and 4. Site plan application #SP-01-36 of Timberlake Associates to amend a previously approved site plan for a 900 sq. ft. convenience store with three fueling positions and a 34 foot by 60 foot canopy. The amendments consist of 1) adding one additional fueling position, and 2) adding ice dispensers and pay phone, 801 Williston Road: Mr. Simendinger said they have been in business about 3 years. They get about 10-20 people a day asking for a pay phone. The same is true with the air machine. The ice machine is now inside in a very bad location because it heats up the building. Mr. Dinklage suggested putting only the compressor outside. Ms. Hoover noted that the stipulations prohibit outside display and storage, and the ice machine would fall under that. Ms. MacCallum noted that the proposed location of the air pump might interfere with circulation and parking. Members were OK with the pay phone and with the air dispenser if it is relocated. They suggested the applicant work with staff on this. With regard to the additional fueling position, Mr. Simendinger said people assume there are 4 fueling positions and this creates conflict when people attempt to fuel up at the side of the pump that doesn't dispense fuel. People get angry at having to move to another location. DEVELOPMENT REVIEW BOARD 24 JULY 2001 PAGE 6 Mr. Dinklage said that according to the City's traffic standards that an additional fueling position will mean a 33% increase in traffic. He added that the Board has been scrupulously consistent in applying traffic numbers based on fueling positions. Mr. Simendinger said they feel this is a unique site. Mr. Adler, traffic consultant, said the original permit was based on an estimate of 79 vehicle trip ends with the 3 fueling positions. This also included 21 trip ends for the ATM machine. He said he has data that shows the actual trip ends are 61 per hour, 19 for each fueling position. The ATM, which is inside the building, is not generating anywhere close to 21 trips. Mr. Adler felt the 4`h fueling position would bring them close to the 79 trip ends originally permitted. Mr. Dinklage stressed that this overlay zone allows only a maximum of 30 trip ends. Mr. Adler said the Environmental Court decision found this use has a lot of "pass -by" traffic, not "new traffic." The Court found that the site improvements made were enough to allow the 79 trip ends. Mr. Dinklage noted this is already one of the most congested intersections in the city and the traffic is already far over what is allowed in the zoning. Mr. Simendinger said there have been no accidents and they have limited the potential for conflicts by the design. He felt the current situation compromises interior circulation when people have to do "180's" because of the missing pump. Mr. Kupferman said people are already making "180's" to leave the property because they're not supposed to exit onto Spear St. Mr. Cameron said he felt this is an existing business that should never have been put there and that the request should be allowed. Mr. Dinklage felt it was important to be consistent in applying traffic counts to fueling positions. Ms. Hoover noted that no traffic information has been submitted to document the traffic counts referred to by the applicant. Mr. Kupferman referred to a letter received from Mrs. Bull, a neighbor, who says that people are exiting onto Spear St. Ms. MacCallum added that when staff made a site visit, a truck was exiting onto Spear St. as they tried to enter. Mr. Farley asked about the landscape issue. Mr. Simendinger said they have ordered 2 replacement trees. They will also replace the stolen bike rack. Ms. Hoover said a landscape plan will have to be submitted with this plan. Ms. MacCallum noted the dumpster is not in its approved position and needs to be screened. Members were in agreement that the city should exercise its right to invoke "technical review" and hire a traffic consultant at the applicant's expense. DEVELOPMENT REVIEW BOARD 24 JULY 2001 PAGE 7 Mr. Cameron moved to continue the application until 18 September in order to invoke technical review of the traffic study. Ms. Quimby seconded. Motion passed unanimously. 5. Sketch plan application of Acadia Realty Trust to amend a previously approved planned unit development consisting of a 130,441 sq. ft. shopping center. The amendment consists of 1) razing a 114,771 sq. ft. portion of the building, 2) constructing an 81,000 sq. ft. building, and 3) constructing a 3,000 sq. ft. addition to the remaining portion of the building, resulting in two buildings with a total square footage of 100,470 sq. ft., 516 Shelburne Rd: Mr. Hogan said the correct square footage is 98,870. Access and circulation would be the same. The Farrell St. access is also the same. Coverage and setbacks would not change. The new building would not be higher than 35 ft. 495 parking spaces are required. 486 are provided. Green space has been increased. The fence in back will be raised from 6' to 8' to provide a better noise buffer. There will also be a screening wall by the loading dock. Mr. Kane noted the fence will be similar to the Lowe's fence. It is also located on top of a berm so it is actually 2 ft. higher. Ms. MacCallum noted that the Board can restrict the times that deliveries are made and also times that dumpsters are serviced. Mr. Hogan said the integrity of the north wall will remain. Mr. Kane indicated they had met with the city arborist. The tree species will be about the same but there are more trees proposed. Three different species are proposed, more diverse than usual in a shopping center. Mr. O'Leary addressed drainage. The front drains into the City of Burlington. The rear goes to a culvert. He said there will be less runoff than exists today. There will be no on - site pond; water will go right to the brook. Mr. Dinklage said they should consider an underground cistern that would delay the flow. Ms. Hoover asked if there is a possibility of depressed islands in the parking lot or other stormwater improvements. Mr. O'Leary said probably not, but they can look at it. CITY OF SOUTH BIJRLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 September 14, 2001 Mr. David Simendinger Timberlake Associates 32 San Remo Drive South Burlington, Vermont 05403 Re: Site Plan & Conditional Use Application — 801 Williston Road Dear Mr. Simendinger: Enclosed is the agenda for next Tuesday's Development Review Board meeting and my comments. Please be sure that someone is at. the meeting on Tuesday, September 18, 2001 at 7:30 p.m. at the City Hall Conference Room, 575 Dorset Street. Sincerely, Raymond J. Belair Administrative Officer Encl./td 09;14/D1 FRI 09:52 FAX tool WESCO, INC. AM EON Gulf Wif TEXACO DISTR'BUTOR OF TEXACO. EXXON, GULF ANC SMeLL PRODUCTS September 14, 2001 Ray Belair City of South Burlington 575 Dorset Street So. Burlington, VT 05403 RE: Exxon, 801 Williston Road Dear Ray, - Please withdraw without prejudice from consideration our applications for 801 Williston Road because our traffic engineer is unable to attend the September 18, 2001 meeting. We will be resubmitting the proposal. Thank you, Since rel7 William E. Sir Vice President C 1 ume ;rc aric Sell in ltkelton'�V1y Doe invnts\2001 &3',B43ehir.doc 32 SAN REMO DR P.O. BOX 2287 PHONE BU-864-5155 SO. BURLINGTON, VT 05407-2287 MEMO TO: South Burlington Development Review Board FROM: Raymond J. Belair, Administrative Officer RE: September 18, zooi Agenda Items DATE: September 14, zo0I TIMBERLAKE ASSOCIATES - ADDITIONAL FUELING POSITION - SITE PLAN & CONDITIONAL USE This application was continued from the July 24, 200I meeting (minutes enclosed). This project consists of a site plan and conditional use application to amend a previously approved site plan for a goo square foot convenience store with three (3) fueling positions and a 34 foot by 6o foot canopy. The amendments consist of. i) adding one (Y) additional fueling position, and z) adding ice dispensers, air pump and pay phones. Staff's July 24, 200I memo is enclosed for your review. Traffic Overlay District Review: Since the last meeting the applicant has provided a two (z) page traffic report (see enclosed). Staff retained the services of Roger Dickinson to review this report. (see enclosed) ite Plan Criteria: Landscaping - A landscaping plan has not been submitted. Procedural Issue: State statutes require that the board render a decision on a site plan within 6o days from the date the board first sees the plan. The 6o day deadline is September 24, zooI. This means the board must make a decision at the meeting. The applicant's traffic expert can not be at the meeting and has asked this meeting be continued. Due to the time constraint, the board can not honor their request. Unless the applicant withdraws the application, the board will be forced to make a decision and with the information currently available, staff recommends a denial. PAUL HEALD - 6 LOT SUBDIVISION - PRELIMINARY This project consists of subdividing a 5.32 acre parcel into six (6) lots ranging in size from 0.33 acres to 1.29 acres. The sketch plan was reviewed on 7/10/01 (minutes enclosed). This property located at izoo Dorset Street lies within the Southeast Quadrant Zoning District. It is bounded on the west by Dorset Street, and on the north, south and east by residences. T. I BOYLE AND ASF HATES Landscape Architects & Plannii,6 Consultants 301 College Street BURLINGTON, VERMONT 05401 (802) 658-3555 FAX (802) 863-1562 TO C rry of Sam -Bomumanyj DEPr. OF a AWA e' 9 - ZodAt 5;0U-rH ?3uKijMc-roA), Vr 0,5-4103 WE ARE SENDING YOU XAttached ❑ Under separate cover via ❑ Shop drawings 9 Prints ❑ Copy of letter ❑ Change order ❑ Plans LL[gVETL rtl OO [ VD ° K@Lf n1V1TL%L. DATE A ,e ^ J06 N0. ATTENTION 1? RE: SOL trw ❑ Samples the following items: ❑ Specifications COPIES DATE NO. DESCRIPTION l 5 0 1x)r- t 144hLIZAJ4 nV QUG �H THESE ARE TRANSMITTED as checked below: ❑ For approval For your use ❑ As requested REMARKS ❑ Approved as submitted ❑ Approved as noted ❑ Returned for corrections ❑ For review and comment ❑ ❑ FORBIDS DUE ❑ Resubmit copies for approval ❑ Submit copies for distribution ❑ Return corrected prints ❑ PRINTS RETURNED AFTER LOAN TO US COPY TOEkVI-n &M6A_jn1.AJC,.G4— _0_JZ A rr,4c#"__6, r � SIGNED: Az &CL if enclosures are not as noted, kindly notify us at once. Barbara BuIL 05:01 PM 712' 100 1 -04009 uesdayhe=g Page I of I X-Originating-IP: [63.24.73.88] From: "Barbara Bull" <bktaurus@msn.com> To: "Julie Hoover" <jbh plan ner@madriver.com> Subject: Tuesday hearing Date: Tue, 24 Jul 2001 17:01:00 -0400 X-Mailer: MSN Explorer 6.10.0016.1619 X-OriginclArrivalTime: 24 Jul 2001 22:01:44.0941 (UTC) FILETIME= [3A5069DO:O I C 1 148C] Dear Julie, I would be grateful if you would convey my feelings to the board which hears the Simendinger request for an additional gas pump this evening. As a neighbor on East Terrace I am strongly opposed to enlarging the pumping capacity. We are already in a worsened traffic situation as a result of this development, with cars frequently exiting illegally onto the jughandle, or turning west out of the Williston Rd. exit The decision on the original application, the one finally approved, was to limit the number of pumps and we certainly hope the city abides by that decision. Barbara Bull # 17 East Terrace Get more from the Web. FREE MSN Explorer download: b#p://jax plorer.msn.com Printed for Juh Beth Hoover <jbhpIanner@madriver.com> 7/24/2001 CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & BONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 July 20, 2001 Mr. David Simendinger Timberlake Associates 32 San Remo Drive South Burlington, Vermont 05403 Re: Site Plan and Conditional Use Applications 801 Williston Road Dear Mr. Simendinger: Enclosed is the agenda for next Tuesday's Development Review Board meeting, and my comments. Please be sure that someone is at the meeting on Tuesday, July 24, 2001 at 7:30 p.m. at the City Hall Conference Room, 575 Dorset Street. Sincerely, Sarah H. MacCallum Associate Planner SM/td Encls. 8Gl C i1O�rrf /1cs, �ic S r 9, _2_.2 �7 D�Lc✓rs,� LL �:L�;, js f.,; ENTRY ORDER SUPREME COURT DOCKET NO. 93-478 and 93-479 MAY TERM, 1994 JUL 15 t . In re Wesco, Inc. } APPEALED FROM: Zoning Application } } } Washington Superior Court } } } } DOCKET NO. S420-89WnCa In the above entitled cause the Clerk will enter: This is an appeal by Wesco, Inc., a Vermont corporation, and Timberlake Associates, a Vermont partnership, from the Washington Superior Court's Order dismissing Wesco's appeals from the Montpelier Planning Commission. We reverse and remand. Wesco* proposed to expand two service stations, Capitol Mobil and Harold's Gulf, both located on State Street, to include convenience stores and delicatessens. On April 3, 1989, Wesco filed a zoning permit application with respect to the Gulf station with the zoning administrator for the City of Montpelier. Because the service station is a conditional use and the use sought to be added is a permitted use, Wesco initially attempted informally to convince the zoning administrator that no conditional use permit would be required and, therefore, no review by the zoning board of adjustment was necessary. Although the parties allege that certain conversations then took place between the zoning administrator and Wesco's attorney, they are not in the record. The record does show that the zoning administrator referred the application to the planning commission and, after consultation with the city attorney, the commission undertook its review. On July 14, 1989, the planning commission denied the application under the site plan approval criteria, S 15- 401 of the zoning ordinance, on the grounds that the proposed parking did not have appropriate access and would promote vehicle movements in conflict with pedestrians. It did not reach design plan review because it denied site plan approval. Wesco appealed to the superior court. On September 3, 1991, one of Wesco's predecessors in title, Richard Pierce, filed a zoning permit application requesting that his Mobil Station be * Because both appeals involve the same individuals, the Walter E. Simendinger family, operating under different corporate and business names, both Wesco, Inc. and Timberlake Associates will be referred to as Wesco. Timberlake's predecessors in title were Richard and Diana Pierce. converted to a "convenience store with gas." This application was referred to the planning commission with no discussion of the conditional use permit issue. The planning commission conducted site plan review hearings and on November 4, 1991, denied the application on essentially the same grounds as the denial of the Gulf Station application. Wesco appealed to the superior court. The superior court consolidated the appeals and heard them de novo under 24 V.S.A. §§ 4471 and 4472(a). It heard several days of testimony on the issues raised by the site plan reviews conducted by the planning commission. The superior court then dismissed the appeals because it decided that the planning cc..^nission had erred in treating the applications as "permitted uses." The court held that the applications were "conditional uses," and therefore, its decision to hear these applications as requests for approval of a permitted use must be vacated and the appeals dismissed. It did not reach any of the issues raised by the appeals from the planning commission. Wesco then appealed the superior court's decision to this Court. The first two issues raised by Wesco may be treated as one, and that is whether the superior court, on a de novo appeal from the planning commission, had jurisdiction to decide that Wesco should have obtained a conditional use permit before proceeding to the planning commission. It argues that the only issue before the superior court, and the only one tried, was whether the planning commission's failure to approve Wesco's site plan was proper. We agree that the superior court should have reached the major issue before it -- whether site plan approval was properly denied -- and under the circumstances of this case, it had no jurisdiction to decide whether the applicants required conditional use permits. Appeals from planning commissions are trials de novo in the superior court, 24 V.S.A. §§ 4475, 4471, 4472(a), wherein the superior court sits as the planning commission, with the same powers and the same limitations. In re Torres, 154-Vt. 233, 235, 575 A.2d 193, 195 (1990). "[W]hatever . the planning commission might have done with an application properly before it, the superior court may also do if an appeal is duly perfected." Id. at 236, 575 A.2d at 195. The appeal before the superior court was related solely to the issues before the planning commission for the City of Montpelier. Those issues were limited, consistent with the authority of the planning commission, to disapproval of the site plans for reasons related to traffic access, circulation and parking, landscaping and screening, and review of design plans. City of Montpelier Zoning Regulations § 15-401,-401.3, -404. The planning commission has no authority to decide whether a use is "permitted" or "conditional, and it made no decision on that issue, even if the matters were,_ in act, re erred to it by the zoning administrator as permitted uses. Therefore, because the type of use was not an issue before the planning commission, it could not have been an issue before the superior court on appeal from the planning commission's decision. Id. Moreover, there is nothing in the zoning regulations for the City of Montpelier that mandates that applicants file and obtain a ruling on an application for a zoning permit before the applications may be referred to the planning commission for its review. If that had been the case, it would have been proper for the superior court to dismiss the appeals for failure to haust administrative procedures. But in the face of regulations that are lent on the procedure to be followed, the superior court was without jurisdiction to dismiss the appeals. Instead, the court should have decided the planning commission issues properly before it. In view of our disposition, it is unnecessary to reach Wesco's remaining arguments. Reversed and remanded for further proceedings in accordance with this order. [ ] Publish [ ] Do Not Publish B COURT: Frederic W. Allen, Chief Justice `Ernest W. Gibson III, Assoc -late Justice _ r � John Dooley, Associ to us 'ce o ' Deni a R. Johnson, Associate Justice Louis P. Peck, Associate Justice (Ret.), Specially Assigned MAY s 1 2 city of So. Burlington 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 Planning Commission. 1) OWNER OF RECORD (Name as shown on deed, mailing address, phone and fax #) Timberlake Associates 32 San Remo D 6S8-9999 ext. 233 fax 864-6234 2) APPLICANT (Name, mailing address, phone and fax #) same 3) CONTACT PERSON (Name, mailing address, phone and fax #) David Simendi nger same 4) PROJECT STREET ADDRESS: 801 Williston Road 5) TAX MAP NUMBER (can be obtained at Assessor's Office) 6) PROJECT DESCRIPTION 1490-00032('; a) Existing Uses on Property (including description and size of each separate use) convenience store withi;as - 3 f iel ing pns tie=s b) Proposed Uses (include description and size of each new use and existing uses to remain) convenience store with Lyas - 4 fueling pnsitioxisTa'i: dispenser, ice dispenser, pay phone, relocate grease dumnster, entrance sign, and energy efficient lightbulbs c) Total building square footage (proposed buildings and existing buildings to remain) 990 square feet d) Height of building & number of floors (proposed buildings and existing buildings to remain, specify if basement and mezzanine) one story e) Number of residential units (if applicable, new units and existing units to remain) none 4 f) Number of employees (existing and proposed): g) Other (list any other information pertinent to this application not specifically requested above): 21 VTE previously annroved for bank ATM will be used for fourthfueling station 7) LOT COVERAGE a) Building: Existing 2.8 % Proposed 2.8 % b) Overall (building, parking, outside storage, etc) Existing 34.5 % Proposed 34.5 c) Front yard (along each street) Existing 2 8. 2 % Proposed 2 8. 2 % 8) COST ESTIMATES a) Building: $ zero b) Landscaping: $ zero c) Other site improvements (please list with cost): $500 to turn on half of existing, pump _ 9) ESTIMATED TRAFFIC a) Average daily traffic (in and out): peak hour - 63 tries b) A.M. Peak hour (in and out): c) P.M. Peak hour (In and out): 7 : 3 0 - 8 : 3 0 5:30 - 6:30 10) PEAK HOURS OF OPERATION: 5. 0 0 - 6. 0 0 nm 11) PEAK DAYS OF OPERATION: Friday 12) ESTIMATED PROJECT COMPLETION DATE: 12 / 2 5/ 01 13) 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. SIGNAT OF PPLICANT SIGNATURE OF CO -APPLICANT Do not write below this line DATE OF SUBMISSION: REVIEW AUTHORITY: 0 Planning Commission 11 Director, Planning & Zoning I have reviewed this site plan application and find it to be: (Apfrmsp) Complete Incomplete Director of Planning & Zoning or Designee Date EXHIBIT A SITE PLAN The following information must be shown on the site plan. Please submit five (5) copies and one reduced copy (11" x 17") of the site plan. Failure to provide the following information will result in your application being rejected and a delay in the review before the Planning Commission. • Lot drawn to scale (20 feet scale if possible) • Survey data (distance and acreage) • Contours (existing and finished) • Proposed landscaping schedule (number, variety and size) as required in Section 26.105 of !he zoning regulations • Location of streets, abutting properties, fire hydrants, existing buildings, existing landscaping • Existing and proposed curb cuts, pavement, walkways • Zoning boundaries • Number and location of parking spaces (as required under Section 26.25 of the zoning regulations) • Number and location of handicapped spaces (as required under Section 26.253(a) of the zoning regulations) • Location of septic tanks (if applicable) • Location of any easements • Lot coverage information: Building footprint, total lot, and front yard • North arrow • Name of person or firm preparing site plan and date • Exterior lighting details (must be down casting and shielded) • Dumpster locations (dumpsters must be screened) • Bicycle rack as required under Section 26.253(b) of the zoning regulations • If Restaurant is proposed, provide number seats and square footage of floor area provided for patron use but not containing fixed seats APPLICATION FEE 0 New Application $ 60.00* Amendment $ 35.00* * Includes $10.00 recording fee (Apfrmsp) V E D City of South Burlington M AY Application to Development Review Board city of So. Burlington Name of applicants) I � m Official Use APPLICATION # G (A " G I 2 HEARING DATE ?Z42 FILING DATE 5-1 j e/- FEE AMOUNT ' % lC S. Address L San kt°ij') c Telephone # UIJG ,ricicl e`(- 233 Represented by 1y I d S 1 !y) e/nA nu r Landowner 117i C1a -es n Location and description of property �,, i\� I I I S;tG lnj cc n sbr-(f, V,4I 3a Adjacent property owner(s) & Address 1 1 i(��I ( Type of application check one: ( ) appeal from decision of Administrator Officer 0 request for a conditional use ( ) request for a variance I understand the presentation procedures required by State Law (Section 4468 of the Planning & Development Act). That a legal advertisement must appear a minimum of fifteen (15) days prior to the hearing and I agree to pay a hearing fee which is to off -set the cost of hearing. Describe request: Amex)(1 Other documentation: � n h1 i (i! ofi m (n 616 Date SOUTH BURLINGTON ZONING NOTICE PvA'OVV- r In accordance with the South Burlington Zoning Regulations and Chapter 117, Title 24 V.S.A. the South Burlington Development Review Board will hold a public hearing at the South Burlington Municipal Offices, Conference Room, 575 Dorset Street, South Burlington, Vermont on Tuesday, , at 7:30 P.M. to consider the following: Application of seeking a from Section of the South Burlington Zoning Regulations. Request is for permission to PUBLIC HEARING' SOUTH BURLINGTON DEVELOPMENT RE- %, VIEW -BOARD- The South Burlington Development Review Board will hold a pub- lic hearing at the South Burlington City Hall, Conference Room, 575 Dorset Street, South Burling- ton, Vermont on Tuesday, July 24, 2001, at 7:30P.M. to consider the follow- ing: 1. Appeal #VR-01-01 of Arnold & Rita Cote seeking a variance from Section 25.00, Area, Density, and Di- mensional Require- ments, of the South Burlington Zoning Regulations. Request Is for permission to allow a front porch addition to project 2.5 feet into the re- quired 30 foot front yard setback require- ment, 12 Sherry Road. 2. Application #CU- 01-30 of Cathy E. Tripp seeking condi- tional use approval from Section 26.05, Conditional Uses, and Section 26.75, Accessory Residen- tial Units, of the South Burlington Zon- ing Regulations. Re- quest is for permis- sion for establishing an accessory resi- dential unit in a sin- gle family dwelling, 8 Keari Lane. 3. Application #CU- 01-27 of Devon Mobil Communications seeking conditional use approval under Section 26.05, Condi- tional Uses, of the South Burlington Zon- ing Regulations. Re- quest is for permis- sion to: 1 ] install panel antennas on an existing farm silo at an elevation of 50 feet, and 2] construct a 10 foot by 15 foot area to support out- door equipment in cabinets. 200 Old Farm Road. 4. Application #CU- 01-26 of O'Brien Fam- ily Limited Partner- ship and Nextel WIP Lease Corp. seeking conditional use ap- proval under Section 26.05 Conditional Uses, of the South Burlington Zoning Regulations. Request is for permission to: 1] install 12 48 inch panel antennas on an existing farm silo, and 2) install a 10 foot by 20 foot equiptment shelter, 200 Old Farm Road. S. Application #CU- 01-24 of Timberlake Associaties seeking conditional use ap- proval under Section 26.05, Conditional Uses of the South Burlington Zoning Regulations. Request is for permission to: 11 add one [1] addi- tional fueling posi- tion, and 21 add ice dispensers and pay Une, 801 Williston d. 6. Application #CU- 01-29 of Wright/Mor- rissey Realty Corp. seeking conditional use approval under Section 26.05, Condi- tional Uses, of the South Burlington Zon- ing Regulations. Re- quest is for permis- sion to erect an eight 181 to 12 foot fence, 85 Farrell St. Copies of the appli- cations are available for public inspection at the South Burling- ton City Hall. John Dinklage, Chair- man South Burlington De- velopment Review Board year-round position that requires a clean driving record. Company pro- vided vehicle, tools, un- iforms, & benefits. 802- 860-6044 for interview. S PEOPLE NEEDED We are taking applica- tions for full and part- time employment. We provide training. Earn- ings opportunity of $450 to $650 per week to start. If you are ready to start work immed% ately call: [802] 658- 2082 or fax resume to (8021 658-2082. College students welcome. EOE TO RESPOND TO A FREE PRESS BOX NUMBER Send to: Burlington Free Press P.O. Box 10 Burlington, VT 05402 Att: Free Press Box A CAREER IN FINAN- CIAL SERVICES Pro- gressive Financial Serv- ices Firm looking for individuals who desire to potentially earn above average income and are willing to work and study hard to accomplish suc- cess. A background in education, sales or busi- ness preferred. Isn't it time you get paid for what you are worth? Please submit resume to: Todd Maietta, PO Box 386, Burlinggton, VT 05402. ADMIN. ASSISTANT Must type 45wpm. Knowledge, of Windows 98' a must. $13.00/hr. to start, plus 401K. Call 888-252-5081 TAUNTON PUBLIC SCHOOL SYSTEM TAUNTON, MASSA- CHUSETTS ADMINISTRATIVE VA- CANCIES Elementary School Prin- cipals [2] Guidance- Middle School TEACHING VACNCIES Family & Consumer Sci- ence [Culinary]- High School Business Teacher- High School Mathematics- Middle School[31 Reading- Middle School Music- Elementary & Middle School Special Needs- [All Lev- els] Bilingual- Poruguese & Spanish- [All Levels] Speech ABA Therapist Special Needs Develop- mental Disabilities/Au- tism Send Letter of Intent, Re- sume, and pertinent at- tachments to: Dr. Gerald A Croteau, Superintendent Taunton Public Schools 50 Williams Street Taunton, MA 02780 E.O.E ADMINISTRATIVE ASSISTANT Harrington's of Vermont is a nationally recognized Mail Order company of our own smoked meats and specialty foods. We are looking for a detail - oriented person to be re- sponsible for the admin- istrative duties of our Re- tail Division. Primary responsibilities include ordering inventory and database maintenance for our six stores, as well as working with custom- ers in our Richmond store. This full-time posi- tion offers a competitive wage & excellent bene- fits package Send resume and letter of interest to: I gffVNj7Y)NN 210 E. Main St. Richmond, VT 05477 Attm Chris Chagnon Foxr 802-434-7534 n�,F,n�anua ,uo, uo getic, well organized, flexible, quality driven with excellent interper- sonal skills. Excellent PC skills a must. Recreation position has some flex hours with occasional evenings and Saturdays necessary. Competitive salary, benefits and ex- cellent working condi- tions. Apply at Town Manager's Office, 5376 Shelburne Rd. , PO B 88 Shelburne, VT. 05482 EOE Sell your Pets Free Press Classified 658-3321 ADMINISTRATIVE AS- SISTANT Seeking for FT. Have strong people skills for Shelburne pedi- atric clinic. Responsibii- ties include reception, scheduling. and adminis- trative/computer sup- port. Fax [985-87331 or mail resume 14066 Shel- burne Rd. Suite #8], or call Jill @ 985-8211 x102. ASSISTANT STORE MANAGER Needed for a fast paced specialty sports store. Must have at least 3yrs management exper Competitive salary & benef pkg. Please send cover letter & resume to: The Ski Rack, 85 Main St., Burlinggton, VT 05401 Attn: GM No Phone Calls P I e a s e ! Automotive BILLING & TITLE CLERK Enthusiastic person needed for busy sales department to process car deals, DMV documents. and other administrative duties. Must have computer experience & good typing skills. Complete benefits package including 401 K. Weekday hours 11 am to 8 pm. One Sunday per month 11 am to 4pm. Send resume to: SHEARER CHEVROLET 1675 Shelburne Road S. Burlington VT 05403 AUTOMOTIVE SALES Looking for an exciting, fast -paced career? Tired of not being challenged to your fullest potential? Stop by Vermont's pre- mier Chrysler store, home of the all new and exciting PT Cruiser and visit with our Sales Man- ager Skip Ward. In addi- tion to new Chrysler lines we have a fast growing used car center with op- portunities for advance- ment within our compa- nies. No sales experience necessary but seasoned sales vet- erans are also encour- aged to apply. We offer a salary plus commissions with a comprehensive benefits package. Apply in person at Freedom Chrysler at 1095 Shel- burne Road. An equal opportunity employer. a great team mat al - fare reward based pay incentives, full time hours, benefits, training and a chance to grow in our com- pany. Must have great organizational skills, time management skills and excellent communication skills. Call SKIP WARD today at 802.846.0322 for an interview. Automotive SALES CONSULTANTS Are you looking for a sales opportunity that could lead to a rewarding career both financially and professionally? Heritage Ford/Toyota has popular vehicles to sell and is a pi ace where careers advance. We are looking for self -motivated profes- sionals with a strong sales drive and a commit- tment to excellence in customer satisfaction. Prior retail experience is desireable. We offer paid sales training, 5-dayy work week [NO SUNDAYS], guaranteed earnings, extensive benefits. and the chance to build a career. Our next training program begins July 12th. Apply in person at the dealership on Shelburne Road or fax [865-8273]/ mail your resume to our HR Dept, P O Box 1100, Burlington VT 05402-1100 or apply on-line at: www.heritagevt.com f-Uleri0 'royo'rA 865-8200 AUTO SALES UP TO �2500 N ON BONUS -Laid Back Work Environment -Paid Employee Benefits •401 K Program -Good Schedule [Closed Sundays] You must have Integrity and a Strong Commit- ment to succeed. Call Mike Brennan or Dave Birmingham to discuss Career Opportunity uvoi uenuai interview. Paul Choiniere 1-800-427-4483 ***** TOP SHOP ***** Top Dealer looking for Top Technician. Top Pay. Top Benefits. Top Working Conditions. You Know Who You Arel Call Today for a Confidential Interview. Burlington Mitsubishi Ask For Brett Lister 802-865-4400 ext.213 AVON! AVON! AVON! To Buy or Sell _ 800-258-1815 BAKER & LINE PREP COOK NEEDED Gra- cie's Restaurant in, Stowe, VT looking for in- novative individuals who like working in a creative team environment. Pay according to experience. Please arrange an inter- view at 802-253-8741. Free Press Classifieds 658-3321 _ BANQUET CAPTAIN Seeking exp. hospitality service individual who possesses strong atten- tion to detail, planning and organizing skills with a professional approach to customer and staff. Flexibility a must. Bene- fits include medical/den- tal/401k options, paid va- cations and International Hotel discounts. Apply at the Clarion Hotel, 1117 Williston Rd. Ask for Da- vid or Matt. EOE 0*0*0 a i TO MAKE 1 r PRODUCTION WORKERS Bouyea-Fassetts part of Bestfoods Baking Company, has full time production posi- tions available in their local bakery. Starting hourly range rate of $9.38- $10.50, depending on qualifications. Successful candidates must have a high school diploma, GED or equivalent experi- ence. Experience in a manufacturing envi- ronment is helpful, but not necessary. Excellent benefit package available after 6 months. if you are interested you may apply to: BARTEND BARTENDING SCHOOL of NEW ENGLAND Certification/Training Job Assistance 1-888-4DRINKS www.bartend.,, chool coin 108 Church St.�,1B,urlington TES BOOKKEEPER/ PAYROLL Immediate opening for year-round bookkeeping & payroll position in fast - paced Superintendent's Office. Requires Associ- ate degree or 3-5 years experience, strong com- puter skills, high degree of accuracy, ability to work under pressure & as a team. Strong ac- counting knowledge de- sirable. Salary negotiable with excellent benefits. Apply with resume, 3 re- cent reference letters and application form to: Earl Walters Coordinator of Fiscal Services Addison Northeast Supervisory Union 10 Orchard Terrace Park Bristol, VT 05443 802-453-3657EDE A your career a jump start! Join this on the move company and receive excellent bennies and opportunities! If you are a full charge book- keeper with an Associ- ates Degree, we would like you to reply to PO Box 2066, So Burling- ton VT 05403, E T COOK nced easonal ctober 15 hourero House -473? CAD DRAFTSMAN Leading Architecture & Design Firm needs an experienced Auto -CAD draftsman. Auto -CAD 14 or AUTO -CAD 2000 exp. required. Send resume taL__ NorthStar Staffing Services PO Box 911 Williston, VT 05495 Ph 802-879-6909 Fax: 802-879-6865 E-mail: khull@northstarjobs.net CAREGIVER Needed for elderly woman in her Es- sex Jct. home. FT/PT. All shifts needed. Good pay. Good working environ- ment. Call to set up inter- view.802-878-2775 _ CASE MANAGERS The Champlain Valley Agency on Aging, Inc. has two openings -a 35 hrsiwk position in Addison County & 40 hrs/wk in Franklin county -working w/people age 60, . Min- imum requirements: BA..' BS in a human services related field: 3 yrs case management exper. Must have: excellent as- sessment & communica- tion skills; ability to bal- ance large complex caseload, including crisis situations; ability to work indepedently & as part of team. Residency in above counties pre- ferred. $12.30/hr, plus full benefits. Send re- sume with cover letter to the Champlain Valley Agency on Aging, Inc., P.O. Box 158, Winooski. VT 05404-0158. EOE Let Classifieds work for you. Call 658.3321 CHAMPLAIN VOCATIONAL SERVICES Is seeking a select few caring "good" people to provide supports for other caring. "good" people who have devel- opmental disabilities. Community-, residential-, and employment -based. Great people, great team, great benefits. Feel good about what you do for a living. Please send resume to: CVS cio Laura Chabot 77 Hedgeman Avenue Colchester, VT 05446 SOIL DpU GIv MAINTENANCE MECHANIC Bouyea-Fassetts, a Division of Bestfoods Baking Company, is looking for an individ- ual to work in the maintenance depart- ment. Responsible for the performance of preventative maintenance as well as repair/breakdown maintenance to all equipment and building maintenance. Candidates should possess a strong mechan- ical background, good understanding of machine tool processes, troubleshooting of electric control circuits and ability to work with programmable controllers. Basic comput- er skills a plus. Candidate needs to be willing to work off -shift hours. Competitive wages. I Excellent benefits package, including 401K. Bouyea-Fassetts, Inc. 68 Nesti Drive, So. Burlington, a (behind Champ's car wash) Monday -Friday 8:30 am-4:30 pin 1`11it10ri Li,-,- and Icradles are encouraged to apply. EOC I`l/F/VjU VT Placing s I is easy. I ad to gel Charge it tetcard. CARPET outsti Health, Pe. egrii de Sto Nor Rivi Shc Sun Tani Deft Well Iraq 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 July 1.6, 2001 Ms. Edna Webster 12 bast Terrace Son.-th, Burlington, VT 05405 Dear property Owner Enclosed is a copy of a public notice published in the '1 uZI-1irngtorn Free Press. It includes an application for development on property located rneax your property. This is being sent to you to make you aware that a public hearing is being held regarding the proposed development If you would like to know more about the proposed development, you may call this office at 846-4106 or attend the sched-tiled public hearing, Sincerely, Raymc d J a Belair Administrative Officer Eancl;/ td 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 February 16, 2000 William Simendinger Wesco, Inc. 32 San Remo Drive South Burlington, SIT 05403 Re: Timberlake Associates Appeal of AO-99-02, 801 Williston Road Dear IN& Simendinger: Enclosed please find a copy of the February 1, 2000 Development Review Board meeting minutes. Please note that the administrator's officer's decision of November 29,1999 was upheld. If you have any questions, please give me a call. Sincerely, Sarah MacCallum Planning & Zoning Assistant Encls I 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 July 16, 2001 bko.:` n Baillarge®n 1W� ..:W Terrace South Burlington, VT 05403 Deem '-lperty Owner: Enclosed is a copy of a public notice published in the Burlington Free Press, It includes an application for deir-," �pmernt on property located neayr your property. This is being sent to you -to make you aware that a public hearing is being held regarding the proposed development 3f you would like to know more about the proposed devel,cp sent, you may call this office at. 846-4106 or ' �;' i:s d. the scheduled public heari:g sincerely, Raymond J m Bela.ir Administrative Officer Encl/ Ltd t 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 July 18, 2001 Mobil Oil. Corp 811 Williston Roach South Burlington, VT 05403 Dear Property Owner: Enclosed is a copy of a public notice published in the Eu=liangton Free Press. It includes an application for development on property located neax your property. This is being sent to you to make you aware that a public hearing is being held regarding the proposed development. If you would like to know more about the proposed development, you may call this office at 846-4106 or attend the scheduled public hearing Sirncerel.y, Raymond j a Belair Administrative officer E ncl jf td 1 May 17, 2001 Ray Belair City of South Burlington 575 Dorset St. S. Burlington, Vt 05403 Re: 801 Williston Road Dear Ray: E a! V E D MAY ) 120 City, of So. Burlington Enclosed please find $145 and applications to amend site plan approval and to amend conditional use approval. Thank you. Sincerely, David Sim 2inger President 32 San Remo Drive, P.O. BoX 2287 Phone (802) 864-1519 So. Burlington, `V705407-2287 FaX (802) 860-5841 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 660-91 19 PATTI R. PAGE' E-MAIL (FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) (•ALSO ADMITTED IN N.Y) WRITER'S FAX (802) 660-2552 August 24, 2000 Raymond Belair Administrative Officer City of South Burlington 575 Dorset Street South Burlington, VT 05403 RE: Appeal of Timberlake Associates Docket No. 51-2-00 Vtec Dear Ray: Enclosed for your file is a Notice of Dismissal in connection with the above -referenced matter. ASEL/bj1 Enclosure Sincerely, JOSEPH S. McLEAN TIMOTHY M. EUSTACE MIA KARVONIDES AMANDA S.E. LAFFERTY 0. q - qe- Amanda S. E. Lafferty 8/24/00 THU 09:17 FAX STATE OF VERMONT ENVIRONMENTAL LAW COURT G ; : 14OOo I IN RE: TIMBERLAKE ASSOCIATES ) I, (801 WILLISTON RD., SO. BURL) ) DOCKET NO. 51-2-00 Vtec Appeal of So. Burlington Development , Review Board decision 1 1 1 ;j !I NOTICE OF DISMISSAL ;, Now Comes Timberlake Associates by and through its attorneys, Sarvak and Simendinger, and hereby dismisses the above matter pursuant to V.R.Civ.P. 41(a)(1). I+ II14 I Dated at South Burlington, VT this4day of August, 2000. I' 1 Tim rl Ass o ' es a By, i illiam E. Simendin er, Esq. Sarvak and Simendinger 32 San Remo Drive South Burlington, VT 05403 a 1 1 i i i CAMy Docun=ts\2000docs\B9MotiontoDisnriss.doc I 1 a� 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 OF COUNSEL PATTI R. PAGE* E-MAIL(FIRM2555 a FIRMSPF.COM) ARTHUR W. CERNOSIA ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY a FIRMSPF.COM) WRITER'S FAX (802) 660-2552 JOSEPH S.MCLEAN TIMOTHY M. EUSTACE MIA KARVONIDES AMANDA S.E. LAFFERTY ("ALSO ADMITTED IN N.Y.) February 28, 2000 Carolyn Hutchinson, Clerk Vermont Environmental Court 255 North Main Street, ls` Floor Barre, VT 05641 RE: Appeal of Timberlake Associates (801 Williston Road) Appeal from the City of South Burlington Development Review Board Dear Ms. Hutchinson: Enclosed for filing with the Court is a Notice of Appeal and check in the amount of $150.00 in connection with the above - referenced matter. I also enclosed my Entry of Appearance on behalf of the City of South Burlington. Thank you. Sincerely, Amanda S. E. Lafferty V ASEL/bjl Enclosure cc: Raymond Belair William Simendinger, Esq. son4255.cor STATE OF VERMONT ENVIRONMENTAL COURT IN RE: ) Appealed from the City APPEAL OF TIMBERLAKE ASSOCIATES ) of South Burlington (801 Williston Road, So. Burlington) Development Review Board ENTRY OF APPEARANCE NOW COMES AMANDA S. E. LAFFERTY, of the firm of 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 28"' day of February, 2000. Son638.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.U. BOX 1507 RG II I.ISUTON. VERMOMI' 05102 1507 STITZEL, PAGE & FLETCHER, P.C. By: 1 w ;��`. �' ( 1[al �, J _� A Amanda S. E. Lafferty STATE OF VERMONT ENVIRONMENTAL LAW COURT IN RE: TIMBERLAKE ASSOCIATES (801 WILLISTON RD., SO. BURL) ) DOCKET NO. Appeal of So. Burlington Development Review Board decision NOTICE OF APPEAL Timberlake Associates by and through its attorneys, Sarvak and Simendinger, hereby appeals the February 1, 2000 decision of the South Burlington Development Review Board, a copy of which is attached as follows: 1. Timberlake Associates, 32 San Remo Drive, South Burlington, VT 05403 is the property owner and appellant. 2. The property at issue is University Exxon, 801 Williston Road, So. Burlington, Vermont. 3. Regulations applicable to the appeal include but are not limited to the South Burlington Zoning Regulations. 4. The relief is proper because the project is permitable and was permitted. WHEREFORE, the Court should overturn the determination of the Development Review Board. d Dated at South Burlington, VT this I D day of February, 2000. RECEIVED r _ i 2 4 2000 C:\My Doc uments\2000docs\B9NotofAppeaLdoc Tim%rlake/Associa By: William E. Simendin r, Esq. Sarvak and Simendinger 32 San Remo Drive South Burlington, VT 05403 #AO-99-02 DEVELOPMENT REVIEW BOARD CITY OF SOUTH BURLINGTON Re: APPEAL OF TIMBERLAKE ASSOCIATES This matter came before the South Burlington Development Review 60-1 pursuant to the provisions of 24 VSA § 4464(a) on appeal of Timberlake Associates, hereinafter "Appellant" from the decision of the Administrative Officer that the Appellant's proposal to use a portion of their property at 801 Williston Road for vehicle storage is not permitted under the South Burlington Zoning Regulations. The Appellant was present at the public hearing held on 2/1/00 relative to this appeal. Based on evidence submitted at the hearing and as part of the appeal, the the South Burlington Development Review Board hereby renders the following decision on this appeal: FINDINGS OF FACT 1. The owner of record of the property at 801 Williston Road is Timberlake Associates. 2. On 7/8/91 the Zoning Board of Adjustment granted a conditional use permit for the storage of no more than ten (10) wrecked and abandoned vehicles at 811 Williston Road (Spillane's Mobil). The 811 Williston Road property is located east and north of the Appellant's property. The plan in the file for this approval showed that the land behind the station at 801 Williston Road was to be used for vehicle storage but the approval was only for 811 Williston Road and did not include land at 801 Williston Road. 3. On 10/25/99 David Simendinger submitted a site plan review application as an applicant representing Timberlake Associates, the record owner. The application wz-- `- add "parking and storage of vehicles" to the approved uses of convenience store, gas sales, deli and ATM. This property is located at 801 Williston Road. 4. On 11/29/99 the Administrative Officer made the determination that the applicant's proposal to use a portion of the 801 Williston Road property for vehicle storage was not permitted under the zoning regulations. As a result of his decision, the Administrative Officer did not forward the site plan review application to the Development Review Board. 5. On 12/10/99 the property owner Timberlake Associates appealed the Administrative Officer decision of 11/29/99. 6. The vehicle storage which is at issue is for the benefit of the adjoining property owner, Spillane's Mobil. Spillane is using the Appellant's property to store towed vehicles and/or vehicles awaiting service and repair. There is no relationship between the approved uses on the Timberlake Associates property and the proposed use (i.e., vehicle storage) and is therefore not an accessory use. WESCO, INC. DATE 2/18/00 1057892 DESCRIPTION 801 WILLISTON RD CHECK NO. 049313 AMOUNT DEDUCTION T NET AMOUNT 150.00 150.00 CHECK DATE CONTROL NUMBER 2/22/00 049313 TOTALS ' 150.00 150.00 r WEscoINC. CHITTEBANK l�f 11 Burlingtonon,, Vermont P.O. BOX 2287 32 SAN REMO DRIVE SOUTH BURLINGTON VT 05407-2287 ONE HUNDRED FIFTY & N0/100 DOLLARS PAY TO THE ORDER OF 2/22/00 049313 OR VT Environmental Court 255 North Main St. Bat Floor Barre VT 05641 119049 3 13110 1:0 1 L60006 21: 111 L1116?11I 24 26l11 2119 1 6 16 049313 1 CHECK NO. •wrrw**150.00 sco,I �. IZED SIGN TURF CITY OR SOUTH BUR,LINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 February 3, 2000 William Simendinger Timberlake Associates 32 San Remo Drive South Burlington, VT 05403 Re: Appeal, 801 Williston Road Dear Mr. Simendinger: Enclosed please find a copy of the Findings of Fact and Decision on the above referenced matter. If you have any questions, please let me know. Sincerely, Raymond J. Belair, Administrative Officer RIB/mcp 1 Encl Certified letter #Z 462 929 505 DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 January 28, 2000 William Simendinger Wesco, Inc. 32 San Remo Drive South Burlington, VT 05403 Re: Appeal of Administrative Officer's Decision, 801 Williston Road Dear Mr. Simendinger: Enclosed is the agenda for next Tuesday's Development Review Board meeting and my comments to the Board. Please be sure someone is present on Tuesday, February 1, 2000 at 7:30 p.m. to represent your request. If you have any questions, please give me a call. Sincerely, ' ttLI R d J. Belai66r// ymLP Administrative Officer RJB/mcp Encls . IN/F --_ EXISTING CB — -.. 'r B NGTON RIM IN 344' III- _ UVM ---• ---- ---- -- - TYPICAL FOR ---- --- N/F WINOOSHI _ 10' INV. IN � 339.42' -----� �- Z BOTH ENDS OF _--_ 11//'I > >c�`�C� \ ♦` \l \ \\T\\ RCP INV.,OUT,- 33& �� _�--,C9 MEDIAN ISLAND. .--_ SHERATON _�\\ \ \------------- V) j 1 a3.B7-------=__=------- —------_we_� _ WILLI--= N_ROAD — U.S. ROUTE #2 A 1� 2 9DRlNnON STO ` UTILITY POLE 342.03' EDGE o-----_-_: i MMNIMAL _--_ _--_ _ A M NT W - y 7 AMPatT 43.95' /--- 342.96' EDGE Ac 1� TE ` UTILITY POLE 341.99' EDGE Z ---_ _ / as / / '-"`�-I+� �_____--------- ------ --- 18 RCP EXISTING O --- < -- '•i-/ l - W LK 340.86' EDGE --- ----- _ BENCHMARK IS RIM OF /-...... �.:.................. -- =-_ = C D OF PAVEMENT EXISTING CATCH BASIN WITH ..... ._._ _ = AN ASSUMED ELEV. - 340.7' 1 OUTH BRLIN UGTON EDGE OF A CB C ...... t - SIDEWALK r CB B EMS .N 340J't W yT / 8" INV. OUT � 335.8't LOCATION MAP Ns Z 18"R?, INV. IN - 335.7't I I I ' N/F L E o>EIR � +� AL MOBIL OIL CO. OF I A o ; VOL. 34 PG. 288 EDGE OCT 2 oo I I s EDGE OF I 341.69• FIRE 1�I/ CANOFY�. CONCRETE RANT 777 f� EXISTING APPROXIMATE LOCATION X 32')' PAD I 5' UTILITY OF UNDERGROUND I I EASEMENT STORAGE TANKS 2 %�ti R�iriunoll PAVED t0 0' City QI So, '_i." / I I SURFACE '•'C NCTTE PAD, t QEN. EATH CANOPY. 343.80' / r �"i• CONCRETE 2 _ r1-n''-���-�, PAD OL8QIPBION AREA ( R OF TOTAL Ll/T ( I-J 44.8 ' �� - % , 11 BLDG CORNER 3 BUILD LOT MLA 79'180 I I BUILDING AND CANOPY 2,180 2,8% 30R PAVEMENT AND WALKS 23,702 29.9R 1 I GRAVEL PARKING AREA 4.568 5.8% 11 { ` PROPO BLDG TABLE 4 TOTAL COVERAGE ® 30,450 38.5R 70% (3900 F 5 GREEN SPACE - 48,730 61.5R 30% F.F. 344.63' \ SEWER INV. OUT U `PAVED AVEL PAVED 60' �• - � 15,0 BOLLARD 6 AREA PAVEMENT AND WALKS KSS 4,224 24 28.2R 0 '• a 3429'z t c x �� 7 AREA GREEN SPACE m 10,776 77.BR 0% a 344.59' 7 i13 '— 160.00, 6O' BP£AR ST FRONT YARD 10,157 Q Q Q -� PAVEMENT AND WALKS 1,351 82, 30R PAVED BLDG CORNER }1®-'� '}®{( iljT�i-St-fJJii, GREEN SPACE 1..801 17.8% 30% SURFACE 344.40' TC LOADING/ ] CEIN 1 (3) TOW TRUCKS �/ CLEAN OU 343.90 FS UNLOADING C7C7 . _-� 341.84' INV. \ O � 8 s-e o rrnn--.-�c�� ry� T�4 �J AREA NOTES C �° �� _� y� i.y.-{GJ_• --- i. BOUNDARY AND SITE FEATURES INFORMATION SHOWN IS CO.'.PR FROM A I �° MP ENTITLED, 'PLAT T SURVEY DATED JUL TRUST .', PREPARED GRASS AREA BY WARREN A. ROBENSTEIN, 45., DATED DULY 1987. �e GGGG2. ORIGINAL TOPOGRAPHIC INFORMATION SHOWN ON THIS DRAWING IS �4 -° BASED ON DRAWING FILE 6063S29 PROVIDED BY UVM LAND RECORDS. z HANDICAP ACCESSIBLE RAMP �-+ O ° 157.40' TO PLAN % a WITH DEPRESSED CURB "� N2 J40„W 1•- b 5-0.031R ° I 3' LANDSCAPING ANDRPPUNTING SPECIFICATIONS SATES FOR UGNTING, ee s•0? 4. THIS PLAN REFLECTS AS -BUILT FEATURES ONLY TO THE EXTENT NOTED i COMMERCIAL 1 \ �Jj AND DESCRIBED IN THE REVISIONS BLOCK. ALL OTHER FEATURES ARE 151.SY RESIDENTIAL �\` RECYCLING/ a FROM THE ORIGINAL APPROVED PROJECT SITE PUN. OUMPSTER \ M.H. 335. ' F j \ RIM s J42.37 N/Fb - \\ INV. .8 A. BAILLARGEON n INv. our 335.67' VOL. 50 PG. 30 AS -INSTALLED AC UNIT, EXTERIOR \ \ I g COOLER AND PROPANE TANK INVERT ELEVATION AT \� TIE-IN - 338.71' --_ \ \ PROGRESS PRINT -NOT FOR CONSTRUCTION EXISTING 8' SEWER MAIN e-e EXISTING IRON POST 0 N/F DATE PLOTTED - 8/2/99 EXISTING 12' DI WATER MAIN W-12 EXISTING SEWER MANHOLE ® BURLINGTON TENNIS CLUB INC. \ EXISTING 8' AS8 CEMENT WATER MAIN ',Y-o- EXISTING MANHOLE ® ^ I 6 7/21/99 SPILLANES' PARKING PLAN EXISTING TELEPHONE LINE T EXISTING CATCHBASIN 0 I 5 4/6/99 REVISIONS PER SBPC 1/26/99 DECISION EXISTING NATURAL GAS LINE G EXISTING ROAD SIGN v - I 4 2/17/99 ADDED AS -INSTALLED DUMPSTER IOCATIC EASEMENT EXISTING UTILITY POLE .6. PRIOR TO CONSTRUCTION THE CONTRACTOR SHALL AND CONCRETE PAD AROUND BUILDING 1' WATER SERVICE •-1 OIL/WATER SEPERATOR/CATCHBASIN CALL "DIGSAFE" AT 1-888-344-7233 TO LOCATE 3 10/28/9 ADDED AS -INSTALLED AC UNIT, EXTERIOR COOLER AND PROPANE TAN 4" SEWER SERVICE EXISTING FIRE HYDRANT UNDERGROUND UTILITIES. 2 7/21/98 ADDED AS -BUILT GRADES AND REVISED SEWER SERVICE CONNECTION EXISTING CONTOUR YARD CATCHBASIN eg PROPERTY LINE - - — SEWER CLEANOUT 50.65' 1 2/25/98 REVISED FINISH GRADE CONTOURS AND NIUJSTON ROAD CURB LINE CONSISTENT EXISTING CONCRETE CURB EXISTING CONCRETE SIDEWALK SITE PLAN WITH TJB PUN DATED 2/16/98 ,k AOT ROJECT FILE 04-8808 DATED 9 10 97 N0. DATE PDESCRIPTION CONCRETE CURB CONCRETE SIDEWALK / PAD ' Y GRAPHIC SCALE GRANITE SLOPE EDGING EXISTING GUARD RAIL - TIMBERLAKE smm FILLING POSITION Qi ASSOCIATES ( IN P66T T EXISTING BOULDER Q 1 torn - 20 it SOUTH BURLINGTON SCOTT MIC64AEL MAPS: EXXON POST OFFICE BOX 5517 ,TAME, BURLINGTON, VERMONT DRAWIN9 1 OF s 801 WIWSTON ROAD a9z-ee4-noG SOUTH BURLINGTON. VT 17 FEBRUARY 1987 C ENTRY ORDER SUPREME COURT DOCKET NO. 93-478 and 93-479 MAY TERM, 1994 JUL 15t In re Wesco, Inc. } APPEALED FROM: Zoning Application } } } Washington Superior Court } } } } DOCKET NO. S420-89WnCa In the above entitled cause the Clerk will enter: This is an appeal by Wesco, Inc., a Vermont corporation, and Timberlake Associates, a Vermont partnership, from the Washington Superior Court's Order dismissing Wesco's appeals from the Montpelier Planning Commission. We reverse and remand. Wesco* proposed to expand two service stations, Capitol Mobil and Harold's Gulf, both located on State Street, to include convenience stores and delicatessens. On April 3, 1989, Wesco filed a zoning permit application with respect to the Gulf station with the zoning administrator for the City of Montpelier. Because the service station is a conditional use and the use sought to be added is a permitted use, Wesco initially attempted informally to convince the zoning administrator that no conditional use permit would be required and, therefore, no review by the zoning board of adjustment was necessary. Although the parties allege that certain conversations then took place between the zoning administrator and Wesco's attorney, they are not in the record. The record does show that the zoning administrator referred the application to the planning commission and, after consultation with the city attorney, the commission undertook its review. On July 14, 1989, the planning commission denied the application under the site plan approval criteria, S 15- 401 of the zoning ordinance, on the grounds that the proposed parking did not have appropriate access and would promote vehicle movements in conflict with pedestrians. It did not reach design plan review because it denied site plan approval. Wesco appealed to the superior court. On September 3, 1991, one of Wesco's predecessors in title, Richard Pierce, filed a zoning permit application requesting that his Mobil Station be * Because both appeals involve the same individuals, the Walter E. Simendinger family, operating under different corporate and business names, both Wesco, Inc. and Timberlake Associates will be referred to as Wesco. Timberlake's predecessors in title were Richard and Diana Pierce. converted to a "convenience store with gas." This application was referred to the planning commission with no discussion of the conditional use permit issue. The planning commission conducted site plan review hearings and on November 4, 1991, denied the application on essentially the same grounds as the denial of the Gulf Station application. Wesco appealed to the superior court. The superior court consolidated the appeals and heard them de novo under 24 V.S.A. §S 4471 and 4472(a). It heard several days of testimony on the issues raised by the site plan reviews conducted by the planning commission. The superior court then dismissed the appeals because it decided that the planning ccmission had erred in treating the applications as "permitted uses." The court held that the applications were "conditional uses," and therefore, its decision to hear these applications as requests for approval of a permitted use must be vacated and the appeals dismissed. It did not reach any of the issues raised by the appeals from the planning commission. Wesco then appealed the superior court's decision to this Court. The first two issues raised by Wesco may be treated as one, and that is whether the superior court, on a de novo appeal from the planning commission, had jurisdiction to decide that Wesco should have obtained a conditional use permit before proceeding to the planning commission. It argues that the only issue before the superior court, and the only one tried, was whether the planning commission's failure to approve Wesco's site plan was proper. We agree that the superior court should have reached the major issue before it -- whether site plan approval was properly denied -- and under the circumstances of this case, it had no jurisdiction to decide whether the applicants required conditional use permits. Appeals from planning commissions are trials de novo in the superior court, 24 V.S.A. §§ 4475, 4471, 4472(a), wherein the superior court sits as the planning commission, with the same powers and the same limitations. In re Torres, 154 Vt. 233, 235, 575 A.2d 193, 195 (1990). "[W]hatever . . the planning commission might have done with an application properly before it, the superior court may also do if an appeal is duly perfected." Id. at 236, 575 A.2d at 195. The appeal before the superior court was related solely to the issues before the planning commission for the City of Montpelier. Those issues were limited, consistent with the authority of the planning commission, to disapproval of the site plans for reasons related to traffic access, circulation and parking, landscaping and screening, and review of design plans. City of Montpelier Zoning Regulations § 15-401,-401.3, -404. The N planning commission has no authority to decide whether a use is"permitted" or "conditional," and it made no decision on that issue, even if the matters were, in fact, re erred to it by the zoning administrator as permitted uses. Therefore, because the type of use was not an issue before the planning commission, it could not have been an issue before the superior court on appeal from the planning commission's decision. Id. Moreover, there is nothing in the zoning regulations for the City of Montpelier that mandates that applicants file and obtain a ruling on an application for a zoning permit before the applications may be referred to the planning commission for its review. If that had been the case, it would have been proper for the superior court to dismiss the appeals for failure to :haust administrative procedures. But in the face of regulations that are .lent on the procedure to be followed, the superior court was without jurisdiction to dismiss the appeals. Instead, the court should have decided the planning commission issues properly before it. In view of our disposition, it is unnecessary to reach Wesco's remaining arguments. Reversed and remanded for further proceedings in accordance with this order. B COURT: 1� J Frederic W. Allen, Chief Justice Ernest W. Gibson III, AsslL ocate Justice (,)- [ J Publish John % Dooley, Asoci te�7u [ ] Do Not Publish Deni�e R. Johnson, Associate Justice k' Louis P. Peck, Associate Justice (Ret.), Specially Assigned ='.6L. �EAPWG 3cJ'-i URLINGTCN '._',rIE7J 3GAr;:,C 3cuth 3urrington :'evei.:,Glr,>nT ';evlew 3card .vlrl ^old A cuoic ieanng at :ne Sauth Bur- :ngtcn '::Ity Tali. u nfpr nce Rcom, ii75 Corset Street, South Burlington, `: errrtcnt an Tuesaay. =et ruary 2000. ,:At 7 30 Pit. to consider the fcllowina: .11 Preliminary plat appli- cation at the Van S{cKlen Limited Partnershrc to 3mena a previously ap- proved planned resiclen- tial development consis- ting of 55 single 'amdv :a3 ln o'.$ acres. -he i ;amRndment canslsts )t', auoraividing a 6 ,' 7 Acre aarcal into 58 lots -esult- ng In: !I .29 single iamliy lots. 21 a. 10.57 Acre ct i. for an extstint single family dwelling, ) a 6.03 acre parcel consisting of ! none (91 two-tarri awell ngs. two [21 single family swellings 29 foctcrmt ots and Ar acer ,oace at. 41 live !al x er. icace at^a, ana 61 3 l . ' .Acre aarcel .a ce -on ,even o An 3araming orooerty ;weer, ' 550 Hi- nesburj mead. 21 Acceal at Timcenake Asscc:ates from the ie- :.slcn :f 'ne the Admmis- 'rative •'f`icer that her racosa.l !o use t portion a Heir aropeml at 101 Williston Road for vehicle I ,tcrage s not oermlttea .inaer the South Burling - *on Zoning Regulations. 31 �poiication at Wesco. I .nc. SeeKing conditional �.Ase aporavat from Sec. 1 -ion 16.05. Concitional Uses. ana Section 26.65 Mu:tlple StnActures ana 11 !Uses ,n Lots, of r.he South Burlington Zoning i 'Renuianons. 4eauest *Cr 3rmission ',a ,onvei a :'service station re i :,onVenlence store ana etain he :gas sales :o- aratlon .�t the service i station ..se. I'a '.Villja- 'or Poad. .il Arpocanon of Craig i :Arad loanne 'Ocerson i 3eeKirg Approval under Sacnen ' '.a02. Height at StnxturFes. at ,he ,ouch L'uriington -Zoning Requ- atlons.-:.eauest s fcr aermisslcn 'a construct a Aingse amily ]welling wth A 'naxlmuln nelgnt Acave 25 eet :Ana nct "o >xcaed 15 feet. ?svll- Jan lvenue. ;ogles :i ;he .3ppuca- ';ons are Avallacle for public nsoecticn At 'he South Burlington r3. y riall. �1 d31fn'.11't �gyeiapment 13?.VIeW 3cara .anuar•, '5. 2000 FF'UI9 C i t y o+ So. E: FN:,: H0. 1 GJ2 653 4740 Dec. 01 1999 City of South Bwlinron Appb"60n to Development Revicw Board Official Use APPLICATION # HEAPING DATE G FILINGa� DATE _ FEE AMOUNT o 5 _ Name of appliaant(s) Timberlake Associates Adam 3 2 San 1� (' m n T) r � $ t Telcphonc # 8 6 4 - 515 5 Raprescntcd by I,andowncr Timberlake Associates Location and description of property " 1 _, � - AdiaceUtlrOPe'o"nw(S)&Addr"a Mobil Oil Corn. , 811 TTilliston Rd. Typo of application chemak one. ( uppad ftm dmision of AdminislIZIM Offices ( ) request for a conditional use ( ) re+quca for a variance I Ymd=-ju td the preeatUuon procedures required by State Law (Section 4469 of the plunniug & Developnwot Act). That a legal advertisement must uPPcwx a Minimum of tiftLc ► (15) days prior to the heating and I a0ce to pray a hearing fx which is to ott set the coact of hearing, D scribe request Vacate and reverse the November 29 1999 determination of Ravmond J. Belair SOUTH BURLINGTON ZONING NOTICE L, accordance with the South BYuiingten Zoning RegWatinn and Chapter 117, Title 24 V.S.A. Ow South Burlington Development Review Board will hold a pobiic hearing at the South 0mlington Municipal Offices, Confcm= 'c Room. 575 Dorset Street, South Btuiingten. Vermont on Z uesdny, at 750 P.M. to eattsider the following: Application of see long a _ from Su6tion of the Soth Burlington Z.Mmg Regulstzoas. Roquat ix for permission to Post-IfID Fauc Note 7671 Dale a Pa Jens From PYpne # IPhone N 'N/F NGTON U JvM C nN.♦a�d- -_ po+NIP_ SHERATONr"f1NOOStO , r . WILLISTON ROAD °•,, v:�� --- ---- D,1;1: PD1E ----- o------'w-1-------=_---- .S. •ROUTE //2 - •• I -'•I .___ .___ VIIV,J N291! [DGE .N1.N' EDDE _ S __ � rz _ _ N1rlw Is• la - _.____�__ ��. �,G_ �_ ___ -_ - --,NO --__ ux ........ ��=• n — ° °fPAAZTNCsw"wcD - ¢cv Saar i. .. UTH BURUNGTON 1 1 I __ -- l .• - ... .. • > / j e' err. M. arT.r3 LOCATION MAP A l 1 I r N/F lUl VOL B34 PG. L OIL288 0 I i;fki rnl Z -- .—A a s 111:�f °�Mr0.1'.'.'�ViDM,E I.er reg I 1 I 1 i i I.�EI�+TIND r u— usoroEr APPROWA1E IM•TOY a urorlaouxo raga tA"ls "`---"•FF• �•�� o '� $ I I � I PA♦m x1rAa 10 i'�PRA _w1mPY�. NJeo'rz + I�1 � PAD 1 I Df]rssxa ra env i A Oil x w w& Met 1 lRDG Doerr a � ------_ lotwrt�lm� Tee j I a.o Jos III / Ir � , , 1' � 1 � � PIG1rIC eue ARIL 1f10 4 auv�¢ PAIweF ArG - �T]D Sex Toro Eescr•a . n.ne N.Sx lw OWDI SPAa . SI,e62 65.T1 JOti I I S . aw-er . r�Hy � eo' ID IloNr YAeN / d 3(RII Nv. Il rS Olrt eauA AJfL G � AREA PAgE�A AL - I,ODD Kuf �iAA"D rAV<T - 4,2111111 ecru a . Io.n1. e n.el a I — Ieo.oa � i I vAvm �� .sr _ a- , Eo.Dem/ er Jain n /eoxt rN■ - a+v PAscJeur Arm rArxz - +Taos IJ.eI ]a: ecru sr•¢ - auI eza ,a J-�--�-��7�--r�� 2 bl ,a tAuaa rJ®� NOTES H mr ,'mower oD="�ra.ArzOY.mA �© �` L +•, J. w ul M.°aiNAC "Cr.L w 8 I a[ssac wA"p°D�AP AnAuv I S,.SY IKTnrNny � � H—Ty O,H© Mryrro� — O T +°r°J Trl I ` \ RL1■lQ/ wYn KSCSr r1M'Nm Di 1 lN! 12CY03 uro .w A,Es ra uw,Nc and 1K aaK A>PAD+m not DInFr a4T AA( A. BA ILLARGEON \ RI11 - NL]l VOL. SO PG. 30 As-NsrAum Ae un. artwa � - EODIEr •"o AeaA"c rAlw NJur EuvAra Al S \ LEGEND— I .rporEn PrNr - "Dr ra eazlwlDJn" Em,NO e• x.Er err .. Emn" ...... POT, o NIP _ D•rz rtor,m - a/uM Em1MD Ir ■ — — - n 1-- w""aE 0 BURLINGTON TENNIS CLUB MG ` r�9s,+w r A. —1 rArzn IIAN Eus,Ne r.r.wE ® i I a/nM IznEA"cs nAwure ns" Enz,ero ,nEr"arr INE r � msnw u,wASN a I _ z Ernew "A— ws IJ.c [n],em roAD sa s PRIOR TO CONSTRUCTION THE CONTRACTOR SHALL � I an.sue--Nsruamlw•.srzr EocA1ID" AM0 Dwowrz Pb umru, - cnsnw Dnurr PaE a CALL "DIGSAFE" AT 1-888-344-7233 TO LOCATE S 10/!e A,- ;nrMT• rArzA srrNa .-J a/rArzr sPUA,a/anale.sN ■ UNDERGROUND UTILITIES. P— .• xrrr 5[eMa - pie [ITar"D r+rE -A", jz j : 5(,r11 a1ru1EE CO"NEDMN CI9T,ND Ca,Wr oraPErr uAE - - vMo DAIEMBAs" xzE+I aEN.our ■ ®. �' :/eons ZIT,roams�aAa,s�Arz 1 r,T,.,D DD"c Ert E,Ne EJOTmw Daacrt TIDE-u. SITE PLAN wrt 11•IN is PEAT DA,°"1°Eo :Wane • ,` •.D<=r �E D.—,e.D. w,m . D aESCePilw co"acrz aAle co"ucrz sAJaAu / PAD �1T- GRAPHIC SCAlz vAIArz ADPE raDND Em1ND w.,ID r•A TIMBERLAKE S M M �^w o �� ASSOCIATES �� P Emmw ew+ar SOUTH BURLINGTON R SCOTT MICNAEL AAA EXXON lau0°i+r ww�110I1ic,pIl0A0i yr +, rmwAer Ina ��"'� PUBLIC HEARING SOUTH BURLINGTON DEVELOPMENT 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, February 1, 2000, at 7:30 P.M. to consider the following: 1) Preliminary plat application of the Van Sicklen Limited Partnership to amend a previously approved planned residential development consisting of 55 single family lots on 61.8 acres. The amendment consists of subdividing a 61.77 acre parcel into 58 lots resulting in: 1) 28 single family lots, 2) a 10.57 acre lot for an existing single family dwelling, 3) a 6.03 acre parcel consisting of nine (9) two-family dwellings, two (2) single family dwellings, 28 footprint lots and an open space lot, 4) five (5) open space lots, and 6) a 0.11 acre parcel to be conveyed to an adjoining property owner, 1550 Hinesburg Road. 2) Appeal of Timberlake Associates from the decision of the Administrative Officer that their proposal to use a portion of their property at 801 Williston Road for vehicle storage is not permitted under the South Burlington Zoning Regulations. 3) Application of Wesco, Inc. seeking conditional use approval from Section 26.05, Conditional Uses, and Section 26.65, Multiple Structures and Uses on Lots, of the South Burlington Zoning Regulations. Request is for permission to convert a service station to a convenience store and retain the gas sales operation of the service station use, 1118 Williston Road. 4) Application of Craig and Joanne Anderson seeking approval under Section 11.402, Height of Structures, of the South Burlington Zoning Regulations. Request is for permission to construct a single family dwelling with a maximum height above 25 feet and not to exceed 35 feet, 7 Pavilion Avenue. Copies of the applications are available for public inspection at the South Burlington City Hall. John Dinklage, Chairman South Burlington Development Review Board January 15, 2000 Sarvak & Simendinger ATTORNEYS AT LAW 32 San Remo Drive, So. Burlington, VT 05407-2287 (802) 658-9999 Fax (802) 864-6234 November 29, 1999 City of South Burlington So. Burlington Development Review Board 575 Dorset Street So. Burlington, VT 05403 Re: Spillane's Parking/801 Williston Road Dear Board: This letter responds to Staff s comments that the proposed parking use is not permitted. This matter has been determined to only require site plan approval by the City's Zoning Administrator. Accordingly, the Board should apply Site Plan Review criteria found in section 26.10. The legal status of the type of use (permitted, conditional or nonconforming) is not part of the criteria and ought not to be decided by the Board acting on site plan review. There is a Vermont Supreme Court case directly on this point. In Re Wesco, 93-478 and 93-479. See attached. However, we will still address this point. The parking behind Spillane's is part of the service station use. A service station is a permitted use in the C1 district. 12.106. Further, accessory uses to the service station use are also permitted uses. 12.110. Public and private parking facilities are conditional uses. 12.216. The so-called "Auto storage use" is undefined in the South Burlington Regulations and is not a term allowed or regulated, as such, in any district. The term "storage" is not typically use to describe vehicular parking because cars are highly mobile, do not stay in one location for very long, and because that term is too generic as compared to other specific definitions. Even car dealers with the longest extended vehicle parking are not said to have an "auto storage use." See 13.214. In conclusion, the Board ought not reach the issue of the type of use. If this matter is to be decided, the use is a permitted or conditional use. &Since,im ndinger, Esq. Enc. C:\My Documents\1999docs\SoBur1B9.doc Memorandum - Development Review Board February 1, 2000 January 28, 2000 vehicles and/or vehicles awaiting service and repair. There is no relationship between the approved uses on the Timberlake Associates property and the proposed use (i.e., vehicle storage) and is therefore not an accessory use. The vehicle storage area is not a "private parking facility" as that term is defined under Section 28.136(a) of the zoning regulations. The area in question located behind Spillane's building is being used as a place to store towed vehicles which is a part of Spillane's business. The area is gated and is not a place for his customers and employees to park. Vehicle storage is not the same use as parking and is not a permitted use in this district. The City Attorney agrees with my interpretation of the zoning regulations. The site plan approved for the appellant's property did not include this vehicle storage use and it was never approved by the Zoning Board of Adjustment in 1991. In addition, neither site plan approval nor a zoning permit were approved for this change in use. The appellant is therefore in violation of their site plan approval. 7 & 8) WESCO, INC. - CONVENIENCE STORE - SITE PLAN & CONDITIONAL USE PERMIT This project consists of amending a plan for a service station with seven (7) fueling positions (six (6) gas and one (1) diesel). The amendment consists of: 1) converting the service station to a convenience store including a deli/bakery with 12 seats, 2) constructing a 450 square foot addition for convenience store use, 3) access modifications, 4) razing an existing single family dwelling and garage, and 5) reducing the number of fueling positions by two (2) for a total of five (5) fueling positions (four (4) gas and one (1) diesel). This project located at 1108 and 1118 Williston Road lies within the C1 District. It is bounded on the north by a hotel/restaurant (Econolodge), on the west by a hotel/restaurant (Holiday Inn), on the east by a medical office, and on the south by Williston Road. SITE PLAN CRITERIA: Access/circulation: Access modifications involve the following: 1) the two (2) existing curb Memorandum - Development Review Board February 1, 2000 January 28, 2000 b) access to sunlight of adjoining and/or nearby properties; and c) adequate on -site parking. The site plan submitted indicates that the site has adequate on -site parking for two (2) vehicles. The applicant should be prepared to address criterion (a) and (b) above at the meeting. Letters from the two (2) adjoining property owners have been submitted (see enclosed). They indicate that they have no problem with this request. 6) TIMBERLAKE ASSOCIATES - APPEAL OF ADMINISTRATIVE OFFICER'S DECISION On 7/8/91 the Zoning Board of Adjustment granted a conditional use permit for the storage of no more than ten (10) wrecked and abandoned vehicles (see enclosed decision) at 811 Williston Road (Spillane's Mobil). The plan in the file for this approval showed that the land behind the station at 801 Williston Road was to be used for vehicle storage but the approval was for only 811 Williston Road and did not include land at 801 Williston Road. On 10/25/99 David Simendinger submitted a site plan review application as an applicant representing Timberlake Associates, the record owner. The application was to add 'parking and storage of vehicles" to the approved uses of convenience store, gas sales, deli and ATM. This property is located at 801 Williston Road. On 11/29/99 I made the determination that the applicant's proposal to uJe a portion of the 801 Williston Road property for vehicle storage was not permitted under the zoning regulations. I would therefore not forward his site plan review application to the Development Review Board. On 12/10/99 the property owner Timberlake Associates appealed my decision of 11/29/99. ISSUES The vehicle storage which is at issue (see enclosed plan) is for the benefit of the adjoining properly owner, Spillane's Mobil. Spillane is using the appellant's property to store towed Sarvak & Simendinger ATTORNEYS AT LAW 32 San Remo Drive, So. Burlington, VT 05407-2287 (802) 658-9999 Fax (802) 864-6234 February 1, 2000 Development Review Board City of South Burlington 575 Dorset Street So. Burlington, VT 05403 RE: 801 and 811 Williston Road Dear Board: The immediate matter before the Board is a determination by Administrative Officer, Raymond Belair, dated November 29, 1999 that parking being done by Spillanes on Timberlake's property is not a permitted use. See Exhibit A. Timberlake Associates requests that the Board reverse this determination. A threshold issue presents itself — the City has not provided due notice to Mobil Oil Corporation and Spillane's that their use is not permitted. The Board lacks jurisdiction to consider this matter without providing formal notice to the affected party. See 24 V.S.A. Sec. 4444. Timberlake Associates has conditional use approval and site plan approval for a store at 801 Williston Road. The approved plan shows the area at issue as a "gravel area" with concrete and log barriers. See Exhibit B. It is proposed to continue this gravel area in the same form that it was approved. Accordingly, Timberlake is not in violation of its site plan approval. Both 801 and 811 Williston Road are in the Commercial 1 (C 1) District. Service stations are permitted uses in the C1 District. A service station is a facility that sells vehicular fuels and may include the servicing and repairing of automobiles." Sec. 12.106. The storage of vehicles being serviced or repaired are permitted uses. Both 801 and 811 Williston Road sell gasoline and constitute service stations. Towing is an accessory use to repairing and services vehicles and is permitted. Sec. 12.110. Accessory uses can exist on separate lots as long as part of the same parcel or plot. Sec. 28.00 (definition of "lot"). The area in question were part of the same parcel and are both included on the same plot recorded in Volume 11-1 page 55 and hence accessory uses are allowed on both. See Exhibit C. In 1991, Spillanes had acquired a towing contract with the City of Burlington. The City of South Burlington cited Spillanes for a zoning violation and informed Spillane's that the violation would be cured by obtaining a conditional use approval. See Exhibit D. On July 8, 1991, the South Burlington Zoning Board of Adjustment granted Spillanes a conditional use permit for vehicular storage in the area in question. See Exhibit E. On July 31, 1998 Richard Ward reaffirmed in a notice of alleged zoning violation that the Zoning Board_ of Adjustment decision was a valid permit. For zoning purposes, the grant of the conditional use permit in 1991 establishes with finality that the parking use is a lawful conditional use and can continue. The determination of the Zoning Administrator on November 29, 1999 that vehicles are "not permitted" is a collateral attack on a final board order and unlawful under 24 V.S.A. §4472(a). Rutland v. McDonalds, 146 Vt. 324, 331 (1985). The South Burlington zoning regulations have been generally broadened since the prior permit was approved in 1991. Accessory use and public and private parking facilities were added to the Cl District. There has been a general trend to increase uses the Cl District. A private parking facility is a conditional use under 12.216 and is defined as a parking area not generally open to the public. For all the above reasons, the determination of the Zoning Administrator should be reversed. Thank you. C:\My Documents\2000docs\SOBurIgO1.dOc Exhibit A CITY OF SOUTH BU LIi° GTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 November 29 , 1999 David Simendinger Timberlake Associates P.O. Box 2287 South Burlington, VT 05403 Re: Vehicle Storage, 801 Williston Road Dear Mr. Simendinger: This is to inform you that it is my determination that your proposal to use a portion of the above referenced property for vehicle storage is not permitted under the South Burlington. Zoning Regulations. Since your proposed use is not permitted, I will not forward your site plan review application to the Development Review Board. You have fifteen (15) days to appeal this decision to the Development Review Board. If you have any questions, please let me know. Sincerel C) i /, G L �ji/Lr7�j/j^ Ray and 1. Belair, Administrative Officer RJB/mcp e [■snnO CB - � -- �' rK wv. 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A'Onw m zr a. o w.�« •` sw . m I PRIOR TO CONSTRUCTION THE CONTRACTOR, SHALL CALL 'DIGSAFE" AT 1-800-225-4977 TO LOCATE UNDERGROUND UTILITIES. o, a R.xw r•, eart....w "R" " ` PROGRESS PRINT — NOT FOR xa^ CONSTRUCTION DATE PLOTTED — 2/17/97 SITE PLAN GRAPHIC seas TIMBERLAKE i S M-M ASSOCIATES o SOUTH BURLINGTON SCOTT NlIC14AE-L MaPES •y■ sas x i Nsm . w�ic �rce 1 EXXON 1ai0nunc 1 ...r'I r - .. n n.sra w a.. u• em wwsrtw .o.o _ "' °" soum etre)Rra.. rt r••s t1j DC Q' H. rt E- fr�•l.rl a�Irp car O • COeC41f II we W4. T iIl ~t l7 /6 /1 14 li 12 11 10 9 7 6 S 4 3 2 / to_IC._ ------ ------ --o , --- er-_� -- -�'r c_ = --- ---- ----- -- -- t H e •T i „I• E s Jc y r _ 11• j4 33 32 31 30 29 29 27 26 a 24 23 22 21 20 /9 18 ( 0 "*&I 4r qe E A S T, 11, T E R R A C E 1;-b2 0 47 Nil 46 -43 44 43 42 41 40 39 t 37 mi ru i rcr c . IC faf ! �A E` \ 5 P A R C L 0. i ; �1• v p 7 S � 4 �F \ rar \ 00 rt• V U L. 11 rc' I � EAST AVE. 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H4• -r 15/ s Exhibit D City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 FAX 658-4748 PLANNER 658-7955 April 8, 1991 Spillane's Mobil Servicenter 811 Williston Road South Burlington, Vermont 05403 Re: Storage compound Dear Mr. Spillane: ZONING ADMINISTRATOR 658-7958 Recently this office was informed by Captain John King of the Burlington Police Department that you have a towing contract with the City of Burlington. He also advised me that you are storing the vehicles at 811 Williston Road. Under Section 11.211 of the City's zoning regulations, outside storage is considered a cond1- tional use. Any conditional use requires approval from the Zoning Board of Adjustments. My records fail to show that ap- proval was requested. Please contact this office in order to resolve this matter. Very truly, Richard Ward, Zoning Administrative Officer RW/mcp Exhibit E STATE OF VERMONT COUNTY OF CHITTENDEN CITY OF SOUTH BURLINGTON DECISION & FINDING OF FACT On the 8th of July, 1991, the South Burlington Zoning Board of Adjustment heard evidence regarding the appeal of Lowell T. Spillane, 811 Williston Road based on the following facts and findings: 1) With the stipulation in place, proposed use will not adverse- ly affect the area. 2) Past use, storage of wrecked and abandoned vehicles, creates a problem at the Williston Road location, new storage area should have no adverse impact. 3) Traffic should be reduced since no more than 10 vehicles are allowed at any one time. 4) Character of the neighborhood will be improved. Based upon the above stated facts and findings the appellant's request for a conditional use is hereby approved. Stipulation: That all wrecked and or abandoned vehicles will be removed from the property within 30 days and the use discontinued. And that the storage of vehicles t d to th's 1 ion be limited to 10 at any one time. / n n �i���\ of the South Burlington Zoning Board of Adjustment CITY OF SOUTH BIJRLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BtiR.LINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 March 6, 2000 William F. Simendinger, Esquire Sarvak and Simendinger 32 San Remo Drive South Burlington, VT 05403 Re: Appeal of Timberlake Associates Docket No. 51-2-00Vtec Dear Mr. Simendinger: Pursuant to V.R.C.P. 76(e), I am required to provide you and the Court with a list of all interested parties. To my knowledge, other than the appellant, there were no interested persons who appeared before the development review board on this matter. If you have any questions, please let me know. Sincere, Rey ,end J. Belair, Administrative Officer cc: Vermont Environmental Court Amanda S.E. Lafferty, Esquire S TITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVENF. STITZEL FAX (802) 660-2552 or 660-9119 OF COUNSEL PATTI R. PAGE* E-MAIL(FMM2555@FIRMSPF.COM) ARTHUR W. CERNOSIA ROBERTE. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660.2552 JOSEPH S. McLEAN TIMOTHY M.EUSTACE MIA KARV ONIDES AMANDA S. E. LAFFERTY (-ALSO ADM=D IN N.Y.) March 1, 2000 Mr. Raymond Belair City of South Burlington 575 Dorset Street South Burlington, VT 05403 Re: Appeal of Timberlake Associates Docket No. 51-2-OOVtec Dear Ray: I have enclosed a copy of a letter regarding the above - referenced appeal. Please note that in accordance with paragraph 2 of the enclosed letter, you should provide William Simendinger, Esq., attorney for the Appellant, with a list of all "interested parties" (persons who appeared before the development review board on this matter) with instructions that he send a copy of his notice of appeal to all the interested parties in accordance with the Court's letter. You should also send a list of the interested parties to the Vermont Environmental Court. Please call if you have any questions regarding this. Sincerely, j 4 Amanda S. E. Lafferty ASEL/gmt Enclosure SON4261.COR 00-6111 `Ui (41M MAR , - 2000 Z`! --- PAGE & FI_EMCHFP VERMONT ENVIRONMENTAL COURT Lam% X-A (802) 479-4486 1st Floor February 29, 2000 255 North Main Street Barre, Vermont 05641 ------------------------------------- Amanda Lafferty, Esq. ! Stitzel, Page & Fletcher j PO Box 1507. Burlington VT 05402 ---------------------------------------- T.r, L_e : .{apeal of Timberlake Associates Docket No. 51--2-00 Vtec 73-•,, .:•o:.ineat.all. Court docket number 51-2-00 Vtec has been assigned to the above- xefaa-renced zoning board/planning comm.ission.appeal.. The notice_of appeal was at the Fnvironmental Court on February 29, 2000. Please use the zFn.t.a1 Court docket number when filing any documents or asking any t:ions concerning this case. T„ont Rules of Civil Procedure No. .74 and 76 (a) , c. arnc..xi4i-.d, ge.t out the procedures to follow in this appeal, including the following: 1. A person filing the appeal is called an "appellant". Appellant has thirty (30) days from the date the notice of appeal was filed to file with -this Court the statement of questions required by V.R.C.P. 76(e)(4)(B). This statement should be specific because it will govern the scope of the appeal. 2. V.R.C.P. 76(e), as amended effective July 1, 1996, requires the clerk of the zoning board/planning commission to provide to the appellant a list of all interested partie' , 41 t-tj i�: •>�r7.v� t vtis to serve notice - upon the interested parties that the appeal has been filed and tO give them the address of the Court to allow them to participate in the case here. We request that the town/city send to the Court a copy of the list of interested parties it provided to the appellant. The appellant must send a copy of its notice to interested parties to this court. Within seven (7) days of the date of this letter, we request that the appellant also send us a list of the people who received the appellant's notice to interested parties. 3. A person with standing to oppose the appeal is called an "appellee". Appellees have twenty (20) days from the date the appellant serves them with the notice that the appeal has been filed, to file their entry of appearance (request to participate) with this Court. Failure to file an appearance within this time may result in the case proceeding to a merits hearing without them. All parties who are participating in this case are responsible for sending copies of their court filings to the other parties. The case will be ready for hearing when the time for filing the appellant's statement of questions has expired. The Court may extend that time if requested by written motion. The Clerk of the Court will contact the parties to arrange for a pre -hearing telephone conference with Judge Merideth Wright, and the case will be set for a merits hearing to be held in or near the county in which the case originated. Please note that under 24 VSA 4471 (1) these appeals are de novo, unless the municipality has adopted procedures to make them on the record. Sincerely, Christine D. Eisenwinter, Deputy Court Manager Vt. Environmental Court CC: William E. Simendinger, Attorney for Appellant, Timberlake Associates Amanda Lafferty, Atty for Pet, South Burlington, City of FAXED COPIES DO NOT MEET FILING DEADLINES. FAXED DOCUMENTS MAY BE AUTHORIZED IN EXTREME CIRCUMSTANCES. PLEASE DO NOT FAX WITHOUT AUTHORIZATION. IF YOU HAVE NOT PROVIDED THE COURT WITH A TELEPHONE NUMBER WHERE YOU CAN BE REACHED FOR THE PURPOSE OF TELEPHONE CONFERENCES, PLEASE DO SO. STATE OF VERMONT ENVIRONMENTAL LAW COURT IN RE: TIMBERLAKE ASSOCIATES (801 WILLISTON RD., SO. BURL) ) DOCKET NO. Appeal of So. Burlington Development Review Board decision NOTICE OF APPEAL Timberlake Associates by and through its attorneys, Sarvak and Simendinger, hereby appeals the February 1, 2000 decision of the South Burlington Development Review Board, a copy of which is attached as follows: 1. Timberlake Associates, 32 San Remo Drive, South Burlington, VT 05403 is the property owner and appellant. 2. The property at issue is University Exxon, 801 Williston Road, So. Burlington, Vermont. 3. Regulations applicable to the appeal include but are not limited to the South Burlington Zoning Regulations. 4. The relief is proper because the project is permitable and was permitted. WHEREFORE, the Court should overturn the determination of the Development Review Board. Dated at South Burlington, VT this 13 day of February, 2000. C:\My Documents\2000docs\B9NotofAppeal.doc Tim By: William E. Simendin r, Esq. Sarvak and Simendinger 32 San Remo Drive South Burlington, VT 05403 -I- #AO-99-02 DEVELOPMENT REVIEW BOARD CITY OF SOUTH BURLINGTON Re: APPEAL OF TIMBERLAKE ASSOCIATES This matter came before the South Burlington Development Review Bn—rl Pursuant to the provisions of 24 VSA § 4464(a) on appeal of Timberlake Associates, hereinafter "Appellant" from the decision of the Administrative Officer that the Appellant's proposal to use a portion of their property at 801 Williston Road for vehicle storage is not permitted under the South Burlington Zoning Regulations. The Appellant was present at the public hearing held on 2/1/00 relative to this appeal. Based on evidence submitted at the hearing and as part of the appeal, the the South Burlington Development Review Board hereby renders the following decision on this appeal: FINDINGS OF FACT 1. The owner of record of the property at 801 Williston Road is Timberlake Associates. 2. On 7/8/91 the Zoning Board of Adjustment granted a conditional use permit for the storage of no more than ten (10) wrecked and abandoned vehicles at 811 Williston Road (Spillane's Mobil). The 811 Williston Road property is located east and north of the Appellant"s property. The plan in the file for this approval showed that the land behind the station at 801 Williston Road was to be used for vehicle storage but the approval was only for 811 Williston Road and did not include land at 801 Williston Road, 3. On 10/25/99 David Simendinger submitted a site plan review application as an applicant representing Timberlake Associates, the record owner. The application wCr ',, add "parking and storage of vehicles" to the approved uses of convenience store, gas sales, deli and ATM. This property is located at 801 Williston Road. 4. On 11/29/99 the Administrative Officer made the determination that the applicant's proposal to use a portion of the 801 Williston Road property for vehicle storage was not permitted under the zoning regulations. As a result of his decision, the Administrative Officer did not forward the site plan review application to the Development Review Board. 5. On 12/10/99 the property owner Timberlake Associates appealed the Administrative Officer decision of 11/29/99. 6. The vehicle storage which is at issue is for the benefit of the adjoining property owner, Spillane's Mobil. Spillane is using the Appellant's property to store towed vehicles and/or vehicles awaiting service and repair. There is no relationship between the approved uses on the Timberlake Associates property and the proposed use (i.e., vehicle storage) and is therefore not an accessory use. 7. The vehicle storage area is not a "private parking facility" as that term is defined under Section 28.136(a) of the zoning regulations. The area in question locat_ J "-hind Spillane's building is being used as a place to store towed vehicles which is a part of Spillane's business. The area is gated and is not a place for his customers and employees to park. Vehicle storage is not the same use as parking and is not a permitted use in this district. 8. The site plan approved for the Appellant's property did not include this vehicle storage use and it was never approved by the Zoning Board of Adjustment in 1991. In addition, neither site plan approval nor a zoning permit were approved for this change in use. The appellant is therefore in violation of their site plan approval. CONCL.USIONS OF LAW The Development Review Board, based on the facts of the matter, concludes that the Administrative Officer acted properly in determining that: a) The appellant does not currently have a zoning permit to allow a portion of its property to be used for auto storage, and b) The proposal to use a portion of their property for vehicle storage is not permitted under the South Burlington Zoning Regulations. DECISION Based on the above Findings of Fact and Conclusions of Law, the Development Review Board hereby denies the Appellant's request to vacate and reverse the Administrative Officer's 11/29/99 decision and affirms the Administrative Officer's 11/29/99 decision. Dated this . day of February, 2000 at South Burlington, VT i Chairman or Clerk South Burlington Development Review Board Sar vak & 51 endinger ATTORNEYS AT LAW 32 San Remo Drive, So. Burlington, VT 05407-2287 (802) 658-9999 Fax (802) 864-6234 Certified RRR February 18, 2000 Clerk, So. Burlington Development Review Board Dept. of Planning & Zoning 575 Dorset Street So. Burlington, VT 05403 RE: Timberlake Associates 801 Williston Rd., So. Burlington Dear Clerk: Enclosed please find $150.00 and a Notice of Appeal in reference to the above matter. Thank you. William E. Simendinger, Esq. Enc. C:\My Documents\2000docs\Clerk99.doc CITE' OF SOUTH BLJRLINGTON DEPARTMENT OF PI,ANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 February 24, 2000 Amanda Lafferty, Esquire Stitzel, Page & Fletcher, PC P.O. Box 1507 Burlington, VT 05402-1507 Re: Appeal of Timberlake Associates Dear Amanda: Enclosed please find the following: 1) Original Notice of Appeal by Timberlake Associates, stamped received on 2/24/2000. 2) Check in the amount of $150:00 to the Vermont Environmental Court. 3) Copy of transmittal letter from Mr. Simendinger dated 2/18/2000. If you need additional information, please let me know. Sincerely, Sarah MacCallum Planning & Zoning Assistant Certified Mail #: Z462929507 Encl. CHEt 801 WILLI S-TON746 150.00 011,9313 CHECK' DATE CONTROL rIUMBER 2/22/00 949313 I YOTALi 150.00 150.00 049313 otjl H GORLIM610H ONE RUNDRED FIFTY & NO/100 DOLLARS 2/22/00 049313 Vr Environmental Court 255 North Main St. 1st Floor Barre VT 05641 1110 L. 9 3 1 3111 1:0 11 6000 6 21: I'm 111 C, ?111 21, 2 6as, 21" CITY OF SOUTH BIJRLINGTON DEPARTMENT OF PLANNEI�TG & ZON1NG 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 November 29, 1999 David Simendinger Timberlake Associates P.O. Box 2287 South Burlington, VT 05403 Re: Vehicle Storage, 801 Williston Road Dear Mr. Simendinger: This is to inform you that it is my determination that your proposal to use a portion of the above referenced property for vehicle storage is not permitted under the South Burlington Zoning Regulations. Since your proposed use is not permitted, I will not forward your site plan review application to the Development Review Board. You have fifteen (15) days to appeal this decision to the Development Review Board. If you have any questions, please let me know. Since Rayrhond J. Belair, Administrative Officer RJ B/ mcp CITY OF SOUTH BUR, Ii �GTO DEPARTMENT OF PIANNING & ZONING 575 DORSET STREET SOUTH BUR.LINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 November 23 , 1999 David Simendinger P.O. Box 2287 South Burlington, VT 05403 Re: 801 Williston Road Dear Mr. Simendinger: Enclosed are preliminary comments on the above referenced project. Please respond to these comments with additional information and_/or revised plans, if appropriate, no later than Monday, November 29, 1999. If you have any questions, please give me a call. Sincerely, s " Lisa Mahoney, Zoning & Planning Assistant LM/mcp Encls -the applicant should include septic information with the preliminary plat submittal -Staff recommends that access be provided via the 60' r.o.w. LOWE'S - AMENDMENT TO PUD - SKETCH PLAN -the applicant should submit an overall site plan - the applicant should provide landscaping details for final plat submittal. The trash compactor and the area on the west side of the building should be screened. - the plan should include the location of exterior lights. The applicant should provide exterior lighting details (cut -sheets). -the stormwater management/wetland mitigation pond should be relocated so that it is not within the City's recreation path easement - the applicant should provide a bike rack. - staff recommends that an additional pedestrian crossing be provided across access drive B and that a protected pedestrian crossway be provided from access drive B to building "C" - the plan should include a location map showing the relation of the subdivision to adjacent property and the surrounding area. -the applicant should submit information addressing the noise and aesthetic impact on neighborhoods located to the south and west of the proposed development -staff suggests that the applicant prepare a parking management plan addressing the location of parking in relation to the proposed uses of the buildings HOUGH - CONSTRUCT GARAGE/46 HINESBURG RD - VARIANCE - The applicant has not provided any information as to why a variance should be granted. - The applicant should submit information addressing the five criteria required for a variance (see enclosed). SIMENDINGER - PARKING FACILITY - 801 WILLISTON RD -SITE PLAN -Staffs opinion is that the proposed use is an auto storage use which is not permitted under the zoning regulations in this district. SCOTT MICHAEL MAPES, P.E., ESQ. ENVIRONMENTAL ENGINEERING AND LAW 21 OCTOBER 1999 CITY OF SOUTH BURLINGTON DEPARTMENT OF ZONING AND PLANNING ATTN : RAY B E LAI R 575 DORSET STREET SOUTH BURLINGTON, VT 05403 RE: UNIVERSITY EXXON, 801 WILLISTON ROAD DEAR RAY: ENCLOSED PLEASE FIND 5 COPIES AND ONE I I " X 1 7° REDUCTION OF THE PROJECT SITE PLAN LAST REVISED 2 1 JULY 1 999, ILLUSTRATING THE SPILLANES PARKING PLAN IF YOU HAVE ANY QUESTIONS PLEASE DO NOT HESITATE TO CALL ME. THANK YOU. SINCERELY, SCOTT MICHAEL MAPES, P.E. SMM:SJM ENCL. CC: DAVE SIMENDINGER P.O. Box 5517 • Burlington, Vermont 05402-5517 • 802-864-8100 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 #) Timberlake Associates, PO Box 2937. So Burl inaton, V- 05407 phone -'k864-5155 fax A064-623A 2) APPLICANT (Name, mailing address, phone and fax #) David Simendinaer PO Box 2287 , So. Burlington, SIT 1,5A )7 phone 4364-51.55 ext . 222 -_ ax _, > 234 3) CONTACT PERSON (Name, mailing address, phone and fax #) same as above 4) PROJECT STREET ADDRESS: 3')1 Williston Rd., South Burlington 5) TAX MAP NUMBER (can be obtained at Assessor's Office) 6) PROJECT DESCRIPTION 06-02-91 a) Existing Uses on Property (including description and size of each separate use) convenience store w/ motor fuel, deli and internal ATM b) Proposed Uses (include description and size of each new use and existing uses to remain) narki n�4 and st-oraVe of vPhi c1 PS "'convenience store w/ - motor fuel, deli and internal ATM c) Total building square footage (proposed buildings and existing buildings to remain) 900 square feet d) Height of building & number of floors (proposed buildings and existing buildings to remain, specify if basement and mezzanine) height is 22 feet, no basement or mezzanine - e) Number of residential units (if applicable, new units and existing units to remain) N/A -_ f) Number of employees (existing and proposed): 6 g) Other (list any other information pertinent to this application not specifically requested above): 7) LOT COVERAGE a) Building: Existing 2 .' 8 % Proposed 2.8 % b) Overall (building, parking, outside storage, etc) Existing 32.7 % Proposed 34.5 % c) Front yard (along each street) Existing 1.7. 0) % Proposed 17. 8 % 8) COST ESTIMATES a) Building: $ N/A b) Landscaping: $ _N/A c) Other site improvements (please list with cost): 9) ESTIMATED TRAFFIC a) Average daily traffic (in and out): N/A b) A.M. Peak hour (in and out): 8-9 am c) P.M. Peak hour (In and out): 5-6 bm 10) PEAK HOURS OF OPERATION: 5-6 nm 11) PEAK DAYS OF OPERATION: Fridays --nd Saturdays 12) ESTIMATED PROJECT COMPLETION DATE: existing 13) 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. SIGNATURE OF APPLICANT SIGNATURE OF CO -APPLICANT Do not write below this line DATE OF SUBMISSION: REVIEW AUTHORITY: LI-6evelopment Review Board ® Director, Planning & Zoning I have reviewed this site plan application and find it to be: Co lete ❑ Incomplete xl-4�1 Director of Planning & Zoning or Designee I Da (Apfrmsp)