In re Dooley

In re Dooley (98-093); 170 Vt. 108; 742 A.2d 761

[Filed 05-Nov-1999]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as  formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the  Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.

	
                                 No. 98-093


In re Appeal of Sandra Dooley, et al.	              Supreme Court
In re Appeal of SCANNEL, et al.
In re Appeal of Timberlake Associates	              On Appeal from
     		                                      Environmental Court

	                                              May Term, 1999


Merideth Wright, J.


       John L. Franco, Jr., Burlington, for Appellants.

       Marc B. Heath and William W. Schroeder of Downs Rachlin & Martin,
  PLLC, Burlington,  for Appellee.


PRESENT: Barney, C.J. (Ret.), Underwood, J. (Ret.), Meaker and Maloney,  
         Supr. JJ. (Ret.), and Fisher, D.J. (Ret.), Specially Assigned


       PER CURIAM.   The appellants are challenging the decision of the
  Environmental  Court allowing construction of a gas station-convenience
  store of the "mini-mart" type on what  formerly was the site of a branch
  bank facility.  That operation had been carried on from a  modified
  residence and, at the time of sale to Timberlake, had reduced to being
  merely an ATM  site, operating twenty-four hours.

       The property is located on the south side of Williston Road just east
  of the East  Terrace/Spear Street entrance to Williston Road at the point
  where that South Burlington road  crosses the city line and becomes the
  City of Burlington's Main Street.  Easterly of the property  are commercial
  locations, including a Staples shopping plaza and a gasoline station, and
  then the 

 

  I-89 interchange with Williston Road (U.S. Route 2).  There are also
  residences adjacent to the  south.  Across Williston Road, opposite the
  northwesterly edge of the property and the Spear  Street intersection is
  the entrance of the so-called "jug-handle" for north-turning Route 2
  traffic.

       The property lies entirely within the City of South Burlington.  It is
  zoned "Commercial  1" and is within Zone One of the City's "Traffic Overlay
  Zone."  The proposed gas station-convenience store is a conditional use in
  that zone, requiring review and approval by the city  zoning board of
  adjustment for compliance with the zoning conditional use standards.  Since
  it is  a nonresidential project, the site plan proposal requires approval
  by the planning commission as  well.

       Generally, the installation proposed involves the demolition of the
  existing residential  bank building and the construction of a 900 square
  foot convenience store facility to the rear of  the lot, fronted by a
  gasoline island of three fueling positions under a canopy.  The plan
  includes  access drives, pedestrian walkways, paved parking, lighting and
  landscaping.  Building heights,  design and conformity to environmental
  requirements, side-yard and front set-back distances, as  well as the
  impact on adjoining property, are all part of the design requirements.

       A proposal was duly submitted to the zoning board of adjustment.  With
  some revisions  in details the proposal was approved and taken to the
  planning commission.  That body generally  approved the site plan with the
  exception of the location and number of curb cuts for vehicular  access. 
  The zoning board had required as a condition of approval a two-way driveway
  onto  Williston Road and an incoming-only entrance from Spear Street.  The
  planning commission  approval was conditioned on the Williston Road
  entrance being a right-turn, east-bound entrance  only access, with in and
  out access on Spear Street.

 

       The applicants then returned to the zoning board with the alterations
  made by the  planning commission.  The zoning board did not accept the
  planning commission's version and  required the Spear Street access to be
  entrance only, with "controlled dual access" from Williston  Road.  This
  was unacceptable to the planning commission, and when the applicants
  presented it,  the planning commission denied site plan approval.

       Faced with that impasse, the applicants took their case, by de novo
  appeal, to the  Environmental Court, a tribunal authorized to review the
  issues before both bodies and resolve  them.  After hearings and findings,
  that court approved the proposal before us, modifying the  basic proposal
  in some particulars, and authorized the project.  We affirm.

       The opponents' appeal to this Court specifically challenges two of the
  dimensional issues  and the provisions intended for traffic control, both
  foot and vehicular, in the conditional use  proposal developed from the
  evidence by the trial court.  The scope of the appeal was the subject  of
  several motions by all parties, seeking to define the validly contested
  issues and perhaps to  bring them into closer focus.  With challenges to
  some issues as not properly raised or  preserved, and a motion from the
  applicants for partial summary judgment all presented below,  the trial
  court annotated its decision and order as follows: "The court will review
  in the present  appeal any aspects of the conditional use approval which
  differ from the project approved in the  1995 application.  Any aspects
  which are unchanged, such as the 24-hour operation, are not  within the
  scope of this appeal as the 1995 approval was not appealed."

       The first issue raised is a challenge to the fifty-foot set-back
  proposed for the canopy over  the fueling stations.  The fifty-foot
  set-back was approved in the 1995 application.  Although  subsequent
  proposals decreased the size of the canopy, nothing in the evidence 

 

  suggests it was ever moved toward the street line.  It might well be
  assumed that the size  reduction, if anything, increased the set-back
  dimension.  Nowhere in these proceedings is there  any indication that
  either the zoning board or the planning commission found any shortcoming in 
  this particular dimension, and the lower court was fully justified in
  sustaining compliance.

       The second dimensional issue, raised by the appellants for the first
  time here, seems to be  that the proposal does not take into account
  Article 25.101 of the South Burlington zoning  regulations.  That article
  calls for a fifty-foot front yard set-back from the edge of the "planned" 
  right-of-way of Williston Road.  Nothing in the evidence places the
  southerly on-the-ground  location anywhere but where it was shown on the
  plot plan and accepted by the planning and  zoning bodies.  No
  representation by any authority speaking for the City of South Burlington
  has  suggested any defect in the placing of the right-of-way as the
  proposal does.  We are left without  evidentiary guidance as to a different
  place for its claimed true location.  Perhaps the width has  already been
  incorporated into Williston Road, possibly all on the north side, or
  perhaps divided  by some unknown measure between the north and south sides. 
  This late-in-the-day challenge  may raise intriguing speculation, but it
  must be said that there has been no challenge of substance  questioning the
  determination that the Williston Road southerly right-of-way boundary is
  exactly  where the plot plan put it and the commission, board and trial
  court accepted it.  No reversible  error appears here.  See Abbiati v.
  Buttura & Sons, Inc., 161 Vt. 314, 318, 639 A.2d 988, 990  (1994).

       Traffic flow is the concern of the third issue.  The conditional use
  approved in 1995  provided for a two-way access onto Williston Road.  This
  access was 220 feet from the Spear  Street intersection measured along the
  property line from the nearest edge of the driveway to the 

 

  closest point of the intersection.  Under 23.103(d) of the zoning
  ordinance, driveways are to be  located at least 200 feet from signalized
  street intersections (of which the Spear Street  intersection is one),
  measured "between the near edges of the driveway and the intersection."

       It is the contention of the appellants that this measurement should be
  made from the edge  of the flare of the driveway where it meets the
  east-bound travel lane of the street.  This yields a  separation distance
  of some 170 feet along the curb line.  Rectification could come from 
  requiring a 90? turn into the property from Williston Road, unsafe
  traffic-wise though that might  seem to be.  However, measuring along the
  property line of the approved proposal still gives a  separation distance
  of 210 feet, as demonstrated by the exhibit.  The appellants acknowledge
  that  the ordinance gives no guidance for the proper course of measurement. 
  However, evidence in  the case stands uncontroverted that such measurements
  have been customarily made along the  line of ownership by the South
  Burlington authorities.  This practice weighs heavily in favor of  the
  trial court's adoption of that regulatory interpretation.  See In re
  Duncan, 155 Vt. 402, 408,  584 A.2d 1140, 1144 (1990).  

       Indeed, how can the measurement responsibility be fairly imposed on
  the property owner  beyond his property boundary when his control ends at
  the line of ownership?  Use, design and  construction on the right-of-way
  itself is totally subject to the control of the appropriate  municipal
  agencies, even though the property owner may be required to bear
  construction  expense.  Nothing developed by the appellants demonstrates
  any error in the determination of  compliance with the distance to the
  signalized intersection.

       As the trial court determined, on Spear Street the curb cut, although
  within the 200 foot  distance, was "grandfathered" because it is located
  within the area of a previous cut dating back 

 

  to the bank usage.  The new proposal entirely eliminated an automobile
  access drive on Spear  Street even closer to the intersection.  Thus, the
  lineal measurements of the proposed curb cuts of  the proposal as
  delineated by the court below are properly within the regulatory limits.

       Further relating to the issue of traffic control is the presence of
  high volume traffic on  Williston Road.  On this account it is here subject
  to the Traffic Overlay Zone 1 requirements for  dealing with potential
  traffic burdens brought about by the business activity associated with the 
  project.  The appellants raise challenges to the trial court's disposition
  of traffic control issues  raised in connection with the proposed plan.

       The Traffic Overlay Zone sets maximum peak hour volumes for burdened
  street and  intersection areas.  The zone involved here sets a limit of
  29/30 trips serving the property.   These are called vehicle trip ends and
  refer to vehicular traffic into and out of the premises to  make use of the
  facility.  Since this is a preexisting business lot (former drive-through
  bank  depository and ATM location), § 21.50 of the zoning regulations
  permits approval of peak hour  traffic volume above normal standards.  That
  permission is conditioned upon establishing that the  proposed use will not
  increase peak hour volumes generated by the previous use, or, if it does, 
  other improvements to the site will produce a net benefit for traffic in
  the area.

       The preexisting use as a branch bank facility generated 95 trip ends
  in the peak hour.   However, the evidence also 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.

       A second method of analyzing traffic impact uses something called the
  "pass-by" rate, 

 

  using a percentage of the traffic by the premises as a measure of potential
  trip ends.  However,  this procedure gives a standard of 17/18 for the bank
  use against a 27 trip-end for the proposed  use, facing the proponents
  again with an overage.  Confronted with this circumstance, the trial  court
  analyzed the design and improvements in traffic entrances, departures and
  circulation, plus  pedestrian improvements, to see if the test of a "net
  benefit for traffic in the vicinity," as  provided in the regulations, was
  met.

       From the evidence, exhibits and findings in the case, the design of
  the traffic pattern  imposed upon cars entering and leaving the premises in
  question becomes clear.  Ingress and  egress from the property is to be
  confined to an incoming driveway on Spear Street, and an  incoming and
  outgoing driveway on Williston Road.  The Spear Street entrance is designed
  to be  available to right-turning traffic north-bound on the easterly side
  of the street.  The entering  driveway on Williston Road is accessible only
  through a right turn available only to east-bound  traffic on that road. 
  The associated exit drive directs departing traffic to the right to join
  any  east-bound moving traffic.  Additionally, a permanent berm or barrier
  in Williston Road is  designed to prevent left-turning and cross-traffic
  entry to the property, and to deny exiting traffic  left-turning and
  cross-traffic access to west-bound Williston Road traffic.  The allowed 
  movement is analogous to the safety purposes served by on and off ramp
  designs at interstate  interchanges.

       Testimony in the case established left-turning, cross-traffic movement
  as a most  dangerous impediment to safe traffic flow, and a cause of
  accidents.  Since the design proposed  substantially eliminates this danger
  previously present, it can only be viewed, as the trial court  determined,
  a significant and "net" benefit to traffic in the vicinity, as the
  regulations require.

       As to any additional traffic generated along Spear Street by this use,
  the uncontroverted 

 

  evidence was that, based on the most conservative assumption of burdensome
  use, there would  be merely a fraction of a second increase in traffic
  delay for that traffic at the Spear Street light.   This barely measurable
  change is insufficient to change the more significant and already 
  established "net traffic benefit."
	
       Beyond that, recognition must be given to the design improvements
  relating to pedestrian  safe access as an overall contribution to traffic
  safety.  A new sidewalk along Spear Street, a  pedestrian island at the
  Williston Road access, internal walkways, landscaping and fencing  placed
  to direct foot traffic to safe areas and restrict random movement are all
  safety ingredients  in the plan.  Thus, the safety of both automobile and
  pedestrian traffic have been significantly  advanced.

       Outside of the areas specifically challenged in this appeal, the trial
  court evaluated details  of the plan in carrying out its responsibilities
  to oversee and control property development within  the regulations, rather
  than erect barriers to allowable change.  The court examined and adjusted 
  lighting and landscaping, made cosmetic structural alterations to protect
  vistas appurtenant to  neighboring dwellings, and generally reviewed the
  proposal with an eye to the protection of  existing residential uses, even
  though other older developments had already modified the  character of the
  vicinity.

       The appellants seek to fault the trial court's extended evaluation of
  the proposed project  for failure to support some partially conclusionary
  findings undergirding the result with more  detailed findings.  They would
  have the matter remanded to put in place more details itemizing  the
  conformity of the existing findings to their view of the zoning
  requirements.  We find no  such shortcoming.  The findings and conclusions
  made, so plainly developed from and supported  by clear evidence in the
  case, make this challenge not only unfounded but calling for a wasteful

 

  expenditure of time and resources that would not especially improve clarity
  nor, in any way,  change the result.  See Roy v. Mugford, 161 Vt. 501,
  511-12, 642 A.2d 688, 694 (1994).

       Affirmed.	

	                               BY THE COURT:



	                               _______________________________________
	                               Albert W. Barney, Chief Justice (Ret.)
	                               Specially Assigned

	                               _______________________________________
	                               Wynn Underwood, Associate Justice (Ret.)
	                               Specially Assigned

	                               _______________________________________
	                               John P. Meaker, Superior Judge (Ret.)
	                               Specially Assigned

	                               _______________________________________
	                               Ellen H. Maloney, Superior Judge (Ret.)
	                               Specially Assigned

	                               _______________________________________
	                               Shireen A. Fisher, District Judge (Ret.)
	                               Specially Assigned