Appeals of Wesco, Inc.

Opinion

STATE OF VERMONT

ENVIRONMENTAL COURT

} Appeals of Wesco, Inc. } Docket Nos. 17-1-03 Vtec and 107-6-04 Vtec } }

Order on Motion for Interlocutory Appeal

Appellant-Applicant Wesco, Inc. appealed from two decisions of the Development

Review Board (DRB) of the City of South Burlington, one in January of 2003 and the

other in June of 2004, regarding a convenience store with gasoline service at the merged

property at 1108-1118 Williston Road. Appellant-Applicant is represented by1[1] Marc B.

Heath, Esq. and William E. Simendinger, Esq.; the City of South Burlington is represented

by Amanda S. E. Lafferty, Esq.

The Court issued a decision and order on motions for summary judgment, leaving

certain issues remaining in Docket No. 17-1-03 Vtec for trial; a date has been reserved for

September 2, 2005. The City moved to take an interlocutory appeal of that decision.

1[1] In addition, Kathryn Sarvak, Esq., is still listed as co-counsel, although she has not

participated in these proceedings for some time. Please advise the Court if she should continue to

appear in this appeal. Wesco had filed with the City alternate applications to convert a service station,

with one awkwardly-placed diesel fueling position and three gasoline pumps, to a

convenience store with a diesel pump and either two or three gasoline pumps (each pump

having two fueling positions). Wesco is seeking approval in the present appeal of a site

plan for the convenience store with three gasoline pumps which the DRB considered and

ruled on in late 2002. What remains in this case is Wesco=s application for approval of a

third gasoline pump (proposed for the same island as the new diesel location), associated

changes in the curb cut widths, parking and landscaping configuration, and issues of glare

and screening relating to a canopy over the diesel island.

It is difficult to understand what the City argues is the controlling question of law

suitable for interlocutory appeal. The City appears to be focusing the fact that when these

applications were filed, the conversion of the service station to the convenience store had

not yet occurred, and that now the convenience store, two gasoline pumps and one diesel

pump have been installed and are operating under other already-approved permits.

However, the site plan approval requirement is the same whether it is triggered by a

change in use (such as the change from a service station to a convenience store), an

expansion of a use (such as from two to three gasoline pumps), or an entirely new use.

'26.10. The DRB, or this Court in an appeal, must analyze the proposed site plan in light

of the standards in the regulations, regardless of what triggered the need for the site plan review. The DRB has already considered this site plan.

In the remaining merits hearing, Wesco will have to show, among other things, that

the on-site circulation, and proposed changes in curb cut, parking and landscaping will

meet the regulations if the additional vehicles proposed to use the outlying third gasoline

pump are added to the anticipated circulation of vehicles on the property, and particularly

whether there will be any conflict between trucks and passenger vehicles proposed to use

the same diesel-and-gasoline pump island. Wesco will also have to present evidence on

whether the proposed diesel canopy produces glare or is sufficiently screened. The City

has not shown why it matters to this analysis that Wesco has already acted under its

previous approval to convert the service station to a convenience store with two gasoline

pumps. The DRB (or the former separate ZBA and Planning Commission) previously had

before it alternate plans to convert the service station to a convenience store: one plan

with two gasoline pumps, and one with three. Only the two-gasoline-pump plan was

approved. Wesco still has the right to proceed with its appeal of the denial of its preferred

three-pump plan, even though its approved two-pump plan has been installed. The three-

pump plan is properly before the Court in what remains of this appeal, and does not

require remand to the DRB.

Even if the question of whether this appeal should be remanded were a >controlling

question of law=, an immediate appeal to the Supreme Court would not >materially advance the termination of the litigation,= especially if the time period to be measured

includes the time for the case to be considered at the Supreme Court as well as the time

for trial. In re Pyramid Co., 141 Vt. 294, 303-06 (1982). What remains in this case is

a one-day merits hearing on limited factual issues. If this Court were to allow interlocutory

appeal and the Supreme Court were to agree with the City that this appeal should be

remanded to the DRB, after the remanded DRB proceedings the case could ultimately

return to the Environmental Court de novo and be in the same posture as it is now for

trial. If the Supreme Court did not agree that the matter should be remanded, the

remaining portion of the appeal would be returned to the Environmental Court in exactly its

present posture.

On the other hand, if the proposed site plan amendments at issue in this appeal

(the proposed third pump location, enlarged curb cuts, and glare and screening related to

the canopy over the diesel island) were denied after the scheduled hearing on the merits,

and if Wesco were to choose not to appeal that denial, the matter will not need to be

presented to the Supreme Court at all. If Wesco were to appeal that denial, the issues

the City seeks to raise now could equally well be raised in that appeal. Similarly, if any of

the proposed site plan amendments were granted, the City itself would then be able to

bring an appeal on the issues it seeks to raise now. Accordingly, the City=s motion for permission to take an interlocutory appeal is

DENIED.

The Court will hold a brief telephone conference to discuss the relative timing of the

trial now reserved for September 2, 2005, and any motion the City may wish to make to

the Vermont Supreme Court. Ordinarily, after the trial, the filing of requests for findings

and memoranda of law would have been scheduled so that the remaining merits of the

case would have been under advisement with the Court in the first week of October, as

Judge Wright will be away from September 9 through September 29. At the telephone

conference, the parties should be prepared to state their positions regarding whether that

remaining merits hearing should be postponed, with requests for findings and memoranda

being due before or at the hearing, so that the matter would be under advisement with the

Court at approximately the same time. They should discuss the matter with each other in

advance of this conference.

Dated at Berlin, Vermont, this 12th day of August, 2005.

______________________________________ Merideth Wright Environmental Judge