In re Appeal of Dooley

742 A.2d 761, 170 Vt. 108, 1999 Vt. LEXIS 329
CourtSupreme Court of Vermont
DecidedNovember 5, 1999
DocketNo. 98-093
StatusPublished

This text of 742 A.2d 761 (In re Appeal of Dooley) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Appeal of Dooley, 742 A.2d 761, 170 Vt. 108, 1999 Vt. LEXIS 329 (Vt. 1999).

Opinion

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 1-89 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 [110]*110approval á 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 [111]*111shortcoming 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 fine 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.

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Related

In Re Duncan
584 A.2d 1140 (Supreme Court of Vermont, 1990)
Roy v. Mugford
642 A.2d 688 (Supreme Court of Vermont, 1994)
Abbiati v. Buttura & Sons, Inc.
639 A.2d 988 (Supreme Court of Vermont, 1994)

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Bluebook (online)
742 A.2d 761, 170 Vt. 108, 1999 Vt. LEXIS 329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-appeal-of-dooley-vt-1999.