STATE OF VERMONT

ENVIRONMENTAL COURT

Appeal of Armitage, et al }

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Docket No. 38-3-

01Vtec

Decision and Order

 Margaret W. Armitage and 43 other property owners appealed from 

a decision of the Zoning Board of Adjustment (ZBA) of the Town of 

Pittsford, granting conditional use approval to Appellee-Applicants 

Eastern Development Corporation1and Joan S. Kelley for the 

construction of a building and associated parking lots and driveways to 

be used for a U.S. Post Office. Appellants are represented by 

Stephanie J. Kaplan, Esq. and Appellee-Applicants are represented by 

Vincent A. Paradis, Esq. The Town of Pittsford is represented by John 

A. Facey, III, but did not take an active role in this appeal.

 An evidentiary hearing was held in this matter before Merideth 

Wright, Environmental Judge, who also took a site visit with the 

parties. The parties were given the opportunity to submit written 

requests for findings and memoranda of law. Upon consideration of the 

evidence, the site visit, and the written memoranda and proposed 

findings, the Court finds and concludes as follows.

 Appellee-Applicant Eastern Development Corporation holds an 

option to purchase Lot 2 of a two-lot subdivision of a 2.69-acre parcel 

of land owned by Joan S. Kelley and located near the southeast corner 

of U.S. Route 7 and Plains Road in the > Village= zoning district of the 

Town of Pittsford. Approval of the subdivision and of the site plan is 

not at issue in the present appeal.

 Two driveways served the combined property: one from Plains 

Road and one from Route 7. The Plains Road access is proposed to be 

improved as the sole access to both subdivided lots. The Route 7 

access also serves the adjacent Rawlings property to the south. 

Although the combined property has access onto both Route 7 and 

onto Plains Road, the combined property does not extend to the actual 
corner of Route 7 and Plains Road. Rather, the property= s westerly 

property line extends obliquely across the corner from the proposed 

Plains Road access driveway across the Route 7 access driveway, 

coming to a point on the Rawlings property. The present Route 7 

access is proposed to be redesigned and screened so that it provides 

public access only to the Rawlings property.

 Lot 1, to be retained by Ms. Kelley, contains an existing residence. 

Lot 2 is 1.5 acres in area and contains an existing barn structure used 

by the Kelley family in the past for retail sales. Lot 2 has been 

designed so that it has 100 feet of frontage along the Route 7 right-ofway, the minimum frontage required for a commercial use in the 

Village zoning district. 

 Lot 2 also contains a pond and shelter used in the past for the 

raising of ducks and geese. The excrement from the ducks and geese 

added organic pollutants to the pond, some of which were carried by 

the stream outlet from the pond into water flowing to the south and 

west. The pond is fed by two small streams, running in two swales, 

one extending from the northeast corner of the combined property and 

one from near the easterly corner of Lot 2. The source of the 

northeasterly stream may be traced to two springs that were in the 

nineteenth century used as a drinking water source, developed by the 

Pittsford Aqueduct Company. The pond was created by a small dam 

which controls the outlet at the southerly boundary of the property. 

The stream continues to the south across the adjacent lot and another 

lot, and through an 18" culvert under Route 7 at Depot Road. Its outlet 

on the westerly side of Route 7 is within a steep ravine, through which 

the water flows onto the property of Appellant Margaret Armitage. 

where it has in the past provided water for horses and other livestock 

on the Armitage property.

 Appellee-Applicant proposes to demolish the existing barn structure 

and goose house on Lot 2 and to construct on the property a building 

and associated parking areas to be used for the U.S. Post Office to 

serve the Pittsford area. In connection with this project, AppelleeApplicant now also proposes to drain and eliminate the pond. A post 

office is a conditional use in the Village zoning district. The proposed 

hours for the post office are unknown, but are likely to be from 7 or 

7:30 a.m. to 5 or 5:30 p.m. on weekdays and also for some period on 

Saturday mornings. No evidence was presented as to whether the 

lobby of the post office would be open extended hours beyond the 

hours of the counter service. From one to as many as eight employees 

will be employed at this post office, although approximately five of 
those will be route carriers who do not spend most of their time at the 

post office itself. No evidence was presented with regard to the 

number of persons normally to be employed at the building at one 

time.

 The proposed building is L-shaped, presenting the appearance of 

an essentially rectangular 75' x 42' building, with an extension on the 

southeasterly corner for the truck loading bay, and an extension on 

the westerly end for an entrance portico. It covers a total of 3,630 

square feet in area. The main part of the building is covered with a 

gable roof draining toward the north and south, that is, with the gable 

end facing Route 7. The truck loading area was originally proposed to 

be roofed with a gable roof draining to the east and west, but was 

revised to be a somewhat smaller shed roof draining only to the west, 

as shown on Exhibit 22 (the revised site plan). The truck loading area 

is closed in on its easterly side, so that the easterly face of the building 

presents a 60-foot-long facade, appearing as a gable end with a flat 

wall extension. The building will have a white clapboard exterior and 

will blend in with the characteristic residential structures in the area, 

although it will be larger than those structures and will have the 

appearance of a commercial building with its related parking area.

 The finished floor elevation of the building is at an elevation 

approximately nine feet above Route 7; the building is proposed to be 

23 feet in height, It meets the front setback requirements with respect 

to Route 7 and Plains Road, and meets the remaining setback 

requirements to its property lines. The building and lot coverage also 

meet the dimensional requirements of the zoning ordinance. The 

building will be served by municipal water supply and sewered waste 

disposal, and has obtained the required municipal and state water 

supply and wastewater disposal permits. The proposed use and 

building design will be served adequately with fire protection and 

police services. The proposed use and building design will be served 

adequately by solid waste disposal services, provided that pickup from 

the dumpster will be scheduled at hours when the building is not open 

to public access. Appellee-Applicant proposes to construct 24 off-street 

parking spaces in three parking areas2to serve the project, of which 

three spaces will be reserved for handicapped accessibility3.

 Access to the property is by a 50-foot-wide right-of-way over Lot 1 

from Plains Road, within which is a paved driveway at least 24 feet in 

width near the location of the existing driveway from Plains Road. A 

former access onto the property directly from Route 7, which also 

serves the Rawlings private residence, is still shown on the revised site 
plan (Exhibit 22) as being blocked by a row of ten trees. However, 

Appellee-Applicant now proposes, as requested by the fire department, 

to eliminate the ten trees and to block that access drive with a gate or 

breakaway structure capable of being driven through by emergency 

vehicles, to provide emergency access to the post office building and 

parking lots. The original purpose of the row of trees was to block the 

existing Route 7 access visually as well as practically, so that it would 

be apparent to people driving along Route 7 that the access serves 

only the Rawlings property, so that the public would not attempt to 

use it for access to the post office and have to back out again onto 

Route 7. Appellee-Applicant has not proposed to camouflage the nowproposed gate by tall perennial grasses, vines, or other plantings, or 

by signage visible from Route 7, to provide a visual cue so that cars 

bound for the post office do not turn onto that access from Route 7. 

The backing out of a vehicle onto Route 7 at that location would pose a 

traffic hazard, because Route 7 is a major traffic artery, despite the 

long sight distance for traffic approaching that location northbound on 

Route 7.

 A Class II wetland has been identified on the site as the pond and a 

surrounding area marked as A edge of wetland@ on the site plan. The 

wetland as it existed with the pond was identified as significant at least 

for the function of water storage for flood water and storm runoff and 

for the function of surface and ground water protection. AppelleeApplicant obtained a conditional use determination (CUD) from the 

Agency of Natural Resources to build a portion of the building and 

parking lot in the 50' buffer for the wetland. No construction is 

proposed to take place in the wetland itself. The proposal also includes 

the planting and maintenance of a vegetated buffer on both lots along 

the stream traversing the property from north to south, except where 

that buffer is occupied by the building and the truck loading dock. 

 Since the time that the CUD was issued, Appellee-Applicant has 

changed its proposal to propose draining the pond, vegetating the 

resulting area, restoring the stream channel within the former pond, 

and using the area of the former pond as part of the stormwater 

management system4for the project. Runoff from the roof and parking 

lots at the post office is likely to contain sand and salt during and after 

winter snowfall conditions, as well as small amounts of petroleum 

products and heavy metals from the vehicles using the parking lot. 

Appellee-Applicant proposes to eliminate the outlet and peat bed 

shown on the original site plan leading from the loading dock area 

through a ramped sidewalk towards the south. Appellee-Applicant 

proposes instead (as shown on Exhibit 22) to direct all surface flow 
from the northwesterly parking area and the loading dock area, 

through the southwesterly parking area sloped at 3%, towards the 

south across a stone edging flush with the parking lot, onto the grassy 

area to the south of the southwesterly parking area. The stone edging 

is intended to prevent erosion of the grassy area due to the velocity of 

the flow coming off the 3% slope of the parking lot. It is proposed to 

be two feet wide and one foot deep, filled with sufficiently large stone 

so that it will not wash out in a heavy rainfall. Because it will be a 

trench rather than a stone-covered embankment, it may collect and 

hold stagnant water after storm events. The flow is proposed to 

proceed by surface flow across the flat grassy area towards5the area 

of the former pond.

 The Agency of Natural Resources is supportive of this approach in 

principle, because it is expected to reduce the amount of pollutants 

reaching the outlet stream, but the applicant has not yet filed and the 

Agency has not yet ruled on an amendment to the CUD. AppelleeApplicant proposes to drain the pond slowly, into the stream at the 

pond outlet through a temporary sediment trap, so that the resulting 

flow in the stream during drainage would not cause erosion 

downstream, but not to install any permanent sediment controls. As of 

the time of trial, Appellee-Applicant did not propose or present 

evidence as to the profile of the pond bottom, whether any sediments 

in the pond (accumulated over the twenty-five year lifespan of the 

pond) would have to be removed to protect the stream, whether any 

fill would be needed to increase the profile of the bottom of the former 

pond to allow a defined stream channel to be created, or whether or 

what types of additional vegetation (other than the proposed >

conservation mix= of grasses) would need to be planted in the former 

pond bottom to achieve stormwater retention or treatment and to 

avoid erosion. It is likely, as appears from a comparison in Exhibit 2 of 

the elevation at the pond outlet (523.3) with the elevation near the 

pond inlet at the goose house (526), that some fill will be needed in 

some portion of the pond bottom simply to allow a defined stream 

channel to be created, even if none of the sediment in the existing 

pond bottom also would have to be removed. It is also likely, given the 

present design of the system, that permanent stormwater structures 

would have to be added to the system at or near the outlet to trap 

sediments, or retain the stormwater for treatment, at least during 

frozen early spring runoff conditions. 

 The northerly parking area is designed to drain towards the east 

across the 50-foot stream buffer into the small stream running in a 

north-south direction from Lot 1 towards the former pond, and will not 
receive any treatment by surface flow other than by flowing across the 

50-foot6 buffer.

 Plains Road intersects Route 7 at an angle of 34 degrees, making 

the reciprocal angle 146 degrees on the project corner. While this 

intersection angle is beyond the 90-degree or right angle 

recommended for roadway intersection construction, it would not 

necessarily be unsafe if there were adequate sight distances in all 

directions of and from the intersection. Vehicles traveling south on 

Route 7 approaching the intersection of Route 7 with Plains Road 

experience a hill rising fourteen feet in elevation within the last 350 

feet before the intersection. The effect of this geometry is that traffic 

approaching the intersection on Route 7 from the north cannot see 

Plains Road or any traffic waiting on Plains Road to turn south on 

Route 7 until it is very close to the crest of the hill. Similarly, although 

traffic waiting on Plains Road to turn south on Route 7 has an apparent 

sight distance of 770 feet looking to the north, in fact the change in 

elevation creates a dip in which oncoming southbound Route 7 traffic 

is hidden from view for a time, even though the stop bar is reoriented 

at a 90-degree angle to Route 7. Traffic waiting on Plains Road to turn 

in either direction on Route 7 has an ample sight distance of 1000 feet 

looking to the south. Pedestrians waiting on either side of Route 7 to 

cross Route 7 at or just south of Plains Road, at the location of or 

aiming towards the proposed sidewalk access onto the project site, do 

not have an adequate sight distance to see traffic approaching the 

crest of the hill from the south, and cannot be sure of being able to 

cross both lanes of Route 7 safely at that location.

 The area of property remaining as part of the Route 7 right-of-way 

at the corner of Route 7 and Plains Road (that is, not owned or 

controlled by Appellee-Applicants), within the shallow 146-degree 

corner, forms an approximately four- to six-foot-high bank with the 

traveled way of Route 7, compared with the elevation of the proposed 

Plains Road access driveway. Although this is a relatively low 

embankment, it limits the ability of a driver exiting the property onto 

Plains Road from seeing traffic traveling northbound on Route 7 as that 

traffic prepares to turn right onto Plains Road. As designed and without 

the ability of Appellee-Applicants to cut away or reshape the portion of 

the corner within the Route 7 right-of-way, a driver exiting the 

proposed Plains Road access driveway will only be able to see the roof 

and 27 inches of the upper part of a vehicle traveling in the right lane 

of Route 7 northbound and preparing to turn right onto Plains Road, 

until after the vehicle has fully turned onto Plains Road. (Exhibit 25.) 

Under winter conditions, when snowbanks will build up on that 
embankment, the exiting driver will not be able to see the turning 

vehicle until much later in the turn. Moreover, because the turn from 

Route 7 northbound onto Plains Road eastbound is a relatively shallow 

146-degree curve, the northbound Route 7 traffic will not be forced to 

slow down in preparation for making the turn as it would be required 

to do approaching a 90-degree right turn intersection. The driver 

waiting at the access driveway to turn left onto Plains Road would only 

be able to see the vehicle turning onto Plains Road from 150 feet 

away, which is not a sufficient distance for the exiting vehicle to pull 

out safely, calculated using the speed limits on Route 7 and Plains 

Road without regard to whether vehicles actually drive faster than the

35 miles per hour speed limit at that location. 

 Appellee-Applicant= s traffic counts were done during a school 

vacation and cannot be adjusted for normal traffic. In addition, the 

traffic counts took place during the time period from 8 a.m. to 9:45 

a.m. and from 1:30 p.m. to 4:45 p.m., and therefore do not account 

for a portion of the potential morning peak hour (the highest four 

consecutive quarter-hours between 7-9 a.m.) and a portion of the 

potential afternoon peak hour (the highest four consecutive quarterhours between 4-6 p.m.). Nor does the methodology account for the 

operating hours of the post office; that is, that the post office or at 

least the post office box lobby will be open from as early as 7:00 a.m. 

to as late as 5:30 p.m. In fact, the afternoon peak hour on Route 7 

nearest to Plains Road occurs at 4:45 to 5:45 p.m. Regardless of 

school vacations, the great majority of vehicles turning from Plains 

Road onto Route 7 turn left or south (51 of 54 in one count, and 33 of 

35 in another count). When the traffic volumes are properly adjusted, 

the crucial turning movement through the Plains Road/Route 7 

intersection (the left turn from Plains Road onto Route 7) is at present 

an acceptable, though not good, level of service C. Without 

improvements to the intersection, that level of service can be expected 

to deteriorate to a congested level of service D or even a failed level of 

service E in the afternoon peak hour, with the addition of the project=

s traffic. 

 The existing post office serving Pittsford is 960 square feet in area 

and is located in the center of Pittsford Village, near the village green, 

the library, a grocery store, a laundromat, and other village center 

uses approximately 3/8 of a mile from the project site. People tend to 

use the existing post office in conjunction with other tasks in the 

village center, and it serves a social function of promoting visiting and 

social interchange among the residents who frequent it. People tend to 

walk, drive or bicycle to the village center for multiple purposes in a 
single trip. The existing post office lobby is open from 7 a.m. to 5 p.m. 

on weekdays. Large tractor-trailers do not now serve the Pittsford post 

office and Appellee-Applicants propose that they also will not be used 

to serve the proposed site; that is, the largest vehicle serving the post 

office functions will be a unit-body truck or large van.

 The area along Route 7 near the Plains Road intersection is a 

mixed-use area of residential uses (both single-family and multifamily), interspersed with commercial uses common along major 

roadways such as Route 7. A bank, a gas station and deli/convenience 

store, and a used car sales lot are located on Route 7 within 277 to 

491 feet south of the project site. The area along Plains Road east of 

the intersection is primarily residential, although the municipal offices 

are also located farther east on Plains Road, out of sight of the 

intersection.

 Of the conditional use standards, we address only those contested 

by the parties.

 To grant conditional use approval, ' 2.12.1(b) requires a finding 

that the proposal will not cause any unreasonable hazard to or impact 

upon health, property or property values through fire, unsanitary 

conditions, erosion, noise, air or water pollution. The proposal will not 

cause any unreasonable hazard to or impact upon health, property or 

property values through fire, unsanitary conditions, noise, or air 

pollution. As to erosion and water pollution, it remains possible for the 

site to be designed and engineered to avoid an unreasonable impact 

from erosion and water pollution. However, based upon the evidence 

presented in this proceeding, without further engineering design and 

specification of the contours, fill, plantings and sediment controls 

within the area of the former pond, and further direction of the sheet 

runoff towards the area of the former pond, the proposal is likely to 

cause unreasonable erosion and water pollution from the sediment, 

salt and other pollutants in stormwater runoff from the parking lots, 

especially during frozen runoff and spring melt conditions.

 To grant conditional use approval, ' 2.12.1(d) requires a finding 

that the proposal will not adversely affect the character of the area 

affected. Appellants ask that this standard be applied to the area to be 

vacated by the existing post office, as well as the area near the 

proposed new post office. We recognize that movement of traditional 

village center services to the outskirts of a village encourages the 

development of the growth patterns commonly called > sprawl.= We 

also recognize that combating sprawl is an important policy 
consideration in the present day, as has been recognized by various 

commission reports and the recent legislation strengthening downtown 

areas. See, e.g., the Historic Downtown Development Act, 24 V.S.A. ' '

2790-2796. Nevertheless, in order to apply such policies to conditional 

use applications, a municipality must implement the policy by adopting 

or amending its zoning or other ordinances. A municipality may wish to 

establish a village center zoning district as the only zone in which 

certain functions such as post offices may be located, to facilitate 

socio-economic interaction (see 24 V.S.A. ' 2790(c)). However, the 

Town of Pittsford has not done so. Nor does its zoning ordinance 

contain a so-called > siting= provision allowing the ZBA (or this Court 

on appeal) to choose where among several alternative sites a 

particular use may be located. Rather, all that the ZBA (or this Court 

on appeal) may consider is whether a location proposed by the 

applicants for a particular use meets the requirements of the zoning 

ordinance. 

 Therefore, while recognizing the social disruption to the fabric of 

village society that can be caused by moving the particular use out of 

the village center, in the present appeal the Court is restricted to 

considering the character of the area for which the project is proposed. 

That area is a mixed use, residential and commercial area adjoining 

the major roadway of Route 7. The proposed commercial building will 

not adversely affect the character of the area.

 To grant conditional use approval, ' 2.12.1(e) requires a finding 

that the proposal will not adversely affect the traffic on roads and 

highways in the vicinity. Without some redesign of the Route 7/Plains 

Road intersection to slow the traffic turning right from Route 7 onto 

Plains Road, as discussed above, traffic exiting the project driveway 

will not be able to make a left turn safely onto Plains Road. Without 

some redesign of the Route 7/Plains Road intersection to 

accommodate an increase in the volume of traffic turning left from 

Plains Road onto Route 7 during peak conditions, that turning 

movement in the intersection will deteriorate to an unacceptable level. 

Without some redesign of the Route 7/Plains Road intersection, 

therefore, the proposal can be expected to adversely affect the traffic 

on roads and highways in the vicinity. In addition, without plantings or 

signage to screen the proposed gate7 blocking the emergency access 

to the property, the proposal will adversely affect traffic on Route 7. 

 To grant conditional use approval, ' 2.12.1(g) requires a finding 

that the proposal complies fully with any specific standards for the 

particular conditional use. Appellants argue that the proposal fails to 
meet ' 5.4.2(c)(iii), which requires that access driveways to parking 

spaces shall be of sufficient area to facilitate easy parking of vehicles 

without danger of collision with vehicles already parked. Although the 

design of the three parking areas appears to pose some conflicts 

between pedestrians (or wheelchair users) and the truck backing 

space; to pose some conflicts between vehicles using the 

southwesterly parking area and the truck backing space; to pose some 

conflicts between persons using the drop boxes and vehicles 

maneuvering within both westerly parking areas; and to pose a 

problem for a driver to extricate a vehicle from space #1, those are 

issues regarding site circulation that should have been addressed by 

the Planning Commission during site plan approval. No evidence was 

presented to suggest that the width and length (area) of the access 

drives to the parking spaces was insufficient to allow drivers to park 

without danger of collision with vehicles already parked. The proposal 

complies fully with the specific standards for this particular conditional 

use. 

 Based on the foregoing, it is hereby ORDERED and ADJUDGED that 

conditional use approval is DENIED for the proposed post office, ' '

2.12.1(b) and (e), without prejudice to the Applicant= s submittal to 

the ZBA of the same or a revised building design at such time in the 

future as the Applicant is able to submit revised or additional plans 

and data for the pond removal and stormwater treatment system to 

prevent erosion or water pollution and is able to show that changes 

are to be made to the Plains Road/Route 7 intersection (and the 

screening of the emergency access gate) sufficient to address the 

problems discussed in this decision.

 Dated at Barre, Vermont, this 21st day of October, 2002.

___________________

Merideth Wright 

Environmental Judge

Footnotes

1 The term Appellee-Applicant is used in the singular in this decision 

to refer solely to Eastern Development Corporation or its successor or 

subsidiary Pittsford Enterprises, LLC.
2 We will refer to the three parking areas as the northerly parking 

area (spaces 1-6), the northwesterly parking area (spaces 7-13), and 

the southwesterly parking area (spaces 14-24). While a designation in 

bold stating "lot 2" appears on the site plan within the southwesterly 

parking lot (and this reference was used to refer to the southwesterly 

parking lot in some of the testimony and in Appellants’ memorandum), 

the designation "lot 2" is actually only the label on the plan for the 

second of the two subdivided lots.

3 It is not clear from the plan how a public user of handicapped space 

#19 has access to the post office building without having to traverse 

the truck backing area and the length of the northwesterly parking 

area to reach a dropped curb access to the building’s sidewalk. That 

space may have been intended for wheelchair access by an employee 

by an inclined sidewalk to the truck loading access area, but it is not 

designated on the plan as reserved for employee parking.

4 Due to the size of the proposed impervious areas to be added by 

this project, no stormwater management permit is required by state 

regulations to manage the expected increase in volume of stormwater. 

However, the expected velocity and direction of stormwater flow must 

nevertheless be analyzed to determine whether it will create erosion or 

water pollution, under §2.12.1(b) of the conditional use standards.

5 The site plan lacks topographic contours within the grassy area to 

the south of the southwesterly parking area, as well as lacking 

contours within the pond proposed to be drained. Without some slight 

slope towards the pond from that grassy area, Appellee-Applicant 

proposes no apparent reason why runoff from the parking area would 

receive treatment by traveling through the vegetated buffer and the 

former pond area, instead of continuing to flow southerly off the 

property and onto the neighboring property.

6 Although the buffer is reduced in width behind the building, it is a 

full 50 feet in width from the outlet of the northerly parking lot (near 

the dumpster) to the stream.

7 We recognize that this may easily be remedied, however, it has not 

yet been proposed.