STATE OF VERMONT

ENVIRONMENTAL COURT

In re: Appeals of Michael 

Williams

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Docket Nos. 186-10-99 Vtec 

and 90-4-00 Vtec

In re: Appeal of Ryan Brothers 

Electric and Michael Ryan

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Docket No 216-9-00 Vtec

Decision and Order

The parties have appealed from two decisions of the then-Zoning Board of Adjustment (ZBA) 

and one decision of the then-Planning Commission of the City of Burlington, regarding a project 

proposed by Ryan Brothers Electric and Michael Ryan at 1 Industrial Avenue.

Appellant Michael Williams is represented by Brian P. Hehir, Esq.; Cross-Appellants Ryan 

Brothers Electric and Michael Ryan are represented by Vincent A. Paradis, Esq.; the City of 

Burlington is represented by Kimberlee J. Sturtevant, Esq. Interested parties Sherry C. Dempsey 

and Elisa Nelson appeared and represented themselves, but did not file requests for findings or 

memoranda of law. An evidentiary hearing was held in this matter before Merideth Wright, 

Environmental Judge. The parties were given the opportunity to submit written requests for 

findings and memoranda of law. Upon consideration of the evidence and the written memoranda 

and proposed findings, the Court finds and concludes as follows.

Michael and Therese Ryan own an approximately 3-acre parcel of land located at the corner of 

Industrial Parkway and Austin Drive in the Enterprise zoning district of the City of Burlington. 

The extension of Austin Drive as it crosses Industrial Parkway is known as Home Avenue. 

Cross-Appellant business Ryan Brothers Electric occupies about half of the existing building on 

the property; the remainder is rented to a bottled gas supplier, and to Pool World and Barrett 

Trucking, both of which have property across Austin Drive from the property. The property was 

formerly owned by the Chittenden County Transit Authority (CCTA), which used it as a bus 

garage. Other properties along Industrial Parkway or across Austin Drive near the intersection 

are industrial or commercial in use, including Pool World and Barrett Trucking directly across 

Austin Drive from Cross-Appellants= property. Immediately to the south of Cross-Appellants=

property is the current bus garage for CCTA.
Austin Drive proceeds westerly from the intersection, and curves to proceed to the south behind 

Cross-Appellants property, roughly parallel with Industrial Avenue. A belt of ledgy and forested 

land runs along the westerly edge of the industrial properties lining the western side of Industrial 

Avenue, providing some buffer and separation between those allowed uses and the residential 

neighborhood along Austin Drive.

Cross-Appellants= property has two existing curb cuts providing access from the site onto 

Industrial Parkway, and one curb cut providing access onto Austin Drive.

In Docket No. 186-10-99 Vtec the ZBA had approved, with conditions, the construction of two 

buildings: a 6000-square-foot office building and an 11,200-square-foot warehouse. In Docket 

No. 90-4-00 Vtec the Planning Commission had approved, with conditions, a site plan for 

construction of a single building, with warehouse functions on the ground floor and office 

functions on the upper floor, to be set back 74 feet from Appellant= s property line. In Docket No. 

216-9-00 Vtec the ZBA approved the one-building proposal, with conditions. Cross-Appellants=

preference now is for the single-building design.

The single building design is proposed to have no doorways, openings or lighting on its western 

side facing the residential neighborhood. It is now proposed to have a flat roof with a collection 

system to conduct stormwater from the roof to the municipal sewer system, avoiding a risk of 

increased surface flow towards Appellant= s or other residential properties.

To the south of the proposed building is an area of ledge extending approximately ten feet above 

the finished floor elevation of the proposed building. Cross-Appellants propose to remove that 

ledge by blasting, to create a so-called storage area approximately 60' x 80' in area, extending 

northerly from the four proposed truck parking spaces to about the midpoint of the building, 

along the southwesterly property boundary.

Appellant challenges the approval of either design under several of the major impact review 

criteria and conditional use criteria. Cross-Appellants challenge the condition limiting the project 

to two truck parking spaces, and requests approval of the four parking spaces shown on the site 

plan in evidence as Exhibit 9. Cross-Appellants also challenge the condition limiting the Austin 

Drive access to emergency use only, and request both truck and automobile access to Austin 

Drive from a 24-foot-wide curb cut, in the location shown as a 20' curb cut on the site plan in 

evidence as Exhibit 9.

Section 17.1.5(a)(4) of the Conditional Use Criteria - bylaws in effect

Other than the specific zoning ordinance sections discussed below, neither Appellant nor the City 

argued that the proposed project will adversely affect any other bylaws in effect.

Section 13.1.6(a) of the Major Impact Review Criteria - undue air or water pollution

The project is served by municipal water supply and sewage disposal, and the proposed building 

is to be heated by natural gas. There was no evidence that the proposed building, use or site plan 

would create any undue water or air pollution.
Sections 13.1.6(i) and (j) of the Major Impact Review Criteria - undue adverse effect on growth 

patterns and substantial conformance with City= s municipal development plan

and Section 17.1.5(a)(2) of the Conditional Use Criteria - character of the area affected

The project is proposed for the City= s Enterprise zone (formerly known as the > Industrial= zone) 

in which the present and proposed office and warehouse uses are encouraged to develop, and 

therefore will be in substantial conformance with the City= s development plan. It is proposed for 

an already-developed lot and therefore will have no undue adverse effect on growth patterns in 

the City. However, around the curve of Austin Drive is a well-established residential area, access 

to which is primarily by Austin Drive. This residential area will be affected by the proposed 

Austin Drive access and may be affected by the removal of too much of the ledge buffer, both of 

which are discussed below. The neighboring residential area is residential in character, but 

already has the character of a residential area bordered by substantial industrial development. 

That character will not be affected by the project; that is, other than these considerations of 

traffic safety and potential for noise discussed below, the project will not adversely affect the 

character of the neighboring residential area.

Section 13.1.6(a) and (d) of the Major Impact Review Criteria - undue noise pollution and 

unreasonable soil erosion

Appellant argues that the project will create undue noise pollution and unreasonable soil erosion 

during construction, but also that removal of the natural ledge barrier will increase noise and 

stormwater discharge emanating from the site onto Appellant= s property during use of the 

building after construction. 

The project will not create unreasonable soil erosion, as adequate erosion controls are specified 

during construction and as the drainage from the new building will be collected and discharged 

to the municipal sewer system, thereby slightly reducing the drainage from the site towards 

Appellant= s property, which is not a current problem. The project will not create undue noise 

during construction; while blasting will undoubtedly create noise, the blasting necessary for the 

project is anticipated to occur over the reasonable duration of one week, and will be strictly 

controlled under the City= s blasting ordinance.

The building is positioned so as to create a barrier or screen protecting the residential 

neighborhood from noise from operations in the project yard, except for the area between the 

building and the southwesterly property boundary, which is occupied by existing ledge to a 

height of about ten feet above the finished floor elevation of the proposed building. Removal of 

as much of the ledge as is proposed, to create a so-called storage area, would impair the 

screening of the residential neighborhood to the southwest and west of the property from the 

noise and activities of the proposed project. However, removal of the ledge up to a line extended 

from the face of the building towards the property boundary will not impair the screening of the 

property, and may be allowed. However, we note that while this area was originally intended for 

the storage of piles of mulch and similar materials used by a landscaping company which is no 

longer a tenant at the facility, the evidence at the trial reflected that Cross-Appellants may now 

intend that it be used for > storage= of the trailer segments of tractor trailers.
The reduced-size storage area approved by this order is specifically not approved as parking for 

any vehicles, including the trailer segments of tractor trailers. Such use falls within the category 

of > parking= rather than > storage= and must be applied for and approved, if at all, as additional 

outdoor parking spaces. 

The four outdoor truck parking spaces proposed at the property boundary are approved. The 

evidence did not show that those four spaces would cause either an increase in adverse effects 

from the property on the adjacent residential neighborhood, or any impairment of on-site 

circulation on the property. Any objections by the City regarding the potential use of those 

spaces by a future tenant on the property rather than by Cross-Appellants= own business must be 

addressed in any permitting of changed uses for the property.

Section 13.1.6(e) of the Major Impact Review Criteria - unreasonable congestion or unsafe 

conditions on streets

and Section 17.1.5(a)(3) of the Conditional Use Criteria - traffic on roads and highways in the 

vicinity

Austin Drive is the primary route of access from the residential neighborhood to the west and 

south of the property, towards Industrial and Home Avenues. The approach along Austin Drive 

towards the curve from the residential neighborhood is a long straightaway, on which drivers 

exceed the 30 miles per hour speed limit1approaching the curve of Austin Drive. Drivers coming 

around the curve of Austin Drive towards the Industrial Avenue intersection from the direction 

of the residential neighborhood are often temporarily blinded by the sun in early morning 

conditions. Even at the speed limit of 30 miles per hour, the sight distance for such drivers to the 

westerly edge of the proposed Austin Avenue curb cut should be 330 feet to allow for a safe 

approach to that curb cut, for a driver to perceive a vehicle exiting that curb cut, react, and stop 

safely, even without the problem of the early morning sun. In the present application2, this 

distance is insufficient when measured from the place the driver must be to see the curb cut after 

coming around the Austin Avenue curve. It is even less sufficient if any vehicles already around 

the curve have already had to stop for such an exiting vehicle.

Accordingly, the Austin Avenue curb cut must be closed to all but emergency access to and exit 

from the property. Accordingly, any access barrier will have to be designed to present an obvious 

visual barrier and to support warning signs but to allow for the plowing of snow and to allow 

passenger vehicles as well as emergency vehicles to break through in an emergency. 

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

for office and warehouse use3is approved, with the conditions as imposed by the then-ZBA and 

then-Planning Commission, except as those conditions are modified by this order, as follows:

Four truck parking spaces may be laid out as shown on Exhibit 9.

A storage area may be created, and ledge may be removed for that purpose, from the parking 

area to a line extended from the face of the building toward the southwesterly property boundary. 

This storage area is not approved for the parking of any vehicles, including the trailer portions of 
tractor-trailers; any such use may be the subject of application to the Development Review Board 

for an amendment to the present approval.

The Austin Drive access shall be designed as solely an emergency access to and from the new 

building and its associated parking and loading areas. It may be designed to the 24-foot width 

and 24-foot radius specifications, but shall be designed with suitable and visible breakaway or 

flexible posts and/or lightweight plastic chains or bars, to allow emergency access from either 

direction, but also to allow snow plowing by the temporary removal of the chains or bars during 

plowing. It shall be designed to carry signage on both sides and also at an angle visible by 

drivers approaching along Austin Drive from the Industrial Avenue intersection, to the effect that 

this is A not a driveway - emergency access only.@

Dated at Barre, Vermont, this 28th day of September, 2001.

___________________

Merideth Wright 

Environmental Judge

Footnotes

1.

 Drivers approaching the Austin Drive curve from Industrial Avenue tend to drive at 

approximately 25 miles per hour; however, that traffic movement is not the critical one for this 

analysis. 

2.

 This decision is without prejudice to any future application to design revised location, 

number and orientation of curb cuts and on-site circulation for this site.

3.

 We note for the parties’ guidance that Cross-Appellants did not apply for and this decision 

does not grant any approval for the operation of a transportation terminal at the property. Any 

such proposal must be the subject of a new proceeding to the now-DRB.