STATE OF VERMONT

ENVIRONMENTAL COURT

In re: Appeals of Robert Waite 

and Diane Welebit

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Docket Nos. 139-6-00 Vtec 

and 183-8-00 Vtec

Decision and Order

In Docket No. 139-6-00 Vtec, Appellants Robert Waite and Diane Welebit appealed from a 

decision of the Planning Commission of the Town of Sunderland approving the site plan of 

Appellee Applejack Art Partners, Inc. In Docket No. 183-8-00 Vtec, Appellants appealed from a 

decision of the Zoning Board of Adjustment (ZBA) dismissing their appeal from the Zoning 

Administrator= s grant of a building permit to Appellee. The appeals have been consolidated. 

Appellants are represented by David L. Grayck, Esq.; Appellee is represented by Neal C. 

Vreeland, Esq.; the Town is represented by Robert E. Woolmington, Esq.

An evidentiary hearing was held in this matter on March 27 and April 3, 2001, 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.

The project is proposed for two contiguous parcels of land on the south side of Route 7A in the 

Roadside Commercial zoning district. The parcel fronting on Route 7A, on which the 

development is proposed, contains 7.5 acres of land, of which approximately 4.9 acres is 

meadow land and the remaining 2.6 acres, bounded on the south by the Battenkill River, is 

wetland. The second parcel of 15 acres lies to the south of the Battenkill River and is to be 

conserved through the Friends of the Battenkill, and is not proposed to be developed. Residential 

and undeveloped parcels are adjacent to the conservation parcel, with the residential Hill Farm 

subdivision (off Hill Farm Road south and west of the project) from which a view was taken 

back towards the project site being located approximately 900 feet away.

The development parcel contains a house, barn, and smaller outbuildings in poor condition, 

which are proposed to be demolished, with appropriate historic documentation of the buildings 

during demolition. The parcel also contains a so-called > farm dump= just over the river bank, 

which Appellees propose to clean up in connection with this project.

Appellants own adjacent property to the east, on which their residence is located. Their residence 

will have a view of the east side of the proposed buildings, including the parking lot and loading 
dock. Appellant Diane Welebit operates a home occupation upholstery business from one room 

in Appellants= house. The business displays a small sign in the front yard.

The adjacent property to the west contains a retail business, Basketville, catering to the retail 

tourist trade, with a parking area for tourists cars adjacent to Route 7A. The entrance to Skyline 

Drive, the commercial toll road to Mount Equinox, is located almost directly across Route 7A. 

Other retail or commercial businesses are located in the area along Route 7A corridor, including 

a retail business, A The Old Game Shop,@ to be opened in a building across the road from the 

proposed project.

Description of Proposed Project

Appellee proposes an office and retail facility with distribution warehouse and parking, to be 

built on the 4.9 acre non-wetland portion of the front parcel. The Court makes no finding 

regarding later phases of the project; they are not before the Court as no application for 

subsequent phases was before the municipal bodies in the proceedings appealed from. 

In the present proposal, Appellee proposes to construct two buildings on the property: an office 

and retail building, with a small parking area in front of the building, and a distribution 

warehouse building behind it, with a large parking area on the side and truck access to the 

distribution warehouse building. A total of 65 parking spaces are proposed. The proposed hours 

of operation for everything but the retail space in the front building are proposed to be from 8:00 

a.m. to 6:00 p.m. Monday through Thursday, and until 5 p.m. on Friday. Only the retail gallery 

(alone) will be open on the weekends.

The front building, designated as A office/retail@ on the plans, has a footprint of 10,000 square 

feet on two stories, with a total of 20,000 square feet of floor area. The attached rear building, 

designated as A warehouse@ on the plans, is a single story structure with a footprint of 12,000 

square feet. The buildings are located at a somewhat lower elevation than Route 7A, and so will 

appear less obtrusive from the road. Both buildings are designed as pre-engineered steel 

structures; however the front building is enclosed in a clapboard facade on three sides, with a 

wraparound porch, and is designed to be in the style of an early 20th-century Vermont mill. The 

rear building has a conventional standing seam roof and a sculptured steel siding on its rear and 

west sides. On the east side, facing Appellants= property, Appellee now proposes to extend the 

exterior clapboards from the office/retail portion to cover the side of the warehouse building. As 

designed, the proposed buildings will be attractive and compatible in style and appearance with 

the development on Route 7A in the immediate neighborhood.

Access from Route 7A onto the site is by a driveway approximately 120 feet in length, and 

sloping gently down towards the parking area. Parking is provided in two lots for a total of 65 

vehicles, an adequate parking lot for the number of employees and the proposed retail space. 

Truck delivery access to the distribution warehouse building is provided on the east side of the 

building.

Sewage disposal and water supply are on-site, have received the required state approvals, and are 

adequate for the proposed use, and meet the standards of ' 8.2 for the protection of streams and 
drainage ways. The septic disposal fields are located approximately 165 feet at their closest point 

to the top of the bank which leads down to an existing wetland, well in excess of the 50-foot 

isolation distance required. The sewage disposal and domestic water supply are to be installed in 

soils ideally suited for that purpose, and will not drain towards or adversely affect Appellants=

property or their own water supply. Telephone and electrical utility service to the buildings are 

provided underground. The proposed business sign meets the standards of ' 6.15 of the Zoning 

Bylaws.

The footprint of the two buildings occupies 22,000 square feet, which amounts to 7% coverage 

of the 7.5-acre building site (or 10% of the 4.9 acres of buildable area if the 2.6-acre wetland is 

excluded) and is substantially less than the 25% coverage allowed by ' 6.16. All lot size and 

setback requirements of ' 6.16 are met by the proposal.

Appellee= s Business Functions

Because a primary legal issue in this case is whether the proposed use qualifies as a permitted 

use in the Roadside Commercial District, and because one legal argument is whether any of the 

proposed uses are accessory to a permitted use, we must analyze Appellee= s business functions 

more closely than in many other permitting cases.

Appellee publishes, sells and distributes limited edition artists= prints and art posters, and licenses 

art images to others. Appellee also buys and sells the valuable original paintings and artwork in 

other media from which the limited edition prints are made. At present, sales of original artwork 

are made as consignment sales through art galleries; however, Appellee proposes to sell original 

artwork from the gallery space in its proposed facility. 

At present Appellee operates from leased space in Manchester, Vermont. It formerly operated a 

retail sales store and frame shop in downtown Manchester; however, it previously had 

discontinued that store, preferring not to manage an off-site operation. Appellee proposes to 

carry on its present activities in the proposed buildings, to reopen its retail framing business, and 

to sell original art at retail from the proposed front building. The gallery is estimated to generate 

50 retail visitors per weekday and 200 per weekend. Appellee also proposes to rent out a portion 

of the front of the building space, designated as Room 109 A Rental Space@ for an undefined 

retail use.

Approximately sixty percent of Appellee= s present business revenues comes from the 

publication, sale and distribution of unsigned art posters, ranging in size from small cards 

through medium-sized prints to very large posters, and from the publication, sale and distribution 

of limited-edition lithographic prints which are signed and numbered by the artist. Appellee 

publishes approximately 350 new works each year. Limited-edition prints typically are produced 

in an edition of 1000 prints. Unsigned prints and posters may be produced in a run of several 

thousands to as much as 500,000 pieces. Appellee distributes millions of pieces of art prints and 

posters each year. Both the posters and the limited-edition prints are produced from original 

artwork by well-known artists; Appellee is particularly known for its wildlife artists. Artists are 

paid royalties based on sales by Appellee. 
No printing of any artwork is done on the premises; all such operations are performed by 

independent offset printers and lithographers at various locations within and beyond Vermont. 

Consequently, Appellee= s business operations produce no noise, fumes or exhaust, or hazardous 

chemical emissions into the air or water or onto the land. 

The finished artwork is typically shipped by the printer to Appellee= s distribution warehouse, 

where it is stored as inventory. It is packaged by Appellee= s shipping department according to 

the wholesale customer= s order and is shipped out to the customer. Very large orders going to a 

single customer are generally shipped directly from the printer to the customer in palletized 

form, a practice referred to as A drop shipment,@ and are not taken to or stored as inventory at 

Appellee= s distribution warehouse. The art poster inventory occupies bulk storage space; the 

limited edition prints are stored in flat files to preserve their higher value. Customers are 

typically art galleries, frame shops and poster dealers. 

The limited edition prints and art posters are delivered to Appellee from the printers in box vans, 

not 18-wheel tractor-trailers. Shipments from Appellee= s distribution warehouse to its art dealer 

and gallery customers are made by UPS and Federal Express, which pick up shipments twice a 

day in box vans. Occasionally shipments are made through the U.S. Postal Service. Packing 

materials for these shipments, consisting of cardboard boxing and cardboard mailing tubes, 

arrive by 18-wheel tractor-trailer trucks on an average of two truck trips per week. The 

application describes two such truck trips a day, but although two could arrive on a given day, 

the number of tractor-trailer truck trips averages to two per week.

Approximately forty percent of Appellee= s present business revenues comes from its licensing to 

independent manufacturers the right to reproduce images of artists= paintings, photographs or 

other artwork on articles such as jigsaw puzzles, calendars and greeting cards. Appellee 

maintains an inventory of archived films of artwork and digitized copies of artists= work 

stretching back 50 years. The right to use these images is sold to manufacturers under license 

agreements. The manufacturers create, manufacture and sell their own products from their own 

facilities, and then pay royalties to Appellee based on volume of those sales. For example, 

Appellee acts as the exclusive art licensing agent for the National Wildlife Federation, and 

licenses images used by licensees such as The Bradford Exchange and the Danbury Mint. 

Appellee represents about two hundred artists at present, and licenses approximately 500 works 

annually.

The primary work to be conducted in the front building involves the acquisition of original art or 

rights to original art from the artists; the capture of images of that art by traditional or digital 

photography, and its storage on film or digital media; telephonic and email sales, 

communications, and negotiations with artists under contract and with a network of art galleries 

and art dealers throughout the United States, Canada, Australia and Great Britain (with the 

possibility of expansion to other countries); and telephonic and email sales, communications, and 

negotiations with third party manufacturers throughout the world for the licensing contracts for 

artwork on items to be produced and sold by such third parties. This work relies heavily on 

computerized graphic arts and digitized imaging, telecommunications, computerized accounting 

and royalty records management, and requires an administrative office staff for sales and royalty 

accounting.
Appellee=s staff consists of the following fifty people, who will continue to be employed in these 

functions in the proposed new facility1: Four people in management; seven people in the graphic 

arts department; twenty-one people on the sales staff, of which seven people work on marketing 

the licensing of art images, and fourteen people work on marketing limited edition artists= prints 

and art posters; ten people doing clerical work in accounting, reception and as administrative 

assistants; six people whose responsibilities pertain to the receiving, storage of inventory, and 

shipping (which may include the person who frames the artwork, see footnote 1) and two people 

doing maintenance for the facility. Appellee has not stated whether any additional employees of 

the front room lessee will serve space designated on the plans as rental space.

Appellee entertains visits by its artists, art dealers, and other persons with whom it does business, 

at a rate of approximately one visit per week. In the new facility, this function is proposed to 

include use of the gallery space to demonstrate to art dealers techniques for the display, framing 

and exhibition of limited edition artists= prints and art posters for sale.

Space allocated to each function in the proposed buildings

The entire second floor of the front building, approximately 10,000 square feet, is allocated to 

office functions, consisting of office space for the management, sales, accounting, licencing and 

art departments, and associated conference rooms, and employees kitchen/lounge and toilet 

facilities, as well as the stairways and elevator necessary for the mechanical functions of the 

building.

The first floor of the front building, approximately 10,000 square feet, is allocated to the 

following uses. Allocations are approximate as to square footage, as the exhibits included only 

reduced size versions of the plans, and both parties argued for somewhat different allocations 

than found by the Court. The room numbers are shown for all numbered spaces.

The entry lobby (101), gallery2(102) and rental space (109) are allocated to the retail use, for a 

total of approximately 3300 square feet.

The reception desk, kitchenette (114), employee gym (106), showers and toilets, photo shop 

(104)and vault (107) are allocated to the office use. For ease of calculation, we will also allocate 

to the office use the stairways, elevator, utility room, and machine room necessary for the 

mechanical functions of the building (as most of that space is made necessary by the presence of 

the second floor, which is allocated to office use). The space allocated to office use on the first 

floor is thus a total of approximately 2784 square feet. The vault shown as Room 107 will be 

used to store the original art to be sold in the gallery and from which the films and digital media 

representing Appellee= s archives of artwork are produced; a second vault not shown on the 

plans, to be located within the distribution warehouse, will be used to store those archives. The 

photo shop is where the film or digital photography of the artwork is done.

The frame shop (103), 916 square feet in area, is split between the retail use and the distribution 

warehouse use. Approximately half the frames made there will be for retail framing customers 

and for the original artwork to be sold in the gallery, the remainder for the artwork to be shipped 

to dealers and galleries in connection with the distribution of limited edition artists= prints and art 
posters. Appellants argue that it is a manufacturing use not allowed in the district at all. We find 

that the production of frames to order for retail customers does not fall within the use category of 

> manufacturing= but instead falls within the use category of a > retail service occupation= ('

6.13.4), which may include manufacturing or processing incidental to that use. It is a retail 

service use in itself for the framing of customers= own artwork, and is also accessory to the retail 

sale of artwork from the gallery. The production of frames in connection with the distribution of 

the limited edition artists= prints and art posters is similar to the packaging of unframed artwork. 

It is allowed as a use, but only in connection with and only if the distribution warehouse function 

is allowed as a use. Accordingly, for the purposes of this analysis, we will allocate approximately 

458 square feet of this space to each of the retail and the distribution warehouse uses.

The remainder of the first floor of the front building (108), approximately 3000 square feet, is 

used for the storage of the inventory of limited-edition prints. It is allocated to the distribution 

warehouse use.

Of the 12,000 square feet of the distribution warehouse, 9080 square feet will be used for storage 

of the inventory of poster art. A second vault space, not shown on the plans, is proposed to be 

located within the warehouse for the storage of the films and digital media representing 

Appellee= s archives of artwork. This vault space was described in evidence only as A larger@ than 

the vault shown as Room 107. For the purposes of this discussion, we estimate it at twice the size 

of the other vault, or 400 square feet, which is allocated to office use. The remainder of the 

distribution warehouse space will be used for shipping and receiving and for the storage of the 

cardboard packing materials (flat boxes, interleaving cardboard, and mailing tubes) used in 

preparing shipments. Some larger shipments are prepared for shipment on pallets, on which the 

shipments are kept together by being wrapped in wide plastic film. All of this space except the 

vault is allocated to the distribution warehouse use, for a total of 11,600 square feet allocated to 

the distribution warehouse use.

Accordingly, of the 32,000 square feet of the floor space of the proposed buildings, 

approximately 13,184 square feet, or 41% will be used for the office use, a permitted use in the 

district; approximately 3,758 square feet, or 12% will be used for the retail use, a permitted use 

in the district; and approximately 15,058 or 47% will be used for the distribution warehouse use, 

which is not a listed permitted use in the district. Therefore, to allow the distribution warehouse

use, it must qualify either as an accessory use under ' 6.14, or functionally similar to a listed 

permitted use under ' 6.13.9.

Whether the project is a permitted use in the Roadside Commercial district

The permitted uses in the Roadside Commercial zoning district include eight categories of listed 

permitted uses, plus a ninth category of uses > similar to a permitted use.= Section 6.14 allows A

accessory uses customarily incidental to a permitted use.@ Appellee has applied under ' 6.13.3: >

business or professional offices . . .= and under ' 6.13.4: > retail business or retail service 

occupation,= for the building space allocated to office uses and retail uses as described above. 

Appellants argue that the Appellee= s office functions cannot be carried on without the 

distribution warehouse, that the distribution warehouse functions cannot qualify as a permitted 

use, and that therefore the office functions cannot be permitted either. However, the Sunderland 
Zoning Bylaws do not require such a conclusion. Rather, we consider whether the distribution 

warehouse functions are authorized within any of the permitted use categories, or as an accessory 

use to the permitted uses.

Appellee argues in the alternative that the distribution warehouse functions are permitted as an 

accessory use under ' 6.14 or as a use similar to a listed permitted use under ' 6.13.9.

While one might argue that a distribution warehouse is customarily incidental to carrying out the 

60% of Appellee= s business that is the wholesale art publishing business, it is more difficult to 

say that a distribution warehouse is customarily incidental to carrying out merely the office 

functions of that wholesale business. Rather, both are essential component parts of the wholesale 

business. Further, the definition of A accessory use@ also requires that the use be subordinate to 

the principal use. Although the number of employees performing the distribution warehouse 

functions is smaller than the number of employees performing the office and retail functions of 

Appellee= s business, in no other sense can the distribution warehouse functions be considered 

subordinate to the remainder of the business. It occupies more of the floor area of the proposed 

buildings than the permitted uses, and is an integral part of Appellee= s business. We conclude 

that the distribution warehouse use does not qualify as an accessory use under ' 6.14 to either the 

permitted office use or the permitted retail use.

Section 6.13.9 allows as a permitted use in the Roadside Commercial district A[a]ny use which 

the Planning Commission finds to be similar to a [listed] permitted use in its effect upon the 

character of the vicinity, traffic, and the emission of noise, vibration, odor, smoke, dust or glare, 

and its effect on the value of adjacent3property.@

Appellants first argue that the Planning Commission lacks authority to perform this function, that 

somehow the Sunderland Zoning Bylaws improperly assign a type of conditional use review, 

which should be the function of the ZBA, to the Planning Commission. While it is true, as we 

noted in the summary judgment decision, that the Sunderland Bylaws are unusual in not 

requiring conditional use review in this district, the Bylaws do require conditional use review in 

other districts, in which the task is properly assigned to the ZBA. The Planning Commission= s 

task under ' 6.13.9 is not a disguised conditional use approval.

Rather, the Bylaws assign two separate tasks to the Planning Commission in the context of this 

case, and it is important not to confuse or conflate those two tasks. One task is that of Site Plan 

Review, which the parties do not dispute is within the province of the Planning Commission. The 

other task is to determine whether a particular use category, not listed as a permitted use, 

nevertheless should be classified as a permitted use in the district because it is similar to the 

listed permitted uses. It is well within the authority of a planning commission to determine 

whether a particular use fits within a particular use category. In re Patch, 140 Vt. 158, 175 

(1981); and see Simendinger v. City of Barre, Docket No. 1998-144

(Vt. Supreme Ct., January 8, 2001) (slip op. at heading III). It is, after all, the Planning 

Commission= s task to draft those use categories in the first place. Nothing in the zoning enabling 

act assigns this function to the ZBA or development review board. Under 24 V.S.A. ' 4325(3), 

any planning commission may A [a]dminister bylaws adopted under subchapter 6 of this chapter, 
except to the extent that those functions are performed by a development review board. 

Accordingly, ' 6.13.9 is within the purview of the Planning Commission, and hence this Court 

on appeal.

For the distribution warehouse to qualify as a permitted use under ' 6.13.9, we must compare its 

effects upon four criteria to the effects on those criteria of any of the listed permitted uses. 

Section 6.13.9 does not require a finding that the proposed use have no adverse effect on the four 

criteria, nor does it require that the proposed use have any less adverse effect than the listed uses. 

Rather, it requires that the Planning Commission, and hence this Court, find that the proposed 

use is similar to any of the listed uses regarding the four criteria.

The other permitted uses include (1) public and semi-public uses such as power plants, state 

institutions, public and private schools, churches, convents and parish houses; (2) uses permitted 

in the Rural Residential district; (3) business or professional offices, and financial institutions; 

(4) retail business; (5) a hotel or motel; (6) restaurants, diners and catering operations (not 

including drive-through restaurants); (7) commercial or public recreation, sports or cultural 

facilities such as a theater or health center; and (8) automobile service station; public garage; or 

automobile, boat, trailer or farm equipment salesroom. Thus, uses such as a school, a courthouse, 

a larger office building, a bank, a restaurant, a sports club, a movie theater, an automobile service 

station, or a vehicle or farm equipment dealership could be located on Appellee= s property as a 

permitted use.

The effect of Appellees= 15,000-square-foot distribution warehouse on the character of the 

vicinity is similar to that of several of the listed permitted uses. It has been designed to blend 

with the visual character of the vicinity at least as much as a similarly-sized retail business, 

courthouse, motel, school or office building, and better than a vehicle or farm equipment 

dealership, movie theater, automobile service station, or retail supermarket. The movement of 

vehicles onto, from and around the site would have a similar effect on the character of the 

vicinity as a similarly-sized retail business, vehicle or farm equipment dealership, or automobile 

service station, considering the numbers of passenger vehicles, vans, and tractor-trailer vehicles 

likely to visit the site.

The effect of Appellees= 15,000-square-foot distribution warehouse on traffic is similar to that of 

several of the listed permitted uses. A permitted office use could occupy up to 53,000 square feet 

on the site, on two floors with lower level employee parking, and could accommodate twice the 

expected number of employees, which would generate a comparable or greater level of employee 

passenger vehicle traffic and a comparable or greater level of UPS and Federal Express traffic. A 

restaurant, motel, courthouse, supermarket, movie theater or school use would generate a 

comparable or greater level of passenger vehicle traffic at certain times of the day. A vehicle or 

farm equipment dealership, or automobile service station, would generate a comparable or 

greater level of tractor-trailer vehicle traffic.

Appellees= 15,000-square-foot distribution warehouse will not emit any noise, vibration, odor, 

smoke or dust, other than the noise of the vehicles using its parking lot and loading dock, which 

is similar to that of several of the listed permitted uses as discussed above. Its exterior lighting is 
designed so as not to emit any glare. Accordingly, it is similar in these respects to an office use, 

school, courthouse, motel, or sports club.

The effect of Appellees= 15,000-square-foot distribution warehouse on the value of adjacent 

property is similar to that of several of the listed permitted uses. The adjacent properties are the 

Appellants= property, the Basketville property, the Skyline drive entrance across the road, and 

either the conservation parcel of Appellee= s property across the river, or the residential 

properties adjacent to or nearby that property. The Court took a view of the project site from a 

residential property in the Hill Farm subdivision across the river, and finds that the proposed 

project would be visible from that location through the trees, which in the summer would largely 

obscure the view of the site, but that even with an unobscured view of the site, the presence of 

the two buildings and the activities in the proposed parking lot would be unobtrusive when 

viewed from that distance, and would have no measurable effect on their property values. While 

the retail aspects of Appellee= s project could have a positive effect upon the adjacent Basketville 

property, by bringing more tourists and their economic activity to the area, we must restrict this 

analysis to the distribution warehouse, which is the use being analyzed under ' 6.13.9. The effect 

of the distribution warehouse on the value of adjacent property is similar to that of an office, a 

large retail business, a sports club or a motel, that is, to any of the uses with an employee parking 

lot, daily UPS, Federal Express and U.S. Mail deliveries, and occasional limited tractor-trailer 

service, and no use of hazardous chemicals or emissions of fumes, gases or other emissions. It 

would have a less adverse effect upon the value of Appellants= property than, for example, a 

vehicle or farm equipment dealership with repair or servicing facilities, or a motor vehicle 

service station.

Accordingly, the distribution warehouse constitutes a permitted use under ' 6.13.9, and may be 

considered for site plan approval together with the office and retail uses for Appellee= s proposed 

project.

Whether the project meets the site plan approval standards

As we noted in the February 21, 2001 summary judgment order, conditional use approval from 

the ZBA is not required in this district for any of the permitted uses. The project requires Site 

Development Plan approval by the Planning Commission under ' ' 6.11 and 3.6, including the 

determination of compliance with the performance standards of ' 7.18.

Upon reviewing each of the applicable standards, the Court concludes that Appellee= s proposal 

meets the standards of ' 7.18.

Light - The exterior lighting proposed for the project will direct artificial light away from 

adjacent lots and public ways. The pole-mounted light fixtures are designed to a maximum 

height of 16 feet, well within the 25-foot limit. The lights will be equipped with timers and will 

be shielded particularly to prevent illumination of or glare onto Appellants= property.

Noise - As a use with no manufacturing or noise-producing machinery, the proposed project will 

not produce noise in excess of the maximum allowable 65 decibels level between the hours of 

7:00 a.m. and 10 :00 p.m. and will not exceed 60 decibels during the remaining hours. The office 
and distribution warehouse uses will occur from 8:00 a.m. and 6:00 p.m.(or 5:00 on Fridays) on 

weekdays only. Only the retail uses will be open on the weekends. The only anticipated noise 

from the project will be the sound of the normal building mechanical systems (that is, the 

heating, ventilating and air conditioning equipment) and the normal pedestrian and vehicular 

traffic. The loudest expected vehicular noise would be the occasional tractor-trailer truck 

proceeding on the driveway at very low speeds. We note that the driveway entrance is located 

approximately 55 feet farther from Appellants= residence than is the traveled way of Route 7A. 

Vibration - As a use with no manufacturing or vibration-producing machinery, the proposed 

project will not produce vibrations to be transmitted through the ground or detectable beyond the 

property lines. The normal building mechanical systems (that is, the heating, ventilating and air 

conditioning equipment) should not produce detectable vibration.

Dust, Fumes, Vapors, Gases and Odors - As a use with no manufacturing and especially no 

printing processes on site, the proposed project will not produce dust, fumes, vapors, gases or 

odors. The normal building mechanical systems (that is, the heating, ventilating and air 

conditioning equipment) should not produce detectable emissions; they are located on the roof, 

hidden from view, and are designed merely to provide heat exchange.

Water Quality - The project is designed to avoid any adverse impact on water quality and to 

protect the resource of the adjacent Battenkill River. Appellee= s business involves no storage of 

fuels, toxic chemicals, industrial wastes, or any potentially harmful raw materials. The site plan 

provides for a fully vegetated buffer area between the developable land and the Battenkill River, 

to preserve its natural condition without any structures or site development for a distance of 210 

feet.

Refuse Disposal - Refuse produced by Appellee= s business will be removed from the site by the 

waste hauler which at present handles refuse removal at Appellee= s existing location in 

Manchester. As it accumulates it will be stored in a dumpster, located adjacent to the rear of the 

parking lot and enclosed by a wooden fence, as shown on the plans. Appellee has an active 

recycling program, in particular for cardboard.

Explosive and Flammable Materials - Appellee= s business does not employ or store flammable 

or explosive materials subject to this section.

Storm Water Run-off - The project is designed to handle stormwater runoff adequately, so that it 

will not flow onto Appellants= property and will not adversely affect the Battenkill River. The 

plans provide for grass-lined swales with shallow slopes for percolation of water into the porous 

soil, with any excess discharging into an energy dissipation structure to return the flow to 

overland sheet flow. Appellee has obtained approval of the erosion and stream protection aspects 

of its project in connection with its Act 250 permit. A state stormwater discharge permit is not 

required, since the stormwater will not discharging directly into any wetland, pond, or pristine 

waters and is not a contributor of pollutants.

Erosion Control - The project is designed adequately to handle erosion control during and after 

construction. The development site is predominantly meadow land with a shallow (4%) average 
slope, containing sandy loam soil at the surface overlaying a course of sandy gravel, all of which 

is very permeable and absorbs stormwater well. Final seeding of the site with grass will prevent 

long-term erosion after construction is completed.

Parking and Access - The project is designed to provide adequate vehicular and pedestrian access 

to the site, with a 21-space parking lot, including handicapped parking, close to the front or retail 

space of the building, and a 44-space lot on the side to accommodate most employee parking, for 

a total of 65 spaces, with truck access to the distribution warehouse on the side of the building. 

The parking provided for the project meets the requirements of ' 8.14.

Screening and Landscaping - With the additional 18 trees placed on the amended site plan in 

evidence as Exhibit 12, the site plan provides adequate screening and landscaping for the project. 

In addition, the site is designed at a lower floor elevation than the roadside elevation, so that the 

buildings will appear to be integral with the topography and the planted screening will be more 

effective. The screening is designed to provide a continuous buffer with a minimum width of 35 

feet, except for the driveway access. It is to be planted with grass and trees, the latter to be set 

back a sufficient distance to prevent blocking traffic visibility.

Similarly, the parking area in front of the retail portion of the structure will be set into the 

existing grade approximately three feet to enhance the effectiveness of the screening. The larger 

employee parking lot is adequately screened by a line of maple trees, along the main highway at 

the entrance driveway and around the perimeter of the parking lot on the north and west sides as 

well as in the center island of the parking lot. Similarly, the loading dock is adequately screened 

with Eastern Hemlock trees.

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

hereby GRANTED to Appellee, on the same terms and conditions as ordered by the Planning 

Commission, and incorporating the terms and conditions of Act 250 permit No.8B0540, with the 

following additions:

1) the approved site plan shall be amended to show the 18 additional screening trees and the 

designation of the protection area for the septic system. 

2) an average of two tractor-trailer trips per week (onto and off the site) may occur, averaged 

over a calendar month, not to exceed two tractor-trailer trips in any single day. 

Appellant=s appeal of the building permit is also denied, and the building permit may issue. 

Appellee shall file with the Planning Commission a copy of the site plan as approved by this 

Decision and Order and showing the septic field protection zone and the additional proposed 

trees.

Done at Barre, Vermont, this 26th day of April, 2001.
___________________

Merideth Wright 

Environmental Judge

Footnotes

1.

 Appellee has not stated that it will need to expand its staff to cover the frame shop and the 

retail gallery functions in the proposed location. Any additional staff numbers are only relevant 

to the sizing of the parking lots and the septic system.

2.

 Appellants argue strenuously that the primary use of the gallery will be as an art showroom 

and training facility for Appellee’s wholesale customers. The Court finds that, although that 

function will take place in the gallery as a secondary function for approximately one such 

wholesale customer per week, the gallery’s primary function will be to display and sell original 

art to retail customers. This finding, in any event, is not dispositive of any of the issues in this 

case.

3.

 Appellee appears to argue that all four of the criteria should only be measured in 

comparison to the effect on adjacent property. However, such an interpretation would make 

nonsense of the other three criteria. The plain language of the section only requires the valuation 

section to be limited to the adjacent property.