1

STATE OF VERMONT

ENVIRONMENTAL COURT

} Appeal of Sisters and Brothers Investment Group, LL P } Docket No. 281-12-02 Vtec } }

Decision and Order Appellant Sisters and Brothers Investment Group, LL P appealed from a decision of the Development Review Board (DRB) of the Town of C olchester, denying its application for conditional use approval of a convenience store with gasoline sales on its property at 162 and 166 College Parkway in the General Developm ent 1 (GD-1) zoning district. Appellant-Applicant is represented by David H. Gree nberg, Esq.; the Town is represented by Richard C. Whittlesey, Esq. The Court first ruled on summary judgment that a co nvenience store with gasoline sales is not a permitted use in the GD-1 district, but that the application may go forward under §1203, and that we would proceed to the evide ntiary hearing on whether the proposal qualifies for consideration as an ‘other c ommercial use’ under §1203.1. Prior to that evidentiary hearing, the parties agreed that t he §1203.1 threshold question of whether the proposed convenience store with gasoline sales is of the ‘same general character’ as

the other uses listed in the Table of Permissible U ses for the GD-1 district must be decided first, before moving forward to take evidence eithe r on the remainder of §1203.1 (whether the proposal will or will not be detrimental to oth er uses within the district or the adjoining land uses) or on the conditional use standards. Th e parties also agreed that if the Court were to go forward to hear the merits of the condit ional use standards, only criteria (b), (d), and (e) of §1804.1 would be before the Court, as th e Town does not contest that criteria (a) and (f) are met and, if the project were approved u nder §1804.1(b), (d), and (e), the application would then have to go back to the DRB f or it to hear evidence on criterion §1804.1(c) (traffic). An evidentiary hearing was held on the §1203.1 thre shold question before Merideth Wright, Environmental Judge. The parties were give n the opportunity to submit written2

memoranda and requests for findings. Upon consider ation of the evidence and the written memoranda and requests for findings filed by the pa rties, the Court finds and concludes as

follows. To consider an application for conditional use appr oval under §1203.1 as an ‘other commercial use,’ the Court must first find that “su ch use is of the same general character of those permitted” in the GD-1 district. We decid ed on summary judgment that the phrase “those permitted” has the sense of those ‘allowed’ in the district, whether as ‘permitted’

uses or as ‘conditional’ uses.

We also decided on the record at the outset of the evidentiary hearing that it does not include other uses, such as a neighboring conve nience store with gasoline sales, that are already non-conforming uses in the district. T his interpretation is now further supported by the amendment to the enabling statute, 24 V.S.A. §4414(3)(a)(ii) 1 , that the character of the area is defined by the ‘purposes of the zoning district within which the project is located’ and the policies and standards in the municipal pla n. That is, when examining the

character of the area in connection with a conditio nal use application, the DRB is directed not to consider existing non-conforming uses that c onflict with the character of the area as designed or planned for by the municipality.

1 2004, No. 115, §95.3

Appellant-Applicant proposes to construct a conveni ence store with a 3,600 square foot footprint, on an existing lot on Vermont Route 15 2 in the GD-1 zoning district. The convenience store building is proposed to have appr oximately 2,000 square feet of sales area open to the public. The convenience store is proposed to have associated with it three gasoline dispensers under a canopy, providing six gasoline fueling stations (places for six vehicles) at the dispensers. First, it appears to the Court that the convenience store element of the proposal exceeds the size eligible to be considered as a con venience store. The regulations define ‘convenience store as having a ‘gross floor area’ o f less than 2,000 square feet. AppellantApplicant appears instead to have used the concept of ‘useable floor area,” which is clearly defined, both in the definition (‘floor area, useab le’) and in Figure III illustrating ‘floor area’ at the end of Article I, as being used only for the purpose of computing parking requirements. While ‘useable’ floor area is exclus ive of the storage areas and bathrooms, ‘total’ floor area is shown on that diagram as incl uding all the interior floor area of the building, measured from the interior faces of the e xterior walls. In this context, it is only reasonable for ‘gross’ floor area to be the equival ent of ‘total’ floor area, rather than ‘usable’ floor area, for two reasons. First, the t erm ‘gross’ is usually distinguished from the term ‘net,’ meaning the amount resulting after some thing is deducted, and ‘usable’ floor

area is defined as the area left after areas used f or storage, processing, utilities and sanitary facilities are deducted. Second, if the d rafters of the regulations had intended ‘gross’ floor area to mean ‘usable’ floor area, the y could have used the term ‘usable floor

2 The property has frontage on Route 15 and formerl y also had access by an existing twelve-foot-wide right-of-way from Johnson Avenue.4

area’ which was already defined in the regulations. 3

3 We also note that although the cover letter to th e application describes it as “a new 3,600 s.f convenience store and gas station,” g iving equal weight to the two functions, the ‘Estimated Traffic Impacts’ page of the application used the Institute of Transportation Engineers category 845: “Gasoline/Se rvice Station with Convenience Market.” For a convenience store with gasoline sales, the sale of gasoline represents approximately 30% to 40% of the gross dollar amount of sales. However, the profit generated by the facility is largely from the conve nience store and deli items sold in the store. Appellant-Applicant relies on gasoline sale s to bring convenience store and deli customers into the store. That is, a convenience store without gasoline sales would not succeed in bringing a sufficient number of customer s into the convenience store to make the convenience store commercially viable on its ow n.5

In order to determine whether a 3,600 square foot c onvenience store together with a six-fueling-position gas station is “of the same ge neral character” as other uses allowed in the GD-1 zoning district, we must first examine the salient characteristics of the commercial uses that are allowed as compared with those not al lowed in the GD-1 district 4

. The purpose of the GD-1 district is “to provide for residential and compatible commercial and light manufacturing activities in an environment featuring convenience of required facilities and essential services.” §1200 . The primary test is whether a potential commercial use is compatible with residential uses.

4 We make this analysis without examining the de facto characteristics of the surrounding uses along Route 15. The remedy for Ap pellant-Applicant, if the existing uses on the stretch of Route 15 in which this prope rty is located are indeed primarily automobile-oriented, is to seek an amendment to the zoning district applicable in this area (an amendment to the zoning map). We note tha t if such an amendment were proposed for public hearing, Appellant-Applicant co uld apply during the pendency of the proposed regulation. See former 24 V.S.A. §4443(d)

.6

Looking at the categories of commercial and light i ndustrial uses 5 allowed in the GD1 district, one salient characteristic of the allow ed uses is that, with the exception of a few listed uses discussed below, the allowed uses all m ust take place entirely within an enclosed building and do not involve either outdoor activity in itself, or involve high-volume vehicular activity together with outdoor activity. For example, under use category 12.000, veterinarians are allowed in the GD-1 district, whi le kennels, which presumably have outdoor runs for dogs, are not allowed. Another sa lient characteristic is that none of the allowed uses, with the assumed exception of marinas and marine-related sales, sells gasoline (or diesel fuel) for placement in customer s’ vehicles.

None of the allowed uses in the GD-1 district withi n use categories 2.000 (sales and rental of goods, merchandise and equipment), 10.000 (storage and parking), or 19.000 (dry cleaner, laundromat) involves outdoor activity. A 3,600 square foot convenience store together with a six-fueling-position gas station is not “of the same general character” as the few remaining allowed commercial or light industria l uses that allow outdoor activity. We take each of the subcategories in turn. The only allowed uses in the GD-1 district in the 3 .000 (office, clerical, etc.) use category that also have an outdoor component are ba nks with drive-in windows, which are compatible with residential activities in the distr ict. Customers’ use of bank drive-up windows is not characterized by high-volume, consta nt vehicular activity. The only allowed uses in the GD-1 district in the 6 .000 (recreation, amusement, entertainment) use category that also have an outdo or component are outdoor recreational facilities, such as tennis courts and golf courses, and marinas/yacht clubs. Aside from the fact that these uses must necessarily be conducted outdoors, by definition, they are also seasonally limited and are not characterized by hig h-volume vehicular activity. They are compatible with and may enhance residential activit ies in the district. By contrast, those

5 Use categories in the 2.000, 3.000, 4.000, 6.000, 8.000, 9.000, 10.000, 11.000, 12.000, 18.000, 19.000, 20.000, 21.000, and 24.000 series of the Table of Permissible Uses in the Zoning Regulations. We not e that none of the subcategories of uses in the 4.000 or 11.000 categories are allowed in the district, and therefore these categories will not be further used for comparison.7

outdoor uses that do have high-volume vehicular act ivity, such as automobile and motorcycle racing and drive-in movies, are not allo wed in the GD-1 district. The only allowed uses in the GD-1 district in the 8.000 (restaurants, bars, night clubs) use category that also have an outdoor compo nent are outdoor cafes or restaurants, either with table service or allowing consumption o f carry-out food outside. These uses are seasonally limited and are not characterized by hig h-volume vehicular activity; they are compatible with and may enhance residential activit ies in the district. Those outdoor uses that do have high-volume vehicular activity, such a s fast-food service establishments with drive-up windows, are not allowed in the GD-1 distr ict.

The allowed uses in the GD-1 district in the 18.000 (open air markets and horticultural sales) use category both have an outd oor component by definition. They are also seasonally limited and are not characterized b y constant high-volume vehicular activity or night-time vehicular activity. They are compati ble with residential activities in the district. The only allowed use in the GD-1 district in the 20.000 (facilities for the deceased) use category that also has an outdoor component are cemeteries. Aside from the fact that this is a outdoor use by definition, such as that of a park, the use of cemeteries is seasonally limited and is not characterized by cons tant or night-time high-volume vehicular activity. Even the more concentrated vehicular act ivity of a large funeral is relatively slow, decorous, and limited in time; it is compatible wit h residential activities in the district.

The allowed uses in the GD-1 district in the 21.000 (day care facilities) use category have the outdoor component of children playing outd oors, on a seasonal basis. They are not characterized by high-volume vehicular activity , and are compatible with residential

activities in the district.

The allowed use in the GD-1 district in the 24.000 (commercial greenhouse operations) use category may have an outdoor compon ent, but, like the other outdoor market category, commercial greenhouses with on-pre mises sales are also seasonally limited and are not characterized by high-volume ve hicular activity year-round and after dark. They are compatible with residential activit ies in the district. Moreover, a 3,600 square foot convenience store tog ether with a six-fueling-position gas station is not “of the same general character” as ‘marine, small equipment and trailer8

sales,’ which is the only use within the 9.000 use category of Motor-Vehicle-Related sales and service operations allowed in the GD-1 district . Rather, marine-related sales, like marinas (use category 6.261), are an exception to t he prohibition of gas stations and other

motor-vehicle-related sales and service in the GD-1 district under use category 9.600 for the simple functional reason that they must necessa rily be located along the lake in order to sell and provide fuel to motorized boats traveli ng on the lake.

Judgment Order

Accordingly, based on the foregoing, it is hereby O RDERED and ADJUDGED that the proposed 3,600-square-foot convenience store wi th six fueling positions for gasoline sales does not qualify as an “other similar use” in the GD-1 zoning district, concluding this appeal.

Done at Barre, Vermont, this 11 th day of October, 2004.

_________________________________________________ Merideth Wright Environmental Judge