1 STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION Docket No. 200-10-09 Vtec

In re Champlain Oil Co., Inc. Conditional Use Appli cation

Decision on Cross-Motions for Partial Summary Judgm ent This matter involves the efforts of B. Cairns Prop erty, LLC, d/b/a Champlain Oil Co., Inc. (“Applicant”) to secure approval to construct and operate a gasoline station, retail store, and fast-food restaurant on property located on the eas terly side of Vermont Route 7 in the Town of Ferrisburgh (“Town”). The 9.04-acre project site i s a split lot partially located in three zoning districts: the Highway Commercial District (“HC Dis trict”), the Rural Agricultural District (“RA District”), and the Conservation District. The Tow n of Ferrisburgh Zoning Board of Adjustment (“ZBA”) granted Applicant a conditional use permit for the project, with fourteen conditions, and Applicant has appealed the imposition of permit conditions 1–4 and 6–9. A group of fifteen individuals, as well as Ferrisburgh Friends of Resp onsible Growth, Inc., (collectively, “Opponents”) filed a cross appeal of the ZBA’s deci sion, raising a number of issues concerning the proposal’s compliance with the Town of Ferrisbu rgh Zoning By-Laws (“Bylaws”). Applicant is represented by Liam L. Murphy, Esq.; O pponents are represented by James A. Dumont, Esq.; the Town, which has entered an app earance in this matter, is represented by James F. Carroll, Esq. The principal parties have each filed a motion for partial summary judgment, seeking a summary ruling in their favor on three distinct leg al issues: (1) whether the proposed retail store is a permissible use in the HC District; (2) whethe r the fast-food restaurant may include the proposed drive-up service window; and (3) whether t he wastewater and stormwater systems may be located partially within the Conservation Distri ct. The Town has chosen not to play an active role in this pretrial motion practice; the pending cross-motions are now ripe for review.

Factual Background For the sole purpose of putting the pending motions into context, we recite the following facts, which we understand to be undisputed unless otherwise noted:2

1. The project site is to be a 9.04-acre parcel of lan d on the easterly side of Route 7, about one-tenth of a mile north of Little Otter Creek, in Ferrisburgh. The proposed site is the approximate location of the former Roadhouse Restau rant, recently destroyed by fire.

2. Applicant does not yet own the project site; in fac t, the precise 9.04-acre parcel has not yet been created. 1 The proposed site is comprised of a 2.5-acre parc el currently owned by Marcos and Claudia Llona, as well as 6.54 acres of an adjacent 24.27-acre parcel owned by Susan Burdick. In order to create the project site , Ms. Burdick will convey 6.54 acres of her lot to the Llonas, effectively readjusting the boundary between the two properties. Once all permits are issued, the Llonas will convey the newly create d 9.04-acre parcel to Applicant.

3. The resulting 9.04-acre project site would span thr ee zoning districts. The majority of the lot, which fronts Route 7, would be within the HC D istrict; the back portion of the lot would be split between the RA District and the Conservation District. 2 Applicant’s proposal involves development in all three zoning districts.

4. Applicant submitted a conditional use permit applic ation on April 30, 2009, and on May 14, the application was resubmitted, without change , on the proper application forms. Applicant seeks approval to construct and operate a gasoline station, a retail store, and a fast-food restaurant on the project site; the new constructio n would include two fueling dispenser islands and one multi-use building.

5. The proposed 4,800-square-foot building would be lo cated entirely within the HC District; approximately half of the building would be used as a retail store and half would contain

a fast-food restaurant.

1 The only application before us requests condition al use approval for the proposed project. Applican t refers in various filings to the “creation” of the new 9.04-a cre lot upon which its development is proposed as a “lot line adjustment.” We are uncertain from the record befo re us whether Applicant’s proposal will require sub division approval. See Bylaws § 5.25 (stating that “no lot shall be so reduced in area . . . [such that the lo t] do[es] not conform to the requirements herein prescribed”); se e also Bylaws § 2.2 (“Boundary Adjustment” is “[a] division of land for the purpose of adjusting boundaries betwee n adjacent lots or parcels where no new lot is crea ted. A boundary adjustment shall not create a nonconforming use or lot.” (emphasis adde d)). But we need not resolve that issue in this proceeding because Applicant does not seek subdivision approval by the pending applicati on. Nevertheless, we note that a 6.54-acre portion of the Burdicks’ property will be carved off and co nveyed to the Llonas, thereby creating two new lots: a 9.04-acre parcel that will ultimately be conveyed to Applican t, and a 17.73- acre parcel that will be retained by the Burdicks. Each of these two new lots will span all three zon ing districts.

2 The Llonas’ existing 2.5-acre parcel is a split l ot, the front of which is located in the HC Distric t and the rear of which is located within the RA District. The 6.54- acre portion of the Burdick lot spans three zoning districts: the portion fronting Route 7 is in the HC District, but the back portion of the lot is divided between the Conservation District and the RA District.3

6. The retail store, which Applicant often characteriz es in its application materials as a “convenience store,” would occupy 2,600 square feet and would serve a number of purposes. 3 It would provide space for the gasoline station’s cash ier, space for storage, an office for the gasoline station, and equipment related to the gaso line station. It would also include space for the sale of retail goods, including items related t o the gasoline station such as oil and ice scrapers, as well as general retail items, such as groceries, beverages, and snacks, and a variety of goods used by travelers and homeowners alike. A typical retail store associated with other Champlain Oil gasoline service stations will stock over 6,000 different items (e.g., mittens, movies, batteries, pliers, coolers, and novelty col lectables).

7. The proposed fast-food restaurant will have thirty- four seats and comprise the building’s remaining 2,200 square feet. It will also have a d rive-up service window accessed by a drivethrough lane that wraps around the rear of the buil ding. The proposal appears much like a typical “drive-thru” at a fast-food restaurant, whe re customers remain in their vehicle and review a menu-board at the rear of the building before ord ering through a microphone. They then proceed to the drive-up service window where they s top, pay for the order, and receive their food. Applicant’s sketch plans delineate a space i n front of the service window where customers will temporarily wait as their orders are processed

. 8. The proposal also involves installing wastewater an d stormwater systems, both of which would be generally located behind the proposed buil ding. The parties dispute the precise location of these two systems, but it is undisputed that a sizable portion (i.e., over 30%) of both systems will be located within the Conservation Dis trict. 4

9. Between June 3, 2009, and August 5, 2009, the ZBA h eld three public hearings on Applicant’s application; it also conducted a site v isit immediately before the August 5 hearing. The ZBA ultimately granted Applicant a conditional use permit, subject to fourteen conditions, on September 16, 2009.

3 Applicant concedes for the purposes of the pendin g motions that the application involves a convenien ce store. Applicant has reserved the right, however, to argue at trial that the proposal does not involve a conv enience store, in the event that we conclude a convenience store is p rohibited in the HC District.

4 In addition to the location dispute, the amount o f the two systems sited within the Conservation Dis trict depends on whether the zoning district boundaries can be al tered. See Bylaws § 5.19 (allowing in certain situ ations a landowner to extend the boundary line of the less r estrictive zoning district up to thirty feet into t he more restrictive zone). We make no ruling today on the applicabilit y of this provision to Applicant’s proposal.4

10. Applicant filed a timely notice of appeal with this Court on October 8, 2009. Applicant’s Statement of Questions asks whether eight of the ZB A’s conditions are appropriate and valid.

11. Opponents filed a notice of appeal on October 14, 2 009, and their twelve-question Statement of Questions raises a number of issues, b ut generally asks whether Applicant’s proposal complies with the applicable bylaws and ot herwise deserves conditional use approval.

Discussion Applicant proposes to construct and operate a gasol ine station, a retail store, and a fastfood restaurant on a yet-to-be-created 9.04-acre pa rcel that spans three different zoning districts. The cross appeals filed with this Court raise a num ber of questions, many of which are factdependant, but Applicant and Opponents each seek a summary ruling in their favor on a limited set of legal issues: (1) Whether the proposed retail store may be permitted under the Bylaws; (2) Whether the drive-up service window, as described i n the application, may be permitted under the Bylaws as part of the propos ed restaurant; and (3) Whether portions of the proposed stormwater system and wastewater disposal system, which are located outside the High way Commercial District, may be permitted under the Bylaws.

Our review of the pending cross-motions must begin with the reminder that summary judgment is appropriate only “when there are no gen uine issues of material fact and, viewing the evidence in a light most favorable to the non-movin g party, the moving party is entitled to judgment as a matter of law.” In re Carter , 2004 VT 21, ¶ 6, 176 Vt. 322; V.R.C.P. 56(c). “When both parties move for summary judgment, each is entitled to the benefit of all reasonable doubts and inferences when the opposing party’s mot ion is being judged.” City of Burlington v. Fairpoint Commc’ns , 2009 VT 59, ¶ 5 (citing Toys, Inc. v. F.M. Burlin gton Co. , 155 Vt. 44, 48 (1990)). We apply these standards to the three iss ues raised by the pending motions.

1. The Proposed Retail Store The first issue concerns whether Applicant’s propos ed retail store is a permitted use in the HC District. Part of Applicant’s proposal incl udes a 2,600-square-foot store designed to sell a wide variety of retail goods, such as motor oil, ice scrapers, groceries, beverages, and snacks, and merchandise ranging from mittens and movies to batteries and collectables. A “retail store” is expressly listed as a permissible conditional us e in the HC District. Bylaws § 4.4(B)(20). This5

includes “[a]ny enclosed business concerned primari ly with rental or the sale of produce, products, goods, equipment or commodities; and excl uding any drive-in facility, road side agricultural stand, gasoline or motor vehicle servi ce station, motor vehicle sales facility, restaurant or junk yard.” Bylaws § 2.2 (defining “ retail store”). For the reasons detailed below, we conclude that Applicant’s proposed store fits th is definition and is therefore a permissible use

in the HC District. Opponents challenge this conclusion and argue that Applicant’s proposed store is more accurately characterized as a convenience store: “a n establishment whose principal use is the sale of products in small quantities for the daily use o f customers including, but not limited to, bakeries, food stores, news stands, tobacco shops, card shops, liquor stores, delicatessens, music supply stores, pet stores, jewelry stores, camera a nd photography supplies, ice cream parlors, meat and seafood shops and florist shops.” Bylaws § 2.2 (defining “convenience, retail”). Although defined in the Bylaws, a convenience store is not listed as a permissible use in the HC District, and Opponents point out that “[a]ny use n ot expressly permitted in a district is prohibited in that district.” Bylaws § 3.5. Oppon ents contend that Applicant’s convenience store is therefore prohibited. We reject this reasoning for the following reasons. Even if Applicant’s proposed retail store constitut es a convenience store, there is no indication that convenience retail stores are prohi bited in the HC District. A “convenience retail” store appears to be merely one type of “ret ail store.” That a “convenience retail” store is also defined in the Bylaws does not demonstrate the intent to prohibit them in the HC District, particularly when the broader category of “retail s tores” is explicitly permitted. Concluding otherwise would contradict the plain language of th e Bylaws, which expressly permits “[a]ny enclosed business concerned primarily with rental o r the sale of produce, products, goods, equipment or commodities.” Bylaws § 2.2 (defining “retail store”). If the drafters intend to prohibit convenience stor es in the HC District, they must do so with more clarity. See In re John J. Flynn Estate , No. 4C0790-2-EB, Findings of Fact, Conclusions of Law, & Order, at 28 (Vt. Envtl. Bd. May 4, 2004) (noting that a provision must be “sufficiently clear to guide the conduct of an a verage person, using common sense and understanding”). Merely defining “convenience reta il” in the Bylaws does not give a landowner fair notice that convenience stores are prohibited in the HC District, especially when retail stores are expressly permitted. In re Handy , 171 Vt. 336, 347–48 (2000) (explaining that a lan downer6

must be “given fair notice of what it can and canno t do with the land”). The drafters could have

excluded “convenience stores” from the definition o f “retail stores,” just as they excluded a

number of other uses from the definition of “retail stores.” See Bylaws § 2.2 (excluding from the definition of “retail store” roadside agricultural stands, motor vehicle sales facilities, restaurants

, and junk yards). Without any evidence that conveni ence stores are to be excluded from the umbrella definition of retail stores, which are spe cifically allowed, we conclude that Applicant’s convenience store is permissible in the HC District as a kind of retail store. Opponents argue that this conclusion renders the de finition of “convenience retail” store wasted ink. Rather than interpreting the definitio n as surplusage, Opponents ask the Court to give meaning to the language by applying a familiar rule of statutory construction: when two statutes cover the same subject and one is more spe cific than the other, they are harmonized by giving effect to the more specific provision. Our Lady of Ephesus House of Prayer, Inc. v. Town

of Jamaica , 2005 VT 16, ¶ 16, 178 Vt. 35. Opponents contend that the more general definition of “retail store” should apply only when the specif ic definition of “convenience retail” is not applicable to a proposed project. A specific statute will normally control over a mor e general one “unless the legislature intended the general to control.” Looker v. City o f Rutland , 144 Vt. 344, 346–47 (1984). Here, the drafters expressed their determination to allow “retail stores” in the HC District; it is specifically listed as a conditional use. Opponent s’ approach undermines this intent. Were we to prohibit “convenience retail” stores in the HC Dist rict, we must also prohibit retail sales, since “retail sales” is defined in the Bylaws and omitted from the list of permissible uses in the HC District. See Bylaws § 4.4 (listing conditional us es). Following this approach leaves us wondering what type of “retail stores” the drafters intended to permit in the HC District; the breadth of stores prohibited as either “retail sale s” or “convenience retail” stores would effectively prohibit all “retail stores” in the HC District. 5 The exception would swallow the rule, thereby thwarting the drafters’ clear intent to per mit “retail stores” in the HC District (i.e., a

5 Businesses falling under the definition of “retai l sales” or “convenience retail” store that would b e prohibited from the HC District include, but are not limited to, ba keries, food stores, news stands, tobacco shops, ca rd shops, liquor stores, delicatessens, music supply stores, pet sto res, jewelry stores, camera and photography supplie s, ice cream parlors, meat and seafood shops, and florist shops, as well as the sale of hardware, paint, office equ ipment, sporting goods, trading stamp and redemption outlets, televi sion, satellite dishes, automotive supply and major household appliance stores. See Bylaws § 2.2 (expressly incl uding these businesses in the definitions of “retai l sales” and “convenience, retail”).7

business “concerned primarily with rental or the sa le of produce, products, goods, equipment or commodities”). Based on the foregoing, we conclude that Applicant’ s proposed store is a “retail store,” as that term is defined in the Bylaws and expressly li sted as a conditional use in the HC District. It matters not that the proposed store may also be a c onvenience store because the drafters have not

demonstrated the intent to exclude convenience stor es from the definition of retail stores. Accordingly, even when viewing the facts in a light most favorable to Opponents, we GRANT Applicant and DENY Opponents summary judgment on this issue.

2. The Proposed Drive-up Service Window as Part of the Fast-Food Restaurant The second issue raised by the pending cross-motion s involves whether Applicant’s proposed restaurant and associated drive-up service window are permitted in the HC District. As part of the proposed thirty-four seat fast-food res taurant, Applicant intends to provide a drive-up service window, which customers would access via a drive-through lane that wraps around the rear of the building. Opponents argue that Applica nt’s proposal is a “drive-in facility,” and it seeks a summary ruling that Applicant’s proposal is prohibited because drive-in facilities are not listed as permissible uses in the HC District. See Bylaws § 3.5 (“Any use not expressly permitted in a district is prohibited in that distr ict.”). Applicant responds by first contending that the pro posal does not involve a drive-in facility; rather, the project involves a “drive-up service window.” This argument is unavailing. A “drive-in facility” is defined as “[a]n establish ment designed or operated to serve a patron while seated in a motor vehicle parked in an off-st reet parking space.” Bylaws § 2.2. There is no dispute that Applicant intends to serve patrons while they are seated in a motor vehicle; they

will order off a menu board at the rear of the buil ding and drive up to the service window, where they will pay for and wait for their order. The on ly dispute appears to be whether these customers will be parked in an off-street parking s pace while they wait. For the following reasons, we answer in the affirmative. The Bylaws define “parking space” as an “[o]ff-stre et space used for the temporary location of one licensed motor vehicle, such space being at least nine feet wide and twenty-two feet long, not including access driveway, and havin g direct access to a street.” Bylaws § 2.2. The facts in the record indicate that the proposed drive-through lane will contain an off-street parking space beside the service window where custo mers will temporarily park their cars while8

they await their order. The proposed space will ha ve direct access to a street and there is no dispute that it will be at least nine feet wide and twenty-two feet long, not including the drivethrough lane. Applicant argues that this determination contradict s the common sense understanding of a “parking space,” which Applicant describes as an authorized place where a driver may park

their vehicle so as to not hinder traffic flow. Ho wever, it matters not what “parking space” is commonly understood to mean because “the definition in the bylaw controls.” In re Korbet

, 2005 VT 7, ¶ 11, 178 Vt. 459 (citing In re Stowe Cl ub Highlands , 164 Vt. 272, 278 (1995)). Under the definition in the Bylaws, Applicant’s pro posal involves an off-street parking space: patrons will temporarily locate their motor vehicle directly in front of the drive-up service window while they wait for their order. Applicant’ s sketch plans delineate the precise location of the parking space. Accordingly, even when viewi ng the facts in a light most favorable to Applicant, we conclude that Applicant’s proposal in volves serving a patron while seated in a motor vehicle in an off-street parking space. The proposal therefore involves a “drive-in facility,” as that term is used in the Bylaws. Despite this conclusion, our inquiry on this issue does not end here. Opponents request a summary ruling that a drive-in facility is not a pe rmissible use in the HC District, making the same argument discussed above: “drive-in facility” is defined in the Bylaws but not listed as a permissible use in the HC District, and “[a]ny use not expressly permitted in a district is prohibited in that district.” Bylaws § 3.5. Appli cant responds that the proposed drive-in facility is a component of the fast-food restaurant, and it argues that a restaurant is a permissible use in the HC District. Bylaws § 4.4(B)(19). After all, many contemporary restaurants provide customers with a drive-through option. A permissible restaurant in the HC District is “[a] public eating establishment in which the primary function is the preparation and serving of food.” See Bylaws § 2.2. Under this definition, a drive-in facility is a valid componen t to a permissible restaurant; there is no indication that a restaurant may not include a driv e-in facility. The mere fact that the drafters defined drive-in facility in the Bylaws is not suff icient, in our judgment, to demonstrate the intent to prohibit drive-in facilities at restauran ts in the HC District, especially since restaurants are expressly permitted. See In re John J. Flynn E state , No. 4C0790-2-EB, Findings of Fact, Conclusions of Law, & Order, at 28 (Vt. Envtl. Bd. May 4, 2004) (noting that a provision must9

be “sufficiently clear to guide the conduct of an a verage person, using common sense and understanding”). If the drafters were inclined to prohibit restaurants from utilizing drive-in facilities, they could have done so expressly, much like what was done to prohibit retail stores from incorporating drive-in facilities. The drafte rs defined “retail store” as any business that rents or sells products or commodities, “excluding any drive-in facility.” Bylaws § 2.2. No such exclusion was used to define restaurants, and we ha ve no authority to impose such an exclusion. Accordingly, even when viewing the facts in a light most favorable to Opponents, we conclude that Applicant’s drive-in facility is an a cceptable component to the proposed fast-food

restaurant. There is no indication that the drafte rs intended to prohibit restaurants in the HC District from incorporating a drive-in facility. W e therefore GRANT Applicant and DENY Opponents summary judgment on this issue.

3. Locating the Wastewater and Stormwater Systems in the Conservation District The final issue raised by the pending motions conce rns the location of the wastewater and stormwater systems serving the fast-food restaurant , gas station, and retail store. The proposed 9.04-acre project site lies in multiple zoning dist ricts, and Applicant intends to locate a portion of both the wastewater and stormwater systems in the C onservation District. The parties dispute exactly how much of the two water systems will be l ocated within the Conservation District, and the extent of the encroachment depends on the appli cability of Bylaws § 5.19 (which allows zoning district boundaries to be extended in some s ituations). 6 But two facts are undisputed: a sizable portion of each system is located in the Co nservation District, and the project site is below the twenty-five-acre minimum lot-size require ment for the Conservation District. Bylaws § 4.3(C)(1). As is emphasized by Opponents, no land development may occur in the Conservation

District unless it is in conformance with the distr ict requirements. Bylaws § 3.5. Opponents seek a summary ruling that neither the wastewater n or the stormwater system may be located in

the Conservation District because it constitutes la nd development of a to-be-created, undersized

6 Bylaws § 5.19 says: “Where a district boundary li ne divides a lot of record at the time such line is adopted, the regulations for the less restricted part of such lo t shall extent [sic] not more than thirty feet into the more restricted lot.” Bylaws § 5.19. The very language of § 5.19 appears to make it inapplicable to Applicant’s prop osed project, since the to-be-created lot does not yet exist, and therefore did not exist “at the time such [zoning district] lines [were] adopted.” Id . We do not address this legal question in detail, however, since it is not dispositive of the issues presented. Regardless of the applicability of § 5. 19, a sizeable portion of the proposed wastewater a nd stormwater systems lie within the applicable portion of the Co nservation District.10

parcel in that District. See Bylaws § 2.2 (definin g “land development” as a change in use of any land). Applicant argues in opposition that this wo uld create an absurd result, contending that the Bylaws cannot be read to prohibit land development on an undersized portion of a split lot. This argument fails to appreciate the effect of locating a lot in multiple zoning districts, and as a result, it must be rejected. The general rule regarding split lots is that such a lot must comply with the zoning district requirements for each district occupied. In re Win djammer Hospitality , 172 Vt. 560, 561 (2001) (mem.) (citing McLaughry v. Town of Norwich , 140 Vt. 49, 54–55 (1981)). Contrary to Applicant’s criticism of this legal analysis, the s ize of the entire lot is the focus of our analysis, not simply the portion of the lot within the respec tive districts. Id . at 562 (allowing a development applicant to “make a passive use of the more restrictive zone to meet zoning requirements for active improvements planned for th e less restricted portion of the lot”). In fact, much like in Windjammer , Applicant’s development plan relies upon the subd ivision of an existing “split lot, which is currently in complian ce with the [Town’s] bylaws, rendering one of the resulting lots noncompliant.” Id . Applicant here is more accurately accused of a g reater zoning transgression, since its development proposa l will result in two reconfigured lots, both of which will be noncompliant with the minimum lot siz e requirements of the Conservation District: the to-be-developed parcel will contain 9 .04± acres, and the Burdicks will retain a lot

that is reduced in size to 17.73± acres. 7 A split lot that fails to meet the dimensional requ irements for all zoning districts occupied is considered a nonconforming lot. See, e.g., Myer s 2-Lot Subdivision Final Plat , No. 121-6-09 Vtec, slip op. at 3–4 (Vt. Envtl. Ct. Apr. 28, 2010 ) (Durkin, J.) (denying a subdivision application because a portion of the resulting spli t lot was undersized for the district in which it was located). A nonconforming, undersized lot may not be developed unless it qualifies for the limited exemption afforded preexisting undersized l ots. See In re Mastelli Const. Application

,

7 Applicants provide a helpful table that summarize s the lot configurations, before and after the prop osed lot line adjustments. See Applicant’s Reply Mem. at 18 (Mar . 22, 2010). Applicants appear to misconstrue Opponents’ leg al analysis, now adopted by this Court, asserting t hat such a ruling would result in a prohibition of all develop ment on all lots. Id . at 18. Again, we afford inclusion of all acreage in a lot when considering whether that lot conforms, as it must, to dimensional requirements f or all zoning districts which the property occupies. Bylaws § 3. 5. Applicant further complains, incorrectly we con clude, that Opponents’ suggested analysis renders all undersize d lots undevelopable. Our analysis here does not s upport such an erroneous conclusion, since the Bylaws allow for the development of preexisting, undersized lots. Bylaws § 5.7. The deficiency in Applicants project plans are that they rely upon the new creation of undersized lots . We cannot authorize development that creates a nonconformity.11

No. 2009-072, slip op. at 2 (Vt. Sept. 4, 2009) (un pub. mem.) (noting that small lots are considered nonconforming uses, and one “goal of zon ing is to phase out such uses” (quoting Drumheller v. Shelburne Zoning Bd. of Adjustment , 155 Vt. 524, 529 (1990))). This exemption is found in Bylaws § 5.7, which stat es that undersized lots existing at the time of the Bylaws’ enactment “may be developed for the purposes permitted in the district in which it is located, even though not conforming to minimum lot size requirements,” if the lot is larger than one-eighth of an acre and forty feet wi de. Bylaws § 5.7. However, the record before

us does not indicate that Applicant’s 9.04-acre project site q ualifies as a preexisting lot. Quite simply, Applicant’s 9.04-acre project site does not yet exist. Certain events must first occur before Applicant’s 9.04-acre project site is create d: the boundary line between the Burdick and Llona properties must be adjusted; the 6.54 acres m ust be transferred from Ms. Burdick to the Llonas; and the Burdicks must be allowed to retain a lot that is even smaller and less compliant than the land they once held. Not only does the project site not yet exist, but t he nonconformity with the Conservation

District’s minimum lot size is a direct result of t he proposed boundary adjustment and land transaction. To explain, the Llonas’ existing 2.5- acre parcel contains no property in the Conservation District, but when Ms. Burdick transfe rs 6.54 acres to the Llonas, a portion of that

land will lie in the Conservation District. This t ransaction will therefore create a 9.04-acre split lot that contains a nonconforming, undersized quant ity of land in regards to the Conservation District. With this in mind, we cannot sustain a f inding that Applicant’s project site is a preexisting small lot and thereby entitled to exemp tion from the minimum lot size requirements for this zoning district. Accordingly, we conclude that the proposed 9.04-acr e project site, if allowed to be created, would constitute a lot that fails to confo rm to the applicable zoning requirements. Our analysis here doesn’t depend upon the nature of the development to occur on the lot, nor does it depend upon the proper classification of the suppor t systems that would be constructed upon the portion of the lot that is within the Conservation District. Rather, our analysis begins and ends with a determination that the to-be-reconfigured lo t will be undersized and therefore nonconforming. To authorize this lot to be develop ed would be to allow a disregard of the applicable zoning regulations, the general purpose of which is to cause the eventual elimination of nonconformities, and not to encourage them. See In re Richards , 2005 VT 23, ¶ 6, 178 Vt.12

478 (mem.) (“[O]ne goal of zoning is to phase out n onconforming uses, including undersize[d] lots.”). In reaching this conclusion, we specifically reject Applicant’s characterization of this legal analysis as resulting in an absurd prohibitio n of any development of a split lot, simply because a portion of it lies in a more restrictive district. Contrary to Applicant’s assertion, preexisting, undersized lots may be developed when they otherwise conform to the applicable district regulations. Bylaws § 5.7. Further, a l andowner can develop portions of a preexisting split lot that meet the size requirements for the d istrict the development is to occupy. See e.g., McLaughry v. Town of Norwich , 140 Vt. 49, 54–55 (1981) (noting that the split l ot could be used “for two different purposes; that is, that par t of it which lies within the business district could be used for business purposes, and that part of the property lying within the residential district could be used for residential purposes”). A landowner can also aggregate the portions of a split lot occupying other zoning districts to cal culate the split lot’s total size, thereby satisfyi ng any size requirements for the portion to be develop ed. See, e.g., Windjammer , 172 Vt. at 562 (“[U]se of land in another zoning district . . . so lely to meet dimensional requirements is considered a permissible abstract or passive use wh ere . . . it appears both zoning districts permit the proposed active use.” (quoting Boulter Bros. Co nst. Co. v. Zoning Bd. of Appeals of Norfolk

, 697 N.E.2d 997, 999 (Mass. App. Ct. 1998))). We also note in closing that the Town is not prohib iting Applicant from locating a wastewater system off-lot, which Applicant contends is prohibited. See Guidance Related to the Wastewater System and Potable Water Supply Rules, V t. Dept. of Conservation, Wastewater Mgmt. Div., at 2 (Sept. 29, 2007), available at http://www.anr.state.vt.us/dec/ww/protection/ guidance2007-01.universaljurisdiction.pdf. The Byl aws merely require any wastewater system to be located on a sufficiently sized lot. See Byl aws § 4.3(C)(1) (establishing a minimum lot size). Further, Applicant’s wastewater system is p roposed to be located on the project site, not

off-lot. Based on the foregoing, we conclude that Applicant may not proceed with the proposed land development in the Conservation District becau se the to-be created lot does not conform to the minimum size requirements for that district. A s a result of this conclusion, we need not consider whether Applicant’s proposed stormwater an d wastewater systems are permissible in

the Conservation District. Even if we determined t hat such use is permitted in the Conservation13

District, no land development may occur on a to-be- created lot that is undersized. We therefore

GRANT Opponents and DENY Applicant summary judgment on this issue.

Conclusion For all the reasons more fully discussed above, we GRANT Applicant summary judgment with regard to the first and second issues raised in the pending cross-motions. In so doing, we conclude that Applicant’s proposed retail store is permitted in the HC District, whether or not it is also a convenience store, and that App licant’s proposed drive-in facility is allowed as part of a restaurant that is permitted in the HC Di strict. Opponents’ motion for summary judgment on these issues is therefore DENIED

. On the other hand, we GRANT Opponents summary judgment with regard to Applicant’s request for conditional use approval fo r its proposed development, since the development is proposed for a to-be-created lot tha t does not conform to the minimum size requirements for all zoning districts in which it i s located. Accordingly, we conclude that Applicant’s proposed project, as currently configur ed, cannot receive conditional use approval as

a matter of law. A Judgment Order accompanies this Decision. This c ompletes the current proceedings before this Court concerning these appeals.

Done at Newfane, Vermont, this 16th day of July 201 0.

___________________________________ Thomas S. Durkin, Environmental Judge