STATE OF VERMONT

ENVIRONMENTAL COURT

Appeal of Champlain Oil 

Company, Inc.

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Docket No. 239-10-02 Vtec

Decision and Order on Cross-Appellants= Motion for Partial Summary Judgment

 Appellant-Applicant Champlain Oil Company, Inc. appealed from conditions imposed on its 

project in a decision of the Planning Commission of the Town of Colchester granting site plan 

approval. Cross-Appellants Sisters & Brothers Investment Group and R.L. Vallee, Inc. appealed 

from the grant of site plan approval in the same decision. Appellant is represented by John W. O=

Donnell, Esq.; Cross-Appellant R.L. Vallee is represented by Jon Anderson, Esq.; CrossAppellant Sisters & Brothers Investment Group is not taking an active role in the appeal; the 

Town is represented by Richard C. Whittlesey, Esq.

 Cross-Appellant R.L. Vallee has moved for summary judgment on Question 1 of its later-filed 

Statement of Questions: whether Appellant-Applicant= s proposed project represents a legal use 

of the site it proposes to acquire. The following facts are undisputed unless otherwise noted. All 

section numbers refer to the Zoning Regulations unless the Subdivision Regulations are 

specifically cited.

 This appeal relates to a 13.91-acre parcel of vacant land on the east side of Route 7 and 

combined Routes 2 and 7, near and to the east of Exit 17 of Interstate 89, across Route 7 from its 

intersection with Route 2. The property was formerly owned by A.G. Anderson, Inc. and is now 

owned by Carroll Concrete - VT, Inc.

 Prior to adoption of a zoning ordinance amendment on September 16, 2001, the property was 

located in a Commercial zoning district; after the effective date of that ordinance on October 8, 

2001 it was located in the General Development 4 and the General Development 4 Commercial 

Overlay zoning districts. The property slopes gently away from the road from approximately 200 

feet, and then slopes steeply down towards the east, towards Allen Brook which runs across the 

easterly end of the property. Cross-Appellant R.L. Vallee operates a gas station on property 

owned by Cross-Appellant Sisters & Brothers Investment Group at the northwestern corner of 

the intersection of Route 2 and Route 7, also on the east side of Interstate 89.

 On May 14, 2001, Appellant-Applicant (as applicant) and A.G. Anderson Co., Inc. (as 

landowner), through their consultant Trudell Consulting Engineers, Inc., submitted a "Sketch 

Plan Application Form1" to the Planning Commission, together with the correct filing fee for 

sketch plan review. The project description described the project as follows:
The project includes a proposed restaurant, gas station/convenience store and a third building not 

yet designated (possible office). The project includes shared access with the O= Brien Brothers in 

accordance with the Town Plan. It also includes shared access with the Arbortech property (HCL 

currently proposing apartments).

 Most importantly for the present analysis, that application form states that no lots are being 

created, and does not fill in any sizes for individual lots, though it states in parentheses: A

possible 2 lots if Town Road goes in to O= Brien= s land;@ that is, if a town road were to divide 

the entire property in two. The sketch plan shows proposed building footprints, parking lots, and 

retaining walls, and shows an 80-foot-wide road right of way entering the property directly 

across from the intersection of Route 2 with Route 7, but does not show subdivision lot lines, 

although the portions of the property associated with the three buildings are labeled Lot 1, Lot 2 

and Lot 3, from south to north. The sketch plan shows two alternative locations for a road to be 

constructed from the entrance drive across the property to the O= Brien property to its east. 

 The sketch plan shows a gasoline station and convenience store to be located on the portion of 

the property marked as > Lot 2,= diagonally across the intersection from Cross-Appellants=

gasoline station. It contains a secondary entrance from the northbound lane of Route 7 onto the 

gasoline station property, as well as access via the main right-of-way to the property as a whole. 

The sketch plan shows a restaurant to be located on the portion of the property marked as > Lot 

1,= directly across the intersection from Cross-Appellants= gasoline station, and a > building= to be 

located on the portion of the property marked as > Lot 3.=

 A > sketch plan= application is not provided for at all in the Town= s Zoning Regulations or in 

connection with an application for a zoning permit. A > sketch plan= application is only provided 

for in the Town= s Subdivision Regulations, ' 201, to be submitted by a > subdivider of land= to 

the town planner prior to submitting an application for subdivision approval, A for the purpose of 

classifications and preliminary discussion@ of the subdivision with the Planning Commission. In 

practice in the Town of Colchester, the sketch plan has also been used (at least by the interim 

town planner involved in examining the present proposal) to make a preliminary examination of 

a subdivision project that would also have to undergo site plan approval.

 No formal decision about a subdivision is made by the Planning Commission on the basis of 

the sketch plan application; it is used to identify problems and to determine what additional 

information will be necessary to complete the subdivision application. Some time in June 2001, 

the project consultants for Appellant-Applicant= s proposal must have inquired regarding the 

Planning Commission meeting on the sketch plan which was scheduled for August 7, 2001, 

because on June 29, 2001, the town planner wrote referring to the August 7, 2001 meeting, and 

stated in response to such an inquiry that:

The proposed project will require subdivision approval for the subdivision of the land and Site 

Plan Review for the separate buildings. The subdivision and Site Plan Review are two separate 

reviews. The sketch plan review is a preliminary review of the project for both the Site Plan and 

the subdivision review, no formal decision is made at this time.
 The state statute governing treatment of applications filed during the pendency of a zoning 

amendment change was amended during the 2001 legislative session, effective July 1, 2001. For 

zoning changes proposed as of and after July 1, 2001, all applications filed within a 150-day 

period after the notice of a public hearing to amend the zoning regulation must be reviewed 

under the proposed amendment. 24 V.S.A. ' 4443(d). No facts have been presented as to when 

Appellant-Applicant= s consultant or the Town= s zoning and planning officials became aware of 

this change in state law.

 The consultant responded to the interim town planner= s June 29, 2001 letter on July 2, 2001, 

stating that the applicant had A submitted a Sketch Plan application to subdivide2the [then-

]Anderson property . . . into three lots and to develop these lots as a gas station/convenience 

store, restaurant and third building site . . . (probably office).@ The letter stated that it was A

critical that our Sketch Plan application be accepted for both the Subdivision approval process as 

well as the Zoning Site Plan Review approval process.@ The consultant= s letter was addressed to 

the interim town planner and referred to statements from the zoning administrator suggesting that 

the project could or would be considered under the then-current zoning regulations. It 

specifically requested that the July 2, 2001 letter be accepted to confirm A that the gas 

station/convenience store and restaurant will be reviewed under current zoning.@

 The zoning administrator completed a project review sheet on August 3, 2001, for the project 

as submitted on the May 14, 2001 sketch plan, describing the project as A gas station/store, 

restaurant.@ The project review sheet showed that insufficient information was presented in the 

sketch plan regarding lot size (noting that no lot lines were shown), building heights, signs, and 

landscaping (noting that no landscaping plan had been provided), that the application did not 

conform with then-current regulations as to parking in the front yard setback, and that it did 

conform with then-current regulations as to zoning objective, permitted uses, lot width and lot 

coverage.

 The minutes of the Planning Commission= s August 7, 2001 meeting on the sketch plan, if it 

was held, have not been submitted to the court in connection with this appeal. No subsequent 

preliminary or final subdivision application was submitted to the Planning Commission for its 

consideration.

 On August 16, 2001, the Selectboard issued notice of a public hearing on proposed 

amendments to the zoning regulations and map. In early September, 2001, the consultant and the 

zoning administrator discussed the project, and on September 10, 2001, the zoning 

administrator/director of planning and zoning wrote to the consultant warning him that, A in order 

to preserve your client= s rights under current zoning, you must submit a site plan application 

prior to October 13, 2001;@ that as of September 10, 2001 the Town had not yet received a site 

plan application, and that the application must be submitted for the entire parcel as the 

subdivision lots had not yet been created.

 The Selectboard held its hearing on the zoning amendments and they were approved on 

September 18, 2001, with an effective date of October 8, 2001. These amendments included the 

establishment of the General Development 4 zoning district and the General Development 4 

Commercial Overlay zoning district for the area near the Exit 17 intersection of Interstate 89. 
Under these amendments, no > new gas sales use= may be located within 3,000 feet of an existing 

gas sales use on the same side of Interstate 89. ' 2101.3(c). Under the former Commercial 

zoning district regulations, gasoline service stations had been a permitted use with special 

required conditions, and had no such restrictions as between a new and an existing use. ' 1102.5.

 On October 3, 2001, Appellant-Applicant (as applicant) and Carroll Concrete - VT, Inc. (as 

landowner), through the same consultant, Trudell Consulting Engineers, Inc., submitted a A Site 

Plan Application Form@ to the Planning Commission. The project description on that form 

described the project as follows: 

The project is a proposed gas station and convenience store on 13.91 acres. There are four 

proposed pumps in two islands under a canopy, also included is an 18 seat food court/deli. The 

Master Plan is to subdivide this land into 3 lots with the other two future lots serving a restaurant 

and possibly a medical health care building/office.

 It is apparent from this project description that the subdivision of the property had not yet 

occurred and was not then being proposed. The site plan application was submitted for the entire 

13.91-acre parcel. The application included a landscaping plan, a lighting plan, and a narrative 

showing how the project met certain of the site plan review criteria of ' 1803.2. It was followed 

on October 4, 2001 with a letter enclosing a > wastewater design brief= for the site, stating that the 

building floor plans would be submitted by October 8, 2001, and making the request A that the 

Commission deem the Site Plan Application complete under the old zoning@ regulations. The site 

plan application was not complete at any time prior to October 4, 2001.

 The Planning Commission appears to have accepted the site plan application as complete as 

of October 8, 2001, and proceeded to review it under the old zoning regulations as a permitted 

use in the Commercial zoning district. It was approved with conditions on September 30, 2002 

and this appeal followed.

 If the site plan application had been submitted and deemed to have been complete before 

August 16, 2001, the date of notice of the proposed zoning amendments, it could have been 

reviewed under the former zoning regulations. However, 24 V.S.A. 4443(d) as amended 

effective July 1, 2001, prevented the Town from allowing4applications submitted after that date 

from being reviewed under the former zoning regulations, even though the effective date of the 

new regulations did not occur until October 8, 2001.

 To obtain site plan approval, a project must comply with all bylaws of the Town, including 

the Zoning Regulations. ' 1803.2(l). Appellant-Applicant= s proposed gasoline station would be 

located on the same side of Interstate 89 as and within 3,000 feet of an existing gasoline station 

and therefore fails to comply with ' 2101.3(c) of the amended zoning regulations. It therefore 

cannot qualify for site plan approval as the project is proposed in the present application. 

 Appellant-Applicant argues that its May 14, 2001 sketch plan application should be treated as 

a final site plan approval application or zoning permit application for the purposes of vesting its 

right to consideration under the prior regulations. It cannot be so treated. First, even if it were to 
be treated as an application for site plan approval, rather than an application for sketch plan 

consideration for subdivision approval, it was not complete as of the May 14, 2001 date. Under 

the law as it applied before the amendment to 24 V.S.A. ' 4443(d), to vest any rights to 

consideration under the old regulations, the May 14, 2001 application would have had to have 

been a complete site plan application filed in good faith. The Zoning Administrator= s August 3, 

2001 project review sheet shows that it was not complete as of that date, just under two weeks 

before the August 16, 2001 cut-off for consideration under the old regulations. Even AppellantApplicant= s own letter of October 4, 2001 recognized that its site plan application was not 

complete until some time between October 4, 2001 and October 8, 2001. Because AppellantApplicant filed its site plan application on or about October 3, 2001, under 24 V.S.A. ' 4443(d) 

it must be reviewed under the amended regulations. 

 Moreover, a A sketch plan application@ only triggers subdivision review, and is not even 

considered a complete subdivision application. Without an associated complete application for 

site plan approval, the mere filing of a sketch plan application cannot vest a right either to site 

plan review or to a zoning permit under the regulations in effect at the time of the sketch plan 

application. See, In re Appeal of Taft Corners Assocs., 171 Vt. 135, 140 (2000).

 Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that CrossAppellant= s Motion for Summary Judgment is GRANTED. It appears to the Court that this 

decision effectively concludes both the appeal and the cross-appeal. On or before noon on 

February 4, 2003, the parties shall each file with the Court and the other parties a statement in 

writing regarding whether any issues remain to be resolved by this Court in these appeals. If no 

such issues remain, this decision will become final on February 6, 2003; if any party believes any 

issues remain, we will hold a brief conference in person at the Costello Courthouse at 9 a.m. on 

February 6, 2003, to discuss the issues and the scheduling of further proceedings.

 Done at Barre, Vermont, this 27th day of January, 2003.

___________________

Merideth Wright 

Environmental Judge

Footnotes

1 Appellant-Applicant describes this application as an application for a zoning permit. It is not 

an application for a zoning permit, as such an application must be made to the zoning 

administrator. §1903 of the Zoning Regulations.

2 However, neither the May 14, 2001 sketch plan application nor the sketch plan itself shows 

lot lines for a subdivision, and the sketch plan application states that "0" lots are being created. If 
it was intended as a Planned Unit Development (PUD), which requires review was a subdivision 

under Article XVI of the zoning regulations, the application did not so state.

3 As of the date of that letter, the hearing on the proposed zoning amendments had been 

scheduled for September 11, 2001, making the effective date of the amendments October 1, 

2001, had they been approved at that hearing. Due to the events of September 11, 2001, the 

hearing on the zoning amendments was postponed to September 18, 2001.

4 We do not here decide whether Appellant-Applicant has any cause of action against the 

Town with regard to the Town officials’ advice to file the applications before October to be 

considered under the old regulations. If there is such a cause of action, it would arise beyond the 

jurisdiction of this court.