In re Appeal of Wesco, Inc.

• Decision Date: 12 June 2006
• Docket Number: No. 2005-138.,2005-138.
• Citation: 2006 VT 52,904 A.2d 1145
• Parties: In re APPEAL OF WESCO, INC.
• Court: Vermont Supreme Court

904 A.2d 1145

2006 VT 52

In re APPEAL OF WESCO, INC.

No. 2005-138.

Supreme Court of Vermont.

June 12, 2006

COPYRIGHT MATERIAL OMITTED

Present REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND, BURGESS, JJ.

ENTRY ORDER

¶ 1. The City of Barre appeals from decisions of the Vermont Environmental Court granting permits to Wesco, Inc. to enable it to convert a full-service gasoline station, with automobile repair service, to a convenience store and self-service gasoline operation. The City argues that the court's decisions are inconsistent: (1) with an earlier decision of this Court providing that the development proposals were modifications of a preexisting nonconforming use into another nonconforming use; (2) with 24 V.S.A. § 4406(1) because Wesco seeks to both develop a preexisting undersized lot and do so with a conditional use permit; (3) with the Barre zoning ordinance which prohibits increased use of a noncomplying structure; (4) with 24 V.S.A. § 4408(b) with respect to the discontinuance of nonconforming uses; (5) with the Barre zoning ordinance by allowing an additional structure — a canopy over the gas pumps — in a setback area; and (6) with the requirement for conditional use approval that the court consider the master plan and the economic plan. We conclude that the court acted within its discretion on each of these issues and affirm.

¶ 2. This case involves an eleven-year conflict over Wesco's plan to convert an existing gasoline service and repair station at 169 Washington Street into a convenience store that sells gasoline. In 2001, this Court decided some of the issues that had emerged, Simendinger v. City of Barre, 171 Vt. 648, 770 A.2d 888 (2001) (mem.), and remanded the case to the Environmental Court for further action. That decision concluded in Wesco's favor the first of three positive rulings that were required for the project — approval from the planning commission, or the Environmental Court on appeal from the planning commission, "under specific criteria for nonconforming or conditional uses in a planned residential district." Id. at 648, 770 A.2d at 890. This left two other necessary approvals: (1) approval for the conditional use by the zoning board of adjustment, or the Environmental Court on appeal from the zoning board; and (2) site plan approval by the planning commission or the Environmental Court on appeal from the planning commission.¹ On these approvals, this Court held that the Environmental Court acted prematurely in granting conditional use and site plan approval before these issues were addressed on the merits by the zoning board and planning commission respectively. Id. at 652, 770 A.2d at 894.

¶ 3. We did, however, reach the merits of the Environmental Court's conditional use review in one respect because the decisions involved a determination of how the development proposal should be considered under the Barre zoning ordinance. The Environmental Court ruled that the proposal involved a modification of a gasoline station — a use prohibited in the applicable district under the ordinance but preexisting the zoning scheme — into a neighborhood grocery store — a use conditionally permitted in the district. In order to reach this conclusion, the court had to account for the fact that Wesco would still sell gasoline. It did so by accepting Wesco's argument based on its proposal to replace the four preexisting gas pumps with one "pump" that distributes gasoline through four outlets. Because the Barre ordinance defines a "gasoline station" as having more than one pump or dispenser, Wesco argued, and the court accepted, that with the proposed equipment the development would no longer be a gasoline station. Because it was not a gasoline station, the court ruled it could be a neighborhood grocery store that could be approved as a conditional use.

¶ 4. We rejected the Environmental Court's construction of the ordinance as applied to the development proposal. We ruled that despite the change in equipment to dispense the gasoline, the proposal still involved a gasoline station. Id. at 651, 770 A.2d at 893. Thus, we held that the proposal could not be viewed as involving only a neighborhood grocery store: "Accordingly, we conclude that the court erred in evaluating the proposal as a conditional-use neighborhood grocery store, rather than as a proposal to alter a preexisting nonconforming service and gasoline station to another nonconforming use within a planned residential district." Id. ¶ 5. On remand, the Environmental Court then remanded to the Barre zoning board and planning commission to remedy the procedural error. When these boards again denied conditional use and site plan approval, Wesco again appealed, and the court again reversed each decision. The court responded to this Court's decision on the nature of review by holding that the proposal involved two separate uses on the same lot and that multiple uses are allowed by the Barre zoning ordinance. The first use is the gasoline station, which is a preexisting nonconforming use that Wesco's development proposal would modify. The second use is the convenience store which is a neighborhood grocery store that can be approved as a conditional use in the district. Thus, the court held that if the two separate uses each met the applicable zoning requirements, the overall development proposal could be approved. It went on to approve the development proposal, with conditions, as discussed below.

¶ 6. The City challenges the court's power to approve the development proposal on seven grounds. First, the City argues that the Environmental Court's decision is inconsistent with our decision, which did not separate the uses between gasoline sales and the sale of food items and related products in the convenience store. In response, Wesco argues that we should follow the approach of the Environmental Court or, alternatively, rule that the proposal still involves only a gasoline station so that no permit is needed.

¶ 7. The Environmental Court dealt with the alleged inconsistency between our earlier decision and its view of the proper construction of the ordinance:

Much confusion appears to have resulted from both parties' unstated assumption that only one use may be located on the lot in question. However, unlike many towns' zoning regulations, nothing in the Barre City zoning regulations limits the use of a lot to a single use category. . . .

. . . .

The parties did not have the occasion to discuss or point out this unusual feature of the Barre City zoning regulations in their presentations to the Vermont Supreme Court that resulted in the Supreme Court's memorandum decision in Simendinger v. City of Barre, 171 Vt. 648, 770 A.2d 888 (2001), in which the Court stated that the Environmental Court "erred in evaluating the proposal as a conditional use neighborhood grocery store, rather than as a proposal to alter a preexisting nonconforming service and gasoline station to another nonconforming use within a planned residential district." (Emphasis added.) In fact, the proposal must be evaluated both as a conditional use neighborhood grocery store (in an existing nonconforming building) and as a proposal to alter a preexisting nonconforming service and gasoline station to another nonconforming use.

We defer to the Environmental Court's interpretation of a zoning ordinance "unless it is clearly erroneous, arbitrary, or capricious." In re Cowan, 2005 VT 126, ¶ 7, 179 Vt. ___, 892 A.2d 207 (mem.).

¶ 8. Although the City debates the application of the court's analysis to this case, it does not debate the general proposition that the Barre ordinance generally allows multiple uses on a single lot as long as each of the uses complies with the ordinance. Thus, we are pointed to no part of the ordinance that is inconsistent with the court's generalization, and we have found none. We do not find the court's construction inconsistent with our holding in Simendinger, which rejected the court's earlier holding that the Wesco proposal could be evaluated solely as a neighborhood grocery store use under the applicable conditional use standards. We cannot find the court's construction "clearly erroneous, arbitrary, or capricious." In re Cowan, 2005 VT 126, ¶ 7, 892 A.2d 207.

¶ 9. The City argues, however, that the court's generalization that multiple uses can be allowed does not apply here because the ordinance prohibits adding gasoline sales to other retail uses. This argument is based on the ordinance's definition of retail store:

RETAIL STORE: Customary use of enclosed restaurant, cafe, shop and store for the sale of goods at retail, personal service shop and department store, excluding any drive-up service, freestanding retail stand, gasoline service and motor vehicle repair service, new and used car sales and service, trailer and mobile home sales and service.

Barre Zoning Ordinance § 5.2.04(a). The City argues that this definition means that the ordinance "prohibits the sale of gasoline at retail establishments." The City reaches that conclusion based on the following logic: (1) under the ordinance, the only use the convenience store can fit within is as a neighborhood grocery store; (2) a neighborhood grocery store is a retail store as defined above; (3) under the definition, a retail store cannot sell gasoline.

¶ 10. We note that the City is relying only on a definition of a retail store that nowhere precludes the uses excluded from the retail store definition. Although we agree with steps (1) and (2) of the logic of the City's argument, step (3) is debatable. On this third step, the Environmental Court reached an alternative construction of the effect of the definition of a retail store. The court held that the exclusions from the definition are present because external components — sale of gasoline, drive-up service, etc. — are outside the "enclosed" store and require separate approval. Under this construction, a retail store can sell...