In re Champlain Oil Co.

Citation93 A.3d 139,2014 VT 19
Decision Date21 February 2014
Docket NumberNo. 12–405.,12–405.
CourtUnited States State Supreme Court of Vermont
PartiesIn re CHAMPLAIN OIL COMPANY CONDITIONAL USE APPLICATION.

OPINION TEXT STARTS HERE

James A. Dumont, Bristol, for Appellants.

Liam L. Murphy and Damien J. Leonard of Murphy Sullivan Kronk, Burlington, for Appellee.

Present: REIBER, C.J., SKOGLUND, J., and ZONAY, Supr. J. and BURGESS, J. (Ret.), Specially Assigned.

SKOGLUND, J.

¶ 1. Twelve individuals and the Ferrisburgh Friends of Responsible Growth, Inc. appeal from the Environmental Division's affirmance of the granting of a conditional use zoning permit to Champlain Oil Company. The permit allows applicant Champlain Oil, appellee here, to construct and operate a gasoline and diesel station with a retail convenience store and a drive-through food facility, including parking lot and overhead canopies for the gas and diesel pumps. Appellants argue that the proposed uses for a convenience, retail and drive-in facility are explicitly prohibited by the Ferrisburgh zoning ordinance and will not be consistent with the town plan. Other issues on appeal will be discussed in the course of this decision. We affirm.

¶ 2. Our review of the environmental court's findings of fact and the conclusions underlying its decision is deferential. In re Route 103 Quarry, 2008 VT 88, ¶ 4, 184 Vt. 283, 958 A.2d 694. We will not disturb its factual findings unless, taking them in the light most favorable to the prevailing party, they are clearly erroneous. In re Shantee Point, Inc., 174 Vt. 248, 263, 811 A.2d 1243, 1255 (2002). We will uphold the court's conclusions as long as they are reasonably supported by the findings. In re Miller Subdivision Final Plan, 2008 VT 74, ¶ 13, 184 Vt. 188, 955 A.2d 1200. We are guided in our decision by the fact that land use regulations are in derogation of private property rights and must be construed narrowly in favor of the landowner. In re Toor, 2012 VT 63, ¶ 9, 192 Vt. 259, 59 A.3d 722; In re Weeks, 167 Vt. 551, 555, 712 A.2d 907, 910 (1998).

¶ 3. The proposed project site is on a parcel of land along Route 7, approximately one half-mile south of the Ferrisburgh town center. The site will cover approximately 9.7 acres after certain land sale transactions are completed as required.1 The project will be located in two zoning districts: the Highway Commercial District (HC District) and the Rural Agricultural District (RA District).2 As proposed, the site will have in excess of 1153 feet of frontage on state highway Route 7, described by the court as a major north/south corridor in the Champlain Valley for commercial, industrial, retail, and residential travel. The court noted that the commercial district is host to many commercial developments, such as a motel, a marine supply store, a motorsports store, a gas station and convenience store and a “Dock Doctors” enterprise. The court found that, while the area contained some private residences, the area presented as more commercial in character. It further found that the building area of the project, if developed, would not exceed the physical space encompassed by several of the nearby commercial properties.

¶ 4. We first address appellants' claim that the project and its proposed uses fail to conform to the development standards discussed in the Ferrisburgh Town Plan and that the court erred in deciding that the town plan was aspirational and not intended to be regulatory. Section 1.1.(C) of the town plan, titled “Interpreting the Plan,” contains the following: “Goals are long-range aspirations that serve as a broad planning and developmentguide. A goal describes the end condition that is sought.” Appellants' claim of error is directed to § 4.3 of the town plan, which focuses on land use areas and policies. That section begins by stating that “Ferrisburgh's land use plan is intended to guide future growth and development, and protect the town's unique resources.” Section 4.3.(G) discusses commercial highway areas, including the area of the proposed project south of the town center. That section states that [a]ll uses in this area should be conditional, and include only small-scale commercial enterprises and mixed uses typical of a 19th century highway crossroads area.”

¶ 5. The environmental court concluded that the purpose provisions of the town plan consisted of aspirational language and that it did not impose a regulatory restriction. We find no error in this reasoning.3 While the appellants emphasize the concept of a typical nineteenth century highway crossroads area, the fact is that the section merely suggests that uses in the HC District “should” include only small-scale commercial enterprises, not that they must. And, as the court wrote: [w]e have difficulty interpreting this portion of the Town Plan [as creating a regulatory restriction], since it appears to conflict with the development that the Town has already allowed to occur in the Commercial Highway Areas.” We agree with the court that the town plan is designed to guide applicants and decisionmakers on a project's general characteristics but does not establish regulatory standards with which to judge the proposed project. In re JAM Golf, LLC, 2008 VT 110, ¶ 13, 185 Vt. 201, 969 A.2d 47 (“Zoning ordinances must ‘specify sufficient conditions and safeguards' to guide applicants and decisionmakers. We will not uphold a statute that ‘fail[s] to provide adequate guidance.’ (quoting Town of Westford v. Kilburn, 131 Vt. 120, 122, 125, 300 A.2d 523, 525, 526 (1973))). This is precisely how the town plan says it should be interpreted.

¶ 6. We next address appellants' claim that the proposed convenience store and restaurant drive-up service window are not permitted by the town's zoning ordinances. Section 3.5 of Article III of the zoning ordinances states: “any use not expressly permitted in a district is prohibited in that district.” For each zoning district the zoning ordinance sets forth a list of uses that are permitted as of right or as conditional uses. Several uses are listed as permitted in the HC District as conditional uses, including gas stations, carwashes, churches, freight or trucking terminals, restaurants, bars and retail stores. However, appellants point to the failure of the HC District description to specifically list “convenience, retail,” “retail sales,” “drive-in facility” and “accessory use” as permitted uses.4 They derive the titles of these uses from Article II of the zoning bylaws, a definitional section. So, they argue, while the list of permitted uses for the HC District contains “retail store,” neither “convenience, retail” nor “retail sales” are included as permitted uses.5

¶ 7. The grammatical construction of the definitions in the zoning bylaws suggests that they were drafted and added to the definitional section at different times. That being said, zoning bylaws are interpreted according to the general rules of statutory construction. In re Casella Waste Mgmt., Inc., 2003 VT 49, ¶ 6, 175 Vt. 335, 830 A.2d 60 (citing In re Weeks, 167 Vt. at 554, 712 A.2d at 909). We adopt a construction that implements the ordinance's legislative purpose and, in any event, will apply common sense.” In re Lashins, 174 Vt. 467, 469, 807 A.2d 420, 423 (2002) (mem.) (quotation and citation omitted). Nothing in the bylaws suggests that the definitions were intended to proscribe the scope of the permitted uses in a particular zoning district. Further, § 4.4, which governs the HC District, includes the following in the list of conditional uses: [o]ther similar uses which meet intent of purpose statement upon finding by the Zoning Board that such use is of the same general character as those permitted.” We agree with the court below when it found that “a ‘convenience retail’ store appears to be merely one type of ‘retail store’ and was a conditional use in the HC District.

¶ 8. This is not to say that the examples provided in the definitions are not important to the consideration of permitted uses. The fact that the bylaws definition of “retail store” specifically excludes any drive-in facility cannot be ignored. The zoning board of adjustment (ZBA) approval for the project included a separate condition prohibiting the use of a ‘drive-thru’ component” to the proposed restaurant but authorizing a ‘drive-in’ component.” The environmental court noted that it was conducting an evidentiary hearing “anew” and its “legal analysis ... without regard to the conditions that the ZBA imposed and that Applicant has appealed.”

¶ 9. The court found that the proposed restaurant would have “a drive-up service window accessed by a drive-through lane,” which it described as “a typical ‘drive-through’ at a fast-food restaurant, where customers remain in their vehicles and review a menu-board at the rear of the building before ordering through a microphone. They then proceed to the drive-up service window where they stop, pay for the order, and receive their food.” It then decided that “a drive-in facility is a valid component to a permissible restaurant” and noted that [t]here is no indication that the drafters intended to prohibit restaurants in the HC District from incorporating a drive-in facility.” The court further stated that it did not “comprehend” a distinction between a drive-through and a drive-in restaurant and voided the ZBA condition, thus leaving in place the restaurant's ability to offer a drive-through element.

¶ 10. However, this Court does comprehend a distinction, remembering the days when servers on roller skates brought food to your car, hanging ingenious trays from your car window—ergo, a “drive-in” restaurant. What we cannot discern is why the bylaw definition of a “retail store” specifically excludes “any drive-in facility” and why the ZBA decided to prohibit a “drive-through” and allow a “drive-in” for the project.

¶ 11. At the hearing below, applicant posited that the proposal does not involve a drive-in facility; rather, the project involves a ...

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