In re Grp. Five Invs. Cu Permit

• Citation: 93 A.3d 111,2014 VT 14
• Decision Date: 14 February 2014
• Docket Number: No. 13–009.,13–009.
• Court: United States State Supreme Court of Vermont
• Parties: In re GROUP FIVE INVESTMENTS CU PERMIT.

93 A.3d 111

2014 VT 14

In re GROUP FIVE INVESTMENTS CU PERMIT.

No. 13–009.

Supreme Court of Vermont.

Feb. 14, 2014.

James A. Dumont, Bristol, for Appellants.

David H. Greenberg, Burlington, for Appellee.

Present: REIBER, C.J., DOOLEY and SKOGLUND, JJ., and KUPERSMITH and ZONAY, Supr. JJ., Specially Assigned.

REIBER, C.J.

¶ 1. This appeal stems from the Superior Court, Environmental Division's affirmance of the zoning board's grant of a conditional use zoning permit to applicant Group Five Investments, LLC, to build and operate a Dollar General store in Ferrisburgh, Vermont. Opponents claim that the trial court erroneously shifted the burden of proof by requiring opponents to show both that the proposed project will have an adverse impact on the area and that existing commercial development in the area has already had an adverse impact. Opponents further contend that the trial court erred in using the Quechee definitionof undue adverse impact as guidance in interpreting the zoning ordinance. Finally, opponents argue that the trial court erred in failing to rule that the proposed use is prohibited under the applicable zoning ordinance, and that the trial court violated Vermont Rule of Civil Procedure 52(a) by failing to make requested findings on the proposed use of the Dollar General store. We affirm the trial court.

¶ 2. Applicant filed for a conditional use permit in September 2005 to build a Dollar General store on the southeast corner of the intersection of Route 7 and Monkton Road in Ferrisburgh. Applicant describes its retail business as a “general merchandise store that carries everything from food and clothing to pet supplies to cleaning supplies, some electronics, pretty much everything.” The Town of Ferrisburgh Zoning Board of Adjustment granted the permit on February 9, 2011, but imposed seventeen additional conditions on applicant. Opponents, local citizens, appealed to the Environmental Division.

¶ 3. After a merits hearing, the trial court issued an order affirming the zoning board's grant of the conditional use permit. In its decision, the court made detailed findings of fact regarding “the project and its site,” and the “surrounding neighborhood.” Based on these findings, the court concluded that applicant's proposed project complied with all of the performance standards in the Ferrisburgh zoning ordinance, and that the project complied with all of the general and specific conditional use standards of the ordinance as well as the enabling statute promulgated by the Legislature. However, the court imposed the additional requirement that applicant install and maintain a crosswalk across its parking lot to provide a safe walkway for visitors. The court declined opponents' suggested changes to the proposal, including increased landscaping and relocation of the parking lot and entrance to the back of the building, on the grounds that such changes would provide little benefit and present several disadvantages, such as potential safety issues. Opponents timely appealed the court's ruling.

¶ 4. The Supreme Court reviews the environmental court's rulings on questions of law or statutory interpretation de novo. In re Vill. Assocs. Act 250 Land Use Permit, 2010 VT 42A, ¶ 7, 188 Vt. 113, 998 A.2d 712. We uphold the environmental court's interpretation of a zoning regulation so long as it is rationally derived from a correct interpretation of the law and not clearly erroneous, arbitrary or capricious. In re Korbet, 2005 VT 7, ¶ 11, 178 Vt. 459, 868 A.2d 720(mem.); In re Casella Waste Mgmt., Inc., 2003 VT 49, ¶ 6, 175 Vt. 335, 830 A.2d 60. As to findings of fact, “the Environmental Court determines the credibility of witnesses and weighs the persuasive effect of evidence, and we will not overturn its factual findings unless, taking them in the light most favorable to the prevailing party, they are clearly erroneous.” Vill. Assocs., 2010 VT 42A, ¶ 7, 188 Vt. 113, 998 A.2d 712 (quotation omitted).

I.

¶ 5. We begin with opponents' argument that the trial court improperly shifted the burden of proof from applicant by requiring opponents to demonstrate that the proposed project would have an adverse impact. Opponents' argument is without merit. The trial court made detailed factual findings based on the evidence offered by both sides at trial, and concluded based on those findings that applicant had demonstrated that its proposed project met the conditional use criteria—including the requirement that the proposed development not have an adverse impact on the area.

¶ 6. To the extent that the court made statements in its decision such as “[w]ithout a credible factual foundation, we cannot make the legal determination that the proposed project will be adverse to provisions of the [ordinance],” the court was merely reiterating that opponents had not successfully rebutted applicant's showing that it had met the conditional use criteria. In In re Miller Subdivision Final Plan, an opponent to a development project similarly argued that the environmental court improperly shifted the burden of proof by stating that “there has not been evidence presented in this proceeding” to show that the adverse impact alleged by opponent would occur. 2008 VT 74, ¶ 17, 184 Vt. 188, 955 A.2d 1200. We rejected the opponent's argument in that case, noting that “[t]he record, when read as a whole, clearly indicates that the court properly placed the burden on applicant.” Id. ¶ 18. Similarly, the court here considered the evidence as a whole and ruled applicant had met its burden of proof, both in its denial of opponents' motion for a directed verdict and its final order.

¶ 7. Relatedly, opponents argue that the court improperly required them to demonstrate that the existing commercial use has already had an adverse impact. Opponents base their claim on the following statement in the court's judgment order:

Interestingly, if the existing commercial developments had detrimental impacts upon this area, we would have expected evidence of such impacts to be presented. Instead, [opponents] presented no evidence to show that the existing commercial developments in the vicinity of this project site have had an unduly adverse impact on the character of this area. Without such evidence, we are hard pressed to conclude that the addition of [a]pplicant's proposed project will have an incremental adverse impact.

Opponents take this language to mean that “[b]y the trial court's logic, any zoning purpose statement or [t]own [p]lan statement that calls for a future character of the area that differs from present uses cannot be considered during conditional use review—absent proof that preexisting uses are actually causing harm.” We do not interpret the court's reasoning so rigidly. The court was not establishing a hard-and-fast rule that opponents of development projects must show ongoing harm from current uses to prove future incremental harm. Rather, the court reasoned that if future commercial development is likely to cause harm in an area with already existing commercial development, then one might expect to see harm from the existing development. The absence of evidence of harm from existing commercial development was a factor the court took into account and found compelling.

¶ 8. Opponents argue that the court's reasoning does not comply with our holding in In re John A. Russell Corp., where we reversed the environmental court's grant of a conditional use permit because the court failed to assess the differential impact a proposed asphalt plant would have on a predominantly “rural and agricultural” area with no previous industrial development. 2003 VT 93, ¶¶ 31–33, 176 Vt. 520, 838 A.2d 906 (mem.). The facts of that case are distinguishable. The industrial development was at odds with the existing uses in the area. Further, we held that the environmental court did not sufficiently analyze the project's cumulative impact, such as evaluating complaints about noise from neighbors and assessing the increase in truck traffic. Id.

¶ 9. Here, by contrast, the proposed commercial development is to an area that already has commercial uses. Further, the court made specific findings regarding the project's impact on traffic and noise that supported its conclusion that there would be no increased impact. The court noted that the proposed project will host a single business, not a strip mall or other conspicuous entity, and that it is already surrounded by commercial developments, including several large barn structures. Further, unlike John A. Russell Corp., where the court did not make adequate findings as to the impact of noise and additional traffic, here the court considered evidence as to both of these factors and concluded that there was no adverse impact. This analysis did not improperly shift the burden onto opponents or fail to address their claims regarding an incremental shift in the character of the area, but rather evaluated opponents' arguments and found them unconvincing. See In re Miller, 170 Vt. 64, 70, 742 A.2d 1219, 1224 (1999) (holding that the court's findings were not clearly erroneous when supported by applicant's evidence, albeit disputed by the project's opponents). Therefore, we conclude that the trial court did not improperly shift the burden of proof onto opponents.

II.

¶ 10. Next, we address opponents' argument that the environmental court erroneously applied the legal standard from the Quechee test in Act 250 Criterion 8 to the conditional use review here to determine the adverse effect on the “character of the area.” See 24 V.S.A. § 4414(3)(A). Our review of the environmental court's determination of whether a proposed project will have a material adverse impact is deferential, meaning that we will uphold the court's determination unless it is clearly erroneous. John A. Russell Corp., 2003 VT 93, ¶ 30, 176 Vt. 520, 838 A.2d 906.

¶ 11. The Vermont Legislature has authorized municipalities to condition land...