In re Hinesburg Hannaford Act 250 Permit

• Decision Date: 09 November 2017
• Docket Number: Nos. 16–273 & 16–274,s. 16–273 & 16–274
• Citation: 179 A.3d 727
• Court: Vermont Supreme Court
• Parties: IN RE HINESBURG HANNAFORD ACT 250 PERMIT In re Hinesburg Hannaford Site Plan Approval (Mary Beth Bowman, et al., Appellants)

179 A.3d 727

IN RE HINESBURG HANNAFORD ACT 250 PERMIT In re Hinesburg Hannaford Site Plan Approval (Mary Beth Bowman, et al., Appellants)

Nos. 16–273 & 16–274

Supreme Court of Vermont.

March Term, 2017

November 9, 2017

Allan R. Keyes of Ryan Smith & Carbine, LTD., Rutland, and James A. Dumont of Law Office of James A. Dumont, P.C., Bristol, for Appellants.

William H. Sorrell, Attorney General, and Kyle H. Landis–Marinello, Assistant Attorney General, Montpelier, for Appellee Vermont Natural Resources Board.

David W. Rugh of Stitzel, Page & Fletcher, P.C., Burlington, for Appellee/Cross–Appellant Town of Hinesburg.

Christopher D. Roy of Downs Rachlin Martin PLLC, Burlington, for Appellee/Cross–Appellant Martin's Foods of South Burlington, LLC.

PRESENT: Dooley, Skoglund, Robinson and Eaton, JJ., and Wesley, Supr. J. (Ret.), Specially Assigned

ROBINSON, J.

¶ 1. These two consolidated appeals challenge the Environmental Division's decisions concerning applications for site-plan approval and an Act 250 permit for the proposed construction of a Hannaford's supermarket in the Town of Hinesburg. We affirm in part, reverse in part, and remand the matter for further proceedings consistent with this opinion.

¶ 2. Appellee/cross-appellant Martin's Foods of South Burlington, LLC (Hannaford) proposes to construct a 36,000–square–foot grocery store and pharmacy with an adjacent 128–space parking lot on Lot 15 of the Commerce Park subdivision in Hinesburg. Lot 15, over four acres in size, is the largest of the fifteen lots in the subdivision, for which municipal and Act 250 permits were originally granted in 1987. The subdivision is located just north of the Hinesburg Village center within a triangular space formed by Route 116, Patrick Brook, and Mechanicsville Road. Route 116 runs north-south and is the main thoroughfare through Hinesburg. Mechanicsville Road runs northeast from Route 116, from just south of the subdivision, to the east end of Commerce Street. Commerce Street runs east-west parallel to Patrick Brook but within the subdivision north of Lot 15, connecting Route 116 and Mechanicsville Road to form the hypotenuse of the triangle in which most of the subdivision lies. Commerce Street Extension runs a short distance off Commerce Street south into the subdivision toward Lot 15.

¶ 3. Lot 15, the last lot in the subdivision to be developed, is a four-sided irregularly-shaped lot bounded by existing development within the subdivision on two sides and by a canal and adjoining sidewalk running parallel to Mechanicsville Road. The canal was constructed over a century ago to provide water to a cheese factory. The relatively recently built sidewalk runs along the canal on the side opposite Mechanicsville Road. Vehicular access to the proposed project on Lot 15 would be by way of Commerce Street and then the Commerce Street Extension, which runs between existing developments located on the southern side of Commerce Street.

¶ 4. The proposed project is a permitted use in the Town's Commercial Zoning District within the Hinesburg Village Growth Area and is subject to site plan review and conditional use approval under the Town's 2009 zoning regulations. Hannaford initially applied for site-plan and conditional use approval for the proposed project in November 2010. The Hinesburg Development Review Board (DRB) reviewed the application several times before the public hearing on the project was closed for the final time in October 2012. Following evidentiary hearings and site visits, the DRB approved the application with conditions in a written decision in November 2012. Appellants/cross-appellees, a group of Hinesburg residents that oppose the project (Neighbors), appealed the DRB decision to the Environmental Division, and Hannaford cross-appealed.

¶ 5. In March 2013, Hannaford filed its Act 250 application with the District # 4 Environmental Commission. Hannaford sought approval under all Act 250 criteria except Criterion 2, relating to the water supply, because the Town was in the process of upgrading its municipal well system and did not have available capacity to support the project at the time of the application. In June 2014, after conducting site visits and evidentiary hearings, the District Commission issued its initial merits decision concluding that the project, with specified conditions, satisfied each Act 250 criterion except Criterion 2. The District Commission issued an amended set of findings and conclusions on July 23, 2014. Neighbors appealed this decision to the Environmental Division.

¶ 6. The Environmental Division coordinated the site-plan and Act 250 appeals with other appeals relating to the project. After deciding a series of pretrial motions regarding a wide variety of issues, the trial court conducted a site visit and merits hearing from November 30 through December 2, 2015. The parties stipulated to submit direct testimony and related exhibits to the court in advance of the merits hearing through prefiled testimony. Cross-examination, redirect examination, and rebuttal testimony were then presented live at the trial. Among the numerous matters contested at trial were issues relating to stormwater management, traffic, aesthetics, and public investment in the canal sidewalk.

¶ 7. In April 2016, the trial court issued separate 23–page and 60–page decisions with accompanying judgment orders, approving, respectively, Hannaford's site-plan and Act 250 applications with conditions. In response to multiple post-trial motions regarding both decisions, the court issued an amended Act 250 decision and indicated that it was making no changes to its site-plan decision.¹ Neighbors appealed both decisions, and Hannaford and the Town of Hinesburg cross-appealed both. This Court consolidated the appeals for purposes of argument and decision.

¶ 8. In challenging the trial court's site-plan approval, Neighbors argue that: (1) the trial court erred in declining to enforce a setback limit reflected in the final plat plan for the subdivision as approved in 1987; (2) Hannaford's site-plan application violated "front yard" parking restrictions set forth in the Town's 2009 zoning regulations; (3) the east-west swale proposed in the site-plan application will not control and treat stormwater as predicted by Hannaford's expert; and (4) Hannaford did not satisfy its burden regarding stormwater control because part of the discharge system is proposed to be located on land outside of its control. In their cross-appeals, Hannaford and the Town challenge the trial court's condition requiring Hannaford to install a traffic signal at the intersection of Route 116 and Mechanicsville Road before the project may be completed, and the Town challenges the court's elimination in its amended decision of a condition requiring Hannaford to perform a post-development traffic study.

¶ 9. In challenging the trial court's Act 250 decision, Neighbors argue that: (1) the trial court erred in declining to enforce a provision in the original approved Act 250 master subdivision permit that development in the subdivision would be "small scale"; (2) the trial court improperly focused on the foreseeability of a commercial development on Lot 15 in determining whether the proposed project would materially interfere with the public's use and enjoyment of the canal path; and (3) Hannaford failed to dispute the uncontradicted testimony of Neighbors' expert that the east-west swale would not function as claimed because of the area's saturated soils. As in their site-plan cross-appeals, Hannaford and the Town reiterate their opposition to a condition requiring a traffic signal at the Route 116/Mechanicsville Road intersection. The Town also challenges the trial court's decision on reconsideration to eliminate the post-development traffic study requirement. The Natural Resources Board (NRB) has filed a brief in the Act 250 appeal asking this Court to uphold the condition that a traffic signal be placed at the Route 116/Mechanicsville Road intersection prior to operation of the proposed project.

¶ 10. For the reasons stated below, we conclude, with respect to the site-plan appeal, that Hannaford's proposed site plan violates the setback limit in the final plat plan approved in 1987. We conclude that Hannaford's parking scheme does not violate the site-plan approval standards in the applicable zoning regulations. We need not reach the issues raised in that appeal concerning the east-west swale and traffic control. Accordingly, we reverse the Environmental Division's approval of the site plan.

¶ 11. Regarding the Act 250 appeal, we conclude that the project does not violate a requirement in the original approved subdivision permit that development be primarily "small scale," and that the proposed project would not materially interfere with the public's use and enjoyment of the canal path. We remand for further development of evidence concerning the east-west swale and traffic issues. Accordingly, we reverse the Environmental Division's approval of the Act 250 permit and remand the matter for further consideration.

I. Standard of Review

¶ 12. Our general standard of review is not in doubt.² "We will defer to the court's factual findings and uphold them unless, taking them in the light most favorable to the prevailing party, they are clearly erroneous." In re Wagner & Guay Permit, 2016 VT 96, ¶ 9, 203 Vt. 71, 153 A.3d 539 (quotation omitted). This is so because "the environmental court determines the credibility of witnesses and weighs the persuasive effect of evidence." In re Champlain Parkway Act 250 Permit, 2015 VT 105, ¶ 10, 200 Vt. 158, 129 A.3d 670. We review the court's legal conclusions without deference, but "we will uphold those conclusions if they are reasonably supported by the findings." Wagner & Guay Permit, 2016 VT 96, ¶ 9, 203 Vt. at 78, 153 A.3d at 544 (quotation omitted).

II. Site–Plan Appeal

A. Review of Zoning Regulations and Permit Conditions

¶ 13. The parties...