In re JSCL, LLC CU Permit
| Decision Date | 02 April 2021 |
| Docket Number | No. 20-174,20-174 |
| Citation | 253 A.3d 429 |
| Court | Vermont Supreme Court |
| Parties | IN RE JSCL, LLC CU PERMIT (David Pierson, et al., Appellants) |
Liam L. Murphy of MSK Attorneys, Burlington, for Appellants.
Anthony R. Duprey of Duprey Law, PLLC, Vergennes, for Appellee.
PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Morris, Supr. J. (Ret.), Specially Assigned
¶ 1. Neighbors appeal the decision of the Environmental Division approving applicant JSCL, LLC's conditional-use application to construct a trucking facility in Ferrisburgh, Vermont. Neighbors argue that the court erred in its analysis of noise impacts and potential fire and safety hazards from the project and imposed a condition regarding nighttime traffic that is too vague to be enforceable. We affirm the court's decision, except for its analysis of nighttime traffic and noise impacts from the project and the condition that it imposed to address those impacts. We remand for the court to reconsider that portion of its analysis and the associated condition.
¶ 2. In September 2016, applicant submitted a conditional-use application to the Town of Ferrisburgh Zoning Board of Adjustment (ZBA) proposing to build a trucking facility for its fuel-hauling business. The ZBA conducted a site visit and held seven hearings over an eleven-month period. Applicant made several revisions to its plans in response to concerns expressed by Town officials and neighbors. In September 2017, the ZBA approved the permit with certain conditions, including the limitation that applicant conduct its operations between 5:00 a.m. and 10:00 p.m. Both applicant and neighbors appealed to the Superior Court, Environmental Division.
¶ 3. Following a site visit and four-day trial, the environmental court made the following findings relevant to this appeal. John DeVos and his family have operated a fuel-hauling business from their family dairy farm in Ferrisburgh for nearly forty years. The DeVoses currently operate the business through their family corporation, J.A. DeVos & Sons, Inc. The fuel-hauling trucks and trailers are stored at the family farm. Early each morning, J.A. DeVos drivers arrive at the farm, confirm the truck they will be driving, and inspect the truck. They then leave the farm between 4:00 and 5:00 a.m. The drivers travel to wholesale fuel-storage facilities in Albany, New York, and Burlington, Vermont, where they fill up their tanker trailers. From there, they deliver fuel to various retail fueling stations in Vermont and New Hampshire. After completing their assigned deliveries, the drivers return to the farm, usually by 5:00 p.m. The trucks are typically empty of fuel when they return to the farm, although small amounts of fuel may remain in the tanks and fuel lines.
¶ 4. Several years ago, the DeVoses formed JSCL, LLC (applicant), to distinguish the fuel-hauling business from the dairy farm business. In 2015, applicant purchased a nine-acre undeveloped plot of land within the Ferrisburgh Industrial Zoning District on Tuppers Crossing with the intent of relocating the fuel-hauling operation away from the farm. Applicant proposed to build an 8000-square-foot maintenance and repair garage with offices, an outdoor truck-washing area, an above-ground tank for refueling the trucks, and parking for nine trucks and eleven employee and visitor vehicles on the property. The facility would not be open to the public or have retail operations.
¶ 5. Applicant estimated that it would employ one full-time and up to six part-time employees in the office and garage, who would work from 8:00 a.m. to 5:00 p.m., Monday through Saturday. Applicant estimated that truck drivers would begin to arrive at or after 5:00 a.m. Most would return by 5:00 p.m., but some drivers with later shifts would not return until 10:00 p.m. Applicant estimated that it would begin operations with seven truck drivers and eventually would expand to have nine truck drivers. Applicant anticipated that drivers would occasionally need to travel to and from the facility in the middle of the night to make emergency fuel deliveries. It therefore requested to strike the condition imposed by the ZBA which limited its operations to the hours between 5:00 a.m. and 10:00 p.m.
¶ 6. Tuppers Crossing is a class 3 town highway that is approximately half a mile long and connects U.S. Route 7 to Botsford Road. There are five residential properties on the road. The closest residence is located 150 feet from the proposed project site on the opposite side of Tuppers Crossing. There are no existing commercial or industrial uses on Tuppers Crossing, but there are several commercial, retail, and industrial uses nearby on Route 7, which is a heavily traveled commercial highway. Traffic on Tuppers Crossing is relatively light and includes delivery and milk trucks, personal vehicles, farm vehicles, and area residents walking along the road.
¶ 7. A few hundred feet to the west of applicant's parcel, a railroad line crosses Tuppers Crossing. A residential property lies between applicant's parcel and the railroad tracks. Approximately two to three freight trains pass by each day, and tourist trains use the tracks in the summer. Most of the train traffic occurs between 9:00 a.m. and 5:00 p.m., but at least one train passes by between 1:00 a.m. and 6:00 a.m. each day.
¶ 8. The court concluded that applicant's proposed project was a freight or trucking terminal, which was an allowed conditional use in the Ferrisburgh Industrial Zoning District and therefore could be permitted if it otherwise complied with the zoning bylaws. The court found that the project met the general and specific conditional use standards and the performance standards set forth in the bylaws. Relevant to this appeal, the court found that applicant's site and operational plans provided adequate protection against potential fires or hazardous material spills. Regarding noise, the court found that the neighborhood was presently characterized by noises emanating from heavy commercial traffic on Route 7 to the east, and occasional train traffic on the tracks to the west. It found that large delivery and agricultural trucks regularly used the road. It found that the proposed project would bring additional noise from the truck traffic entering and exiting the property, although the volume of additional trucks would be small. Based on expert testimony presented by applicant, the court found that the additional noises would not exceed the noise levels already experienced in the neighborhood. It further found that the project would not adversely affect the character of the area due to noise and would comply with the performance standard concerning noise impacts, provided that applicant abided by certain conditions it imposed as part of its order. Neighbors appealed the decision to this Court.
¶ 9. On appeal, neighbors argue that the environmental court erred in concluding that the proposed project complies with the noise-performance standard and that it will not have an undue adverse impact on the character of the area due to noise. They further claim that the court erred in concluding that the project will not be a fire, explosive, or safety hazard, arguing that parking trucks containing any amount of gasoline constitutes a significant safety hazard in a residential neighborhood. Finally, they argue that Condition 8, which requires applicant to "minimize the frequency of truck drivers arriving at the project site" between 10:00 p.m. and 5:00 a.m. and prohibits applicant from operating on Sundays or holidays "except in the case of emergencies," is impermissibly vague and unenforceable because it contains no definite standards for enforcement.
¶ 10. We will uphold the environmental court's factual findings unless they are "clearly erroneous," meaning that "there is no credible evidence to support them or ... they are internally inconsistent." In re N. E. Materials Grp., LLC, 2019 VT 55, ¶ 6, 210 Vt. 525, 217 A.3d 541 (quotations omitted). We review its legal conclusions, including its interpretation of zoning ordinances, without deference. In re Confluence Behavioral Health, LLC, 2017 VT 112, ¶ 17, 206 Vt. 302, 180 A.3d 867.
¶ 11. We first address neighbors’ argument that the court erred in its assessment of whether the project posed a fire, explosive, or safety hazard that significantly endangers nearby property owners. Section 8.3 of the Ferrisburgh zoning bylaws provides that "[n]o fire, explosive or safety hazard shall be permitted which significantly endangers other property owners or which results in a significantly increased burden on municipal facilities." Neighbors argue that the International Fire Code (IFC) states that fuel tankers shall not be left unattended within 500 feet of a residential area, and that three homes are located within 500 feet of the proposed project. Neighbors argue that the environmental court failed to consider this provision of the IFC, requiring reversal.
¶ 12. The court permitted neighbors to introduce evidence of the IFC at trial. In its decision, it acknowledged that the IFC provision cited by neighbors could be read to prohibit applicant's parking plans. It also noted that the town fire chief had testified that the IFC provision was intended to prohibit the parking of tankers on public highways and should not be read as a prohibition on parking fuel tankers within a fenced security setting. The court ultimately gave the provision no weight because Vermont has not adopted the IFC.
¶ 13. We see no error. The question before the environmental court was whether applicant's proposed project complied with § 8.3 of the town bylaws, not whether it complied with the IFC. The IFC has not been adopted in Vermont and was therefore not binding authority. Rather, in this context, the IFC was merely another piece of evidence, and the court was not...
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In re Katzenbach A250 Permit #7R1374-1
... ... They argued that the court failed to consider a relevant case recently issued by this Court, 287 A.3d 41 In re JSCL, LLC CU Permit , 2021 VT 22, 214 Vt. 359, 253 A.3d 429, and that restricting haul-truck travel to four hours per day during the week and two hours on weekends was unreasonable. The court denied the motion. It concluded that JSCL was not applicable and that even if it was, the condition imposed ... ...
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In re Katzenbach A250 Permit #7R1374-1
...They argued that the court failed to consider a relevant case recently issued by this Court, In re JSCL, LLC CU Permit, 2021 VT 22, __ Vt.__, 253 A.3d 429, that restricting haul-truck travel to four hours per day during the week and two hours on weekends was unreasonable. The court denied t......