Simendinger v. City of Barre

• Decision Date: 08 January 2001
• Docket Number: No. 98-144.,98-144.
• Court: Vermont Supreme Court
• Parties: David SIMENDINGER and Wesco, Inc. v. CITY OF BARRE.

770 A.2d 888

David SIMENDINGER and Wesco, Inc. v. CITY OF BARRE.

No. 98-144.

Supreme Court of Vermont.

January 8, 2001.

Present MORSE, JOHNSON and SKOGLUND, JJ., and MATTHEW I. KATZ and MARY MILES TEACHOUT, Superior Judges, Specially Assigned.

ENTRY ORDER

The City of Barre appeals from a decision of the environmental court granting two conditional use permits to Wesco, Inc. and David Simendinger to convert an existing service-station garage to a convenience store and to alter the four existing gasoline dispensers, from full service to self-service in the first application, and from four to one dispenser in the second application. The City contends the court erroneously: (1) approved the conditional use applications without prior consideration by the City's zoning board of adjustment; (2) failed to give due consideration to the City's Master Plan and Economic Action Plan; (3) found that there was a need for the proposed use despite the presence of other convenience stores in the vicinity; and (4) construed the zoning ordinance to effectively preclude the regulation of single-dispenser gasoline service to the public. We reverse and remand. Wesco and Simendinger (hereafter Wesco) own property at 169 Washington Street, an area zoned as a planned residential district. Washington Street, also known as Route 302, is a primary eastwest route though the City. At its eastern end, where the subject property is located, it contains a mix of residential and commercial uses. The Wesco property contains an automobile repair garage and four full-service gasoline pumps. The garage and gasoline dispensers predate the zoning ordinance and qualify as a preexisting nonconforming structure and use within the district.

In November 1995, Wesco filed a conditional use application with the City to convert the garage to a convenience store and to convert the full-service pumps to self-service. Following a hearing in December, the City planning commission denied approval, finding that the proposed use would increase traffic and diminish safety, and that Wesco had failed to demonstrate a sufficient need for the use. Wesco submitted a second application in February 1996, seeking to convert the garage to what it now styled a neighborhood grocery store, to convert the four existing gasoline dispensers to one dispenser, and to add an overhead canopy. Following a hearing in April, the planning commission again withheld approval, finding that no need for the proposed use had been demonstrated, and that the proposed convenience store and canopy would alter the residential character of the neighborhood. The board of adjustment issued a brief decision the same day, indicating that the application had been denied based upon a lack of positive findings by the commission.

Wesco filed separate appeals from the denial of both applications with the environmental court, which consolidated the matters for hearing. At the conclusion of the evidentiary hearing, the court issued an oral ruling in favor of Wesco. In a subsequent written decision, the court noted preliminarily that under the City's zoning regulations, three positive rulings were required for the project. First, the proposal required approval from the planning commission under specific criteria for nonconforming or conditional uses in a planned residential district. Second, and following such approval, the proposal must receive conditional use review and approval from the board of adjustment. And finally, the proposal must receive site plan approval from the planning commission. The court observed that Wesco's applications had been warned for a hearing before both the planning commission and board of adjustment, and therefore concluded that it could sit as both bodies. Applying the criteria for preliminary review by the planning commission, the court found that the proposals would not add a commercial use to the district, detrimentally affect the district's residents, or tangibly increase traffic, and would offer conveniences not offered by other convenience stores in the area. Sitting as the board of adjustment, the court also found that the proposal satisfied the criteria for conditional use review, but imposed certain conditions to mitigate glare from the canopy lighting, limit the hours of operation, and provide for gasoline deliveries during off-peak hours.¹ This appeal by the City followed.

I.

The City contends the court erred in evaluating the element of "need" in connection with the planning commission's preapproval process. In reviewing matters on appeal, we set aside factual findings of the trial court only if they are clearly erroneous, viewing the evidence in the light most favorable to the prevailing party, and disregarding modifying evidence. See Bianchi v. Lorenz, 166 Vt. 555, 562, 701 A.2d 1037, 1041 (1997). "A finding will not be disturbed merely because it is contradicted by substantial evidence; rather, an appellant must show there is no credible evidence to support the finding." Highgate Assocs., Ltd. v. Merryfield, 157 Vt. 313, 315, 597 A.2d 1280, 1281 (1991).

In addressing the criterion of need, the trial court expressly cited the pertinent provision of the City's zoning ordinance which requires consideration of "the need for the [proposed] use in the district primarily and the City of Barre secondarily." Although the court acknowledged that there were several existing convenience stores within reasonable walking distance of residents of the district, it determined that based on the entire record "we cannot find that there is no need for this neighborhood grocery store." The court noted, in this regard, that the proposed store would be used by residents when others were closed, and that its location near the City limits would provide more convenient service for persons entering or leaving the City for whom it would be either the first or last available store with such services.

The parties presented extensive evidence and testimony on the issue of need, much of which was conflicting. The City places great stock in its evidence that other convenience stores with similar business hours already operate within the nearby commercial and central business districts. Yet, the City's planning and zoning officer and its former city manager both testified without contradiction that the proposal, if approved, would represent the only facility providing both convenience items and gasoline at the pump within the planned residential district. Wesco's expert also offered his opinion that, notwithstanding the existence of other grocery and convenience stores in the general area, the proposal would serve the needs of local residents, some of whom might otherwise be required to use personal or public transportation. Neither the ordinance nor the evidence required the trial court to adopt the City's benchmark of need based upon the existence of other convenience stores within 1000 feet of the proposed facility. Rather, the court could examine the evidence more closely to determine whether other stores provided comparable conveniences to residents throughout the district. The record evidence, in sum, supports the court's finding that the proposed facility would provide services to district residents not otherwise offered. As to need within the City as a whole, the evidence also supported the court's conclusion that the proposed store, located at the "gateway" to the City, would provide a convenient stop for residents and visitors entering or leaving. We conclude, accordingly, that credible and reasonable evidence supported the court's findings and conclusions. They must, therefore, be affirmed. See Highgate, 157 Vt. at 315, 597 A.2d at 1281.

A closer question is whether the court's findings adequately addressed the ordinance criteria requiring a finding of need within the "district primarily and the City of Barre secondarily." The court prefaced its discussion with a quotation of the provision in question, and separately addressed the issues of need within the district, and within the City as a whole, reflecting the order of concern embodied in the ordinance. The overall framework of analysis thus demonstrates that the court was mindful of, and applied, the requisite statutory analysis. Although we believe that better practice in these circumstances would have been to address and weigh the two needs considerations in more direct and explicit terms, we conclude that the findings were adequate.

II.

The City also contends the court erred in defining and characterizing certain uses under the ordinance. As noted, Wesco sought in its initial application to convert the existing automotive-repair building to a retail store, and to convert its gasoline pumps from full serve to self-service. Wesco's second application sought to convert the existing building to a neighborhood grocery store and to replace the existing pumps with one pump. The court appeared to treat both applications as seeking conversion to a neighborhood grocery store, which the ordinance allows as a conditional use within the district. Although the ordinance does not specifically define neighborhood grocery store, retail stores are defined generally under the ordinance as the "[c]ustomary use of enclosed restaurant, cafe, shop and store for the sale of goods at retail," excluding "gasoline service and motor vehicle repair service." A gasoline station is defined as a building or land that is used "primarily for the sale of motor vehicle fuel." The definition also provides: "A lot on which more than one gasoline or motor fuel pump or dispenser is located, is a gasoline station, if gasoline or motor fuel is offered for sale to the public." Reading these terms and definitions together, the court concluded that a neighborhood grocery store was not within the definition of a retail store, and therefore gasoline service at the site was not expressly excluded, and further found that the proposed use was not a gasoline...