209-12-97 Vtec, 215-8-00 Vtec, 222-9-00 Vtec, 175-10-01 Vtec</title= ></head> <body lang=3DEN-US style=3D'tab-interval:.5in;text-justify-trim:punctuatio= n'> <div class=3DSection1> = = ; &= nbsp; &nb= sp; = ; &= nbsp; STATE OF VERMONT<o:p></o:p> <o:p= > </o:p> = = ; &= nbsp; &nb= sp; = ; = ENVIRONMENTAL COURT<o:p></o:p> <o:p= > </o:p> }<o:p></o:p> Appeals of Wesco, Inc. = } Docket Nos. 209-12-97 Vtec, 215-9= -00 Vtec, 222-9-00 Vtec,<o:p></o:p> } 175= -10-01 Vtec and 24-1-02 Vtec<o:p></o:p> }<o:p></o:p> <o:p= > </o:p> = ; &= nbsp; &nb= sp; = ; &= nbsp; Decision and Order<o:p></o:p> Appellant-Applicant Wesco, Inc. (Applicant) is represen= ted by Jon Anderson, Esq. and William Simendinger; the City of Barre is repres= ented by Oliver L. Twombly, Esq. Interested persons Marjorie Sichel, Eugene Clermont, and Percy Labor represent themselves. <o:p><= /o:p> These consolidated cases have involved, over time, the following docket numbers. Do= cket Nos. 10-1-96 Vtec and 75-5-96 Vtec (formerly E96-010 and E96-075) (the 1996 cases) involved the first round of site plans for the site. The Court ruled on the merits of = these two cases in 1998, after nine days of evidentiary hearings. These two cases were the subject = of the Supreme Court=3Ds memorandum decision in Simendinger v. City of Barr= e, 171 Vt. 648 (2001), which affirmed this Court=3D<s= pan style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'>s decision in part, and reversed and remanded it in part. The Supreme Court affi= rmed the Court=3Ds determination that the repair garage qualifies as a pre-existing, non-complying structure, housing a non-conforming use. The majority also affirmed the Co= urt=3Ds determination that the proposed neighborhood grocery = store met the criteria of '5.14.02(c), subject to Applicant=3Ds obtaining conditional use approval of the neighborhood grocery store proposal. The = Supreme Court reversed and remanded the remainder of the 1998 decision for the municipal boards to consider Applicant=3Ds applications for conditional use approval and site pl= an approval on their merits.<o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection2> The parties agreed to the closure of the two 1996 cases= on the Court=3Ds docket, with all the evidence taken in those cases be= ing transferred to the current cases for consideration on their merits. In the above-captioned cases, a n= umber of legal issues were addressed by summary judgment in a decision issued Au= gust 7, 2002. Supplemental eviden= tiary hearings were held in 2003 over the course of nine additional days. Docket Nos. 215-9-00 Vtec and 222= -9-00 Vtec involve a second round of site plan proposals for the site. Docket Nos. 209-12-97 Vtec (forme= rly 115-3-95 Wncv) and 175-10-01 Vtec involve the conditional use application.= Docket No. 24-1-02 Vtec involves = the third round of site plans for the site.<o:p></o:p> In the consolidated cases, Applicant seeks conditional = use approval and site plan approval for proposed changes to its property at 169 Washington Street in a Planned Residential zoning district in the city of Barre. Applicant proposes to convert the use of the existing building on the property from an automobile repair garage<a style=3D'mso-footnote-id:ftn1' href=3D"#_ftn1" name=3D"_ft= nref1" title=3D""><![if !supportFootnotes]><span style=3D'font-size:12.0pt;font-fam= ily:Shruti; mso-ascii-font-family:Shruti;mso-fareast-font-family:"Times New Roman"; mso-hansi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareas= t-language: EN-US;mso-bidi-language:AR-SA'>[1]<![endif]></s= pan></a> to a neighborhood grocery store<a style=3D'mso-footnote-id:ftn2' href=3D"#= _ftn2" name=3D"_ftnref2" title=3D""><![if !s= upportFootnotes]><span style=3D'font-size:12.0pt;font-fam= ily:Shruti; mso-ascii-font-family:Shruti;mso-fareast-font-family:"Times New Roman"; mso-hansi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareas= t-language: EN-US;mso-bidi-language:AR-SA'>[2]<![endif]></s= pan></a> (convenience store), and to make associated changes in the building, keepi= ng the same footprint, and to make associated changes to the site=3Ds lighting, landscaping and parking. Specifically, Applicant proposes = to convert the existing number of gasoline dispensers from full-service opera= tion (operation of the dispensers by employees) to self-service operation by customers; proposes to sell convenience store items from the building, including deli sandwiches and other prepared foods; proposes to remodel the interior of the building and the doors and windows to eliminate the service bays and accommodate the proposed convenience store uses; proposes to rais= e and alter the roof shape and height; and proposes to construct a canopy over t= he existing pump island.<o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection3> The evidentiary hearings in 1997 and in 2003 were held = in this matter before Merideth Wright, Environmental Judge, who also took a s= ite visit alone, by agreement of the parties.= The parties were given the opportunity to submit written memoranda = and requests for findings. Upon consideration of all the evidence, as illustrated by the site visit, and o= f the written memoranda and requests for findings filed by the parties, the Court finds and concludes as follows.<o:p></o:p> <o:p> </o:p> Since before the enactment of zoning in Barre in 1974, Applicant=3Ds property has contained an automobile repair garage an= d a four-fueling-position gasoline station on a single gasoline island. The property line at the Washingt= on Street frontage is located parallel to and approximately 72 feet (by scale from the site plan) from the curb marki= ng the edge of the street. Unde= r the Zoning Regulations, setbacks are measured from the property lines, not fro= m the traveled way of the street. = The existing building is located approximately 122 feet from the front property line, and is located from= 72 feet to fifteen feet from the easterly side property line. The existing gasoline = pump island is located approximately ten feet from the front property line. The lot is approximately 16,000 s= quare feet in area, and contains a relatively flat area extending approximately = one hundred feet back from Washington Street to the beginning of the existing = tree line, beyond which it slopes steeply downwards in back towards Orange Street. <o:p></o:p></= p> The existing light over the pump island is outdated bot= h as to its engineering and its design. Because the bulb or light source is visible, rather than shielded w= ithin a downcast light fixture or canopy, it produces glare visible to pedestria= ns, drivers of vehicles, and neighborhood residents, by having a visible bulb = or light source and one that is of a relative high wattage. Because it is not shielded upward= s or to the sides, it also produces light extending unnecessarily far from the pump island and fueling positions. <o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection4> The existing parking of vehicles awaiting repair on the= site is haphazard and in the winter tends to become snowed into those positions= for a relatively long period of time. The large number of vehicles awaiting repair and parked outside is incompatible with the appearance of a residential neighborhood, and is vis= ible viewed down Charles Street from above, as well as from Washington Street.<= span style=3D'mso-spacerun:yes'> A storage trailer parked behind t= he building is visible from Orange Street and by pedestrians on or near the property, and contributes to the cluttered appearance of the property. The building is in need of mainte= nance. During its hours of operation, a = repair garage use creates noise from power and pneumatic equipment, and may create fumes from vehicles in need of repair.&nb= sp; Hazardous materials used in vehicle maintenance are used and stored= on the premises. <o:p></o:p> When it operated as a repair garage and gas station pri= or to the adoption of zoning in Barre, the repair garage operated from 6:00 or 7= :00 a.m. to 5:00 p.m. on weekdays and until about noon on Saturdays, and was c= losed on Sundays, while the gasoline service component opened for business at 6:= 00 or 7:00 a.m. and stayed open until 8:00 or 9:00 p.m Monday through Saturday, = and opened for business at 7:00 or 8:00 a.m. and stayed open until 4:00 or 5:0= 0 p.m on Sundays. <o:p></o:p> Washington Street is Route 302, a main traffic artery conducting traffic from the east downhill towards the central business dis= trict of the City of Barre. Southe= asterly and up Washington Street from Applicant=3Ds property, Washington Street is zoned as a Planned Residential zoning district to a depth of a single lot on both sides of Washington Street. On both s= ides, the lots behind those fronting on Washington Street are zoned in the R-10 Residential zoning district. Northwesterly and down Washington Street from Applicant=3Ds property, the Planned Residential zoning district wid= ens to a depth of several lots on both sides of Washington Street. Approximately three or four block= s up Washington Street from Applicant=3Ds lot, both sides of Washington Street are zoned Commercial. The City<= span style=3D'font-family:"WP TypographicSymbols";mso-bidi-font-family:Shruti; mso-char-type:symbol;mso-symbol-font-family:"WP TypographicSymbols"'>=3Ds historic central business district begins approximate= ly the same distance downhill from or northwesterly of Applicant=3Ds property. </sp= an>The area is a mixed use area with residences, professional offices, and some commercial uses. Many of the buildings in the area are nineteenth-century and early-twentieth-century residential buildings, although some have been remodeled or re-sided with = later and less-attractive or less-historical materials.<o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection5> Washington Street carries approximately 8058 vehicles p= er day, or approximately 975 vehicles per hour in the design hour. Whether the use on the lot is an = automobile service and gas station (at 75 vehicle trip ends for the peak hour counted= at this location) or is a convenience store with gasoline pumps as proposed (predicted to be a peak of 78 vehicle trip ends per hour using recognized transportation engineering methods), the use will not appreciably affect t= he traffic on Washington Street. Moreover, the proposed project will generate less traffic traveling= on Washington Street than does the present use as an automobile service type = of gas station, because approximately 60% of convenience store/gas station tr= affic is so-called pass-by traffic. </spa= n>That is, more of the traffic stopping at the proposed convenience store and gas station will be traffic traveling on Washington Street for other purposes = than was the case with the automobile service type of gas station. In addition, more customers for t= he convenience store will travel by foot and bicycle to the property from the surrounding neighborhood, as compared with the customers for the automobile service component of the automobile service type of gas station.<o:p></o:p= > The adjoining property along Washington Street uphill or southeasterly of the Applicant lot is a single-family residence currently = with a day care home occupation, also in the Planned Residential zoning distric= t. The adjoining property along Wash= ington Street downhill or northwesterly of the Applicant=3D<s= pan style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'>s lot is a multiple-unit apartment building. A seven-foot-wide easement runs o= n the northeasterly portion of the Applicant=3Ds lot, providing access for the apartment residents to a parking lot to serve the apartment building. Adjacent to the apartment buildin= g lot is a neighborhood market without gasoline service. Both the apartment and the neighb= orhood market are also in the Planned Residential zoning district. The properties across Washington = Street are residential. The windows= of the residential building directly across Washington Street from Applicant</spa= n>=3Ds building face the easterly curb cut on Applicant</spa= n>=3Ds property so that the headlights of any vehicles exiti= ng Applicant=3Ds property via that curb cut shine directly into the residential rooms of that building. <o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection6> The adjoining properties to the southwest along Orange Street are single family residences, located in what one witness described= as a charming residential district, in the R-10 Residential zoning district.<sp= an style=3D'mso-spacerun:yes'> They are located at a floor eleva= tion substantially below that of Washington Street. The glare from the existing light= s on Applicant=3Ds property and an existing storage trailer behind the existing building can be seen from at least two of the Orange Street properties.<o:p></o:p> The new gasoline pumping equipment, adapted to self-ser= vice, does not increase the number of existing fueling positions, which remains = as four fueling positions. The equipment is not of a greater size, capacity or productive capacity; that = is, no greater amount of gasoline or number of vehicles could as a practical m= atter be processed through the facility than with the previous equipment. <o:p></o:p> The floor space >open to the public=3D does not include the floor space inside the built-in w= all coolers, even if customers are able to reach into the coolers to remove it= ems from them. The floor space o= pen to the public in the proposed building is approximately 940 square feet, incl= uding the retail space and the bathrooms.<o:p></o:p> <o:p> </o:p> I. Issues= not before the Court in the present decision.<o:p></o:p> Based on the decision in Simendinger v. City of Barr= e, 171 Vt. 648 (2001), the following two issues were not reopened in the rema= nded or additional proceedings, and remain the law of the case. First, the building on the site qualifies for consideration as a pre-existing, noncomplying structure (too close to the front and easterly side setbacks), on a pre-existing undersiz= ed lot, housing a pre-existing, nonconforming (repair garage and gasoline ser= vice) use. Second, the proposed neighborhood grocery store satisfied the criteria of '5.14.02(c), allowing Applicant to apply for conditional= use approval of the neighborhood grocery store proposal in the remanded proceedings.<o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection7> The City also asks the Court to revisit its August 7, 2= 002 summary judgment decision that conversion of the use of the building from automobile service use to convenience store use should be analyzed as an application for a conditional use, in addition to determining wheth= er changes to the gasoline service aspects of the proposal meet the standards= of the ordinance for alterations to that preexisting nonconforming use. This Court declines to reverse its August 7, 2002 decision. Rat= her, in that decision this Court very carefully examined this issue and its relati= on to the Supreme Court=3Ds memorandum decision in Simendinger v. City of Barr= e, 171 Vt. 648 (2001). (See thi= s Court=3Ds August 7, 2002 decision, at pages 7 through 10, and in particular at page 9.) Under= the Zoning Regulations of the City of Barre, a proposal that falls into more t= han one use category, such as the present proposal, must obtain approval under= each and every use category for which it may qualify, as the Zoning Regulat= ions allow more than one use per lot. </= span><o:p></o:p> Section 5.1.04 governing nonconforming uses and noncomp= lying structures states the intent of this section to Amaintain the property rights of a parcel of land which = has a nonconforming use or noncomplying structure, while at the same time protec= ting the property rights of the surrounding neighborhood.@ Section 5.1.05(3) allows an undersized lot with an existing Anonconforming structure or noncomplying building= @ to be developed for the purposes allowed in the distri= ct, Aprovided that the coverage of the building is not enlar= ged.@ Appeal of Mullen, Docket No. 187-9-00 Vtec (Vt. Envtl. Ct. March 27, 2002).@ The City suggests that its nonconforming use provisions do not comply with current interpretations of state law. </spa= n><o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection8> Municipalities may and do take different approaches to regulating nonconforming uses. </sp= an>In re Casella Waste Management, 175 Vt. 335, 338-39 (2003). We must apply the specific requir= ements of the City=3Ds particular requirements regarding nonconforming uses = and noncomplying structures to the extent possible to make sense of and give meaning to all of its provisions, read as a whole, and to avoid interpreti= ng any of its provisions as surplusage. Town of Calais v. County Road Commrs., 173 Vt. 620, 621 (200= 2) (mem.) We will not invalidat= e any of the provisions of the Zoning Regulations, even at the request of the Ci= ty<a style=3D'mso-footnote-id:ftn3' href=3D"#_ftn3" name=3D"_ftnref3" title=3D"= "><![if !supportFootnotes]><sup= ><span style=3D'font-size:12.0pt;font-family:Shruti;mso-ascii-font-family:Shruti; mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Times New= Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '>[3]<![endif]></a> itself, unless there is no alternative interpretation to doing so.<o:p></o= :p> Indeed, we note that at any time after July 1, 2001, wh= en 24 V.S.A. '4443(d) (since recodified as '4449(d)) took effect, the City could have proposed amendments to its Zoning Regulations so that the amended regulations would= have been applicable to any new applications not already pending at the time the amendments were proposed. If= the City feels that any of its regulations do not comport with state law, it m= ay certainly choose to amend them. </s= pan>If the City had wanted to add a requirement that only one use is allowed per = lot, or had wanted to define the use category of ><= span style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'>neighborhood grocery store,=3D<s= pan style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'> or had wanted to alter the specific provisions in its Zoning Regulations relating to nonconforming uses, the City could have act= ed so that those proposed amendments would have been applicable to any applicati= ons filed after those amendments were first warned.<o:p></o:p> The City also renews consideration of another issue concluded in the August 7, 2002 decision on summary judgment: whether </sp= an>'5.1.04(c)(1), regarding maintenance of a nonconforming structure, prevents the interior remodeling because it will result in incr= eased use and in increased floor area open to the public. To the extent that this is also a request to reconsider that issue, the Court declines to change the reasoni= ng in that decision: first, '5.1.04(c)(1) is inapplicable; second, even if it were to apply, the proposed renovation does not result in any increase in the </sp= an>>floor area=3D of the building; and, third, '5.1.04(c)(1) is silent on and does not regulate an incr= ease in intensity of use, as contrasted with '5.1.04(c)(5), which does specifically regulate changes = in equipment on the basis of whether the change ><= span style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'>intensifies=3D a nonconforming use.&= nbsp; Because it is specifically mentioned in another subsection, we must presume that the ordinance intended not to do so when regulating maintenan= ce under '5.1.04(c)(1).<o:p></o:p> <o:p> </o:p> II. Conve= rsion from full-service to self-service<o:p= ></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection9> As decided in the August 7, 2002 summary judgment decis= ion, the conversion of the gasoline dispensing equipment from full-service to self-service, considered independently of the uses in the building and of = any changes to the building, does not involve any structural alterations to the building or any change in location of the pump island. It does not involve any change in= the use category of the use as a gasoline station. It only involved the replacement = of the pumps themselves with more modern equipment, followed by a change on the equipment to activate the electronic card-reading function. For this reason, it must be consi= dered under '5.1.04(c)(5).<o:p></o:p> The new dispensers, adapted to self-service, do not inc= rease the number of fueling positions. Further, the dispensers are not of greater size, capacity or produc= tive capacity, and their conversion to self-service only change whether it is t= he customer or an attendant who is operating the dispenser. Therefore, the change from full-s= ervice to self-service may be accomplished without DRB approval, under the first sentence of '5.1.04(c)(5).<o:p></o:p> <o:p> </o:p> III. Construction of a canopy over the existing pump island and fueling positions<o:p></o:p> The City argues that the proposal to construct even a limited canopy over the pump island is impermissible because the pump isla= nd is already within the front setback and therefore the canopy would violate the front setback. Applicant arg= ues from Appeal of Pearl Street Mobil, Docket No. 2001-249 (Vt. Supreme= Ct., December 21, 2001) (three-justice panel) that a canopy placed over a nonconforming use is not an enlargement of that use. However, the reasoning of that de= cision is inapplicable to the present canopy proposals because in Pearl Street= Mobil Athere was no allegation that the canopy would violate a= ny dimensional requirements@ in the City=3Ds zoning regulations.&= nbsp; In the present case, either a canopy over the pump island or a larg= er canopy would constitute the construction of a new nonconforming structure = in the front setback, which is not allowed without a variance unless it can be approved as an alteration of the existing nonconforming use represented by= the pump island, under '5.1.04(c)(2).<o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection10> Section 5.1.04(c)(2) provides in full that Aa nonconforming use or noncomplying structure may be al= tered with DRB approval in order to address considerations of energy, safety, environment and health so long as such alteration does not result in incre= ased floor area or increased use.<a style=3D'mso-footnote-id:ftn4' href=3D"#_ft= n4" name=3D"_ftnref4" title=3D""><![if !s= upportFootnotes]><span style=3D'font-size:12.0pt;font-fam= ily:Shruti; mso-ascii-font-family:Shruti;mso-fareast-font-family:"Times New Roman"; mso-hansi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareas= t-language: EN-US;mso-bidi-language:AR-SA'>[4]<![endif]></s= pan></a>@ That is,= it provides a limited exception to the general rule against alteration or expansion of nonconforming uses or structures. <o:p></o:p> At trial, the parties treated this section as if it pro= vided for alterations of nonconforming uses or structures if and only if the alteration were required to accomplish an improvement in the level of protection of health, safety, the environment, or energy conservation affo= rded by the project (for example to convert a stairway to an accessible ramp, o= r to install a berm to protect the municipal sewer system from hazardous spills= ). In fact, the language of the section allows alternate interpretations. While the phrase >in order to=3D may be interpreted to mean ><= span style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'>required=3D or >necessary,=3D it may also be read to mean merely >convenient=3D or >useful=3D to address the listed considerations. Similarly, while the word = >considerations=3D may be interpreted to mean ><= span style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'>regulatory requirements,=3D<s= pan style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'> it may also be read to mean merely the landowner</span= >=3Ds >business preferences=3D or the >customers=3D expectations.=3D <o:p></o= :p> If this section suffers from a similar lack of standard= s as was disapproved by the Supreme Court in In re Miserocchi, 170 Vt. 3= 20, 325 (2000), and see In re Handy and In re Jolley Associates, 171 V= t. 336, 345-347 (2000), no canopy could be approved as an exception to the general prohibition against expansion of nonconformities. If read closely, <sp= an style=3D'font-family:"WP TypographicSymbols";mso-bidi-font-family:Shruti; mso-char-type:symbol;mso-symbol-font-family:"WP TypographicSymbols"'>'5.1.04(c)(2) identifies the limited class of purposes intended for an alteration, to allow it to be considered for DRB approval,= but requires interpretation to provide even minimal Acriteria for the . . . exception[] under which the boar= d of adjustment may evaluate whether to approve a change in nonconforming use.<= /span>@ Miserocchi, 170 Vt. at 325. <o:p></o:p><= /p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection11> Because there is a strong policy against the creation o= f new nonconforming uses and structures, if '5.1.04(c)(2) can properly be applied at all, it only ma= kes sense if the public detriment of a new nonconforming structure must be bal= anced against an equally significant public benefit to health, safety or the environment, rather than merely being balanced against the convenience of = an applicant or its customers. = Using this interpretation, the evidence in the present case supports a finding t= hat the smaller canopy (only over the existing pump island) would improve publ= ic safety by allowing the lights to be recessed, thereby eliminating glare experienced by passing drivers and the surrounding neighborhood, and by protecting the functioning of the fire suppression system.<o:p></o:p></spa= n> On the other hand, the proposed larger canopy over the vehicle spaces at the pumps, as well as over the pump island, would only increase customers=3D convenience in using the facility, but would not incre= ase public safety, health, environmental protection or energy conservation any= more than the smaller canopy over the existing pump island. The proposed larger canopy would = not decrease safety and environmental risks due to the accumulation of ice and snow, because ice and snow must be cleared by the facility as it now exist= s, although it would make that job easier for the facility. The evidence does not support a f= inding that the proposed larger canopy is necessary to achieve compliance with any objective safety, health, energy or environmental requirements imposed on = the Applicant by any regulatory authority, such as for disability access, or f= ire or building code compliance, or to achieve any substantial safety, health, energy or environmental benefits to the public. <o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection12> This gas station has operated for many years without a canopy. It could operate saf= ely, by reducing glare, if the canopy were limited to extending over the pump isla= nd, even though the convenience and comfort of customers=3D use of self-service equipment and the owner=3Ds ease of operation of the facility would be enhanced b= y the presence of a larger canopy. </span= >Accordingly, only the 4' x 22' canopy as shown on site plans 105, 107 and 108 can be approved; to avoid incompatibility with the neighborhood for this new noncomplying structure, its fascia or edge may not be white in color, but should be a darker color compatible with the color of roof structures in t= he area.<o:p></o:p> <o:p> </o:p> IV. Condi= tional use approval of the neighborhood grocery store use<o:p></o:p></= p> We determined in the August 7, 2002, summary judgment decision that, even assuming a preexisting level of sales at the level cla= imed by Applicant and assuming that those sales were never discontinued under <= /span>'5.1.04(a)(3), they were simply not substantial enough to establish a preexisting neighborhood grocery store use. No evidence was presented at trial warranting a change in this ruling. Accordingly, the conversion of the use of the building from automob= ile service use to neighborhood grocery store use must obtain conditional use approval under '5.32.04.<o:p></o:p> The neighborhood grocery store use does not adversely a= ffect the capacity of any existing or planned community facilities. It does not affect any other ordi= nances or bylaws in effect, other than the increased nonconformity of the proposed roof as discussed in Section V below, and the excessive window size causing excessive lighting, as discussed in Section VI below.<o:p></o:p> The proposed neighborhood grocery store use will have a negligible effect on traffic on roads or highways in the vicinity, that is= , on Washington Street. It is exp= ected to experience few if any additional vehicle trips in the peak hours of Washington Street traffic than the vehicle repair garage use, and to gener= ate fewer trips on Washington Street as more of its customers can be expected = to be passing by on Washington Street for other purposes anyway. Turns in and out of the existing = curb cuts may be made safely, as long as the gasoline delivery tank truck is scheduled to deliver to the facility during off-peak hours. <o:p></o:p></s= pan> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection13> The character of the area is a mixed-use area along Washington Street, including residential uses, professional offices, and o= ther neighborhood commercial uses such as another neighborhood market two build= ings down Washington Street, many housed in formerly residential buildings. The conversion of the repair gara= ge to a convenience store will be compatible with and not adversely affect the character of the area in that it will convert the use from a non-conforming commercial use to a conditionally-allowed commercial use. However, it will only be compatib= le with the character of the area if its appearance and its operating characterist= ics are also compatible with a mixed-use residential area.<o:p></o:p></= p> The appearance of the building will adversely affect the character of the area unless the amount and placement of the glass window = area is reduced, due to the excessive amount of light for a residential area emanating through the upper quarter of the height of glass nearest the cei= ling<a style=3D'mso-footnote-id:ftn5' href=3D"#_ftn5" name=3D"_ftnref5" title=3D"= "><![if !supportFootnotes]><sup= ><span style=3D'font-size:12.0pt;font-family:Shruti;mso-ascii-font-family:Shruti; mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Times New= Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '>[5]<![endif]></a>, and through the glass corner proposed at the northerly corner of the front= of the building. We note = that in Exhibit 144, the corner of the building near the street is shown as brick,= but on Exhibit 148, showing a reduced amount of glass near the rear of that fa= ce of the building, the front corner of the building is shown as glass<a style=3D'mso-footnote-id:ftn6' href=3D"#_ftn6" name=3D"_ftnref6" title=3D"= "><![if !supportFootnotes]><sup= ><span style=3D'font-size:12.0pt;font-family:Shruti;mso-ascii-font-family:Shruti; mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Times New= Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '>[6]<![endif]></a>. To avoid an adverse effect on the character of the area, the front corner will have to be brick on both the = face of the building facing the street and on the face of the building facing t= he gas pumps. To avoid an adver= se effect on the character of the area, the panel above the doorway as shown = on Exhibits 145 and 148, and an equivalent panel of the top of the window, wi= ll have to be brick or some opaque material.= In connection with the redesigned windows, to avoid an adverse effe= ct on the character of the area, the windows in the face of the building facing = the street will need to be divided in some way, whether as separate windows, w= ith divided lights, or within an arched surround, to break up the commercial appearance of the expanse of glass facing the street. <o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection14> If the remaining outdoor lighting in the parking area is changed as proposed, neither the change of use to a convenience store nor = the appearance of the building will have an adverse effect on the residential neighborhood on Orange Street, as the visibility and audibility of the use= s on the property will be reduced as perceived from Orange Street.<o:p></o:p></= span> Applicant argues that the Court should not impose any operating hour limitations, but that instead the operating hours will be self-limiting as it will not be profitable to keep the store open after mo= st people in the neighborhood go to bed.&nbs= p; However, the Court is charged with the task of imposing or stating conditions so that any approved conditional use will not have certain adve= rse effects, including on the character of the area. This task may result in a differe= nt balance than that reached solely through the economics of an applicant</sp= an>=3Ds operations, or it may not; if the balance always opti= mized public as well as private interests, there would be no need for an assessm= ent of the effect of any proposal on the character of an area. Applicant=3D<s= pan style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'>s proposal to open for business at 6:00 a.m. and propos= al to operate to 10 p.m. Sunday through Thursday, and to midnight on Friday and Saturday will not adversely affect the character of the area as to the ope= ning times or as to the proposed closing time of 10 p.m. for the convenience st= ore on week nights, but will adversely affect the character of the area as to = the late night hours on Friday and Saturday nights, due to the headlights of vehicles leaving the property sweeping across the front windows of the hou= ses across Washington Street, and due to the appearance of the lighted store interior in the context of the otherwise-darkened neighborhood during the = late night hours.<o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection15> We first must point out that because Applicant<s= pan style=3D'font-family:"WP TypographicSymbols";mso-bidi-font-family:Shruti; mso-char-type:symbol;mso-symbol-font-family:"WP TypographicSymbols"'>=3Ds gasoline service use is a pre-existing, noncomplying = use, it may not extend beyond the hours of operation of the former gasoline ser= vice use. See Appeal of Smith<= /u>, 263-12-02 Vtec (Vt. Envtl. Ct., Dec 20, 2004) (slip op. at 3); Franklin County v. City of St. Albans, 154 Vt. 327, 331 (1990) (AIf the nonconforming use was not abandoned, as the trial court concluded, then resumption of activity at the jail to pre-[zoning ordinance] levels, so long as it was within the range of the previous acti= vity and not greater than the maximum activity within that [previous] range, wa= s not an expansion as a matter of law.@) T= he pre-existing gasoline service component opened for business at 6:00 to 7:00 a.m. and stayed open until 8:00 or 9:00 p.m. Monday through Saturday, and open= ed for business at 7:00 to 8:00 a.m. on Sundays, closing at 4:00 or 5:00 p.m. on Sunday afternoons. According= ly, the gasoline service component of Applicant=3Ds operation must observe the hours of 6:00 a.m. to 9:00= p.m. Monday through Saturday, and 7:00 a.m. to 5:00 p.m. on Sunday, independent= ly of the hours established in the conditional use approval of the neighborhood grocery store component of Applicant=3Ds operation<a style=3D'mso-footnote-id:ftn7' href=3D"#_= ftn7" name=3D"_ftnref7" title=3D""><![if !s= upportFootnotes]><span style=3D'font-size:12.0pt;font-fam= ily:Shruti; mso-ascii-font-family:Shruti;mso-fareast-font-family:"Times New Roman"; mso-hansi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareas= t-language: EN-US;mso-bidi-language:AR-SA'>[7]<![endif]></s= pan></a>.<o:p></o:p> The hours of operation of the neighborhood grocery store component of Applicant=3Ds proposal may extend from 6:00 a.m. to 10:00 p.m., so = that the interior lights of the building are reduced and the exterior lights are turned off to their nighttime security setting to avoid customers coming o= nto the property after that time. However, the largely residential character of the surrounding neighborhood precludes the midnight closing hours proposed for Friday and Saturday nights, even though some or even many neighborhood residents may generally tend to stay awake later on those nights. The professional office uses and neighborhood commercial uses are not open at that late hour. Although some traffic continues to travel on Washington Street at all hours, that traffic is not as disturbin= g to neighboring residences as is the effect of exiting headlights sweeping acr= oss the fronts of opposing buildings. Most importantly, the appearance of the well-lit glass front and si= de store windows is incompatible with the late-night quiet of a predominantly= residential neighborhood. <o:p></o:p> <o:p> </o:p> V. Remodeling of the building as alteration to a nonconforming structure under 5.1.04(b)<o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection16> As discussed in the August 7, 2002 summary judgment decision, the proposed remodeling of the building to accommodate the new convenience store use must be considered as a change to a nonconforming structure under '5.1.04, as well as requiring site plan approval. Under '5.1.04(b) a noncomplying structure may be used and continued, but may not be Amoved, enlarged, altered, extended, reconstructed or restored unless such changes comply with the standards of the distr= ict in which such structure is located.@ (Emphasis added).<o:p></o:p> With regard to the changes to the building=3Ds walls, windows and doors and roof, the building is be= ing reconstructed or altered, as the term alteration is defined in '5.2.03, in that it is undergoing structural change or rearrangement. The building = is a nonconforming structure only as to the front and side setbacks. None of the proposed window, wall= or door remodeling alterations occupy more of these setbacks than did the exi= sting building, so that the proposed remodeling alterations for the walls, windo= ws and doors do comply with '5.1.04(b). = However, not only is the roof proposed to be remodeled or altered, but the roof cha= nges also constitute an enlargement to the building, as the roof is proposed to= be raised in height and changed in design from a flat-topped shallow mansard-= style roof to a taller >pitched=3D or hip roof, with a peak over the front door as shown = in Exhibits 144, 145 and 148. B= ased on the scale of the site plan, more than half of the building is within the 30-foot side setback required for non-residential uses, and approximately = the front third of the building is within the 40-foot front setback required f= or non-residential uses. </span= >'5.12.04(e), made applicable through '5.14.04. = Thus, although the footprint is not proposed to be enlarged, it appears that, ba= sed on the design of the proposed roof in evidence, the proposed roof remodeli= ng alterations occupy more of both setbacks<a style=3D'mso-footnote-id:ftn8' href=3D"#_ftn8" name=3D"_ftnref8" title=3D""><![if !s= upportFootnotes]><span style=3D'font-size:12.0pt;font-fam= ily:Shruti; mso-ascii-font-family:Shruti;mso-fareast-font-family:"Times New Roman"; mso-hansi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareas= t-language: EN-US;mso-bidi-language:AR-SA'>[8]<![endif]></s= pan></a> than did the existing building, so that the proposed remodeling alteration= s for the roof fail to comply <a style=3D'mso-footnote-id:ftn9' href=3D"#_ftn9" name=3D"_ftnref9" title=3D""><![if !s= upportFootnotes]><span style=3D'font-size:12.0pt;font-fam= ily:Shruti; mso-ascii-font-family:Shruti;mso-fareast-font-family:"Times New Roman"; mso-hansi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareas= t-language: EN-US;mso-bidi-language:AR-SA'>[9]<![endif]></s= pan></a> with '5.1.04(b). <o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection17> VI. Site plan approval<o:p></o:p> Applicant has proposed five different site plans representing differences in the number and configuration of the proposed parking and loading spaces, the dumpster, the landscaping, and the canopy (Exhibits 104 through 108), with variations in parking and loading as show= n in Exhibits 133 through 135. <o= :p></o:p> The Zoning Regulations incorporate by reference the site plan standards from then-24 V.S.A. '4407(5)<a style=3D'mso-footnote-id:ftn10' href=3D"#_ftn= 10" name=3D"_ftnref10" title=3D""><![if !s= upportFootnotes]><span style=3D'font-size:12.0pt;font-fam= ily:Shruti; mso-ascii-font-family:Shruti;mso-fareast-font-family:"Times New Roman"; mso-hansi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareas= t-language: EN-US;mso-bidi-language:AR-SA'>[10]<![endif]></= span></a>, involving the adequacy of traffic access, circulation and parking; and landscaping and screening.<o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection18> The parking and loading requirements applicable under Article 7 of the Zoning Regulations must be analyzed separately for the gasoline service use and the convenience store use.<a style=3D'mso-footnot= e-id: ftn11' href=3D"#_ftn11" name=3D"_ftnref11" title=3D""><![if !supportFootnotes]><sup= ><span style=3D'font-size:12.0pt;font-family:Shruti;mso-ascii-font-family:Shruti; mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Times New= Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '>[11]<![endif]></a> The gasoline service use is preex= isting and under '5.7.01(e) the parking and loading requirements of the regulations do not apply to it. </s= pan>In any event, the four spaces at the pump island (numbered as spaces 1 throug= h 4 on all of the site plans), are adequate to serve the gasoline service function. Even if a customer= leaves a vehicle at the pump to go inside to pay, that space will simply be unavailable for a new gasoline customer for that period of time, as driver= s of vehicles seeking gasoline service who see congestion at the pumps as they approach the station will simply not stop at that station at that time.<sp= an style=3D'mso-spacerun:yes'> Regardless of whether a loading s= pace is designated on-site for the convenience store use, gasoline deliveries must= be scheduled to be made during off-peak times to avoid on-site circulation conflicts with the gasoline delivery tanker truck. This may well be Applicant= =3Ds practice in any event, but in the present case it mus= t be a condition of any site-plan approval.<o:p></o:p> As the use of the property as a neighborhood grocery st= ore was not preexisting, '5.7.01(e) does not apply to that use, so that the parki= ng and loading spaces required for the neighborhood grocery use must be analy= zed under Article 7. Under </spa= n>'5.7.01(b)(8) five spaces would be required (one space f= or every 200 square feet of the 940 square feet of floor space open to the pu= blic<a style=3D'mso-footnote-id:ftn12' href=3D"#_ftn12" name=3D"_ftnref12" title= =3D""><![if !supportFootnotes]><sup= ><span style=3D'font-size:12.0pt;font-family:Shruti;mso-ascii-font-family:Shruti; mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Times New= Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '>[12]<![endif]></a>), plus two spaces for the employees who might both be present at the same ti= me, if only while changing shifts, for a total of eleven parking spaces withou= t the need for a waiver. There is = no basis for a waiver of any of the eleven spaces, so that the number of spac= es shown in Exhibits 106 and 133-135 cannot be approved.<o:p></o:p> As less than a thousand square feet of floor space is o= pen to the public, the requirement for a loading space does not apply <= span style=3D'font-family:"WP TypographicSymbols";mso-bidi-font-family:Shruti; mso-char-type:symbol;mso-symbol-font-family:"WP TypographicSymbols"'>Aif there is not sufficient space on the lot for an off-street loading space.@ <= span style=3D'font-family:"WP TypographicSymbols";mso-bidi-font-family:Shruti; mso-char-type:symbol;mso-symbol-font-family:"WP TypographicSymbols"'>'5.7.03(b). </spa= n>While there are various locations on the lot shown on the different site plans f= or a loading space, they are not convenient to the building, are not as conveni= ent to the building as it would be for the deliveries to be made from a vehicle parked on the street in front of the building, and contain enough potentia= l for conflict at peak hours to support the Court=3D<s= pan style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'>s conclusion that the <span style=3D'font-family= :"WP TypographicSymbols"; mso-bidi-font-family:Shruti;mso-char-type:symbol;mso-symbol-font-family

content-type: multipart/related; boundary="----=_NextPart_01C5B9E4.5EF0D250" mime-version: 1.0 This document is a Web archive file. If you are seeing this message, this means your browser or editor doesn't support Web archive files. For more information on the Web archive format, go to http://officeupdate.microsoft.com/office/webarchive.htm ------=_NextPart_01C5B9E4.5EF0D250 content-location: file:///C:/CDB89D03/02-024cz.dec.htm content-transfer-encoding: quoted-printable content-type: text/html; charset="us-ascii" 209-12-97 Vtec, 215-8-00 Vtec, 222-9-00 Vtec, 175-10-01 Vtec</title= ></head> <body lang=3DEN-US style=3D'tab-interval:.5in;text-justify-trim:punctuatio= n'> <div class=3DSection1> = = ; &= nbsp; &nb= sp; = ; &= nbsp; STATE OF VERMONT<o:p></o:p> <o:p= > </o:p> = = ; &= nbsp; &nb= sp; = ; = ENVIRONMENTAL COURT<o:p></o:p> <o:p= > </o:p> }<o:p></o:p> Appeals of Wesco, Inc. = } Docket Nos. 209-12-97 Vtec, 215-9= -00 Vtec, 222-9-00 Vtec,<o:p></o:p> } 175= -10-01 Vtec and 24-1-02 Vtec<o:p></o:p> }<o:p></o:p> <o:p= > </o:p> = ; &= nbsp; &nb= sp; = ; &= nbsp; Decision and Order<o:p></o:p> Appellant-Applicant Wesco, Inc. (Applicant) is represen= ted by Jon Anderson, Esq. and William Simendinger; the City of Barre is repres= ented by Oliver L. Twombly, Esq. Interested persons Marjorie Sichel, Eugene Clermont, and Percy Labor represent themselves. <o:p><= /o:p> These consolidated cases have involved, over time, the following docket numbers. Do= cket Nos. 10-1-96 Vtec and 75-5-96 Vtec (formerly E96-010 and E96-075) (the 1996 cases) involved the first round of site plans for the site. The Court ruled on the merits of = these two cases in 1998, after nine days of evidentiary hearings. These two cases were the subject = of the Supreme Court=3Ds memorandum decision in Simendinger v. City of Barr= e, 171 Vt. 648 (2001), which affirmed this Court=3D<s= pan style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'>s decision in part, and reversed and remanded it in part. The Supreme Court affi= rmed the Court=3Ds determination that the repair garage qualifies as a pre-existing, non-complying structure, housing a non-conforming use. The majority also affirmed the Co= urt=3Ds determination that the proposed neighborhood grocery = store met the criteria of '5.14.02(c), subject to Applicant=3Ds obtaining conditional use approval of the neighborhood grocery store proposal. The = Supreme Court reversed and remanded the remainder of the 1998 decision for the municipal boards to consider Applicant=3Ds applications for conditional use approval and site pl= an approval on their merits.<o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection2> The parties agreed to the closure of the two 1996 cases= on the Court=3Ds docket, with all the evidence taken in those cases be= ing transferred to the current cases for consideration on their merits. In the above-captioned cases, a n= umber of legal issues were addressed by summary judgment in a decision issued Au= gust 7, 2002. Supplemental eviden= tiary hearings were held in 2003 over the course of nine additional days. Docket Nos. 215-9-00 Vtec and 222= -9-00 Vtec involve a second round of site plan proposals for the site. Docket Nos. 209-12-97 Vtec (forme= rly 115-3-95 Wncv) and 175-10-01 Vtec involve the conditional use application.= Docket No. 24-1-02 Vtec involves = the third round of site plans for the site.<o:p></o:p> In the consolidated cases, Applicant seeks conditional = use approval and site plan approval for proposed changes to its property at 169 Washington Street in a Planned Residential zoning district in the city of Barre. Applicant proposes to convert the use of the existing building on the property from an automobile repair garage<a style=3D'mso-footnote-id:ftn1' href=3D"#_ftn1" name=3D"_ft= nref1" title=3D""><![if !supportFootnotes]><span style=3D'font-size:12.0pt;font-fam= ily:Shruti; mso-ascii-font-family:Shruti;mso-fareast-font-family:"Times New Roman"; mso-hansi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareas= t-language: EN-US;mso-bidi-language:AR-SA'>[1]<![endif]></s= pan></a> to a neighborhood grocery store<a style=3D'mso-footnote-id:ftn2' href=3D"#= _ftn2" name=3D"_ftnref2" title=3D""><![if !s= upportFootnotes]><span style=3D'font-size:12.0pt;font-fam= ily:Shruti; mso-ascii-font-family:Shruti;mso-fareast-font-family:"Times New Roman"; mso-hansi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareas= t-language: EN-US;mso-bidi-language:AR-SA'>[2]<![endif]></s= pan></a> (convenience store), and to make associated changes in the building, keepi= ng the same footprint, and to make associated changes to the site=3Ds lighting, landscaping and parking. Specifically, Applicant proposes = to convert the existing number of gasoline dispensers from full-service opera= tion (operation of the dispensers by employees) to self-service operation by customers; proposes to sell convenience store items from the building, including deli sandwiches and other prepared foods; proposes to remodel the interior of the building and the doors and windows to eliminate the service bays and accommodate the proposed convenience store uses; proposes to rais= e and alter the roof shape and height; and proposes to construct a canopy over t= he existing pump island.<o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection3> The evidentiary hearings in 1997 and in 2003 were held = in this matter before Merideth Wright, Environmental Judge, who also took a s= ite visit alone, by agreement of the parties.= The parties were given the opportunity to submit written memoranda = and requests for findings. Upon consideration of all the evidence, as illustrated by the site visit, and o= f the written memoranda and requests for findings filed by the parties, the Court finds and concludes as follows.<o:p></o:p> <o:p> </o:p> Since before the enactment of zoning in Barre in 1974, Applicant=3Ds property has contained an automobile repair garage an= d a four-fueling-position gasoline station on a single gasoline island. The property line at the Washingt= on Street frontage is located parallel to and approximately 72 feet (by scale from the site plan) from the curb marki= ng the edge of the street. Unde= r the Zoning Regulations, setbacks are measured from the property lines, not fro= m the traveled way of the street. = The existing building is located approximately 122 feet from the front property line, and is located from= 72 feet to fifteen feet from the easterly side property line. The existing gasoline = pump island is located approximately ten feet from the front property line. The lot is approximately 16,000 s= quare feet in area, and contains a relatively flat area extending approximately = one hundred feet back from Washington Street to the beginning of the existing = tree line, beyond which it slopes steeply downwards in back towards Orange Street. <o:p></o:p></= p> The existing light over the pump island is outdated bot= h as to its engineering and its design. Because the bulb or light source is visible, rather than shielded w= ithin a downcast light fixture or canopy, it produces glare visible to pedestria= ns, drivers of vehicles, and neighborhood residents, by having a visible bulb = or light source and one that is of a relative high wattage. Because it is not shielded upward= s or to the sides, it also produces light extending unnecessarily far from the pump island and fueling positions. <o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection4> The existing parking of vehicles awaiting repair on the= site is haphazard and in the winter tends to become snowed into those positions= for a relatively long period of time. The large number of vehicles awaiting repair and parked outside is incompatible with the appearance of a residential neighborhood, and is vis= ible viewed down Charles Street from above, as well as from Washington Street.<= span style=3D'mso-spacerun:yes'> A storage trailer parked behind t= he building is visible from Orange Street and by pedestrians on or near the property, and contributes to the cluttered appearance of the property. The building is in need of mainte= nance. During its hours of operation, a = repair garage use creates noise from power and pneumatic equipment, and may create fumes from vehicles in need of repair.&nb= sp; Hazardous materials used in vehicle maintenance are used and stored= on the premises. <o:p></o:p> When it operated as a repair garage and gas station pri= or to the adoption of zoning in Barre, the repair garage operated from 6:00 or 7= :00 a.m. to 5:00 p.m. on weekdays and until about noon on Saturdays, and was c= losed on Sundays, while the gasoline service component opened for business at 6:= 00 or 7:00 a.m. and stayed open until 8:00 or 9:00 p.m Monday through Saturday, = and opened for business at 7:00 or 8:00 a.m. and stayed open until 4:00 or 5:0= 0 p.m on Sundays. <o:p></o:p> Washington Street is Route 302, a main traffic artery conducting traffic from the east downhill towards the central business dis= trict of the City of Barre. Southe= asterly and up Washington Street from Applicant=3Ds property, Washington Street is zoned as a Planned Residential zoning district to a depth of a single lot on both sides of Washington Street. On both s= ides, the lots behind those fronting on Washington Street are zoned in the R-10 Residential zoning district. Northwesterly and down Washington Street from Applicant=3Ds property, the Planned Residential zoning district wid= ens to a depth of several lots on both sides of Washington Street. Approximately three or four block= s up Washington Street from Applicant=3Ds lot, both sides of Washington Street are zoned Commercial. The City<= span style=3D'font-family:"WP TypographicSymbols";mso-bidi-font-family:Shruti; mso-char-type:symbol;mso-symbol-font-family:"WP TypographicSymbols"'>=3Ds historic central business district begins approximate= ly the same distance downhill from or northwesterly of Applicant=3Ds property. </sp= an>The area is a mixed use area with residences, professional offices, and some commercial uses. Many of the buildings in the area are nineteenth-century and early-twentieth-century residential buildings, although some have been remodeled or re-sided with = later and less-attractive or less-historical materials.<o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection5> Washington Street carries approximately 8058 vehicles p= er day, or approximately 975 vehicles per hour in the design hour. Whether the use on the lot is an = automobile service and gas station (at 75 vehicle trip ends for the peak hour counted= at this location) or is a convenience store with gasoline pumps as proposed (predicted to be a peak of 78 vehicle trip ends per hour using recognized transportation engineering methods), the use will not appreciably affect t= he traffic on Washington Street. Moreover, the proposed project will generate less traffic traveling= on Washington Street than does the present use as an automobile service type = of gas station, because approximately 60% of convenience store/gas station tr= affic is so-called pass-by traffic. </spa= n>That is, more of the traffic stopping at the proposed convenience store and gas station will be traffic traveling on Washington Street for other purposes = than was the case with the automobile service type of gas station. In addition, more customers for t= he convenience store will travel by foot and bicycle to the property from the surrounding neighborhood, as compared with the customers for the automobile service component of the automobile service type of gas station.<o:p></o:p= > The adjoining property along Washington Street uphill or southeasterly of the Applicant lot is a single-family residence currently = with a day care home occupation, also in the Planned Residential zoning distric= t. The adjoining property along Wash= ington Street downhill or northwesterly of the Applicant=3D<s= pan style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'>s lot is a multiple-unit apartment building. A seven-foot-wide easement runs o= n the northeasterly portion of the Applicant=3Ds lot, providing access for the apartment residents to a parking lot to serve the apartment building. Adjacent to the apartment buildin= g lot is a neighborhood market without gasoline service. Both the apartment and the neighb= orhood market are also in the Planned Residential zoning district. The properties across Washington = Street are residential. The windows= of the residential building directly across Washington Street from Applicant</spa= n>=3Ds building face the easterly curb cut on Applicant</spa= n>=3Ds property so that the headlights of any vehicles exiti= ng Applicant=3Ds property via that curb cut shine directly into the residential rooms of that building. <o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection6> The adjoining properties to the southwest along Orange Street are single family residences, located in what one witness described= as a charming residential district, in the R-10 Residential zoning district.<sp= an style=3D'mso-spacerun:yes'> They are located at a floor eleva= tion substantially below that of Washington Street. The glare from the existing light= s on Applicant=3Ds property and an existing storage trailer behind the existing building can be seen from at least two of the Orange Street properties.<o:p></o:p> The new gasoline pumping equipment, adapted to self-ser= vice, does not increase the number of existing fueling positions, which remains = as four fueling positions. The equipment is not of a greater size, capacity or productive capacity; that = is, no greater amount of gasoline or number of vehicles could as a practical m= atter be processed through the facility than with the previous equipment. <o:p></o:p> The floor space >open to the public=3D does not include the floor space inside the built-in w= all coolers, even if customers are able to reach into the coolers to remove it= ems from them. The floor space o= pen to the public in the proposed building is approximately 940 square feet, incl= uding the retail space and the bathrooms.<o:p></o:p> <o:p> </o:p> I. Issues= not before the Court in the present decision.<o:p></o:p> Based on the decision in Simendinger v. City of Barr= e, 171 Vt. 648 (2001), the following two issues were not reopened in the rema= nded or additional proceedings, and remain the law of the case. First, the building on the site qualifies for consideration as a pre-existing, noncomplying structure (too close to the front and easterly side setbacks), on a pre-existing undersiz= ed lot, housing a pre-existing, nonconforming (repair garage and gasoline ser= vice) use. Second, the proposed neighborhood grocery store satisfied the criteria of '5.14.02(c), allowing Applicant to apply for conditional= use approval of the neighborhood grocery store proposal in the remanded proceedings.<o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection7> The City also asks the Court to revisit its August 7, 2= 002 summary judgment decision that conversion of the use of the building from automobile service use to convenience store use should be analyzed as an application for a conditional use, in addition to determining wheth= er changes to the gasoline service aspects of the proposal meet the standards= of the ordinance for alterations to that preexisting nonconforming use. This Court declines to reverse its August 7, 2002 decision. Rat= her, in that decision this Court very carefully examined this issue and its relati= on to the Supreme Court=3Ds memorandum decision in Simendinger v. City of Barr= e, 171 Vt. 648 (2001). (See thi= s Court=3Ds August 7, 2002 decision, at pages 7 through 10, and in particular at page 9.) Under= the Zoning Regulations of the City of Barre, a proposal that falls into more t= han one use category, such as the present proposal, must obtain approval under= each and every use category for which it may qualify, as the Zoning Regulat= ions allow more than one use per lot. </= span><o:p></o:p> Section 5.1.04 governing nonconforming uses and noncomp= lying structures states the intent of this section to Amaintain the property rights of a parcel of land which = has a nonconforming use or noncomplying structure, while at the same time protec= ting the property rights of the surrounding neighborhood.@ Section 5.1.05(3) allows an undersized lot with an existing Anonconforming structure or noncomplying building= @ to be developed for the purposes allowed in the distri= ct, Aprovided that the coverage of the building is not enlar= ged.@ Appeal of Mullen, Docket No. 187-9-00 Vtec (Vt. Envtl. Ct. March 27, 2002).@ The City suggests that its nonconforming use provisions do not comply with current interpretations of state law. </spa= n><o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection8> Municipalities may and do take different approaches to regulating nonconforming uses. </sp= an>In re Casella Waste Management, 175 Vt. 335, 338-39 (2003). We must apply the specific requir= ements of the City=3Ds particular requirements regarding nonconforming uses = and noncomplying structures to the extent possible to make sense of and give meaning to all of its provisions, read as a whole, and to avoid interpreti= ng any of its provisions as surplusage. Town of Calais v. County Road Commrs., 173 Vt. 620, 621 (200= 2) (mem.) We will not invalidat= e any of the provisions of the Zoning Regulations, even at the request of the Ci= ty<a style=3D'mso-footnote-id:ftn3' href=3D"#_ftn3" name=3D"_ftnref3" title=3D"= "><![if !supportFootnotes]><sup= ><span style=3D'font-size:12.0pt;font-family:Shruti;mso-ascii-font-family:Shruti; mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Times New= Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '>[3]<![endif]></a> itself, unless there is no alternative interpretation to doing so.<o:p></o= :p> Indeed, we note that at any time after July 1, 2001, wh= en 24 V.S.A. '4443(d) (since recodified as '4449(d)) took effect, the City could have proposed amendments to its Zoning Regulations so that the amended regulations would= have been applicable to any new applications not already pending at the time the amendments were proposed. If= the City feels that any of its regulations do not comport with state law, it m= ay certainly choose to amend them. </s= pan>If the City had wanted to add a requirement that only one use is allowed per = lot, or had wanted to define the use category of ><= span style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'>neighborhood grocery store,=3D<s= pan style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'> or had wanted to alter the specific provisions in its Zoning Regulations relating to nonconforming uses, the City could have act= ed so that those proposed amendments would have been applicable to any applicati= ons filed after those amendments were first warned.<o:p></o:p> The City also renews consideration of another issue concluded in the August 7, 2002 decision on summary judgment: whether </sp= an>'5.1.04(c)(1), regarding maintenance of a nonconforming structure, prevents the interior remodeling because it will result in incr= eased use and in increased floor area open to the public. To the extent that this is also a request to reconsider that issue, the Court declines to change the reasoni= ng in that decision: first, '5.1.04(c)(1) is inapplicable; second, even if it were to apply, the proposed renovation does not result in any increase in the </sp= an>>floor area=3D of the building; and, third, '5.1.04(c)(1) is silent on and does not regulate an incr= ease in intensity of use, as contrasted with '5.1.04(c)(5), which does specifically regulate changes = in equipment on the basis of whether the change ><= span style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'>intensifies=3D a nonconforming use.&= nbsp; Because it is specifically mentioned in another subsection, we must presume that the ordinance intended not to do so when regulating maintenan= ce under '5.1.04(c)(1).<o:p></o:p> <o:p> </o:p> II. Conve= rsion from full-service to self-service<o:p= ></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection9> As decided in the August 7, 2002 summary judgment decis= ion, the conversion of the gasoline dispensing equipment from full-service to self-service, considered independently of the uses in the building and of = any changes to the building, does not involve any structural alterations to the building or any change in location of the pump island. It does not involve any change in= the use category of the use as a gasoline station. It only involved the replacement = of the pumps themselves with more modern equipment, followed by a change on the equipment to activate the electronic card-reading function. For this reason, it must be consi= dered under '5.1.04(c)(5).<o:p></o:p> The new dispensers, adapted to self-service, do not inc= rease the number of fueling positions. Further, the dispensers are not of greater size, capacity or produc= tive capacity, and their conversion to self-service only change whether it is t= he customer or an attendant who is operating the dispenser. Therefore, the change from full-s= ervice to self-service may be accomplished without DRB approval, under the first sentence of '5.1.04(c)(5).<o:p></o:p> <o:p> </o:p> III. Construction of a canopy over the existing pump island and fueling positions<o:p></o:p> The City argues that the proposal to construct even a limited canopy over the pump island is impermissible because the pump isla= nd is already within the front setback and therefore the canopy would violate the front setback. Applicant arg= ues from Appeal of Pearl Street Mobil, Docket No. 2001-249 (Vt. Supreme= Ct., December 21, 2001) (three-justice panel) that a canopy placed over a nonconforming use is not an enlargement of that use. However, the reasoning of that de= cision is inapplicable to the present canopy proposals because in Pearl Street= Mobil Athere was no allegation that the canopy would violate a= ny dimensional requirements@ in the City=3Ds zoning regulations.&= nbsp; In the present case, either a canopy over the pump island or a larg= er canopy would constitute the construction of a new nonconforming structure = in the front setback, which is not allowed without a variance unless it can be approved as an alteration of the existing nonconforming use represented by= the pump island, under '5.1.04(c)(2).<o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection10> Section 5.1.04(c)(2) provides in full that Aa nonconforming use or noncomplying structure may be al= tered with DRB approval in order to address considerations of energy, safety, environment and health so long as such alteration does not result in incre= ased floor area or increased use.<a style=3D'mso-footnote-id:ftn4' href=3D"#_ft= n4" name=3D"_ftnref4" title=3D""><![if !s= upportFootnotes]><span style=3D'font-size:12.0pt;font-fam= ily:Shruti; mso-ascii-font-family:Shruti;mso-fareast-font-family:"Times New Roman"; mso-hansi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareas= t-language: EN-US;mso-bidi-language:AR-SA'>[4]<![endif]></s= pan></a>@ That is,= it provides a limited exception to the general rule against alteration or expansion of nonconforming uses or structures. <o:p></o:p> At trial, the parties treated this section as if it pro= vided for alterations of nonconforming uses or structures if and only if the alteration were required to accomplish an improvement in the level of protection of health, safety, the environment, or energy conservation affo= rded by the project (for example to convert a stairway to an accessible ramp, o= r to install a berm to protect the municipal sewer system from hazardous spills= ). In fact, the language of the section allows alternate interpretations. While the phrase >in order to=3D may be interpreted to mean ><= span style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'>required=3D or >necessary,=3D it may also be read to mean merely >convenient=3D or >useful=3D to address the listed considerations. Similarly, while the word = >considerations=3D may be interpreted to mean ><= span style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'>regulatory requirements,=3D<s= pan style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'> it may also be read to mean merely the landowner</span= >=3Ds >business preferences=3D or the >customers=3D expectations.=3D <o:p></o= :p> If this section suffers from a similar lack of standard= s as was disapproved by the Supreme Court in In re Miserocchi, 170 Vt. 3= 20, 325 (2000), and see In re Handy and In re Jolley Associates, 171 V= t. 336, 345-347 (2000), no canopy could be approved as an exception to the general prohibition against expansion of nonconformities. If read closely, <sp= an style=3D'font-family:"WP TypographicSymbols";mso-bidi-font-family:Shruti; mso-char-type:symbol;mso-symbol-font-family:"WP TypographicSymbols"'>'5.1.04(c)(2) identifies the limited class of purposes intended for an alteration, to allow it to be considered for DRB approval,= but requires interpretation to provide even minimal Acriteria for the . . . exception[] under which the boar= d of adjustment may evaluate whether to approve a change in nonconforming use.<= /span>@ Miserocchi, 170 Vt. at 325. <o:p></o:p><= /p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection11> Because there is a strong policy against the creation o= f new nonconforming uses and structures, if '5.1.04(c)(2) can properly be applied at all, it only ma= kes sense if the public detriment of a new nonconforming structure must be bal= anced against an equally significant public benefit to health, safety or the environment, rather than merely being balanced against the convenience of = an applicant or its customers. = Using this interpretation, the evidence in the present case supports a finding t= hat the smaller canopy (only over the existing pump island) would improve publ= ic safety by allowing the lights to be recessed, thereby eliminating glare experienced by passing drivers and the surrounding neighborhood, and by protecting the functioning of the fire suppression system.<o:p></o:p></spa= n> On the other hand, the proposed larger canopy over the vehicle spaces at the pumps, as well as over the pump island, would only increase customers=3D convenience in using the facility, but would not incre= ase public safety, health, environmental protection or energy conservation any= more than the smaller canopy over the existing pump island. The proposed larger canopy would = not decrease safety and environmental risks due to the accumulation of ice and snow, because ice and snow must be cleared by the facility as it now exist= s, although it would make that job easier for the facility. The evidence does not support a f= inding that the proposed larger canopy is necessary to achieve compliance with any objective safety, health, energy or environmental requirements imposed on = the Applicant by any regulatory authority, such as for disability access, or f= ire or building code compliance, or to achieve any substantial safety, health, energy or environmental benefits to the public. <o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection12> This gas station has operated for many years without a canopy. It could operate saf= ely, by reducing glare, if the canopy were limited to extending over the pump isla= nd, even though the convenience and comfort of customers=3D use of self-service equipment and the owner=3Ds ease of operation of the facility would be enhanced b= y the presence of a larger canopy. </span= >Accordingly, only the 4' x 22' canopy as shown on site plans 105, 107 and 108 can be approved; to avoid incompatibility with the neighborhood for this new noncomplying structure, its fascia or edge may not be white in color, but should be a darker color compatible with the color of roof structures in t= he area.<o:p></o:p> <o:p> </o:p> IV. Condi= tional use approval of the neighborhood grocery store use<o:p></o:p></= p> We determined in the August 7, 2002, summary judgment decision that, even assuming a preexisting level of sales at the level cla= imed by Applicant and assuming that those sales were never discontinued under <= /span>'5.1.04(a)(3), they were simply not substantial enough to establish a preexisting neighborhood grocery store use. No evidence was presented at trial warranting a change in this ruling. Accordingly, the conversion of the use of the building from automob= ile service use to neighborhood grocery store use must obtain conditional use approval under '5.32.04.<o:p></o:p> The neighborhood grocery store use does not adversely a= ffect the capacity of any existing or planned community facilities. It does not affect any other ordi= nances or bylaws in effect, other than the increased nonconformity of the proposed roof as discussed in Section V below, and the excessive window size causing excessive lighting, as discussed in Section VI below.<o:p></o:p> The proposed neighborhood grocery store use will have a negligible effect on traffic on roads or highways in the vicinity, that is= , on Washington Street. It is exp= ected to experience few if any additional vehicle trips in the peak hours of Washington Street traffic than the vehicle repair garage use, and to gener= ate fewer trips on Washington Street as more of its customers can be expected = to be passing by on Washington Street for other purposes anyway. Turns in and out of the existing = curb cuts may be made safely, as long as the gasoline delivery tank truck is scheduled to deliver to the facility during off-peak hours. <o:p></o:p></s= pan> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection13> The character of the area is a mixed-use area along Washington Street, including residential uses, professional offices, and o= ther neighborhood commercial uses such as another neighborhood market two build= ings down Washington Street, many housed in formerly residential buildings. The conversion of the repair gara= ge to a convenience store will be compatible with and not adversely affect the character of the area in that it will convert the use from a non-conforming commercial use to a conditionally-allowed commercial use. However, it will only be compatib= le with the character of the area if its appearance and its operating characterist= ics are also compatible with a mixed-use residential area.<o:p></o:p></= p> The appearance of the building will adversely affect the character of the area unless the amount and placement of the glass window = area is reduced, due to the excessive amount of light for a residential area emanating through the upper quarter of the height of glass nearest the cei= ling<a style=3D'mso-footnote-id:ftn5' href=3D"#_ftn5" name=3D"_ftnref5" title=3D"= "><![if !supportFootnotes]><sup= ><span style=3D'font-size:12.0pt;font-family:Shruti;mso-ascii-font-family:Shruti; mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Times New= Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '>[5]<![endif]></a>, and through the glass corner proposed at the northerly corner of the front= of the building. We note = that in Exhibit 144, the corner of the building near the street is shown as brick,= but on Exhibit 148, showing a reduced amount of glass near the rear of that fa= ce of the building, the front corner of the building is shown as glass<a style=3D'mso-footnote-id:ftn6' href=3D"#_ftn6" name=3D"_ftnref6" title=3D"= "><![if !supportFootnotes]><sup= ><span style=3D'font-size:12.0pt;font-family:Shruti;mso-ascii-font-family:Shruti; mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Times New= Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '>[6]<![endif]></a>. To avoid an adverse effect on the character of the area, the front corner will have to be brick on both the = face of the building facing the street and on the face of the building facing t= he gas pumps. To avoid an adver= se effect on the character of the area, the panel above the doorway as shown = on Exhibits 145 and 148, and an equivalent panel of the top of the window, wi= ll have to be brick or some opaque material.= In connection with the redesigned windows, to avoid an adverse effe= ct on the character of the area, the windows in the face of the building facing = the street will need to be divided in some way, whether as separate windows, w= ith divided lights, or within an arched surround, to break up the commercial appearance of the expanse of glass facing the street. <o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection14> If the remaining outdoor lighting in the parking area is changed as proposed, neither the change of use to a convenience store nor = the appearance of the building will have an adverse effect on the residential neighborhood on Orange Street, as the visibility and audibility of the use= s on the property will be reduced as perceived from Orange Street.<o:p></o:p></= span> Applicant argues that the Court should not impose any operating hour limitations, but that instead the operating hours will be self-limiting as it will not be profitable to keep the store open after mo= st people in the neighborhood go to bed.&nbs= p; However, the Court is charged with the task of imposing or stating conditions so that any approved conditional use will not have certain adve= rse effects, including on the character of the area. This task may result in a differe= nt balance than that reached solely through the economics of an applicant</sp= an>=3Ds operations, or it may not; if the balance always opti= mized public as well as private interests, there would be no need for an assessm= ent of the effect of any proposal on the character of an area. Applicant=3D<s= pan style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'>s proposal to open for business at 6:00 a.m. and propos= al to operate to 10 p.m. Sunday through Thursday, and to midnight on Friday and Saturday will not adversely affect the character of the area as to the ope= ning times or as to the proposed closing time of 10 p.m. for the convenience st= ore on week nights, but will adversely affect the character of the area as to = the late night hours on Friday and Saturday nights, due to the headlights of vehicles leaving the property sweeping across the front windows of the hou= ses across Washington Street, and due to the appearance of the lighted store interior in the context of the otherwise-darkened neighborhood during the = late night hours.<o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection15> We first must point out that because Applicant<s= pan style=3D'font-family:"WP TypographicSymbols";mso-bidi-font-family:Shruti; mso-char-type:symbol;mso-symbol-font-family:"WP TypographicSymbols"'>=3Ds gasoline service use is a pre-existing, noncomplying = use, it may not extend beyond the hours of operation of the former gasoline ser= vice use. See Appeal of Smith<= /u>, 263-12-02 Vtec (Vt. Envtl. Ct., Dec 20, 2004) (slip op. at 3); Franklin County v. City of St. Albans, 154 Vt. 327, 331 (1990) (AIf the nonconforming use was not abandoned, as the trial court concluded, then resumption of activity at the jail to pre-[zoning ordinance] levels, so long as it was within the range of the previous acti= vity and not greater than the maximum activity within that [previous] range, wa= s not an expansion as a matter of law.@) T= he pre-existing gasoline service component opened for business at 6:00 to 7:00 a.m. and stayed open until 8:00 or 9:00 p.m. Monday through Saturday, and open= ed for business at 7:00 to 8:00 a.m. on Sundays, closing at 4:00 or 5:00 p.m. on Sunday afternoons. According= ly, the gasoline service component of Applicant=3Ds operation must observe the hours of 6:00 a.m. to 9:00= p.m. Monday through Saturday, and 7:00 a.m. to 5:00 p.m. on Sunday, independent= ly of the hours established in the conditional use approval of the neighborhood grocery store component of Applicant=3Ds operation<a style=3D'mso-footnote-id:ftn7' href=3D"#_= ftn7" name=3D"_ftnref7" title=3D""><![if !s= upportFootnotes]><span style=3D'font-size:12.0pt;font-fam= ily:Shruti; mso-ascii-font-family:Shruti;mso-fareast-font-family:"Times New Roman"; mso-hansi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareas= t-language: EN-US;mso-bidi-language:AR-SA'>[7]<![endif]></s= pan></a>.<o:p></o:p> The hours of operation of the neighborhood grocery store component of Applicant=3Ds proposal may extend from 6:00 a.m. to 10:00 p.m., so = that the interior lights of the building are reduced and the exterior lights are turned off to their nighttime security setting to avoid customers coming o= nto the property after that time. However, the largely residential character of the surrounding neighborhood precludes the midnight closing hours proposed for Friday and Saturday nights, even though some or even many neighborhood residents may generally tend to stay awake later on those nights. The professional office uses and neighborhood commercial uses are not open at that late hour. Although some traffic continues to travel on Washington Street at all hours, that traffic is not as disturbin= g to neighboring residences as is the effect of exiting headlights sweeping acr= oss the fronts of opposing buildings. Most importantly, the appearance of the well-lit glass front and si= de store windows is incompatible with the late-night quiet of a predominantly= residential neighborhood. <o:p></o:p> <o:p> </o:p> V. Remodeling of the building as alteration to a nonconforming structure under 5.1.04(b)<o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection16> As discussed in the August 7, 2002 summary judgment decision, the proposed remodeling of the building to accommodate the new convenience store use must be considered as a change to a nonconforming structure under '5.1.04, as well as requiring site plan approval. Under '5.1.04(b) a noncomplying structure may be used and continued, but may not be Amoved, enlarged, altered, extended, reconstructed or restored unless such changes comply with the standards of the distr= ict in which such structure is located.@ (Emphasis added).<o:p></o:p> With regard to the changes to the building=3Ds walls, windows and doors and roof, the building is be= ing reconstructed or altered, as the term alteration is defined in '5.2.03, in that it is undergoing structural change or rearrangement. The building = is a nonconforming structure only as to the front and side setbacks. None of the proposed window, wall= or door remodeling alterations occupy more of these setbacks than did the exi= sting building, so that the proposed remodeling alterations for the walls, windo= ws and doors do comply with '5.1.04(b). = However, not only is the roof proposed to be remodeled or altered, but the roof cha= nges also constitute an enlargement to the building, as the roof is proposed to= be raised in height and changed in design from a flat-topped shallow mansard-= style roof to a taller >pitched=3D or hip roof, with a peak over the front door as shown = in Exhibits 144, 145 and 148. B= ased on the scale of the site plan, more than half of the building is within the 30-foot side setback required for non-residential uses, and approximately = the front third of the building is within the 40-foot front setback required f= or non-residential uses. </span= >'5.12.04(e), made applicable through '5.14.04. = Thus, although the footprint is not proposed to be enlarged, it appears that, ba= sed on the design of the proposed roof in evidence, the proposed roof remodeli= ng alterations occupy more of both setbacks<a style=3D'mso-footnote-id:ftn8' href=3D"#_ftn8" name=3D"_ftnref8" title=3D""><![if !s= upportFootnotes]><span style=3D'font-size:12.0pt;font-fam= ily:Shruti; mso-ascii-font-family:Shruti;mso-fareast-font-family:"Times New Roman"; mso-hansi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareas= t-language: EN-US;mso-bidi-language:AR-SA'>[8]<![endif]></s= pan></a> than did the existing building, so that the proposed remodeling alteration= s for the roof fail to comply <a style=3D'mso-footnote-id:ftn9' href=3D"#_ftn9" name=3D"_ftnref9" title=3D""><![if !s= upportFootnotes]><span style=3D'font-size:12.0pt;font-fam= ily:Shruti; mso-ascii-font-family:Shruti;mso-fareast-font-family:"Times New Roman"; mso-hansi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareas= t-language: EN-US;mso-bidi-language:AR-SA'>[9]<![endif]></s= pan></a> with '5.1.04(b). <o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection17> VI. Site plan approval<o:p></o:p> Applicant has proposed five different site plans representing differences in the number and configuration of the proposed parking and loading spaces, the dumpster, the landscaping, and the canopy (Exhibits 104 through 108), with variations in parking and loading as show= n in Exhibits 133 through 135. <o= :p></o:p> The Zoning Regulations incorporate by reference the site plan standards from then-24 V.S.A. '4407(5)<a style=3D'mso-footnote-id:ftn10' href=3D"#_ftn= 10" name=3D"_ftnref10" title=3D""><![if !s= upportFootnotes]><span style=3D'font-size:12.0pt;font-fam= ily:Shruti; mso-ascii-font-family:Shruti;mso-fareast-font-family:"Times New Roman"; mso-hansi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareas= t-language: EN-US;mso-bidi-language:AR-SA'>[10]<![endif]></= span></a>, involving the adequacy of traffic access, circulation and parking; and landscaping and screening.<o:p></o:p> </div> <span style=3D'font-size:12.0pt;line-height:150%;font-family:Shruti;mso-as= cii-font-family: Shruti;mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Ti= mes New Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '> <div class=3DSection18> The parking and loading requirements applicable under Article 7 of the Zoning Regulations must be analyzed separately for the gasoline service use and the convenience store use.<a style=3D'mso-footnot= e-id: ftn11' href=3D"#_ftn11" name=3D"_ftnref11" title=3D""><![if !supportFootnotes]><sup= ><span style=3D'font-size:12.0pt;font-family:Shruti;mso-ascii-font-family:Shruti; mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Times New= Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '>[11]<![endif]></a> The gasoline service use is preex= isting and under '5.7.01(e) the parking and loading requirements of the regulations do not apply to it. </s= pan>In any event, the four spaces at the pump island (numbered as spaces 1 throug= h 4 on all of the site plans), are adequate to serve the gasoline service function. Even if a customer= leaves a vehicle at the pump to go inside to pay, that space will simply be unavailable for a new gasoline customer for that period of time, as driver= s of vehicles seeking gasoline service who see congestion at the pumps as they approach the station will simply not stop at that station at that time.<sp= an style=3D'mso-spacerun:yes'> Regardless of whether a loading s= pace is designated on-site for the convenience store use, gasoline deliveries must= be scheduled to be made during off-peak times to avoid on-site circulation conflicts with the gasoline delivery tanker truck. This may well be Applicant= =3Ds practice in any event, but in the present case it mus= t be a condition of any site-plan approval.<o:p></o:p> As the use of the property as a neighborhood grocery st= ore was not preexisting, '5.7.01(e) does not apply to that use, so that the parki= ng and loading spaces required for the neighborhood grocery use must be analy= zed under Article 7. Under </spa= n>'5.7.01(b)(8) five spaces would be required (one space f= or every 200 square feet of the 940 square feet of floor space open to the pu= blic<a style=3D'mso-footnote-id:ftn12' href=3D"#_ftn12" name=3D"_ftnref12" title= =3D""><![if !supportFootnotes]><sup= ><span style=3D'font-size:12.0pt;font-family:Shruti;mso-ascii-font-family:Shruti; mso-fareast-font-family:"Times New Roman";mso-hansi-font-family:"Times New= Roman"; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA= '>[12]<![endif]></a>), plus two spaces for the employees who might both be present at the same ti= me, if only while changing shifts, for a total of eleven parking spaces withou= t the need for a waiver. There is = no basis for a waiver of any of the eleven spaces, so that the number of spac= es shown in Exhibits 106 and 133-135 cannot be approved.<o:p></o:p> As less than a thousand square feet of floor space is o= pen to the public, the requirement for a loading space does not apply <= span style=3D'font-family:"WP TypographicSymbols";mso-bidi-font-family:Shruti; mso-char-type:symbol;mso-symbol-font-family:"WP TypographicSymbols"'>Aif there is not sufficient space on the lot for an off-street loading space.@ <= span style=3D'font-family:"WP TypographicSymbols";mso-bidi-font-family:Shruti; mso-char-type:symbol;mso-symbol-font-family:"WP TypographicSymbols"'>'5.7.03(b). </spa= n>While there are various locations on the lot shown on the different site plans f= or a loading space, they are not convenient to the building, are not as conveni= ent to the building as it would be for the deliveries to be made from a vehicle parked on the street in front of the building, and contain enough potentia= l for conflict at peak hours to support the Court=3D<s= pan style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'>s conclusion that the <span style=3D'font-family= :"WP TypographicSymbols"; mso-bidi-font-family:Shruti;mso-char-type:symbol;mso-symbol-font-family