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nbsp; STATE
OF VERMONT
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ENVIRONMENTAL
COURT
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Appe=
als
of Wesco, Inc. &nbs=
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Docket
Nos. 17-1-03 Vtec and 107-6-04 Vtec
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; Order
on Motion for Interlocutory Appeal
Appellant-Applicant Wesco, Inc. appealed from two decis=
ions
of the Development Review Board (DRB) of the City of South Burlington, one=
in
January of 2003 and the other in June of 2004, regarding a convenience sto=
re
with gasoline service at the merged property at 1108-1118 Williston Road.<=
span
style=3D'mso-spacerun:yes'> Appellant-Applicant is represente=
d by
Wesco had filed with the City alternate applications to
convert a service station, with one awkwardly-placed diesel fueling positi=
on
and three gasoline pumps, to a convenience store with a diesel pump and ei=
ther
two or three gasoline pumps (each pump having two fueling positions). Wesco is seeking approval in the =
present
appeal of a site plan for the convenience store with three gasoline pumps =
which
the DRB considered and ruled on in late 2002. What remains in this case is Wesc=
o=3Ds application for approval of a third gasoline pump
(proposed for the same island as the new diesel location), associated chan=
ges
in the curb cut widths, parking and landscaping configuration, and issues =
of
glare and screening relating to a canopy over the diesel island.
It is difficult to understand what the City argues is t=
he
controlling question of law suitable for interlocutory appeal. The City appears to be focusing t=
he fact
that when these applications were filed, the conversion of the service sta=
tion
to the convenience store had not yet occurred, and that now the convenience
store, two gasoline pumps and one diesel pump have been installed and are
operating under other already-approved permits. However, the site plan approval
requirement is the same whether it is triggered by a change in use (such a=
s the
change from a service station to a convenience store), an expansion of a u=
se
(such as from two to three gasoline pumps), or an entirely new use. '26.10. Th=
e DRB,
or this Court in an appeal, must analyze the proposed site plan in light o=
f the
standards in the regulations, regardless of what triggered the need for the
site plan review. The DRB has
already considered this site plan.
In the remaining merits hearing, Wesco will have to sho=
w,
among other things, that the on-site circulation, and proposed changes in =
curb
cut, parking and landscaping will meet the regulations if the additional
vehicles proposed to use the outlying third gasoline pump are added to the
anticipated circulation of vehicles on the property, and particularly whet=
her
there will be any conflict between trucks and passenger vehicles proposed =
to
use the same diesel-and-gasoline pump island. Wesco will also have to present e=
vidence
on whether the proposed diesel canopy produces glare or is sufficiently
screened. The City has not s=
hown
why it matters to this analysis that Wesco has already acted under its pre=
vious
approval to convert the service station to a convenience store with two
gasoline pumps. The DRB (or =
the
former separate ZBA and Planning Commission) previously had before it alte=
rnate
plans to convert the service station to a convenience store: one plan with=
two
gasoline pumps, and one with three.
Only the two-gasoline-pump plan was approved. Wesco still has the r=
ight
to proceed with its appeal of the denial of its preferred three-pump plan,=
even
though its approved two-pump plan has been installed. The three-pump plan is properly before the Court in w=
hat
remains of this appeal, and does not require remand to the DRB.
Even if the question of whether this appeal should be
remanded were a >controlling question of law=3D
On the other hand, if the proposed site plan amendments=
at
issue in this appeal (the proposed third pump location, enlarged curb cuts=
, and
glare and screening related to the canopy over the diesel island) were den=
ied
after the scheduled hearing on the merits, and if Wesco were to choose not=
to
appeal that denial, the matter will not need to be presented to the Supreme
Court at all. If Wesco were =
to
appeal that denial, the issues the City seeks to raise now could equally w=
ell
be raised in that appeal.
Similarly, if any of the proposed site plan amendments were granted=
, the
City itself would then be able to bring an appeal on the issues it seeks to
raise now.
Accordingly, the City=3Ds motion for permission to take an interlocutory appeal=
is
DENIED.
The Court will hold a brief telephone conference to dis=
cuss
the relative timing of the t=
rial
now reserved for September 2, 2005, and any motion the City may wish to ma=
ke to
the Vermont Supreme Court.
Ordinarily, after the trial, the filing of requests for findings and
memoranda of law would have been scheduled so that the remaining merits of=
the
case would have been under advisement with the Court in the first week of
October, as Judge Wright will be away from September 9 through September
29. At the telephone confere=
nce,
the parties should be prepared to state their positions regarding whether =
that
remaining merits hearing should be postponed, with requests for findings a=
nd
memoranda being due before or at the hearing, so that the matter would be =
under
advisement with the Court at approximately the same time. They should discuss the matter wi=
th each
other in advance of this conference.
Dated at Berlin, Vermont, this 12th day of August, 2005.
______________________________________
Merideth Wright
Environmental Judge
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