In re Group Five Investments CU Permit
In re Group Five Investments CU Permit
Opinion of the Court
¶ 1. This appeal stems from the Superior Court, Environmental Division’s affirmance of the zoning board’s grant of a condition.1 use zoning permit to applicant Group Five Investments, LLC, to build and operate a Dollar General store in Ferrisburgh, Vermont. Opponents claim that the trial court erroneously shifted the burden of proof by requiring opponents to show both that the proposed project will have an adverse impact on the area and that existing commercial development in the area has already had an adverse impact. Opponents further contend that the trial court erred in using the Quechee definition of undue adverse impact as guidance in interpreting the zoning ordinance. Finally, opponents argue that the trial court erred in failing to rule that the proposed use is prohibited under the applicable zoning ordinance, and that the trial court violated Vermont Rule of Civil Procedure 52(a) by failing to make requested findings on the proposed use of the Dollar General store. We affirm the trial court.
¶2. Applicant filed for a condition.1 use permit in September 2005 to build a Dollar General store on the southeast corner of the intersection of Route 7 and Monkton Road in Ferrisburgh. Applicant describes its retail business as a “general merchandise store that carries everything from food and clothing to pet supplies to cleaning supplies, some electronics, pretty much everything.” The Town of Ferrisburgh Zoning Board of Adjustment granted the permit on February 9, 2011, but imposed seventeen addition.1 conditions on applicant. Opponents, local citizens, appealed to the Environmental Division.
¶ 3. After a merits hearing, the trial court issued an order affirming the zoning board’s grant of the condition.1 use permit. In its decision, the court made detailed findings of fact regarding “the project and its site,” and the “surrounding neighborhood.” Based on these findings, the court con.1uded that applicant’s proposed project complied with all of the performance standards in the Ferrisburgh zoning ordinance, and that the project complied with all of the general and specific condition.1 use standards of the ordinance as well as the enabling statute promulgated by the Legislature. However, the court imposed the addition.1 requirement that applicant install and maintain a crosswalk across
¶ 4. The Supreme Court reviews the environmental court’s rulings on questions of law or statutory interpretation de novo. In re Vill. Assocs. Act 250 Land Use Permit, 2010 VT 42A, ¶ 7, 188 Vt. 113, 998 A.2d 712. We uphold the environmental court’s interpretation of a zoning regulation so long as it is rationally derived from a correct interpretation of the law and not clearly erroneous, arbitrary or capricious. In re Korbet, 2005 VT 7, ¶ 11, 178 Vt. 459, 868 A.2d 720 (mem.); In re Casella Waste Mgmt., Inc., 2003 VT 49, ¶ 6, 175 Vt. 335, 830 A.2d 60. As to findings of fact, “the Environmental Court determines the credibility of witnesses and weighs the persuasive effect of evidence, and we will not overturn its factual findings unless, taking them in the light most favorable to the prevailing party, they are clearly erroneous.” Vill. Assocs., 2010 VT 42A, ¶ 7 (quotation omitted).
I.
¶ 5. We begin with opponents’ argument that the trial court improperly shifted the burden of proof from applicant by requiring opponents to demonstrate that the proposed project would have an adverse impact. Opponents’ argument is without merit. The trial court made detailed factual findings based on the evidence offered by both sides at trial, and concluded based on those findings that applicant had demonstrated that its proposed project met the conditional use criteria — including the requirement that the proposed development not have an adverse impact on the area.
¶ 6. To the extent that the court made statements in its decision such as “[w]ithout a credible factual foundation, we cannot make the legal determination that the proposed project will be adverse to provisions of the [ordinance],” the court was merely reiterating that opponents had not successfully rebutted applicant’s showing that it had met the conditional use criteria. In In re Miller Subdivision Final Plan, an opponent to a development project similarly argued that the environmental court improperly shifted
¶ 7. Relatedly, opponents argue that the court improperly required them to demonstrate that the existing commercial use has already had an adverse impact. Opponents base their claim on the following statement in the court’s judgment order:
Interestin.1y, if the existing commercial developments had detrimental impacts upon this area, we would have expected evidence of such impacts to be presented. Instead, [opponents] presented no evidence to show that the existing commercial developments in the vicinity of this project site have had an unduly adverse impact on the character of this area. Without such evidence, we are hard pressed to con.1ude that the addition of [applicant's proposed project will have an incremental adverse impact.
Opponents take this language to mean that “[b]y the trial court’s logic, any zoning purpose statement or [t]own [p]lan statement that calls for a future character of the area that differs from present uses cannot be considered during condition.1 use review — absent proof that preexisting uses are actually causing harm,!’ We do not interpret the court’s reasoning so rigidly. The court was not establishing a hard-and-fast rule that opponents of development projects must show ongoing harm from current uses to prove future incremental harm. Rather, the court reasoned that if future commercial development is likely to cause harm in an area with already existing commercial development, then one might expect to see harm from the existing development. The absence of evidence of harm from existing commercial development was a factor the court took into account and found compelling.
¶ 8. Opponents argue that the court’s reasoning does not comply with our holding in In re John A. Russell Corp., where we reversed the environmental court’s grant of a condition.1 use
¶ 9. Here, by contrast, the proposed commercial development is to an area that already has commercial uses. Further, the court made specific findings regarding the project’s impact on traffic and noise that supported its conclusion that there would be no increased impact. The court noted that the proposed project will host a single business, not a strip mall or other conspicuous entity, and that it is already surrounded by commercial developments, including several large barn structures. Further, unlike John A. Russell Corp., where the court did not make adequate findings as to the impact of noise and addition.1 traffic, here the court considered evidence as to both of these factors and concluded that there was no adverse impact. This analysis did not improperly shift the burden onto opponents or fail to address their claims regarding an incremental shift in the character of the area, but rather evaluated opponents’ arguments and found them unconvincing. See In re Miller, 170 Vt. 64, 70, 742 A.2d 1219, 1224 (1999) (holding that the court’s findings were not clearly erroneous when supported by applicant’s evidence, albeit disputed by the project’s opponents). Therefore, we con.1ude that the trial court did not improperly shift the burden of proof onto opponents.
II.
¶ 10. Next, we address opponents’ argument that the environmental court erroneously applied the legal standard from the Quechee test in Act 250 Criterion 8 to the condition.1 use review here to determine the adverse effect on the “character of the area.” See 24 V.S.A. § 4414(3)(A). Our review of the environmental court’s determination of whether a proposed project will have a material adverse impact is deferential, meaning that we will uphold the court’s determination unless it is clearly erroneous. John A. Russell Corp., 2003 VT 93, ¶ 30.
¶ 13. Opponents contend that the court’s use of the Quechee standard was clearly erroneous. They argue that Criterion 8 of Act 250 is distinguishable from § 9.4(A) of the town zoning ordinance because Act 250 does not include preservation of the “character of the area” as an explicit statutory criterion; because Criterion 8 only protects areas of scenic and natural beauty, and communities may possess valuable attributes beyond scenic beauty; and because the purpose of Act 250 is only to address large-scale changes in land use, not incremental impacts of smaller changes. See Comm. to Save Bishop’s House v. Med. Ctr. Hosp. of Vt., 137 Vt. 142, 151-52, 400 A.2d 1015, 1020 (1979).
¶ 14. We conclude that the court did not err in using the definition of undue adverse impact from the Quechee test as guidance for interpreting the adverse effect language of Bylaws § 9.4(A). The court did not apply the Quechee test in its entirety, but was merely guided by the definition of undue adverse impact from the Quechee analysis in order to inform its interpretation of the adverse effect language in the Bylaws. Rather than examining the undue adverse impact on those elements contained in Act 250, the court properly examined the adverse effect on the specific items listed in the Bylaws, in.1uding: “1) The capacity of existing or planned community facilities. 2) The character of [the] area
¶ 15. Further, we agree with the environmental court’s application of our analysis in Miller to this case. In that case, we held that for the purposes of interpreting a zoning ordinance in accordance with the enabling statute, the “adverse effect test must be applied reasonably to prohibit only substantial and material adverse effects.” 170 Vt. at 69, 742 A.2d at 1223. The case that we cited for that proposition, In re Walker, 156 Vt. 639, 639, 588 A.2d 1058, 1059 (1991) (mem.), elaborates on our reasoning underlying the substantial and material adverse effects test. In Walker, we rejected a project opponent’s literal reading of the ordinance and its consequent argument that “if any adverse effect is found, the permit must be denied.” Id. We reasoned that “[a]ny conditional use will have some adverse effect .... If appellant’s approach were adopted, it would require the denial of all conditional use permits, an irrational result contrary to legislative intent.” Id. Accordingly, we upheld the trial court’s application of the “material-adverse-effect standard,” stating that this standard “facilitates a rational result consistent with legislative intent and sound statutory interpretation.” Id. Although we interpreted the enabling statute in that case, the same reasoning applies to the conditional use ordinance at issue here.
¶ 16. Opponents further argue that the court overlooked the town’s intentions for development, as expressed in the town plan and the Bylaws. In particular, opponents point to chapter 4 of the town plan, which provides that “[protecting the Route 7 corridor is critical to maintaining the rural character and quality of life Ferrisburgh residents currently enjoy. . . . Preventing the highway
¶ 17. Opponents also rely on the Bylaws for the Highway Commercial District, where the proposed development will be located, which state: “It is the primary policy of this district to provide an area to serve highway oriented businesses and highway uses. The size- of the commercial uses should be restricted to protect the residential character and traffic access in this and adjoining districts.” Contrary to opponents’ assertion that the proposed development contradicts this section of the Bylaws, the court correctly noted that “[t]he [t]own [p]lan specifically identifies the area of the proposed project as having a high concentration of commercial development,” and encourages this development “so that there will be less development pressure in ‘low-density residential or open space/agricultural land.’ ” Moreover, the court examined the evidence that the new store would cause an incremental adverse impact, but disagreed with opponents’ arguments.
¶ 18. For these reasons, the environmental court did not err in its evaluation of whether this development project would have an adverse effect on the elements enumerated in the Bylaws.
III.
¶ 19. Finally, we address opponents’ argument that the trial court erred in failing to rule that the proposed Dollar General store is a prohibited use in this district, and that the trial court violated Vermont Rule of Civil Procedure 52(a) by failing to make requested findings on the nature of the proposed Dollar General use.
¶ 21. Next, opponents contend that the environmental court should have treated applicant’s proposed project as “convenience, retail” rather than “retail sales,” as those terms are defined in §2.2 of the zoning bylaws. The Bylaws define these terms as follows:
CONVENIENCE, RETAIL: Shall mean an establishment whose principal use is the sale of products in small quantities for the daily use of customers in.1uding, but not limited to, bakeries, food stores, news stands, tobacco shops, card shops, liquor stores, delicatessens, musical supply stores, pet stores, jewelry stores, camera and photography supplies, ice cream parlors, meat and seafood shops and florist shops.
RETAIL SALES: Shall mean an establishment whose principal use is the sale of products for consumption or use by the customer off the premises. This shall in.1ude but not be limited to hardware, paint, office equipment, sporting goods, trading stamp and redemption outlets, television, satellite dishes, automotive supply and major household appliance stores.
¶ 22. Section 4.4(B), governing the Highway Commercial District where the proposed project would be located, provides twenty-four condition.1 uses, in.1uding “retail store” but not “convenience,
¶ 23. We construe the ordinance according to the general rules of statutory interpretation. In re Laberge Moto-Cross Track, 2011 VT 1, ¶ 8, 189 Vt. 578, 15 A.3d 590 (mem.). We interpret an ordinance’s “words according to their plain and ordinary meaning, giving effect to the whole and every part of the ordinance.” In re Champlain Coll. Maple St. Dormitory, 2009 VT 55, ¶ 13, 186 Vt. 313, 980 A.2d 273 (citation and quotations omitted). ‘We adopt a construction that implements the ordinance’s legislative purpose and, in any event, will apply common sense.” In re Lashins, 174 Vt. 467, 469, 807 A.2d 420, 423 (2002) (mem.) (citation and quotation omitted).
¶ 24. Here, a common-sense interpretation of the ordinance includes a retailer such as the Dollar General store among the conditional uses intended by the ordinance. First, the store’s proposed use as a discount retailer fits comfortably into the retail sales definition provided in the ordinance, as the goods sold in a “general store” or “discount retailer” are generally “for consumption or use by the customer off the premises.” Second, the retail sales definition includes the language “this shall include but not be limited to,” meaning that the definition was intended to be in.1usive rather than restrictive. Finally, § 4.4(B)(24) of the Bylaws is similarly in.1usive, in that it in.1udes a catch-all provision for “[o]ther similar uses which meet the intent of purpose statement upon finding . . . that such use is of the same general character as those permitted and which will not be detrimental to the other uses within the District or to the adjoining land uses.” The proposed store fits the retail sales definition, but even if it did not, it is sufficien.1y similar to the retail sales definition to fit into the catch-all provision in § 4.4(B)(24).
Affirmed.
In its original opinion, the court noted that “[t]here is one slight but notable difference between the enabling statute and the Bylaws,” because the statute states that “the proposed condition.1 use shall not result in an undue adverse effect on any of’ the municipality’s adopted general standards, see 24 V.S.A. § 4414(3), whereas Bylaws § 9.4 requires a determination “that the proposed use will not adversely affect” the general standards. Later, in an amended opinion, the court acknowledged that it had mistakenly applied the newer statute, § 4414(3), to this ease when the older statute, § 4407, was actually controlling. Although enacted in 2004, § 4481 gave the town until September 1, 2011 to update its ordinance to comply with the mandates of § 4414(3). Because the application here was filed in September 2010 and the town had not updated its ordinances, § 4407 continued to govern the application. However, this correction did not ultimately affect the court’s reliance on the Quechee standard'or its adverse impact definition.
We have described the Quechee test as follows:
First, [the Board] determines if the proposed project will have an adverse aesthetic impact, and if so, it considers whether the adverse impact would be undue. An adverse impact is considered undue if any one of the three following questions is answered in the affirmative: (1) does the project violate a clear, written community standard intended to preserve the aesthetics or scenic, natural beauty of the area; (2) does the project offend the sensibilities of the average person; and (3) has the applicant failed to take generally available mitigating steps that a reasonable person would take to improve the harmony of the proposed project with its surroundings.
In re Times & Seasons, LLC, 2008 VT 7, ¶ 8, 183 Vt. 336, 950 A.2d 1189 (citation omitted). This Court has approved the use of the Quechee test in Act 250 cases. Id.
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