In re Miller

In re Miller (97-463); 170 Vt. 64; 742 A.2d 1219

[Filed 08-Oct-1999]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of  Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 97-463


In re:  Appeal of John Miller	                 Supreme Court
and Maureen Sheedy
	                                         On Appeal from
     		                                 Environmental Court

	March Term, 1999


Meredith Wright, J.


       John Miller and Maureen Sheedy, pro se, Montpelier, Appellants.

       Robert Halpert of Paterson & Walke, P.C., Montpelier, for Appellees.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       DOOLEY, J.  Appellants John Miller and Maureen Sheedy appeal from
  decisions of the  Vermont Environmental Court (a) approving a conditional
  use zoning permit for applicant Terrence  Shannon to develop as parking a
  part of his lot adjoining his convenience store, Meadow Mart, in  the City
  of Montpelier, and (b) dismissing as untimely appellants' appeal of site
  plan approval of  the parking project by the Montpelier Planning
  commission.  Appellants argue that the parking  project does not meet
  certain conditional use standards and violates city setback requirements,
  and  that the court erred in one of its permit conditions and in holding
  that the site plan appeal was  untimely.  We affirm the grant of the
  conditional use permit, and reverse and remand the decision  to dismiss the
  site plan appeal.  Applicant Terrence Shannon owns a convenience store at
  284 Elm  Street in the City of Montpelier.  He purchased the store 

 

  and lot in 1990.  A convenience store has existed on the lot since before
  1973, the effective date of  zoning in Montpelier.

       In 1995, applicant purchased 282 Elm Street, an adjoining lot to the
  west.  The lot had been  used for residential purposes, at one point by
  former owners of the convenience store.  At the time  applicant purchased
  the lot, it contained the foundation for a mobile home, but the home had
  been  removed.

       Immediately to the west of 282 Elm Street, on the corner of Vine and
  Elm Streets, is a  residence owned by the Bernard Neill Trust.  The trust
  has participated in this dispute before the  Montpelier Zoning Board and
  Planning Commission and before the Environmental Court, but not  in this
  Court.  Throughout, the trust has opposed applicant's development plans.

       Behind the Neill residence, facing Vine Street, are two residences on
  one lot owned by  appellants and used as rental properties.  The lot is
  quite deep so that it abuts both of applicant's lots  at 282 and 284 Elm
  Street, and the residence at 7 Vine Street lies directly behind these lots.

       After adding gravel so that the grade of the 282 Elm Street lot was
  raised to that of the top  of the mobile home foundation, applicant sought
  conditional use and site plan approval to use 282  Elm Street as a parking
  lot for the convenience store and to reconfigure the parking on 284 Elm 
  Street.  He also sought a variance from the rear setback requirement in
  order to add a storage room  to the back of the store.  Appellants sought
  from the zoning administrator a ruling that the area of  282 Elm Street to
  the front of the former mobile home was not grandfathered for parking in 
  connection with the store and an enforcement action to remove a floodlight
  fixture.  The Montpelier  planning and zoning bodies and officers ruled for
  applicant, and the various rulings were appealed  to the environmental
  court.

       The environmental court ruled that the lots had merged and
  characterized the main 

 

  application as for an accessory use, that is, parking for patrons of the
  convenience store.  Because a  convenience store is a conditional use in
  the district involved, the court held that the accessory use  had to meet
  the conditional use standards under the Montpelier zoning ordinance.  It
  found that the  store, with an expanded and reconfigured parking lot, would
  not increase the number of customers  or the number of deliveries of
  products for sale in the store.  It did find, however, that the added 
  space allowed delivery trucks to drive directly into the parking area so
  they would come much  closer to the Vine Street building.

       The court found that the added parking could meet the conditional use
  standards if the  design minimized any adverse impacts from the use on the
  surrounding residential properties.  The  court concluded, however, that it
  could not approve the proposed plan because the document  showing the
  design was incomplete and inaccurate and "the proposal fails to address
  features and  conditions which could minimize the effect of the redesigned
  parking area on the surrounding  neighborhood, including hours of
  operation, hours of delivery, and the direction of delivery  vehicles, and
  requirements regarding snow plowing, although the Applicant's memorandum 
  suggests that delivery hours of 6:00 A.M. to 6:30 P.M. would be
  acceptable."  Accordingly, it  granted the application to use 282 Elm
  Street for accessory parking, but denied approval of  applicant's design
  allowing applicant to submit a revised plan to the Montpelier Zoning Board
  and  Planning Commission.

       On the other issues presented, the court denied applicant's request
  for a variance to erect an  addition on the store for storage, and granted
  appellants' request for a declaratory ruling that use of  282 Elm Street,
  between the street and the mobile home foundation, for parking for the
  store was  not grand-fathered.  The court also ruled that the floodlight
  met performance standards of the  zoning ordinance and refused to order its
  removal.

 

       On remand, applicant clarified his plan and detailed the steps he
  would take to buffer  activities on his lot from the neighboring lots and
  houses.  The zoning board again granted  conditional use approval, and the
  planning commission granted site plan approval.  On appeal, the 
  environmental court affirmed the decision to grant conditional use
  approval, and held that  appellants' appeal of the site plan approval was
  untimely.  Appellants appeal to this Court raising  six issues: (1) unless
  applicant seeks and obtains conditional use approval for the store, as well
  as  the parking area, the development is an illegal expansion of a
  non-conforming use; (2) the proposal  does not meet the conditional use
  standard that it not "adversely affect the character of the area 
  affected;" (3) the proposal does not meet other conditional use and zoning
  standards; (4) the court  improperly delegated the power to make approval
  conditions to the zoning board; (5) the court  improperly applied the rear
  setback requirement; and (6) appellants' appeal from the planning 
  commission was timely and, in any event, the court should not have allowed
  the untimely motion to  dismiss the appeal.

                                     I.
        
       Appellants first argue that applicant's proposal to use 282 Elm Street
  as parking is an  improper expansion of a non-conforming use.  Their
  position is that the preexisting store is a non-conforming use because
  convenience stores are allowed only as conditional uses in the district and 
  the store has not gone through conditional use review.  They argue that
  because applicant failed to  seek conditional use approval for the combined
  282 and 284 Elm Street lot and all its uses, and the  court failed to
  consider the combined lot, the permit is improper.
		
       Although appellants initially claimed that applicant's proposal
  involved an improper  expansion of a non-conforming use, we cannot find
  that this claim included the ground it is now  asserting.  Indeed, in their
  rebuttal memorandum to the court, appellants stated: "The court need 

 

  not consider whether the existing store promotes the residential character
  of the neighborhood.  The  issue at hand is whether the new use (a parking
  lot) promotes the residential character."  In their  legal memorandum,
  appellants stated, "since June of 1995, we have not opposed the concept of
  a  parking lot on 282 Elm Street nor sought in any manner to block any
  reasonable development of the  property."  In view of appellants'
  statements, the environmental court never addressed the argument 
  appellants make to this Court, nor did appellants raise it in the second
  appeal to the environmental  court.  We may not consider an appeal issue
  that was not raised in the trial court.  See Town of  Hinesburg v.
  Dunkling, 167 Vt. 514, 523, 711 A.2d 1163, 1169 (1998).  We conclude that
  appellants  have not preserved this issue, and we decline to reach it.

                                     II.

       Appellants' second argument in relation to the zoning permit is that
  the applicant's proposal  does not meet one of the statutory conditional
  use standards, as well as a related standard in the  Montpelier zoning
  ordinance.  Section 4407(2) of Title 24 contains five general conditional
  use  standards that are applicable in any community, whether or not
  specifically enumerated in the  zoning ordinance.  See In re White, 155 Vt.
  612, 618-19, 587 A.2d 928, 931-32 (1990).  One  requires that the proposed
  conditional use "shall not adversely affect . . . [t]he character of the
  area  affected."  24 V.S.A. § 4407(2)(B).  Montpelier's standard applies to
  "convenience commercial  conditional uses" and requires that they "promote
  the residential character of the neighborhood by  serving the convenience
  of neighborhood residents without adversely affecting that residential 
  character."  City of Montpelier Zoning Regulations § 504(H)(4). 
  Applicant's store is a convenience  commercial use.  See id. § 203
  (defining "convenience commercial").
		
       We have held that the adverse effect test must be applied reasonably
  to prohibit only 

 

  substantial and material adverse effects.  See In re Walker, 156 Vt. 639,
  639, 588 A.2d 1058, 1059  (1991) (mem.).  We uphold the environmental
  court's determination of whether there is a sufficient  adverse effect
  unless clearly erroneous.  See In re Gaboriault, 167 Vt. 583, 585, 704 A.2d 1163, 1166 (1997) (mem.).

       In its 1996 order, the environmental court held:

     We cannot find that an expansion of the parking lot area into the former 
     282 Elm Street portion of the merged lot in principle would erode the 
     established character of the neighborhood, especially if it were well-
     defined, well-designed and well-landscaped.  That is, the proposed 
     change in use of the 282 Elm Street portion of the merged lot, from 
     residential to an accessory parking use to a convenience commercial 
     use, does not necessarily erode the residential character of the 
     neighborhood.  However, to be approved, its design must minimize any 
     adverse impacts from the use on the surrounding residential properties.

  This conclusion was based, in large part, on its finding that the expansion
  and reconfiguration of the  parking would not increase the store's
  inventory, the number of truck deliveries, or the number of  customers.
	
       In its 1997 findings, the court reiterated its earlier finding,
  specifically finding that the  expanded parking would not increase the
  traffic to the store.  The court concluded:

     We cannot conclude from the evidence that the parking proposal will 
     adversely affect . . . the surrounding character or the residential 
     character of the neighborhood.  The residential character of the 
     neighborhood remains an older residential neighborhood with some 
     mixed residential and commercial uses on the Elm Street side of the 
     neighborhood, and that will be true after the proposal is put into place 
     as it was before.  In fact, with the landscaping as now proposed, and the 
     design of the parking locations, the proposal improves the visual and 
     use compatibility of the merged lot with the older residential 
     neighborhood surrounding it.

       Much of appellants' disagreement with the court's conclusion derives
  from their view that  the parking is intended to draw more motorists with
  no connection to the neighborhood into the 

 

  store.  The short answer to this argument is that the court found against
  appellants' view in its  determination of the purpose and effect of the
  parking expansion.  The court's findings are supported  by applicant's
  evidence, albeit disputed by appellants, and are therefore not clearly
  erroneous.  See In  re Meaker, 156 Vt. 182, 185, 588 A.2d 1362, 1363
  (1991); Stevens v. Essex Jct. Zoning Bd., 139 Vt.  297, 303, 428 A.2d 1100,
  1103 (1987) (conditional use findings, even if controversial, must be 
  upheld unless clearly erroneous).
	
       The other major point of disagreement involves the definition of the
  "area affected."  See 24  V.S.A. § 4407(2)(B).  The court found that area
  affected by the development proposal was the  surrounding residential
  neighborhood.  Relying on In re Gaboriault, appellants argue that the area 
  affected should consist only of the Neil house on Elm Street and the two
  abutting Vine Street  residences.  We do not believe Gaboriault helps
  appellants' position.  Gaboriault involved a new  school parking lot, and
  the town argued that the area affected should be construed to include the 
  entire zoning district, rather than only the adjacent nineteen-resident
  residential neighborhood.  We  affirmed the court's decision to consider
  the residential neighborhood the area affected.  Gaboriault,  167 Vt. at
  585, 704 A.2d  at 1165.  Here, appellants want to define the area affected
  as only a small  part of a residential neighborhood, a far narrower
  definition than that in Gaboriault.  As in  Gaboriault, we affirm the
  court's determination of the area affected as not clearly erroneous.  See
  id.

                                    III.


       Next, appellants make a number of arguments about the failure of the
  proposal to meet  performance and other standards of the zoning ordinance. 
  These are related to conditional use  approval because the development may
  not "adversely affect . . . [b]ylaws then in effect."  24 V.S.A.  §
  4407(2)(D). We take these in the order presented.

 

  A.  Glare: One of appellants' major concerns is that the glare from
  headlights of cars  entering and leaving the parking lot will penetrate the
  windows of 7 Vine Street and interfere with  the residential use of that
  home.  The Montpelier zoning ordinance establishes as a performance 
  standard that a proposed use may not "[e]mit lighting . . . which creates
  undue glare, which . . . [is]  offensive to the neighborhood."  Montpelier
  Zoning Regulations § 1516(6).  Appellants argue that  the screening
  applicant proposed to keep headlight glare away from 7 Vine Street is
  inadequate, and  that the glare is "offensive to the neighborhood."
		
       The court found that the proposed plan, as approved by the planning
  commission in site  plan review, would not create undue glare offensive to
  the neighborhood compared with the glare  from the former parking usage. 
  It did, however, impose three conditions on the issuance of the  zoning
  permit: (1) applicant must plant the screening trees approved in the site
  plan, maintain them  and replace plantings that do not survive with trees
  of equivalent size; (2) five of the proposed  parking spaces may not be
  used until the screening is installed; and (3) as of a year after the 
  screening trees are planted, they must be sufficient to prevent direct
  glare into the windows and  across the porch of 7 Vine Street in excess of
  the level created by the existing parking lot on 284  Elm Street.

       As in other arguments, appellants seek to use general conditional use
  and performance  standards to resolve impacts on one specific residential
  property.  We believe that site plan review,  not conditional use review,
  is the proper process to address such impacts. See 24 V.S.A. § 4407(5)  (in
  site plan review, planning commission may impose "appropriate conditions
  and safeguards with  respect only to the adequacy of . . . landscaping and
  screening"); Montpelier Zoning Regulations §  507(A) (purpose of site plan
  review is "to assure the project's compatibility with its location" and "to 
  prevent the development from resulting in significant negative 

 

  impacts").  Indeed, site plan review by the Montpelier Planning Commission
  purports to address the  adverse effect of glare and requires screening,
  which the planning commission deems adequate for  that purpose.  As
  discussed below, appellants may have an opportunity for environmental court 
  review of the planning commission's approval of the site plan.  Whether or
  not this occurs, we do not  believe that conditional use review should be
  distorted to duplicate the function of site plan review.
	
       There was conflicting evidence on the extent to which the expanded
  parking lot would  cause glare in spite of the required screening.  In view
  of the conflict, we cannot find clearly  erroneous the court's finding that
  the proposal would not offend the performance standard on glare.

       B. Liquid Waste: The plan creates an opening in the screening trees to
  allow applicant to  plow snow into this area.  Appellants argue that the
  snow is "liquid waste," which when melted will  end up in the basement of 7
  Vine Street.  Appellants then argue that this liquid waste offends a 
  performance standard, which Montpelier is required to have by state
  statute, 24 V.S.A. § 4407(7),  but has not adopted.  The short answer to
  this argument is that Montpelier is not required to adopt a  performance
  standard on liquid waste.  Municipalities are authorized, but not required,
  to adopt  performance standards.  See id.  The statute mentions "liquid or
  solid refuse or wastes" as types of  "dangerous or objectionable elements"
  that the municipality can cover with a performance standard.  However, the
  language does not require the municipality to adopt performance standards
  for all, or  any particular one, of the examples. (FN1)
  
       C.  Safety: Appellants argue that the parking plan is unsafe,
  particularly to pedestrians 

 

  who are walking in front of the large curb cut.  Again, this is primarily a
  site plan issue.  See id. §  4407(5) (in site plan review, planning
  commission may impose conditions and safeguards with  respect to traffic
  access and circulation and parking).  A staff member of Montpelier's Office
  of  Public Works testified that the proposed plan improved access and
  circulation and provided better  definition for parking and pedestrian
  crossing in front of the store. (FN2)  This testimony supported  the
  court's finding that the plan would have no adverse effect on traffic on
  roads and highways in the  vicinity.  See id. § 4407(2)(C) (general
  conditional use standard).

       D. Inadequate Screening: Appellants' belief that the proposed
  screening is inadequate pervades its  arguments.  For the reasons discussed
  above, this issue is an appropriate issue in site plan  review.  Beyond the
  consideration given it in determining impact on the character of the 
  neighborhood, it is not an appropriate issue for conditional use review.
  (FN3)

       E.  Diesel Trucks: Appellants argue that the plan brings a large
  number of diesel delivery trucks  close to 7 Vine Street and that the
  trucks are left idling while deliveries are made.  The court  attempted to
  ameliorate this complaint by requiring applicant to inform each vendor and
  each truck  driver to avoid, if possible, turning around in the new parking
  area and not to leave the truck idling  during deliveries.  Appellants find
  this condition inadequate.  Again, we believe the issue is one to  be
  raised in site plan review.

                                     IV.