Timberlake Associates v. City of Winooski

Timberlake Associates v. City of Winooski (99-284); 170 Vt. 643; 756 A.2d 774

[Filed 25-Apr-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-284

                              APRIL TERM, 2000


Timberlake Associates	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Environmental Court
                                       }	
City of Winooski	               }
                                       }	DOCKET NO. 4-1-98Vtec


             In the above-entitled cause, the Clerk will enter:


       Timberlake Associates appeals from a decision of the environmental
  court denying its application  for approval of a plan to remove a brick
  wall and add a curb cut at its commercial property in the  City of
  Winooski.   Timberlake contends the court erroneously: (1) exceeded the
  role of the City's  zoning board of adjustment (ZBA); (2) usurped the
  legislative policymaking function of the ZBA;  (3) rejected the terms of a
  stipulation between the parties; (4) made findings unsupported by the 
  evidence; and (5) determined that future site-plan review was required, and
  applied inapplicable site-plan criteria.  We affirm.

       Timberlake's property at the corner of Main and Platt Streets in
  Winooski contains a neighborhood  grocery store and a self-serve gasoline
  station.  In 1992, the City granted a conditional use permit  to alter the
  configuration of the lot by closing both the previously undefined curb cut
  on Platt Street  and the access to a driveway at the rear of the property
  formerly shared with a residence on Platt  Street.   The City had denied an
  earlier proposal in 1992, which had proposed a curb cut for access  to
  Platt Street.  In December 1997, Timberlake submitted a proposal to amend
  the conditional use  approval by reorienting the gas pumps, removing a
  portion of the wall on Platt Street, and adding  a curb cut onto Platt. 
  Following an evidentiary hearing, the ZBA denied the application, noting
  that  the facts presented on the issues of traffic flow, safety, and
  competition were duplicative of the facts  presented at the initial 1992
  hearing, and that there had been no material or substantial change of 
  circumstances.  Timberlake appealed to the environmental court, submitting
  the question whether  the court "should approve the project to rotate the
  pump islands, remove the brick wall and install[]  a curb cut on Platt
  Street."           

       Prior to the merits hearing, Timberlake moved to remand the matter to
  the ZBA to allow that body  to reach "the merits" of the application.  The
  court denied the motion.  Following an evidentiary  hearing, the court also
  denied the application.  Although it agreed with Timberlake that the 
  circumstances had changed sufficiently to reconsider the matter, the court
  found that, under the 

 

  conditional use criteria set forth in the City's zoning regulations, the
  proposed curb cut would  adversely affect the residential character of the
  Platt Street area, as well as traffic conditions on Platt  and Main
  Streets.  This appeal followed.

       Timberlake first contends the trial court erred in denying its motion
  to remand the matter to the  ZBA.   More specifically, Timberlake claims
  the court exceeded its proper role by addressing issues  not before the
  ZBA, and by usurping the ZBA's policymaking functions.  As we explained in
  In re  Maple Tree Place, 156 Vt. 494, 501, 594 A.2d 404, 408 (1991), the
  decision to remand a matter to  an administrative review board "necessarily
  must be an area of trial court discretion, and we review  under the
  familiar standard that abuse of discretion must be found for the appellant
  to prevail."   Notwithstanding the de novo standard of review, a remand may
  be appropriate, we observed, where  the court is called upon to "address[]
  new issues never presented to the planning commission and  on which
  interested persons have not spoken in the local process."  Id. at 500, 594 A.2d  at 407.    Where the case turns upon the meaning of a zoning
  ordinance, a remand may also be useful for an  interpretation "'by the
  administrative body responsible for its execution.'" Id. (quoting In re
  Duncan,  155 Vt. 402, 408, 584 A.2d 1140, 1144 (1990).  

       The record does not support Timberlake's claim that the court abused
  its discretion in denying the  motion.  On the contrary, the record
  demonstrates that all of the pertinent issues concerning  Timberlake's
  application were presented to the ZBA. Testimony was received by witnesses
  for and  against the application, and extensive evidence was presented on
  the key issues of traffic flow,  safety, and impact on the residential
  character of the area.  Indeed, in submitting the merits of the 
  application for review by the environmental court, Timberlake implicitly
  acknowledged that the  ZBA had considered the application in its entirety. 
  Hence, the court did not overstep its proper role  by addressing new issues
  or issues on which interested persons had not spoken.   See id  Nor did the 
  court confront a statutory-interpretation issue of first impression in
  which the ZBA's construction  might have been determinative.   See id. 
  Accordingly, we find no error.

       Timberlake next contends the court erroneously failed to honor a
  stipulation between the parties to  apply the zoning standards applicable
  to amendments to non-conforming uses, rather than the more  rigorous
  standards applicable to conditional use approvals.  Again, the record fails
  to support the  claim.  The stipulation merely indicated that the
  application was "being made under § 8.400 Non-Conforming Uses and
  Non-Complying Structures."  It also acknowledged that the existing 
  configuration of the site had been previously approved by a grant of
  conditional use approval, and  recited certain standards that would not
  apply "[s]hould the court decide that Conditional Use  Approval is required
  for this alteration to a previously approved non-conforming use."   Hence,
  the  stipulation plainly contemplated that the court might determine to
  apply the City's conditional-use  standards to the project.  

       Timberlake next asserts that certain findings of the court are
  unsupported by the evidence.  In  reviewing decisions of the trial court,
  we will not disturb its factual findings unless, taking the  evidence in
  the light most favorable to the prevailing party, they are clearly
  erroneous.  Bissonnette  v. Wylie, 166 Vt. 364, 370, 693 A.2d 1050, 1055
  (1997).  We will not disturb a finding even if it is 

 

  contradicted by substantial evidence, unless there is no credible evidence
  to support the finding.   Rubin v. Sterling Enters., Inc. 164 Vt. 582, 588,
  674 A.2d 782, 786 (1996).  Timberlake focuses on  the court's findings
  concerning the project's impact on traffic, pedestrian travel, and safety.  
  It  contends the court ignored a traffic expert's testimony that the
  addition of five cars per hour turning  left from Platt Street onto Main
  Street would have no measurable impact upon traffic conditions in  the
  area.   It also argues that the court usurped the legislative function by
  characterizing a "D" level  of service (referring to the delay occasioned
  by the left-hand turns) as unacceptable notwithstanding  the Agency of
  Transportation's general acceptance of the D-level standard in urban areas.   

       The record amply supported the court's finding.  There was testimony
  from neighbors and the City  of Winooski fire chief concerning the
  potential safety problems created by the possibility of stacking  at the
  Platt and Main Street intersection resulting from the additional cars
  turning left onto Main.  Furthermore, the general acceptance of D-level
  service in urban areas does not dictate the City or  the court's decision
  in circumstances where the particular pattern of traffic and roads makes 
  additional congestion unsafe.  See 24 V.S.A. § 4407(2)(C) (municipality may
  establish specific  standards requiring that conditional use not adversely
  affect traffic on roads and highway in  vicinity); Blundon v. Town of
  Stamford, 154 Vt. 227, 232, 576 A.2d 437, 440 (1990) (town's  authority to
  adopt specific conditional use standards relating to roads and access is
  broad).    

       Timberlake also contends the evidence failed to support the court's
  finding that the proposed curb  cut would adversely affect the residential
  character of the area by removing a protection for  pedestrians and cars
  backing onto Platt Street from residences.  Timberlake also takes issue
  with the  court's finding that removal of the wall segment and installation
  of the curb cut would increase  pedestrian-vehicle conflict on Platt
  Street, and its observation that pedestrian-vehicle conflicts would  not be
  offset by any reduction in vehicles using Main Street.   The testimony of
  neighbors and  residents of Platt Street concerning the potential problems
  of additional traffic on the residential side  street, and the possibility
  of stacking resulting in the blockage of the curb cut, provided sufficient 
  evidentiary support for the court's findings.  The testimony of
  Timberlakes's expert to the contrary  does not support a conclusion that
  the court's findings were clearly erroneous.  See Rubin, 164 Vt.  at 588,
  674 A.2d  at 786.

       Finally, Timberlake contends the court erred in noting that future
  site-plan review of the project  would be required, and also erred in
  applying site-plan criteria to the project and in finding that it  did not
  meet site-plan standards.   We discern no prejudicial error from the
  court's passing  observation that the project would be subject to future
  site-plan review.   Moreover, in discussing  the site-plan standards, the
  court merely observed that the circumstances that adversely affected 
  traffic and pedestrian safety under the conditional-use criteria would also
  affect traffic access and  other site-plan requirements.  We find no
  prejudicial error. 

 


       Affirmed. 
 	        

                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice