Simendinger v. City of Barre

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Simendinger v. City of Barre (98-144); 171 Vt. 648; 770 A.2d 888

[Filed 08-Jan-2001]

ENTRY ORDER

SUPREME COURT DOCKET NO. 1998-144

NOVEMBER TERM, 1999

David Simendinger and Wesco, Inc. } APPEALED FROM:
}
}
v. } Environmental Court
}
}
City of Barre } DOCKET NOS. E96-010 & E96-075

Trial Judge: Merideth Wright

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

The City of Barre appeals from a decision of the Environmental Court
granting two conditional use permits to WESCO, Inc. and David Simendinger
to convert an existing service-station garage to a convenience store and
to alter the four existing gasoline dispensers, from full service to
self-service in the first application, and from four to one dispenser in
the second application. The City contends the court erroneously: (1)
approved the conditional use applications without prior consideration by
the City's zoning board of adjustment; (2) failed to give due
consideration to the City's Master Plan and Economic Action Plan; (3) found
that there was a need for the proposed use despite the presence of other
convenience stores in the vicinity; and (4) construed the zoning ordinance
to effectively preclude the regulation of single-dispenser gasoline
service to the public. We reverse and remand.

WESCO and Simendinger (hereafter WESCO) own property at 169 Washington
Street, an area zoned as a planned residential district. Washington
Street, also known as Route 302, is a primary east-west route though the
City. At its eastern end, where the subject property is located, it
contains a mix of residential and commercial uses. The WESCO property
contains an automobile repair garage and four full-service gasoline pumps.
The garage and gasoline dispensers pre-date the zoning ordinance and
qualify a pre-existing non-conforming structure and use within the
district.

In November 1995, WESCO filed a conditional use application with the
City to convert the garage to a convenience store and to convert the
full-service pumps to self-service. Following a hearing in December, the
City planning commission denied approval, finding that the proposed use
would increase traffic and diminish safety, and that WESCO had failed to
demonstrate a sufficient need for the use. WESCO submitted a second
application in February 1996, seeking to convert the garage to what it now
styled a neighborhood grocery store, to convert the four existing gasoline
dispensers to one dispenser, and to add an overhead canopy. Following a
hearing in April, the

planning commission again withheld approval, finding that no need for the
proposed use had been demonstrated, and that the proposed convenience
store and canopy would alter the residential character of the
neighborhood. The board of adjustment issued a brief decision the same
day, indicating that the application had been denied based upon a lack of
positive findings by the commission.

WESCO filed separate appeals from the denial of both applications with
the Environmental Court, which consolidated the matters for hearing. At
the conclusion of the evidentiary hearing, the court issued an oral ruling
in favor of WESCO. In a subsequent written decision, the court noted
preliminarily that under the City's zoning regulations, three positive
rulings were required for the project. First, the proposal required
approval from the planning commission under specific criteria for
non-conforming or conditional uses in a planned residential district.
Second, and following such approval, the proposal must receive conditional
use review and approval from the board of adjustment. And finally, the
proposal must receive site plan approval from the planning commission. The
court observed that WESCO's applications had been warned for a hearing
before both the planning commission and board of adjustment, and therefore
concluded that it could sit as both bodies. Applying the criteria for
preliminary review by the planning commission, the court found that the
proposals would not add a commercial use to the district, detrimentally
affect the district's residents, or tangibly increase traffic, and would
offer conveniences not offered by other convenience stores in the area.
Sitting as the board of adjustment, the court also found that the proposal
satisfied the criteria for conditional use review, but imposed certain
conditions to mitigate glare from the canopy lighting, limit the hours of
operation, and provide for gasoline deliveries during off-peak hours.
(FN1) This appeal by the City followed.

The City contends the court erred in evaluating the element of "need"
in connection with the planning commission's pre-approval process. In
reviewing matters on appeal, we set aside factual findings of the trial
court only if they are clearly erroneous, viewing the evidence in the light
most favorable to the prevailing party, and disregarding modifying
evidence. See Bianchi v. Lorenz, 166 Vt. 555, 562, 701 A.2d 1037, 1041
(1997). "A finding will not be disturbed merely because it is
contradicted by substantial evidence; rather, an appellant must show there
is no credible evidence to support the finding." Highgate Assocs., Ltd.
v. Merryfield, 157 Vt. 313, 315, 597 A.2d 1280, 1281 (1991).

In addressing the criterion of need, the trial court expressly cited
the pertinent provision of the City's zoning ordinance which requires
consideration of "the need for the [proposed] use in the district
primarily and the City of Barre secondarily." Although the court
acknowledged that there

were several existing convenience stores within reasonable walking distance
of residents of the district, it determined that based on the entire
record "we cannot find that there is no need for this neighborhood grocery
store." The court noted, in this regard, that the proposed store would be
used by residents when others were closed, and that its location near the
City limits would provide more convenient service for persons entering or
leaving the City for whom it would be either the first or last available
store with such services.

The parties presented extensive evidence and testimony on the issue of
need, much of which was conflicting. The City places great stock in its
evidence that other convenience stores with similar business hours already
operate within the nearby commercial and central business districts. Yet,
the City's planning and zoning officer and its former city manager both
testified without contradiction that the proposal, if approved, would
represent the only facility providing both convenience items and gasoline
at the pump within the planned residential district. WESCO's expert also
offered his opinion that, notwithstanding the existence of other grocery
and convenience stores in the general area, the proposal would serve the
needs of local residents, some of whom might otherwise be required to use
personal or public transportation. Neither the ordinance nor the evidence
required the trial court to adopt the City's benchmark of need based upon
the existence of other convenience stores within 1000 feet of the proposed
facility. Rather, the court could examine the evidence more closely to
determine whether other stores provided comparable conveniences to
residents throughout the district. The record evidence, in sum, supports
the court's finding that the proposed facility would provide services to
district residents not otherwise offered. As to need within the City as a
whole, the evidence also supported the court's conclusion that the proposed
store, located at the "gateway" to the City, would provide a convenient
stop for residents and visitors entering or leaving. We conclude,
accordingly, that credible and reasonable evidence supported the court's
findings and conclusions. They must, therefore, be affirmed. See Highgate,
157 Vt. at 315, 597 A.2d at 1281.

A closer question is whether the court's findings adequately addressed
the ordinance criteria requiring a finding of need within the "district
primarily and the City of Barre secondarily." The court prefaced its
discussion with a quotation of the provision in question, and separately
addressed the issues of need within the district, and within the City as a
whole, reflecting the order of concern embodied in the ordinance. The
overall framework of analysis thus demonstrates that the court was mindful
of, and applied, the requisite statutory analysis. Although we believe
that better practice in these circumstances would have been to address and
weigh the two needs considerations in more direct and explicit terms, we
conclude that the findings were adequate.

II.

The City also contends the court erred in defining and characterizing
certain uses under the ordinance. As noted, WESCO sought in its initial
application to convert the existing automotive-repair building to a retail
store, and to convert its gasoline pumps from full serve to self-service.
WESCO's second application sought to convert the existing building to a
neighborhood grocery store and to replace the existing pumps with one
pump. The court appeared to treat both applications as seeking conversion
to a neighborhood grocery store, which the ordinance allows as a
conditional

use within the district. Although the ordinance does not specifically
define neighborhood grocery store, retail stores are defined generally
under the ordinance as the "[c]ustomary use of enclosed restaurant, cafe,
shop and store for the sale of goods at retail," excluding "gasoline
service and motor vehicle repair service." A gasoline station is defined
as a building or land that is used "primarily for the sale of motor
vehicle fuel." The definition also provides: "A lot on which more than one
gasoline or motor fuel pump or dispenser is located, is a gasoline
station, if gasoline or motor fuel is offered for sale to the public."
Reading these terms and definitions together, the court concluded that a
neighborhood grocery store was not within the definition of a retail store,
and therefore gasoline service at the site was not expressly excluded, and
further found that the proposed use was not a gasoline station - which was
not a use permitted in the district - because it called for only one
gasoline dispenser. (FN2) The City challenges these findings.

Our standard for reviewing the Environmental Court's interpretation of
a zoning ordinance is whether the construction is clearly erroneous,
arbitrary, or capricious. See In re Weeks, 167 Vt. 551, 554, 712 A.2d 907, 909 (1998). Even under this deferential standard, however, we are
unable to concur in the court's interpretation. Absent any separate
definition, we discern no basis for excluding a neighborhood grocery
store, which indisputably offers goods for sale at retail, from the general
retail-store definition. Nor is there any basis for concluding that the
proposed use did not involve "gasoline service." See Random House
Unabridged Dictionary (2d ed. 1993) 1750 ("service" defined as "the
supplying or supplier of utilities or commodities"). Nor can we agree with
the court's ruling that the proposal fell outside the definition of a
gasoline station because it was limited to one motor fuel "pump or
dispenser." The court reasoned, in this regard, that the plain meaning of
pump or dispenser is the above-ground housing containing the hoses that
dispense gasoline to the vehicle. Therefore, despite the fact that the
single gasoline "housing" proposed by WESCO contained several hoses and
more than one automobile fueling position, the court found that the
proposed use was not a gasoline station under the ordinance.

We cannot agree that the ordinance is plain and unambiguous in this
regard. It is altogether unclear whether "pump or dispenser" refers to
the hoses dispensing fuel, or the housing containing the hoses. Thus, the
court was empowered to look to other sources for meaning. See Slocum v.
Department of Social Welfare, 154 Vt. 474, 478, 580 A.2d 951, 954 (1990)
(when ambiguity renders plain meaning rule unavailing, court may turn to
other aids of statutory construction). The record here contained the
testimony of the City's zoning and planning administrator, who explained
that the exception was designed for small volume gasoline usage by local
industries with their own fleets of trucks, not for single pump retail
sales. Read in this light, any gasoline service to the public, regardless
of the number of pumps dispensing the fuel, would be subject to regulation
as a gasoline

station, and simultaneously excluded from regulation as a retail store
under the ordinance's definition of that term. This interpretation appears
to most fully harmonize the various parts and purposes of the ordinance.
See Tarrant v. Department of Taxes, 169 Vt. 189, 197, 733 A.2d 733, 739
(1999) (legislative intent must be determined through statute considered
as a whole). Accordingly, we conclude that the court erred in evaluating
the proposal as a conditional-use neighborhood grocery store, rather than
as a proposal to alter a pre-existing non-conforming service and gasoline
station to another non-conforming use within a planned residential
district.
III.

The City next contends the Environmental Court exceeded its authority
in addressing the conditional use applications. "The reach of the
superior court in zoning appeals is as broad as the powers of a zoning
board of adjustment or a planning commission, but it is not broader." In
re Torres, 154 Vt. 233, 235, 575 A.2d 193, 195 (1990). Thus, the court
was empowered to address only those matters properly considered by the
City's planning commission and board of adjustment. Under the City's
zoning ordinance, the commission and board are composed of the same
members, but each body performs distinct functions. As the trial court
noted, the ordinance provides that applications for uses not otherwise
permitted in planned residential districts must be evaluated and approved
by the planning commission, and that "after such approval" the applicant
may apply for a conditional use permit from the board of adjustment.
Criteria to be considered by the planning commission include the
proposal's location, environmental impact, need, and generation of traffic
within the district, as well as its effect on the health and safety of the
district's inhabitants. In granting approval, the commission is authorized
to submit recommendations to the board of adjustment for inclusion in the
conditional use permit.

If the planning commission approves the application, the City's
ordinance provides that the board of adjustment must then evaluate the
impact of the proposed conditional use upon the City generally, including
whether it will adversely affect existing or planned community facilities,
the character of the area affected, traffic on roads and highways in the
vicinity, and ordinances and bylaws of the City then in effect.

WESCO's initial application for conditional use approval of a
neighborhood grocery store and conversion to a self-service gasoline
station was considered at a meeting of the City's planning commission on
December 7, 1995. A transcript of the meeting reveals that the planning
commission chair opened the hearing by explaining that the application
involved a conditional use, which required the action of "both bodies,"
i.e., the planning commission and the board of adjustment. The chair
outlined the criteria under the ordinance for a conditional use in a
planned residential district, and testimony was taken from the applicant,
the applicant's attorney, residents of the neighborhood, and others on the
need for the proposed grocery store, the traffic impact of converting to a
self-service station, and the environmental impact on the residents of the
district. One of the commission members underscored his belief that the
key criterion "that we as a Planning Commission should analyze is [whether
there is] a need for additional grocery outlets on Washington Street."
Another member noted several additional criteria under the ordinance for
conditional uses, and the chair

explained that if the commission approved the application, "then we would
adjourn and re-meet as the Board of Adjustment and then address those
issues."

At the conclusion of the hearing, the commission, as noted, voted to
deny the application. The minutes of the meeting indicate that "[n]o
action was taken by the Board of Adjustment due to the Planning
Commission's decision." WESCO's second application was considered by the
planning commission at a hearing in April 1996. The commission issued a
written decision again withholding approval. On the same day, the board
issued a brief order stating that the conditional use application was
denied "[b]ased on the lack of positive findings by the Commission."

In light of this procedural history, it is apparent that neither of
WESCO's applications received the requisite approval of the planning
commission under the criteria for conditional uses in a planned
residential district, and therefore neither application progressed to an
actual hearing before the board of adjustment to consider the separate
criteria for conditional use approval under the ordinance. Although the
board purported to issue a decision on the second application, that
decision merely recited that the application had been denied because of
the lack of positive findings by the commission. We are thus compelled to
conclude that the Environmental Court exceeded its authority in purporting
to consider issues relating to the conditional use applications that the
board - under the ordinance - could not, and did not, address. See
Torres, 154 Vt. at 235, 575 A.2d at 195 (court's power is only as broad as
that of planning commission and zoning board of adjustment).

Recognizing this procedural impediment, WESCO urges this Court to hold
that the provision of the City's zoning ordinance requiring preliminary
planning-commission review and approval of uses otherwise excluded from
planned residential developments is invalid under State law. WESCO notes
that the City has zoning authority only in accordance with, and subject to,
the terms and conditions imposed by the state in granting the power to
zone, see In re White, 155 Vt. 612, 618, 587 A.2d 928, 931 (1990), and
that the power to approve conditional use permits is statutorily vested in
the board of adjustment. See 24 V.S.A. 4407(2). Accordingly, WESCO
contends that this provision of the City's ordinance constitutes an
unauthorized delegation of power to the planning commission.

We considered a similar contention in In re Patch, 140 Vt. 158, 437 A.2d 121 (1981). There, as here, a local zoning ordinance required a
preliminary finding by the planning commission that a proposed conditional
use conformed with the same general character as those permitted in the
district, and would not be detrimental to other uses in the district. Id.
at 175, 437 A.2d at 129. Rejecting a claim of "unauthorized delegation" to
the planning commission, we explained that "[t]he ordinance very carefully
retains in the board of adjustment the only authority to grant approval for
the issuance of conditional use permits. It is required to hold hearings
and make findings, as required by 24 V.S.A. § 4407(2)." Id.
Distinguishing Town of Westford v. Kilburn, 131 Vt. 120, 126, 300 A.2d 523, 527 (1973), which had invalidated an ordinance requiring the
preliminary approval of private landowners within 1000 feet of the
applicant's property, we noted that the planning commission was the
"municipal body responsible for the preparation of this very [zoning]
ordinance, and a body with statutorily recognized functions in connection
with these very permits." Patch, 140 Vt. at 175, 437 A.2d at 129.
Accordingly, we concluded that the ordinance did not

represent an invalid delegation of power. See id.

Here, similarly, the City's zoning ordinance reserves final authority
to approve conditional use applications in the board of adjustment, while
charging the planning commission - "the body primarily responsible for
planning in the town," In re Cottrell, 158 Vt. 500, 505, 614 A.2d 381, 383
(1992) - with the task of ensuring that proposed uses in planned
residential districts conform with the needs, residential character, and
safety of the inhabitants of such districts. Accordingly, as in Patch,
we conclude that the ordinance is not invalid.

Citing Torres and In re Maple Tree Place, 156 Vt. 494, 594 A.2d 404
1991), WESCO also asserts that the court was authorized to address the
conditional use applications because the City had warned a meeting of both
the planning commission and the board. These decisions, however, stand
only for the principle that "the superior court is limited to consideration
of the matters properly warned as before the local board." Maple Tree
Place, 156 Vt. at 500, 594 A.2d at 407; see also Torres, 154 Vt. at 235,
575 A.2d at 195. They do not support WESCO's claim that the court may
address any matter so long as it has been properly warned, regardless of
other procedural requirements. Stated differently, proper notice may be a
necessary, but it is not a sufficient precondition to the court's exercise
of authority.

WESCO also contends that the board of adjustment was compelled to
address the applications under the ordinance, which provides that upon
receiving a conditional use application, the board "shall set a date for
public hearing." We do not read this provision, however, as superseding
the ordinance's plain requirement that proposed conditional uses in
planned residential districts receive preliminary planning-commission
approval before consideration by the board.

Finally, WESCO contends that the ordinance is irrational, and
therefore invalid, because the City's planning commission and board of
adjustment are composed of the same people and perform duplicative
functions. As noted, however, there is no statutory impediment to the
procedures established under the ordinance, and while their standards may
overlap, each body performs distinct functions, the planning commission
focusing upon the proposal's consistency with, and impact upon, the
residential character of the district, and the board looking at broader
impacts within the City as a whole. Accordingly, we cannot conclude that
the ordinance is arbitrary or irrational. See In re Letourneau, 168 Vt.
539, 544, 726 A.2d 31, 35 (1998) (courts will not interfere with zoning
unless it clearly and beyond dispute is unreasonable, irrational,
arbitrary, or discriminatory).

In summary, we hold that the court erred in addressing the conditional
use applications absent prior consideration by the board of adjustment.
(FN3) For the same reason, we conclude the court erred

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