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Supreme Court OKs fast food restaurant, Jiffy Mart on Route 7 in Ferrisburgh

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Posted on February 27, 2014 |
By Andy Kirkaldy



FERRISBURGH — The Vermont Supreme Court of Feb. 21 ruled in favor of South Burlington firm Champlain Oil Co. (COCO), which since 2008 has been working to build a gas station, convenience store and fast-food restaurant on the former Route 7 site of the Ferrisburgh Roadhouse.

COCO President Tony Cairns this week said he hopes by April 2015 to have a Jiffy Mart and a McDonald’s Restaurant on the site, which is on Route 7’s east side about a half-mile south of Ferrisburgh’s town offices and a mile-and-a-half north of Vergennes.

The Supreme Court decision to uphold an October 2012 Environmental Court ruling — one that also favored COCO — ended a lengthy legal and zoning journey for COCO’s proposal.

A dozen residents and Friends of Ferrisburgh for Responsible Growth (FFRG) had appealed that 2012 Environmental Court ruling to the Supreme Court.

Previously, both COCO and FFRG had appealed the Ferrisburgh Zoning Board of Adjustment’s June 2011 approval to Environmental Court, which before then had sent the case back to Ferrisburgh. The court took that action after both parties had appealed a prior zoning board decision.

In 2012, the Environmental Court backed COCO and removed some restrictions on its permit that had been imposed by the Ferrisburgh zoning board. The court in its ruling overturned the zoning board in allowing COCO to sell diesel fuel and stay open longer hours, and in allowing the restaurant to include a drive-through window.

Cairns this week said he had mixed feelings “because of all the money you spent to get” the final Supreme Court OK, but was now ready to move forward with a project he said would benefit the town with jobs and tax revenue.

“It would have been unfortunate if we didn’t get the green light,” he said. “But I’m glad we did get it, and I think we’ll be an asset to the community when all is said and done.”

COCO officials had said all along they were not sure what fast-food restaurant would sign on as a tenant. Cairns said the Golden Arches became a sure thing only in December, when COCO and McDonald’s inked a deal after the restaurant chain approached COCO in October.

Project opponents said they were disappointed in last week’s decision and in the Feb. 14 Supreme Court ruling that paved the way for a Dollar General store at the intersection of Route 7 and Monkton Road, a couple miles south.

FFRG member Nick Patch issued a statement on Tuesday on behalf of the group:

“It is clear that Ferrisburgh is under huge development pressure in the Route 7 corridor which the town must address. The two most recent Ferrisburgh rulings by the Vermont Supreme Court are a clear indication of the direction future development will take if allowed. We believe that a balanced approach of encouraging smaller scale development that honors the character of the town and discouraging large-scale sprawl inducing projects is the way to go as the town works to develop a vision for the future.”

Reviews of COCO’s project among town residents were mixed during the high-profile zoning process. Opposition was initially strong, with up to 100 residents showing up at one hearing. But others also said they supported a new venture on a site that at that point had already been vacant for several years and questioned whether Ferrisburgh should say no to new businesses.

PROJECT DETAILS, HISTORY

COCO has contracts to buy the 2.5-acre Roadhouse property from its owners, Marcos and Claudia Llonas, and an adjacent 24.27-acre parcel from Greg and Sue Burdick. The Burdicks operated the Country Kitchen restaurant on the site before selling it to the Llonases.

COCO will combine the 2.5 acres with 7.2 acres of the Burdick property and site all of its proposed project, including septic and stormwater lines, on that 9.7 acres, and donate the rest of the Burdick land to a neighboring farm.

According to COCO’s application, the project will feature a 4,800-square-foot building, including 2,600 for a Jiffy Mart convenience store and 2,200 square feet for a 34-seat restaurant.

Parking will handle 54 vehicles, fuel pumps will have peaked canopies, and the Environmental Court ruled that landscaping would provide effective screening. The zoning board had imposed several of those requirements among 14 original conditions. The approved plan sites all improvements in Ferrisburgh’s Highway Commercial (HC) and Rural Agricultural (RA) zones.

The zoning board originally approved a version of the plan in September 2009, and COCO and FFRG appealed that decision. The Environmental Court sent that decision back to the zoning board in September 2010 because some parts of the plan then impinged on the neighboring conservation zone and did not meet that zone’s minimum lot size requirements.

COCO then came up with its current plan, which the zoning board approved in June 2011 with conditions that included the ban on diesel sales and the drive-through window, and shorter operating hours. Both COCO and FFRG again appealed that decision to the Environmental Court, which rejected those three conditions.

Cairns said all were critical, especially diesel sales.

“Diesel is like 30 percent of our business,” he said. “It’s like telling a grocery store you can’t sell milk.”

Given the lot purchases and the lengthy legal history, Cairns said this project will hold a distinction among COCO’s many such projects statewide, including one further north in Ferrisburgh and another in New Haven Junction.

“This is going to be the most expensive project we’ve ever done,” Cairns said.

RULING DETAILS

The Feb. 21 Supreme Court decision, signed by Associate Justice Marilyn Skoglund, sided with the October 2012 decision by Environmental Court judge Thomas Durkin on all points.

On “appellants claim that the project and its proposed uses fail to conform to the development standards discussed in the Ferrisburgh Town Plan,” the Supreme Court decision stated it found no error in the environmental court reasoning “that the purposed provisions of the town plan consisted of aspirational language and that it did not impose a regulatory restriction.”

The Supreme Court also rejected the appeal’s “claim that the proposed convenience store and restaurant drive-up service window are not permitted by the town’s zoning ordinances.”

The Feb. 21 decision stated that although “convenience, retail,” was not listed among those permitted uses, “we agree with the court below when it found that ‘a convenience retail’ store appears to be merely one type of ‘retail store’ and was a conditional use in the HC District.”

As did the Environmental Court decision, the Supreme Court noted the Ferrisburgh zoning board allowed a “drive-in component,” while disallowing the drive-through window. And the Supreme Court, like the environmental court, refused to draw a meaningful distinction between the two.

“What we cannot discern is why the Bylaw definition of a ‘retail store’ specifically excludes ‘any drive-in facility’ and why the ZBA decided to prohibit a ‘drive-through’ and allow a ‘drive-in’ for the project,” the decision stated.

The Supreme Court also backed the Environmental Court’s position that the project’s scope and appearance would affect the area, noting that, “it appears the court carefully examined the anticipated visual impact of the project,” and also citing “the negligible impact of the existing commercial operations upon the character of the area.”

Finally, the Supreme Court agreed with Environmental Court that the project’s in-ground septic mound system was not a structure that could be considered to be in violation of zoning setbacks, stating, “The environmental court’s interpretation of the setback provisions is sound and we agree with the approach taken.”

Andy Kirkaldy may be reached at andyk@addisonindependent.com.

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