FERRISBURGH — The Environmental Court has ruled in favor of South Burlington firm Champlain Oil Co. (COCO) in COCO’s lengthy effort to build a gas station, a convenience store and fast-food restaurant on Route 7 in Ferrisburgh.
Environmental Court Judge Thomas Durkin’s Oct. 10 ruling not only granted COCO a permit for its project, but also overturned conditions that the Ferrisburgh Zoning Board of Adjustment (ZBA) had placed on the business, notably by allowing COCO to sell diesel fuel and to open earlier and close later.
COCO president Tony Cairns said the diesel provision was critical. According to COCO trial testimony, 20 to 25 percent of its fuel sales at its string of Vermont outlets are of diesel to commercial trucks, pickups, ATVs and passenger cars.
“We’re not building any new locations without diesel,” Cairns said. “It’s like telling a supermarket they can’t sell milk … That was a big deal.”
Durkin also ruled COCO can open at 4:30 a.m. and close at 11:30 p.m.; the ZBA had set its hours at 5 a.m. to 10 p.m.
Cairns said the earlier hours were particularly important to prepare for commuter and truck traffic.
“Everybody wants coffee … so we’ve got to get in there early,” he said.
But although COCO already has state septic and stormwater permits, it appears the firm will not be able to move forward quickly.
The group that has also, like COCO, appealed all prior ZBA and court decisions — Friends of Ferrisburgh for Responsible Growth (FFRG) — plans to appeal again.
On Tuesday, group member Nick Patch released a statement on behalf of FFRG.
“The Friends of Ferrisburgh for Responsible Growth believe that Judge Durkin’s decision is in error and we will be appealing it to the Vermont Supreme Court. We feel strongly that Ferrisburgh’s zoning and Town Plan, both duly adopted by the town, deserve to be upheld,” the statement read.
Cairns said he sees a further appeal as a delaying tactic.
“We won on every single thing. So what do they plan to appeal?” Cairns said. “To me it’s just a stalling tactic so we can’t build next year.”
But FFRG said in a second statement it expects to prevail in an appeal, although FFRG declined to comment on its specific appeal grounds.
“We believe there are substantial errors in Judge Durkin’s decision and would have no intention of spending the time, energy and money to mount an appeal to the Vermont Supreme Court if we didn’t believe there was a legitimate chance the environmental court’s ruling would be overturned. This is not a stalling tactic. This is democracy in action,” it read.
COCO’s site lies on the east side of Route 7, about a half-mile south of Ferrisburgh’s town office building and elementary school. It once housed the Ferrisburgh Roadhouse, which burned to the ground in 2007, and before that Burdick’s Country Kitchen.
COCO plans to buy the 2.5-acre Roadhouse property from its owners, Marcos and Claudia Llonas, and an adjacent 24.27-acre tract from former Country Kitchen owners Greg and Sue Burdick.
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 give the rest of the Burdick land to a neighboring farm.
The project would feature a 4,800-square-foot building. In that, 2,600 would be a convenience store (probably a Jiffy Mart), and 2,200 square feet would be a 34-seat fast-food restaurant. Restaurant possibilities Durkin mentioned included McDonald’s, Subway and Wendy’s. Parking would handle 54 vehicles, fuel pumps would have peaked canopies, and Durkin wrote that landscaping would provide effective screening.
That plan sites all building in Ferrisburgh’s Highway Commercial (HC) and Rural Agricultural (RA) zones. The court and the ZBA ruled that the project now meets all lot-size and setback requirements.
The ZBA originally approved a version of the plan in September 2009, and COCO and FFRG appealed that decision. Environmental Court sent that decision back to the ZBA in September 2010 because some parts of the plan then impinged on the neighboring Conservation zone and did not meet minimum lot size requirements.
COCO then came up with its current plan, which the ZBA approved in June 2011, with the same 14 conditions. Both COCO and FFRG again appealed that decision to the Environmental Court.
Durkin wrote whether the project conforms with Ferrisburgh’s town plan and zoning laws is “perhaps the most significant issue in our conditional use analysis.”
Ferrisburgh’s town plan describes the desirable outcome for zoning in the Highway Commercial district as “only small-scale commercial enterprises and mixed uses typical of a 19th-century crossroads area,” but HC zoning also lists retail, restaurants and gas stations as conditionally permitted uses.
Durkin noted some contradictions.
“We have difficulty interpreting this portion of the Town Plan, since it appears to conflict with the development that the Town has already allowed to occur in the Commercial Highway areas,” he wrote, while elsewhere noting the COCO proposal’s HC area “presents itself as more commercial in character … the commercial properties encompass the majority of physical space in the highway area that is south of the village center.”
Ultimately, Durkin concluded the neither the town plan nor zoning has the teeth to back the statement in the town plan.
“This portion of the Town Plan does not provide mandatory language or guidance specific enough to be imposed as law, and the Bylaws lack any specific guidance implementing the Town Plan’s language,” he wrote.
Thus, Durkin rejected FFRG’s central argument against COCO’s plan.
He wrote, “We are left with the character of the existing area to guide us what has been permitted in the HC district … We conclude that the proposed project complies.”
Durkin also wrote the existing development and lack of specific regulations, “make this Court question the weight and effect of this stated but unattained goal to turn the development clock back more than a hundred years.”
Durkin also sided with COCO on the issue of traffic, writing that he agreed with Agency of Transportation and COCO testimony that the project would not create a safety hazard, in part because COCO has pledged to fund a left-hand turn lane for southbound traffic that the Agency of Transportation has agreed to build.
Durkin also wrote he found credible COCO’s assertion that the project would lure 118 vehicles during peak hours, more than 90 percent of which would be “pass-by” drivers who chose to stop.
Durkin also disagreed with FFRG that the project would be out-of-scale with other businesses in the area. One COCO exhibit, he wrote, “credibly counters the Cross-Appellants’ (FFRG) assertion the Project would be significantly larger than other commercial properties in this area of Town.”
On the issue of the project lighting, Durkin wrote the LED lights that will be used “will not create a glow in the sky” or impair drivers’ vision.
He also concluded the project would not adversely affect the character of the area, because of the existing commercial influence and because it was not “significantly larger” than existing firms, or affect the “appropriate use or development” of neighboring properties.
In overruling the ZBA on hours of operation, he wrote, “There was no credible evidence presented as to the benefit to the surrounding area or adjacent neighbors of restricting applicant’s hours of operation,”
Reviews of COCO’s project among town residents have been mixed. Opposition was initially strong, but some residents have also said they supported a new venture on a site that has been vacant for five years and questioned whether the town should say no to new businesses.
Durkin remarked on the lack of feedback from residents at what was a four-day trial.
“Cross-Appellant offered no testimony from neighbors who speculated that the project lighting would cause a nuisance, nor did they offer trial testimony from any neighbor or Cross-Appellant on this or any other legal issue challenged in this appeal,” Durkin wrote. “The Court did not hear from neighbors or owners of nearby property as to their individual concerns about the Project.”
Andy Kirkaldy may be reached at firstname.lastname@example.org.