STATE OF VERMONT
ENVIRONMENTAL COURT
}
Appeals
of Wesco, Inc.
}
Docket Nos. 17-1-03 Vtec and 107-6-04 Vtec
}
}
Order on Motion for Interlocutory Appeal
Appellant-Applicant
Wesco, Inc. appealed from two decisions of the Development Review Board (DRB) of
the City of South Burlington, one in January of 2003 and the other in June of
2004, regarding a convenience store with gasoline service at the merged property
at 1108-1118 Williston Road.
Appellant-Applicant is represented by[1]
Marc B. Heath, Esq. and William E. Simendinger, Esq.; the City of South
Burlington is represented by Amanda S. E. Lafferty, Esq.
The
Court issued a decision and order on motions for summary judgment, leaving
certain issues remaining in Docket No. 17-1-03 Vtec for trial; a date has been
reserved for September 2, 2005. The
City moved to take an interlocutory appeal of that decision.
Wesco
had filed with the City alternate applications to convert a service station,
with one awkwardly-placed diesel fueling position and three gasoline pumps, to a
convenience store with a diesel pump and either two or three gasoline pumps
(each pump having two fueling positions).
Wesco is seeking approval in the present appeal of a site plan for the
convenience store with three gasoline pumps which the DRB considered and ruled
on in late 2002. What remains in
this case is Wesco=s
application for approval of a third gasoline pump (proposed for the same island
as the new diesel location), associated changes in the curb cut widths, parking
and landscaping configuration, and issues of glare and screening relating to a
canopy over the diesel island.
It
is difficult to understand what the City argues is the controlling question of
law suitable for interlocutory appeal.
The City appears to be focusing the fact that when these applications
were filed, the conversion of the service station to the convenience store had
not yet occurred, and that now the convenience store, two gasoline pumps and one
diesel pump have been installed and are operating under other already-approved
permits. However, the site plan
approval requirement is the same whether it is triggered by a change in use
(such as the change from a service station to a convenience store), an expansion
of a use (such as from two to three gasoline pumps), or an entirely new
use. '26.10. The DRB, or this Court in an appeal,
must analyze the proposed site plan in light of the standards in the
regulations, regardless of what triggered the need for the site plan
review. The DRB has already
considered this site plan.
In
the remaining merits hearing, Wesco will have to show, among other things, that
the on-site circulation, and proposed changes in curb cut, parking and
landscaping will meet the regulations if the additional vehicles proposed to use
the outlying third gasoline pump are added to the anticipated circulation of
vehicles on the property, and particularly whether there will be any conflict
between trucks and passenger vehicles proposed to use the same
diesel-and-gasoline pump island.
Wesco will also have to present evidence on whether the proposed diesel
canopy produces glare or is sufficiently screened. The City has not shown why it matters to
this analysis that Wesco has already acted under its previous approval to
convert the service station to a convenience store with two gasoline pumps. The DRB (or the former separate ZBA and
Planning Commission) previously had before it alternate plans to convert the
service station to a convenience store: one plan with two gasoline pumps, and
one with three. Only the
two-gasoline-pump plan was approved. Wesco still has the right to proceed with
its appeal of the denial of its preferred three-pump plan, even though its
approved two-pump plan has been installed.
The three-pump plan is
properly before the Court in what remains of this appeal, and does not require
remand to the DRB.
Even
if the question of whether this appeal should be remanded were a >controlling
question of law=,
an immediate appeal to the Supreme Court would not >materially
advance the termination of the litigation,=
especially if the time period to be
measured includes the time for the case to be considered at the Supreme Court as
well as the time for trial. In
re Pyramid Co., 141 Vt. 294, 303-06 (1982). What remains in this case is a
one-day merits hearing on limited factual issues. If this Court were to allow
interlocutory appeal and the Supreme Court were to agree with the City that this
appeal should be remanded to the DRB, after the remanded DRB proceedings the
case could ultimately return to the Environmental Court de novo
and be in the same posture as it is now for trial. If the Supreme Court did not agree that
the matter should be remanded, the remaining portion of the appeal would be
returned to the Environmental Court in exactly its present
posture.
On
the other hand, if the proposed site plan amendments at issue in this appeal
(the proposed third pump location, enlarged curb cuts, and glare and screening
related to the canopy over the diesel island) were denied after the scheduled
hearing on the merits, and if Wesco were to choose not to appeal that denial,
the matter will not need to be presented to the Supreme Court at all. If Wesco were to appeal that denial, the
issues the City seeks to raise now could equally well be raised in that
appeal. Similarly, if any of the
proposed site plan amendments were granted, the City itself would then be able
to bring an appeal on the issues it seeks to raise now.
Accordingly,
the City=s
motion for permission to take an interlocutory appeal is
DENIED.
The
Court will hold a brief telephone conference to discuss the relative timing of
the trial now reserved for
September 2, 2005, and any motion the City may wish to make to the Vermont
Supreme Court. Ordinarily, after
the trial, the filing of requests for findings and memoranda of law would have
been scheduled so that the remaining merits of the case would have been under
advisement with the Court in the first week of October, as Judge Wright will be
away from September 9 through September 29. At the telephone conference, the parties
should be prepared to state their positions regarding whether that remaining
merits hearing should be postponed, with requests for findings and memoranda
being due before or at the hearing, so that the matter would be under advisement
with the Court at approximately the same time. They should discuss the matter with each
other in advance of this conference.
Dated
at Berlin, Vermont, this 12th
day of August, 2005.
______________________________________
Merideth
Wright
Environmental
Judge