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In re Group Five Invs. CU Permit

Supreme Court of Vermont

February 14, 2014

In re Group Five Investments CU Permit

Page 112

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Superior Court, Environmental Division. Thomas S. Durkin, J.

James A. Dumont, Bristol, for Appellants.

David H. Greenberg, Burlington, for Appellee.

Present: Reiber, C.J., Dooley and Skoglund, JJ., and Kupersmith and Zonay, Supr. JJ., Specially Assigned

OPINION

Page 113

Reiber, C.J.

[¶1] This appeal stems from the Superior Court, Environmental Division's affirmance of the zoning board's grant of a conditional use zoning permit to applicant Group Five Investments, LLC, to build and operate a Dollar General store in Ferrisburgh, Vermont. Opponents claim tat the trial court erroneously shifted the burden of proof by requiring opponents to show both that the proposed project will have an adverse impact on the area and that existing commercial development in the area has already had an adverse impact. Opponents further contend that the trial court erred in using the Quechee definition

Page 114

of undue adverse impact as guidance in interpreting the zoning ordinance. Finally, opponents argue that the trial court erred in failing to rule that the proposed use is prohibited under the applicable zoning ordinance, and that the trial court violated Vermont Rule of Civil Procedure 52(a) by failing to make requested findings on the proposed use of the Dollar General store. We affirm the trial court.

[¶2] Applicant filed for a conditional use permit in September 2005 to build a Dollar General store on the southeast corner of the intersection of Route 7 and Monkton Road in Ferrisburgh. Applicant describes its retail business as a " general merchandise store that carries everything from food and clothing to pet supplies to cleaning supplies, some electronics, pretty much everything." The Town of Ferrisburgh Zoning Board of Adjustment granted the permit on February 9, 2011, but imposed seventeen additional conditions on applicant. Opponents, local citizens, appealed to the Environmental Division.

[¶3] After a merits hearing, the trial court issued an order affirming the zoning board's grant of the conditional use permit. In its decision, the court made detailed findings of fact regarding " the project and its site," and the " surrounding neighborhood." Based on these findings, the court concluded that applicant's proposed project complied with all of the performance standards in the Ferrisburgh zoning ordinance, and that the project complied with all of the general and specific conditional use standards of the ordinance as well as the enabling statute promulgated by the Legislature. However, the court imposed the additional requirement that applicant install and maintain a crosswalk across its parking lot to provide a safe walkway for visitors. The court declined opponents' suggested changes to the proposal, including increased landscaping and relocation of the parking lot and entrance to the back of the building, on the grounds that such changes would provide little benefit and present several disadvantages, such as potential safety issues. Opponents timely appealed the court's ruling.

[¶4] The Supreme Court reviews the environmental court's rulings on questions of law or statutory interpretation de novo. In re Vill. Assocs. Act 250 Land Use Permit, 2010 VT 42A, ¶ 7, 188 Vt. 113, 998 A.2d 712. We uphold the environmental court's interpretation of a zoning regulation so long as it is rationally derived from a correct interpretation of the law and not clearly erroneous, arbitrary or capricious. In re Korbet, 2005 VT 7, ¶ 11, 178 Vt. 459, 868 A.2d 720 (mem.); In re Casella Waste Mgmt., Inc., 2003 VT 49, ¶ 6, 175 Vt. 335, 830 A.2d 60. As to findings of fact, " the Environmental Court determines the credibility of witnesses and weighs the persuasive effect of evidence, and we will not overturn its factual findings unless, ...


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