FERRISBURGH — A summary judgment issued on July 16 by Environmental Court Judge Thomas Durkin proved to be a split decision.
Champlain Oil Company may not proceed as planned with a convenience store, gas station and fast-food restaurant on Route 7 in Ferrisburgh because the project lacks sufficient acreage to conform with Conservation District zoning on some of its lot.
But Durkin also ruled in COCO’s favor that town zoning permits both a convenience store and a drive-up window for a restaurant on the former site of the Ferrisburgh Roadhouse. That latter ruling contradicted the Ferrisburgh Zoning Board of Adjustment’s September 2009 conditional approval of COCO’s plans.
Two parties had appealed that approval: COCO, a South Burlington firm that operates a string of gas stations and convenience stores, often including restaurants; and 15 residents opposing COCO’s plans, including a group calling itself Friends of Ferrisburgh for Responsible Growth (FFFRG). Both also asked for last week’s summary judgment.
COCO officials maintained some approval provisions were too restrictive, including bans on the drive-up window and the sale of diesel fuel. The diesel issue was left unresolved by Durkin’s summary judgment, which focused solely on the questions of whether the drive-up window and convenience store were permissible, and the Conservation District issue that went against COCO.
That part of the Environmental Court ruling on COCO’s proposed 9-acre development focused on the septic and stormwater systems to serve the 4,800-square-foot building that COCO hopes to build to house the store and restaurant.
The site, about two miles north of Vergennes, lies in three different zoning districts. Critically for COCO’s plans, according to Durkin, one of those zones is the Conservation District, which requires a 25-acre lot-size minimum.
Durkin wrote, “The general rule regarding split lots it that such a lot must comply with the zoning district requirements for each district occupied,” and that, “A split lot that fails to meet the dimensional requirements for all zoning districts occupied is considered a noncomforming lot.”
The 9.04-acre lot proposed for COCO’s business is to be created by combining 2.5 acres owned by the former operators of the Ferrisburgh Roadhouse, Claudia and Marcos Llona, and 6.54 acres of an adjacent 24.27-acre tract owned by Susan Burdick, also a former owner of the restaurant property.
But Durkin wrote, “no land development may occur on a to-be-created lot that is undersized.”
COCO President Tony Cairns said on Tuesday he had just received the decision, and although he had read it had not had a chance to confer with his attorney. Cairns said he did not wish to discuss COCO’s plans until he had a chance to have that discussion and consider the company’s options.
“I really can’t comment much until I can interpret what it (the decision) means,” Cairns said.
FFFRG member Nick Patch said although some elements of the ruling went against the group, members were happy with the outcome, if still wary of what might come next.
“Friends of Ferrisburgh are very pleased with the Environmental Court decision, and we await Champlain Oil Company’s next move,” Patch said.
Durkin landed squarely on COCO’s side on the other issues. On the convenience store question, he noted, “A ‘retail store’ is expressly listed as a permissible conditional use in the HC (Highway Commercial) District,” and that “A ‘convenience retail’ store appears to be merely one type of ‘retail store.’”
FFFRG’s attorney had argued that because a convenience retail store had a separate definition than retail store and that at “convenience store” was not a listed permissible use in the HC district that a convenience store should not be allowed, even though retail store was a permitted use.
Durkin disagreed: “If the drafters intend to prohibit convenience stores in the HC district, they must do so with more clarity.”
FFFRG’s attorney also argued that “drive-in facilities” are not on the list of permitted HC uses, but Durkin noted that restaurants are on the list.
He wrote, “a drive-in facility is a valid component to a permissible restaurant; there is no indication that a restaurant may not include a drive-in facility.”
When the legal dust settles, COCO hopes to build a mixed-use business with parking large enough to handle truck traffic. The proposal first surfaced in late 2008. The company amended its plans in May 2009 after a series of at-times contentious public hearings drew 100 residents or more. Most at those meetings said they opposed the size, scale and appearance of the project — or the possibility the restaurant might have golden arches.
At the same time, opinions are mixed: Other residents have quietly said they have no objection, and some at the meetings said they would not like the town to restrict business along Route 7.
Andy Kirkaldy is at [email protected].