Plan for Rt. 7 filling station, store headed back to court

FERRISBURGH — Champlain Oil Company’s proposal for a Ferrisburgh gas station large enough to handle truck traffic and including a convenience store and fast-food restaurant will return to Environmental Court on Sept. 7. Also on that date the judge hearing the case will make a visit to the Route 7 site that COCO hopes to buy and develop.
The site visit to the former home of the Ferrisburgh Roadhouse and Burdick’s Country Kitchen is set for 2 p.m., with the session at the Addison County Courthouse in Middlebury to follow at 3 p.m.
Environmental Court that afternoon will consider COCO’s request for reconsideration of Judge Thomas Durkin’s July 16 summary judgment, in which Durkin ruled the project lacks the acreage to conform with the Conservation District (CON-25) zone in which some of its proposed lot lies.
Durkin also ruled in COCO’s favor that town zoning along the highway does permit the proposed convenience store and drive-up window for the proposed restaurant. That latter ruling contradicted the Ferrisburgh Zoning Board of Adjustment’s September 2009 conditional approval of COCO’s plans.
On July 30, COCO attorney Liam Murphy filed a motion that proposed the firm could buy all of an adjacent parcel to increase the project’s lot size to about 27 acres and overcome Durkin’s objection.
An attorney for Friends of Ferrisburgh for Responsible Growth Inc. — which has opposed COCO’s plans — countered with an Aug. 17 motion against reconsideration.
COCO had proposed a 9-acre development on a site, about two miles north of Vergennes, that lies in three different zoning districts. Critically for COCO’s plans, according to Durbin, one of those zones is the CON-25 district, which requires a 25-acre lot-size minimum.
Specifically, some of the septic and storm water systems to serve the 4,800-square-foot building that COCO hopes to build to house the store and restaurant would touch land in the CON-25 zone and in a Rural Agricultural (RA-5) zone. 
The 9.04-acre lot proposed for COCO’s business was 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, former operators of the Country Kitchen.
Now, Murphy said COCO could buy all of the Burdicks’ property to create a 26.77-acre lot.
“The applicant may be able to correct the lot size issue which was raised by the court by purchasing both of the existing lots in their entirety. With the purchase of both lots the applicant will not create any non-conformity as to lot size, and will be able to create a fully conforming combined lot,” he wrote.
COCO President Tony Cairns declined comment on whether his South Burlington firm — which owns a string of gas stations, many with convenience stores and/or fast food restaurants — already had such a purchase agreement in place. Cairns said the situation was complicated and had moving parts.
“It’s all a work in progress,” he said.
Murphy also wrote the change of adding the land did not affect the proposal’s neighborhood, because there would be “no new impacts and no expansion of the project into the additional acreage.” 
His motion also stated that extending wastewater and septic disposal systems off the Highway Commercial (HC-2) zone along the highway and onto the RA-5 and CON-25 zones would be “passive uses” that “may be permissible to support an active use on a less restrictive zoning district.”
He also wrote that storm water and septic systems are permissible in the more restrictive zones for other uses: “There is no difference between the wastewater or stormwater coming from, say, a school built in CON-25 district versus the water coming from a commercial site built in the HC-2 district.”
Murphy asked if the judge did not see fit to reconsider his ruling, that he send the project back to Ferrisburgh’s zoning board to address the issue of lot size.
Friends of Ferrisburgh attorney James Dumont took issue with Murphy’s points. Dumont objected to COCO’s challenging of the Environmental Court’s July 22 summary judgment simply because “it may be able to correct” the lot size issue.
“The applicant apparently wanted to know if it could go forward without purchasing all of the two parcels. Now that it has lost on summary judgment, it is asking the court for a different ruling based on its unchanged ‘potential ability’ to purchase both lots. Were motions such as this to be allowed, the basic purpose of summary judgment would be defeated. Summary judgment would become a forum in which to float trial balloons,” Dumont wrote.
Dumont also wrote that precedents do not support the legality of extending the sewer and storm water systems into the RA-5 and CON-25 districts.
“A wastewater disposal area cannot be used by landowners as open space, nor can it be kept in its ‘natural state.’ The Agency of Natural Resources would be surprised to learn that this use is an ‘abstract’ or ‘passive’ use, as would any landowner whose land is burdened by an easement allowing such use by a neighbor. Similar rules govern stormwater disposal,” he wrote.
Dumont also argued that a project with a larger footprint is a different project.
“If this project indeed is going to involve a plot of land that is 27 acres, not 9 acres, the impacts on neighbors and the community undoubtedly will differ,” he wrote.
Ferrisburgh resident Don Dewees issued a statement on behalf of the Friends group supporting Dumont’s motion.
“Friends of Ferrisburgh for Responsible Growth believes Jim has presented strong and persuasive arguments regarding the points of law involved,” the statement said.
Andy Kirkaldy may be reached at andyk@addisonindependent.com.

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