Posted by: Patricia Salkin | July 31, 2014

VT Supreme Court Upheld Conditional Use Permit for General Merchandise Store

The Applicant in this case filed for a conditional use permit to build general merchandise store on the corner of the intersection located on Route 7 and Monkton Road in Ferrisburg, and local citizens (Opponents) appealed the permit granted to the Applicant. The trial court however found that the Applicant’s proposed project complied with all of the general and specific conditional use standards of the ordinance and the statute promulgated by the legislature. The trial court further added that the Appellant should install and maintain a crosswalk across its parking lot, but declined the Opponent’s suggestion to increase the landscape, relocation of the parking lot and the entrance to the building as the court found that such changes would cause potential safety issue and would provide little benefits. Opponents then appealed to the Supreme Court of Vermont.

On appeal, the Court found that it was not improper to shift the burden of proof to show an adverse impact, as the Applicant met its burden in showing that the proposal met the conditional use criteria and the Opponents were unsuccessful in rebutting the Applicant’s proposal. The court went on to find that the Opponents failed to provide evidence of harm from the commercial development, and that the trial court did not err in requiring the Opponent to show an adverse impact to the community. In regards to the Opponents’ argument against the legal standard applied by the trial court, the supreme court found that the trial court did not err in using the definition of undue adverse impact from the Quechee test, as the trial court merely used the definition of undue adverse impact from the case to form an interpretation of the adverse effect language in the Bylaws. As to the Opponents final argument as to whether the store was prohibited in the district due to the true usage of the store, the Curt found that the Applicant testified that the store would be a general merchandise store, the store’s proposed use as a discount retailer fell within the retail sales definition provided in the ordinance, and the definition provided in the ordinance was intended to be inclusive rather than restrictive.

In re Group Five Investment CU Permit, 93 A.3d 111 (VT 2/14/2014)

The opinion can be accessed at:

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