Freedom Foods LLC Site Plan

Citation: Not availableDocket: 243-10-08 Vtec

Court: Vermont Superior Court; March 19, 2009; Vermont; State Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

The Vermont Environmental Court addressed the appeal by Eric Truran and Diana Salyer against the Development Review Board (DRB) of Randolph, which had approved a site plan for Freedom Foods, LLC, and determined that no variance was necessary for the proposed food production and retail use at 24 Pleasant Street. The appellants, represented by Paul S. Gillies, challenged the DRB's decision, while Freedom Foods was represented by Frank H. Olmstead. The Town's Zoning Administrator, Mardee Sánchez, participated in the proceedings but did not submit memoranda on the motions.

The court noted that this appeal was conducted on the record, as permitted by Vermont law, allowing for a review of legal issues without deference to the DRB’s conclusions. Freedom Foods applied for a zoning permit and site plan approval on July 31, 2008, for renovations to a previously vacant property that had housed a health food store and café. The proposed use included food preparation, a retail store, and warehouse/storage, with plans for five food production rooms and common storage for ingredients.

Due to food production being an unpermitted use in the zoning district, the zoning administrator referred the application to the DRB for both site plan approval and variance consideration, indicating that the proposed uses were consistent with past activities at the site. A public hearing was held on August 26, 2008, during which the DRB assessed the historical uses of the building and concluded that a variance was unnecessary, as the new uses were essentially a continuation of prior activities. The DRB subsequently approved the site plan.

The court noted concerns regarding the adequacy of the hearing transcript, which contained multiple instances of "unidentified speaker" and "unintelligible" content, while indicating that, despite these issues, the transcript was sufficient for the current motions. The court expressed that the DRB may need to improve its recording methods to avoid inadequate records in future proceedings.

The DRB issued a written decision on September 30, 2008, stating that a variance was not required for the site plan approval. Appellants filed an appeal on October 23, 2008, following the issuance of Zoning Permit #Z-08-83 on October 2, 2008, which was not appealed. The Statement of Questions raised four issues: 1) whether Freedom Foods, LLC’s proposed use is permitted, conditional, or prohibited in the Commercial District; 2) whether the DRB lawfully changed the hearing from a prohibited use/variance to a permitted/conditional use hearing; 3) whether the operation of Freedom Foods, LLC would alter the neighborhood's character; and 4) whether the proposed uses comply with the Condominium Agreement. The court considered summary judgment on Question 1, which could resolve the appeal if a variance were required. Appellants moved for summary judgment on Question 1, while Appellee-Applicants sought it on all four questions. The court dismissed Question 4 due to its jurisdictional limitations regarding the Condominium Agreement. Regarding Question 2, the court ruled that the DRB is not allowed to change a variance hearing to a conditional use hearing; however, it clarified that the hearing was properly warned for both purposes. The DRB’s determination that no variance was needed allowed it to proceed with site plan approval, contingent on whether the proposed uses were permitted or conditional under zoning regulations.

The DRB's conclusion that a variance was unnecessary was based on the proposed uses being continuations of grandfathered non-conforming uses, which had not been discontinued for over a year. However, the DRB failed to warn additional hearings or consider the application for conditional use approval or as a continuation of a non-conforming use, resulting in those issues being excluded from the current appeal. Consequently, summary judgment is granted to the Appellee-Applicant regarding Question 2. 

Question 3, which pertains to the conditional use requirement under 24 V.S.A. 4414(3)(A), is also dismissed since the application was not considered or warned for conditional use approval. Additionally, Question 3 does not address site plan review criterion 4.1(b), which requires harmony with surrounding development.

Question 1 seeks an impermissible advisory opinion, particularly regarding the applicant’s registered business purposes, which is irrelevant to the appeal. However, the remaining part of Question 1—concerning whether the proposed use is permitted, conditional, or prohibited—remains relevant despite Appellants not appealing the issuance of the zoning permit. This issue is significant for determining the status of the Appellee-Applicant’s use. 

In summary, a portion of Question 1 and all of Questions 3 and 4 are dismissed, while summary judgment is granted for Question 2. The parties are directed to mediation, with an option for a telephone conference if they wish to discuss the remaining portion of Question 1.