STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket No. 99-7-13 Vtec
Creative Spirit Conditional Use & Site
Plan Approval (After Remand)
Decision on the Merits
Applicant Sheila Bedi seeks conditional use and site plan approval to convert an existing
single-family home, located at 154 West Fairlee Road in the Town of Thetford, Vermont, into a
child daycare facility (“the Project”). The pending application has a somewhat long and
tortured history that warrants some explanation. We do so at the introduction of this Decision
on the Merits because, while the procedural history has several chapters, the substantive part
of our Merits Decision only addresses the pending application based upon the evidence
introduced and admitted at trial.
Procedural History
Ms. Bedi first submitted a conditional use and site plan approval application on August
23, 2012. The Town of Thetford Development Review Board (“the DRB”) held an initial hearing
on the application on September 25, 2012. The hearing was continued to October 9, 2012 and
then again to October 23, 2012. The DRB then issued a written decision granting Ms. Bedi’s
application with conditions on November 27, 2012. A number of concerned neighbors timely
appealed that decision to this Court. This Court assigned Docket No. 168-12-12 Vtec to that
appeal.
At the request of the Town of Thetford (“Town”) and with the consent of Ms. Bedi and
the appealing neighbors, the Court remanded that application to the DRB to make further
findings of fact and conclusions of law that were not present in the November 27, 2012
decision. In granting the motion to remand, the Court dismissed, without prejudice, that first
appeal.
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The DRB approved her second application, with conditions, in a decision dated July 2,
2013. Neighbors Ridge Satterthwaite, Sally Gage, Cathy Estes, Peter Estes, Deborah McKee,
Glenn McKee, Christine Kogel, Cleopatra Mathis, Philip Banios, Helen Drew, Jon Kryander, Cathy
Roberts, and Joe Roberts (“Appellants”) timely appealed that second DRB approval to this
Court. Marjorie Powers (a neighbor) and Fred and Bethany Budzyn (the current owners of the
land on which Applicant plans to develop her daycare facility) appeared as Interested Persons.
Ms. Bedi and the Town are represented by Brian P. Monaghan, Esq. Appellants are represented
by Nathan H. Stearns, Esq., who was assisted at trial by attorney Daniel C. Hershenson, Esq.
The Interested Persons are self-represented.
Appellants filed a twenty-three-question Statement of Questions, presenting issues
generally related to conditional use and site plan approval under the Town of Thetford,
Vermont Zoning Bylaw (“Bylaws”), including issues of parking, traffic and circulation, lighting,
landscaping, grading and drainage, impacts on the character of the area, noise, visual impacts,
and state-issued wastewater and water-supply permits. Ms. Bedi and the Town moved for
summary judgment in their favor on all of Appellants’ questions. In response, Appellants
agreed to withdraw three of their twenty-three questions, but opposed the pending summary
judgment motion on the remaining questions. The Court thereafter dismissed Questions 2, 21,
and 22 (the questions Appellants agreed to withdraw), determined that summary judgment
should be entered in Applicant’s favor as to Question 1, and that the applicable law required
that Question 23 be dismissed. In re Creative Spirit Conditional Use & Site Plan Application,
No. 99-7-13 Vtec, slip op. at 4–6 (Vt. Super. Ct. Envtl. Div. Sept. 26, 2014) (Durkin, J.). None of
the testimony or arguments at trial caused the Court to reconsider these pre-trial
determinations. We therefore incorporate by this reference those determinations into our
Merits Decision, thereby rendering them final.
The Court determined that the remaining legal issues (addressed in Appellants’
Questions 3 through 20, inclusive) could not be resolved on summary judgment, since
Appellants had presented a basis for disputing the facts material to each of those legal issues.
Id. at 6–7. The Court determined that a trial was necessary in order to resolve these disputes
over material facts. Id.
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The matter was initially set for a one-day trial on October 9, 2014. When it became
apparent that the trial could not be completed that day, the trial was continued on the
following day (Friday, October 10, 2014). When it then became apparent that a third day was
needed to complete the trial, the Court searched for the next available day, which was
November 5, 2014. The trial was completed that day. Prior to the first day of trial (October 9,
2014), the Court conducted a site visit with the parties and their respective attorneys and
experts. The site visit provided helpful context for the evidence that was presented at trial.
Once the trial was completed, the parties requested and the Court allowed additional
time for the filing of proposed findings of fact and conclusions of law and responses thereto.
Those filings were completed and this matter came under advisement on December 31, 2014.
Due to other commitments and administrative matters, the Court delayed the research,
deliberation, and drafting required to complete this Merits Decision, for which the Court offers
its apologies to the parties and their counsel.
Based upon the evidence admitted at trial, including that which was put into context by
the site visit that the Court conducted with the parties, the Court renders the following Findings
of Fact, Conclusions or Law, and Judgment Order that accompanies this Merits Decision.
Findings of Fact
I. General Background
1. Sheila Bedi (“Applicant”) currently operates a daycare facility that she began about
fourteen years ago. She operates her current facility out of an old school building in the Town
of Fairlee in an area known as the West Fairlee Village. The Town of Fairlee adjoins the Town of
Thetford.
2. Applicant’s current facility has twenty-five children enrolled in her daycare program.
She employs seven people not including herself, although she does work regularly at the
facility.
3. Parents generally drop off their children at Ms. Bedi’s current daycare between
7:00 a.m. and 9:00 a.m.; most daycare enrollees are picked up beginning at 3:00 p.m.
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4. Applicant also offers after-school care for enrolled children between the hours of
3:30 p.m. to 6:00 p.m. Although a specific percentage was not provided, not all enrolled
children continue at Applicant’s center for after-school hours.
5. During her fourteen years of operation, Applicant has not received a single complaint
about noise or other activities that bothered the neighbors at her current daycare center.
6. The Court found Ms. Bedi’s testimony credible, particularly since her current daycare
center has received a “Five-Star Certification” from the State of Vermont. This certification
includes a review of the quality of care at a daycare center, including evaluations of both the
inside and outside portions of the facility. Five stars is the highest rating given for this type of
certification.
II. Subject Property and Proposed Improvements
7. Applicant submitted an application for conditional use and site plan approvals to
renovate an existing single-family residence and attached garage and establish a child daycare
facility at 154 West Fairlee Road in the Town of Thetford, Vermont (“the Subject Property”).
8. While her current daycare center has been successful, Applicant concluded that she
would prefer to develop a slightly larger facility, closer to area schools; she intends to operate
her proposed facility in a fashion similar to her current facility. After a search for alternate
sites, she concluded that the already-existing building on the Subject Property would be ideal,
since it is located between two school districts along existing bus routes and is of a suitable size.
9. The Subject Property is near Lake Fairlee, about two miles from Applicant’s
current daycare facility.
10. The Subject Property is bounded on the western side by Field Point Road, which
is a private roadway that serves four residential properties, and on the southern/southwestern
side by West Fairlee Road, which is a town highway. To the southeast, east, and northeast are
residential properties. A copy of a portion of the Town of Thetford Grand List tax map,
depicting the Property and surrounding properties, was admitted at trial as Appellants’
Exhibit 2.
11. The Subject Property contains 1.84± acres.
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12. The floor area of the building, including the attached two-car garage, is approximately
2,755 square feet.
13. The use as proposed would serve no more than thirty-eight children and would employ
no more than nine staff members at any one time at the facility. In total, Applicant proposes to
employ seven full-time and three part-time staff members.
14. Applicant proposes to make extensive renovations to the interior of the building on the
Subject Property. However, no renovations to the exterior of the building or expansion of its
footprint are proposed.
15. The proposed interior renovations would include finishing the garage as a classroom
area, kitchenette, and bathroom while using the interior of the residence as a preschool
classroom, a room for infants with a kitchen area, and a dining room and full kitchen.
16. Applicant provided a detailed, credible written explanation of her proposed project and
its impacts to the surrounding area, entitled “Creative Spirits Children’s Center,” a copy of
which was admitted at trial as Exhibit C.
17. Applicant also proposes to make the following improvements to the land surrounding
the renovated building:
a. A new parking area, gravel-surfaced, will be developed on the area now used as
a lawn on the westerly side of the building. The parking area will have nineteen
parking spaces, all of which will be 10 feet wide by 20 feet deep, except that one
space is an ADA-compliant parking space, which has additional space around it.
b. The parking area will be located about 6½ feet from the property boundary with
Field Point Road. The parking area will be 60 feet wide and 118 feet deep.
c. The parking area will be shielded from Field Point Road by some existing trees
and by additional cedar trees that Applicant proposes to plant relatively tightly
(eight feet apart, measured on center).
d. The parking area as currently proposed will allow parents transporting their
children to pull in to the parking area, deliver their children to the daycare, then
turn their vehicles around to return to West Fairlee Road.
e. The Property currently has an ingress/egress point along Field Point Road.
Applicant will block off this access point with new cedar tree plantings so as to
limit vehicular access to one point: the driveway on West Fairlee Road.
f. A four-foot-tall wooden stockade fence will also be installed in front of the
parking area, for screening purposes. This fence will be stained a color similar to
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the existing house and this new fence will run from the edge of the existing
driveway to the westerly property boundary line.
g. The existing driveway is gravel-surfaced and 24 feet wide with a 30-foot-radius
curve-out on each side at the street edge; it is generally flat and is less than 100
feet long. Where the driveway intersects with West Fairlee Road, the paved
driveway apron will be expanded so as to accommodate vehicles turning into
and out of the driveway, as recommended by the Vermont Agency of
Transportation (“VTrans”).
h. The Town of Thetford Public Works Director has reviewed and approved the
Project’s proposed driveway and curb cut improvements. He determined that
the proposed driveway conformed to all width, horizontal, vertical, and other
geometric characteristics recommended by the VTrans B-71 Standards.
i. Children will be supervised when they are allowed to play outside in the rear
lawn area of the Property. So as to provide protection and screening, the rear
lawn area will be enclosed using two types of fencing: stockade fencing on the
front portions and a “safety fence” made of metal and dark fabric for the sides
and rear. The stockade fence will be wooden and will be stained a color similar
to the existing building. Both fences will be four feet in height. Applicant has
used fencing at her current facility that is similar to both types of proposed
fencing. There have not been any complaints concerning this fencing, nor
injuries to any children attributed to the fencing in the many years that fencing
has been in use at her current facility. No trees will be removed to
accommodate the proposed play area or fencing.
j. Applicant proposes to retain existing trees and other plantings, to plant four-
foot-tall cedar trees every 30 feet along the front portion of the stockade fence,
and plant a number of additional four-foot-tall cedars between Field Point Road
and the parking area. These existing and proposed plantings, as well as the
proposed fencing, will provide some visual and audio buffers from the activities
of the daycare center.
k. The existing residence on the Subject Property has some exterior lighting,
particularly at some of the exterior doors. That lighting will remain, and
additional lighting will be installed on the front of the garage area and beside
two additional side doorways, as depicted on Exhibit C, page 17. All new lighting
fixtures will be downcast, mounted no more than eight feet above the ground,
activated by motion sensors, and shielded to block direct views of the lighting
source.
l. There currently is a fenced-in garden near the rear of the Subject Property.
Applicant intends to maintain and improve upon that garden and to incorporate
it into the supervised activities.
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18. Applicant will not use any vehicles as part of her business. Employees traveling to and
from work will use their own vehicles.
19. If Applicant’s proposed facility reaches its planned capacity of thirty-eight children, the
Project is estimated to generate a maximum of thirty additional round trips each morning as
parents drop off one or more children and a maximum of thirty round trips each late afternoon
or evening as parents pick up one or more children. It is possible that the Project will not add
more than a few new round trips each morning and evening on West Fairlee Road, since area
families already travel these roads to bring their children to and from other area schools and
daycare facilities. Thus, the net increase of traffic on West Fairlee Road will be minimal.
20. Employees of the proposed daycare facility will cause eight round trips to and from the
facility each day. Given that the daycare facility will replace a residential use at the existing
building, and that a residential use usually translates to several round trips per day, the round
trips of employees will not equate to more than a few additional round trips over the current
use.
21. The proposed daycare will operate Monday through Friday each week during the hours
of 6:30 a.m. to 6:30 p.m. There are no proposed plans to operate during the evening hours or
on the weekends.
22. Appellants presented several photographs of the areas adjacent to the Subject Property
that provided helpful context for that portion of this neighborhood. See (Appellants’ Exs. 4(a)–
(h)). As revealed by these photos, most of the areas near the property boundaries are wooded
or covered with brush.
III. Surrounding Neighborhood, Development & Uses
23. The Town of Thetford is located in the Upper Valley region of Vermont, north of White
River Junction. It is bisected by Interstate 91, with an eastern boundary along the Connecticut
River. The Town is comprised of six villages: East Thetford, North Thetford, Thetford Hill,
Thetford Center, Rice Mills and Post Mills. The Town’s northwestern border is adjacent to the
West Fairlee Village area of the adjoining Town of Fairlee.
24. West Fairlee Road helps define the immediate neighborhood surrounding the Subject
Property in that it serves as a travel lane for residents and visitors travelling from West Fairlee
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and areas to the immediate west and northwest, Lake Fairlee to the immediate east, and two
well-travelled highways: Vermont Route 113 to the west and Vermont Route 244, which is to
the east and travels around the border of Lake Fairlee. West Fairlee Road serves as a
convenient connector between these two state highways
25. The Property is located in or near the Post Mills Village section of Town, along the
Town’s northern border with the abutting Town of Fairlee. The Subject Property is located in
the Village Residential Zoning District (“VR District”), as noted on the Zoning District map
included as the last page of the Bylaws, a copy of which was admitted at trial as Exhibit G.
26. The Town contains several separate areas that are designated as VR Districts. The VR
District that contains the Subject Property includes all properties within the immediate vicinity
of the Property.
27. The area surrounding the Subject Property is mostly developed with single-family
homes, some of which contain a home-based business, including a financial advisor who
sometimes conducts office visits with clients in his home and a guitar maker who sometimes
receives customers in his home to sell his guitars or give lessons on making guitars.
28. About 320 feet east of the Subject Property, also on West Fairlee Road, an electrician
operates a contractor’s yard for his business. There have been as many as nineteen commercial
trucks and other vehicles that operate out of this property.
29. The westerly shores of Lake Fairlee are about 1,000 feet from the Subject Property. This
lake has several public and private beaches; noises from those beaches can be heard at
properties near the proposed Project.
30. One or more seasonal children’s camps are located along the western shores of Lake
Fairlee, just north of where West Fairlee Road joins Vermont Route 244, near the Lake’s
western shore. Another seasonal children’s camp is located on the opposite side of the Lake.
Activities at these children’s camps, including a public address system used at one or more of
these summer children’s camps, can be heard at properties near the proposed Project.
31. One or more churches are located within the broader neighborhood of the Subject
Property. At least one of those churches has bells in its steeple that are regularly used to
announce the top of the hour (with the bells ringing to denote the number of the hour) and
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once during the half hour. The church bells can be regularly heard at the Subject Property and
the surrounding properties.
32. Post Mills Airport is located off of Route 244, about a quarter of a mile away from the
Subject Property, as the crow flies. This is a private airport that sees most or all of its activity
during the non-winter months. Up to eighty flights per week operate out of this airport, some
of which pass over the Subject Property and neighboring properties. Airplanes can be heard
taking off and flying over the immediate area surrounding the Subject Property.
33. In addition to the noises that are apparent at and near the Subject Property from the
airport, churches, contractor’s yard, and children’s camp, all described above, the area
surrounding the Subject Property experiences the noises customarily heard in rural residential
neighborhoods, such as children playing, regular traffic noises, dogs barking, wild animals
howling, lawn mowers and other power tools operating, and noises from various other human
activities.
34. Many of these existing activities cause noises that may be heard or recorded at nearby
property boundaries at a level that exceeds the applicable noise limits referenced in the Town
of Thetford, Vermont Zoning Bylaw (“Bylaws”). See Bylaws § 6.05(E)(9)(a) (limiting noise to 60
dBA at property boundaries within the VR and Rural Residential Zoning Districts during the
hours of 7:30 a.m. to 7:30 p.m.). Some of those background noises have been recorded at
79 dBA at the nearest property boundary line to the Subject Property.
35. West Fairlee Road experiences regular traffic, both from area residents and from
travelers passing from west to east. Logging trucks also use West Fairlee Road on an average of
one to two trips per day. Nonetheless, the area roadways are relatively safe.
36. While some evidence was presented of individual drivers exceeding the posted speed
limit of 35 miles per hour on West Fairlee Road, there was no accident reported that involved
someone backing out of or turning into any area driveway. In fact, there was only one accident
reported in the last ten years on West Fairlee Road: as Appellant Mr. Satterthwaite credibly
phrased it, it involved non-neighborhood “kids drinking [and] travelling very fast.”
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IV. Impacts of proposed Development on Surrounding Area
37. Many of the neighboring Appellants expressed concerns about possibly hearing the
children playing outside at the daycare facility. In particular, Ms. Estes advised that “the sound
of children can be annoying to me, even if I am [with the children].”
38. Applicant’s expert credibly testified about the estimated noise levels of children during
outside play. His calculations were especially credible because they were based, in part, on
measurements taken at Applicant’s existing daycare center.
39. The credible evidence revealed that the noises generated by children playing outside at
Applicants’ current daycare center registered as high as 71 dBA at 30 feet from the center of
the play group. In order to reduce the level of noises from such a play group to 60 dBA, the
center of the children playing would need to move at least 107 feet farther from the measuring
point.
40. In addition, the level of noise from any source may be reduced when objects are placed
between a noise source and the place where the noise level is being perceived. For this reason,
the building, fencing, trees and other plantings proposed for the Subject Property will further
reduce the level of noises realized at the property boundaries.
41. The estimated noises from children playing are unlikely to ever exceed the levels of
existing background noises at the Subject Property. Due to the nature of noise, this means that
noises from children playing outside at the Subject Property are likely to be frequently drowned
out by the existing noises experienced in this area.
42. Both the existing and proposed lighting for the Subject Property is consistent with the
existing lighting in the surrounding area. None of the existing or proposed lighting will result in
a direct view of a fixture’s light source from any area other than on the Subject Property,
directly underneath the light fixture.
43. The Subject Property is located on a fairly straight and flat stretch of West Fairlee Road.
In either direction, the road gently rises with the terrain, at which point the sight of oncoming
traffic becomes limited. The road is aligned in such a way that the sight distance from the
driveway, measured fifteen feet back from the edge of the roadway and at a height of a driver
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(i.e., about three feet above the driveway surface) is 312 feet when the driver is looking
towards the east and 353 feet when the driver is looking towards the west.
44. The sight distances from the Project driveway on West Fairlee Road in both directions
exceed the minimum stopping sight distances recommended by national highway safety
organizations; therefore, traffic arriving from either direction can see for a sufficient distance to
safely stop for vehicles exiting or turning into the proposed driveway.
45. Several of the neighboring Appellants expressed concern that, if the project was
allowed, it would introduce “large commercial activities” to the area. No Appellant described
the proposed project as a large commercial operation; most or all of Appellants who testified
admitted that area properties already include small commercial and home-based businesses.
Discussion
Applicant seeks to convert a single-family home to a daycare facility in the VR District in
the Town of Thetford. Under the Town’s Bylaws, a daycare facility is a conditional use in the VR
District. See Bylaws tbl. 2.1 (listing “community service” uses as conditional uses in the VR
District); id. § 2.04(B) (defining “community service” uses to include day care facilities). Under
the Bylaws, any development constituting a conditional use requires both conditional use and
site plan approval from the DRB. Id. § 7.03(2), 7.03(2)(b). Appellants challenge Applicant’s
eligibility for conditional use or site plan approval under the Bylaws, and they have raised
twenty-three questions in this appeal, only eighteen of which remain after this Court’s pre-trial
decision in In re Creative Spirit Conditional Use & Site Plan Application (After Remand), No. 99-
7-13 Vtec, slip op. at 4–6 (Vt. Super. Ct. Envtl. Div. Sept. 26, 2014) (Durkin, J.).
Our review of the applicable site plan review and conditional use standards is limited to
those that are preserved for our review by Appellant’s Statement of Questions. V.R.E.C.P. 5(f).
If an appellant does not preserve a legal issue in her statement of questions, it cannot be
considered by this Court. Id.; see also 24 V.S.A. § 4472(d). Since a number of Appellants’
questions challenge the adequacy of the pending application and supporting materials, rather
than the Project’s conformance to the substantive site plan and conditional use standards, we
address the former questions first.
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I. Sufficiency of Application and Supporting Materials (Questions 3–8, 13 and 19)
In Questions 3 through 8, 13, and 19, Appellants essentially ask whether Applicant has
presented sufficient information and supporting materials to meet the minimum thresholds
required for site plan and conditional use review under Sections 6.05 and 6.06 of the Bylaws.
Questions 3, 4, and 5 ask whether Applicant has submitted all materials required for site plan
review under Subsection 6.05(C) of the Bylaws and whether her application can be granted if
she has not. Questions 6 and 7 inquire about the adequacy of Applicant’s traffic estimate and
statement of compliance submitted under Subsections 6.05(C)(1)(i) and (j). Questions 8 and 13
ask the Court to require a visual impact study and a lighting plan under Subsections
6.05(C)(2)(c) and 6.05(E)(8)(a). Finally, Question 19 asks whether this Court should demand a
detailed traffic study under the Bylaws’ conditional use review provisions. See Bylaws
§ 6.06(D)(3). For the reasons stated below, we conclude that the testimony, materials, and
other evidence presented at trial meet these minimum thresholds for a complete application
under the Bylaws.
Appellants generally challenge the sufficiency of Applicant’s materials (Questions 3
through 5) under Subsection 6.05(C) of the Bylaws. Part of the necessity for these questions
comes from the simplicity of Applicant’s initial application and presentation to the DRB, which
were very sparse. However, as is often the case when a project raises concerns, Applicant
employed an engineer and other experts who then revised the application materials after this
Court remanded the pending application back to the DRB, and again prior to the merits hearing
before this Court. Applicant’s trial exhibits included a detailed site plan (Exhibit A), an extensive
application and narrative about the planned project (Exhibit C), and detailed supporting exhibits
(Exhibits B and J). In addition, Applicant’s engineer, Richard F. Hamlin, P.E., provided credible
testimony in response to each of Appellants’ remaining Questions. These revised materials
were more than adequate to satisfy the application requirements under Subsection 6.05.
Appellants, however, implicitly ask this Court to judge the adequacy of Applicant’s
application based on the materials she initially presented to the DRB, under a theory that this
Court may not consider revised applications. We have held, and the Supreme Court has
affirmed, that when a site plan or supporting materials are revised, including after a Project
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application has been appealed to this Court, it may be appropriate for this Court to allow such
revisions to be presented at trial. In re Sisters & Brothers Inv. Grp., LLP, No. 106-5-06 Vtec (Vt.
Envtl. Ct. June 27, 2007) (Durkin, J.), aff’d 2009 VT 58, ¶ 21, 186 Vt. 103. Indeed, the Court may
review revisions to site plan review so long as those revisions are not “truly substantial changes
to the form or type of an application.” Id. ¶ 21. This is particularly so when applicants have
revised their proposals in response to specific concerns from opposing parties. In re Lathrop
Ltd. P’ship, 2015 VT 49, ¶100 (citing In re Chaves A250 Permit Reconsider, 2014 VT 5, ¶ 16, 195
Vt. 467).
As in Sisters & Brothers, the concerned Appellants here argued that because Applicant
had added details to her proposed site plan and presented it to this Court without first
presenting the revised site plan to the DRB, this Court should remand the application, again, to
the DRB for its consideration of the revised site plan. We decline to follow Appellants’
recommendation. We are unaware of any statute or procedural rule that requires a land use
applicant to submit the exact same plans to this Court in the course of an appeal as were
submitted to the appropriate municipal panel below. To point out that the plans are
“different” may be accurate, but avoids the true legal issue: does the site plan or application
presented on appeal call for a materially different project or development proposal. See
Lathrop, 2015 VT 49 at ¶ 100. In the case at bar, we see no material differences between the
Project presented by Applicant’s initial submissions to the DRB and the Exhibits presented at
trial: each version of Applicant’s plan calls for the transformation of a single-family residence to
a daycare center, with no exterior building changes, a new parking area to the west, some
additional building-mounted lights,1 and fencing. For the most part, Applicant’s revisions
merely added detail to her proposal. To the extent her revisions changed the substance of her
application, those substantive revisions were intended to address Appellants’ specific concerns,
and we are particularly willing to consider substantive application revisions that are made in
1
Appellants make note of fourteen additional lights in Applicant’s initial site plan, including ten in the parking
area. Applicant’s original plans may have called for that many additional lighting fixtures, but the final plans
presented at trial called for only four more building-mounted lighting fixtures, all of the down-cast variety and
activated by motion sensors. See Exhibit C at 17–19. This is not a case where a change in degree is a change in
kind, and we are especially disinclined to find that this scaled-back lighting plan is a material change, since the
changes were likely meant to address Appellants’ concerns. See Lathrop, 2015 VT 49, ¶100.
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response to specific objections. See Lathrop, 2015 VT 49, ¶ 100. We therefore conclude that
this Court may consider the revised application and, for the reasons discussed below, we find
that the revised application contains sufficient detail to satisfy all procedural application
requirements in the Bylaws.
Turning to the adequacy of the specific materials Applicant presented at trial (Questions
6–8, 13, and 19), we find all of Applicant’s submitted materials to be sufficient to satisfy the
application completeness requirements under the standards in Sections 6.05 and 6.06 of the
Bylaws.
By their Question 6, Appellants challenge the adequacy of Applicant’s traffic estimates.
Subsection 6.05(C)(1)(i) requires Applicants to submit an “estimate of traffic to be generated by
the Project on a peak and daily basis, and the impact of such traffic on area roads.” This
provision, by our interpretation, requires an estimate of daily peak traffic to be generated and
how that traffic may impact area roads. Applicant’s engineer provided such testimony at trial.2
By their Question 7, Appellants ask whether a site plan applicant must submit “a written
statement . . . demonstrating that the Project is in compliance with all applicable zoning district
standards in accordance with Section 6.05(C)(1)(j).” (Appellants’ Statement of Questions at 2,
filed Aug. 9, 2013) (“SOQ”). We note that the Bylaw does not require that the statement be
written. We can find no Bylaw provision that would allow us to read such an added provision in
this Bylaw, and therefore choose not to do so. Applicant and her engineer did testify that this
Project conformed to all applicable Bylaw provisions. Applicant’s representations, and those of
her engineer, therefore satisfy the procedural requirements of Section 6.05(C)(1)(j).
Appellants’ Question 8 asks whether a “visual impact analysis” should be required under
Section 6.05(C)(2)(c) of the Bylaws. Subsection 6.05(C)(2)(c) provides the DRB, or in the
instance of an appeal, this Court, with the discretion to require a visual impact analysis. The
Court need not demand such an analysis, since Applicant and her engineer voluntarily provided
credible testimony and exhibits concerning the visual and other impacts that may be caused by
2
Appellants’ Question 6 suggests that Applicant must not only introduce a traffic estimate, but a “scientifically
accurate estimate of traffic.” This requirement is not actually in the Bylaws, however, and, in any event, we are
convinced that Applicant’s engineer provided scientifically accurate estimates of the Project’s estimated traffic and
its impact; the impacts of the estimated Project traffic are discussed in more detail below in Part II.
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the Project. We therefore decline to require Applicant to present an additional visual impact
analysis.
By their Question 13, Appellants suggest that an additional “lighting plan prepared by a
qualified engineer or lighting expert is required for this Project pursuant to Section 6.05(E)(8)(a)
in that the Project has the potential for significant off-site impact due to the number, location,
and intensity of [the] proposed lighting fixtures.” SOQ at 3. Subsection 6.05(E)(8)(a) allows the
DRB (or this Court) to require “a lighting plan prepared by a qualified engineer or lighting
expert.” Bylaws § 6.05(E)(8)(a). Initially, Applicant had proposed to install as many as fourteen
new lights on the property, including up to ten lights that would illuminate the parking area.
Applicant has since scaled back her lighting plan, presumably in response to concerns expressed
by area neighbors. The site plan presented at trial included no lighting for the parking area and
only four additional light fixtures added to exterior doors on the existing building. All new
fixtures will be downcast and shielded in such a way as to not expose the light source to
adjoining properties. These added lights will be turned off during non-business hours (i.e., they
will be off from 7:30 p.m. to 6:30 a.m.) and will only be activated during business hours by
motion sensors. For the purpose of addressing the procedural issues raised by Appellants’
Question 13,3 we do not consider these minimal lighting impacts to be significant enough to
require a lighting plan from a qualified engineer or lighting expert under Subsection
6.05(E)(8)(a).
Appellants’ Question 19 also poses what we regard as a completeness-of-the-
application question and not a sufficiency-of-the-evidence question. Question 19 suggests that
Applicant’s presentation about the Project’s traffic impact is lacking and asks whether, because
of that deficiency, “a traffic impact study prepared by a traffic engineer should be presented by
[Applicant] as part of the conditional review process pursuant to 6.06(D)(3) . . . .” (SOQ at 3–4).
Section 6.06(D)(3) allows a decision-maker in conditional use review to require a traffic
impact study. Applicant and her engineer provided credible testimony and other evidence on
the negligible impacts that will flow from the traffic added to this area by this Project. The
3
We address the substantive aspects of the lighting impacts in our analysis below in Part IV.
15
Project consists of renovation to an existing residential building so that it may host a relatively
small daycare facility that will have no independent vehicles in use. The credible testimony also
revealed that some of the families that will enroll their children in this daycare may already
travel on West Fairlee Road to bring their children to area schools or other daycare facilities,
including Applicant’s existing daycare facility in West Fairlee Village. Given the credible and
detailed traffic testimony at trial and the minimal traffic impacts this Project will likely have,4
another traffic impact study would not be necessary or helpful to this review.
We see no deficiencies in the site plans and supporting materials submitted at trial and
therefore conclude, in response to Appellants’ Questions 3 through 8, 13, and 19, that
Applicant’s plans and trial submissions satisfy the application requirements for site plan and
conditional use review contained in Sections 6.05 and 6.06 of the Bylaws.
II. Circulation and Traffic Concerns (Appellants’ Questions 9, 10, 18, and 20)
Appellants pose several questions concerning circulation, traffic, and safety. Questions
9 and 10 address Applicant’s compliance with specific parking and ingress/egress requirements
in the Bylaws’ site plan review standards. See Bylaws § 6.05(E). Question 18 addresses traffic
impact requirements in the Bylaws’ conditional use review standards. See Bylaws § 6.06(D).
Question 20 inquires about the safety of the Project’s intersection and stopping sight distances,
without citation to the Bylaws.
By their Question 9, Appellants ask whether the proposed Project will “provide[] the
maximum safety of vehicular circulation between the site and the street network,” as required
by Bylaws § 6.05(E)(1). SOQ at 2. This Bylaw requires that vehicle access to roads and
intersections involved with a development “meet all applicable town and state design
standards.” It also provides that the “public highway accessed from the parking lot must have
sufficient excess capacity both at access and egress points and at affected intersections to
accommodate the added traffic without undue delay,” and empowers the permit reviewer to
“limit the number and size of curb cuts to a single access” or “require the reduction,
consolidation or elimination of curb cuts.” Bylaws § 6.05(E)(1). This question therefore
4
We address the substantive aspects of the Project’s potential traffic impacts below in Part II.
16
contains three sub-components (applicable design standards, capacity of the roadways, and
curb cuts), which the Court will address in order.
With regard to the Project’s compliance with applicable state and town standards, the
Town has enacted Road and Bridge Standards, a copy of which was admitted at trial as
Appellants’ Exhibit 7. These Standards contain a provision that imposes a duty on the Town to
“have a process in place, formal or informal, to review all drive accesses . . . where they
intersect Town roads . . . .” Id. Trial testimony revealed that the Town does have such a
process in place, and the duty to review “drive accesses . . . where they intersect Town roads” is
bestowed upon the Public Works Director. Additionally, this provision of the Road and Bridge
Standards references the VTrans B-71 Standards for Residential and Commercial Drives.
(Appellants’ Ex. 7 at 2). A copy of the VTrans B-71 Standards was admitted at trial as
Appellants’ Exhibit 5.
Assuming that these provisions of the Town’s Road and Bridge Standards require an
applicant to conform to the Town’s review process for “drive access” and the VTrans B-71
Standards,5 we find that the Project conforms to those standards. First, the Town of Thetford
Director of Public Works reviewed and approved the proposed driveway improvements, which
is all that is required under the Town’s review process. The Public Works Director provided
credible testimony at trial concerning the Project’s proposed drive access and we adopt his
findings and conclusions. Second, the Court finds, based on the credible testimony of both
Applicant’s engineer and the Town Public Works Director, that the proposed driveway
conforms to all width, horizontal, vertical, and geometric characteristics recommended by the
B-71 Standards.
5
This assumption is doubtful. Much trial time was devoted to an analysis of town and state highway standards,
including the Town Road and Bridge Standards. But, we note that the plain language of those Standards applies
only “to the construction, repair, and maintenance of all town roads and bridges.” This Project does not involve
any creation or revisions to town roads or bridges, and we therefore question why those Standards are applicable
to this Project. Furthermore, the provision requiring drive access review and conformance with the VTrans B-71
Standard appears, on its face, only to impose a duty on the Town to develop such a review process. More still, the
B-71 Standards appear on their face to be merely aspirational, and, in any event, arguably applicable only to new
(not merely modified) driveways and their intersection with highways under the jurisdiction of VTrans. We
nonetheless review this Project for conformance with these Standards, where applicable, since we ultimately
conclude that the Project conforms to all mandatory standards.
17
The B-71 Standards also make recommendations for minimum stopping and
intersection sight distances. Stopping and intersection sight distances are two different
measurements relied on by traffic officials and experts. Stopping sight distance (“SSD”) is a
recommended minimum distance for a driver traveling on a roadway to be able to safely stop
without hitting an object in a in the roadway, when travelling a certain speed. Given that the
posted speed limit on West Fairlee Road is 35 miles per hour, the minimum recommended SSD
for vehicles on West Fairlee Road is 250 feet under the B-71 Standards. (Appellants’ Ex. 5 at 1).
The sight distance on West Fairlee Road for vehicles traveling on the roadway to the proposed
driveway is 312 feet from the east and 353 feet from the west. We therefore conclude that
there is more than sufficient SSD for approaching vehicles.
The intersection sight distance (“ISD”) measurements are a bit more flexible. The ISD is
the distance a vehicle at an intersection needs to be able to see in either direction to be able to
comfortably pull out of the intersection and into the roadway, given a certain speed of
oncoming traffic. ISD guidelines recommend farther sight distances, by the necessity of what
they are measuring. But the B-71 Standards make clear that the ISD recommendations are not
as absolute as the SSD standards, since the B-71 Standards note that “[i]ntersection sight
distances, equal to or greater than those shown [in the Sight Distance Chart below Note 10]
should be provided in both directions for all drives entering on public [i.e., state] highways,
unless otherwise approved by the Agency of Transportation.” (Appellants’ Ex. 5 at 1) (emphasis
added). Furthermore, the B-71 ISD guidelines appear, by their terms, only to apply to
commercial and residential drive intersections that are under the jurisdiction of VTrans (i.e.,
state and not town highways). Regardless, we have reviewed this proposed project for
conformance with the applicable B-71 Standards and conclude that the project meets or
exceeds those standards.
The sight distances from the proposed driveway along West Fairlee Road are 312 feet to
the east and 353 feet to the west. The ISD for a speed limit of 35 miles per hour is 390 feet.
Nonetheless, due to the low traffic volumes of this rural town highway, the very modest vehicle
trips that this Project will add to West Fairlee Road, and the non-mandatory nature of the B-71
Standards, especially for a non-state highway, we conclude that the sight distances (both SSD
18
and ISD) for this proposed Project are sufficient. We note that the B-71 Standards require that
advance warning signs be placed near intersections if sight distances at the intersection are
below minimum stopping sight distances. Id. at 1, Notes below Sight Distance Chart. Since the
recommended SSD is satisfied, we do not impose a condition requiring advance warning signs.
For all these reasons, we conclude that the vehicular access and intersections with roads
for this Project meet all applicable town and state design standards. In so concluding, we also
answer Applicant’s Question 20, which asks “[w]hether the sight distances associated with the
Project driveway are sufficient to provide safe stopping distances for oncoming vehicles and
vehicles entering and exiting the Project site.” SOQ at 4. Because of the manner in which the
Question is worded, it appears that Appellants have conflated the SSD and ISD
recommendations. No matter, since our conclusions for each recommended sight distance
measurement, for the reasons discussed above, is identical: the Project will provide sufficient
stopping and intersection sight distances, based on the recommended standards established by
VTrans. We therefore answer Appellants’ Question 20 in the affirmative.
With regard to the second major requirement in Section 6.05(E)(1) of the Bylaw—that
access to public roads from the development not cause “undue delay”—several characteristics
of this development impact our analysis. First, there are no internal roadways in this proposed
development such as one might find in a subdivision or large development. This is a small
development which has only one driveway and one parking area; these are the only Project
components that may impact circulation and traffic. There will be no call for visitors to back
into West Fairlee Road in order to exit the Property, since the parking area provides ample
room for turning. There was no suggestion at trial that the daycare traffic into or out of the site
will cause any further congestion or traffic disruptions. In this regard, Applicant has designed
her Project for safe circulation of vehicles entering and departing from her Property.
Furthermore, there has been no credible suggestion that the volume of new traffic that this
Project could generate is of such a magnitude as to cause “undue delay” at area intersections or
on area roadways. In fact, no intersections will be materially impacted by this Project. We
therefore conclude that the project will not cause undue delay at area intersections.
19
Finally, with regard to the curb-cut provisions in Section 6.05(E)(1), Applicant has
voluntarily eliminated the existing “curb cut” (i.e., access point) from the Property to Field Point
Road. Thus, the only curb cut that remains at the Property is the driveway leading to West
Fairlee Road. To increase the ease by which visitors will turn into and out of the Project
driveway, Applicant has agreed to widen the paved portion of the driveway throat onto West
Fairlee Road. This is sufficient to ensure safe access to public roads.
As a consequence of these Project characteristics, we conclude that the Project as
proposed maintains and improves the safety of vehicular circulation between the site and the
street network. In fact, Applicant’s efforts maximize the vehicular safety and circulation. We
therefore conclude that Applicant satisfies the requirements of Section 6.05(E)(1) of the Bylaws,
and therefore resolve Question 9 in Applicant’s favor.
Appellants’ Question 10 asks “[w]hether the Project as proposed provides sufficient and
adequate internal circulation, parking, and loading facilities pursuant to Section 6.05(E)(2) and
specifically meets the sub-criteria contained in Section 6.05(E)(2)(a)–(e).” SOQ at 2. Section
6.05(E)(2) of the Bylaws requires (a) parking to be located on the rear or interior side of
buildings; (b) connection to (or provision for future connection to) parking facilities of adjacent
properties; (c) adequate ADA-compliant parking; (d) clearances and turning radii sufficient to
accommodate service vehicles; (e) loading areas sufficient to meet anticipated demand.
The proposed parking area is located on the side of the lot, not fronting on a public
road, and therefore satisfies Section 6.05(E)(2)(a). Given that no adjacent properties have
parking areas, we conclude that the Bylaw requirement that there be provisions for future
connection to adjacent parking areas does not apply here. The proposed project provides for
an ADA-compliant space and has adequate turning radii, thereby satisfying 6.05(E)(2)(c) and (d).
Deliveries to the Project will be minimal and can be adequately accommodated by the driveway
and parking area. For all these reasons, we conclude that the Project conforms with Bylaw
Section 6.05 and in particular Subsections (E)(2)(a)–(e).
Appellants’ Question 18 asks “[w]hether the project as proposed will result in the
creation of unsafe conditions for pedestrians, bicyclists, or motorists or unacceptable levels of
service for roads adjacent to and in the vicinity of the Project pursuant to Section 6.06(D)(3).”
20
SOQ at 3. That Bylaw provision directs that we grant conditional use approval “only upon a
finding that the proposed development will not result in an undue adverse effect on” five
general standards. Bylaw § 6.06(D). General standard (3) is titled “Traffic on roads and
highways in the vicinity” and prohibits approval of:
[A] project that would result in the creation of unsafe conditions for pedestrians,
bicyclists, or motorists, or unacceptable levels of service for roads, highways and
intersections, unless such conditions or levels of service (LOS) can be mitigated
by the applicant through physical improvements to the road network and/or
traffic management strategies, or improvements in public transportation.
The traffic that this Project is expected to add to West Fairlee Road and nearby
intersections is slight, both in absolute numbers and as a percentage of existing traffic. The
Project will likely only add traffic to this area in the early morning, when families deliver their
children to the daycare facility, and again in the late afternoon, when families return to pick up
their children. In both instances, it is unlikely there will be more than thirty vehicle trips (round
trips, so families can deliver their children, then return to work or home) added, together with
the several vehicle trips added by staff. Unlike many other Projects that we are called upon to
review, this Project will generate minimal intervening vehicle trips, since the children will
remain at the daycare facility throughout the day. In fact, the only intervening traffic will be
the occasional vendor delivering supplies to the facility, as well as the several employees who
will exchange shifts each the day.
We also note that many of the families that are likely to enroll their children in
Applicant’s proposed facility are likely already travelling on West Fairlee Road, either to deliver
children to area schools or to other existing daycare facilities, including the one currently
operated by Appellant. Thus, the net new vehicle trips created by the proposed facility will be
even less than the thirty round trips mentioned above. This low level of added traffic is highly
unlikely to degrade the level of service of surrounding roads. Furthermore, since the Project
entails minimal added traffic and, as discussed above, provides for safe access to West Fairlee
Road, the Court concludes that it will not pose a danger to pedestrians, cyclists, or motorists.
Based upon the above, we conclude that the proposed Project will not have an
unacceptable impact on the traffic, roads and intersections in the vicinity or pose a danger to
21
area pedestrians, cyclists, and motorists. We therefore conclude that Applicant’s proposed
Project conforms to Bylaws § 6.06(D)(3).
III. Intensity of Use and Screening (Appellants’ Question 11)
By their Question 11, Appellants ask “[w]hether the land use proposed by the project
results in a more intensive land use than currently exists on abutting properties and, if the
answer is in the affirmative, whether the Project has provided sufficient screening to protect
adverse impacts on adjacent properties pursuant to the requirements contained in Section
6.05(E)(4).” SOQ at 2.
Section 6.05(E)(4) of the Bylaws provides, “Screening shall be required where a more
intensive land use is proposed to abut a less intensive use.” Where required, “[s]creening shall
provide a year-round visual screen, particularly from roads. A diversity of materials to create a
naturalized screen is encouraged so long as sufficient screening is obtained.” Id.
Applicant has proposed a small daycare facility that serves the purposes recommended
in the purpose provisions concerning the VR District in both the Bylaws and the Town Plan. The
Town VR District’s purpose is:
[T]o comprise relatively dense areas of settlement with the following
characteristics:
• Networks of streets and utilities that make efficient use of land;
• Neighborhoods with resources such as schools, shops and libraries within
walking distance of residences;
• Relatively dense housing, noting that villages’ lots “grandfathered”
before zoning were often smaller than the current minimum of 20,000
square feet;
• Mixed-use development, compatible in scale and lot coverage with
existing development, supporting commercial and public services for
residents.
Bylaws § 2.01(A). The Town of Thetford Town Plan, received in evidence as Appellants’ Exhibit
13, recites the Legislative directive to ensure “the availability of safe and affordable child care”
in Vermont communities and notes that it strives to “support[] the private development of
additional facilities to meet the child care needs of its residents . . . .”
22
In light of the scale and nature of this Project, including that it principally involves
rehabilitation of an already existing building, the Court finds it difficult to label this
development as “intensive.” We also note that there are other uses in the area that are as or
much more “intensive,” including home-based businesses, contractor’s yards, children’s camps
on the nearby Lake Fairlee, and the Post Mills Airport. Nevertheless, Applicant concedes that
her proposed project is relatively more intensive than the uses at the abutting properties.
Applicant has agreed to take multiple steps to screen the parking area, play group area,
and the additional lighting for the benefit of all nearby properties. The stockade fence that
Applicant plans in front will allow the Property to maintain its look as a single-family residence;
Appellant will not make any exterior changes to the building, will add landscaping and planting
on either side of the Property, and will encircle the rear portion of the play group area with
metal and fabric fencing. All these measures will increase the screening of this Project from
adjoining homes. The resulting development plans will allow a use to be developed in this
neighborhood that is encouraged by the purpose provisions for both this zoning district and the
applicable provisions of the Town Plan. Given that Applicant has proposed ample screening
measures, we conclude that Applicant conforms with Bylaws Section 6.05(E)(4).
IV. Lighting Concerns (Appellants’ Questions 12 and 14)
By both their Questions 12 and 14, Appellants challenge whether the Project’s proposed
lighting conforms to the applicable site plan review provisions for lighting. See Bylaws
§ 6.05(E)(8). These provisions, in pertinent part, require that lighting be in recessed, shielded,
or cutoff fixtures so that light is emitted no fewer than fifteen degrees below horizontal; that
parking lot lighting conform to the Outdoor Lighting Manual for Vermont Municipalities unless
application of this manual would be “inappropriate or unduly burdensome”; and that outdoor
fixtures only be illuminated during hours of operation. Bylaws § 6.05(E)(8)(a), (d), (h). The
Bylaw also includes aspirational language regarding motion sensors, timers, and dimmers to
reduce energy consumption. Id. § 6.05(E)(8)(e).
As noted above, it appears that Appellants’ fears are based on a lighting plan that
Applicant no longer proposes. Applicant presented at trial a lighting plan that is now very
limited, and that is the only lighting plan that this Court will consider or approve at this time.
23
Applicant’s lighting plan consists of minimal additions: four building-mounted lights, all
downcast, which will be turned off during non-business hours and will only be turned on during
business hours when activated by motion sensors. Presumably in response to some neighbors’
concerns, Applicant has eliminated her planned lighting for the parking area. The lights that
currently exist on the building are similar to the lighting used on area homes, and will be
shielded as required under Subsection (d). Because of these minimal lighting impacts, we
conclude it would be unduly burdensome to require the application to conform to the Outdoor
Lighting Manual for Vermont Municipalities. For all these reasons, we conclude that Applicant’s
lighting plans conform to Bylaws Section 6.05(E)(8).
V. Conformance with Applicable Noise Standards (Appellants’ Question 15)
By their Question 15, Appellants ask “[w]hether the project as proposed meets the noise
standards contained in Section 6.05(E)(9).” SOQ at 3. This legal issue was one of the more
hotly contested of the trial, whereby there was much discussion of the manner in which noise
in measured, the level of background noises, the estimated noise level that will be created once
the proposed daycare center is fully operational, and what impact Applicant’s proposed
screening will have on the Project noises, when measured from off site.
Section 6.05(E)(9) establishes a fairly straightforward limitation on the noises that a new
Project may emit. It directs that in the VR District “noise shall not exceed 60 dBA at or beyond
the boundaries of the property from which it originates from 7:30 AM to 7:30 PM or 50 dBA
from 7:30 PM to 7:30 AM.” Bylaws § 6.05(E)(9)(a).
Applicant and her engineer provided credible testimony, essentially uncontradicted,
that noises already exist in this area that exceed these maximums, sometimes in a factor of
twice or more these maximums.6 However, even in light of this uncontested reality, we cannot
6
Applicant’s engineer offered credible and unrefuted testimony that already existing noises in the area often
exceed 70 dBA and have been recorded on a regular recurring basis as high as 79 dBA. We understand that,
because dBA is a logarithmic unit, noises that are measured at 10 dBA louder than the original noise are twice as
loud as the original noise. See In re Lathrop Ltd. P’ship, Nos. 122-7-04 Vtec, 210-9-08 Vtec, and 136-8-10 Vtec, slip
op. at 34 (Vt. Super. Ct. Envtl. Div. Oct. 18, 2013) (Durkin, J.), aff’d in part and rev’d in part, 2015 VT 49. Some of
the area uses that often exceed the Bylaw noise limitations are airplanes from the nearby airport, the loudspeakers
and other activities and the children’s camps on Lake Fairlee, neighborhood dogs, wildlife, construction yards and
vehicles, and buses and trucks that use West Fairlee Road.
24
avoid our responsibility to determine whether the proposed Project conforms to all applicable
Bylaw provisions. We know of no Bylaw provision that allows us to ignore the noises that may
be created by this Project simply because louder noises already exist in the neighborhood, and
we cannot create such a provision out of thin air. Thus, we focus on determining what level of
noise will be caused at or beyond the Property boundaries once the proposed daycare center is
fully operational.
Applicant’s engineer provided credible testimony concerning the estimated noise levels
likely to be emitted at the proposed daycare. His noise-related testimony was especially
credible for several reasons, including his experience and expertise in measuring and evaluating
noise levels and the fact that his estimated noise levels were based, in part, on actual readings
he derived from visiting Applicant’s current daycare center while it was in full operation and
while children were playing in the outside playgroup yard. Appellant’s expert concluded that
noise at the proposed daycare center will be the loudest when the children are outside in the
playgroup area, and that those noises, at their loudest, will measure 71 dBA when measured
thirty feet from the center of the play group.7 Applicant’s expert further credibly explained
that, at any boundary beyond 107 feet from the center of the playgroup, the noises are unlikely
to exceed 60 dBA. This estimate does not take into account intervening barriers (e.g., stockade
and fabric-covered fences, landscaping, building, and trees).
These credible facts still leave us uncertain as to what the noise levels will actually be
once this day care center is in full operation. This uncertainty is not unusual in land use
litigation, since the subject of land use litigation is often a prediction of what is likely to occur in
the future, not what has happen in the past. Luckily, we are authorized to address such
uncertainties by imposing conditions on our approval, as allowed under the conditional use
provisions of the Bylaws.
By establishing boundaries for a designated play area that are at least 107 feet from the
nearest property boundary line, Applicant could ensure beyond a doubt that the noise levels
7
We adopt this estimate as our determination of the estimated loudest noises to be caused by the proposed
Project. In fact, little credible evidence was offered by Appellants’ expert that specifically contradicted this
determination. To the extent that Appellants offered conflicting suggestions of the estimated noise levels, we
found it not credible and reject it.
25
realized at the boundary lines will not exceed 60 dBA. Though Applicant’s proposed rear
fenced-in yard area is large enough to accommodate this restriction, we are skeptical that this
much distance is even needed, given the unaccounted-for acoustic screening from structures
and plantings between the playgroup area and nearest boundary lines, which will likely bring
the noise level below 60 dBA at 107 feet. Therefore, we will impose the following condition on
our approval of Applicant’s operation: Applicant shall constrain the play group area in the rear
yard to whatever extent is necessary to limit the noise levels at or beyond her Property
boundaries to no more than 60 dBA from the hours of 7:30 a.m. to 7:30 p.m. and no more than
50 dBA from the hours of 7:30 p.m. to 7:30 a.m. To the extent that the operation of this facility
causes louder noises, Applicant and her successors and assigns must restrict the operational
limits of the play group area to at least 107 feet from the property lines, or be at risk of
violating the terms of this permit condition. By this condition, we also direct that no other
noises caused by the operation of the proposed facility shall exceed these restrictions as well.
We note that Appellants offered concerns at trial about the infrequent noises that may
occur at or just outside of the Property, such as noises from passing vehicles and car doors
being opened, closed, and locked. We received no credible evidence of the level of noise these
infrequent activities will cause and therefore cannot conclude that such activities will cause
noises in excess of 50 or 60 dBA to be recorded at or beyond the property lines. In this
instance, we note that the immediate area surrounding the Property does not exist in isolation;
that it is part of a broader community that has benefits and activities that cause similar noises
to be realized at the neighbors’ respective properties.
VI. Undue Adverse Effect on Character of the Area (Appellants’ Questions 16 and 17)
We now address the last set of challenges to Applicant’s proposed Project. Appellants’
Questions 16 and 17, both by specific and implied references, rely on the directives contained
in the conditional use general standards announced in the Bylaws. Section 6.06(D)(2) provides
that conditional use approval may only be granted if the proposed development will not have
an undue adverse effect on “[t]he character of the area affected as defined by the purpose or
purposes of the zoning district within which the project is located,” taking into account
26
[T]he location, scale, size, mass, materials, type, density, and intensity of use
associated with the proposed development in relation to the character of the
area likely to be affected, as defined by the purpose or purposes of the zoning
district within which the project is located, and specifically stated policies and
standards of the Thetford Town Plan.
Before we begin our analysis, we note two important points. First, Appellants argued at
trial that the relevant “area” to be considered under Subsection 6.06(D)(2) only includes the
few residences immediately surrounding the Subject Property. We reject this claim.
Development opponents cannot, in the course of litigation, redefine affected “areas” to include
only the uses they favor, so as to exacerbate the perceived impact of the proposed
development. Rather, they must consider districts as they are laid out in duly enacted town
bylaws and plans. We therefore consider the affected neighborhood as the area encompassed
by the particular VR District in which the Subject Property lies, and reject Appellants’ assertion
that the “neighborhood” should be regarded as little more than the several homes that
surround the Subject Property. Furthermore, even if we were to define the affected area
narrowly, the applicable Bylaw provision would still require us to analyze what impact the
proposed Project may have on the character of the area “as defined by the purpose or purposes
of the zoning district within which the Project is located, and specifically stated policies and
standards of the Thetford Town Plan.” Id. We interpret this provision to direct that we
consider the impact not on what currently exists in the VR District, but rather what the
community has articulated as its current and future goals for the VR District.
The Town’s vision for the VR District includes a variety of uses, some of which currently
exist in the District, some which do not currently exist, but which the purpose provisions
encourage. See Bylaws § 2.01(A) (describing the desired uses as including “[n]eighborhoods
with resources such as schools, shops and libraries within walking distance of residences”).
The applicable Town Plan provisions declare that the Town “supports the private development
of additional facilities to meet the child care needs of its residents . . . .”
With these provisions in mind, we conclude that the proposed Project will not cause an
adverse effect (undue or otherwise) upon the character of the area, as that character is defined
by the applicable Bylaw provisions for the VR District and the Town Plan’s specifically stated
27
policies and standards. In fact, this proposed Project will likely complement the stated
purposes and standards for this District. For all these reasons, we conclude that the Project as
proposed conforms to Bylaw § 6.06(D)(2).
Conclusion
For all the reasons stated above, we conclude that Applicant’s proposed Project is
entitled to positive findings of fact and conclusions of law on all issues raised in this appeal.
Because of these findings and conclusions, we conclude that Applicant’s proposed children’s
daycare facility is entitled to site plan and conditional use approvals, subject to the conditions
below and subject to all findings, conclusions, and conditions imposed by the DRB that were not
challenged in this appeal.
We condition our approvals upon the following:
1. Applicant shall constrain the play group area in the rear yard to whatever extent is
necessary to limit the noise levels at or beyond her Property boundaries to no more
than 60 dBA from the hours of 7:30 a.m. to 7:30 p.m. and no more than 50 dBA from
the hours of 7:30 p.m. to 7:30 a.m. To the extent that obstructions between the
play group area and the Property boundaries, such as fencing, the building,
landscaping, and plantings, diminish the noise levels at or beyond the boundaries,
Applicant may allow the play group area to be maintained closer to such boundaries,
but always within the fenced-in area, up until the distance where noise exceeds
these maximum levels.
2. All conditions imposed by the DRB in their Decisions dated November 27, 2012 and
July 2, 2013 that were not appealed or were not contradicted by the rulings of this
Court shall remain in full force and effect.
These proceedings are remanded to the Town of Thetford Zoning Administrator, solely
to complete the ministerial act of issuing a zoning permit that conforms to this Decision and the
unappealed provisions of the prior DRB decisions.
This completes the current proceedings before this Court. A Judgment Order
accompanies this Merits Decision.
28
Electronically signed on November 17, 2015 at Burlington, Vermont, pursuant to V.R.E.F. 7(d).
________________________________
Thomas S. Durkin, Judge
Environmental Division
29