Wednesday December 23, 2015
On the evening of December 15, the development review board unanimously decided that the proposed BJ’s Wholesale Club contained a use not permitted in the Mixed Industrial Commercial District, which would prevent its plan to locate at 65 Shunpike Road.
Saxon Partners, LLC first presented a partial sketch plan on November 3 (#SD-15-28) to construct an 88,548 sq. ft. retail store, which will include a 3,348 sq. ft. tire center and a 3,360 sq. ft. receiving area south of PJ’s Auto Village and Imported Car Center. Since then, Saxon Partners has amended the plan to increase the number of boundary line adjustments with adjourning properties (initially two, now six). Saxon’s Director of Retail Development Gene Beaudoin and team have provided photos of the projected interior and overviews of traffic, landscaping, and mass and elevations, but not much could be discussed the night of the 15th due to a discrepancy in use.
To help the board evaluate where BJ’s Wholesale Club’ use(s) stand, planning and zoning staff provided the purpose statement of section 6.01 MIXED INDUSTRIAL-COMMERCIAL DISTRICT IC of the Land Development Regulations (LDRs), a list of permitted uses in the Table of Uses chart, and definitions of different uses identified in the LDRs.
6.01 MIXED INDUSTRIAL-COMMERCIAL DISTRICT IC purpose statement reads: “The Mixed Industrial-Commercial District is formed to encourage general industrial and commercial activity in areas of the city served by major arterial roadways and with ready access to Burlington International Airport. The Mixed Industrial- Commercial district encourages development of a wide range of commercial, industrial and office uses that will generate employment and trade in keeping with the City’s economic development policies. These uses are encouraged in locations that are compatible with industrial activity and its associated land use impacts. Major commercial uses, such as supermarkets and shopping centers shall not be permitted. Any uses not expressly permitted are prohibited, except those that are allowed as conditional uses.”
The board honed in on the last two sentences of the purpose statement, which prompted the following questions: Is BJ’s considered a major commercial use? A supermarket? A shopping center?
“A major commercial use is not a use in the Use Table. It’s a policy statement,” Beaudoin’s legal counsel, Robert Rushford of Gravel & Shea PC said. “It’s difficult to turn that general policy statement into some form of a strict use restriction for a project.”
In determining whether or not it would be considered a supermarket, Tim Barritt, chair of the Development Review Board, asked Beaudoin if food would account for 75 percent of BJ’s sales. Beaudoin said it would not.
Food accounts for less than 50 percent (revenue and square footage) at Costco in Colchester--a comparable wholesale club--explained Beaudoin, who also shared his background as a former grocery store chain.
Continuing its evaluation, the board looked at a variety of definitions, including “retail sales,” “retail food establishment,” “auto & motorcycle service and repair,” and “supermarket or grocery store.” The latter, “supermarket or grocery store,” simply states: “See retail food establishment.”
Staff believed that BJ’s represented all of the aforementioned uses. “Retail sales” and “auto & motorcycle service and repair” are uses that are permitted under the Table of Uses for the Mixed IC District. However, retail food establishment is prohibited if it’s considered a principal use.
On the other hand, a “retail food establishment” is permissible if it’s an accessory use under “retail sales.” This would mean it would be entirely within the principal structure (retail sales), and it couldn’t have a dedicated exterior entrance of its own.
Rushford argued that would be the case for BJ’s. There’s no dedicated entrance, and it would live entirely under the same roof.
Staff countered that a retail food establishment in this instance would be a principal use, due to the sheer volume of the building.
“[I]t appears clear that a full-sized grocery operation located within a much larger building is not an accessory use,” staff wrote in a memo to the board. “In this particular case, the proposed main building is 88,548 square feet in size, and therefore any one of the uses within a multi-use establishment could be considered to be of similar size and scale to counterparts around the city and region.”
“What’s really going on here is that it’s a wholesale club, and that’s not a specifically stated use in the use table,” Rushford said. There is a definition for “warehouse establishment,” in the LDRs, but BJ’s did not fit the definition.
Without further discussion, the board voted to enter deliberative session. It didn’t take long for members to return with a decision.
“We don’t feel that this use, in this location, is allowable, and since we have to obey the LDRs, we don’t have any other choice,” Barritt said. “Being sketch plan, this is our interpretation. You are free to apply with a preliminary plan, but if you do, and it looks like this, with this same use, I feel that it’s going to be rejected.
The applicant plans to return for a continued sketch plan on January 19, 2016. Other major issues that the board will review for the project include access/circulation/traffic, lot layout/PUD status/relationship to buildings in the vicinity, related necessary applications, lot survey, stormwater, and fire department comments.
SOURCE: Miranda Jonswold, Correspondent