Numero-phobia in Ferrisburgh
By Martin Harris

Some things were different back in 1970, the year the Act 250 rules were legislated, and some not. For example, the retail milk price was then 66 cents per gallon, per Bureau of Labor Statistics data, which, adjusted for inflation, equates to about $3.50 today (so take that, all you contemporary milk-price-complainers) but, in contrast, the focus in land use regulation which used to be more mathematically-based, with published measurable quantitative standards for development proposals to meet, isn’t so much any more. Consider, for example, the first three of the 10 Criteria of Act 250: #1, which measures air and water pollution, #2 which measures potable water supply sufficiency, and #3 which measures the proposal’s burden on existing water supply. Down the list is #8, the one which was written to control such non-quantifiable things as "undue adverse effect on esthetics" and "irreplaceable natural resources". Those who have followed Act 250 in operation over the decades will recall that at first the quantifiable criteria were far more predominant, and only more recently have the subjective ones become more important.

Those of us in the planning discipline who were enthusiastic back then about quantitative, measurable, standards as the transparent, predictable criteria basis for development approval by local zoning boards turned out to be in a distinct minority, which is reflected in the history of performance-standards bylaws drawing a lot of hostility and almost zero acceptance from planning and zoning boards across the country. Instead, the P&Z folks chose to go in just about the opposite direction, raising "conditional use" (with its option for invented-on-the-spot conditions) from an infrequently-applied approach to special-situation permitting to one that has grown markedly in scope in most city and town plans just about everywhere. It’s not surprising, therefore, that the Ferrisburgh P&Z folks have used their conditional approval powers to set some decidedly non-measurement-based requirements for the present Champlain Oil food and fuel proposal on Route 7. Two parts of the proposal have been rejected: one is diesel fuel pumps and the other is drive-through fast-food service. Both rejections are predicated on a stated board belief that such elements would "increase traffic in the area to an unsafe level". No numbers are offered to support this belief, even though the applicable figures are readily available, or reasonably estimable.

For example, the traffic-engineering fraternity has developed some guidelines for hourly traffic volumes on various highway configurations, as shown, fairly typically, in the New Jersey standards (on the State Transportation website under Road User Cost Computations) which state that a typical modern two-lane highway has a vehicle capacity of 1400 privately-owned vehicles (POV’s) per hour in each lane, which works out to, when multiplied by 24 hours, a fairly substantial 67,200 over a full day. That number is described by the NJ AoT as the "normal"  and "ideal" capacity of such a highway, by which measure VT’s two-lane Route 7 at about 15000/day would be, shall we say, under-utilized. For both lanes, 1400 times 2, then 2800 times 10  daylight hours yields a more old-fashioned once-standard number in the general 20-30K range. VT AoT data on Route 7 traffic in recent years have shown volumes in the 15-to-25K range at various points along its corridor, the higher counts in the urban areas like Rutland and the lower ones in the more-open areas like Ferrisburgh. I’d guess that the Ferrisburgh zoners could have obtained and used the relevant up-to-date Route 7 numbers as the quantitative basis for a traffic-congestion standard if they had wanted to. They didn’t. Instead, they applied the adjective "inconclusive" to the COCO consultants’ studies, without telling the public what numbers therein caused the "inconclusivity".

I have the column-inches for only one sample calculation, based in part on a little customer-time survey I ran, just for this purpose, at a fuel-and-food vendor site near here. It turns out that average on-site customer dwell-time is a shade over eight minutes, most at the pump and some at the coffee/snack counter. Because of typically larger fuel tanks,  diesel fill-ups take somewhat longer than gas fill-ups for which I’ll use the 8-minute figure.  Hypothetically, there might be 8 pumps at a typical fuel-vendor set-up, each, under continuous use, capable of servicing almost 8 POV visits per hour, or about 64 for all. For the COCO proposal, that would be 64 POV’s per hour coming off a Route 7 with a maximum hourly traffic flow of say 1500 (15000 for a full day divided by 10 daylight hours only)  for a traffic impact of  64 divided by 1500, or about 4 percent. The estimate is conservatively high for three reasons: 1. it allocates all Route 7 traffic to daylight;  2. it doesn’t recognize that it typically takes longer to fill up with diesel, so that traffic into and out of the fuel station would be reduced in accordance with the number of pumps dispensing diesel and not gas; and 3. it assumes all pumps would be in continuous customer use, something which hasn’t happened since the gas lines of 1973. (Parenthetically, so much for the non-quantified notion that one reason for forbidding diesel pumps while permitting gas pumps is concern over increased traffic.)

Using the NJ AoT two-lane highway capacity figures, VT Route 7 in Ferrisburgh is currently functioning at less than a quarter of its theoretical maximum load. Whether an improbable but possible, worst-case, 4% increase is too much, in COCO-enterprise traffic leaving and re-entering the highway, is best decided, not by avoiding the numbers and simply declaring that it is, but by referring to an already-adopted-and-in-print set of impact standards limiting every new development applicant, to, say, 5%. Since Ferrisburgh never adopted performance-standard zoning with actual numbers for permissible impacts, it has no such published performance standards for both applicants and regulators to rely on, and must instead, use its own, case-by-case, subjective, no-numbers, judgment as each applicant, unsure of what might "pass", comes before it. Maybe that result isn’t just numero-phobia in the normal sense of that aversion, but exactly what the P&Z folks wanted all along.

Martin Harris is a former Chairman of Citizens for Property Rights