Court overturns city permit denial, returns issue to DRB

VERGENNES — A long-awaited Environmental Court decision on April 13 overturned a permit denial by the Vergennes Development Review Board, but did not grant permission to the owners of a vacant Grist Mill Island horse barn to renovate it into office space.
In September 2008, the DRB denied an application by Mahaiwe LLC to renovate the 2,100-square-foot barn. Mahaiwe is owned in part by Ferrisburgh’s David Shlansky, also owner of the Grist Mill Island in the Otter Creek falls and the nearby Shade Roller Mill.
In its 2008 ruling, the DRB held the island lacked safe pedestrian access from the bulk of its required parking spaces, which Mahaiwe proposed to provide from Settlers’ Park at the east end of the bridge. The tiny island itself has limited parking.
There is no sidewalk on the north side of the bridge, where the city-owned Pumphouse Island — which contains picnic tables installed by the city for public use — and the Grist Mill Island stand side by side.
Nor is there a crosswalk to the islands from the sidewalk that runs on the south side of the Route 22A bridge, and Agency of Transportation officials said a crosswalk in the middle of the bridge would be unsafe.
But Mahaiwe representatives also produced an AOT study in which they said agency engineers described the bridge’s sight lines at the spot as adequate for safe pedestrian crossing.
In supporting Mahaiwe’s request to overturn, or vacate, the DRB decision, Environmental Court Judge Thomas S. Durkin wrote on April 13 that the DRB did not support its contention that the crossing was unsafe: “The DRB failed to articulate any findings of fact upon which its legal conclusions may be based regarding the safety of Applicant’s proposed pedestrian crossing. We therefore have no basis upon which to review whether substantial evidence supports the DRB’s legal conclusions that the existing crossing is unsafe or that a crosswalk is a necessary prerequisite for the proposed project.”
Durkin stopped short of granting Mahaiwe a permit, however, concluding that the nature of the process and the evidence meant, “we have no authority to grant the relief Applicant requests.”
Instead, he wrote, “this matter must be remanded to the DRB for additional fact finding, including, if it deems necessary, another hearing and the rendering of specific findings of fact that are supported by substantial evidence in its record, so as to provide a proper foundation for the legal determinations the DRB chooses to thereafter announce.”
Pedro Zevallos, vice president of Shlansky’s Burchfield Resource’s company, which is based in the island’s already renovated Grist Mill, said Mahaiwe sees the Environmental Court ruling as positive.
“We are gratified by the Environmental Court’s decision to grant our motion for summary judgment, and to vacate the Vergennes Development Review Board decision,” Zevallos said. “The court makes clear the DRB failed to articulate any findings of fact upon which its legal conclusions were based on the unsafe pedestrian crossing … All the evidence at the hearings supported the pedestrian crossing as safe.”
City officials said late last week they had little time to study the decision. City manager and zoning administrator Mel Hawley’s first impression was that the process might start fresh.
“I think it just sends the whole thing back,” Hawley said.
City attorney Jim Runcie said a quick read of the Environmental Court decision led him to believe it “leaves the door open to (the DRB) taking new evidence,” but that the DRB would not be required to do so.
“They could go back to the record, or open for new evidence and then make additional findings of fact,” Runcie said.
Zevallos said Mahaiwe hopes the DRB will now accept what he said was the AOT evidence of adequate sight lines and a safe crossing, and noted, as he and Shlansky have in the past, that the city invites the public to use Pumphouse Island with the same access.
“We are eager to continue to cooperate with the city to redevelop the Grist Mill horse barn, and hope that we can have a productive discussion in the very near future that is based on actual facts, including what experts in the Vermont AOT have found to be a safe pedestrian crossing,” Zevallos said. “And we hope to avoid further litigation.”
Andy Kirkaldy is at [email protected].

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