FERRISBURGH — Pointing to the cost of and uncertain result for his ongoing Act 250 application, Denecker Chevrolet owner Tom Denecker recently told the town of Ferrisburgh he was giving up on his $350,000 purchase of town-owned land at the junction of Routes 7 and 22A.
In a Nov. 6 letter to the town, Denecker said his decision was a result of his inability to satisfy the “conditions to close” contingency in his purchase-and-sale agreement with Ferrisburgh.
At issue in particular is a new Act 250 criterion, 9L, which is intended to combat sprawl. The Vermont Agency of Natural Resources (ANR), the Addison County Regional Planning Commission (ACRPC) and the Vermont Natural Resources Council all opposed Denecker’s project based on 9L.
“Fulfilling the condition of receiving the Act 250 permit for the proposed project in a timely manner, that would not impose unduly burdensome conditions, cannot be achieved,” Denecker wrote to the town. “We have expended significant sums to pursue the required permits, but find that the continued process to obtain the Act 250 permit is commercially unreasonable and issuance of the permit within a reasonable time frame is unlikely.”
On Wednesday, Denecker said now that he and partner Mike Capra have put what he called “the absolute insanity of the Act 250 process” behind them, they would move forward at some point to upgrade their facility.
He said they don’t have to act, but would still like to consolidate operations on one site — now they have facilities on Route 7 in Ferrisburgh east of Vergennes and on Main Street in the city — and to upgrade to the latest General Motors Chevrolet dealership template.
“We are not in any position where we must do something,” Denecker said, adding, “We’ll figure out the best way for Denecker Chevrolet to take care of our customers.”
Whatever he and Capra do, Denecker said they would avoid what he called a “terrible” and “unjust” Act 250 process.
“It will involve less than 10 acres, and it will forgo anything to do with Act 250,” he said. “There is no justification for the amount of money a small business has to spend.”
Denecker had hoped to build at 17,500-square-foot building that would have shared a Route 22A driveway with the Agency of Transportation park-and-ride lot. All improvements would have been made on about 4.5 acres of what is a 34.91-acre parcel. The rest of the land would have been conserved, as was agreed on about a decade ago in a deal among the state, land trusts, Ferrisburgh and the land’s previous owner.
The project’s first Act 250 hearing, on Oct. 23 at the Ferrisburgh town office building, focused on aesthetics and traffic impact. The town backed it, one neighbor objected, and a regional planning representative questioned it on aesthetic grounds, focusing on the effect the dealership might have on tourists stopping at the visitor center proposed for the relocated train depot at the VTrans lot.
CRITERION 9L
But Denecker’s major hurdle could have come on Dec. 5, when the District 9 Environmental Commission was set to hear testimony from opponents of the project based on Criterion 9L.
That criterion, which took effect on June 1, states, in part, that, “the applicant must show that any project outside of an existing settlement: … (I) Will not contribute to strip development, or (II) if the project is ‘confined to’ existing strip development, it incorporates infill and minimizes the characteristics of strip development.”
The ANR, the regional planning commission and the Vermont Natural Resources Council all obtained party status under Criterion 9L and had either filed testimony, planned to testify against the project, or both. Denecker’s application included a 27-page section intended to demonstrate the project satisfied 9L.
But the day before the Oct. 23 hearing, a letter from ANR land use attorney Marjorie Lord said the application was not up to that task.
The letter stated, “The Agency has identified a number of issues relative to the project’s compliance with 9L. The application currently does not sufficiently address these issues. Accordingly, at this time the applicant has not met its burden of production or proof under 9L.”
In an attached memo, ANR regulatory policy analyst Jen Mojo cited a 1990s Act 250 finding for a Stewart’s convenience store proposed for the same site that called the parcel, “not within the existing settlement pattern.”
This week, ACRPC Executive Director Adam Lougee confirmed the commission’s Act 250 committee had voted to oppose Denecker’s project based on its reading of 9L guidelines.
“It wasn’t an easy decision for that committee,” Lougee said. “The committee applied the guidelines as fairly as it could … that guidance is very broad-reaching in scope.”
TOWN REACTION
The Ferrisburgh selectboard met this Tuesday and issued a statement, quoting Chairwoman Loretta Lawrence, that was critical of both the ANR and ACRPC and disagreed with the sprawl assessment.
The statement read, “Criterion No. 9L does not apply to Denecker’s Act 250 Application. This project does not ‘contribute to’ strip development or sprawl. This project was fully supported by the Town of Ferrisburgh and was being well received by the City of Vergennes.”
It also states, “The State of Vermont has no idea about what our local communities want to see for growth and businesses. Our local volunteer boards put many, many hours into doing what is best for the town and its citizens. We continually seek additional, and appropriate, revenue for the town. Then, the State of Vermont rides into town and tell us what ‘they’ envision, and then they leave. However, the property owners are still left holding the bag and still have to come up with those tax dollars.”
The statement concluded that “it is unfortunate that Addison County Regional Planning was critical of this project and testified against the Town of Ferrisburgh. It would appear that ACRP did not understand the project. This was truly disappointing.”
But Lougee disagreed with the selectboard’s contention that the ACRPC committee did not have a grasp on the issues.
“I believe the Addison County Regional Planning Commission’s Act 250 Committee understood the project, engaged in a thoughtful debate of its merits and honestly applied the Criteria 9(L) guidance,” he said. “Ferrisburgh’s issue stems from the changes that the Legislature made to Criterion 9L last session and the guidance the Natural Resources Board provided, not with the actions of the Addison County Regional Planning Commission.”
The issue, according to Lougee, lies with 9L, which he said is written “to capture all commercial activity” and thus could be problematic statewide.
“It’s a significant change, and I do think it has the potential to have broad impacts,” he said. “It is written very broadly.”
On Wednesday, Lawrence said she would recommend that the selectboard contact lawmakers about what she believes might be 9L’s unforeseen consequences.
“I would hope that the town of Ferrisburgh sends a statement to all our local legislators that signed onto the law and didn’t understand it,” she said.
NEXT FOR FERRISBURGH
Denecker’s withdrawal marked the second time a deal for the parcel has fallen through. In 2011, the town signed a $375,000 contract with Montpelier’s Eastern Development Corp., but that firm cited financing contingencies in backing out in July 2012.
Lawrence said the land remains listed for $375,000, although the selectboard would meet with its real estate broker and consider how to move forward.
In the meantime, she said, “It’s still on the market.”
As for potential buyers, Lougee looked back to the multi-party post-Stewart’s agreement, which he said stated the parcel was “basically intended for a light industrial use.” Some manufacturing firms have historically looked at the land, including Country Home Products and Specialty Filaments.
As what else might be appropriate there, Lougee said, “something more commercial, less retail, would have been looked on more favorably, possibly something with more of a relationship with the park-and-ride lot and the train station.”
One thing he said could help Ferrisburgh find a buyer for its 34.91 acres might be a change in Criterion 9L.
“It might help the town of Ferrisburgh in selling the parcel,” Lougee said.
Andy Kirkaldy may be reached at andyk@addisonind