VERGENNES — A prominent city property owner is appealing to the Environmental Court a condition of a zoning permit, a filing that appears to question the Vergennes Development Review Board’s right to impose conditions without clear standards.
City Manager and zoning administrator Mel Hawley counters the DRB acted within Vergennes zoning laws, which went through a major rewrite in 2012 with an update in 2014. Those laws, he said, recognized that in many situations in the city’s downtown and Otter Creek basin areas the DRB needed flexibility to be able to say yes to more property owners.
At issue is a condition on a Sept. 12 DRB permit that allows Mahaiwe LLC to add five apartments to the four existing apartments on Grist Mill Island.
Three of the units would replace office space in the Grist Mill itself, and two would be carved out of a vacant former horse barn. Major city property owner and Ferrisburgh resident David Shlansky is listed as the manager of Mahaiwe LLC.
The DRB required Mahaiwe to “replace and install perimeter fencing on the Norton Grist Mill property including modifications to close off any breaks in the fencing that currently exist. The fencing shall be substantially identical with the perimeter fencing on Pumphouse Island as proposed by the Applicant.”
The city-owned Pumphouse Island is next to Grist Mill Island in the Otter Creek falls. In an earlier denial of Mahaiwe’s application, the DRB noted at some points that Grist Mill Island features “a vertical drop of thirty-seven feet” into the surrounding rocks and water.
Shlansky acknowledges his second application offered two options, one that he would install fencing that would run “substantially identically with the perimeter fencing for Pumphouse Island.”
But last week, Shlansky told the Independent that making that offer did not mean he was surrendering his right to appeal a condition he believes is unjustified.
“We told them we would give them as many options as they wanted, but that does not mean that they are proper conditions. That was a condition that we proposed, saying we did not like it. We have the ability to challenge their conditions,” he said.  “After months of playing their guessing game, with them clearly suggesting they were requiring that fence, without saying it, we said they could elect the condition in that un-preferred way, and they did. And that condition is invalid.”
The DRB decision also said Mahaiwe could not receive a Certificate of Occupancy for its new apartments, although Hawley said last week the permit allows Shlansky to begin construction if he chooses while the Environmental Court considers the appeal.
Hawley said he does not intend to issue that certificate.
“If someone offers a site plan with that proposed landscaping, we expect them to complete it with that landscaping,” Hawley said. “He proposed it with very specific landscaping.”
Emails between Hawley and Shlansky over the fencing issue during the application process shows the disagreement over the DRB’s right to impose the fencing requirement. Shlansky suggested that its imposition was arbitrary.
On June 6, Shlansky said his research found nothing to suggest that his preferred option of extending existing fencing was not adequate: “After talking to several architects, the Vermont Department of Public Safety, and the National Park Service, this is what I have found … The DRB was told that by our licensed architect, who is an expert. The existing fence — railroad track as vertical posts and two heavy chains between the posts — has worked fine, and comports with all findable, published standards of the city, state and federal government.
“We have nevertheless sought to work with the DRB to discern what it is that will make its members feel that their concerns are being met. In the meeting tonight, I heard it said that Mahaiwe’s application was rejected and that we obviously need to take that to mind and address it. But there was not a single mention of any standard except for one member’s citations to Burlington’s rules (it would be helpful if he or you can provide those rules, they are not apparent online). There needs to be a standard.”
Hawley responded the next day, noting that Vergennes and Green Mountain Power, which helped fund Pumphouse Island upgrades, had agreed on fencing there:
“The standards for providing ‘fall protection’ i.e. height, specifications on spindle separation will be easy to obtain. The challenge will be getting a determination of whether it is required in this instance. The city and GMP worked together to design and upgrade the safety railing system for Pumphouse Island to provide adequate ‘fall protection’ — it was not done to just look pretty.”
Hawley also provided to the Independent excerpts from the Otter Creek basin area zoning that the DRB must consider when granting permits. He said they give the board the right to impose safety conditions such as the fencing: “Adequacy of vehicular circulation, parking, and loading facilities with particular attention to safety,” and “Provision of safe pedestrian facilities including connections to the street network and on-site circulation.”
But Shlansky does not agree the DRB condition is necessary for safety, pointing to his existing apartments and office on the island.
“They keep saying that the fence needed for fall protection is what is needed, even though every single expert that we have been able to find says it is not. There is no basis to believe any additional fence is necessary. We have a good fence, and we have had zero issues in a decade plus,” he said. “Our fence is highly similar to what is at the Tidal Basin in D.C., in lower Manhattan, in Central Park in Manhattan, along the parks on the water in Boston, all new installs that the National Park Service or others have put in or approved.” 
Shlansky said the question boils down to a lack of anything concrete in the city’s regulations that the DRB can rely upon.
“If they wanted to cite a standard, we would have designed to it and made it look decent,” he said.
Hawley defended the city’s zoning laws, which he said have been changed for the better.
“They used to be very mathematical,” Hawley said. “We felt that was too restrictive.”
Now, he said, the DRB has leeway to make decisions that benefit both the city and property owners.
“We allow flexibility in our individual applications,” he said, “and that’s what happened here.”