City developer appeals court ruling

VERGENNES — Vermont Environmental Court Judge Thomas Durkin on April 28 denied the owner of Grist Mill Island’s appeal of a Vergennes Development Review Board zoning permit condition, but on May 8 the owner’s attorney petitioned the judge to reconsider elements of that decision.
The central issue was whether the DRB could require Mahaiwe LLC to install metal perimeter fencing on Grist Mill Island that is similar to fencing on the adjacent Pumphouse Island in the Otter Creek Falls. Ferrisburgh resident and major city property owner David Shlansky is the principal of Mahaiwe LLC.
The DRB attached that condition to its September 2016 decision granting a permit that allowed Mahaiwe to add five apartments to the four existing apartments on Grist Mill Island. Shlansky said he planned to move offices out of the Grist Mill and install apartments, and also to convert a horse barn on the island into living units.
Shlansky proposed to use what he described in an email as “vertical posts and two heavy chains between the posts” to protect pedestrians from what the parties agree is up to a 37-foot drop. Such fencing is already in place around much of the Grist Mill Island perimeter, but there are gaps.
Shlansky said similar fencing has been used in the “Tidal Basin in D.C., in lower Manhattan, in Central Park in Manhattan, along the parks on the water in Boston,” and in other locations. He also noted that there had been no safety problems experienced by occupants of the existing four apartments.
According to Durkin’s decision, Mahaiwe’s appeal focused on whether Vergennes zoning laws “authorize the DRB to impose the conditions set out in the decision,” whether the DRB “acted arbitrarily and capriciously in imposing the conditions,” “whether the DRB exceeded its statutory authority,” “whether the conditions were imposed pursuant to an impermissibly vague standard” and “whether the approval is binding as to lighting.”
Durkin backed the DRB on all counts. He concluded the city zoning gives the DRB “the authority to impose reasonable conditions to ensure safety, including conditions that call for fencing to mitigate the hazard posed by a project’s proximity to a waterfront.”
He wrote there was “no basis for an assertion that conditional use review could not include appropriate safety measures, including fencing,” and added, “In determining what type of fence is appropriate, the DRB resorted to a reasonable understanding of safety.”
Durkin also stated that Mahaiwe in its application essentially gave the DRB a choice between the post-and-chain and Pumphouse Island fencing options: “The reality that the DRB also adopted Mahaiwe’s own suggestions for fencing negates Mahaiwe’s challenge to this condition.”
Durkin concluded: “Given the factual findings that the proposed project site presents a fall hazard … A fence that is more substantial than the existing post-and-chain fence, with its multiple gaps, would provide an appropriate measure of mitigation. In reaching this conclusion, we are unable to agree with Mahaiwe that the DRB’s conditions on fencing are arbitrary or capricious. Furthermore, we conclude that the DRB was not acting arbitrarily or capriciously in requiring the installation of a very specific type of fence.”
Mahaiwe’s May 8 Motion for Reconsideration states that Mahaiwe’s initial appeal was “a preliminary briefing” that was allowed “in the case that those preliminarily-treated issues could dispose of the full case,” and states the April 28 ruling “contains no consideration of issues outside the preliminary briefing.”
Specifically, it asks:
•  “Does the Constitution of the State of Vermont prohibit the DRB from imposing the conditions set forth in its Decision?”
•  “Does the Charter of the City of Vergennes, Vermont, fail to enable the DRB imposing the conditions set forth in its Decision?”
•  “Are the conditions set forth in the DRB Decision (such as fencing) permanently fixed such that any alteration hereafter requires DRB approval, based on the existing regulations?”
•  If the answer to the foregoing questions is “yes,” what is the quantum of change that requires DRB approval (and what standards) in the current regulations would apply and guide such change review?”
The reconsideration motion also asks if alterations require DRB approval, whether that provision also applies to project lighting, and whether other “landscape specifications and depictions,” such as walkway fence posts, plantings and outdoor seating, are also binding permit conditions.

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