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Supreme Court backs Vergennes DRB ruling

VERGENNES — Vermont Environmental Court has for a second time ruled in favor of the Vergennes Development Review Board and against Mahaiwe LLC, the owner of record of Grist Mill Island, in a dispute over perimeter fencing for the island.
The DRB insisted on a railing fence around the island to protect occupants of additional apartments proposed in 2016 by Mahaiwe, of which Ferrisburgh resident David Shlansky is the principal owner.
Mahaiwe maintained that the existing style of fencing, essentially hanging chains between posts, was adequate, and that the DRB lacked the authority or standards to base requirements, and the company appealed the decision twice. This was Mahaiwe and Shlansky’s second loss on the question after an initial setback in April 2017.
In a May 10 decision Judge Thomas Durkin sided with the DRB on all issues Mahaiwe raised in its second appeal, but the decision has little practical impact. Shlansky said in an email last week he had already installed the required fencing and moved ahead with the project, which replaced his former office space in the former Grist Mill on the island with three apartments and converted an outbuilding into two more apartments.
“We have two fences, the one we want and the one we needed to install so we can populate our apartments. The work is done though we’re still doing some landscaping,” Shlansky wrote.
In its original permit 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 conclusion of that condition refers to Shlansky’s offer to install either type of fencing, including the style he insists is not necessary.
“I skim the opinion as saying that the city can not only tell you what type of light fixture to use, it can tell you what type of fence to build. And it can do so without telling you any standards other than what it feels like,” he wrote. “Experts say that the old fence we have is plenty safe and in fact warns people as much as the fences at Niagara Falls. But a committee of non-experts knows better.”
Durkin noted Mahaiwe challenged the April 2017 Environmental Court decision in part because the “DRB’s decision violated Appellant’s due process rights as the regulations fail to articulate a safety standard.”
Durkin wrote that the Environmental Court’s 2017 decision “noted that the standards set out in the Regulations ‘are based on a reasonable person’s understanding of safety, which is not an impermissibly vague benchmark.’”
Durkin added in his May 10, 2018, decision, “Where the dangerous characteristic is a precipice with a waterway below, and the risk posed is that a person could fall into the water, installing a physical barrier is not an irrational means of mitigating the risk.”
Further, he wrote, zoning boards have “‘broad discretion’ in attaching conditions” to permits.
Durkin also disagreed with Mahaiwe’s contention that the “DRB has no authority to attach the conditions in its decision,” writing “the legislature specifically granted municipalities the power to regulate safety through zoning and to attach conditions to permit approvals.”
He also dismissed Mahaiwe’s assertion that the “DRB conclusion that the fence is unsafe is a legal conclusion based on no objective standard.”
Durkin wrote, “We elaborate on our April 28, 2017, analysis to note that the type of fence required by the DRB decision is taller and has fewer and smaller gaps than the existing fence. The factual underpinning implicit in the condition — that the site will be safer with the fence required by the decision than it is with the existing fence — is therefore supported by substantial evidence.”
But Shlansky wrote he still believes the DRB’s imposition of the fencing was arbitrary.
“Other municipalities even in Vermont do it a lot differently, mostly professional zoning staff working off of clearly written rules that tell you exactly what the concern and standards are,” he wrote.

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