Mahaiwe, LLC SP & CU ( 2017 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 121-10-16 Vtec
Mahaiwe, LLC SP & CU Docket No. 121-10-16 Vtec
Decision in On-the-Record Appeal
In this on-the-record appeal, Mahaiwe, LLC (“Mahaiwe”) appeals conditions included in a
September 13, 2016 decision of the City of Vergennes Development Review Board (“the DRB”)
approving Mahaiwe’s application for site plan review and conditional use approval to convert the
Norton Grist Mill (“the Grist Mill”) from mixed office and residential use to exclusively residential
use, and to develop an accessory building for residential use.
Mahaiwe is represented by Colin R. Hagan, Esq. and David J. Shlansky, Esq.; the City of
Vergennes (“the City”) is represented by James H. Ouimette, Esq.
On-the-record Scope of Review
This is an on-the-record appeal. See 24 V.S.A. § 4471(b). As such, our review considers
the decision below, the record made before the municipal panel, and the briefs submitted by the
parties. In re Saman ROW Approval, No. 176-10-10 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div.
Sept. 2, 2011) (Durkin, J.).
Background
The Grist Mill and accessory structure are located in the Otter Creek Basin district in the
City. Printed Case (“PC”) at 3, 14. The property on which the Grist Mill and accessory structure
are located has what the parties refer to as a “perimeter fence.” Part of the fence is composed
of vertical metal posts with two lengths of chain strung between them, and there are gaps
between sections of fence and between the fences and the buildings. Id. at 22–25. Part of the
fence, at the southwest corner of the property, is composed of metal posts bolted into the
ground, top and bottom metal railings between them, and diagonal, metal lattice between the
rails. Id. at 4, 6–8. In places, there are gaps between sections of fence, and between the fence
and the buildings. Id. at 23–25. Photographs of the fence submitted to the DRB by Mahaiwe
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show a drop of the ground surface immediately on the opposite side of the fence, with what
appears to be water below. Id. At a public hearing on the application on appeal, Mahaiwe’s
representative refers to the project site as an “island.” Id. at 33, 35. Mahaiwe’s representative
also compared the project site to waterfront sites in Boston and New York. Id. at 39–40. When
a DRB member noted that the comparable Boston site was adjacent to “standing water,” while
the site proposed in this case is adjacent to “a waterfall with a 37-foot drop,” Mahaiwe’s
representative responded, “Yeah,” as if to confirm that this distinction is accurate. Id. at 40.
Procedural History
Mahaiwe’s initial application for site plan approval and a conditional use permit to
convert the Grist Mill and accessory building into a ten-unit residence was denied by a DRB
decision issued May 2, 2016.1 The denial was based on insufficient parking and on a finding that
the existing fencing did not provide adequate “fall protection” in light of the potential presence
of children on the property and the fact that the site is situated on the banks of a creek and
waterfall with a 37-foot drop.
Mahaiwe did not appeal the May 2, 2016 decision, but instead filed a revised application
on June 2, 2016 proposing a substantially similar project. The new application calls for nine units,
and also proposes—if the DRB requires—replacing the post and chain sections and closing the
gaps in fencing with a lattice metal fence of the type already standing at the southwest corner of
the property. The application includes a page detailing a type of exterior light fixture to be used
on the project.
On June 6, 2016, Mahaiwe’s representative emailed an application supplement to the
City’s Zoning Administrator and the DRB. The email notes that while the DRB had indicated the
post and chain fence was inadequate, it had not provided a specific standard for fencing that
would be considered adequate. The email states that Mahaiwe is “willing to consider any
[fencing] standards that [the DRB] wants to use, so long as we get them timely.”
1
The May 2, 2016 decision was not included in the record submitted by the City, but Mahaiwe included it
in the printed case filed with its brief. The City, in its reply, stipulated to including the decision in the record on
appeal.
2
On July 13, 2016, Mahaiwe’s representative sent a letter to the DRB. The letter explains
that Mahaiwe is unaware of any regulations at the local, state, or federal level setting any specific
standard for fencing that would apply to the property. The letter further notes that the Vermont
League of Cities and Towns (VLCT) had suggested getting an opinion from the insurer of the
property, and that the insurer had no recommendations regarding the fence. Considering this,
Mahaiwe proposed two options regarding the fence. The first option, and the one preferred by
Mahaiwe, is to keep the existing fence unchanged, except to close any gaps “with a continuation
of the existing fence.” The second option is to install new fencing, identical to that on Pumphouse
Island, a neighboring property owned by the City. A photograph for the second option shows a
fence with vertical metal posts bolted into the ground, two top rails and one bottom rail between
them, and vertical metal pickets between the bottom rail and the lower top rail.
The DRB held a hearing on the application on August 1, 2016. At that hearing, Mahaiwe’s
representative noted the two fencing options it had presented, and repeated that while Mahaiwe
preferred the existing fencing, the DRB could require different fencing, including that proposed
as “Option II” in the July 13, 2016 letter.
On September 12, 2016, the DRB approved the permit application with the following
condition:
The Applicant shall 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 in Option II.
A second condition requires Mahaiwe to obtain a certificate of occupancy confirming that the
fencing is installed as called for in the first condition.
Discussion
As with all matters appealed to this Court, our review is limited to the issues raised in the
Statement of Questions. V.R.E.C.P. 5(f). Mahaiwe’s Statement of Questions includes 16
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questions, but Mahaiwe’s brief only addresses some of these.2 Those questions not briefed are
normally subject to dismissal. McAdams v. Town of Barnard, 2007 VT 61, ¶ 8, 182 Vt. 259(“Arguments not briefed are waived.”); In re T.A., 166 Vt. 625, 626 (1997) (mem.) (“Issues not
briefed are waived.”).
The remaining questions are:
Question 1: whether the City of Vergennes Zoning and Subdivision Regulations, effective
December 10, 2015 (“the Regulations”), including Sections 703, 803, and 1610, authorize the DRB
to impose the conditions set out in the decision approving Mahaiwe’s application;
Question 2: whether the DRB abused its discretion, or acted arbitrarily and capriciously,
in imposing the conditions;
Question 6: whether the DRB exceeded its statutory authority under 24 V.S.A. ch. 117,
including 24 V.S.A. § 4414, in imposing the conditions;
Questions 7, 9, and 10: whether the conditions were imposed pursuant to an
impermissibly vague standard;3 and
Question 13: whether the approval is binding as to lighting.
These Questions present five separate legal issues for us to address. We address those
legal issues in the separate sections below.
2
Mahaiwe initially suggested that the Court allow the parties to brief some “preliminary issues” on a
“summary judgment-type basis.” The Court reminded legal counsel that in an on-the-record appeal, summary
judgment procedures are not appropriate, since the Court is not empowered to convert such appeals to a de novo
proceeding, engage in independent fact finding, or receive new evidence. In re Grist Mill Horse Barn Redevelopment
Plan (2nd Appeal), No. 89-5-09 Vtec, slip op. at 2 (Vt. Super. Ct. Env. Div. Aug. 5, 2010) (Durkin, J.). The Court in the
appeal at bar issued a Scheduling Order, proposed by Mahaiwe, that called for supplemental briefing, “should the .
. . preliminary briefing not resolve the matter . . . .” In re Mahaiwe SP & CU App. (OTR Appeal), No. 121-10-16 Vtec,
slip op. at 3 (Vt. Super. Ct. Envtl. Div. Dec. 12, 2016) (Durkin, J.). Since we regard the determinations announced in
this Decision as having “resolve[d] the matter,” we have concluded that further briefing is unnecessary.
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These questions ask whether the Vermont State Constitution prohibits the condition or whether the DRB
acted with standardless discretion when imposing the conditions. We understand Mahaiwe’s void-for-vagueness
argument as invoking Constitutional due process claims, which is provided for in Article 4 of the Vermont
Constitution. See In re Laberge NOV, 2016 VT 99, ¶ 17 n.1, (Vt. Sep. 2, 2016),
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I. Whether the zoning regulations and statutes allow the reviewing body to impose
conditions requiring Mahaiwe to install new fencing
A municipal panel “may attach additional reasonable conditions and safeguards” to a land
use application approval “as it deems necessary to implement the purposes of [Title 24, ch. 117]
and the pertinent bylaws and the municipal plan then in effect.” 24 V.S.A. § 4464(b)(2). This
statute applies to site plan review and conditional use approval. See Id. § 4416(a) (site plan
review entails a “process pursuant to” § 4464; § 4414(3)(B) (conditional use approval may require
site plan approval and “[a]ny other standards and factors that the bylaws may include”).
Regulations § 803.
Ensuring safety is among the purposes of the Regulations. The express intent of the
Regulations is “to provide for orderly community growth and to further the purposes established
in [24 V.S.A.] § 4302.” Regulations § 102. Section 4302, in turn, states that municipal planning
and development laws are designed, in part, “to encourage the appropriate development of all
lands in this State . . . in a manner which will promote the public health, safety against fire, floods,
explosions, and other dangers.” 24 V.S.A. § 4302. The Regulations further state that they should
be interpreted and applied “for the promotion of the public health, safety, comfort, convenience,
and general welfare.” Regulations § 103.
As to site plan review, the Regulations state that site plans must including “proposals for
mitigating . . . hazards.” Regulations § 702. Conditional use review calls for attaching whatever
“safeguards” are necessary to implement the purposes of the Regulations and municipal plan.
Regulations § 803.
Generally, then, ensuring safety is among the purposes of the Regulations and municipal
land use statutes. Under 24 V.S.A. § 4464(b)(2), reasonable conditions and safeguards may be
attached to permits to implement that purpose.
More specifically, the Regulations call for ensuring the safety of pedestrians, including
with the use of fencing. For example, the review process for site plans includes consideration of
the “[p]rovision of safe pedestrian facilities including . . . on-site circulation.” Regulations § 702;
24 V.S.A. § 4416. The Regulations also call for conditional use review to include consideration of
appropriate fencing. Regulations § 802.
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Furthermore, the Regulations state in the purpose section of the Otter Creek Basin Zoning
District (“OCB District”) that “[d]evelopment and redevelopment shall be sensitive to the unique
environmental qualities of the area.” Regulations § 1610. This could be interpreted to include
considerations for the safety of occupants where a proposed project is directly on the waterfront.
Based on the provisions set out above from the relevant statutes and Regulations, we
conclude that the DRB has 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.
II. Whether rules of statutory construction prohibit a fencing condition
Mahaiwe notes that the statute authorizing conditional uses, 24 V.S.A. § 4414(3), lists
certain general and specific standards that may be considered in conditional use review, and
“fencing” is not listed among these. Citing the principle of expressio unius est exclusion alterius,
Mahaiwe argues that consideration of fencing is therefore not allowed in any conditional use
review in the City. For the reasons stated below, we reject this assertion.
“[T]he canon expressio unius est exclusio alterius does not apply to every statutory listing
or grouping; it has force only when the items expressed are members of an ‘associated group or
series,’ justifying the inference that items not mentioned were excluded by deliberate choice,
not inadvertence.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (quoting United States
v. Vonn, 535 U.S. 55, 65 (2002)).
We are unable to read § 4414(3) as inferring that the drafters of the statute deliberately
meant to exclude fencing. First, the statute does not necessarily exclude fencing; instead, it
contains a catch-all provision allowing for the consideration of “[a]ny other standards and factors
that the bylaws may include” when making a conditional use determination. We see no basis for
an assertion that conditional use review could not include appropriate safety measures, including
fencing. Second, the statute also allows consideration of “[c]riteria adopted relating to site plan
review pursuant to” 24 V.S.A. § 4416. Id. § 4414(3)(B)(iv). Section 4416, in turn, allows the
consideration of “appropriate conditions and safeguards with respect to . . . circulation for
pedestrians.” Id. § 4416. Again, we see no basis for why fencing could not be an appropriate
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safeguard to ensure the safe circulation of pedestrians on the site. For these reasons, we cannot
adopt Mahaiwe’s expressio unius argument.
Mahaiwe further argues that expressio unius est exclusio alterius prohibits consideration
of fencing here because, while fencing is mentioned in the Regulations for the Central Business
District, it is not mentioned for the OCB District. Regulations §§ 1609, 1610. This is not a case
where a statute expresses items as an associated group or series, and omits certain items from
that group or series. Rather, it is a case where zoning regulations set out very specific standards
for one zoning district, and less specific standards for another. We therefore conclude that the
expressio unius theory is inapplicable to this case.
III. Whether the conditions are impermissible because they are based on an
unenforceably vague standard
Mahaiwe contends that because the Regulations do not specifically state what type of
fencing is appropriate to ensure safety, and they do not refer to any external, objective standards
for fencing, the condition regarding fencing is an impermissible exercise of standardless
discretion. See In re Appeal of JAM Golf, LLC, 2008 VT 110, ¶ 17, 185 Vt. 201.
This argument misses the mark, because the DRB was not required to apply a standard or
policy that specifically called for fencing. Instead, it was required to apply the standards set out
in Regulations § 703, under which site plan approval is contingent on the applicant demonstrating
that the proposed plan provides “safe pedestrian facilities including . . . on site circulation.” It
also applied a standard, at § 702, requiring the site plan to show “proposals for mitigating
hazards.” It applied still another standard, related to conditional use approval, which calls for
review of “landscaping and fencing,” and also requires conformance with other applicable
Regulations, which includes §§ 702 and 703. Regulations § 803.
These standards are based on a reasonable person’s understanding of safety, which is not
an impermissibly vague benchmark. See In re Laberge NOV, 2016 VT 99, ¶¶ 17–22 (Vt. Sep. 2,
2016). By imposing the condition that Mahaiwe install an appropriate fence, the DRB was
concluding that without an appropriate fence, the project failed to meet the criteria for site plan
review and conditional use approval. In determining what type of fence is appropriate, the DRB
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resorted to a reasonable understanding of safety. The reality that the DRB also adopted
Mahaiwe’s own suggestions for fencing negates Mahaiwe’s challenge to this condition.
For these reasons, we are unable to conclude that any standard in the Regulations applied
in this case is so vague as to be unenforceable.
IV. Whether the conditions are arbitrary or capricious
The DRB imposed a condition requiring improvements in fencing at the project site based
on its conclusion that the project site, in its existing condition, failed to provide adequate
protection against a fall hazard.
In an on-the-record appeal we “affirm the findings of the DRB if reasonably supported by
the evidence,” and we defer to the DRB where there is conflicting evidence. In re Ferrera & Fenn
Gravel Pit, 2013 VT 97, ¶ 6, 195 Vt. 138 (citing Devers–Scott v. Office of Prof’l Regulation, 2007
VT 4, ¶ 4, 181 Vt. 248).
Here, the DRB found that families, including children, are likely to be present on the
property, given that it is a ten-unit residence; that the project site is located on an island in Otter
Creek adjacent to a waterfall with a 37-foot drop; and that the existing fencing, which includes
sections composed of posts and chains and has a number of gaps, is not sufficient to ensure that
people will not fall into the water.
We conclude that these findings are supported by the evidence. Photographs submitted
with the application show the post and chain fencing, the gaps in the fencing, and the water
below. Under the deferential review that we give to factual findings in on-the-record appeals,
these photographs alone are sufficient to support the finding that there is a fall hazard and that
the existing fencing is insufficient to mitigate that hazard. In addition, at the hearing, Mahaiwe’s
representative confirmed that the project site is an island, and appeared to confirm that the site
is adjacent to a waterfall with a 37-foot drop.
Because the DRB’s factual findings related to the fall hazard and the need for appropriate
mitigation are reasonable in light of the evidence, we affirm those findings.
We “review the DRB’s legal conclusions without deference where such conclusions are
outside the DRB’s area of expertise.” In re Stowe Highlands Resort PUD to PRD Application, 2009
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VT 76, ¶ 7, 186 Vt. 568 (citing Devers–Scott, 2007 VT 4, ¶¶ 8–9). The DRB has no specific expertise
warranting deference in this case.
Given the factual findings that the proposed project site presents a fall hazard that the
existing fencing does not sufficiently mitigate; and given that site plan review and conditional use
approval require the proposed project to provide for safety, including safety of pedestrians, as
discussed above; we conclude that further mitigation is required by the applicable Regulations
and statutes. 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. First, as with the lighting, discussed
below, this is the only type of fence that Mahaiwe proposed which complies with the
Regulations.4 Second, requiring this fencing—which is identical to that on the neighboring
property—comports with the Regulations’ guidance for the OCB District, which indicates that
aesthetics should and will be taken into consideration.
V. Whether Mahaiwe is bound by any conditions regarding lighting
Mahaiwe’s Question 13 asks whether the lighting proposed in the application is
incorporated as a condition in the DRB’s approval. In its briefs, Mahaiwe notes that the DRB
decision makes no findings on lighting and there is no factual record regarding lighting. Mahaiwe
goes on to argue that because the City’s opposition brief does not address lighting, and because
“there is no evidentiary basis on the record to justify any lighting conditions, . . . any lighting
conditions should be stricken from the issued permit.”
Mahaiwe proposes a specific light fixture in its application. PC at 12. This was addressed
by the DRB and Applicant’s representative at the hearing on the application, and expressly
included in the record by the DRB. Id. at 35. The DRB did not, however, discuss whether the
proposed lighting complies with the Regulations, and the DRB decision is silent regarding lighting.
4
The alternative proposed by Mahaiwe, to maintain the post-and-chain fencing and close any gaps with
chain, would not provide adequate fall protection and therefore fails to comply with the Regulations.
9
The Vermont Supreme Court has held that “[t]he approved description of [a] project, as
contained in the permit application or attachments,” becomes a permit condition. In re Jackson,
2003 VT 45, ¶ 29, 175 Vt. 304 (citing In re Duncan, 155 Vt. 402, 410 (1990)). Applying this rule to
the case at hand, we conclude that Mahaiwe is required to comply with the lighting fixture
proposed in its application.5
VI. Propriety of a site visit
Lastly, we note that the City suggested in correspondence, dated and filed on January 31,
2017, that the Court conduct a site visit “to assist the Court in understanding the evidence
contained in the record” of this appeal. Mahaiwe objected to this suggestion, and asserts that
site visits are never appropriate in an on-the-record appeal.
The Court has the discretion to conduct site visits in all appeals that come before it.
V.R.E.C.P. 2(d)(2)(ix). In the practice of this Court, site visits are never conducted to receive
evidence, but rather to give context to the evidence or record that the Court is reviewing. In re
Byrne Trusts NOV, No. 150-07-08 Vtec, slip op. at 7 (Vt. Envtl. Ct. Jul. 15, 2009) (Durkin, J.) (holding
that measurements taken by DRB at site visit are not evidence, and not part of the record in an
on-the-record appeal, adding that “[a]s this Court often stresses whenever we have the
opportunity to make a site visit, the site visit itself is not evidence, nor is it a part of the record.”).].
While on rarely done, the Court has conducted site visits in on-the-record appeals, to provide
context to the record presented. In this instance, however, the Court declines to conduct a site
visit, as it appears that the proposed site visit is unnecessary for the Court to have sufficient
context of the record presented.
Conclusion
For the reasons set out above we AFFIRM the conditions set out in the September 12,
2016 DRB decision regarding fencing. We further note that the site plan review and conditional
use approval are conditioned on Mahaiwe using the light fixtures presented in its application.
5
Furthermore, we note that lighting must be taken into account in site plan review and conditional use
approval. Mahaiwe has offered no alternative lighting plan. To the extent that we sit in the place of the DRB in this
appeal, the only thing we have to determine compliance with the regulations is the lighting plan contained in the
original application.
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Any proposed modification to lighting or fencing, or any other modification presented in the
future, must comply with Regulations § 313, which governs amendments to approved permits.
This completes the current proceedings in this Court concerning this on-the-record
appeal. A Judgment Order accompanies this Decision.
Electronically signed on April 28, 2017 at Newfane, Vermont, pursuant to V.R.E.F. 7(d).
________________________________
Thomas S. Durkin, Judge
Environmental Division
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