STATE OF VERMONT
ENVIRONMENTAL COURT
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In re Grist Mill Horse Barn } Docket No. 205-9-08 Vtec
Redevelopment Plan }
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Decision on Multiple Motions
Mahaiwe, LLC (“Applicant”) has appealed a decision by the City of Vergennes
Development Review Board (“DRB”), which denied Applicant’s application for conditional use
and site plan approval to redevelop a horse barn located on Grist Mill Island in Vergennes,
Vermont. Applicant is represented by David J. Shlansky, Esq.; the City of Vergennes (“City”) is
represented by James W. Runcie, Esq.; no adjoining landowners have appeared in these
proceedings.
This is an on-the-record appeal, since the City has adopted and implemented the
procedures necessary for such appeals, as required by 24 V.S.A. § 4471(b). The City has
therefore submitted the official record from the proceedings below, pursuant to Rule 5(h)(1)(A)
of the Vermont Rules for Environmental Court Proceedings (“V.R.E.C.P”) and Rules 10 and
11(b) of the Vermont Rules of Appellate Procedure (“V.R.A.P.”).
Currently pending before the Court are four related motions filed by Applicant.
Applicant first requests that certain materials be added to the record supplied by the City.
Applicant has also moved for summary judgment,1 advocating that the DRB Decision be
vacated. In the hope of prevailing, Applicant has also moved to disallow remand as a remedy
and requested that we consider non-record materials in conjunction with this motion. The City
supports Applicant’s motion to supplement the official record, but responds in opposition to the
motion for summary judgment. The City has not responded to either the motion to disallow
remand or the motion to consider non-record materials. The pending motions are now ripe for
review; each is addressed in turn below.
We first note that our role in this on-the-record appeal is limited: we are only authorized
to review the appealed-from decision from an appellate perspective, giving deference to the
1
Our procedural rules are less than clear as to how pleadings in an on-the-record appeal should be crafted and
titled. It appears that briefing under the Appellate Rules is more appropriate than summary judgment under
V.R.C.P. 56, since we are not authorized in on-the-record proceedings to adjudicate facts, as explained in more
detail in the following paragraph.
1
DRB’s factual findings when there is substantial foundation in the record; we are not charged
with nor authorized to conduct our own evidentiary proceeding or render our own factual
findings. In re Stowe Highlands Resort PUD to PRD Applic., Docket No. 159-8-07 Vtec, slip
op. at 2 (Vt. Envtl. Ct. Jan. 25, 2008) (Durkin, J.), aff’d, 2009 VT 76. To give context to our
analysis, we nevertheless recite the following material facts present in the record from the
proceedings below:
Factual Background
1. Applicant is the owner of the Grist Mill Building and an abandoned horse barn, both of
which are located on Grist Mill Island at 360 Main Street in downtown Vergennes.2 The Grist
Mill Building is a mixed-use building that consists of four apartments and approximately 2,280
square feet of office space, but the horse barn is a dilapidated structure that is presently unused.
In addition to the two buildings, a twelve-space parking area is currently available on the Island.
2. On June 5, 2008, Applicant submitted to the DRB an application for a conditional use
permit and site plan approval in order to redevelop the horse barn. Applicant proposed to
convert the horse barn into 2,100 square feet of office space and to provide off-street parking for
the project at Settler’s Park, a nearby parking and recreation area, where Applicant has an
exclusive easement for twenty-seven parking spaces. Applicant indicated in its application that it
would allocate nine off-street parking spaces available at Settler’s Park, bringing the total
number of parking spaces available to the tenants of Grist Mill Island to twenty-one.
3. Settler’s Park is located within 600 feet of the proposed redeveloped horse barn, but it is
not located on Grist Mill Island. To reach Settler’s Park from the Island, a pedestrian must cross
Main Street, a crossing that occurs mid-block at the apex of the bridge over Otter Creek.3 There
is currently no crosswalk at this location, and the only sidewalk on the bridge is located on the
side opposite Grist Mill Island.
4. On August 4, 2008, the DRB held a public hearing on Applicant’s application for
conditional use and site plan approval. At least three individuals appeared and testified on behalf
2
Main Street is also known as Vermont Route 22A.
3
Grist Mill Island is situated in Otter Creek on the northern side of the Otter Creek Bridge (i.e., Main Street), and
access to the Island is provided by an ingress/egress at the middle of this bridge, effectively creating a three way
intersection at the apex of the bridge. Once a pedestrian crosses Main Street at this intersection, he or she reaches
Settler’s Park by walking a few hundred feet along the sidewalk on the southern side of the bridge.
2
of Applicant, although their identities are absent from the current record. No adjoining
landowners or other interested persons attended the hearing.
5. At the hearing, the DRB took testimony and asked questions focusing on two main issues
pertaining to conditional use and site plan approval: the sufficiency of off-street parking and the
safety of pedestrians walking between Grist Mill Island and Settler’s Park. As part of site plan
review, the DRB must consider whether a proposed project provides for “safe pedestrian
facilities including connections to the street network.” City of Vergennes Zoning Regulations
§ 703(4) [hereinafter “Regulations”]. Conditional use review likewise requires the DRB to
determine whether a proposal will “result in an undue adverse effect on” the conditional use
standards enumerated in the Regulations, including the zoning bylaws in effect and off-street
parking. Regulations § 803.
6. During the public hearing, Applicant testified that, although Applicant’s original
application allocated to the project nine parking spaces at Settler’s Park, it was willing to
associate up to nineteen parking spaces at Settler’s Park. This would bring the total number of
available off-street parking spaces to thirty-one. Specifically, Applicant testified:
Per our submission that we made earlier this month, we showed that we would
require nine spaces . . . and those nine spaces would be located at Settler’s Park.
There are several spaces left over [at Settler’s Park] . . . seven or eight of which
would require the removal of a [utility] pole . . . . As part of this application, we
are not suggesting we would remove that pole, so that would really leave about
eighteen or nineteen spaces that can be built per that plan . . . . So we are
suggesting that we would use nine of them. We are amenable to—if the [DRB]
wants or suggests that we build ten or eleven spaces—we may be amenable to that
as well, but a strict read of the zoning regulations shows that we would need nine
spaces over there.
Audio Recording of DRB Public Hearing, at 6:15–7:28 (Aug. 4, 2008) [hereinafter
“Recording”]. Applicant later made clear: “We don’t have any issue with [adding parking
spaces at Settler’s Park]. It’s really simple to build these [spaces]. . . . If that would make you
happy, we’re happy to do it.” Id. at 26:30–26:49.
7. The DRB also took testimony regarding the safety of pedestrians walking between Grist
Mill Island and Settler’s Park, specifically asking about the feasibility of a crosswalk on Main
Street at the apex of the bridge.
3
8. Applicant stated in response that a crosswalk was not part of the proposal; it was not an
option until the City constructs a sidewalk on the side of the bridge nearest Grist Mill Island.
Applicant explained:
In front of the entrance to Grist Mill Island, there is not a crosswalk proposed
there, and currently there is not signage proposed there. Renny Perry, the City
Manager, proposed to put a crosswalk there and signage there and VTrans said:
“No.” They said that currently . . . the best thing to do there is to leave it as is
unless you were to put a sidewalk on the other side [of the bridge] . . . . Until that
sidewalk gets installed [by the City], VTrans is . . . committed to not putting a
crosswalk in front of Grist Mill Island. Renny has said that if VTrans said that
it’s okay to put a sign there—a similar sign to the one that’s in front of Settler’s
Park[, which has a person walking and an arrow]—the city would be amenable to
that and would install a sign.
Id. at 13:45–14:59. Under Applicant’s proposal, pedestrians would simply “look both ways
before they cross” Main Street in front of the Island. Id. at 15:10–15:33.
9. A DRB member (not identified in the record) ultimately asked Applicant: “Do you have
some evidence that says, yes, this is a safe way to get from Settler’s Park over across the bridge
to the Island?” Id. at 28:04–28:11.
10. Applicant then referred to the Stantec Report, a study completed in 2007 at the direction
of the City, which assessed the feasibility of installing a sidewalk on the side of Main Street
fronting Grist Mill Island, but also reviewed traffic and pedestrian patterns in the area. Applicant
testified:
Yeah, we do: the AOT study. They think there are good lines of sight; they
think that it would be nice to have the traffic calming affects of a narrower
passageway there, but I don’t think anyone said that there was an urgent safety
issue.
Id. at 28:11–29:04. Applicant continued by explaining that the Stantec Report found no evidence
that there was a safety hazard at the crossing:
The study . . . did not . . . show any data that indicated that there was a safety
hazard there. It showed that it would be optimal if there was a sidewalk put there,
and it could avoid potential safety problems, but it did not determine that there
was a problem with line of sight—that there was a problem with anything—so
I’m not sure that an unsubstantiated inference that there is a safety hazard there is
justified.
Id. at 31:13–31:52.
4
11. In further support of the current crossing’s safety, Applicant testified that pedestrians
have been crossing Main Street for decades at the apex of the bridge. Individuals who park at
Settler’s Park must walk across this highway bridge to access the City’s recreation field on Pump
House Island.4 Applicant explained:
We do have evidence that the City has not had a problem with inviting people to
the Pump House Island for decades. And if someone can show that—even though
there has been a public use of that space—there has been a safety hazard [in
crossing Main Street at the apex of the bridge], it would have come out by now,
especially with all the studies that have been done with the bridge.
Id. at 30:55–31:12.
12. Following the hearing, on September 8, 2008, the DRB issued a two-page written
decision denying Applicant’s application for conditional use and site plan approval. The DRB
determined that the application did not provide for safe pedestrian facilities, as required for site
plan approval under Regulations § 703(4). It stated:
The [DRB] finds that . . . there is no crosswalk on the bridge connecting the
sidewalk located on the south side of the bridge and the access to Grist Mill Island
which is on the north side of the bridge. The Applicant testified that VTrans and
the City Manager objected to the delineation of a crosswalk in the middle of the
bridge. Since there is no crosswalk on the bridge, and therefore, there is not a
provision for safe pedestrian facilities including connections to the street network,
the [DRB] finds that that application does not meet the requirements of
Section 703(4).
In re Application by Mahaiwe, LLC, Findings of Fact & Decision, at 2 (City of Vergennes Dev.
Review Bd. Sept. 8, 2008) [hereinafter “Decision”]. The DRB did not make any additional
findings concerning the safety of pedestrians crossing in front of Grist Mill Island. Despite the
extensive discussions during the public hearing, the Decision does not mention the Stantec
Report. Nor does the Decision indicate that the DRB found the existing crossing to be unsafe for
pedestrians in the absence of a crosswalk.
13. The DRB also determined that Applicant’s proposal did not provide for sufficient off-
street parking, as required by Regulations § 1102. It stated:
The [DRB] finds that a total of twenty-four off-street parking spaces are required
[to satisfy Regulations § 1102]. The application that was submitted proposes to
4
Pump House Island is a City park with picnic tables and interpretive signs that is connected to Grist Mill Island by
a pedestrian bridge. Pedestrians follow the same route to access Pump House Island from Settler’s Park as they
would to access Grist Mill Island. Recording, at 29:38–31:12.
5
create a total of twenty-one parking spaces. . . . The [DRB] finds that the
proposal does not meet the minimum requirements for off-street parking as
required in Section 1102 of the zoning regulations.
Id. After making these findings, the DRB concluded that “the application does not conform to
the general and specific standards prescribed in the zoning regulations for the reasons set forth
above.” Id. The DRB did not explain how Applicant’s noncompliance with either Regulations
§ 703(4) or § 1102 results in an “undue adverse effect” on any of the conditional use standards
prescribed in Regulations § 803. Nor did the DRB make reference to Applicant’s offer to
provide additional parking spaces at Settler’s Park, which the record reflects Applicant offered to
absolve any shortcoming of their original parking plan.
14. Applicant timely appealed that decision to this Court on September 19, 2008, requesting
that this Court vacate the DRB’s decision below.
Discussion
In an on-the-record appeal such as this, we must determine “whether there is substantial
evidence in the record as a whole from which the factual findings of the DRB might reasonably
be inferred, as well as whether the DRB correctly applied the municipal ordinance and state
statute to those facts.” In re van der Weyden, No. 23-2-06 Vtec, slip op. at 2 (Vt. Envtl. Ct. Nov.
29, 2006) (Wright, J.) (citations omitted). The factual findings “are not conclusive, but they are
given great weight, if the DRB adequately explains its reasons for finding as it does.” Id. (citing
In re Leikert, No. 2004-213 (Vt., Nov 10, 2004) (unpublished mem.)). Legal issues, on the other
hand, are reviewed without affording deference to the DRB’s legal conclusions; they are
reviewed de novo. In re Stowe Highlands Resort PUD to PRD Applic., 2009 VT 76, ¶ 7. We
apply these standards to our analysis of the issues raised in the pending appeal.
The first issue that we must address involves the composition of the record for the
proceedings below. The City has provided the Court with a record that consists of eight items:
(1) Applicant’s zoning permit application; (2) Applicant’s application for site plan and
conditional use approval; (3) certified copy of the Zoning Regulations; (4) the DRB notice of the
public hearing; (5) an audio recording of the public hearing; (6) two letters submitted on behalf
of Applicant and the attached site plan drawings; (7) the DRB’s September 8, 2008 Decision;
and (8) the notice of appeal. Applicant has requested that we also include in the official record
the portions of the Stantec Report that were discussed during the public hearing, even though
6
Applicant concedes that it did not request that the Stantec Report be admitted into evidence
during the proceedings below. See Recording, at 28:11–29.04 and 31:13–31:52 (discussing the
study’s results in broad terms).
Rule 10(a) of the V.R.A.P. limits the record on appeal to the transcript and the original
papers filed in the tribunal below. V.R.A.P. 10(a). The failure to admit evidence during the
proceedings below normally precludes the “back door” submission of evidence on appeal. See,
e.g., State v. Brown, 165 Vt. 79, 82 (1996). However, our procedural rules modify V.R.A.P. 10
for on-the-record appeals brought to this Court. See V.R.E.C.P. 5(a)(2) (explaining that the
V.R.A.P. govern these proceedings “except as modified by this rule”). Rule 5 of the V.R.E.C.P.,
in turn, includes in the record both “the original papers filed with the municipal panel” as well as
“any writings or exhibits considered by the panel in reaching the decision appealed from.”
V.R.E.C.P. 5(h)(1)(A). Thus, to be included in the record in this appeal, the DRB must have
considered the Stantec Report in reaching its decision to deny Applicant conditional use and site
plan approval.
Our review of the record provided by the City indicates that the DRB did, in fact,
consider the Stantec Report in reaching the decision below. Not only was the Stantec Report
discussed in depth during the public hearing, but it appears that the DRB relied, at least in part,
on the Stantec Report in assessing the Main Street crossing to Grist Mill Island. At one point, an
unidentified member of the DRB stated:
There is evidence that says . . . that what’s currently there in terms of getting
across the bridge—getting across the road—isn’t a good way of going about
things, which is to say that the City went ahead got a grant; they did a study. I’ve
seen it because I work on the Planning Commission.
Recording, at 27:38–27:54.
Acknowledging that the DRB relied on the Stantec Report in reaching its decision, the
City supports including it in the record. However, the City requests that the entire Report be
included, not just the limited portions advocated by Applicant. Under the Vermont Rules of
Evidence, when part of a writing is introduced by one party, the opposing party may seek the
introduction of any other part that “ought in fairness to be considered contemporaneously with
it.” V.R.E. 106. Because the Report is a writing that was considered by the DRB in reaching its
decision to deny Applicant’s application, and because both parties seek its admission without
7
objection, we conclude that the entire Stantec Report should be considered as part of the official
record in this appeal. Accordingly, Applicant’s motion to complete the record is GRANTED.
Turning to the merits of this appeal, Applicant contends that the DRB’s Decision below
should be vacated, arguing that the DRB misapplied the Regulations pertaining to site plan and
conditional use review, and in the alternative, that the DRB’s findings are not supported by the
evidence in the record. We take these arguments in turn.
Applicant first argues that the DRB erred in applying the Regulations governing site plan
review, insisting that the DRB may only impose appropriate conditions and safeguards to address
concerns raised during site plan review. Applicant essentially contends that a finding of
noncompliance with § 703(4), a site-plan consideration, cannot be grounds to deny its
application. This argument is not supported by the language of the Regulations or the statute
authorizing site plan review; we therefore reject it.
The Regulations authorize the DRB to conduct site plan review pursuant to 24 V.S.A.
§ 4416. Regulations § 701. Although the statute expressly authorizes the DRB to “impose
appropriate conditions and safeguards . . . with respect to” the site-plan considerations specified
in the Regulations, the statute also indicates that “approval of site plans” is a “prerequisite to the
approval of any use or structure except one-family and two-family dwellings.” 24 V.S.A.
§ 4416. The state statute therefore contemplates the authority to deny a proposed use based on
its failure to satisfy the objectives considered during site plan review. The DRB exercised this
authority after determining that Applicant’s proposal contained deficiencies in the site plan;
namely, it did not provide for safe pedestrian facilities, as required by Regulations § 703(4). The
DRB determined that a crosswalk was a prerequisite to providing a safe pedestrian connection to
the street network.
Applicant next argues that the DRB’s determination of noncompliance with Regulations
§ 703(4) is unsupported by substantial evidence in the record. Applicant maintains that the
record does not support a finding that Applicant failed to provide a safe pedestrian connection to
the street network. We need not reach this argument, however, because we conclude that the
DRB’s decision is inadequate on its face; it does not articulate sufficient factual findings by
which we can review whether the evidence supports its legal determination.
In an on-the-record decision, the DRB is obligated make separate findings of fact and
conclusions of law. 24 V.S.A. § 1209(a). The “[f]indings of fact shall explicitly and concisely
8
restate the underlying facts that support the decision,” and, in turn, the “[c]onclusions of law
shall be based on the findings of fact.” Id. § 1209(b)–(c). In other words, the DRB has a duty to
provide “a clear statement to the parties and the court in the event of an appeal on what was
decided and how the decision was reached.” In re Leikert, No. 2004-213, slip op. at 2 (Vt. Nov.
10, 2004) (unpublished mem.) (citing New England P’ship v. Rutland City Sch. Dist., 173 Vt.
69, 74 (2001)). Failing to articulate the factual findings underlying an on-the-record decision is
cause to vacate the decision; such findings inappropriately force this Court to peruse the record
in search of facts that might support the DRB’s legal conclusions. Id. Were we to do so, we
would improperly invade the DRB’s responsibility of assessing the weight and credibility of
witnesses that appeared before that Board. Id.
The DRB made only two findings before concluding that Applicant’s proposal failed to
provide for a safe pedestrian connection to the street network: (1) that there was no crosswalk on
the bridge in front of Grist Mill Island; and (2) that VTrans and the City Manager objected to
placing a crosswalk at the apex of the bridge. Decision at 2. The DRB therefore presumably
determined that it was unsafe for pedestrians to cross the bridge without a crosswalk. Notably
absent from the DRB’s decision, however, is any findings concerning the safety of the existing
pedestrian crossing. Despite the extensive testimony on the subject during the public hearing,
the DRB did not determine that the existing crossing is unsafe for pedestrians.5 The DRB also
failed to explain how the increase in pedestrians caused by this barn renovation project would
materially decrease the safety of foot traffic crossing Main Street from Settler’s Park. Without
any such findings, we are left to wonder how the DRB determined that a crosswalk is a necessary
prerequisite to provide for a safe pedestrian connection to the street network, as required by
Regulations § 703(4).
The City now argues on appeal that the Stantec Report, taken as a whole, provides
sufficient evidence that the existing crossing is unsafe. Although there is evidence from the
public hearing that the DRB relied on the Stantec Report, the written decision does not identify
what portions of the Stantec Report informed the DRB’s conclusion. We are left to wonder
where in the Stantec Report there is foundation for the DRB’s legal conclusions concerning
unsafe conditions. To produce an adequate decision for an on-the-record appeal, “the basis of
5
In fact, some testimony given during the public hearing directly contradicts this conclusion. Applicant testified
that pedestrians have traditionally crossed the apex of the bridge to reach Pump House Island without any incidents
of injury. Recording, at 15:10–15:33.
9
the DRB’s decision should be apparent from its factual findings.” In re Curry Variance
Application, No. 222-10-07 Vtec, slip op. at 1 n.1 (Vt. Envtl. Ct. Feb. 5, 2009) (Wright, J.)
(citing In re Leikert, No. 2004-213, slip op. at 1–2). It is not our role in this appeal to peruse the
record and “fill in the gaps left by the DRB’s decision.” In re Leikert, No. 2004-213, slip op.
at 2. Any reliance on the Stantec Report must therefore be apparent on the face of the DRB’s
final decision. The DRB decision lacks this clarity of notice.
Accordingly, we conclude that the DRB’s decision is inadequate with regard to site plan
review under Regulations § 703(4). The DRB failed to articulate any findings of fact upon
which its legal conclusions may be based regarding the safety of Applicant’s proposed pedestrian
crossing. We therefore have no basis upon which to review whether substantial evidence
supports the DRB’s legal conclusions that the existing crossing is unsafe or that a crosswalk is a
necessary prerequisite for the proposed project to maintain a safe pedestrian connection to the
street network. As a result, we must VACATE the DRB’s decision with regard to site plan
review.
Applicant also argues that the DRB’s decision regarding conditional use approval should
be vacated, contending that the DRB misapplied Regulations § 803. As explained above, we will
review whether the DRB correctly applied the Regulations to the facts without affording any
deference to the DRB’s legal conclusions. In re Stowe Highlands Resort PUD to PRD Applic.,
2009 VT 76, ¶ 7. For the following reasons, we agree with Applicant.
To receive conditional use approval under the Regulations, Applicant must establish that
the “proposed use will conform to the general and specific standards set forth in section 803.”
Regulations § 801. This necessarily involves rendering a legal determination of whether the
proposed project will result in an “undue adverse effect” on the standards outlined in § 803.
Regulations § 803 directs that a proposal will have an undue adverse effect if the “impact caused
by [the] land development . . . cannot be reasonably mitigated.” Regulations § 106 (defining
“undue adverse effect”). Thus, conditional use review pursuant to Regulations § 803 requires the
DRB to examine whether a proposal’s impact will have an adverse effect that cannot be
reasonably mitigated.
The DRB did not apply this legal standard before concluding that “the application [did]
not conform to the general and specific standards prescribed in the zoning regulations.”
Decision at 2. After finding that Applicant’s proposal did not comply with Regulations
10
§§ 703(4) and 1102, the DRB simply concluded that the conditional use standards were not
satisfied. The DRB did not explain how the findings of noncompliance resulted in an undue
adverse effect on the standards announced in Regulations § 803. It further did not examine
whether the proposal’s impact could be reasonably mitigated, an analysis that §§ 106 and 803
require before a legal determination is announced on whether a project conforms to the
conditional use standards.6 The DRB’s conclusory statement is deficient. We therefore
conclude that the DRB’s legal analysis was insufficient under Regulations § 803 and therefore
VACATE the DRB’s decision with regard to conditional use approval.
For the reasons discussed above, Applicant’s motion for summary judgment is
GRANTED and the DRB’s Decision denying Applicant site plan and conditional use approval is
VACATED. We conclude that the DRB’s findings with regard to site plan review under
Regulations § 703(4) are inadequate because the DRB failed to announce findings sufficient
enough to support its legal conclusions concerning the safety of Applicant’s proposed project,
absent a crosswalk in front of Grist Mill Island. We further conclude that the DRB insufficiently
applied Regulations § 803 pertaining to conditional use review because it did not first determine
whether the proposal would have an “undue adverse effect” on the applicable standards, as
required by the definition for that phrase in Regulations § 106.
In light of the foregoing discussion, we must next consider the appropriate remedy.
Applicant has moved to disallow remand as a remedy, explaining that this Court has the
discretionary authority to remand a particular appeal and that a number of factors present in the
current situation counsel against remand. Applicant has further filed a motion requesting that we
consider non-record materials in support of this argument. Although Applicant does not
expressly suggest an alternative remedy, it appears that Applicant would like us to freely
examine the record and render our own findings and conclusions, ultimately granting Applicant
approval to redevelop the horse barn. Unfortunately, we do not have the authority in this on-the-
record appeal to grant the relief Applicant requests.
Applicant correctly notes that this Court has the authority to “affirm, reverse, or modify
the decision of the tribunal appealed from, . . . [or] remand the case for further proceedings
consistent with the order of the court.” V.R.E.C.P 5(j). Whether to remand a particular appeal is
6
This is particularly perplexing considering Applicant’s willingness to dedicate additional parking at Settler’s Park.
See Recording, at 6:15–7:28 and 26:30–26:49.
11
necessarily within our discretion. In re Maple Tree Place, 156 Vt. 494, 501 (1991). However,
our discretion is tempered by the Court’s authority in on-the-record appeals.
Our role in an on-the-record appeal is similar to that of an appellate court; we are
constrained to reviewing the official record of the proceedings below. 24 V.S.A. § 4471(b). Our
mandate is to review the record to determine whether the DRB’s Decision is supported by
substantial evidence. In re van der Weyden, No. 23-2-06 Vtec, slip op. at 2 (Vt. Envtl. Ct. Nov.
29, 2006) (Wright, J.). In the event that the record is incomplete, or the decision is inadequate,
we do not have the authority to convert an on-the-record appeal into a de novo proceeding. In re
Sprague Farms, LLC, No. 107-6-08 Vtec, slip op. at 4 (Vt. Envtl. Ct. Nov. 4, 2008) (Wright, J.).
As a result, we cannot take new evidence, and we cannot review the record anew to derive our
own findings and conclusions; this “would be a degradation of on-the-record review.” In re
Miller Conditional Use Applic., No. 59-3-07 Vtec, slip op. at 5–6, 17 (Vt. Envtl. Ct. Nov. 5,
2007) (Durkin, J.). We therefore conclude that we have no authority to grant the relief Applicant
requests.7
Accordingly, this matter must be remanded to the DRB for additional fact finding
including, if it deems necessary, another hearing, and the rendering of specific findings of fact
that are supported by substantial evidence in its record, so as to provide a proper foundation for
the legal determinations the DRB chooses to thereafter announce. It will be for the DRB to
determine whether sufficient evidence is present in the post-remand record from which it can
draft adequate findings and conclusions, or whether it wishes to reopen the hearing and take
additional evidence. We trust that the DRB will then produce a decision that makes “a clear
statement to the parties and the court in the event of an appeal on what was decided and how the
decision was reached.” In re Leikert, No. 2004-213, slip op. at 2 (Vt. Nov. 10, 2004)
(unpublished mem.) (citing New England P’ship v. Rutland City Sch. Dist., 173 Vt. 69, 74
(2001)). The DRB is not constrained to issue a decision after remand that mirrors the legal
conclusions from its prior decision.
We also encourage the DRB to fully explain in its decision what evidence it found
persuasive and reliable, and “[w]here the evidence conflicts, . . . state clearly what evidence it
credits and why.” Jensvold v. Town & Country Motors, Inc., 162 Vt. 580, 585 (1994) (citing
7
Because we conclude that we must remand this appeal to the DRB, we need not consider the non-record materials
proffered by Applicant; Applicant’s motion requesting we consider those materials is therefore denied.
12
Corrette v. Town of St. Johnsbury, 140 Vt. 315, 316 (1981)). To provide for meaningful review
in the event of an appeal, “[i]t is important for [us] to know how the [DRB] weighed the facts
and blended the standards to arrive at the conclusion. In other words, we need to review the
explanation as well as the found facts to determine if the application of the [legal] criteria to the
facts is sound.” Nickerson v. Nickerson, 158 Vt. 85, 89 (1992), quoted in Simendinger v. City of
Barre, 171 Vt. 648, 655 (2001) (Katz, Supr. J., concurring and dissenting).
Conclusion
For all the reasons more fully discussed above, we GRANT Applicant’s motion for
summary judgment and hereby VACATE the September 8, 2008 Decision of the DRB, which
denied Applicant site plan and conditional use approval to redevelop the horse barn building on
Grist Mill Island. In so doing, we have GRANTED Applicant’s motion to complete the record,
so as to include the entire Stantec Report as part of the official record.
Lastly, we DENY Applicant’s motion to disallow remand as a remedy, DENY
Applicant’s motion to consider non-record materials as part of that motion, and hereby
REMAND the application to the City of Vergennes DRB for whatever action it deems
appropriate to conform to this Decision and the legal precedent cited herein.
A Judgment Order accompanies this Decision. This concludes the proceedings before
this Court in this Docket.8
Done at Berlin, Vermont, this 13th day of April 2010.
___________________________________
Thomas S. Durkin, Environmental Judge
8
A related Docket remains pending before the Court: In re Grist Mill Horse Barn Redevelopment (Plan 2), No. 89-
5-09 Vtec. Applicant filed that appeal with this Court after the DRB denied a subsequent site plan and conditional
use application. Pursuant to the parties’ Joint Stipulation and Scheduling Order of June 24, 2009, the parties shall
now complete any necessary discovery and pleadings in that Docket.
13