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STATE OF VERMONT 

ENVIRONMENTAL COURT 

 } 

In re Grist Mill Horse Barn } Docket No. 205-9-08 Vtec 

Redevelopment Plan } 

} 

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. 
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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 

 

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 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. 
3

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. 
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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. 
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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 offstreet 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. 
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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 
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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 
8

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 
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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. 
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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 
11

§§ 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-therecord 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. 
12

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.
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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.