### Mahaiwe, LLC SP & CU Application (OTR Appeal)

ENTRY REGARDING MOTION

Title: Motion to Supplement the Record (Motion 3)

Filer: Mahaiwe, LLC

Attorney: Colin R. Hagan and David J. Shlansky

Filed Date: August 3, 2017

Response in Opposition filed on 08/17/2017 by Attor ney James H. Ouimette for the City of Vergennes

**The motion is DENIED.**

Mahaiwe, LLC (“Mahaiwe” or “Appellant”) has submitt ed a Motion to Supplement the Record in its on-the-record appeal of the site plan and conditional use approval for a revised development in the City of Vergennes, Vermont (“the City”).

In a September 13, 2016 decision, the City of Verge nnes Development Review Board (“DRB”) approved Mahaiwe’s application for site pla n review and conditional use approval to
convert the Norton Grist Mill from mixed office and residential use to exclusively residential use, and to develop an accessory building for residentia l use (“the Project”). Mahaiwe is now appealing conditions included in the September 13, 2016 decision. This Court issued a final judgment on April 28, 2017 affirming the conditions based on the parties’ briefings on some of the issues raised in Mahaiwe’s Statement of Questio ns. The Court then granted a Motion for Reargument to allow the parties to argue additional issues. The Court also modified the scheduling order, which gave Mahaiwe an opportunity to file a Motion to Correct or Modify the Record. Pending before the Court is Mahaiwe’s Moti on to Supplement the Record.

Mahaiwe seeks to supplement the record to include t he following items:

1. An application for Site Plan and Conditional Use Re view dated March 1, 2016, including attachments to that application filed by Mahaiwe (t he “March 2016 Application”); 1

2. A letter dated March 18, 2016, with attachment, fro m Mahaiwe to the DRB regarding the March 2016 Application;

1 The March 2016 Application was the first applicati on submitted by Mahaiwe for an earlier version of t he Project. The DRB denied that application and Mahai we did not appeal. The 2016 Application is not dir ectly involved in the application currently before us in this on-t he-record appeal. 

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SUPERIOR COURT ENVIRONMENTAL DIVISION Docket No. 121-10-16 VtecMahaiwe, LLC SP &CU App. (OTR Appeal), No. 121-10-1 6 Vtec (EO on M. Supplement Record) (09-13-2017) P. 2 of 7.

3. DRB Decision dated May 5, 2016, regarding the March 2016 Application; and

4. Mahaiwe’s “statement of the evidence” concerning th e June 6, 2016, preliminary sketch plan meeting on the 2016 Application. 2

This is an on-the-record appeal, given that the Cit y has adopted and implemented the procedures necessary for such appeals, as required by 24 V.S.A. § 4471(b). In on-the-record appeals, this Court is governed by V.R.A.P. Rule 10 , modified by Rule 5 of the Vermont Rules for Environmental Court Proceedings. In an on-the-reco rd appeal, this Court reviews only the municipal panel decision, the record made before th e 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.). We are not autho rized to consider evidence not in the record. In re Lawrence Site Plan Approval, No. 166-10-10 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. July 9, 2011) (Durkin, J.); Marble Dealership Realty LLC Si te Plan Approval, No. 169-12-13 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Aug. 13, 2014) (Wa lsh, J.).

Specifically, the procedural rules of this Court li mit the record on appeal to “the original papers filed with the municipal panel; any writings or exhibits considered by the panel in reaching the decision appealed from; and a written transcrip t of the proceedings, whether recorded electronically or stenographically, certified by th e presiding officer of the municipal panel as the full, true and correct record of the proceedings.” V.R.E.C.P. 5(h)(1)(A). Even if evidence is not properly admitted, it could still become part of th e record if the DRB relied on it in making its
decision. See In re Grist Mill Horse Barn Redevelo pment Plan, No. 205-9-08 Vtec. slip op. at 7 (Vt. Envtl. Ct. Apr. 13, 2010) (Durkin, J.) (noting that the record includes “any writings or exhibits considered by the panel . . . .”) (emphasis added))

. Mahaiwe argues that these four items were omitted f rom the record and should be included pursuant to V.R.A.P. 10(f). 3

Here, there is no indication that any of the four p roffered items were submitted into
evidence for the DRB to consider or were relied on by the DRB in rendering its September 13, 2016, decision. At the August 1, 2016, public hear ing in which the DRB considered Mahaiwe’s pending application, Mahaiwe’s attorney—David Shlan sky—briefly mentioned the previous application, the DRB decision and the site plan rev iew meeting for the second application, but it does not appear he submitted any related documents into evidence, nor does the DRB appear to have considered or relied on any related documents or the discussion from the preliminary sketch plan meeting. See Transcript of August 1, 2 016, DRB hearing. Mr. Shlansky stated that he thought “there was a previous application that was rejected for ten units . . . we . . . had an issue raised about the fencing. So we made the new appli cation . . . and I think that when we spoke in June, the issue was the fencing.” Id. at 1. He sa id there had been a sketch plan meeting, which

2 Mahaiwe seeks to introduce this in lieu of a trans cript, pursuant to V.R.A.P. 10(d), since a transcrip t is not
available.

3 This Rule states in part that “if anything materia l to either party is omitted by error or accident f rom, or misstated in, the record, the omission or misstatem ent may be corrected and a supplemental record may be certified [by the lower court or municipal panel] and forward ed” to the reviewing court. V.R.A.P. 10(f).Mahaiwe, LLC SP &CU App. (OTR Appeal), No. 121-10-1 6 Vtec (EO on M. Supplement Record) (09-13-2017) P. 3 of 7.

he described as an “informal, pre-hearing.” Id. T hese brief mentions, however, did not serve to introduce evidence nor to provide information that the DRB relied on in making its decision.

The issue before us is different from one the Court addressed with the same parties in 2010. At that time, Mahaiwe sought to supplement t he record in 2010 after the DRB denied its application for conditional use and site plan appro val for the redevelopment of the horse barn on Grist Mill Island, the precursor to the pending Project. Grist Mill, No. 205-9-08 Vtec (Apr. 13, 2010). In Grist Mill, Mahaiwe requested that the C ourt add a traffic study to the record. Id. at 6–7. This Court granted the motion because the stu dy was discussed in depth during the DRB’s public hearing, and the City acknowledged that the DRB relied on that study in reaching its
decision. Id. at 7–8.

Neither factor applies in the present case. At the public hearing, the DRB did not discuss
the items that Mahaiwe now seeks to add to the reco rd, and the City has specifically said the DRB did not consider Items 1, 2, and 4 in its decision. Mem. in Resp. to Appellant’s Mot. to Supplement the R. 2–3.

Mahaiwe asserts that the first three items should b e included in the record because they were specifically incorporated in its notice of app eal in this matter. Mahaiwe cites no legal authority, nor are we aware of any, that allows an appellant from a municipal panel decision to unilaterally “incorporate” an earlier, unappealed m unicipal panel decision into an on-the-record appeal of a later municipal panel decision. We are also unaware how this could make an earlier, unappealed decision part of the record in the later matter. We conclude that the earlier, unappealed decision and related documents, Items 1– 3, are not part of the record by virtue of having been “incorporated” into Mahaiwe’s notice of appeal in this matter.

Because the proffered items are not part of the rec ord through incorporation, and were not offered into evidence or considered by the DRB, we have no authority to now include them
in the record. 4

Item 4, which is Mahaiwe’s request to file a Statem ent of the Evidence pursuant to V.R.A.P. 10(d), seeks to include evidence from a sk etch plan review meeting that the DRB held on June 6, 2016, in order to determine whether Mahaiwe ’s second application was complete. The City contends that this meeting was not a public he aring; witnesses were not sworn, testimony was not taken under oath, and there was no process for preserving a record. Mem. in Resp. to Appellant’s Mot. to Supplement the R. at 3.

It does not appear from the current record that tha t DRB considered the sketch plan meeting during its hearing on the pending applicati on. A record of the meeting was therefore not made a part of the record now before us by bein g introduced in the August 1, 2016 hearing, or by the DRB relying on it in reaching its decisio n.
Mahaiwe seeks to include Item 4 pursuant to V.R.A.P . 10(d), which allows the parties to submit a recollection of the hearing below when a t ranscript is unavailable. Mahaiwe submits

4 Even though the City has stipulated to the admiss ion of Item 3 into the record, the Court is not fre e to add evidence that was not before, or considered by, the DRB. See Lawrence Site Plan Approval, No. 166 -10-10 Vtec at 1 (July 9, 2011).Mahaiwe, LLC SP &CU App. (OTR Appeal), No. 121-10-1 6 Vtec (EO on M. Supplement Record) (09-13-2017) P. 4 of 7.

that item 4 is its best recollection of matters dis cussed at a sketch plan review meeting. This offer appears to rest on the theory that the July 6 , 2016 sketch plan meeting was part of “the proceedings,” as that term is used in V.R.E.C.P. 5( h)(1)(A), and so it should be included in the record. The City argues that this preliminary meet ing was not a public hearing, but was more in the nature of an administrative meeting to determin e whether the application was complete and ready to be warned for public hearing. In short, t he City appears to consider the sketch plan meeting to be a preliminary proceeding that is not a part of “the proceedings” now on appeal
before the Court.

The Municipal Administrative Procedure Act, which a pplies to all on-the-record proceedings pursuant to 24 V.S.A. § 4471(b), is sil ent regarding the scope of “the proceedings”
to be transcribed and included in the record. See 24 V.S.A. § 1201–10.

Our own Court rules are also silent, apart from exp laining that “a written transcript of the proceedings” is to be included in the record. V.R. E.C.P. 5(h)(1)(A). Similarly, the appellate rules state only that the record shall include “any trans cript of the proceedings.” V.R.A.P. 10(a)(2).

The City of Vergennes Zoning and Subdivision Regula tions (“the Regulations”), Section 106, define “sketch plan” as:

A sketch of the proposed subdivision showing inform ation specified in Article II, Section 902.A of these regulations to enable the ap plicant to save time and expense in reaching general agreement with the Deve lopment Review Board as to the form of the subdivision and objectives and requ irements of these regulations.

Section 902.A, which is part of the chapter dealing with subdivision review, sets out a detailed sketch plan review process for subdivision applications.

Regulations Section 304 sets out the “general seque nce of the review process” for permit applications in general, with ten items listed. Th e second item is:

If requested by the zoning administrator or the app licant, the Development Review Board shall conduct a sketch plan review und er Section 310 of these regulations to determine whether an application is ready for submission.

Section 310 of the Regulations reads, in part:

Sketch plan review may be conducted by the Developm ent Review Board at the request of the zoning administrator or applicant. T he purpose of Sketch Plan Review shall be to determine whether an application is complete and ready for submission to the zoning administrator . . . . Sket ch plan review must be conducted by the Development Review Board after submission of an application in order to determine whether an application before the Board i s deemed complete and ready for a public hearing.

Because Section 304 lists sketch plan review as par t of the general sequence for reviewing applications, it could be argued that it is part of “the proceedings.”

Case law on our vested rights doctrine suggests tha t sketch plan review may be a preliminary step, separate and apart from the subse quent permit application review process.Mahaiwe, LLC SP &CU App. (OTR Appeal), No. 121-10-1 6 Vtec (EO on M. Supplement Record) (09-13-2017) P. 5 of 7.

See In re Champlain Oil Co., 2004 VT 44, ¶ 11–17, 1 76 Vt. 458 (submitting application for sketch plan review does not vest rights in subsequent appl ications for subdivision and site plan review); Appeal of Highlands Development, Co., LLC and JAM G olf, LLC, No. 194-10-03 Vtec, slip op. at 7– 8 (Vt. Envtl. Ct. Aug. 11, 2005) (Durkin, J.). The se cases may be distinguished from the case now before us, however, because they address circumstan ces in which the zoning regulations required the applicant to submit a formal applicati on for sketch plan review, and then submit separate applications for site plan review, Champla in Oil, 2004 VT 44, ¶ 12, or planned unit development review, Highlands Development, No. 194- 10-03 Vtec at 7 (Aug. 11, 2005).

Only one application was filed in the instant case. The cover letter to the application and the property owner signature line on the applicatio n forms are dated June 2, 2016, although the administrative portions of the application forms ar e dated May 24, 2016. Regardless of which date is the correct submission date, the applicatio n was evidently submitted prior to the July 6, 2016, sketch plan meeting.

Because Regulations Section 304 suggests that a ske tch plan meeting may be a part of the permit application review process, the Regulations do not separate sketch plan review into a separate application process, and the conditional u se and site plan review application was submitted prior to the sketch plan meeting, we conc lude that the sketch plan review meeting is a part of the “proceedings” for the purposes of thi s on-the-record review. As part of the proceedings, Mahaiwe has a right for a record of th is proceeding to be included in the record on appeal. 5

Because there is no transcript available, Mahaiwe h as moved to include a recollection of events at the meeting pursuant to appellate rule 10 (d). That Rule provides as follows:

If a transcript is unavailable, the appellant may p repare a statement of the evidence from the best available means, including t he appellant's recollection. The statement must be served on the appellee, who m ay serve objections or proposed amendments within 10 days after being serv ed. The statement and any objections or proposed amendments must then be subm itted to the superior court for settlement and approval. As settled and approved, the statement will be included by the superior court clerk in the reco rd on appeal.

V.R.A.P. 10(d).

It does not appear that Mahaiwe has served the prop osed statement of evidence on the City to allow objections or proposed amendments. I n addition, V.R.A.P. 10(d) is written to apply to those who are appealing a superior court decisio n to the Vermont Supreme Court. Here, Mahaiwe appeals a DRB decision to the Environmental Division. Therefore, the DRB takes the role of the superior court in the Rule. We conclud e that the statement of evidence, along with objections and proposed amendments, should have bee n submitted to the DRB for settlement

5 As an aside, in our preliminary review of Mahaiwe’ s proposed statement of evidence we have found that it recounts communication between the parties that purportedly occurred outside of the sketch plan mee ting. We have no reason to believe that these should be part of the record, unless introduced as evidence durin g a formal part of the proceeding. Our decision here is limit ed to holding that the events that occurred within the sketch plan review proceeding are part of the proceeding on app eal.Mahaiwe, LLC SP &CU App. (OTR Appeal), No. 121-10-1 6 Vtec (EO on M. Supplement Record) (09-13-2017) P. 6 of 7.

and approval. The DRB would then be required to fo rward the statement to this Court as part of the record. This procedure has not been followed h ere.
Because Mahaiwe has failed to follow the procedures prescribed by V.R.A.P. 10(d), we are unable to grant its motion to include item 4 in the record pursuant to that rule. See Okemo Mtn. School Fitness Facility CU/SP, No. 81-7-15 Vtec, sl ip op. at 2–3 (Vt. Super. Ct. Envtl. Div. Sept. 30, 2016) (Durkin, J.).

Alternatively, Mahaiwe could have moved to include a statement of what transpired at the meeting pursuant to V.R.A.P. 10(f). That rule reads:

Correction or Modification of the Record. If any d ifference arises about whether the record truly discloses what occurred in the sup erior court, the difference must be submitted to and settled by that court and the r ecord conformed accordingly. Except as provided in Rule 10(b), if anything mater ial to either party is omitted by error or accident from, or misstated in, the record , the omission or misstatement may be corrected and a supplemental record may be c ertified and forwarded on stipulation of the parties, by the superior court b efore or after the record has been forwarded, or by the Supreme Court. All other ques tions about the form and content of the record must be presented to the Supr eme Court.

This procedure also involves the DRB approving the statement before it is made part of the record. Because Appellant failed to follow thi s alternate procedure, we conclude that the record must now be deemed complete and this matter shall proceed to final briefing. We make this determination, in part, because the Court has provided Appellant with a sufficient reasonable time to follow the proper procedures for supplement ing the record. This matter must now proceed to completion of the parties’ briefing, so that a final determination may be made in this on-the-record appeal.

For all these reasons, the Court **DENIES** Mahaiwe’s Motion to Supplement the Record. Pursuant to the Court’s Entry Order of July 24, 201 7, the Court directs that:

1. Appellant’s brief on the legal issues remaining fro m its Statement of Questions (Questions 7, 8, 11, 12, and 14–16) shall be filed no later than **Friday, October 13,**

**2017** ; 2. Appellee/Town’s brief shall be filed no later than **Monday, November 13, 2017**

, pursuant to V.R.A.P. 31(a)(2); and

3. Appellant’s reply brief, if any, shall be filed no later than **Monday, November 27,**

**2017** , pursuant to V.R.A.P. 31(a)(3).

After that final deadline, this matter will come be fore the Court for review of the final briefs, research, drafting, and consideration.Mahaiwe, LLC SP &CU App. (OTR Appeal), No. 121-10-1 6 Vtec (EO on M. Supplement Record) (09-13-2017) P. 7 of 7.

**So ordered.**

Electronically signed on September 13, 2017 at Burl ington, Vermont, pursuant to V.R.E.F. 7(d).

________________________________ Thomas S. Durkin, Superior Judge

Notifications:
Colin Hagan (ERN 6141) and David Shlansky (ERN 4766 ), Attorneys for Appellant Mahaiwe, LLC
James H. Ouimette (ERN 4732), Attorney for Interest ed Person City of Vergennes

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