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 Attorney James H. Ouimette for the 

 City of Vergennes 

The motion is DENIED. 

Mahaiwe, LLC (“Mahaiwe” or “Appellant”) has submitted 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 Vergennes Development Review Board 

(“DRB”) approved Mahaiwe’s application for site plan 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 residential 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 Questions. 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 Motion to Supplement the Record. 

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

1. An application for Site Plan and Conditional Use Review dated March 1, 2016, including 

attachments to that application filed by Mahaiwe (the “March 2016 Application”);1

2. A letter dated March 18, 2016, with attachment, from Mahaiwe to the DRB regarding 

the March 2016 Application; 

 

1

 The March 2016 Application was the first application submitted by Mahaiwe for an earlier version of the 

Project. The DRB denied that application and Mahaiwe did not appeal. The 2016 Application is not directly involved 

in the application currently before us in this on-the-record appeal. 

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Docket No. 121-10-16 Vtec
Mahaiwe, LLC SP &CU App. (OTR Appeal), No. 121-10-16 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 the June 6, 2016, preliminary 

sketch plan meeting on the 2016 Application.2

This is an on-the-record appeal, given that the City 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-record appeal, this Court reviews only the 

municipal panel decision, 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.). We are not authorized 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 Site Plan Approval, No. 169-12-13 Vtec, slip op. 

at 2 (Vt. Super. Ct. Envtl. Div. Aug. 13, 2014) (Walsh, J.). 

Specifically, the procedural rules of this Court limit 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 transcript of the proceedings, whether recorded 

electronically or stenographically, certified by the 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 the record if the DRB relied on it in making its 

decision. See In re Grist Mill Horse Barn Redevelopment 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 from 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 proffered 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 hearing in which the DRB considered Mahaiwe’s 

pending application, Mahaiwe’s attorney—David Shlansky—briefly mentioned the previous 

application, the DRB decision and the site plan review 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, 2016, 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 application . . . and I think that when we spoke in 

June, the issue was the fencing.” Id. at 1. He said there had been a sketch plan meeting, which 

 

2

 Mahaiwe seeks to introduce this in lieu of a transcript, pursuant to V.R.A.P. 10(d), since a transcript is not 

available. 

3

 This Rule states in part that “if anything material 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 certified 

[by the lower court or municipal panel] and forwarded” to the reviewing court. V.R.A.P. 10(f). 
Mahaiwe, LLC SP &CU App. (OTR Appeal), No. 121-10-16 Vtec (EO on M. Supplement Record) (09-13-2017) P. 3 of 7.

he described as an “informal, pre-hearing.” Id. These 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 the record in 2010 after the DRB denied its 

application for conditional use and site plan approval 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 Court add a traffic study to the record. Id. at 

6–7. This Court granted the motion because the study 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 record, 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 be included in the record because they 

were specifically incorporated in its notice of appeal 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 municipal 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 record 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 Statement of the Evidence pursuant to 

V.R.A.P. 10(d), seeks to include evidence from a sketch 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 hearing; 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 that DRB considered the sketch plan 

meeting during its hearing on the pending application. A record of the meeting was therefore 

not made a part of the record now before us by being introduced in the August 1, 2016 hearing, 

or by the DRB relying on it in reaching its decision. 

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 transcript is unavailable. Mahaiwe submits 

 

4

 Even though the City has stipulated to the admission of Item 3 into the record, the Court is not free 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). 
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that item 4 is its best recollection of matters discussed 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 meeting was not a public hearing, but was more in 

the nature of an administrative meeting to determine whether the application was complete and 

ready to be warned for public hearing. In short, the 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 applies to all on-the-record 

proceedings pursuant to 24 V.S.A. § 4471(b), is silent 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 explaining 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 transcript of the proceedings.” V.R.A.P. 10(a)(2). 

The City of Vergennes Zoning and Subdivision Regulations (“the Regulations”), Section 

106, define “sketch plan” as: 

A sketch of the proposed subdivision showing information specified in Article II, 

Section 902.A of these regulations to enable the applicant to save time and 

expense in reaching general agreement with the Development Review Board as to 

the form of the subdivision and objectives and requirements 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 sequence of the review process” for permit 

applications in general, with ten items listed. The second item is: 

If requested by the zoning administrator or the applicant, the Development 

Review Board shall conduct a sketch plan review under 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 Development Review Board at the 

request of the zoning administrator or applicant. The purpose of Sketch Plan 

Review shall be to determine whether an application is complete and ready for 

submission to the zoning administrator . . . . Sketch 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 is deemed complete and 

ready for a public hearing. 

Because Section 304 lists sketch plan review as part 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 that sketch plan review may be a 

preliminary step, separate and apart from the subsequent permit application review process. 
Mahaiwe, LLC SP &CU App. (OTR Appeal), No. 121-10-16 Vtec (EO on M. Supplement Record) (09-13-2017) P. 5 of 7.

See In re Champlain Oil Co., 2004 VT 44, ¶ 11–17, 176 Vt. 458 (submitting application for sketch 

plan review does not vest rights in subsequent applications for subdivision and site plan review); 

Appeal of Highlands Development, Co., LLC and JAM Golf, LLC, No. 194-10-03 Vtec, slip op. at 7–

8 (Vt. Envtl. Ct. Aug. 11, 2005) (Durkin, J.). These cases may be distinguished from the case now 

before us, however, because they address circumstances in which the zoning regulations 

required the applicant to submit a formal application for sketch plan review, and then submit 

separate applications for site plan review, Champlain 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 application forms are dated June 2, 2016, although the 

administrative portions of the application forms are dated May 24, 2016. Regardless of which 

date is the correct submission date, the application was evidently submitted prior to the July 6, 

2016, sketch plan meeting. 

Because Regulations Section 304 suggests that a sketch 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 use and site plan review application was 

submitted prior to the sketch plan meeting, we conclude that the sketch plan review meeting is 

a part of the “proceedings” for the purposes of this on-the-record review. As part of the 

proceedings, Mahaiwe has a right for a record of this proceeding to be included in the record on 

appeal.5 

Because there is no transcript available, Mahaiwe has 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 prepare a statement of the 

evidence from the best available means, including the appellant's recollection. 

The statement must be served on the appellee, who may serve objections or 

proposed amendments within 10 days after being served. The statement and any 

objections or proposed amendments must then be submitted to the superior 

court for settlement and approval. As settled and approved, the statement will 

be included by the superior court clerk in the record on appeal. 

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

It does not appear that Mahaiwe has served the proposed statement of evidence on the 

City to allow objections or proposed amendments. In addition, V.R.A.P. 10(d) is written to apply 

to those who are appealing a superior court decision 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 conclude that the statement of evidence, along with 

objections and proposed amendments, should have been 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 meeting. We 

have no reason to believe that these should be part of the record, unless introduced as evidence during a formal 

part of the proceeding. Our decision here is limited to holding that the events that occurred within the sketch plan 

review proceeding are part of the proceeding on appeal. 
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and approval. The DRB would then be required to forward the statement to this Court as part of 

the record. This procedure has not been followed here. 

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, slip 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 difference arises about whether 

the record truly discloses what occurred in the superior court, the difference must 

be submitted to and settled by that court and the record conformed accordingly. 

Except as provided in Rule 10(b), if anything material 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 certified and forwarded on 

stipulation of the parties, by the superior court before or after the record has been 

forwarded, or by the Supreme Court. All other questions about the form and 

content of the record must be presented to the Supreme Court. 

This procedure also involves the DRB approving the statement before it is made part of 

the record. Because Appellant failed to follow this 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 supplementing 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, 2017, the Court directs that: 

1. Appellant’s brief on the legal issues remaining from 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 before the Court for review of the final 

briefs, research, drafting, and consideration. 

 
Mahaiwe, LLC SP &CU App. (OTR Appeal), No. 121-10-16 Vtec (EO on M. Supplement Record) (09-13-2017) P. 7 of 7.

So ordered. 

Electronically signed on September 13, 2017 at Burlington, 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 Interested Person City of Vergennes 

sshelton