                                      STATE OF VERMONT
                      SUPERIOR COURT – ENVIRONMENTAL DIVISION

=======================================================================
                   ENTRY REGARDING MOTION
=======================================================================

In Re Grist Mill Horse Barn Redevelopment Plan (2nd Appeal),               Docket No. 89-5-09 Vtec
    (Appeal from City of Vergennes DRB on-the-record determination)

Title: Motion for De Novo Review (Filing No. 1).
Filed: June 3, 2010
Filed By: David J. Shlansky, Attorney for Appellant Mahaiwe, LLC
Response in Opposition filed on 06/11/10 by Appellee City of Vergennes

___ Granted           _X_ Denied            ___ Other

        Given the procedural history of the land use application now before us, these proceedings
cry out for an efficient resolution that brings immediate finality. The current application now under
appeal is a close mirror of a predecessor application that was first filed with the City of Vergennes
Development Review Board (“DRB”) in 2008. This Court ultimately determined that that
application had to be remanded to the DRB, due to a lack of findings that supported its on-the-
record (“OTR”) determination. See In re Grist Mill Horse Barn Redevelopment Plan, No. 205-9-08
Vtec, slip op. at 8–10, 13 (Vt. Envtl. Ct. Apr. 13, 2009) (Durkin, J.). Upon remand, the DRB again
denied the application, but when the matter came before this Court in the above-referenced appeal,
it was learned that the DRB had failed to preserve an audible record of the OTR proceedings.
       By its motion, Applicant Mahaiwe, LLC requests that this Court avoid remanding the
pending application back to the DRB for a third review, and asks instead that the Court conduct a de
novo review of the pending application. Given the procedural record, Mahaiwe presents a
compelling argument, but it offers no legal foundation for this Court to ignore the legislative
decision by the City of Vergennes that appeals of its land use determinations are to be reviewed on-
the-record. Our independent research has also found no authority to support our de novo review. In
this regard, we note that Mahaiwe’s reliance upon the Supreme Court’s Dunnett decision is
misplaced, since the Court determined there that the Town of Ludlow had failed to complete the
adoption of necessary procedures for OTR review. See In re Dunnett, 172 Vt. 196, 198–199 (2001).
Of the cases cited by the parties, the most analogous to the case at bar resulted in remand: In re
Sprague Farms, LLC, No. 107-6-08 Vtec, slip op. at 12 (Vt. Envtl. Ct. Nov. 4, 2008) (Wright, J.)
        Our research also revealed an appeal where, in fact, this Court conducted a de novo review
of evidence submitted in an OTR proceeding; on appeal, the Vermont Supreme Court vacated that
determination and remanded the application back to the municipal panel, with direction that it
conduct “further factfinding” under its self-imposed OTR procedures. See In re Leikert, No. 2004-
213, slip op. at 2 (Vt. Nov. 10, 2004) (unpub. mem.).
In Re Grist Mill Horse Barn Redevelopment Plan (2nd Appeal), Docket No. 89-5-09 Vtec (Aug. 5, 2010)   Page 2.




       While we regret prolonging the review of Mahaiwe’s pending application, we remain
convinced that remand is the most efficient recourse to correct the deficiencies in the DRB’s record.
To do otherwise would only condemn the parties here to more protracted proceedings, similar to
that which occurred in Leikert. For these reasons, we conclude that Mahaiwe’s request that this
Court conduct a de novo review of its pending application must be DENIED.
        One further request remains for our review: Mahaiwe asks that we conduct a hearing on
their motion for a de novo review of their pending application. We would be inclined to conduct
such a hearing, if we had been presented with a single citation to a statute or caselaw that suggested
that an appeal, properly before this Court as an OTR appeal, could nonetheless be reviewed de
novo. Since we have received no such citation, we decline to hold a hearing on Mahaiwe’s pending
motion. See V.R.C.P. 78(b)(2) (“[T]he court may decline to hear oral argument and may dispose of
the motion without argument.”). Rule 78 hearings are often most appropriate where evidence must
be received to assist in the adjudication of the pending motion. Id. We regard a hearing on the
pending motion as unnecessary, since no evidence would be taken. Mahaiwe’s request for a hearing
on its pending motion is therefore DENIED as well.
         Our determinations here leave us with an unresolved procedural question: what to do with
the pending OTR appeal. As the parties have properly noted, the applicable procedural rules
provide a mechanism by which the parties may reconstruct a deficient record, so that an appellate
court may complete its OTR review. See V.R.A.P. 10(c) and (d). The latter provides a means by
which the parties, by agreement, may reconstitute the record for appellate review; the former
provision provides a means to reconstruct the record in the absence of an agreement between the
parties.
        In the absence of a record that substantiates the factual findings and legal conclusions
announced by the DRB, we will be compelled to void the DRB’s denial of Mahaiwe’s application.
In re Grist Mill Horse Barn Redevelopment Plan, No. 205-9-08 Vtec, slip op. at 6, 12 (Vt. Envtl. Ct.
Apr. 13, 2009) (Durkin, J.). We therefore direct that the parties submit a reconstituted record
consistent with either V.R.A.P. 10(c) or (d) no later than Friday, September 10, 2010. The Court
will thereafter render its determination on the pending appeal, after review of whatever record is
presented.




___________________________________________                ___August 5, 2010___
       Thomas S. Durkin, Judge                                       Date
=======================================================================
Date copies sent to: ____________                           Clerk's Initials _______
Copies sent to:
  David J. Shlansky, Attorney for Appellant Mahaiwe, LLC
  James W. Runcie, Attorney for Appellee City of Vergennes
