By Tom Ayres , Senior Staff Writer
The Hartland Planning Commission (HPC) has reversed its 5-3 decision on July 17 not to appeal a July 8 ruling by Vermont Superior Court Environmental Division Judge Thomas Walsh that allowed a proposed 9,000-square-foot farm outlet project near the I-91 interchange in the town to move forward. The Hartland commission voted 5-1 at its regular bimonthly meeting on Aug. 7 to rescind that decision and directed its attorney, Peter Raymond of Burlington, to file a notice of appeal of Walsh’s decision. The status of that action was slated to be on the agenda of Wednesday evening’s bimonthly meeting of the HPC at 6:30 p.m. at Damon Hall, six hours after this week’s edition of the Standard went to press.
Here’s an accounting of where things stood with the HPC appeal of the Environmental Court ruling on the Sunnymede Farm outlet store proposal on Tuesday evening.
Last-minute reversal
The HPC action further complicates the SM Farm Shops, LLC deliberations before the Superior Court’s Environmental Division, commonly known as the Vermont Environmental Court. The reason? The appeal wasn’t filed until the morning of Aug. 8, one day after the 30-day statutory limit of Aug. 7 for an appellant to file an appeal. Consequently, Raymond on Aug. 8 also filed a “Motion for Extension of Time for Notice of Appeal” with the Environmental Court. On Aug. 13, the attorney for appellee SM Farms Shop, LLC, James Goss of Rutland, submitted a detailed filing in opposition to the HPC’s motion to extend the time of its appeal, contending that Raymond should have known any appeal had to be filed by Aug. 7 and that the HPC was guilty of “dilatory conduct and lack of organization” in its last-minute reversal of the appeal decision. Neither a spokesperson for the Vermont Environmental Court nor attorneys Raymond or Goss could be reached for comment as to when a decision about the extension of time filing might be ruled upon by the Environmental Court.
The appeal turnaround and timing contradict a report in the Aug. 15 edition of the Standard that neither of the organizations that opposed Walsh’s July granting of an Act 250 permit to the Sunnymede project — the HPC and the Two Rivers-Ottauquechee Regional Commission (TRORC) — intended to appeal. The HPC did not broadly announce its Aug. 7 change of course on the appeal issue, other than to direct Raymond in open session to file the appeal, nor did the commission alert the Hartland Town Selectboard of its reversal. Hartland Municipal Manager John Broker-Campbell and Selectboard Chair Phil Hobbie confirmed at the regular selectboard meeting Monday evening that the board had previously approved a special allocation to the HPC to pursue the initial appeal of Walsh’s July decision in collaboration with TRORC, the lead appellant.
Jay Boeri, the clerk of the HPC, reported on the commission’s change of heart on the appeal in the draft minutes of the Aug. 7 meeting. The minutes do not include a roll call tally of the 5-1 vote to appeal, nor did the minutes of the July 17 meeting offer a roll-call breakdown of that meeting’s 5-3 vote against appeal, despite the requirements of the State of Vermont’s open meeting “sunshine” statutes. Boeri said that neither of the two meetings were recorded via Zoom because “we’ve had technical issues with that.” He declined to provide a commissioner-by-commissioner breakdown of either the July or August appeal votes during a brief phone conversation Tuesday afternoon, contending that information would be available at the Wednesday evening, Aug. 21 meeting of the HPC — again, after this issue of the Standard went to press.
Selectboard concerns
The ongoing kerfuffle over the Sunnymede farmstand issue is the latest in a series of contretemps between the HPC and the Hartland Selectboard, dating back nearly a year, when the selectboard declined to accept a new Town Plan put forward by the planning body, sending it back to the commission for continued review and revision — a process that is still going on. The Town Plan issue is related to Walsh’s July 8 ruling on the SM Farms Shop, LLC Act 250 permit, since the judge ruled that the proposed “Farm Store makes efficient use of land, energy, roads, and other infrastructure without contributing to a pattern of strip development” in compliance with Act 250 and that the vague language of the current Hartland Town Plan offers no regulatory provision to deny permitting of the Sunnymede project.
At Monday evening’s Hartland Selectboard meeting, both Hobbie and Selectperson Tom Kennedy voiced concerns about the HPC’s decision to pursue an appeal of the Environmental Court ruling, particularly because appeals of the court’s decisions are heard by the Vermont Supreme Court — a potentially costly and extended legal process. Both Hobbie and Kennedy — the former executive director and current director of community development for the Mt. Ascutney Regional Commission, with extensive knowledge of Act 250 permitting and appeals processes — voiced concerns about the potential legal costs to the town of the ongoing appeal and the likelihood of the HPC prevailing upon appeal, especially given the fact that the TRORC, which has historically and on occasion successfully appealed Environmental Court decisions to the Vermont Supreme Court, has declined to appeal Walsh’s July farm outlet store decision. The HPC is now acting on its own in moving forward with its appeal.
“[Hartland Planning Commission] Chair Dave Dukeshire attended [the selectboard meeting on July 29] and mentioned that the commission voted to not appeal the recent court decision to deny the appeal of HPC and Two Rivers,” Hobbie said Monday evening. “At the Aug. 7 meeting of the HPC, it was discussed that the HPC rules allow a revote of the July 17 HPC vote. The vote this time was to file an appeal of the ruling all the way up to the Vermont Supreme Court . . . I find it very interesting that Two Rivers is not filing an appeal at all. Our main surprise is that our Planning Commission did not follow the lead of Two Rivers, which has greater experience with this. Tom [Kennedy], I would say, has greater experience with this,” Hobbie continued. “There is no action for us to take this evening and we’ll pay attention to see what’s coming down the road as fiscal stewards of the town and what the Supreme Court appeal would cost and what the liability of the town would be. I’ve asked Tom to make some additional comments, given his experience in this area.”
Kennedy spoke up next. “My first comment is that we had a representative of the Planning Commission in here just two weeks ago, telling us that they weren’t going to appeal. And I think that as a professional courtesy to us, they could have emailed the chair to say they’d had a change, that there was a new meeting, and that they decided to appeal the decision,” Kennedy commented. “Secondly,” the selectperson added, “it is one thing to appeal a decision to the Environmental Court and it is a whole ‘nother thing to appeal it to the Supreme Court. It is not just the Planning Commission that is appealing to the Supreme Court — it is the Town of Hartland.
“We are not appealing from a position of strength,” Kennedy continued. “The Environmental Court judge made it very, very clear that because our Town Plan is vague and we lack any type of bylaws to back up the matter of this thing, we’re not going to succeed. We’re not going to succeed at all. My experience has been that whenever there is an appeal, the Planning Commission goes to the selectboard as a courtesy and says, ‘We want to appeal.’ Certainly, you come to the selectboard as far as going to the Supreme Court [is concerned]. Generally, the Planning Commission goes out as a courtesy to the selectboard to say, ‘We want to appeal this.’ There was never a discussion [of this]. I have tried to call our attorney to see if we as a selectboard can take any action as far as funding this… We’ve been struggling with our relationship with the Planning Commission — and it just doesn’t help us with trusting the Planning Commission. We need to work better as a community — and, as I said to Mr. Dukeshire at the last meeting, we need to develop a better Town Plan and until we develop some type of bylaws, we are going to continue to struggle with Act 250,” Kennedy concluded.
Dukeshire could not be reached for comment on the Sunnymede permit standoff as of press time.