By Tom Ayres, Senior Staff Writer
In a narrow, split decision, the Vermont Supreme Court last Friday gave the final go-ahead for the construction of a large, barn-style farm outlet store at 88 Route 5, just north of the I-91 interchange at the gateway to Hartland, half a mile from the village center.
Controversy over the 9,000-square-foot store proposed by the owner/operators of Sunnymede Farm in Hartland has roiled the community, causing sometimes prickly exchanges between the town selectboard and the leadership of the Hartland Planning Commission (HPC), ever since Rutland attorney James Goss filed for an Act 250 permit for the project on behalf of client SM Farm Shops, LLC nearly three years ago in July of 2022.
The Vermont District 3 Environmental Commission approved the Act 250 permit for the large farm outlet store in September of 2023, sparking an appeal by the Two Rivers-Ottauquechee Regional Commission (TRORC) to the Vermont Superior Court, Environmental Division, commonly known as the Environmental Court. The appeal, which was filed in October 2023 by attorney Peter Raymond of the Burlington firm of Sheehey Furlong & Behm, who is also the municipal counsel for Hartland, was rejected six months later in April 2024 by Environmental Court Judge Thomas Walsh, who opined that the farmstand project as proposed was in compliance with Act 250 licensing criteria relative to making efficient use of land, energy, roads, utilities, and other supporting infrastructure.
In issuing his decision, Walsh most notably concurred with the District 3 Environmental Commission ruling that the proposed farm outlet store did not constitute strip development as defined in the Act 250 statute and that the Hartland town plan, last adopted in 2017, did not contain mandatory language prohibiting the store from operating in a rural area of Hartland. Following Walsh’s ruling, the TRORC opted not to pursue any further legal remedies in the Sunnymede case. The HPC initially concurred with that decision in August of last year and elected not to further appeal the Sunnymede farm outlet store case before the Vermont Supreme Court, only to reverse course one week later, directing Raymond by a 5-3 vote to file an appeal of Walsh’s April decision before the state’s highest court.
The Burlington-based attorney subsequently filed an initial appellant’s brief before the state Supreme Court on Dec. 6 of last year, and the case had been in the hands of the five Supreme Court justices for six months before the jurors rendered their decision on the appeal late last week.
“We received the Court’s order today in the SM Farms Shop appeal,” Raymond wrote in an email sent to HPC chair David Dukeshire, vice-chair David Jerman, and clerk Jay Boeri early Friday morning. “The Court has affirmed the Environmental Court’s ruling that the Project complies with Act 250. Most of the decision is spent on Criterion 9(L), strip development. The Court agreed with the Environmental Division that the Town Plan is unclear and does not impose a binding restriction on the project. So the permit is affirmed. I’d note that it was a close decision on Criterion 9(L). It was a 3 to 2 decision,” the town counsel for Hartland continued.
According to the 18-page decision filed by the Supreme Court, Justice Paul Reiber, together with Associate Justices William Cohen and Nancy Waples, ruled in Sunnymede’s favor, while Associate Justices Harold Eaton Jr. and Karen Carroll dissented, siding with the HPC. Sunnymede attorney Goss, a partner in the law firm of Facey Goss & McPhee in Rutland, responded to the Supreme Court ruling on behalf of his client, SM Farms Shop, LLC, in an email to the Standard on Monday afternoon. While claiming victory in the case, the Sunnymede attorney also took the opportunity to comment on the merits of the appeal and the HPC and its leadership.
“My client is very pleased but is also saddened that the good people of Hartland had to pay for this completely senseless appeal.” Goss wrote. “As a side note, my client also stated that he hopes that the Town’s experience in this case will result in some meaningful changes to the membership of the Hartland Planning Commission.” Goss added that he wasn’t able to comment on a proposed timeline for construction of the Sunnymede farm outlet store at this early juncture. “There is no one I can put you in touch with at Sunnymede right now,” Goss offered. “But my client indicated to me that there is a great deal of preliminary work still to be done before construction commences, so there is no definite timeline for that yet.”
The full cost to Hartland of litigating the granting of an Act 250 permit for the Sunnymede farm outlet store project before both the Vermont Environmental Court and the state Supreme Court totaled “about $28,000,” John Broker-Campbell, the Hartland municipal manager, told the selectboard Monday evening responding to a question raised during public comment. Contacted early Tuesday morning, selectboard chair Phil Hobbie discussed the Vermont Supreme Court decision, lamented how much the community spent pursuing the case, and spoke about the oft-challenging relationship between the selectboard and the HPC, particularly around budgeting and communication issues.
“I wasn’t surprised by the decision, given the fact that Two Rivers decided not to go forward with any more appeals after the appeal that was lost with the Environmental Court back in July,” Hobbie commented during a Tuesday morning phone conversation with the Standard. “That didn’t bode well from the beginning.” Speaking on behalf of his selectboard colleagues, Hobbie added, “We’re all disappointed that $28,000 was spent on legal fees for these appeals.” Broker-Campbell said that the legal bills, which were accrued throughout the entirety of the Environmental Court and Supreme Court appeals, have been fully paid through the selectboard’s fiscal year 2025 budget for town legal expenses.
Asked about Sunnymede attorney Goss’s stinging critique of the way HPC leaders handled the appeals process, Hobbie was circumspect. “I’ve got to be careful here, because ultimately, we’ve got to get the new town plan done right,” Hobbie said, referring to the 2025 version of the plan that the HPC is currently working on in collaboration with TRORC staff. “There’s a lot of white noise, and we need to just settle down and get the work done. As a town, we are looking at some bylaws that would actually reflect what needs to be reinforced in the town plan, and we’re already engaged with Two Rivers on that, and we are looking at the Planning Commission to pick up and do that work.”
Hobbie next harkened back to a discussion that took place at the previous evening’s selectboard meeting, where both he and selectperson Thomas Kennedy, the former director of the Mount Ascutney Regional Commission (MARC) and the current director of community development for the MARC, both called for reinvigorating discussions between the town governing body and the HPC about the nature of the relationship between the two Hartland government entities. “The whole selectboard has been receiving these emails from the chair of the Planning Commission, and I’ve met with John Broker-Campbell and asked him to help me understand what it is that the commissioners are asking for,” Hobbie related. “I’m missing the point. The question is, what do they want from us right now?”
HPC chair David Dukeshire spoke during the public comment portion of Monday evening’s selectboard meeting, calling for better communication between the board members and the planning body and requesting more funding for support services such as taking minutes at commission meetings and better maintaining records of commission decisions. Near the conclusion of Monday night’s confab, the selectboard directed Broker-Campbell to seek greater clarity from the HPC leadership as to what they are asking of the town leaders. The selectboard will then hold an in-depth discussion of the planners’ needs and wish list at one of the governing body’s two regularly scheduled meetings next month.
The Standard contacted Dukeshire early Tuesday morning for his reaction to last week’s Supreme Court decision in the Sunnymede case and regarding the path forward for the planning body’s ongoing relationship with the selectboard as the drafting of a new 2025 town plan proceeds in the coming months. Much like Hobbie, Dukeshire was measured in his comments because he had not had the opportunity to discuss either the Sunnymede decision or the HPC’s squabbles with the town selectboard with his fellow commissioners.
“I haven’t talked to my other team members, but it’s clear I’m the guy that you’re supposed to talk with, so I’ll give you a little bit,” Dukeshire offered. “We’ve got a big meeting tomorrow night with the [TRORC] to have a conversation about what the town plan should be. The Environmental Court judge and the justices of the Supreme Court decided that the town plan was aspirational — that’s the word they used — as opposed to restrictive or regulatory.
“I don’t want to start something, right? But the folks who’ve written me or who stopped me on the street don’t understand that it wasn’t about the store,” Dukeshire added with regard to the HPC’s appeal of the April 2024 environmental court decision. “It was about [Sunnymede] bypassing our selectboard and going to the [District 3] Environmental Commission and getting a decision that the town plan was too vague. That’s what they called aspirational — and the Supreme Court agreed. Now the challenges are how we look at the new 2025 town plan and make it more clear about where the town wants commercial development to be,” the HPC chair continued.
Dukeshire declined to comment on counsel Goss’s contention that Hartland town officials should consider replacing the HPC members who were most vociferous about appealing the Sunnymede case all the way to the Vermont Supreme Court.
“I would prefer to talk about that in a secondary article because, again, I haven’t talked to my fellow commissioners yet,” the HPC leader said. “This I will say to you: the town is not served if the Planning Commission fails to address violations of the town plan. We were honor-bound to step up and defend the town plan that was passed in 2017. There was no choice for us,” Dukeshire concluded.