This story by Clare Shanahan was first published in the Valley News on June 19.
HARTLAND — Vermont’s highest court ruled in favor of a farm store planned on Route 5 near the Interstate 91 interchange, paving the way for the project to move forward.
In a split June 13 ruling, the Vermont Supreme Court rejected an appeal from the Hartland Planning Commission and upheld a lower court’s decision that the proposed 9,000-square-foot Sunnymede Farm Store is permitted under Vermont’s Act 250 and the Hartland Town Plan.
Plans for the project include a two-story, barn-style farm store, deli and bakery with a 46-space parking lot on a property two miles from Sunnymede Farm. Both the 600-acre cattle and maple operation and the store property are owned by Florida real estate developer Aubrey Ferrao.
“My client is very pleased, but is also saddened that the good people of Hartland had to pay for this completely senseless appeal,” James Goss, an attorney representing Sunnymede, said in an email statement about the ruling Wednesday.
Ferrao bought the 17-acre farm store property in 2018 and the District 3 Environmental Court awarded Sunnymede an Act 250 permit for the project in 2023.
Shortly after the permit was issued, the Hartland Planning Commission and Two Rivers Ottauquechee Regional Commission filed an appeal that Vermont Superior Court Judge Thomas G. Walsh denied last summer.
The two planning commissions argued that the development constitutes “strip development” that extends construction along highways and contributes to sprawl outside of village and town centers, so it does not comply with Act 250. They also argued that it does not align with the town and regional plans because it is in a rural area.
Walsh argued that the development “makes efficient use” of space and infrastructure so it doesn’t constitute strip development. He also said that no provisions in the planning documents use strict enough language to deny the project.
After the first unsuccessful appeal, the Planning Commission forged ahead alone, appealing the Vermont Superior Court decision to the Supreme Court.
The commission’s decision to file the second appeal prompted some backlash and confusion from others in town, including the Selectboard, the Valley News reported at the time.
With no zoning code, development in Hartland is largely guided by state law and the town and regional plans. In its second appeal, the Planning Commission argued again that the farm store should not be allowed under Act 250 or the town plan.
The Supreme Court found that the project constitutes “strip development,” a change from the lower court ruling, but argued that because it is “agricultural in nature and unlikely to attract other commercial development” it is still allowed under Act 250, Vermont Supreme Court Associate Justice Nancy J. Waples wrote in the decision.
The other piece of the Planning Commission’s argument was that the farm store is not allowed under the Hartland Town Plan because it is in a designated rural area.
Under the Town Plan, only “low density residential development” is allowed in rural areas, the Planning Commission argued. But, the plan also describes the area around I-91 as a “‘Rural business area’ and encourages further business development there,” according to the court ruling.
Because this language “is so internally inconsistent with the rest of the town plan,” it doesn’t provide clear guidance and can’t be enforced, Waples wrote.
The Planning Commission is “obviously disappointed” in the decision, but “we consider the case over with now so we’ll have to move on,” Vice Chairman Dan Jerman said in an interview.
For its part, the Selectboard did not issue a response to the ruling as a group, Selectboard Chairman Phil Hobbie said in a Thursday interview.
But, in his opinion, “the writing was on the wall when our regional planning commission, Two Rivers, decided not to make the appeal once they lost the first appeal.”
The town spent a total of $28,000 for both Sunnymede appeals, Hobbie said.
Lengthy legal process
The Sunnymede project and extensive legal fees have inspired controversy in town.
Early this week, Planning Commission chairman Dave Dukeshire resigned via email after posting about the project in the Hartland Listserv.
On Tuesday evening, other Planning Commission members “firmly” requested in an email that Dukeshire not post again until the Planning Commission could discuss the issue at an upcoming meeting because he had caused “inflammatory Listserv replies at a time when the HPC is trying to approve a new town plan and create a bylaw.”
Two hours later, Dukeshire resigned.
Moving forward, the Planning Commission and Selectboard are taking some of the lessons from the lawsuit into account as they update Hartland’s town plan.
The two groups and the regional planning commission are also planning to work together to write a set of unified development bylaws that will help to formally regulate some portions of the town plan, including for housing projects.
A contract with Two Rivers to work together on the plan was finalized in early June.
The town plan was originally set to expire in May but when a new town plan was not ready, the Selectboard voted to readopt the 2017 Town Plan in the interim.
“We did not want to leave the town vulnerable,” Hobbie said of the readoption of the old plan. Work on a new plan is ongoing and slated to be finalized in the fall.
Ahead of the May deadline, the Town Plan was “very close” to being ready for Selectboard review, but there were outstanding questions with the lawsuit still pending, Jerman said.
“We didn’t know how far we needed to take the town plan, so rather than pass something and invest all the time and possibly make a mistake if we got an adverse court ruling we decided to just put the other plan in place,” Jerman said.
Now, the Planning Commission is “wrestling” with how to include clearer language in the land use portion of the plan — a point that the Supreme Court said was lacking — and add language that will let them write other land use regulations in the future that they can enforce, like the unified bylaws or a zoning code, Jerman said.
As for the farm store, there is “no definite timeline” for construction yet because a “great deal of preliminary work” such as hiring contractors and other vendors for the project has to be done before breaking ground, Goss, the store’s attorney, said.
