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Attorney Andrew Lechner, representing a neighbor to property owned by John Babson on South Stream Road in Pownal, argues before the town Development Review Board against allowing Babson a business permit for the parcel in a residential zone.

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POWNAL — An hour into the third Development Review Board meeting on his application for a business in a residential zone, John Babson seemed to pull the plug by announcing he was withdrawing his request.

The DRB quickly made a motion and voted unanimously to end consideration of the application and closed the hearing.

However, opponents of the plan said Thursday they have learned Babson will return with a modified application he hopes will lead to permitting for business uses on the South Stream Road property.

Babson could not be reached following the meeting for comment on those reports.

LEGAL ACTION?

Babson’s decision to withdraw the application followed a sometimes heated debate that has continued across DRB meetings in March, April and on Wednesday evening. The board also conducted two site visits to the parcel he owns at 2853 South Stream Road, near the intersection of Maple Grove Road.

Looming over the process has been the strong likelihood of an appeal to the courts by an abutter if the DRB approves a business use for Babson — or grants him a zoning variance or other relief to allow solid waste hauling and logging businesses in a residential zone.

Attorney Andrew Lechner, of Facey Goss & McPhee of Rutland, who represents abutter Deborah Eaton, of 2090 Maple Grove Road, laid out for the DRB his opinion that the Pownal zoning bylaw – updated in 2021 – does not allow such a use in the residential district.

In addition, he said, the DRB and zoning administrator are expected to follow specific guidelines for permitting or for granting a variance that have been upheld in Environmental Court cases and appeals to the Vermont Supreme Court.

Concerning the idea of a zoning variance, which had been suggested during the meetings, Lechner read from the town bylaw and from court decisions that held five conditions must be met for a municipality to grant a variance, adding that at least four of those can’t be met by the proposal before the DRB.

“It’s very clear that this [proposal] doesn’t qualify,” he said.

One condition, he said, restricts variances to issues such as lot size or slope that prevent a reasonable use of the property if a plan had to meet every zoning requirement. He said there is no issue in this case of a reasonable use being prevented because of lot size or other factors, since a house would be a permitted use in the zone and the lot is suitable.

QUESTIONS RAISED

Zoning Administrator and Select Board Chairman Michael Gardner and members of the DRB raised several questions Wednesday about Lechner’s interpretations, such as whether a home occupation business, which is allowed in the district, might be permitted should Babson also build a home on the site – a building he also has sought a permit for from the town.

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Lechner replied that Babson’s businesses could not meet the definition of a home occupation, required to be conducted entirely within the residential structure within a specific amount of space.

Babson, who has said he would park refuse hauling, dumpsters, logging and other equipment and trucks on the site, contended that his business office is actually on Gage Street in Bennington.

Former Planning Commission and DRB member, attorney F. Sydney Smithers, said he helped draft the town bylaw approved by voters in 2021. He said he was “concerned we’re getting off the track and off the guardrails” in considering Babson’s proposal.

Smithers said a major intent of the bylaw was to “give the assurance that neighborhoods would stay the same ... I think we are getting away from that in this particular case.”

Toward the end of the hearing, Gardner said he didn’t think Lechner should be allowed to continue raising issues about legal matters, as he represents someone “who has threatened to sue the town,” until town counsel could also be present.

Lechner said he was giving some context to remarks about why his client opposes the application.

He added, “This all comes down to what the permitted uses are in the rural residential district. And the uses in the permit application, in our opinion, clearly don’t fit any of them.”

Realtor Paul Harsch, who represents Eaton in her effort to sell her Maple Grove Road property, and has been critical of the Babson application, reiterated Wednesday that “you, as a board, do not have a right to grant a variance, or even a permit.”

Babson was then asked if he had any comment, and he responded that he was withdrawing his application. He added, however, “Everything I need is already there.”

Harsch said Thursday he has learned that Babson is expected to apply again, this time contending that there was a prior business use on the property, and he might be seeking a continuation of a nonconforming use permit.

“We anticipate that approach,” Harsch said, adding, “It won’t fly either and will be a waste of time.”

The prior use on Babson’s land was labeled as “residential,” Harsch added, on the then-owner’s application to the town.

The town officials were essentially “enabling a violator” by not informing Babson from the beginning that a business use is not allowed in the district, Harsch contended.

In addition, forcing abutters to defend the bylaw provisions at their own expense amounts to “an unfair tax on some individuals,” he said.

Jim Therrien writes for Vermont News and Media, including the Bennington Banner, Manchester Journal and Brattleboro Reformer. Email jtherrien@benningtonbanner.com

Reporter/editor

Jim Therrien reports for the three Vermont News and Media newspapers in Southern Vermont. He previously worked as a reporter and editor at the Berkshire Eagle, the Bennington Banner, the Springfield Republican, and the former North Adams Transcript.


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