MONTPELIER — A response has been submitted to a motion filed against a request to reconsider the denial of Act 250 party status for citizens who have challenged a permit for a public parking garage in the Capital City.

The response follows a motion last week by attorney David Rugh, for the city of Montpelier, asking the Act 250 District 5 Commission to reject an appeal by three residents — Daniel Costin, Jeff Parker and Lauren Biren — who were denied party status to an application by the city to build a 348-space public parking garage behind the Capitol Plaza Hotel off State Street.

The garage project is in association with the Bashara family that wants to build an adjacent 81-room Hampton Inn & Suites hotel. Biren has since withdrawn from the appeal.

The residents were concerned about a range of issues that included whether the project conformed to zoning laws, created environmental and safety hazards, restricted access to the riverfront and adversely affected the historic character of the downtown.

Only one other resident, Les Blomberg, was granted partial party status because of his concerns about traffic and safety near his office on State Street.

Rugh argued that the residents had not demonstrated a “particularized interest under Act 250 criteria that is any different from that of the general public.” Rugh said the appellants did not meet “a high bar” to justify their appeal, and would only be permitted to “correct manifest errors of law or fact to present newly discovered evidence,” something the appellants had not done.

Rugh also challenged appellant claims that the Act 250 commission made procedural errors in denying party status. Rugh said the time to do so would have been before or during the commission’s hearing of permit applications.

James Dumont, attorney for the appellants, filed a reply memo with the commission Feb. 24.

“The Applicant (city of Montpelier) objects that new arguments are barred by (Natural Resources Board) Rule 31,” Dumont wrote. “The Applicant is wrong for two reasons: No new argument is being made, as is proven by the recording of the proceeding. Also, Rule 31 allows new argument in response to improper procedures.”

Dumont argued that because the garage application was still incomplete, “the application did not start the clock running for the filing of petitions for party status.”

Dumont noted that “experts” from the Division of Historic Preservation and the Agency of Natural Resources said “they need more information before they can determine impacts on streams, stream banks and historic sites.”

Dumont said improper procedures were used with residents Geoff Parker and Lauren Berin. Berin withdrew from the appeal after Dumont’s latest response was filed.

Dumont said the applicant asked the commission not to rule on their petitions until the applicant had time to consider them and then file objections, if it decided to do so.

“The District Commission gave no indication that it was considering denying the petitions in the absence of an objection by the Applicant,” Dumont said.

Because the applicant said it was considering whether to object to the appellants’ petitions and file its position after the commission hearing, and because the commission did not suggest that it might deny the petitions without consulting the parties, Berin and Parker were not questioned by their own attorney or the applicant’s attorney “to develop in more detail the factual basis for their petitions,” Dumont said.

Dumont said he had no reason to believe that he would be denied the opportunity to study the applicant’s objections to the petitions of residents, if any, and respond.

“Yet, without an objection to the party status by the Applicant, and before giving counsel the opportunity to respond to its own objections, the Commission raised and sustained its own objections. This was unfair and justifies allowance of new argument,” Dumont said, adding that the appellants should be granted status.


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