By Rachel Goff

Should rebuilds conform to current codes?

Earlier this month, the District 5 Environmental Commission denied the Mountainside Condominium Association's Act 250 permit to rebuild 36 condominiums that were destroyed by a fire in February of 2014, citing an insufficient stream setback. While the condo association has yet to decide whether or not to appeal the decision, the hearing process uncovered a rift between evolving environmental knowledge and the grandfather clause, which protects an owner's right to rebuild a nonconforming structure within its footprint.

While located in Sugarbush Village, the Mountainside Condominiums are not owned by the resort, Sugarbush director of planning and regulatory compliance Margo Wade clarified. Nevertheless, Wade updated the Mad River Valley Planning District (MRVPD) on the permit denial at their meeting on Thursday, April 9, explaining that if it is not successfully appealed, the environmental commission's decision "could have big implications for other projects statewide, and not just the ski areas."

Mountainside Condominiums received its original Act 250 permit in 1979. At the time, the state allowed for one of its buildings to be constructed 3.75 feet (at its closest point) from the top bank of Rice Brook. After the 36 units in that building burned down in February of 2014, the condo association hired a firm to design and engineer their reconstruction. According to the plans, the new building would be located 4.6 feet (at its closest point) from the top bank of Rice Brook.

According to MRVPD director Joshua Schwartz, in choosing to reconstruct the building in essentially the same spot as before, the association "wasn't making it any worse," from an environmental standpoint, he said. "They just weren't making it any better."

In applying for an Act 250 permit to rebuild, the association received state wastewater permits as well as a permit from the town of Warren, but still the environmental commission denied the application, stating that it was not in compliance with review criteria covering floodways, stream impact, soil erosion and conformance with Warren's Town Plan.

Warren's Town Plan states that all buildings must maintain a 50-foot stream setback, "and that's what they're hanging their hat on," Schwartz said of the environmental commission's permit denial. The problem is, Warren's Town Plan is subject to zoning regulations that include a grandfather clause, "but Act 250 only looks at zoning if the Town Plan is ambiguous," he said, and Warren's "was pretty clear."

In denying the permit, the environmental commission said that "no attempt has been made by the applicant to maintain the stream in its natural condition by scaling the project to the site such that an appropriate buffer is provided." To do so, the decision states that the condo association could reduce the number of units or add off-site parking.

"There's a lot of issues with this project," MRVPD Steering Committee chair Bob Ackland said, highlighting the complicated nature of the rebuild due to the fact that Mountainside Condominium Association has yet to settle its claims with insurance and that all of its owners have to agree on the next steps.

At last Thursday's meeting, Ackland suggested that the environmental commission's denial of the permit could have something to do with the association's proximity to Sugarbush. "Look who's on the board," Ackland said, in reference to District 5 Environmental Commission member Jeff Cueto.

"He's not a fan of ski areas," Wade replied.

Moving forward, "I'm not sure where our role can be," Ackland said, unless the association comes to the planning district to ask for a letter of support.