05/07/2009

By Lisa Loomis

Voluminous findings and rebuttals in the contentious Rivers quarry case were filed by all parties last week, in preparation for what will be the final ruling from the Vermont Environmental Court.

Rich Rivers has proposed a quarry on 19 of 93 acres of land north of Moretown Village. His application for a conditional use review permit from the town of Moretown was denied in 2004. While that denial was appealed, Rivers proceeded with Act 250 review and was denied on two criteria (air pollution and conformance with the Town Plan) in 2007.

The Act 250 decision was appealed by Rivers and both the town and a group of neighbors who opposed the project preserved the right to participate in an appeal of some or all of Act 250's 10 review criteria.

TWO DE NOVO TRIALS

Both the conditional use appeal and the Act 250 appeal were combined into two de nova trials that took place over several weeks in 2008 and 2009. During the course of the trial there have been multiple individual rulings on issues such as steep slopes and direct/indirect discharge permits. Now, finally, all parties were asked for proposed findings and given the opportunity to rebut each others' proposed findings.

The result is a staggeringly large collection of legalese, some of it terse, some emotional and all of it full of conflicting statements and information. The town's proposed findings run 143 pages. Rivers' proposed findings run 121 pages. The Agency of Natural Resources' proposed findings run 11 pages. The neighbors proposed findings run 234 pages. And that is just proposed findings.

Each party rebutted the proposed findings leading to another several hundred pages. The town's rebuttal is 78 pages, Rivers' rebuttal is 56 pages, ANR's rebuttal is 11 pages and the neighbors' rebuttal was 36 pages.

ACT 250 CRITERIA

The town's rebuttal, filed by town's attorney Ron Shems, concludes that the applicant's proposed quarry project does not comply with the town's zoning regulations or Act 250 criteria 5, 6, 7, 8, 9, and 10.

Rivers' rebuttal was filed by his attorney Jim Caffry and counters the town and neighbors' arguments that the project does not meet the Act 250 criteria. For the neighbors, attorney David Grayck argues that the project does not meet town or Act 250 criteria.

Reading through the pages and pages of proposed findings and rebuttals, the quarry proponents and opponents are still focusing on several specific issues. Such issues include whether the project will result in such a significant increase of truck traffic on Route 100B, north and through the village, that it will have an undue adverse impact on the village.

INFRASTRUCTURE

Vis a vis traffic, opponents argue that the trucks will spook the horses on several farms near the proposed driveway of the project and also argue that the trucks will decrease safety in Moretown Village where sidewalks are crumbling or non-existent.

Lawyers for the proponents argue that if Route 100B is not meant for this type of truck traffic, then no highway in Vermont is. The road, they argue, has good sightlines from the quarry driveway and is built to accommodate the quarry traffic, which is only a fraction of the truck traffic on the road each day.

Rivers' attorney Jim Caffry points out that the fact that Moretown's sidewalks are crumbling and that the Moretown Mountain Road where it intersects Route 100B is dangerous reflects the town's inattention to infrastructure rather than a problem with Rivers' project.

DECIBEL RANGES

The noise from trucking and blasting is also hotly contested with decibel ranges often quoted and problems that already exist at the Moretown Elementary School with noise levels exceeding educators' recommendations.

The question of whether the Moretown zoning ordinance's reference to steep slopes applies or does not is the subject of dozens of pages of proposed findings and rebuttals and the issue of whether the town has a double standard for steep slopes and quarries is discussed in light of the fact that there is a quarry with steep slopes at the Moretown Landfill.

Part of the case that deals with the conditional use appeal from the town goes on at great length to discuss whether the quarry will have a significantly negative impact on the character of the area. That bucolic character and the activities that take place therein are described at great length. To counter that, Rivers' attorney sites the legal definitions of impact, adverse impact, and undue adverse impact.

TALK ABOUT THE PROJECT

In response to town claims that Rivers repeatedly refused to meet to discuss meditation or mitigating measures regarding the project, Rivers supplies two affidavits, one from him and one from Caffry testifying to efforts made to talk to the town about the project.

The question of whether the project conforms to the Moretown Town Plan is the subject of many, many pages of legalese. Included in the Act 250 criteria of conformance with the Town Plan is the requirement that a project conform to other town ordinances, including the town's zoning ordinances. While Caffry argues that the zoning ordinance and Town Plan specifically permit the extraction of earth resources and spell out conditions under which they could be permitted, Shems and Grayck argue the opposite and site the Town Plan as being abundantly clear on the subject.

All 500-plus pages are now in the hands of Vermont Environmental Court Judge Thomas Durkin.

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