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12/17/2009

By Kara Herlihy

Town officials in Moretown told residents that they do not have a specific sum in the current proposed budget for anticipated legal expenses to fight the Rivers' quarry project on Route 100B.

The quarry is proposed by Rich Rivers for a portion of 93 acres north of Moretown Village on Route 100B. Rivers applied for and was denied town development review board permits for the quarry in 2004 and was denied an Act 250 permit on two criteria, air quality and Town Plan conformance, in 2007. Rivers appealed both and the appeals were merged at the environmental court.

LEGAL FEE EXPENDITURES

Ben and Denise Sanders were present at the December 14 meeting of the Moretown Select Board to inquire about potential legal fee expenditures for the coming year.

Denise Sanders asked town officials where their plans for potential legal expenses are reflected in the current draft of the 2010 budget.  "We just want to know where the board is sitting and what you're budgeting for a possible Supreme Court appeal," she said.

Select board chair Rae Washburn told the Sanders' that the board has yet to allocate a specific amount as a line item rather than have money budgeted in the town's general fund. In addition, Washburn said the board is considering including possible legal expenses into a separate article to be brought before the voters in March.

"We don't know what to put in, and it's a very difficult article to word. Ron can't tell us what that is going to be because he has no decision. We do have money in the budget for legal fees," Washburn said.

PRECEDENT

Moretown resident Ben Sanders applauded select board members for their defense of the Development Review Board's decision, the Town Plan, and the zoning regulations, and said that putting something like that in an article "sets a dangerous precedent."

"The zoning is put into place by the voters and to put out a decision in an article is putting a development issue out to a popular vote," he said.

Sanders continued, "It gets away from the notion that we have zoning and DRB criteria with several exhaustive hearings and it's painful that the applicant keeps appealing, but we run the risk of not supporting our zoning and our DRB because people may like development."

DEFENDED THE DECISION

Denise Sanders echoed his sentiment stating, "It's a dangerous slope; by putting it to a popular vote you've made our zoning moot and taken away the power of the DRB and I think it's a very dangerous precedent to go to."

Washburn told Sanders that he thinks the town has defended the decision very well. "If a judge would rule that the decision was wrong, we have to consider that. If the DRB made a mistake in their decision, at what point do we say that the DRB was wrong?" Washburn said.

Denise Sanders said, "The decision is going to be upheld and Rivers will appeal and we have to continue to defend; do we just turn around and let development run amuck or continue to defend the tenants of our town plan, zoning and town?" she asked.

ANTICIPATED LEGAL EXPENSES

"If the decision was to be overturned, that would be unfortunate. The point that we're making is that developers can come in here and bleed us dry and hope that we'll stop. All they need is one 'yes' and for us to stop. The town has upheld the tenets of the town. The DRB did a great job. I think it would be prudent for the select board to budget for a possible defense against Rivers appealing a decision he's not going to like," added Denise Sanders.

Washburn said that town's attorney, Ron Shems, cannot provide a range for anticipated legal expenses because a judge has yet to issue a decision.

Shems was present at the November 23 select board meeting to discuss what town officials might expect for a timeframe to act and what the associated legal costs might be for the different scenarios.

FIVE SCENARIOS

According to the November 23 minutes, Shems outlined the following five scenarios to town officials.

"1. Once a decision comes through from the Judge, there is a 30-day appeal period to file an appeal. There are limited circumstances for extending the 30-day appeal period.

"2. Once a decision comes through from the Judge, the town has ten days to file a Reconsideration request, whereby you ask the Judge to reconsider his decision. If the town loses and wants to file a Reconsideration motion, Shems would be willing to do the work for a 'not to exceed price' which he would determine after he reviews the court decision.

"3. Once the decision comes through, because this is an Act 250 permit, Rivers has the option of revising his original application and re-submitting it.

"4. Once a decision comes through from the Judge and we lose, the next step would be to file an appeal to Supreme Court. That process is pretty straight forward as old evidence is looked at and no new evidence is allowed. Both Attorneys write a brief and that is about it.

"5. An appeal could cost between $20,000-$30,000 depending on what the decision reads, and also whether or not the Neighbor's file an appeal and the Town could be joint with that appeal, in that case the cost should be a lot less. Ron made it clear that the estimate is only an estimate, because it is difficult to determine costs at this time without a decision being out," the minutes read.

NOT ENOUGH TIME

The minutes continue, "Discussion followed about not having enough time to have a vote within the 30-day appeal period and what happens then. Some think a decision is coming sooner than Town Meeting."

Select board member Stephanie Venema said that the town "needs to be looking at the facts and not the popular opinion."

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