The Vermont Environmental Court denied Rich Rivers' appeals of local and state permits for a proposed quarry on 93 acres north of Moretown Village, along Route 100B.
The decision, six years in the making, relies heavily on legal precedent and the definitions of what characterizes undue adverse impacts.
"It's a 70-page decision. We're going to give it the review it deserves
and then decide what's next," said Jim Caffry, attorney for Rivers. If
this decision is appealed, it goes to the Vermont Supreme Court. An
appeal must be filed in 30 days.
David Grayck, lawyer for the project opponents, called the decision well supported by the evidence and said the decision showed that the quarry did not fit into the existing neighborhood. "In this regard, the Court's decision implemented the basic principle that Vermont's environmental laws are there for the protection of the public, not any single or group of individuals. Given the strong evidentiary foundation to the court's decision, there are virtually no grounds whatsoever for a reversal by the Vermont Supreme Court, if there is an appeal," Grayck said.
Rivers applied for and was denied conditional use approval from the Moretown Development Review Board for the proposed quarry in 2004. In 2007, he was denied an Act 250 permit for the project. Rivers appealed both decisions to the Vermont Environmental Court. The appeals were heard in 2008 and 2009 and upon issuance of the decision on March 25, Judge Thomas Durkin apologized for the time it took to render a decision.
"The Court has reviewed the nearly 1,000 pages of post-trial filings submitted by the parties, as well as the evidence admitted at trial, other relevant filings, and the Court's own trial notes, which together take up four bankers' boxes. Even in light of this volume, the undersigned has allowed these consolidated appeals to remain under advisement for far longer than was reasonable, thereby causing a substantial delay in the current resolution of these appeals. The undersigned regrets this error and has attempted to craft a complete Decision on the Merits, so as to not contribute to further delay in these proceedings," Durkin wrote in the 70-page decision.
Durkin's extensive analysis of the project finds that despite vehement opposition from the town and project abutters and neighbors, the proposed quarry met 7 of the 10 Act 250 criteria. He found there would be no air or water pollution, no impact on well water supplies, wildlife or soil erosion, no negative impact on highways, the school or town services. He found further that the project would not have a negative impact on traffic on Route 100B.
Durkin rejected neighbors' claims that the quarry had a negative impact on property values and rejected town claims that quarry operations and trucking would worsen noise levels at the Moretown Elementary School.
As proposed, the project would yield 75,000 cubic yards of gravel annually for 33 years and between 39 and 54 daily round-trip truck trips to the site during its 160 days of annual operation per year.
UNDUE ADVERSE IMPACT
The project was denied because it failed to meet Act 250 Criteria 8, 9(E) and 10. Criterion 8 deals with undue adverse effect on aesthetics, scenic beauty, historic sites or natural areas. Criterion 9 (E) covers conformance with the town's capability and development plan concerning the extraction of earth resources and Criterion 10 considers whether a project is in conformance with local or regional plans, including the Town Plan.
Durkin's denial relies on two legal precedents, The Brattleboro Chalet decision and the Quechee decision. In the Brattleboro case, the former Vermont Environmental Review Board denied an applicant who wants to build a 103-room motor lodge within 200 feet of I-89. Other similar motor lodges existed along I-89, but none on that section of highway.
In that decision, the Environmental Board ruled that the structure was a large rectangular monolith, the design of which failed to consider the unique features of the site, character of the land surrounding the site or the scenic qualities of the general area. The board concluded that the lodge would be "an intrusion on the scenic enjoyment of the traveling public," basing the conclusion on the designation of the highway as a scenic corridor and leading the board to conclude the project would have an undue adverse impact on the aesthetics and scenic and natural beauty of the area.
The tenets of the Quechee decision can be summed up with three questions that must be answered as to whether a proposed project has an adverse impact (which alone does not mandate denial) that is also undue. Those questions are: Does the project violate a clear, written community standard intended to preserve the aesthetics or scenic, natural beauty of the area? Does the project offend the sensibilities of the average person? Has the applicant failed to take generally available mitigating steps which a reasonable person would take to improve the harmony of the proposed project with its surroundings?
"We conclude that the proposed Rivers quarry would not 'fit' into its surrounding area, which has been designated and is actively used as a scenic resource, and will therefore bring an undue adverse impact upon this area. The proposed quarry does not conform to criterion 8. The noises and activity that the proposed quarry will bring to this area will be unique; they are not currently experienced in any fashion within the Ag-Res District and along the scenic corridor that is Route 100B. Interestingly, when the former Environmental Board reviewed the area of Williston in which Brattleboro Chalet proposed its development in 1984, the board noted that there were already similar commercial developments not far from the project site. See Brattleboro Chalet, No. 4C0581-EB, at 8-9. However, these nearby, preexisting, commercial developments did not dilute the undue adverse impact the proposed motel would have, in the board's analysis, upon the scenic area in which it was sited. This legal analysis makes the hurdle for the Rivers' quarry even more substantial, given that Rivers must concede that no similar commercial activities exist anywhere near its project site," Durkin wrote.
NEW AND FOREIGN
He went on to site another quarry denial as legal precedent (McLean Enterprises) noting that the noise of quarry would be "so new and foreign to an existing area, the quarry noises will be a recognizable intrusion into the scenic setting."
"This will even be true in the Rivers' neighborhood, which is bisected by Route 100B. The area is known for its scenic beauty and tranquility; it is used by bicyclists, walkers, pavement skiers, fisherman, swimmers, and those simply enjoying a lazy float down the Mad River. The noises emanating from the quarry, most of which will be at or above the sound levels of the background traffic noises, will be a disruption of an intrusion upon the neighbors' and visitors' enjoyment of this scenic area," Durkin wrote.
He ruled that the quarry would have an adverse impact and that it would be undue. "The quarry will contradict the very characteristics that brought the scenic designation upon this area. It will offend the average person visiting the area, expecting to enjoy its scenic quality but not anticipating the noises emanating from the drilling, blasting, crushing and loading of the rock at an adjacent quarry," Durkin wrote.
He concludes with an analysis of whether the project could/would conform with Moretown's zoning and its Town Plan. He noted that the zoning ordinance requires that extraction of earth resources must not cause a hazard to public health or safety or have an undue adverse impact on neighboring properties and uses.
"Since this regulatory language is stated in the alternative 'or,' we focus upon the provision for which we have already found non-conformity: Neighbors will be asked to suspend their use and enjoyment of their property during each of the dozen blasts, for each of the consecutive thirty-three years of operation. We conclude that this constitutes an undue adverse impact upon neighboring properties and uses," he wrote.
Durkin rejected the town's contention that the "steep slopes" language of the Town Plan applied to the proposed quarry but referenced the Town Plan chapter that discusses "Open Space/Scenic Resources." That chapter identifies the Route 100B/Mad River corridor as a major resource.