This month Rivers' attorney Jim Caffry filed a motion asking the
court to reconsider and alter its decision. The 36-page motion dissects
the Environmental Court decision paragraph by paragraph and precedent by
precedent, citing flaws in legal reasoning, flaws in legal conclusions
and flaws in how the court applied the law.
ANY OTHER CASE
Specifically, Caffry notes that while the court denied the application
under Act 250 review criteria 8, 9E and 10 and certain sections of the
Moretown Zoning Regulations (MZR), many of the court's conclusions are
at odds with its own conclusions in other sections of the review.
"The court's denial under Criterion 9E (earth extraction) and MZR is
based on its conclusion that the Rivers quarry will 'impose an unduly
harmful impact upon area land uses and development' because Rivers'
expert cannot guarantee that an incident of flyrock will never occur.
Rivers is unable to locate any other case requiring such an exacting
standard," Caffry wrote.
He goes on to point out how the court's requirement that Rivers'
guarantee that there is no incidence of flyrock is tantamount to asking
any developer to ensure that there is never an airplane crash, pond
failure, building fires, car crash or any other disaster that might
result in something akin to flyrock. Such a standard, he argues, is
unattainable and cannot be legally applied.
CONTRARY TO VERMONT LAW
Part of the court's analysis of whether the project conforms with the
Moretown Town Plan relies on the designation of Route 100B through
Moretown and north to Middlesex as a scenic corridor by the state of
Vermont.
"Additionally, while the court made a finding about the designation as a
Vermont Byway/Scenic Highway corridor, the court failed to also making
[sic] key findings that it is inappropriate and contrary to Vermont law
to use a scenic byway designation as a means to oppose a development
project," Caffry writes.
"In fact the court repeatedly relies on the Byway designation despite
the clear and unambiguous direction that such reliance is inappropriate
as stated in the preface to the byway nomination package: It is
important to note that the development of a byway is not intended to
affect or influence regulatory review process,'" Caffry continues.
REVIEW APPLICATION
He noted that Rivers filed a conditional use review application for the
quarry with the town of Moretown on May 17, 2004. Project opponents
began efforts to obtain the Byway designation in July 2005.
"Rivers was never surprised when the opponents tried to use the Byway
Designation to defeat the quarry application. However, Rivers was
stunned and dismayed that the court's decision validated the opponents'
efforts to use the Byway Designation as a means to get Rivers' Act 250
application denied. This is all the more so given the fact that there
are several clear directives that a Byway Designation should not be used
to kill a land development project," Caffry pointed out.
He cited several sections of the enabling legislation that created the
Byway Designation program including the following:
"The program provides protection for owners of private property in that
1. Existing land use regulations need not be modified, 2. The program
does not have the powers of zoning or condemnation, 3. Residents in or
along a corridor are not required to participate, 4. The program is
intended to promote economic growth and development in a balanced
manner, and 5. <MI>The program and/or data collected as part of
the program are not intended to be used in an Act 250 hearing, nor would
it preclude any land development otherwise permitted by existing
zoning."<D> (Emphasis added by Caffry).
DISSECTS LEGAL PRECEDENTS
He goes on to take issue with statements by Judge Durkin in the decision
regarding agreement between Rivers' experts and experts of opponents.
He notes that there was no such agreement on the way noise at the
property boundaries was determined, nor was there agreement on how the
amount of traffic and truck trips was determined.
Finally, Caffry dissects the legal precedents relied upon by Judge
Durkin, specifically, the Brattleboro Chalet decision and the Quechee
decision. He suggests that the Brattleboro decision is both out of date
and less relevant than other recent Environmental Court and Vermont
Supreme Court decisions and specifically states that the court made an
error of law in its legal analysis of how the project might impact the
public's use of the surrounding area and the roads.
The Quechee decision is often cited as a precedent to determine whether a
project will have an undue adverse impact on the area for which it is
proposed. It includes several specific questions that must be answered,
such as whether the project violates a 'clear, written community
standard intended to preserve the aesthetics or scenic beauty of an
area,' and whether a project offends the sensibilities of an average
person because it is out of character with the surroundings.
VERY DISCONCERTING
Caffry comes back to the court's reliance on the Scenic Byway
Designation as part of its denial of the project and writes: "The
court's apparent reliance on Vermont Byway/Scenic Highway designation is
very disconcerting. The actual Mad River Byway, designated by the
Vermont Transportation Board on February 17, 2006, cannot be considered
by the court as a 'clear written community standard' under Criterion 8.
This is contrary to both Vermont Scenic Roads statute and the Vermont
Byways Manual. The program manual could not be any clearer that the
Byway designation is 'not intended to be used in an Act 250 hearing.'"
Regarding the standard of offending the sensibilities of the average
person, Caffry returns to the noise level at the edge of the property,
which he argues will not exceed the background traffic noises and asks
that the court explain how that could be offensive or shocking to the
average person.
He also cites a Vermont Environmental Board ruling form 2005 where the
board (which became the Vermont Environmental Court) found that "because
[the applicant] has no control over the noise created by passing
vehicles and aircraft, the board believes it is reasonable to establish a
maximum average noise level, rather than a maximum noise level."
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