The legal errors and mistakes in the Vermont Environmental Court decision denying Rich Rivers' application for a quarry on Route 100B in Moretown are spelled out in polite but minute detail in a 36-page filing asking the court to reconsider and alter its decision.

Last month the court denied Rivers' proposed quarry on 96 acres north of Moretown Village, ruling that it would have an undue adverse impact on the town and the Route 100B scenic corridor and that it did not conform with the Town Plan.  That decision was the result of combining an appeal of an Act 250 denial with an appeal of a town decision denying Rivers a conditional use permit.

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.


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.


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.


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).


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.


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."