06/10/2010

By Lisa Loomis

Opponents of the proposed Rivers' quarry on Route 100B in Moretown filed their own responses to Rivers' request that the Vermont Environmental Court alter its decision denying the quarry last week.

Vermont's assistant attorney general also filed a letter on behalf of the Vermont Agency of Transportation (VTrans) expressing concern about the decision, specifically the fact that Judge Thomas Durkin's denial is based in part on the fact that Route 100B is considered a scenic byway.

SCENIC CORRIDOR

The Environmental Court denial of the proposed quarry included several references to the fact that Route 100B is part of the scenic byways program noting that the proposed quarry would have serious impacts for that scenic corridor.

That prompted Rivers' attorney Jim Caffry to file a motion for the court to reconsider and alter its decision last month. That motion, among other things, found fault with the court's analysis of whether the project conforms to the Moretown Town Plan. Part of that analysis relies on the designation of Route 100B through Moretown and north to Middlesex as a scenic corridor by the state of Vermont.

Caffry noted that to use the scenic corridor designation to restrict or prohibit development was counter to the enabling statute and further noted that it was specifically not to be used in the Act 250 review process.

TOWN PLAN

The Environmental Court decision 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.

On June 2 Assistant Attorney General William Rice sent a letter on behalf of VTrans to Judge Durkin echoing Caffry's concern about misinterpretation and use of the scenic byways designation.

Rice quotes the enabling statute noting that the scenic byways 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 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) 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."

NOT FOR ACT 250 REVIEW

"John LaBarge, the manager for the Vermont Byway Program, reports that select boards almost universally ask about the regulatory impact of the byway designation on economic development. In accordance with the Manual, they are informed that the designation is intended as recognition of the resource and not to be used to regulate development. VTrans believes that use of the byway designation in an Act 250 case will have a chilling effect on new byway applications and recertifications. Loss of designated byways will lead to loss of federal grants and potentially will harm tourism in those parts of the state," Rice wrote.

For their part, the neighbors and the town, in their responses to the request to alter the decision, affirmed Durkin's ruling and took issue with other aspects of Caffry's request particularly regarding "flyrock." Flyrock is loose rock that flies outside a quarry's boundaries during blasting.

Caffry argued that the ruling required that virtually no flyrock escape ever and that the decision created an unattainable standard for any quarry developer. The neighbors argue that Caffry's analysis of traffic and truck counts is inaccurate, that the noise levels will be higher than he suggests, and that Caffry's dissection of the court's use of the McLean legal precedent was wrong.

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