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Moretown quarry wins three legal victories

 

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01/31/2008

By Lisa Loomis

A quarry proposed by Rivers Development LLC for 93 acres on Route 100B, north of Moretown, has received three legal victories this month from the Vermont Environmental Court.

The court has ruled that Moretown's Town Plan does not prohibit quarrying in the ag/res district, that on-site crushing of materials is not prohibited in that zone and that applicant Rich Rivers has a vested right to have his project heard under the zoning in place before the town enacted interim zoning banning quarrying.

The project, proposed by Rich Rivers Jr. of Waitsfield, was denied an Act 250 permit last year. Rivers appealed to Vermont Environmental Court where he is concurrently appealing Moretown's refusal to grant a conditional use permit for the project. The Moretown DRB denied the application in 2006.

The Act 250 denial alleged that the project failed to meet Vermont's air pollution standards and failed to comply with the Moretown Town Plan. Rivers appealed those two findings and moved, through his attorney Jim Caffry, for partial summary judgment on the issue and on a motion seeking to dismiss issues raised via questions, by project opponents, including neighbors and the town of Moretown.

The court, in discussing the question of Town Plan compliance, considered Rivers' question of whether Moretown's August 2002 Town Plan allows on-site processing of stone at a quarry in the ag/res district where his land is located. The town and neighbors argued that the Town Plan prohibits on-site processing of stone at a quarry in this district. The court did not address the specific question of whether the quarry complies with the Moretown Town Plan but whether a quarry is permitted in the ag/res district.

The ruling notes that the Moretown Town Plan states, "It is the policy of Moretown to provide for the responsible extraction of renewable and finite natural resources for municipal and commercial purposes." From there, the court examined the town's zoning ordinance where it speaks to the town development review board responsibility to "ensure that the extraction of gravel and other mineral resources does not permanently scar the landscape, adversely impact ground or surface waters, or unreasonably impact adjacent neighbors."

"Therefore, we do not regard the natural resources chapter of the Moretown Town Plan as prohibiting extraction of earth materials. In fact, it encourages such extraction, when adverse impacts can be carefully avoided or mitigated. . . we concluded that the on-site processing of stone at a quarry in the ag-res district is not prohibited. This regulatory language leads us to conclude that quarry activities are not prohibited under the Town Plan and that the design, use and activities on a quarry site are subject to the review and conditional approval by the DRB," the court ruling explained.

The neighbors also argued that Rivers had no "vested" right to apply for a town conditional use permit as the town was considering interim zoning which prohibited quarrying in the ag/res district. The court ruled against the neighbors, noting that Rivers' conditional use application was filed before the legal warning was issued for the interim zoning, pointing out that his application was considered complete and filed in good faith.

The court also rejected the town of Moretown's charge that the quarry is inappropriate for the Mad River/Route 100B scenic corridor which is of 'critical importance' to the community.

" . . . Cross appellant Moretown has not demonstrated to this court that the quarry is located inside the delineated corridor. While the quarry view-shed and traffic may impact the Route 100B/Mad River corridor, the quarry footprint is located outside the corridor," the court wrote.

The case proceeds to trial on February 12.

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