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Environmental Courts denies Moretown request for summary quarry judgment

07/10/2008


"All parties should now consider themselves warned that high, tight fastball pitches and discovery omissions will meet with little further tolerance," Environmental Court Judge Thomas Durkin.


 

 By Lisa Loomis

The Vermont Environmental Court denied Moretown's request for summary judgment on the proposed Rivers' quarry, ruling against the town's contention that a Town Plan prohibition on the development of steep slopes meant that the quarry should be denied permits.

The court's July 1 decision came as the town select board issued a statement explaining its continued legal opposition to the proposed quarry.

The quarry is proposed by Rich Rivers for a portion of 93 acres north of Moretown Village on Route 100B. Rivers applied for and was denied town permits for the quarry in 2004 and was denied an Act 250 permit on two criteria, air quality and Town Plan conformance, in 2007. Rivers appealed both and the appeals were merged at the Environmental Court.

POLICY 7

Last month, the town asked the court for summary judgment, arguing that the quarry will never be able to conform with Moretown's Town Plan, Land Use Policy 7 because the slopes of the proposed quarry and its work roads are over 25 percent grade. That policy, according to the town prohibits development on such slopes. Rivers' attorney responded that the issue was beyond the scope of the current appeal because Policy 7 was not raised earlier or revealed during disclosure. The town countered, arguing that it only became aware of the steepness of the slopes during the trial (now suspended) in February.  

The court disagreed that the issue was beyond the scope of the appeal, pointing out that "Policy 7 is found in the Town Plan, thus conformance with Policy 7 is necessarily within the scope of review in which we must gauge conformance with the Town Plan," Judge Thomas Durkin wrote.

Durkin considered whether the town's failure to respond to discovery requests from Rivers could be the basis for prohibiting the town from raising the issue of Policy 7 at trail and wrote, "The town's contention that it first learned of the presence of steep slopes on the project site on the first day of trial is difficult for the court to accept. . . . The town surely knew that the project was proposed for steep slopes."

TIGHT FASTBALL PITCHES

Ultimately Durkin did not prohibit the town from raising the issue of Policy 7, writing, ". . . we are not inclined to exert so severe a penalty upon the town as to preclude it from presenting evidence that a Town Plan conformance issue that is otherwise within this Court's jurisdiction. We note for all parties, however, that we will closely review further claims of non-disclosure that may frustrate the efficient resolution of these appeals. All parties should now consider themselves warned that high, tight fastball pitches and discovery omissions will meet with little further tolerance."

Durkin went on to note that there is an inherent inconsistency in the Moretown Town Plan as it recognizes the value of earth resources, yet the town would have it interpreted in such a way that it absolutely bans mining those resources, "given that mining occurs on or results in steep sloping lands."

The town argued that the Town Plan could be interpreted to prohibit all development on steep slopes and cited the Vermont legal precedent of the Flynn/Keystone Development Corporation case.

ANALYSIS DOES NOT END

Durkin first considered whether quarry is included in the town's definition of development and noted that the town relied on the general definition of development "and the definition found in the town's zoning bylaws to conclude that the quarry project is development."

"However, our analysis does not end with that definition. That is, we must look to whether the Town Plan gives adequate notice that Policy 7 intends to prohibit quarry activities on steep slopes -- as a form of development," Durkin continued.

To meet the Flynn case tests, Durkin noted, a provision from a Town Plan is considered to "evince a specific policy" if it "pertains to the area or district where the project is located; is intended to guide or proscribe conduct or land use within; and is sufficiently clear to guide the conduct of an average person, using common sense and understanding."

THE FLYNN TEST

"We conclude that under the Flynn test, while Policy 7 is mandatory, it does not evince a general prohibition against steep slope quarry activities because it is not sufficiently clear to guide the conduct of an average person seeking to develop a quarry in the town. In order to reach the town's conclusion, we would have to ignore the other provisions of Policy 7 that set parameters for home construction, landscaping, lighting and the protection of steep slopes. These parameters seem to focus on the development of structures on steep slopes, and not the removal of steep slopes that quarry activities encompass. To reach the town's conclusion we would also have to ignore the fact that this Town Plan does not generally prohibit the extraction of earth resources,"  Durkin ruled.

He concludes by noting that neither the town nor Rivers played an active role in the permitting process for quarrying operations at the Moretown Landfill, an issue raised by Rivers' attorney in response to the town's request for summary judgment based on Policy 7.

". . . we were intrigued by the fact that substantial quarrying activities were approved and encouraged on the former landfill property -- which had a significant amount of slopes over 25 percent. This fact adds support to our conclusion that Policy 7 is not sufficiently clear to guide the conduct of the average person, in light of the fact that quarrying was approved on the steeply sloped landfill property in the town," Durkin concluded.

SELECT BOARD STATEMENT

The Moretown Select Board, in a position statement read into the record this week at its July 7 meeting, explained its continued opposition to the quarry and its reasons for continuing the legal battle. The board explained that state law limited the town's ability to regulate "landfill-related development."

"Quarrying at the landfill is necessary to its continued functional use. Town regulation such as the Town Plan's steep slope policy is applicable to the proposed Rivers development but does not apply to landfills," the select board wrote in its position statement.

Moretown Landfill Incorporated pays Moretown tipping fees each year for hosting the landfill. In 2007, those fees amounted to $324,528.

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