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Second phase of quarry appeals begins

12/11/2008

By Lisa Loomis

The second phase of a lengthy legal battle over a proposed quarry in Moretown got underway this week at the Vermont Environmental Court.

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 a town development review board permit for the quarry in 2004 and was denied an Act 250 permit on two criteria, air quality and Town Plan conformance, in 2007. 

MERGED

Rivers appealed both and the appeals were merged at the Environmental Court. In addition to Rivers' appeals, the town of Moretown and a group of neighbors are also appealing in opposition to the project.

The first half of the trial in Environmental Court was held last winter and the second half got underway this week on December 8. Hearings are scheduled in Environmental Court from December 8 through 19 and again from January 13 to 15.

Between the first and second halves of the trial, all sides have filed motions to judgment, consolidation, and dismissal along with motions opposing each others' motions. This summer the court rejected a request by the town of Moretown to dismiss Rivers' suit based on the argument that the Town Plan prohibits any development on slopes steeper than 25 percent. The town asked the court for reconsideration.

FOUGHT LEGALLY


Concurrently, Rivers was also working with and appealing decisions from the Vermont Agency of Natural Resources over whether a direct discharge permit is needed and whether an underground injection control permit was needed. Simultaneously, the town and the neighbors fought legally against Rivers' motions.

Prior to the start of this week's trial, the Environmental Court issued a decision addressing three pending issues: 1. Moretown's request for reconsideration on its motion to dismiss; 2. Rivers' motion to consolidate all the discharge cases with ANR; and 3. An ANR motion to dismiss the underground injection control permit appeal filed by the neighbors plus the indirect discharge permit filed by Rivers.

In a November 21 ruling, Environmental Court Judge Thomas Durkin denied Moretown's request for reconsideration and the town's assertion that Policy 7 of its Town Plan can be said to categorically prohibit quarrying and/or development on slopes steeper than 25 percent.

RAISED AND REJECTED

"Motions to reconsider should not be used to repeat arguments that have been raised and rejected by the court in the earlier decision," Durkin prefaced.

"Moretown continues to assert that now the applicant has completed his presentation concerning the project's conformance with the town of Moretown Town Plan, Moretown is entitled to judgment before the close of evidence," Durkin continued.

"To clarify, we note here that the Town Plan contains numerous other sections, more specific to quarry operations that this court would have to ignore to read Policy 7 as the absolute bar that Moretown suggests. For instance, on Page 24 in Chapter 4, the Town Plan states that 'generally, slopes in excess of 25 percent should not be developed' (emphasis added). By using the word 'generally' here, the Town Plan implies that there are at least some circumstances in which such development is acceptable. Thus, Moretown is simply incorrect in its assertion that the Town Plan is entirely consistent," Durkin explained.

NOT AN ABSOLUTE BAR

". . . this Court stands by its decision that the interpretation of the Town Plan in its entirety, including Policy 7, fails the requisite test to be interpreted as an absolute bar to Rivers' proposed quarry. As a whole, the Moretown Town Plan cannot be read as an absolute bar to all manner of development and related activities on slopes in excess of 25 percent. In particular, and in apparent contradiction of Moretown's interpretation of Policy 7, Chapter 4 provides evidence that some manner of development on slopes in excess of 25 percent is acceptable in some circumstances (since they are only 'generally' discouraged). Further, given that quarrying operations tend to take place on or result in steep slopes, an outright prohibition stands in marked contrast to the 'Gravel Resources' section of Chapter 4 which notes that quarrying operations are 'important' and that 'future extraction of these resources should be anticipated.'" Durkin wrote before issuing his denial of Moretown's motion for reconsideration.

Durkin went on to grant a motion by Rivers to consolidate four pending appeals regarding direct discharge permits and granted an ANR motion to dismiss appeals regarding an underground injection control permit and an indirect discharge permit appeal.

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