Attorney Ron Shems, for the town and on behalf of the select board, planning commission and school board, asked the court for summary judgment, arguing that because the slopes of the proposed quarry and its work roads are over 25 percent, it will never be able to conform with Moretown's Town Plan, Land Use Policy 7.
SUCH SLOPES
That policy, Shems writes, prohibits development on such slopes. That argument, countered Rivers' attorney Jim Caffry, is tantamount to "gotcha" litigation. Caffry argues that the town's request for summary judgment is beyond the scope of the current appeal before the court -- which Shems counters in a subsequent filing, charging that the de novo nature of appeals before Environmental Court opens up the issue of Policy 7.
The town's request for summary judgment is based on its assertion that the Town Plan Policy 7 always and unconditionally prohibits any development on slopes over 25 percent grade. The grades at the quarry range from 15 to 60 percent, the town suggested. That fact alone means the project will never conform with the Town Plan and must be dismissed. Shems relies on the definition of "development" which appears in Act 250 law and the town's zoning ordinance to argue that Policy 7's prohibition of "development" on steep slopes precludes the quarry from conforming with the Town Plan.
SELECTIVE QUOTING OF THE ORDINANCE
Caffry dismisses the use of other definitions of development as irrelevant and goes on to point out that Shems is using "selective quoting of the language in Chapter 4 [of the Town Plan] regarding 'steep slopes.'"
"When read in its entirety, the 'steep slopes' section is clear that the 'development' concern on steep slopes is not the extraction of earth resources, but rather the construction of inadequately designed roads, buildings and septic systems," Caffry wrote, providing the full text of the Town Plan on that issue.
He continues, asking, "What did the planning commission intend to prohibit in Land Use Policy 7? Specifically, what is the definition and scope of the word 'development' in that policy?"
QUARRY SITE
Caffry points out that while the town is discussing "development" proposed for steep slopes, Rivers' proposed extraction of earth resources will remove the slopes, regardless of grade, within the 17-acre quarry site.
"Upon completion of each phase of the project, the end result will not be a slew of residential homes or condominiums that will raise concerns over 'erosion control, runoff and septic design.' The end result will be quarry walls and the nearly horizontal quarry floor and benches," Caffry wrote.
GOTCHA LITIGATION
"Compliance with Land Use Policy 7 of the Town Plan is not one of the issues on appeal. It is more than a little surprising that the town would file such a 'gotcha' style pleading after having been ordered by the court to more carefully delineate its issues on appeal," he continued.
Finally, Caffry argues that the town's motion conflicts with prior interpretations of the Moretown Town Plan regarding development, the extraction of earth resources and steep slopes. He cites quarrying permitted in Moretown at the Moretown Landfill where 80,000 cubic yards of crushed rock will be extracted over a two- to four-year period with a second area reserved for quarrying in the future. That project was approved by the town in October 2006. During Act 250 hearings for that project, the town did not raise the issue of Land Use Policy 7 nor did the District 5 Environmental Commission cite it in issuing a permit for the quarrying.
"The town appears rather certain that Land Use Policy 7 prohibits the Rivers' project from conforming with Criteria 10 [conformance with the Town Plan under Act 250]. How, then, can the town be party to and beneficiary of the landfill quarry that has slopes of greater than 25 percent over 91 percent of its surface area?" Caffry asked.
RED HERRING
Shems, in response, writes that Caffry is raising misplaced "red herring" arguments to try to avoid the Town Plan's Land Use Policy 7. He writes that it is valid to raise Policy 7 now, even though it had not previously been raised, because the steepness of the slopes was revealed during seven days of trial last February. Reiterating that the de novo nature of the appeal allows the town to raise this issue, Shems points out that all parties agree that the Rivers project will be located on steep slopes.
The de novo nature of Environmental Court proceedings, he points out, means that all aspects of how the project may or may not comply with the Town Plan are relevant, legal questions.
Raising these questions now, he writes, is not "gotcha" litigation but rather a case where "the facts were not recognized prior to trial."
NOT RELEVANT
"The fact that the town did not include arguments about Land Policy 7 in its discovery responses is not relevant. . . . The exact slopes in the project were only first discovered the morning of the town's cross-examination. . . . This is not 'gotcha' litigation. . .," Shems wrote.
Shems argues that the issue of whether development impacts on steep slopes can be mitigated with proper runoff and erosion controls is irrelevant because Land Use Policy 7 is definitive that development over 25 percent is prohibited.
He concludes with reference to Caffry's citing of the quarry at the Moretown Landfill (MLI) and says that "what may or may not have occurred in the MLI case is wholly irrelevant to this case. Contrary to the applicant's suggestion, that case did not analyze -- or even mention -- Land Use Policy 7. It was based on different facts and was decided under a different regulatory regime."
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