"It's a 70-page decision. We're going to give it the review it deserves
and then decide what's next," said Jim Caffry, attorney for Rivers. If
this decision is appealed, it goes to the Vermont Supreme Court. An
appeal must be filed in 30 days.
David Grayck, lawyer for the project opponents, called the decision well
supported by the evidence and said the decision showed that the quarry
did not fit into the existing neighborhood. "In this regard, the Court's
decision implemented the basic principle that Vermont's environmental
laws are there for the protection of the public, not any single or group
of individuals. Given the strong evidentiary foundation to the court's
decision, there are virtually no grounds whatsoever for a reversal by
the Vermont Supreme Court, if there is an appeal," Grayck said.
JUDGE APOLOGIZED
Rivers applied for and was denied conditional use approval from the
Moretown Development Review Board for the proposed quarry in 2004. In
2007, he was denied an Act 250 permit for the project. Rivers appealed
both decisions to the Vermont Environmental Court. The appeals were
heard in 2008 and 2009 and upon issuance of the decision on March 25,
Judge Thomas Durkin apologized for the time it took to render a
decision.
"The Court has reviewed the nearly 1,000 pages of post-trial filings
submitted by the parties, as well as the evidence admitted at trial,
other relevant filings, and the Court's own trial notes, which together
take up four bankers' boxes. Even in light of this volume, the
undersigned has allowed these consolidated appeals to remain under
advisement for far longer than was reasonable, thereby causing a
substantial delay in the current resolution of these appeals. The
undersigned regrets this error and has attempted to craft a complete
Decision on the Merits, so as to not contribute to further delay in
these proceedings," Durkin wrote in the 70-page decision.
NO IMPACT
Durkin's extensive analysis of the project finds that despite vehement
opposition from the town and project abutters and neighbors, the
proposed quarry met 7 of the 10 Act 250 criteria. He found there would
be no air or water pollution, no impact on well water supplies, wildlife
or soil erosion, no negative impact on highways, the school or town
services. He found further that the project would not have a negative
impact on traffic on Route 100B.
Durkin rejected neighbors' claims that the quarry had a negative impact
on property values and rejected town claims that quarry operations and
trucking would worsen noise levels at the Moretown Elementary School.
As proposed, the project would yield 75,000 cubic yards of gravel
annually for 33 years and between 39 and 54 daily round-trip truck trips
to the site during its 160 days of annual operation per year.
UNDUE ADVERSE IMPACT
The project was denied because it failed to meet Act 250 Criteria 8,
9(E) and 10. Criterion 8 deals with undue adverse effect on aesthetics,
scenic beauty, historic sites or natural areas. Criterion 9 (E) covers
conformance with the town's capability and development plan concerning
the extraction of earth resources and Criterion 10 considers whether a
project is in conformance with local or regional plans, including the
Town Plan.
Durkin's denial relies on two legal precedents, The Brattleboro Chalet
decision and the Quechee decision. In the Brattleboro case, the former
Vermont Environmental Review Board denied an applicant who wants to
build a 103-room motor lodge within 200 feet of I-89. Other similar
motor lodges existed along I-89, but none on that section of highway.
In that decision, the Environmental Board ruled that the structure was a
large rectangular monolith, the design of which failed to consider the
unique features of the site, character of the land surrounding the site
or the scenic qualities of the general area. The board concluded that
the lodge would be "an intrusion on the scenic enjoyment of the
traveling public," basing the conclusion on the designation of the
highway as a scenic corridor and leading the board to conclude the
project would have an undue adverse impact on the aesthetics and scenic
and natural beauty of the area.
QUECHEE/BRATTLEBORO
The tenets of the Quechee decision can be summed up with three questions
that must be answered as to whether a proposed project has an adverse
impact (which alone does not mandate denial) that is also undue. Those
questions are: Does the project violate a clear, written community
standard intended to preserve the aesthetics or scenic, natural beauty
of the area? Does the project offend the sensibilities of the average
person? Has the applicant failed to take generally available mitigating
steps which a reasonable person would take to improve the harmony of the
proposed project with its surroundings?
"We conclude that the proposed Rivers quarry would not 'fit' into its
surrounding area, which has been designated and is actively used as a
scenic resource, and will therefore bring an undue adverse impact upon
this area. The proposed quarry does not conform to criterion 8. The
noises and activity that the proposed quarry will bring to this area
will be unique; they are not currently experienced in any fashion within
the Ag-Res District and along the scenic corridor that is Route 100B.
Interestingly, when the former Environmental Board reviewed the area of
Williston in which Brattleboro Chalet proposed its development in 1984,
the board noted that there were already similar commercial developments
not far from the project site. See Brattleboro Chalet, No. 4C0581-EB, at
8-9. However, these nearby, preexisting, commercial developments did
not dilute the undue adverse impact the proposed motel would have, in
the board's analysis, upon the scenic area in which it was sited. This
legal analysis makes the hurdle for the Rivers' quarry even more
substantial, given that Rivers must concede that no similar commercial
activities exist anywhere near its project site," Durkin wrote.
NEW AND FOREIGN
He went on to site another quarry denial as legal precedent (McLean
Enterprises) noting that the noise of quarry would be "so new and
foreign to an existing area, the quarry noises will be a recognizable
intrusion into the scenic setting."
"This will even be true in the Rivers' neighborhood, which is bisected
by Route 100B. The area is known for its scenic beauty and tranquility;
it is used by bicyclists, walkers, pavement skiers, fisherman, swimmers,
and those simply enjoying a lazy float down the Mad River. The noises
emanating from the quarry, most of which will be at or above the sound
levels of the background traffic noises, will be a disruption of an
intrusion upon the neighbors' and visitors' enjoyment of this scenic
area," Durkin wrote.
He ruled that the quarry would have an adverse impact and that it would
be undue. "The quarry will contradict the very characteristics that
brought the scenic designation upon this area. It will offend the
average person visiting the area, expecting to enjoy its scenic quality
but not anticipating the noises emanating from the drilling, blasting,
crushing and loading of the rock at an adjacent quarry," Durkin wrote.
TOWN PLAN
He concludes with an analysis of whether the project could/would conform
with Moretown's zoning and its Town Plan. He noted that the zoning
ordinance requires that extraction of earth resources must not cause a
hazard to public health or safety or have an undue adverse impact on
neighboring properties and uses.
"Since this regulatory language is stated in the alternative 'or,' we
focus upon the provision for which we have already found non-conformity:
Neighbors will be asked to suspend their use and enjoyment of their
property during each of the dozen blasts, for each of the consecutive
thirty-three years of operation. We conclude that this constitutes an
undue adverse impact upon neighboring properties and uses," he wrote.
Durkin rejected the town's contention that the "steep slopes" language
of the Town Plan applied to the proposed quarry but referenced the Town
Plan chapter that discusses "Open Space/Scenic Resources." That chapter
identifies the Route 100B/Mad River corridor as a major resource.
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