In May Rivers' attorney, Jim Caffry, filed a motion asking the court to
reconsider and alter its decision. The 36-page motion dissects the
Environmental Court decision paragraph by paragraph and precedent by
precedent, citing flaws in legal reasoning, flaws in legal conclusions
and flaws in how the court applied the law.
DENY THE QUARRY
That was followed by filings from quarry opponents at the town and
neighborhood level along with a letter from VTrans objecting to the
court's reliance on Vermont's Scenic Byways program to deny the quarry.
Durkin, in his August 17 response, declines to respond to each of the
charges made in Rivers' request to modify but finds "unpersuasive" an
argument by Caffry that positive findings under several Act 250 criteria
should lead to positive findings under three other Act 250 criteria.
"Each of the ten Act 250 criteria have separate legal standards,
requiring separate analysis of the criteria applicable to the project. .
. . Simply because a project is found in conformance with criterion 6
(i.e., it does not place an unreasonable burden on the ability of a
municipality to provide educational services) does not obligate a
reviewing court to conclude that a project conforms with criterion 8
(i.e., it will not have an undue adverse impact on the aesthetics or the
scenic beauty of the area.)," Durkin wrote.
MISPLACED
Regarding the original decision's reliance on Vermont's Scenic Byways
program, Durkin notes that the concerns of Rivers' and VTrans are
"misplaced."
"The scenic quality and uniqueness of Vermont Route 100B, as it travels
from Middlesex, past the Rivers' property and through Moretown Village,
have been acknowledged since the early 1970s. Most all of Route 100, as
it travels from its beginnings along the Vermont/Massachusetts border
through our entire state, and to its end along the Vermont/Canadian
border, encompasses some of our most scenic byways whether they are
acknowledged by federal, state or local regulators, or not. But the spur
known as VT Route l00B is one of the most scenic and beautiful byways;
the beauty and scenic quality of the areas along Route l00B predate, and
are not dependent upon, its 2006 designation as a Vermont Scenic Byway.
We do not regret our reference to Route l00B's designation as a Vermont
Scenic Byway; this fact was discussed extensively during trial. But we
take this opportunity to clarify our reference: the Scenic Byway
designation played no role in the determinations announced in the . . .
decision. The state regulatory designation is a more acknowledgement of a
preexisting fact: Route l00B is one of the most scenic and beautiful
byways in our beautiful state. The regulatory designation played no role
in our determinations on the land use applications that were the
subject of these appeals," Durkin noted.
TWO CASES
Durkin explains his use of two legal precedents, affirming his analysis,
declining to explain further how he used the two cases. He further
notes that the motion to modify suggested that the quarry was being held
to an unattainably high standard in terms of flyrock associated with
blasting as a quarry.
"The court reviewed the characteristics of this quarry operation,
including the blasting and crushing of rock, and the introduction of
industrial-type activities and compared them to the current attributes
and characteristics of this existing neighborhood. Were we to reverse
our determination here, neighbors and visitors would be exposed to the
industrial type activities of a multi-faceted and significant quarry
operation and they would experience noises, sound levels, and heavy
truck traffic not yet present in this rural, residential area," Durkin
wrote.
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