Brisson Stone LLC, Allan Brisson and Michael Brisson v. Town of Monkton and Claudia Orlandi , 201 Vt. 286 ( 2016 )

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court,
109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may
be made before this opinion goes to press.
2016 VT 15
No. 2014-455
Brisson Stone LLC, Allan Brisson and Michael Brisson Supreme Court
On Appeal from
v. Superior Court,
Environmental Division
Town of Monkton and Claudia Orlandi September Term, 2015
Thomas G. Walsh, J.
Colin R. Hagan and David J. Shlansky of Champlain Law Group, PLC, Vergennes, for
Appellants.
Liam L. Murphy of Murphy Sullivan Kronk, Burlington, for Appellee.
James A. Dumont of Law Office of James A. Dumont, P.C., Bristol, for Intervenor-Appellee
Orlandi.
PRESENT: Skoglund, Robinson and Eaton, JJ., and Morse (Ret.) and Burgess (Ret.), JJ.,
Specially Assigned
¶ 1. SKOGLUND, J. In this combined appeal, applicants—Allen Brisson, Michael
Brisson, and Brisson Stone, LLC—claim that their application for a commercial gravel
extraction permit is allowed under the Town of Monkton’s zoning regulations and that their
application should have been deemed approved under 24 V.S.A. § 4464(b)(1). We affirm the
Environmental Division’s denial of the application on the merits and hold that, even if the
application was deemed approved, the deemed approval remedy would not foreclose an
interested party’s timely appeal to the Environmental Division on the permit’s merits.
¶ 2. Allen and Michael Brisson leased part of their 324-acre parcel in Monkton to
Brisson Stone, LLC, to operate a quarry. Applicants then submitted an application for a “gravel
extraction operation” to Monkton’s zoning administrator. The applicants’ proposed site did not
have alluvial deposits; that is, no naturally occurring gravel beds appeared to be on the site.
Instead, the suggested location contained ledge rock. Applicants planned to drill and blast ledge
rock to produce unconsolidated rock and gravel. After blasting, appropriately sized gravel would
be stockpiled for sale. Any non-saleable rock pieces would be processed on-site using sorting
equipment, such as a portable rock crusher and screener. The applicants believed Monkton’s
zoning regulations permitted a proposed gravel operation like theirs that would “remove rock
and stone material from the earth using drilling and blasting, such as quarries.”
¶ 3. The zoning administrator referred the permit application to Monkton’s
Developmental Review Board (DRB) in January 2012.1 Claudia Orlandi, an adjoining
landowner, participated before the DRB as an interested person pursuant to 24 V.S.A. § 4471.
¶ 4. From the outset, the DRB identified a problematic issue with the application: it
was unclear if the applicant’s proposed project of blasting, drilling, and crushing ledge rock was
a gravel extraction operation permitted by the zoning regulations or a quarrying operation
precluded by the regulations. Compare Town of Monkton Zoning Regulations § 564 (1977)
[hereinafter Regulations] (permitting soil, sand, or gravel extraction operations in any zoning
district), with § 240 (excluding any use not specifically enumerated). The DRB addressed this
issue in the initial application hearing on April 24, 2012. The matter was continued and
subsequent hearings were held on May 22, July 24, August 28, and October 23, 2012.
1
After referring the matter to the DRB, the zoning administrator denied the application
on February 9, 2012. Applicants appealed this decision to the DRB, but because the referred
application was still before the DRB, the DRB’s counsel determined that the zoning
administrator was “without authority” to deny the application. Counsel then stated that the DRB
could review the application as originally referred to the DRB.
2
¶ 5. Prior to the October 23 hearing, the DRB sent a letter to the parties outlining the
procedures to be followed. According to the letter, following the hearing, the DRB intended to
decide the discrete threshold issue of whether the proposal was a permitted gravel extraction
operation.
¶ 6. Although the DRB took further evidence at the October 23 meeting, including
expert testimony, it did not come to a decision. At the meeting’s conclusion, the DRB
unanimously voted to continue the public hearing to November 27. On November 13, prior to
the next public meeting, the DRB discussed the application in a private, deliberative session; the
Environmental Division found that this session was not a public hearing on the application.
Thereafter, because of public and personal commitments, the DRB notified the parties that it
could not reach a decision before the November 27 hearing; instead, it would officially open the
hearing at the scheduled time and then continue it to a date certain. The DRB did just that on
November 27, opening the hearing and continuing it to January 22, 2013. No one opposed the
DRB’s action.
¶ 7. On January 22, 2013, the DRB held its final public hearing on the application. At
that meeting, it formally admitted into evidence a number of documents submitted by applicants
and other parties to the DRB since the October 23 hearing. Applicants’ attorney spoke on a
number of procedural issues, including whether the application was deemed approved in the
period between the November 27, 2012 hearing and the January 22, 2013 hearing.
¶ 8. At the conclusion of the January 22, 2013 hearing, the DRB formally adjourned
the hearing and voted to deny the application. The DRB issued the written denial on February
26, 2013. It determined that the zoning regulations permitted extraction of naturally occurring
gravel, but not applicants’ proposed method of blasting, drilling, and crushing ledge rock to
produce gravel.
3
¶ 9. Applicants filed for declaratory judgment in the Environmental Division, claiming
the protracted review process caused their application to be deemed approved under 24 V.S.A.
§ 4464(b)(1). In a separate appeal, applicants sought review of the DRB’s denial of the
application. In this second proceeding, Orlandi was granted intervenor status and cross-appealed
pursuant to Rule 5(b)(2) of the Vermont Rules of Environmental Court Proceedings. Intervenor
sought summary judgment on the merits; she argued that, as a matter of law, applicants’
proposed project was not a permitted use because the Regulations only allowed gravel extraction
and not blasting, drilling, and crushing ledge rock.
¶ 10. In a November 27, 2014 decision, the Environmental Division found that “it is
undisputed that Applicants seek to remove ledge rock from the ground and crush it into gravel
for sale.” Because the Environmental Division held that § 564 did not authorize crushing
quarried ledge rock to create gravel, it granted intervenor’s motion for summary judgment on
that issue. In a separate decision issued on January 30, 2014—prior to its summary judgment
determination—the Environmental Division held that the application could not be deemed
approved. Applicants appeal both decisions.
¶ 11. The standard of review shapes our decision in this case. We review the
Environmental Division’s legal decisions de novo, In re Lathrop Ltd. P’ship, 2015 VT 49, ¶ 21,
__ Vt. __, 121 A.3d 630, but we defer to the court’s construction of a zoning regulation “unless it
is clearly erroneous, arbitrary, or capricious.” In re Believeau NOV, 2013 VT 41, ¶ 8, 194 Vt. 1,
72 A.3d 918. This deference extends “to a municipality’s interpretation of its own ordinance if it
is reasonable and has been applied consistently.” Lathrop, 2015 VT 49, ¶ 21; see In re
Champlain Coll. Maple St. Dormitory, 2009 VT 55, ¶ 10, 186 Vt. 313, 980 A.2d 273. Because
our review is limited, appellants “must overcome a deferential standard of review to prevail on
their challenge.” In re Route 103 Quarry (J.P. Carrara & Sons, Inc.), 2008 VT 88, ¶ 4, 184 Vt.
283, 958 A.2d 694.
4
¶ 12. Like the DRB and Environmental Division, we focus our review on Regulation
§ 564, which is entitled “Extraction of Soil, Sand, and Gravel.” The section states in pertinent
part: “In accordance with Section 4407(8) of the Act [24 V.SA.], the removal of soil, sand or
gravel for sale . . . shall be permitted only upon approval of a plan for the rehabilitation of the
site by the [DRB] and after a public hearing.” Section 564’s subsections list additional
requirements for extraction operations. For instance, § 564(1) provides that “a performance
bond shall be secured from the applicant” to cover the rehabilitation of the land. Section 564(5)
states that “[n]o excavation, blasting, or stockpiling of materials shall be located within two
hundred feet of any street or other property line.” Finally, § 564(6) restricts the use of power-
activated sorting machinery.
¶ 13. We construe zoning ordinances according to the principles of statutory
construction, In re Laberge Moto-Cross Track, 2011 VT 1, ¶ 8, 189 Vt. 578, 15 A.3d 590
(mem.), and adopt an analysis that implements the legislative purpose. If the plain language of
the regulation unambiguously reflects the legislative purpose, we will enforce the terms of the
regulation. Lathrop, 2015 VT 49, ¶ 22. On appeal, applicants and Monkton offer competing
interpretations of § 564.
¶ 14. Applicants argue that § 564’s language demonstrates the drafters intended to
allow a category of use—gravel extraction—without excluding the means of accomplishing the
use—quarrying rock and then blasting and crushing the rock. Applicants contend that the word
“extraction” in § 564’s heading is a general term that includes mining or quarrying and that the
definition of “extraction” contemplates a forcible action, such as blasting. Applicants also state
that “gravel,” as commonly understood in the industry, refers to the particle size and not to the
gravel’s origin. Thus, according to applicants, the words “extraction” and “gravel” should be
read to permit quarrying rock and then blasting and crushing it to produce specific sizes.
5
¶ 15. Further, applicants argue that several subsections of § 564 show the drafters
intended to allow gravel production through blasting, drilling, and crushing quarried ledge rock.
For example, Section 564(2) sets out rules for leveling slopes, removing hills, and digging or
creating pits, activities applicants assert cannot be accomplished without blasting and drilling.
Similarly, § 564(5) specifically authorizes “blasting” if conducted a certain distance from the
street or property line. When read as a whole, applicants claim that the drafters intended these
subsections to regulate the drilling, blasting, and crushing necessary to produce gravel from
ledge rock. Finally, applicants contend that the Environmental Division impermissibly imposed
a limitation not present in the regulations by distinguishing between producing gravel by blasting
quarried ledge rock and extracting naturally occurring gravel.
¶ 16. By contrast, Monkton argues that the plain language of § 564 only permits the
removal of naturally occurring gravel, not the blasting and drilling of quarried ledge rock to
produce gravel. Monkton points out that the Town enacted § 564 “pursuant to 24 V.S.A.
§ 4407(8),” which was repealed in 2004. Former § 4407(8) allowed municipalities to adopt
regulations governing the “operation of sand and gravel excavations or soil removal”; further, the
adopted regulations could require potential permittees to submit an acceptable plan for
rehabilitating the site after operations concluded and to assure the rehabilitation with a bond,
escrow account, or other surety acceptable to the municipality’s legislative body. The former
section also stated: “However, this provision does not apply to mining or quarrying.” § 4407(8)
(repealed 2004). Monkton relies on this former section’s text to bolster its argument that, when
Monkton enacted § 564, municipalities were limited in their ability to adopt regulations
governing mining or quarrying. According to Monkton, by referencing the authorization
contained in § 4407(8), the drafters specifically intended § 564 to exclude mining and quarrying
from the extraction of naturally occurring gravel.
6
¶ 17. Both the DRB and the Environmental Division found that blasting, drilling, and
crushing ledge rock to create gravel-sized pieces differed from extracting or removing naturally
occurring gravel for sale; therefore, applicants’ permit could not be granted under § 564. The
Environmental Division also relied on § 240 of the Regulations, which provides, “[a]ny use not
permitted by these Regulations shall be deemed prohibited.”2 We agree with the Environmental
Division that the plain language of § 564 supports a distinction between naturally occurring
gravel and gravel created using the applicants’ proposed method. See Lathrop, 2015 VT 49,
¶ 22.
¶ 18. Section 564 begins with the heading, “Extraction of soil, sand or gravel.” We
construe zoning regulations “in light of the intention indicated by the caption” to avoid
unfounded interpretations. State v. Lynch, 137 Vt. 607, 613, 409 A.2d 1001, 1005 (1979) (citing
Audette v. Greer, 134 Vt. 300, 302, 360 A.2d 66,68 (1976)). The caption restricts a general
word—“extraction”—to three specific materials: soil, sand, or gravel. Similarly, § 564’s first
paragraph repeats the language, substituting “removal” for “extraction” and listing the same
naturally occurring materials. § 564 (permitting “the removal of soil, sand or gravel for sale” in
accordance with 24 V.S.A. § 4407(8)). Soil, sand, and gravel can be found in naturally occurring
beds, so it is reasonable to assume the drafters intended to regulate three similar naturally
occurring materials. See MacDonough–Webster Lodge No. 26 v. Wells, 2003 VT 70, ¶ 11 n.2,
175 Vt. 382, 834 A.2d 25 (stating that a word can roughly be defined “by its associates”).
¶ 19. Like this analogous grouping of materials, parsing § 564’s parallel phrases—
“extraction of soil, sand or gravel” and “removal of soil, sand or gravel”—supports our reading
2
In 1986, Monkton amended the Regulations, adding a definition of “land development”
that includes “any mining, excavation, or landfill.” See Amendments to the Monkton Zoning
Regulations § 130 (1986) [hereinafter Amended Regulations]. But neither the Regulations nor
the Amended Regulations specifically list mining or quarrying as either prohibited or conditional
uses. See § 561 (limiting uses such as junk yards, unenclosed manufacturing, and machinery
wrecking yards while prohibiting uses like smelters, blast furnaces, and hide tanning).
7
of the Regulation. Words not defined within a statute are given their plain and ordinary
meaning, which may be obtained by consulting dictionary definitions.3 Franks v. Town of
Essex, 2013 VT 84, ¶ 8, 194 Vt. 595, 87 A.3d 418. “Gravel” is defined as “any unconsolidated
mixture of rock fragments or pebbles.” American Heritage Dictionary of the English Language
575 (New College Ed. 1979). This definition does not encompass consolidated materials like
ledge rock. Moreover, the nouns “removal” and “extraction” connote taking a material from one
place and moving it to another. For example, “remove” means “To move from a position
occupied” or “To convey from one place to another” or “To take away; to extract; to separate.”
Id. at 1101 “Extract” means “To draw out or forth forcibly” or “To obtain despite resistance” or
“To remove.” Id. at 465. Neither noun suggests the object being moved undergoes a material
change or transformation, such as crushing or blasting. Instead, the preposition “of” limits the
material being moved to unconsolidated mixtures, like gravel.
¶ 20. In addition to the heading and the ordinary meaning of the language, the inclusion
of former § 4407(8) in § 564’s first paragraph supports a clear distinction between natural gravel
extraction and gravel obtained via quarrying. As explained above, former § 4407(8) explicitly
separated mining or quarrying from gravel extraction. We should give weight to this sort of
statutory distinction imposed by the Legislature. See In re White, 155 Vt. 612, 619, 587 A.2d
928, 932 (1990) (“[T]he municipality’s ordinance should be read to include and effectuate state
policy.”). Indeed, in Lathrop, we recently considered the same statute—former § 4407(8)—and
noted that “the Legislature found reason to single out sand and gravel extraction as distinct from
mining and quarrying and entitled to special treatment.” Lathrop, 2015 VT 49, ¶ 23, n.6. In that
case, we analyzed the Town of Bristol’s bylaws, which—like Monkton’s Regulations—
3
The definitions section of the Regulations, Article I, does not provide a definition of
sand and gravel extraction.
8
contained zoning language incorporating former § 4407(8).4 Town of Bristol Zoning Bylaws &
Regulations § 526 (2003) [hereinafter Bristol Bylaws]; Lathrop, 2015 VT 49, ¶ 13. We found
that numerous towns adopted former § 4407(8) to fit their particular sand and gravel needs, “all
tailored somewhat differently.” Lathrop, 2015 VT 49, ¶ 25. Moreover, we rejected an
interpretation of Bristol’s Bylaws that “would negate the more individualized language
incorporated by the towns into these bylaws” and disregard the Legislature’s separate treatment
of soil, sand, and gravel removal from mining and quarrying. Id. ¶¶ 25, 26. Similarly, if we
held as applicants request here, we would ignore the Legislature’s directions in former § 4407(8)
and strike a path away from the particular treatment that Monkton choose for gravel extraction.
See generally Lathrop, 2015 VT 49, ¶ 26; Flanders Lumber & Bldg. Supply Co. v. Town of
Milton, 128 Vt. 38, 45, 258 A.2d 804, 808 (1969) (noting municipalities possess zoning authority
only in accordance with state terms and conditions).
¶ 21. Finally, an examination of § 564’s subdivisions demonstrates a consistent
regulatory structure governing natural gravel operations. We construe zoning regulations to give
effect to the whole without being limited to a single sentence. In re Champlain Coll. Maple St.
Dormitory, 2009 VT 55, ¶ 13. Section 564(2) sets out rules for leveling slopes, removing hills,
and digging or creating pits, activities that occur in natural gravel bed operations. Section 564(5)
authorizes “blasting” if conducted a certain distance from the street or property line. As
applicants’ expert testified, blasting may occur in natural gravel operations to remove bedrock
knobs that block access to natural gravel deposits. Similarly, § 564(6) governs the use of sorting
and crushing machinery. The same expert indicated that some natural gravel operations “bring
in rock and rock quarry . . . to beneficiate the gravel because it’s too soft”; these gravel
4
Bylaw § 526 reads in full: “In accordance with [24 V.S.A. § 4407(8) ], in any district
the removal of sand or gravel for sale, except when incidental to construction of a structure on
the same premises, shall be permitted only after conditional use review and approval by the
Board of Adjustment.” This paragraph is followed by nine subdivisions that largely track the
subdivisions in the Regulation at issue in this case. See Regulation § 564.
9
operations use machinery to crush and mix the imported quarry rock with natural gravel
extracted on site. As a whole, therefore, § 564’s subdivisions evince a legislative intent to
regulate operations that extract naturally occurring gravel, not operations that create gravel by
drilling, blasting, and crushing quarried rock.
¶ 22. Although applicants protest that this interpretation improperly creates a
distinction between crushed-quarried rock and natural-gravel operations, we note that many of
the sources and experts cited by applicants distinguish between natural-gravel and crushed-
quarried rock. See, e.g., Vermont Agency of Transportation, 2011 Standard Specifications for
Construction Book § 704.05, perma.cc/PJS4-A5P8 (noting that “crushed gravel” for subbase can
be produced from “natural gravels or crushed quarried rock”) (emphasis added). Moreover,
applicants offer competing definitions that, according to applicants, demonstrate why this
distinction is absurd according to industry standards.
¶ 23. But these arguments do not rise to the level necessary to overcome the deferential
standard of review outlined above. Supra, ¶ 10. The issue here is the meaning of a zoning
regulation. It is not our place to ask why Monkton separated natural-gravel operations from
crushed-rock operations, only to affirm a reading of the Regulations that is not arbitrary. Given
§ 564’s heading, the plain meaning of the section’s words, the incorporation of former § 4407(8),
and the consistency of § 564’s subdivisions, the Environmental Division reasonably based its
holding on the plain language of the regulation; this decision was not clearly erroneous, arbitrary,
or capricious.
¶ 24. The second issue in this case is whether the Environmental Division correctly
denied applicants’ claim that the permit should have been deemed approved pursuant to 24
V.SA. § 4464(b)(1). Section 4464 governs municipal decisions involving development review
applications; specifically, § 4664(b) directs a municipal panel’s decision-making process after
public hearings. Id. Under § 4464(b)(1), a municipal panel may “recess the proceedings on any
10
application pending submission of additional information” and “should close the evidence
promptly after all parties have submitted the requested information.” Once the hearing is
formally adjourned, the panel shall “issue a decision within 45 days after the adjournment of the
hearing.” Id. If the panel does not issue a written decision within forty-five days, the application
shall be deemed approved “and shall be effective on the 46th day.” Id.
¶ 25. In this case, applicants and Monkton argue that different dates mark the formal
adjournment of the hearing and the beginning of the forty-five day period; the date offered by
applicants would trigger the deemed-approval remedy, while the date provided by Monkton
would preclude deemed-approval. The Environmental Division agreed with Monkton that the
DRB properly continued the public hearings on the application until the final January 22 hearing
and issued its decision within the forty-five day period. On appeal, intervenor points out that the
Environmental Division’s decision on the merits occurred after its decision regarding the
deemed-approval remedy; therefore, she argues that the deemed-approval argument has been
rendered moot by the trial court’s de novo review of the application’s merits.
¶ 26. The deemed-approval remedy occupies a prominent place in chapter 117 of Title
24; as a result, we have construed the statutory language numerous times. See, e.g., In re Morrill
House, LLC, 2011 VT 117, ¶ 11, 190 Vt. 652, 35 A.3d 148 (mem.) (strictly construing deemed-
approval remedy). We have consistently stated that the purpose of the deemed-approval remedy
is “to constitute a final decision to provide a mechanism for any interested party to appeal the
decision.” In re Trahan NOV, 2008 VT 90, ¶ 12, 184 Vt. 262, 958 A.3d 665 (analyzing
predecessor statute); see also Morrill House, LLC, 2011 VT 117, ¶ 8 (applying similar language
to current § 4464). The deemed-approval remedy is not meant to foreclose appeals on the merits
but to protect against “protracted deliberations” by a municipal panel. In re Fish, 150 Vt. 462,
464, 554 A.2d 256, 258 (1988) (interpreting predecessor statute). Further, the remedy must be
applied carefully to ensure any deemed-approval permit remains clearly consistent with the
11
intent of the applicable zoning regulations. Trahan, 2008 VT 90, ¶ 12; Morrill House, 2011 VT
117, ¶ 8. Thus, even if an application is deemed approved pursuant to statute, an interested party
must be allowed the opportunity to timely appeal the deemed-approved permit on the merits.
The ability to timely appeal a deemed-approved permit not only comports with the statutory
intent behind the deemed-approval remedy, Trahan, 2008 VT 90, ¶ 12, but also guarantees
interested parties can challenge a deemed-approved permit that they feel is inconsistent with the
intent of zoning regulations. Id.
¶ 27. In this case, intervenor filed a timely cross-appeal and motion for summary
judgment on the merits in the Environmental Division. As a result, even if applicants’ request
for a deemed-approved permit had legs, the Environmental Division would still have jurisdiction
to address intervenor’s cross-appeal on the merits. To decide otherwise would be to foreclose
intervenor’s opportunity for an appeal. Cf. Fish, 150 Vt. at 464, 554 A.2d at 258. We have
already affirmed the Environmental Court’s decision on the merits of the application. Thus, we
do not need to address the arguments concerning the deemed-approval remedy because the
resolution does not affect our decision on the merits of the zoning application.
¶ 28. Although we do not consider the applicability of the deemed-approval remedy, we
hold that the deemed-approval remedy does not foreclose an interested party’s timely appeal on
the merits of the application. Applicants suggested in proceedings before the Environmental
Division and at oral argument before this Court that the deemed-approval remedy would
effectively prevent intervenor or any other interested party from appealing the approved permit.
This interpretation does not comport with the statute’s purpose because it does not provide a
mechanism for an interested party to appeal the decision. Trahan, 2008 VT 90, ¶ 12. Intervenor
was entitled to have the Environmental Division rule on the merits of the application, regardless
of whether or not the application was deemed-approved.
12
¶ 29. We affirm the Environmental Division’s denial of the application. Although our
holding on the merits of the zoning application restricts full consideration of the deemed-
approval remedy, we conclude that the deemed-approval remedy does not preclude the timely
appeal of an interested party.
Affirmed.
FOR THE COURT:
Associate Justice
13