In re North East Materials Group LLC Act 250 JO 5-21 (Russell Austin, Pamela Austin, Julie Barre, Marc, Marc Bernier, Appellants) ( 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 87No. 2016-032
In re North East Materials Group LLC Act 250 JO #5-21 Supreme Court
(Russell Austin, Pamela Austin, Julie Barre, Marc Bernier,
et al., Appellants)
On Appeal from
Superior Court,
Environmental Division
May Term, 2016
Thomas G. Walsh, J.
Laura B. Murphy and Douglas A. Ruley, Environmental and Natural Resources Law Clinic,
South Royalton, for Appellants.
Alan P. Biederman of Biederman Law Office, and James P.W. Goss of Facey, Goss & McPhee,
P.C., Rutland, for Appellees North East Materials Group and Rock of Ages.
William H. Sorrell, Attorney General, and Gavin J. Boyles, Assistant Attorney General,
Montpelier, for Amicus State of Vermont.
PRESENT: Dooley, Skoglund, Robinson and Eaton, JJ., and Pineles, Supr. J. (Ret.),
Specially Assigned
¶ 1. DOOLEY, J. This case is here for the second time, following the Environmental
Division’s decision on remand that a rock-crushing operation by North East Materials Group, LLC,
(NEMG) is exempt from Act 250 as a preexisting development. The Environmental Division
reached the same conclusion in its first decision, but we reversed and remanded, holding that the
court used the wrong legal standard in deciding that the rock-crushing operation did not constitute
a cognizable physical change to the preexisting development and that one of the main factual
findings in support of the decision was clearly erroneous. In re North East Materials Grp. LLC
Act 250 JO #5-21, 2015 VT 79, __ Vt. __, 127 A.3d 926 [hereinafter NEMG I]. Appellants, a
group of thirteen neighbors (neighbors), appealed, arguing that the Environmental Division erred
in applying our instructions on remand. We now conclude that, even assuming that crushing
operations were part of the preexisting quarrying development, findings on the location and
volume of the crushing operations are too limited to support a conclusion that the present
operations do not constitute a cognizable change to the existing development. We reverse.
¶ 2. As an overview, the issues in this case are: (1) whether rock crushing was conducted
on the tract prior to July 1, 1970, the effective date of Act 250, such that rock crushing is
grandfathered-in and accordingly, no Act 250 permit is required; (2) whether the activity was
abandoned such that its renewal requires an Act 250 permit; and (3) whether there has been a
substantial change in that activity such that an Act 250 permit is required. These issues arise in a
special context—the rock crushing before us is conducted on a relatively small part of a large tract
of land owned by Rock of Ages (ROA), which is used primarily for granite quarrying. In general,
NEMG has argued that activities anywhere on the ROA land count in determining whether rock
crushing is grandfathered-in, whether rock crushing has been abandoned and whether there has
been a substantial change in the rock-crushing activity; the Environmental Division accepted this
position in its first decision. Neighbors, on the other hand, have argued that only activities
conducted on the NEMG rock-crushing site should count in determining the three issues. Also in
general, our decision accepted NEMG’s argument with respect to whether rock crushing activity
was grandfathered-in, but accepted the neighbors’ argument with respect to substantial change; the
second part of the decision caused the partial remand. As detailed below, the Environmental
Division again effectively accepted NEMG’s arguments, but changed the rationale with respect to
substantial change. Neighbors argue here that the new rationale is inconsistent with our first
decision and must be reversed. NEMG argues that the new rationale is fully consistent with our
first decision and must be affirmed. Thus, the main question we must decide is whether the new
rationale, accompanied by some new findings of fact, can support the conclusion that there has
been no substantial change.
2
¶ 3. We will not repeat the facts as first found by the Environmental Division. These
are contained in our first decision, and the reader is invited to read them there. See NEMG I, ¶¶ 2-
9. To the extent that additional findings relate to the issues before us, we consider them with our
discussion of these issues.
¶ 4. Before we look at NEMG I and the subsequent decision of the Environmental
Division, we examine the legal principles that govern that case. As we noted above, development
begun before June 1, 1970, the effective date of Act 250, does not require a permit. Id. ¶ 15. This
exemption, however, is limited by the caveat that “any substantial change in such excepted
subdivision or development” is subject to the ordinary permit requirement. 10 V.S.A. § 6081(b).
A “substantial change” is defined as “any change in a preexisting development . . . which may
result in a significant adverse impact with respect to any of the [ten Act 250 criteria].” Act 250
Rules, Rule 2(C)(7), Code of Vt. Rules 12 004 060-3, https://perma.cc/72EL-9ZSW. The
Environmental Board has established a two-pronged test to determine if a new development
constitutes a substantial change, and this Court has repeatedly upheld that test. See In re Vt. RSA
Ltd. P’ship, 2007 VT 23, ¶ 10, 181 Vt. 589, 925 A.2d 1006 (mem.). Under the test, we first look
to determine if a cognizable change to the existing development will result from the project in
question. If so, we go on to determine whether the change has the potential for significant impact
under any of the Act 250 criteria in 10 V.S.A. § 6086(a). Id. (citing Sec’y, Vt. Agency of Nat.
Res. v. Earth Constr., Inc., 165 Vt. 160, 164, 676 A.2d 769, 772 (1996)). Even a modest change
may be considered a cognizable change. NEMG I, 2015 VT 79, ¶ 31 (citing In re Vt. RSA Ltd.
P’ship., 2007 VT 23, ¶ 11). A thing is cognizable as long as it is “capable of being known or
recognized.” Black’s Law Dictionary (10th ed. 2014). This indicates that a change should be
considered cognizable as long as it is notably distinct from whatever preceded it.
¶ 5. Any party seeking an exemption from Act 250 jurisdiction on the basis of a pre-
existing development commenced before 1970 has the burden of providing evidence sufficient to
demonstrate the existence and nature of the pre-existing development. In re Request for
3
Jurisdictional Op.(F-35A Case), 2015 VT 41, ¶ 26 n.7, 198 Vt. 510 117 A.3d 457 (citing In re Vt.
RSA Ltd. P’ship, 2007 VT 23, ¶ 10). Once a development has been established as exempt from
Act 250 jurisdiction, any party seeking to subsequently impose jurisdiction has the burden of
showing that there has been a substantial change to the preexisting development. Id. However,
the burden is still on the holder of the exemption to provide sufficient information on pre- and
post-1970 operations to allow the finder of fact to ascertain if a substantial change has occurred.
In re Thomas Howrigan Gravel Extraction, Declaratory Ruling No. 358, slip. op. at 14 (Vt. Envtl.
Bd. Aug 30, 1999), https://perma.cc/2UKV-FRSP (finding party invoking exemption must
“produce information concerning the scope of pre-1970 operation and the post-1970 operation
sufficient for the Environmental Board to determine whether a substantial change has occurred”
(citation omitted)). This is because the owner or operator of the development is far more likely to
have historic knowledge of the site, and it is far more practicable for them to produce this evidence
than a plaintiff with no personal knowledge of their operations. To place the burden of providing
historic economic evidence wholly on the party seeking jurisdiction would prevent many parties
from bringing suit, effectively shutting out local interests that Act 250 was designed to enfranchise.
In re Barefoot Act 250, No-46-4-12, Vtec, at 5 (Vt. Envtl. Ct. April 5, 2013),
https://perma.cc/CNK8-SQ6D (recognizing “long-standing principles of encouraging public
participation in state and local land-use deliberations”); In re Lathrop Ltd. P’ship I, No. 122-7-04
Vtec, at 2 2014 WL 860823, at *1 (Vt. Envtl. Ct. Feb. 11, 2014), https://perma.cc/6GYG-UNUX
(stating public participation is “woven into” Act 250).
¶ 6. Moreover, the absence of either historic or current evidence does not relieve the
party seeking an exemption of their burden of production either in demonstrating the existence of
a preexisting development or defending against imposition of jurisdiction based on substantial
change. See In re Orzel, 145 Vt. 355, 359, 491 A.2d 1013, 1015 (1985) (“The Board cannot
determine whether some activity constitutes a substantial change to a pre-existing operation unless
it is made aware of what that activity is.”); In re John Gross Sand & Gravel, Declaratory Ruling
4
No. 280, slip op. at 11 (Vt. Envtl. Bd. July 28, 1993), https://perma.cc/J42M-N4YQ (“[T]his
situation does not excuse the Petitioner from meeting its burden of production.”).
¶ 7. On remand, the lower court is bound by the scope of our remand instructions, and
may only reopen issues that are within that scope. In re Twenty-Four Vt. Utils., 159 Vt. 363, 367,
618 A.2d 1309, 1311 (1992). Furthermore, the lower court is bound to follow the specific
instructions given by this Court, interpreted in the light of the opinion. Coty v. Ramsey Assocs.,
154 Vt. 168, 171, 573 A.2d 694, 695 (1990) (citing Halpern v. Kantor, 139 Vt. 365, 367, 428 A.2d
1132, 1134 (1981)). It is error for the lower court to pursue and rely on findings or reasoning that
this court has already struck down. Cleverly v. Cleverly, 151 Vt. 351, 354, 561 A.2d 99, 100
(1989) (citing Isabelle v. Proctor Hosp., 132 Vt. 243, 245, 315 A.2d 241, 243 (1974)). The purpose
of the mandate is to ensure closure—if parties are allowed to reintroduce rejected arguments, and
courts are allowed to reapply rejected logic, then “there would be no end to the litigation until the
ability of the parties or the ingenuity of their counsel were exhausted.” Coty, 154 Vt. at 171
(quotation and citation omitted).
¶ 8. NEMG I started its analysis by noting that the Environmental Division had rested
its decision on the view that the entire ROA tract was an “undifferentiated whole” for purposes of
determining whether there was a preexisting development, as well as for determining whether there
had been substantial change, so that rock-crushing activity anywhere on the ROA tract is relevant
to show both preexisting development and the absence of substantial change. We held that “we
do not take issue with the Environmental Division’s broad approach to defining preexisting
development.” NEMG I, 2015 VT 79, ¶ 24. For a number of reasons, however, we disagreed with
the “undifferentiated whole” approach in determining whether there has been a substantial change.
We held that
[O]ur conclusion [is] that some level of granuality (rather than a
uniform ‘tract-wide’ approach) is required in assessing substantial
change in connection with quarrying operations … [such that] [p]re-
1970 crushing operations on one or more parts of a large tract cannot
simply be imputed to all parts of the tract for purposes of the
5
substantial change analysis, without regard to the relative inputs of
the pre-and post-1970 operations in the vicinity of the proposed
change.
Id. ¶ 30.
¶ 9. We added, “the deployment of heavy industrial equipment that qualifies as
development in a vicinity where it has not previously been deployed is a cognizable change” and
concluded “we accordingly reverse the Environmental Division’s conclusion that the challenged
rock-crushing activity is not a cognizable change.” Id. ¶ 31.
¶ 10. Our decision went on to conclude that one of the Environmental Division’s
findings, which supported its conclusion that preexisting development had occurred and that there
had been no abandonment of that development, was clearly erroneous. In light of both errors, our
remand instructions were as follows:
On remand, in light of this opinion and the record evidence, the
Environmental Division should revisit its findings concerning
whether NEMG’s rock-crushing operations fit within the general
scope of ROA’s pre-1970 development; whether the rock-crushing
operations, if established as part of the pre-1970 development, were
abandoned; and, whether, if the pre-existing development does
include rock-crushing operations generally, NEMG’s operations in
this case give rise to a substantial change, analyzed consistent with
the guidance set forth above.
Id. ¶ 36.
¶ 11. In this decision, we will focus only on the substantial change issue. Thus, we
assume for purposes of this decision that the Environmental Division on remand properly
concluded, based on its findings, that there was a preexisting development that included rock
crushing on the ROA tract and that development had not been abandoned. In narrowing the issues,
we recognize that there is some ambiguity in the remand instructions. Neighbors argue that we
held that the first prong of the substantial change test—whether a cognizable physical change to
the preexisting development has resulted or may result from the project—was met as a matter of
law and was not open to reconsideration on remand. NEMG argues that, like the other issues in
the case, the Environmental Division could reconsider this issue based on new findings and it did
6
this on remand. Although we conclude that neighbors have the better argument, we also conclude
that this dispute over the scope of the remand makes no difference to the outcome. Thus, we will
look at the Environmental Division’s new findings and rationale.
¶ 12. Essentially, the Environmental Division on remand added one finding relevant to
the substantial change issue—that, in 1988, ROA signed a contract with a paving company “to
remove rock from ROA’s grout piles and crush it off-site” and that the contract stated that the
paving company had been removing rock for a period of time and that the purpose of the contract
was to formalize the practice. From that finding the court drew the inference “that it is common
practice in the quarrying industry to conduct crushing without formal contracts.” Putting aside
that the contract was for removal, with any crushing occurring off-site, rather than for crushing,
the finding and the court’s inference adds little to its analysis.
¶ 13. Thus, the Environmental Division’s action was effectively a reconsideration
without new findings of the rationale on which it had found no substantial change in the first
instance—in the context of the remand it was an argument that this Court should reconsider its
conclusion on substantial change in NEMG I. Although we are open to reconsideration of an ill-
considered decision, we note that reconsideration is not within the scope of a remand and our
decision in NEMG I was final with respect to this case and these parties. Will v. Mill Condo.
Owners’ Ass’n, 2006 VT 36, ¶ 9, 179 Vt. 500, 504, 898 A.2d 1264, 1268 (“By ignoring the impact
of our holding . . . , the trial court failed to implement the remand order in light of the content of
our opinion.”); see also Bissonnette v. Wylie, 168 Vt. 561, 562, 711 A.2d 1161, 1163 (1998)
(mem.) (holding trial court’s reargument of case on remand was “too late” because “if we had
accepted that argument, the remand that led to this appeal would have been unnecessary”).
Nevertheless, we will address the substance of the remand decision.
¶ 14. In reaching its decision, the Environmental Division looked at precedents involving
gravel pits and concluded that under those cases “gravel pits could continue to expand at their
historic rates without triggering Act 250 jurisdiction because they were being operated in
7
essentially the same manner as they were before 1970.” By contrast, the court noted that “[i]f,
however, a gravel pit either dramatically increased its rate of extraction or expanded into a
sufficiently distinct portion of a tract, the expansion could be considered a cognizable physical
change.” Going on to rock crushing, the court found that “just as gravel pits naturally and
inherently expand, rock crushing operations are naturally and inherently mobile.” Thus, it held
that “the relocation of rock crushing operations from one area of a well-developed preexisting
quarry to another is consistent with the rock crushing operation’s historic pattern of relocation.”
Specifically, it held that if “crushing has historically occurred on widely scattered, well-developed
areas on a tract, a move to yet another (already developed) site, even across natural boundaries and
even at significant distances, might still mean the development is ‘operated in essentially the same
manner as it was before June 1, 1970.’”
¶ 15. The court concluded that the above statement of historical fact characterized the
current rock crushing activity: “Movement across significant distances and public highways has
always characterized ROA’s (or its constituent quarry operators’) crushing operations.” It found
that the current site was already developed because the evidence showed rock crushing occurred
on the site a hundred years ago. Its holding that there was no cognizable physical change was as
follows:
In summary, while we do not hold the mere fact that crushing
occurred on the NEMG site nearly a century ago to be conclusive in
defeating a claim of cognizable physical change, we do hold that
crushing at the NEMG site is no more dramatic a relocation than
other relocations in ROA pre-1970 history, especially considering
that the NEMG site has experienced crushing in the past. We
conclude that the present relocation of ROA’s crushing to NEMG’s
site is consistent with the intrinsically portable nature of rock
crushing and with ROA’s historic pattern of mobile crushing
operations. We therefore conclude that the ROA tract is being
“operated in essentially the same manner as it was before June 1,
1970,” and that no cognizable physical change has occurred.
The court went on to consider the second prong of the substantial change test—whether a
cognizable physical change has the potential for significant impact under any of the Act 250
8
criteria—in case we did not accept its conclusion on the first prong. It held that the second prong
was also not met because the relocation of crushing to the NEMG site does not cause new impacts;
instead, it “simply impacts new neighbors.”
¶ 16. The Environmental Division’s new rationale, or restatement of its original
rationale, reaches the same result essentially for the same reason. As we understand it, the court
might reach a different result only in a situation where there had never been rock crushing at the
current location or nearby. As we observed above, the mobility of rock-crushing activity on the
locations of former rock-crushing activities were included in the court’s original findings. For
example, the court found that “NEMG’s crushing operations have moved around the ROA
property over this time [that NEMG has been on the ROA tract].”
¶ 17. We find that the new rationale is inconsistent with our analysis of substantial
change in NEMG I. There, we held that a framework that would “cut off the substantial-change
analysis at the cognizable-physical-change step”, which would in turn disregard the actual change
in the impact of proposed development at a site just because similar development had already taken
place within the tract is “inconsistent with Act 250’s focus on discerning the impact of proposed
development.” NEMG I, 2015 VT 79, ¶ 26. We explained that “the location of a particular activity
or operation within a tract is often inextricably connected to its impact.” Id. ¶ 27. We stated our
position as follows: “We cannot agree that instances of crushing operations decades ago and miles
away from the site of NEMG’s present operations can be viewed as establishing some sort of
baseline defeating any claim that NEMG’s present operations constitute a cognizable change.” Id.
¶ 24. The Environmental Division’s rationale would take us back to the view that the location of
development on the ROA tract is generally irrelevant, a view we explicitly rejected in NEMG I.
¶ 18. Once it has been determined that a cognizable change has occurred, the next step
in the substantial change analysis is to determine whether the change has a potential for significant
impact under one or more of the statutory Act 250 criteria specified in 10 V.S.A. §§ 6086(a)(1)
9
through (a)(10). In re Hale Mountain Fish & Game Club, Inc., 2007 VT 102, ¶ 4, 182 Vt. 606,
939 A.2d 498 (mem.) (citing Earth Constr., Inc., 165 Vt. at 164, 676 A.2d at 771).
¶ 19. When reviewing Act 250 permit applications, the district environmental
commissions and the Environmental Division routinely engage in impact analysis that is location-
specific and evaluates the impacts on particular neighbors or households. See, e.g., In re Lathrop
Ltd. P’ship., 2015 VT 49, ¶¶ 74–88, 199 Vt. 19, 121 A.3d 630 (analyzing impact of gravel-
extraction operations on neighbors by measuring noise in decibels at property line). On remand,
the Environmental Division added findings on the impact of the rock-crushing activities on
neighboring residents. They show that that the neighbors experience dust, traffic, and noise as a
result of the rock-crushing operation. Here, the three impacts demonstrated in the findings
correspond to the criteria specified in 10 V.S.A. § 6086(a)(8), “an undue adverse effect on the
scenic or natural beauty of the area, aesthetics, historic sites or rare and irreplaceable natural areas.”
See, e.g., In re Lathrop Ltd. P’ship, 2015 VT 49, ¶ 78. In addition to the adverse effect on
aesthetics, the traffic could be seen as causing “unreasonable congestion or unsafe conditions with
respect to use of the highways,” § 6086(a)(5)(A), while the dust could be “undue water or air
pollution.” § 6086(a)(1).
¶ 20. This Court has previously held that a development will not have an undue adverse
effect on aesthetics if it (1) does not violate a clear, written community standard intended to
preserve the aesthetics or scenic, natural beauty of the area; (2) does not offend the sensibilities of
the average person; and (3) takes generally available mitigating steps that a reasonable person
would take to improve the harmony of the proposed project with its surroundings. In re Cross
Pollination, 2012 VT 29, ¶ 10, 191 Vt. 631, 47 A.3d 1285 (mem.) (citing In re UPC Vt. Wind,
2009 VT 19, ¶ 24, 185 Vt. 296, 969 A.2d 144). We recognize that there has been no evidence and
findings with respect to a clear community standard or with respect to possible mitigation. We are
looking here for only potential significant impacts under the relevant criteria. We conclude that
the likely effect of the noise and clouds of rock dust on the sensibilities of the average person is
10
significant enough to reach the potential impact as a matter of law and that the second prong of the
substantial change test has been met under the trial court’s findings.
¶ 21. In reaching this conclusion, we reject the Environmental Division’s analysis of why
it found the second prong was not met. It concluded that there were no new potential significant
impacts under the Act 250 criteria, but only the same impacts on new neighbors, and as a result
the impacts could not be considered under the second prong test. The court’s evaluation of the
second prong follows its analysis of the first prong—that location was not determinative for mobile
crushing equipment and activities. For the same reason that we reject that analysis under the first
prong, we reject it here.
¶ 22. For the reasons stated above, we reverse the Environmental Division’s holding that
the NEMG rock-crushing operation is not subject to Act 250 jurisdiction. NEMG is required to
submit an Act 250 application and obtain an Act 250 permit to continue its rock-crushing activities.
Reversed.
FOR THE COURT:
Associate Justice
¶ 23. EATON, J., dissenting. In my view, the Environmental Division followed this
Court’s remand instructions and issued a ruling supported by the law and the evidence. In
reversing the Environmental Division’s decision, the majority—despite stating otherwise—
effectively collapses the established two-part substantial-change test and places the burden on
North East Materials Group (NEMG), contrary to our law, to prove that its challenged rock-
crushing operations are not a substantial change to the preexisting development. Accordingly, I
respectfully dissent.
¶ 24. The majority faults the Environmental Division for failing to make significant new
findings to support its rationale for its decision following our remand, even though we required
11
the Environmental Division only to “revisit” its findings. In re North East Materials Group LLC
Act 250 JO #5-21, 2015 VT 79, ¶ 36, ___ Vt. ___, 127 A.3d 926 [hereinafter NEMG I]. It was
manifestly evident in the first appeal that during the two-day evidentiary hearing NEMG had
mustered every bit of available evidence of past rock-crushing operations on the Rock of Ages
(ROA) industrial complex over the past hundred-plus years—a task made difficult by the long
existence of the complex and the lack of record-keeping of those operations in the distant past.
Yet, we did not hold that NEMG was required to obtain an Act 250 permit with respect to the
challenged rock-crushing operations.
¶ 25. Rather, we accepted the Environmental Division’s “broad approach” of considering
the entire complex with respect to determining whether the challenged rock-crushing operations
were part of a preexisting development exempt from Act 250, but concluded that a “tract-wide
approach” could not be applied in assessing whether those particular operations constituted a
substantial change to the preexisting development. Id. ¶¶ 24, 29. We noted that the Environmental
Division had “considered any pre-1970 crushing activity anywhere on the entire 1170 acres owned
by ROA as establishing a preexisting development including rock-crushing activities, and as
establishing a baseline of rock crushing such that new rock-crushing facilities or operations
anywhere on the tract would not constitute a substantial change.” Id. ¶ 23 (emphasis in original).
We rejected this position with respect to determining whether the challenged rock-crushing
operations constituted a substantial change to a preexisting development, stating that it would
mean “the absence of prior crushing activity in the vicinity of NEMG’s crushing operations would
be irrelevant, because previous rock crushing elsewhere on ROA lands, even miles away, could
establish a baseline against which NEMG’s operations would be measured in a substantial-change
analysis.” Id. (emphasis added). We did not “agree that instances of crushing operations decades
ago and miles away from the site of NEMG’s present operations [could] be viewed as establishing
some sort of baseline defeating any claim that NEMG’s present operations constitute a cognizable
change.” Id. ¶ 24 (emphasis added).
12
¶ 26. Instead, we held that “some level of granularity (rather than a uniform ‘tract-wide’
approach) is required in assessing substantial change in connection with quarrying operations.”
Id. ¶ 30. We explained that “similar operations [taking] place prior to 1970 at a different site
within the same tract” could be considered, with “factors such as distance between sites and
separation by a public highway affect[ing] the weight to be given to the fact of pre-1970 operations
at another site within the tract.” Id. ¶ 30 n.14; see also id. ¶ 31 (“The deployment of heavy
industrial equipment that qualifies as development in a vicinity where it has not previously been
deployed is a cognizable change.” (emphasis added)).
¶ 27. Accordingly, we did not hold that an Act 250 permit was required. Nor could we
have expected that significant new findings on past rock-crushing activities at the ROA site would
be forthcoming on remand, given NEMG’s exhaustive historical search for evidence concerning
such operations. Rather, we remanded the case for the Environmental Division to “revisit its
findings,” in relevant part, concerning whether “NEMG’s operations give rise to a substantial
change, analyzed consistent with the guidance set forth” in the opinion. Id. ¶ 36. That guidance,
as detailed above, called for a more granular approach, taking into account relative distances from
previous rock-crushing operations, in determining whether the challenged operations constituted
a substantial change.
¶ 28. That is precisely what the Environmental Division did on remand. The
Environmental Division stated that it was revisiting the existing record after the parties—not
surprisingly given the thoroughness of the evidence presented in the first evidentiary hearing—
declined an opportunity to introduce new evidence. The Environmental Division further indicated
that it was supplementing its findings with several facts to “clarify the relative locations of the
different historical crushing sites on the ROA tract.” In attempting to apply this Court’s analysis
in NEMG I, the Environmental Division struggled to make sense of our determination that a tract-
wide approach could be used in assessing whether the challenged operations were part of a
preexisting development but not in determining whether those operations constituted a substantial
13
change to any such preexisting development. Recognizing that this Court directed it to assign
appropriate weight to different uses on the ROA tract depending on their location within the tract,
and that the fundamental question was whether the preexisting development was being operated
in the same manner as before the enactment of Act 250, the Environmental Division concluded
that the challenged rock-crushing operations were not a cognizable change from past use.
¶ 29. The Environmental Division found that: (1) the historical quarries formed a north-
south line within the ROA industrial complex; (2) there had been rock-crushing operations in the
early twentieth century and after 1970 on the challenged site, which is located within the second
southernmost of the four quarries; and (3) there had also been pre-1970 crushing operations of at
least a similar rate and intensity at the second northernmost quarry approximately 0.8 miles from
the challenged site and at the northernmost quarry approximately 1.6 miles from the site.
Considering the relative distance between the various rock-crushing operations over the past one-
hundred-plus years along the line of quarries within the industrial complex, the Environmental
Division concluded that the challenged crushing operations fit squarely within the pattern of
crushing operations that had occurred intermittently over many decades before the enactment of
Act 250—a pattern of relocating the operations from one area of a preexisting quarry to another as
needed depending on where the stone was being extracted. The Environmental Division further
concluded that there was no cognizable change in activity because the crushing operations were
part and parcel of dimension stone quarrying and were inherently mobile and intermittent in nature.
¶ 30. In short, just as this Court directed, the Environmental Division revisited its
findings, adding a few with respect to the specific location of past rock-crushing operations, and
took a more granular approach in determining whether there had been a cognizable change with
respect to the challenged crushing operations. After carefully considering the extensive record,
the Environmental Division concluded—like three different District 5 Environmental Commission
coordinators before it—that there was no cognizable change and thus no Act 250 permit was
14
required. Both the record and the law fully support the Environmental Division’s findings, its
rationale, and its ultimate conclusion.
¶ 31. The majority rejects the Environmental Division’s new rationale as inconsistent
with the substantial-change analysis set forth in NEMG I because it cut off the analysis at the
cognizable-change step. By rejecting the Environmental Division’s analysis on this basis, the
majority overtly collapses the established two-part substantial-change test, even though this Court
explicitly stated in NEMG I, as recognized by the Environmental Division on remand, that we
were not collapsing the two prongs of the test into one. 2015 VT 79, ¶ 31 n.16; see In re Vt. RSA
Ltd. P’ship, 2007 VT 23, ¶¶ 10-11, 181 Vt. 589, 925 A.2d 1006 (mem.) (noting that Environmental
Board analyzed potential for significant impacts only after finding that cognizable-change prong
had been met); In re F.W. Whitcomb Constr. Co., Declaratory Ruling No. 408, slip op. at 11 (Vt.
Envtl. Bd. Aug. 28, 2002), https://perma.cc/WCL7-ARWQ (“Because the Board finds no
cognizable physical change, the Board does not go on to determine whether any change has the
potential for significant impact under any Act 250 criterion.”).
¶ 32. The majority also effectively imposes upon NEMG the burden of proving no
substantial change, while at the same time acknowledging that our law places that burden of proof
on the party claiming a substantial change to a preexisting development. As the majority
recognizes, a party seeking to impose Act 250 jurisdiction with respect to a preexisting
development has the ultimate burden of showing that there has been a substantial change to the
preexisting development. Vt. RSA Ltd. P’ship, 2007 VT 23, ¶ 10. To be sure, the Environmental
Board ruled in past decisions that the holder of the Act 250 exemption has the burden of producing
sufficient information on pre- and post-1970 operations to allow the finder of fact to ascertain if a
substantial change has occurred. In re Thomas Howrigan Gravel Extraction, Declaratory Ruling
No. 358, slip op. at 14 (Vt. Envtl. Bd. Aug. 30, 1999), https://perma.cc/VG6M-CQQB. But, as the
majority recognizes, this burden of production is placed on the owner/operator of the preexisting
15
development because of the practicality of placing the burden on the party most likely to have that
information. That burden was met here.
¶ 33. The instant case is far different than those relied upon by the majority, in the sense
that NEMG was not withholding information that it should have kept. Cf. In re John Gross Sand
& Gravel, Declaratory Ruling No. 280, slip op. at 11 (Vt. Envtl. Bd. July 28, 1993),
https://perma.cc/7C3A-5AXM (stating petitioner’s claim that records concerning various
businesses were commingled and intertwined did not excuse petitioner “from meeting its burden
of production” regarding gravel extraction rates before and after 1970). Nor is this a situation
where the owner/operator of the preexisting development did not disclose the nature of the
proposed activity. Cf. In re Orzel, 145 Vt. 355, 359, 491 A.2d 1013, 1015 (1985) (noting Board’s
finding that petitioners had no specific proposal for their operation, and stating that Board could
not “determine whether some activity constitutes a substantial change to a pre-existing operation
unless it is made aware of what that activity is”). Rather, as the Environmental Division found,
the lack of extensive information was due to the hundred-year history of the preexisting
development and the typical lack of record-keeping for past crushing activities. The
Environmental Division also found that because rock-crushing was “part-and-parcel” with
dimension stone quarrying, it “is precisely the kind of activity that might escape formal recording.”
¶ 34. Still, NEMG was able to uncover through a diligent search of historical records, as
the Environmental Division found, “impressive evidence of historical rock crushing” supporting
the Environmental Division’s conclusion that the challenged crushing operations were not a
cognizable change from pre-1970 crushing activities occurring intermittently over more than a
hundred years on a mile or two line of quarries within the heart of an industrial quarry complex.
On the other side, the objecting parties, upon whom the burden of proof of showing a substantial
change ultimately rests, produced nothing showing that there had been a substantial change. As
the Environmental Division found, rock crushing has been integrally intertwined with dimension
stone quarrying at the ROA complex and has gone on continuously, albeit intermittently, since the
16
early twentieth century. Thus, per this Court’s remand instructions, the Environmental Division
engaged in a more granular approach, ultimately concluding that the inherently mobile rock-
crushing operations had continued intermittently for over a century within a line of quarries that
included the site of the challenged rock-crushing operations as well as other locations within less
than a mile to about a mile and a half of the site.
¶ 35. The majority has never made it clear what are the parameters of its required “more
granular” approach, but apparently, judging from this opinion, NEMG and other companies
operating within the ROA industrial complex will now have to obtain a new Act 250 permit for
rock crushing every time they move their inherently mobile rock-crushing operations to a new spot
in the quarry, despite the evidence of intermittent rock crushing at the NEMG quarrying operations
for over a century. Mirabile dictu! That the majority may not agree with the facts as found by the
Environmental Division does not mean that those facts found are insufficient or unsupported. The
Environmental Division did as they were instructed and reached legal conclusions supported by
the facts it found. I would affirm the Environmental Division’s decision and therefore I
respectfully dissent.
¶ 36. I am authorized to state that Justice Skoglund joins this dissent.
Associate Justice
17