NE Materials Group, LLC Act 250 ( 2015 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket No. 143-10-12 Vtec
N.E. Materials Group LLC A250 JO #5-21 DECISION ON THE MERITS
This matter is comes to the Court on remand from the Vermont Supreme Court’s
decision in In re N.E. Materials Grp. Act 250 JO, 2015 VT 79. In our original decision, thirteen
citizens, collectively “Neighbors for Healthy Communities” (Appellants), appealed a September
28, 2012 jurisdictional opinion of the District 5 Environmental Commission Coordinator (District
Coordinator), which determined that North East Materials Group, LLC’s (NEMG) rock crushing
operations, located at the Rock of Ages (ROA) quarry in the Town of Barre, Vermont,1 did not
require an Act 250 permit.2 NEMG argued that its rock crusher was part of a preexisting
development and therefore exempt from Act 250 jurisdiction. See 10 V.S.A. § 6081(b).
Appellants argued that NEMG’s rock crushing operation constituted a “substantial change” to
NEMG’s preexisting quarry activities and was therefore subject to Act 250 jurisdiction. See id.
We held that NEMG’s rock crusher was not a substantial change to ROA’s preexisting quarry
operation, and therefore not subject to Act 250 jurisdiction. In re N.E. Materials Grp. LLC A250
JO #5-21, No. 143-10-12 Vtec, slip op. at 14–15 (Vt. Super. Ct. Envtl. Div. Apr. 28, 2014) (Walsh,
J.). The Supreme Court reversed and remanded to this Court. 2015 VT 79, ¶ 36.
On remand, this Court afforded the parties an opportunity to introduce new evidence.
The parties declined the opportunity to reopen the trial and offer additional evidence;
however, they did file post-remand briefs offering different ways of interpreting the Supreme
Court’s remand decision. The Court therefore revisits the existing record in the case and
renders the following findings of fact and conclusions of law. The factual findings include all
1
Although this appeal is captioned “In re North East Materials Group, LLC,” the Rock of Ages Corporation,
the owner and operator of the Rock of Ages quarry, is also an appellee.
2
A thorough procedural history of the case is provided in our original decision on the merits. See In re
N.E. Materials Grp. LLC A250 JO, No. 143-10-12 Vtec, slip op. at 1–3 (Vt. Super. Ct. Envtl. Div. Apr. 28, 2014) (Walsh,
J.).
1
unchallenged findings from our first decision.3 We have stricken findings regarding the
northernmost Wells-Lamson rock crushing facility (which provided a sub-base for I-89), since
the northernmost Wells-Lamson parcel was never aggregated onto the ROA tract. See id. ¶ 34.
We supplement our findings with several facts (all indicated “added on remand”) to help clarify
the relative locations of the different historical crushing sites on the ROA tract. We have also
added more detailed findings regarding the impacts of crushing on the neighbors. All of the
findings have been put into context by the site visit the Court conducted on December 4, 2013,
at which Alan Biederman and James Goss, attorneys for Applicant, and Christopher Ahlers and
Douglas Ruley, attorneys for Appellants, were present.4
Findings of Fact
1. NEMG operates a rock crusher on large tract of land owned by the Rock of Ages
Corporation. (Added on remand).
2. The Rock of Ages Corporation is a quarrying operation comprised of several smaller
individual quarries active from the late 1800s to current times, now all aggregated as a single
parcel under the Rock of Ages Corporation ownership and operation.
3. All total, ROA comprises approximately 930 acres in Barre, Vermont and 230 acres in
Williamstown, Vermont.
4. Some of the historic individual quarries were previously owned and operated by the
Boutwell, Milne & Varnum Corporation, the E.L. Smith & Company, the Wetmore & Morse
Granite Company, and the Wells-Lamson quarry Company.
5. The NEMG crusher is located on what was historically the Boutwell, Milne & Varnum
Corporation quarry. (Added on remand).
6. These quarries are adjacent to one another and are aligned in a more or less north-
south configuration.
3
We have made minor stylistic alterations to some of our original findings, but the original findings
remain substantively unchanged unless otherwise noted.
4
Attorney Ruley has withdrawn from this appeal as of December 21, 2015. Laura Murphy is now lead
counsel for Appellants.
2
7. The northernmost historic quarry is the Wells-Lamson quarry (which is bisected by
Websterville Road). South of Wells-Lamson lies the Smith quarry. South of that is the Boutwell,
Milne & Varnum quarry site (later known as the McCullough, McDonald & Pike site), where the
NEMG crusher is presently located). South still lies the Adams quarry. (Added on remand).
8. Websterville Road marks the northern boundary of the ROA tract. (Added on Remand).
9. Several roads transect the ROA property, including Graniteville Road. Roads also
connect work areas throughout the ROA property.
10. Three sites, including the Smith quarry and the former Wells-Lamson crusher site, are
located north of Graniteville Road. Two quarrying sites, including the Adams quarry, are
located south of Graniteville Road, as is the NEMG crushing operation at issue here.
11. Granite quarrying is a process of cutting and extracting large blocks of stone for sale or
to be further processed into monuments or other industrial products and then sold. The large
blocks of granite suitable for monuments and similar uses are referred to as “dimension stone.”
12. Quarrying activity moves deeper into the earth over time. Typically, higher quality
material is found the deeper one mines a quarry.
13. The depth of a quarry is limited by the ability of derricks to lift the blocks out of the
quarry or by the horizontal acreage available to build roads down into the quarry.
14. At the inception of a quarry, the overburden soil and rock is removed to expose the
underlying granite. The granite closest to the surface is called “bedding” and is typically
unsuitable for sale or use as dimension stone. It is typical for ROA to need to remove 80 to 200
feet of bedding to reach suitable dimension stone. Removal of overburden soil and bedding is
referred to as quarry “development.” Development is expensive and produces considerable
volumes of soil and stone which is either trucked off-site or piled on-site.
15. This overburden is waste material unless the rock component is crushed into usable and
salable product. Up to 80 percent of quarry material is waste.
16. “Grout” is waste granite which is not suitable for the high-end dimension stone.
17. Crushing makes use of the waste from development material, including grout, by
reducing the material to usable and salable sizes.
18. Much of the material in ROA’s grout piles is too large for crushing.
3
19. The crushing process is common at dimension quarries in order to utilize the otherwise
waste material.
20. Crushing is not absolutely necessary for quarrying, but it does “help your bottom line,”
because it turns what would otherwise be waste material into a valuable product. (Added on
remand).
21. Crushing rock at various locations is customary in the industry because the equipment is
often portable and the source of material (or “feedstock”) may change.
22. Rock crushing is also customarily intermittent. The frequency and location of rock
crushing varies depending on the availability and location of feedstock and demand for crushed
rock.
23. Crushing entails drilling, blasting, removal, and transport of rock to the crusher
equipment. While many of today’s crushing operations use portable equipment, material is
typically moved from the extraction area to the crusher.
24. Don Murray, ROA Engineer, has personal knowledge of crushing at ROA since the 1960s.
Mr. Murray has completed significant research into crushing activities at ROA preceding 1960.
25. Don Murray has worked at Rock of Ages since 1979. (Added on remand).
26. In the early 1900s there was a crushing plant in Barre installed by J.M. Boutwell at the
Boutwell, Milne & Varnum Corporation quarry. This crushing plant utilized waste stone from
the quarries.5
27. Photographic evidence shows that crushing activity took place around 1912 near the
current compressor building on the south side of Graniteville Road in close proximity to NEMG’s
crushing location. It was common at this time for crushed material to be placed in rail cars and
transported off-site.
28. As far back as 1926, the former Wells-Lamson quarry Company conducted crushing,
including a crushing operation producing poultry grit and road aggregate. This crushing
continued through the 1940s and into the 1960s. By 1948, this quarry and crusher had been
conveyed to ROA.
5
To better conform to the evidence before the Court, this finding is modified on remand by deleting “As
early as 1904” and replacing it with “In the early 1900s.”
4
29. This crushing operation described in Finding 28 was on the southern portion of the
Wells-Lamson parcel (south of Websterville Road). Wells-Lamson also built a crushing
operation on the northern side of Websterville Road in 1956. This crushing operation produced
much of the sub-base for Interstate 89. This northern portion of the Wells-Lamson quarry was
never aggregated into the ROA tract. (Added on remand).
30. Kelley Construction, Inc. contracted with ROA in August 1969 to remove overburden and
rock in the Smith quarry. Activities included the planned crushing of approximately 40,000
cubic yards of material for sale. This work was undertaken between September 1969 and April
1970.
31. In 1988, Rock of Ages entered into a ten-year contract with Cooley Asphalt Paving
Corporation, in which Cooley agreed to remove rock from ROA’s grout piles and crush it off-site.
This contract begins by noting that Cooley had been removing rock from ROA’s tract for a
“period of time” before the contract, and that the parties “wish[] to formalize this practice in a
written agreement.” From this, the Court infers that it was common practice in the quarrying
industry to conduct crushing without formal contracts. (Added on remand).
32. McCullough Crushing, Inc. was awarded an Air Pollution Control Permit in January 1990
from the Vermont Agency of Natural Resources for a portable crushed stone/gravel processing
plant.
33. From July 1990 to November 1990 McCullough Crushing removed more than 55,000
tons of crushed granite from the Adams quarry.
34. McCullough Crushing’s equipment included a jaw crusher, a cone crusher, a conveyor,
and a screen. This equipment is similar to NEMG’s crushing equipment.
35. During the 1990s, McCullough’s crushing took place in a similar area to NEMG’s current
location. This activity included similar truck traffic.
36. In 1992 and 1993, Pike Industries, a crushing subcontractor, primarily crushed rock at
the northern Wells-Lamson parcel (off-site), but also crushed 18,118 tons of rock on the current
NEMG site. (Added on remand).
37. The E.L. Smith & Company quarry included crushing activity from 2005 to 2007. The E.L.
Smith & Company quarry is located approximately 0.8 miles to the north of NEMG operations.
5
38. According to Donald Murray’s credible testimony, rock crushing within the ROA tract
has been “pretty much continuous” since 1979, when he started working for Rock of Ages.
(Added on remand).
39. NEMG entered into a contract with ROA to crush waste rock on-site into salable
material.
40. The rock crusher at issue, operated by NEMG between the Smith and Adam quarries,
began operating in 2009 after the District 5 Environmental Commission Coordinator
determined, in a December 17, 2008 jurisdictional opinion, No. 5-01, that the proposed
crushing operation did not require an Act 250 permit.
41. The District Coordinator issued additional jurisdictional opinions in 2010 and 2012
finding that rock crushing operations adjacent to the Smith quarry at Rock of Ages did not
constitute a substantial change to a preexisting development and that the associated rock
crusher therefore did not require an Act 250 permit.
42. NEMG crushed 20,285 tons of material in 2010; 155,577 tons in 2011; 89,667 tons in
2012; and 59,279 tons in 2013. The spike in crushing in 2011 was due to Tropical Storm Irene
when the Vermont Natural Resources Board suspended Act 250 permitting needs for gravel and
quarry operators due to the increased need for road-building material in order to rebuild
infrastructure destroyed in the storm.
43. NEMG’s crushing activity is intermittent. NEMG crushes when material is needed.
Crushing typically does not take place during the winter months.
44. In 2011, NEMG crushed on 53 days. In 2012, NEMG crushed on 83 days, and in 2013,
NEMG crushed on 43 days.
45. NEMG’s crushing operations have moved around the ROA property over this time.
46. NEMG’s current crushing operations include crushing and screening. The equipment
includes two jaw crushers, a cone crusher, a triple-deck screen, loaders, and excavators.
47. The primary crusher breaks large material into smaller pieces that fit into the jaw
crusher. The primary crusher is a hydraulic hammer.
48. There have been machinery improvements over time since the first crusher at the
Boutwell quarry in the early 1900s; however, the process of crushing remains the same. A large
6
primary crusher crushes rock followed by a smaller crusher further reducing rock size. Screens
are used to separate the crushed rock by size suitable for various purposes.
49. NEMG does not own delivery trucks. Material is transported off-site by customers using
their own trucks. NEMG does own one truck that hauls grout.
50. On June 5, 2013, ANR issued an Air Pollution Control Permit to Construct to NEMG for
installation of crushing, screening, and conveying equipment. The ANR permit allows two
primary crushers, two secondary crushers, three screening decks, discharge and stacking
conveyors, and a diesel powered electric generator.
51. Neighbors in the area of crushing experience noise, dust, and traffic. Common noises
are material being loaded or unloaded. Dust accumulates on house windows, outside furniture,
lawns, and cars. When traveling on area roads, it is common to encounter dump trucks on
Graniteville Road traveling to or from the crushing activity.
52. Dimension stone is typically transported on flatbed tractor trailer trucks. Crushed
material, also called aggregate, is typically transported in dump trucks. ROA’s dimension stone
operations also use dump trucks.
53. ROA’s dimension stone quarrying activities also create noise, dust, and truck traffic.
54. Suzanne Bennet has lived at her current residence on Park Street off Graniteville Road
since 1961. (Added on remand).
55. Ms. Bennet experiences noises like stone on metal that are loud enough to wake her up
in the morning and that continue until 8:00 or 8:30 at night. These noises started in roughly
2011. (Added on remand).
56. Ms. Bennett also experiences a coating of gritty dust on the exterior of her house, her
lawn, her outdoor furniture, and her car. (Added on remand).
57. Ms. Bennet experiences increased truck traffic from the crusher. (Added on remand).
58. Pamela Austin has lived on Graniteville Road since 1982. Before that, she lived two
houses down on Graniteville Road since 1969. (Added on remand).
59. Ms. Austin experiences loud noises from the crusher, which are distinct from the noises
she hears from the ROA compressor house located behind her property. (Added on remand).
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60. Ms. Austin experiences a coating of dust on her property, which she attributes to dust
coming off the dump trucks that haul aggregate from the NEMG crusher past her house. (Added
on remand).
61. Ms. Austin experiences increased truck traffic due to trucks hauling aggregate from the
NEMG site. (Added on remand).
62. Mark Bernier has lived at 11 Park Street in Graniteville, across the street from Suzanne
Bennett, who is his mother-in-law, since 1993. (Added on remand).
63. Mr. Bernier lives roughly 2,000 feet from the NEMG crusher. Mr. Bernier experiences
very loud noise from the crusher. (Added on remand).
64. Mr. Bernier also experiences dust in the area. (Added on remand).
65. Mr. Bernier experiences increased truck traffic on Graniteville Road from dump trucks
hauling aggregate from the NEMG site. (Added on remand).
Conclusions of Law
After the Supreme Court’s decision, the basic skeleton of Act 250 jurisdiction is
unchanged. A party proposing land “development” must obtain an Act 250 permit. 10 V.S.A.
§ 6081(a). Any development that was commenced before June 1, 1970 is a “pre-existing
development” and is exempt from the permit requirement. 10 V.S.A. § 6081(b); Act 250 Rule
(2)(C)(8). The preexisting development exemption disappears, however, if the land owner
abandons the preexisting use. In re Village of Cambridge Water Sys., No. 272, Findings of Fact,
Conclusions of Law, and Order, at 8 (Vt. Envtl. Bd. Sept. 15, 1993).
A permit is also required for any “substantial change” to a preexisting development. 10
V.S.A. § 6081(b). Vermont courts have long used a two-step test for substantial change—a test
the Supreme Court affirmed in its North East Materials decision. 2015 VT 79, ¶¶ 16, 31 n.16.
First, a court must find that there is a “cognizable physical change” in the preexisting
development. Id. ¶ 43 (Eaton, J., dissenting) (quoting In re H.A. Manosh Corp., 147 Vt. 367, 370
(1986)). If so (and only if so), the issue becomes whether the change has the potential for
significant adverse impacts under the Act 250 criteria. Id. (quoting Manosh, 147 Vt. at 370).
8
A landowner seeking a preexisting development exemption has the burden of proving
that the development existed prior to June 1, 1970. Id. ¶ 20. The landowner must also prove
that the preexisting use has not been abandoned. In re Village of Cambridge Water Sys., No.
272, Findings of Fact, Conclusions of Law, and Order, at 8 (Vt. Envtl. Bd. Sept. 15, 1993). Once a
development is determined to be preexisting, “the burden shifts to the proponents of
jurisdiction to demonstrate that a project represents a substantial change to the preexisting
development.” In re Vt. RSA Ltd. P’ship, 2007 VT 23, ¶ 10, 181 Vt. 589. The party seeking an
exemption, however, retains the burden of producing sufficient information regarding the pre-
1970 operation for the Court to determine whether a substantial change exists. N.E. Materials
Grp., 2015 VT 79, ¶ 22.
In our original decision on the merits, we concluded that NEMG’s rock crushing activities
were within the scope of ROA’s preexisting quarry development and did not constitute a
substantial change to that development. In re N.E. Materials Grp. LLC A250 JO #5-21, No. 143-
10-12 Vtec, slip op. at 10, 14–15 (Vt. Super. Ct. Envtl. Div. Apr. 28, 2014) (Walsh, J.). In reaching
this conclusion, we considered ROA’s large quarry tract as a whole. Id. at 12. We also rejected
Appellants’ claim that ROA abandoned its crushing activities after 1970, again basing this
conclusion on an examination of the quarry tract as a whole. Id.
The Vermont Supreme Court reversed on appeal. N.E. Materials Grp., 2015 VT 79, ¶ 35.
The Supreme Court agreed that it was appropriate to treat the ROA tract as a unified whole in
determining that rock crushing is, in a general sense, part of ROA’s preexisting development
(and to shift the burden of persuasion to Appellants on that basis). See id. ¶ 24. But the
Supreme Court concluded that we could not consider the tract as a whole in “establishing some
sort of baseline” against which cognizable physical change could be measured. Id. at ¶ 24.
Rather, the Supreme Court instructed us to apply “some level of granularity” to the tract in our
cognizable physical change analysis on remand. Id. ¶ 30. Though the Supreme Court’s
reasoning for this holding rested heavily on the potential impacts from the crusher, the
Supreme Court affirmed the Environmental Board’s longstanding two-step test for substantial
change: (1) is the challenged use a “cognizable physical change” to the development and (2) if
9
so, does this cognizable physical change have the potential for significant adverse impacts
under the Act 250 criteria. 6 Id. ¶ 16.
Given this legal framework, the Supreme Court concluded that our opinion lacked
sufficient “subsidiary findings” to support the conclusion that crushing falls within the scope of
ROA’s preexisting development; that ROA did not abandon its rock crushing operations; and
that NEMG’s crushing does not constitute a substantial change to ROA’s development. 2015 VT
79, ¶¶ 32–36. We are instructed to revisit the evidence and reexamine these issues on
remand. Id. ¶ 36.
I. Preexisting Development & Abandonment
We turn first to whether rock crushing is within the scope of ROA’s preexisting quarry
development and whether ROA ever abandoned rock crushing. We consider the two issues
together because Applicant bears the burden on both. See id. ¶ 24; In re Village of Cambridge
Water Sys., No. 272, Findings of Fact, Conclusions of Law, and Order, at 8 (Vt. Envtl. Bd. Sept.
15, 1993). We consider both these issues using a tract-wide approach (as opposed to the more
granular approach required for cognizable physical change, see N.E. Materials Grp., 2015 VT 79,
¶ 30).7
Our findings show a long history of rock crushing at various sites in the ROA tract. There
was crushing at the Boutwell, Milne & Varnum parcel as early as 1912 and again in the 1920s.
There was crushing on the southern portion of the Wells-Lamson quarry (which eventually
6
The majority opinion maintains the two-step substantial change analysis. Id. ¶¶ 16, 31 n.16. The
Supreme Court’s primary rationale for rejecting our tract-wide approach to cognizable physical change was that
the same activity might have different Act 250 impacts (or impacts on different neighbors) depending on where
the activity occurs on the site. Id. ¶¶ 26–27. The majority’s cognizable physical change rationale therefore takes
account of Act 250 impacts, which, under the two-pronged approach, are only relevant once there is a cognizable
change. The dissent was therefore concerned that the majority opinion collapsed the traditional test. Id. ¶ 43
(Eaton, J., dissenting). The majority responded, “[W]e are not, as the dissent suggests, ‘collapsing’ the two prongs
of the substantial-change test into one.” Id. ¶ 31 n.16. We emphasize this language and note that, on remand, we
understand the two-step substantial change analysis to remain intact.
7
The Supreme Court affirmed our tract-wide approach to preexisting-development analysis but was silent
on whether abandonment required a more granular approach. We note that the non-abandonment requirement
is not codified in the statute, but has been created by the Supreme Court’s and the Board’s Act 250 decisions. See
In re Orzel, 156 Vt. 355, 359 (1985); In re Nadeau, No. 141, Findings of Fact, Conclusions of Law, and Order, at 3
(Vt. Envtl. Bd. June 23, 1983). Because the continuous use requirement is outgrowth of the statutory preexisting
use exemption, we hold that a tract-wide approach is appropriate for both issues.
10
became part of Rock of Ages) from various dates between 1926 to 1959. There was crushing at
the Smith quarry from 1969 and 1970. After 1970, McCullough Crushing, a subcontractor,
crushed at the NEMG site in the early 1990s. Pike Industries crushed at the NEMG site in 1992
and 1993. The E.L. Smith Company had crushing on its site from 2005 to 2007. And Donald
Murray testified, credibly, that crushing was “pretty much continuous” on the ROA tract since
he began working for the company in 1979.
Furthermore, the Court finds that crushing is a naturally mobile and intermittent
activity—quarry operators tend to move their crushing operations around a given site and use
them on an as-needed basis, depending on demand for rock and availability of feedstock.
Industry cycles and custom can be relevant in determining whether a project has been
abandoned. In re U.S. Quarried Slate Prods., Inc., Nos. 279 & 283, Findings of Fact, Conclusions
of Law, and Order (Reconsidered), at 22 (Vt. Envtl. Bd. Oct. 1, 1993). Because crushing is, by its
very nature, intermittent, gaps in crushing do not indicate abandonment; they indicate
continuous, intermittent crushing throughout the decades.
We also find that rock crushing is closely economically related to quarrying. Although
crushing is not strictly necessary for quarrying, it certainly “helps your bottom line.” While this
finding by no means conclusively shows that crushing occurred continuously throughout the
ROA tract, it does support the Court’s reasonable inference that crushing was happening even
when there are no concrete written records of it.
The Court also notes that, though landowners bear the burden of establishing a
preexisting, continuous use, courts must (and do8) view the evidence landowners are able to
provide through a practical lens. Before 1970, landowners had no notice that they might have
8
In the major cases in which the Environmental Board found abandonment of a preexisting use, there was
some affirmative evidence of abandonment and not merely a gap in evidence of use. See, e.g., In re U.S. Quarried
Slate Prods., Inc., Nos. 279 & 283, Findings of Fact, Conclusions of Law, and Order, at 16, 22–23 (Vt. Envtl. Bd. Oct.
1, 1993) (holding that quarry tract was abandoned where, among other things, operator had filed a report with a
federal agency stating that the quarry was “abandoned”); In re Champlain Marble Corp. (Fisk Quarry), No. 319,
Findings of Fact, Conclusions of Law, and Order (Vt. Envtl. Bd. Oct. 2, 1996) (holding that blasting at a quarry tract
was an abandoned use where there was no credible evidence of blasting since 1950 and where the quarry
operator had failed to register the quarry with the federal Mining Safety and Health Administration after all active
quarries were required to in 1973); cf. In re Orzel, 145 Vt. 355, 359 (1985) (“No evidence presented, nor findings
made, indicates that the operations, although intermittent, were abandoned at any time.”).
11
to prove the existence of uses that had been occurring on their land for decades, and
consequently often kept no records. This is especially true of activities that would have seemed
so part-and-parcel with the land’s primary use that they were not worth formalizing in written
documents. The fact that, for economic reasons, crushing often goes hand-in-hand with
quarrying shows that crushing is precisely the kind of activity that might escape formal
recording. The contract between ROA and Cooley Asphalt Paving Company, which notes in its
preamble that Cooley had been crushing rock for ROA “for a period of time” without a written
contract, illustrates this informality.
This practical approach does not relieve NEMG of its burden of establishing a
preexisting, continuous development, but it does color the Court’s understanding of how much
evidence it can reasonably demand from NEMG and ROA. Rock of Ages has, through a diligent
search of its historical records, uncovered impressive evidence of historical rock crushing.
Given this evidence, and given the Court’s findings about the economic relationship between
quarrying and crushing and about the industry custom of sub-contracting to crush rock without
formal, written contracts, the Court concludes that crushing was occurring continuously
(though intermittently) on the ROA tract since the early 20th century. We therefore conclude
that the ROA quarry, including crushing activities, is a preexisting development within the
meaning of 10 V.S.A. § 6081(b) and Act 250 Rule 2(C)(8) and that it was never abandoned.
II. Substantial Change
Because we find that crushing is part of ROA’s preexisting development and has not
been abandoned, we turn to whether the siting of NEMG’s crusher represents a substantial
change to that development. In order for a challenged use to represent a “substantial change”
to a preexisting development, it must first be found to be a “cognizable physical change” to the
development. If, and only if, the challenged use is a cognizable physical change, the issue
becomes whether the use has the potential for significant impacts under Act 250. N.E.
Materials Grp., 2015 VT 79, ¶ 43 (Eaton, J., dissenting).
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a. Cognizable Physical Change
In its decision, the Supreme Court held that we could not use a tract-wide approach in
analyzing whether the NEMG crushing operation is a cognizable physical change to ROA’s
preexisting development. Id. ¶ 30. In other words, historic instances of crushing at other sites
within the ROA tract cannot “establish[] some sort of baseline defeating any claim that NEMG’s
present operations constitute a cognizable change.” Id. ¶ 24. Rather, we must give appropriate
“weight” to those instances of historic crushing, id. ¶ 30 n.14, and apply “some level of
granularity” to the tract. Id. ¶ 30.
While it is clear from the Supreme Court’s decision that we may not use a tract-wide
approach in analyzing cognizable physical change, we are left with little guidance on what
approach to apply instead. We note first that the Supreme Court’s reasoning is not fully
compatible with traditional preexisting-development/substantial-change analysis. The
Environmental Board’s precedents use a binary approach: either a given use falls within the
scope of a preexisting development or it represents a substantial change to that development.
See, e.g., In re Barlow, No. 234, Findings of Fact, Conclusions of Law, and Order, at 9 (Vt. Envtl.
Bd. Sept. 20, 1991). That is not to say that these cases are unsophisticated. In In re Clifford’s
Loam & Gravel, Inc., an early preexisting development/substantial change case, the Board
outlined four factors that could be used to restrict the boundaries of the “preexisting
development” that could serve as a baseline for measuring cognizable physical change. In re
Clifford’s Loam & Gravel, No. 90, Findings of Fact, Conclusions of Law, and Order, at 3 (Vt. Envtl.
Bd. Nov. 6, 1978). But the analysis in these cases is still binary in the sense that the preexisting
development, once defined, necessarily serves as the baseline for measuring substantial
change: either a given use is within the scope of a preexisting development or it is a substantial
change to that development. See In re Clifford’s Loam & Gravel, Inc., No. 90, Findings of Fact,
Conclusions of Law, and Order, at 3 (Vt. Envtl. Bd. Nov. 6, 1978) (holding that public highways
or waterways might “defin[e] the limits of the pre-existing operation” (emphasis added)); In re
Weston Island Ventures, No. 169, at 5 (Vt. Envtl. Bd. June 3, 1985) (quoting Clifford’s Loam and
Gravel); In re Barlow, No. 234, Findings of Fact, Conclusions of Law, and Order, at 9 (Vt. Envtl.
Bd. Sept. 20, 1991) (characterizing the physical expansion of the gravel pit as a preexisting
13
development issue, and concluding that the area designated for expansion was “part of a pre-
existing gravel pit” and therefore not a cognizable physical change).
This is not the case with the Supreme Court’s decision. The Supreme Court upheld our
tract-wide approach to preexisting development analysis, but held that we could not use a
tract-wide approach to cognizable physical change. See N.E. Materials Grp., 2015 VT 79, ¶¶ 24,
30. The Court’s opinion then re-characterized the Clifford’s Loam and Gravel factors as part of
the substantial change analysis. See id. ¶ 29.
The Supreme Court did not explain this departure. It is possible that the Supreme Court
intended to simply relocate the Clifford’s line-drawing analysis from the preexisting
development prong to the substantial change prong, leaving it substantively unchanged. But if
this were the case, the only practical import of the Supreme Court’s holding would be to lighten
the burden on landowners by reassigning the burden of persuasion on the Clifford’s factors
from landowners to the proponents of jurisdiction (since landowners bear the burden of
persuasion on preexisting use issues and proponents bear the burden of persuasion on
substantial change issues, N.E. Materials Grp., 2015 VT 79, ¶ 20). If this were the Supreme
Court’s sole intent, it could have explicitly said so.9 Rather, the Supreme Court’s opinion
suggests that, in applying the Clifford’s factors in the substantial change analysis, we should not
draw hard lines around some baseline portion the ROA tract, but rather that we assign
appropriate “weight” to different uses on the ROA tract.10 N.E. Materials Grp., 2015 VT 79,
¶ 30, n.14 (citing Clifford’s Loam & Gravel) (“We conclude that factors such as distance
between sites and separation by a public highway affect the weight to be given to . . .
operations at another site within a tract. . . . But we do not adopt a bright-line rule precluding
any consideration of pre-1970 activities at formerly independently owned quarries in
9
The Court did explicitly shift the burden of persuasion on “whether the specific parameters of a
proposed post-1970 development are consistent with the scope of an established preexisting development” from
landowners to the proponents of jurisdiction, thereby converting preexisting development into a “threshold” issue.
N.E. Materials Grp., 2015 VT 79, ¶ 22. But the Court did not acknowledge that it was reassigning the burden of
defining a baseline for the cognizable physical change analysis.
10
If the Supreme Court’s opinion simply relocated the line-drawing analysis from the preexisting
development prong to the cognizable physical change prong, there would be no room for “weight[ing]” uses;
under the Board’s preexisting development precedents, either uses continuously occurred on the “baseline”
development or they did not.
14
connection with post-1970 proposed development.” (internal citation omitted)). We therefore
do not interpret the Supreme Court’s holding to require us to actually choose a precise “level of
granularity” for the ROA tract or to delineate which parts of the tract may serve as a “baseline”
for measuring substantial change.
The fundamental question in cognizable physical change analysis is whether the
development is being “operated in essentially the same manner as it was before June 1, 1970.”
F.W. Whitcomb Constr. Co., No. 408, Findings of Fact, Conclusions of Law, and Order, at 10 (Vt.
Envtl. Bd. Dec. 19, 2002) (internal quotation omitted). In the gravel cases, which the Supreme
Court considered analogous, id. ¶ 30, the Environmental Board recognized that gravel pits, by
their very nature, expand physically as gravel is extracted. N.E. Materials Grp., 2015 VT 79, ¶ 29
(quoting In re Weston Island Ventures, No. 169, Findings of Fact, Conclusions of Law, and Order,
at 6 (Vt. Envtl. Bd. June 3, 1985)). Thus, under these cases, gravel pits could continue to
expand at their historic rates without triggering Act 250 jurisdiction because they were being
operated in essentially the same manner as they were before 1970. Id. If, 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. Id. ¶ 30. In
determining whether the area designated for expansion is sufficiently distinct from the already-
developed area, these cases considered whether (1) new land had been acquired, (2) a
substantial distance separated the historic and expanded gravel sites, (3) the operations
themselves had changed (such as by adding a stone crusher) and (4) the presence of
intervening rights of way or public waterways. Id. ¶ 29 (quoting Clifford’s Loam & Gravel). The
Board also considered the previously undeveloped character of an area designated for
expansion relevant in finding than an expansion was inconsistent with pre-1970 growth.
Compare In re Weston Island Ventures, No. 169, at 5 (Vt. Envtl. Bd. June 3, 1985) (holding that
an expansion to a previously undeveloped area across Route 100 was a cognizable physical
change) with In re Barlow, No. 234, Findings of Fact, Conclusions of Law, and Order, at 9 (Vt.
Envtl. Bd. Sept. 20, 1991) (holding that expansion of gravel extraction across a residential right
of way to another pit that had already been used for extracting sand and dirt was not).
15
Just as gravel pits naturally and inherently expand, rock crushing operations are
naturally and inherently mobile. Therefore, just as the gravel cases asked whether a particular
expansion of a gravel pit was consistent with a pit’s historic pattern of expansion, we ultimately
interpret the Supreme Court’s decision to require us to determine whether, under the Clifford’s
factors, 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. If, for instance, most rock crushing within a contiguous parcel had moved from site
to site within a relatively contained area, and then the landowner sought to begin crushing in a
previously undeveloped area a comparatively significant distance away and across
comparatively significant natural boundaries, this move might mark a cognizable change. If, on
the other hand, 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.” F.W. Whitcomb Constr. Co., No. 408, Findings of
Fact, Conclusions of Law, and Order, at 10 (Vt. Envtl. Bd. Dec. 19, 2002) (internal quotation
omitted).
Applying this approach to the NEMG crusher on remand, we conclude that the crusher
fits the latter fact pattern more closely than the former, and is not a cognizable physical change
to ROA’s preexisting crushing operations. Again, we find that rock crushing is an inherently
mobile activity. Quarry operators tend to move their crushing operations around their quarries
in accordance with customer demand and supply of waste rock feedstock. This finding is
supported by the “subsidiary” finding that rock crushing occurred at various sites within the
ROA tract in significant quantities for over a century. Before 1970, there were rock crushing
operations on the NEMG site, on Smith quarry site (roughly 0.8 miles from the NEMG site and
across a public highway), and on the southern portion of the former Wells-Lamson quarry
(roughly 1.6 miles from the NEMG site, at what is now the northernmost point of the ROA
tract). Thus, movement across significant distances and public highways has always
characterized ROA’s (or its constituent quarry operators’) crushing operations. And, as in In re
Barlow, the NEMG site has seen crushing before. In re Barlow, No. 234, Findings of Fact,
16
Conclusions of Law, and Order, at 9 (Vt. Envtl. Bd. Sept. 20, 1991). It is not as though the
present relocation of crushing to the NEMG site is an unprecedented expansion of rock
crushing to a previously undeveloped area. This pattern of mobile and intermittent crushing
sets the baseline for how distinct a relocation within the tract must be to trigger Act 250
jurisdiction. While the NEMG site is separated by a public highway and by some distance from
other proven sites of historic crushing on the ROA tract (namely, the Smith and southern Wells-
Lamson sites), these distances and intervening boundaries are characteristic of ROA’s pattern of
mobile and responsive crushing operations.
We also find that the other basis for a cognizable physical change—an increase in rate
or intensity of activity, see id. ¶ 34—is not present in this case, for we are not persuaded that
the NEMG crusher exceeds historic quantities of rock crushing. ROA and NEMG produced a
contract between ROA and a crushing subcontractor anticipating that 40,000 cubic yards of
rock would be crushed at the Smith quarry11 in the six months between September 1969 and
April 1970.12 NEMG also produced yearly crushing totals for all the years it has operated.13
Appellants, who bear the burden of persuasion, introduced no evidence showing that NEMG’s
11 We recognize that this evidence relates to the Smith quarry, which is roughly 0.8 miles north of the
NEMG site across Graniteville Road. But, again, we do not interpret the Supreme Court’s decision to place hard
limits (or to require us to place hard limits) on what evidence of historic crushing may be relevant in establishing a
baseline for ROA’s pre-1970 crushing operations. As we discussed in Part I, we hesitate to require landowners to
establish, with scientific accuracy, the precise rates and intensities of their land uses before 1970. Before 1970,
landowners had no notice that they might someday be required produce evidence in court of the way they had
been using their land for decades. We therefore review evidence landowners can supply through a practical lens.
Here, our overarching understanding of rock crushing operations is that they move within a quarry tract based on
supply of rock and demand for gravel, but they generally remain unchanged otherwise. We therefore consider
evidence of rates of crushing at the nearby Smith quarry to be sufficient evidence to form a baseline of “amount
and frequency of pre-1970 crushing.” See N.E. Materials Grp., 2015 VT 79, ¶ 34.
12
On cross-examination, Appellants pointed out that an invoice for services under the contract did not
distinguish between amounts ROA owed to its subcontractor (for the service of removing overburden rock) and
amounts the sub-contractor owed to ROA (as a royalty for rock actually crushed). Donald Murray, ROA’s primary
witness, conceded that this might show that no rock was actually crushed. The Court finds it equally possible that
this handwritten invoice was merely hastily done. Appellants have, therefore, not persuaded the Court that ROA’s
and NEMG’s evidence shows that anything other than 40,000 cubic yards of material were crushed under the
contract.
13
We do not consider crushing from 2011 or 2012 to be representative of ROA’s post 1970 crushing
quantities, since NEMG was crushing rock for road reconstruction after Hurricane Irene under emergency
conditions in these years.
17
expected yearly crushing totals differ from this historic benchmark.14 We therefore find that
the NEMG crusher does not represent any marked increase in crushing quantity, and find no
cognizable physical change on that basis.
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’s 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. F.W. Whitcomb Constr. Co., No. 408, Findings of Fact, Conclusions of Law,
and Order, at 10 (Vt. Envtl. Bd. Dec. 19, 2002) (internal quotation omitted).
b. Potential for Significant Impacts
Finally, we address the last prong in determining Act 250 jurisdiction: the potential for a
cognizable change to have significant impacts under Act 250. We emphasize again that we do
not consider the Supreme Court’s opinion to alter the sequence of the traditional two-step
substantial change analysis, where we do not examine potential impacts unless we find a
cognizable physical change. In re N.E. Materials Grp., 2015 VT 79, ¶ 30 n.14 Because we
conclude there is no cognizable physical change to the ROA development, we do not reach the
“impacts” prong of the substantial change analysis.
We do note, however, that even if the relocation of the NEMG crusher were a
cognizable physical change, we think it unlikely to have significant Act 250 impacts. In order to
trigger Act 250 jurisdiction, a cognizable physical change must have the potential for significant
Act 250 impacts. Act 250 Rule 2(C)(7). While the Environmental Board and the Supreme Court
14
The contract for crushing on the Smith quarry in 1969 measured crushed rock in cubic yards, whereas
the yearly crushing totals NEMG produced measure crushed rock in tons. Appellants introduced no evidence to
enable the Court to compare these figures, and did not suggest that NEMG’s current crushing exceeds the
quantities crushed in 1969 on the Smith quarry.
18
have repeatedly held that potential (and not actual) impacts are sufficient to trigger Act 250
jurisdiction, this does not diminish the requirement that those impacts be significant. In re
Barlow, 160 Vt. 513, 522 (1993) (“Any change in use has the potential for some impact on the
statutory criteria. Thus, while we agree that the Board may act on potential impacts, we
believe a finding of significant impacts is necessary if the requirement of ‘substantial change’ is
not to be illusory.”). This is consistent with the Supreme Court’s language about the general
purposes (and jurisdictional limits) of Act 250—that, in passing Act 250, the Legislature
“intended to reach only those land use changes ‘where values of state concern are implicated
through large scale changes in land utilization.’” In re Spencer, 152 Vt. 330, 334 (1989) (quoting
In re Agency of Admin., 141 Vt. 68, 76 (1982)).
Furthermore, it is essential to isolate those impacts stemming from the cognizable
physical change from impacts that stem from baseline operation of the preexisting
development; only the former are relevant to whether a cognizable physical change will have
significant impacts under Act 250. For instance, in In re Kelly Green Recycling Facility, No. 293,
Findings of Fact, Conclusions of Law, and Order (Vt. Envtl. Bd. Aug. 24. 1994), a recycling facility
took over operation of a former Goodyear plant, which was a preexisting development. The
Environmental Board concluded that the recycling facility’s disposal of chemicals did not
represent a cognizable physical change to the previous operator’s use of the plant, but that the
recycling facility’s dependence on truck transportation did. Id. The Board then proceeded to
analyze whether the truck traffic (and not the entire operation) had the potential for significant
impacts under Act 250.15 Because we must consider impacts from a cognizable physical change
in isolation, and these impacts must be significant, the potential impacts from the relocation of
the NEMG crusher would only be significant if the relocation will have new and separate
impacts under Act 250.
15
We draw analogous support for this proposition from the rules limiting the extent of Act 250
jurisdiction over a preexisting development during the permitting process that follows a finding of substantial
change. The Supreme Court has repeatedly held that, where a cognizable physical change is distinguishable from
the rest of a preexisting development, permitting jurisdiction extends only to the cognizable change, and not the
entire project. See In re Hale Mountain Fish & Game, 2009 VT 10, ¶ 6 (quoting In re Black River Valley Rod & Gun
Club, Inc., No. 2S1019-EB, Memorandum of Decision, at 14 (Vt. Envtl. Bd. June 12, 1997)).
19
Our review of the facts shows that neighbors near the NEMG crusher experience noise,
dust, and traffic impacts, all of which are relevant under Act 250. See 10 V.S.A. § 6081(a)(1) (air
pollution); § 6081(a)(5)(A) (traffic); § 6081(a)(8) (noise). But the evidence in this matter does
not show that the relocation causes new impacts. The relocation simply impacts new
neighbors. Thus, even if we were to conclude that there is a cognizable physical change, we
would conclude that Appellants have failed to persuade us that the impacts of noise, dust and
traffic are any different than the impacts experienced by neighbors of crushing operations in
other locations at the ROA tract.
III. Motion to Strike
Having addressed the merits of this remanded appeal, we turn finally to a procedural
matter. NEMG has moved to strike a portion of Appellants’ post-remand brief. The challenged
portion requests that we remand this case to the District Commission if we find that the NEMG
crusher is subject to Act 250 jurisdiction. It also argues that we should remand a related appeal
pending before the Court (in which Appellants challenge NEMG’s Act 250 permit for an asphalt
plant on its site) so that the District Commission may consider the two projects and their
cumulative effects as a single development. Because we find that the NEMG crusher is not
subject to Act 250 jurisdiction, we deny Appellants’ request for remand. We also decline to
“strike” the request from the record, since the request is not “redundant, immaterial,
impertinent, or scandalous . . . .” V.R.C.P. 12(f).16 Appellants’ request is not an attempt to argue
the merits of the related asphalt plant appeal in this case. It is a procedural recommendation
responsive to this Court’s suggestion, after remand of this appeal, that parties file briefs
proposing next steps for this case. NEMG’s motion to strike is therefore also denied.
Conclusion
On remand, we conclude that the NEMG rock crushing operation is part of ROA’s
preexisting quarry development, that ROA did not abandon rock crushing at any time before or
after 1970, and that rock crushing at the NEMG site is not a cognizable physical change to ROA’s
16
We are also not convinced that Rule 12(f) can be used to strike material in motions, since the text of the
Rule refers only to pleadings. V.R.C.P. 12(f).
20
preexisting development. Because we find no cognizable physical change to the development,
we do not reach the issue of Act 250 impacts. We therefore conclude that the NEMG rock
crusher is not subject to Act 250 jurisdiction.
Electronically signed on December 23, 2015 at 3:45 PM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
21