Pion Sand & Gravel Pit ( 2010 )

STATE OF VERMONT
SUPERIOR COURT, ENVIRONMENTAL DIVISION
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In re Pion Sand & Gravel Pit } Docket No. 245-12-09 Vtec
(Appeal from Act 250 Permit No. 7R1298) }
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Decision on Motion for Party Status
James Murphy, Linda Murphy, Patrick Murphy, Penny Cargill, and Deborah Pratt
(“Neighbors”) have appealed a decision by the District 7 Environmental Commission (“District
Commission”), which granted Bruce and Laurine Pion (“Applicants”) Act 250 Land Use Permit
No. 7R1298 to develop and operate a commercial sand and gravel pit on property located
westerly of Vermont Route 100 in Lowell, Vermont. The District Commission made its final
determination on party status requests after the close of its hearing; the Commission granted the
Neighbors party status under Act 250 criterion 1, solely in relation to noise, and under criterion 8
with respect to scenic beauty and aesthetics. The Commission denied Neighbors’ remaining
party status requests. Pursuant to V.R.E.C.P. 5(d)(2), Neighbors have filed with their notice of
appeal a motion for party status under Act 250 criteria 1, 3, 4, 5, 9B, 9E, 9K, and 10. Neighbors
are represented by David Grayck, Esq.
Applicants, who oppose the pending party status motion, are represented by Jeremy D.
Hoff, Esq. Both the Vermont Agency of Natural Resources (“ANR”) and the Vermont Agency
of Transportation (“VTrans”) have entered appearances in these proceedings as Interested
Parties, and they are represented by Judith L. Dillon, Esq. and Daniel D. Dutcher, respectively.1
The Land Use Panel of the Vermont Natural Resources Board (“NRB”) appears for
informational purposes only through its attorney, Mark L. Lucas, Esq.
Factual Background
For the sole purpose of putting the pending motion for party status into context, we recite
the following facts, which we understand to be undisputed unless otherwise noted:2
1
VTrans has filed a response to clarify certain factual issues, but it takes no position on the pending motion.
2
We emphasize here that the Court is not yet at the stage of making specific factual findings, and our recitation is
for the purpose of the pending motion only; it does not constitute factual findings. See Blake v. Nationwide Ins.
Co., 2006 VT 48, ¶ 21, 180 Vt. 14 (explaining that factual findings are not required to dispose of pretrial motions).
1
1. Applicants own a 52± acre property located to the west of Vermont Route 100 in Lowell,
Vermont. Applicants’ property is comprised of two contiguous tracts of land: the northern tract
is a 36.7-acre parcel (the so-called “Pudvah Lot”) and the southern tract is a 15.56-acre parcel
(the so-called “Part of Naramore Land”). Applicants propose to develop and operate a 4.4-acre
commercial sand and gravel pit on the eastern side of the Pudvah Lot, near Route 100.
2. Patrick Murphy, Penny Cargill, and Deborah Pratt are the current owners of a 17± acre
developed lot located at 3972 Route 100 in Lowell. Their parents, James and Linda Murphy,3
claim to hold a life estate in this property. However, Neighbors have not provided any deed or
other recorded instrument evidencing that such a life estate exists. The deed from James Murphy
and his former wife to their children (the current owners of the property), does not contain any
reference to a life estate being retained in the property.4
3. Neighbors’ property adjoins Applicants’ property to the north; the southern boundary of
Neighbors’ property abuts the northern boundary of the Pudvah Lot, forming a 300-foot shared
boundary line that runs perpendicular to Route 100.
4. Neighbors’ property is improved with a year-round camp-house and drilled well. The
two-bedroom camp-house, which is fully furnished and equipped with electricity, heat,
insulation, and running water, is nestled among a stand of evergreens approximately 300 feet
from the shared boundary. The well is about 75 feet deep and approximately 250 feet from the
shared boundary. Neighbors claim that their well draws water from an aquifer that traverses
underneath the 36.7-acre Pudvah parcel. The precise location of the aquifer in relation to the
4.4-acre proposed pit, which is on the eastern side of Pudvah parcel, is not clear from the record
thus far presented.
5. Neighbors’ property is accessed by a driveway that intersects Route 100 approximately
800 feet north of the common property line.
6. Neighbors currently use their property for walking, hiking, hunting, sunning, having
picnics, and using recreational vehicles. Neighbors observe deer, bears, wild turkeys, and other
wildlife on their property.
7. A portion of Neighbors’ property also has a twenty-year history of agricultural use. In
2009, two acres were used for growing hay and ten acres were used for growing corn. Aerial
3
Patrick Murphy, Penny Cargill, and Deborah Pratt are the natural children of James Murphy and his former wife,
Myrna Hazard, and the step-children of Mr. Murphy’s current wife, Linda Murphy.
4
We discuss the import of this life estate, or the lack thereof, on pages 19–20, below.
2
photos of the property indicate that Neighbors’ agricultural use does not abut Applicants’ lot; it
occurs on the northern portion of Neighbors’ property and is separated from Applicants’ lot by
the camp-house and evergreen stand.
8. On March 11, 2009, Applicants filed an Act 250 permit application with the District
Commission, seeking approval for their proposed sand and gravel pit.
9. The pit would be operated from April until November and would have a maximum
extraction rate of 15,000 cubic yards per year and a maximum operating life of twenty years.
The total disturbed area of Applicants’ sand and gravel operation would be 4.4 acres, including
all attendant infrastructures. Estimated traffic from the project will include a maximum of forty-
five one-way truck trips per day.
10. Applicants intend to operate the sand and gravel pit as a small, family-run business;
Applicant Bruce Pion, who is licensed and trained by the federal Mine Safety and Health
Administration, is expected to be the principal person engaged in all extraction activities.
11. The project would be sited on the eastern side of the Pudvah Lot, just south of the shared
boundary. Neighbors contend that the pit would be within twenty-five to fifty feet of Neighbors’
property, but this assertion does not appear to be supported by the record. The record, including
the application and site plans, supports Applicants’ representation that all extraction activities
will take place at least 100 feet from the property line. Applicants explain that the only on-site
disturbances occurring within 100 feet of the boundary would involve the installation of silt
fencing and the placement of a topsoil berm, both of which are intended to mitigate any impact
on Neighbors’ property.
12. The project site is comprised primarily of a kame terrace, which is a glacial landform that
was created when glacial meltwater deposited sand and gravel between the glacier and the valley
wall. Many kame terrace formations in Vermont contain some traces of asbestos. However,
there has been no evidence presented that the kame terrace on Applicants’ property contains
measurable traces of asbestos.
13. The proposed pit will be accessed by a newly developed road that intersects Route 100; it
will generally follow a preexisting path on Applicants’ property. Applicants worked with
VTrans to design the proposed access road, and considered three alternatives before Applicants
ultimately chose an access drive that intersects Route 100 relatively near the shared boundary
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line.5 To increase northerly sight distances for vehicles leaving the project by way of the
proposed access road, Applicants intend to cut back the bank and clear vegetation along Route
100 to create a 555-foot northerly sight-line. The clearing and grading will occur on a narrow
strip of State-owned land that lies between Route 100 and Neighbors’ property. The proposed
work will parallel Neighbors’ property line for approximately 300 feet and will come within
twenty feet of their boundary.6
14. In order to manage stormwater at the project site, Applicants have obtained a stormwater
discharge permit from ANR, in addition to developing a Stormwater Pollution Prevention Plan
(“SWPPP”). According to Applicants’ SWPPP, the majority of stormwater runoff from the
extraction area will be contained within the extraction pit; the bowl-shaped pit will create an
infiltration area capable of storing 5,000 cubic feet of water. Approximately fifty feet of
sediment and soil will remain between the bottom of the pit and groundwater.7
15. The District Commission held a hearing on the application on May 13, 2009, and on
November 17, 2009, the District Commission issued Applicants Act 250 Permit No. 7R1298,
which authorized the development and operation of the proposed sand and gravel pit. In its
written Findings, the District Commission granted Neighbors final party status under Act 250
criteria 1 (noise) and 8 (scenic beauty and aesthetics), but denied Neighbors final party status
under all other requested criteria.
16. Neighbors appealed the District Commission’s decision to this Court on December 16,
2009. With their notice of appeal, Neighbors filed a motion requesting that the Court grant them
party status under Act 250 criteria 1 (dust, water pollution, asbestos, and pollution from
hazardous materials), 3 (water supply), 4 (soil erosion), 5 (traffic), 9B (primary agricultural
soils), 9E (extraction of earth resources), 9K (public investment), and 10 (town and regional
plans).
5
The record does not reveal the precise distance between the proposed access road and Neighbors’ property line, but
the site maps indicate that the distance is likely less than 200 feet.
6
Because the record does not specify the distance between the proposed access road and Neighbors’ property line,
the extent of clearing and grading that will parallel Neighbors’ property is unclear. Nevertheless, assuming there is
200 feet between the access road and the common boundary line, approximately 300 feet of clearing will parallel
Neighbors’ property.
7
We note that Applicants identified an isolated, perched aquifer within the project site; extraction operations will
come within four feet of this aquifer. No evidence indicates that the perched aquifer is connected to the
groundwater table or Neighbors’ water supply.
4
17. Neighbors have submitted multiple affidavits in support of their party status requests,
including an affidavit from Robert Ross, owner and principal hydrologist of Ross Environmental
Associates. Mr. Ross based his affidavit upon his review of Applicants’ application materials.
Mr. Ross maintains that Applicants’ proposal does not identify the depth of the water table
beneath the proposed pit, the recharge area for Neighbors’ aquifer, or how the excavation
activities may affect groundwater flow and dynamics. He concludes that this information is
critical to understand the risk of contamination to Neighbors’ water supply.
18. Mr. Ross also maintains that, due to the geologic composition of Applicants’ property, he
expects to find asbestos on the site. Mr. Ross has not taken any soil samples of the site to
confirm his expectations. Mr. Ross also avers that the predominant wind direction in the area
would likely be to the north or south, which could blow dust, which he speculates may include
asbestos, from the project site and onto Neighbors’ property. Mr. Ross acknowledges, however,
that a site-specific wind study is necessary to determine the actual direction and velocity of wind
in the area.
19. Finally, Mr. Ross contends that the project’s proximity has the potential to cause erosion
that may encroach onto Neighbors’ property. He also asserts that excavation of the pit walls and
the clearing of sight lines along Route 100 could lead to erosion that could destabilize
Neighbors’ property.
20. Applicants counter this assertion with representations that their proposed extraction
would be more horizontal than vertical in nature, since their on-site test pit investigations tend to
show that the sand and gravel to be extracted is principally located in a raised area on the project
site. Consequently, much of the planned excavation will be digging into this area. The pit is
also to be located at least 100 feet back from the Neighbors’ boundary line, and Applicants plan
to install an earthen berm between the pit and Neighbors’ property to provide a buffer from the
project site.
21. Applicants concede that the clearing along Route 100 will come within twenty feet of
Neighbors’ southeasterly boundary line. However, Applicants represent that their sight clearing
work has been reviewed and approved by VTrans officials. Neighbors’ expert witness’s affidavit
does not provide specific contradictions to these representations.
22. Neighbors also submitted an affidavit from Benjamin Swanson, a Transportation
Associate Level III traffic engineer with Resource Systems Group. Mr. Swanson based his
affidavit upon his review of the exhibits filed thus far in these proceedings, his personal
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observation of the section of Route 100 fronting the two properties, and a speed-and-vehicle-
classification study he performed, which measured operating speeds and the proportion of heavy-
truck traffic on Route 100. Based on this information, Mr. Swanson asserts that Applicants’
proposed access road to Route 100 creates an unreasonable traffic-safety risk because the
planned 555-foot sight distance is inadequate to provide safe stopping distances for traffic
traveling at the observed average speed (i.e., 59 MPH, along a portion of VT Route 100 posted at
50 MPH maximum). According to Mr. Swanson, a safe sight distance in this area for traffic
traveling at an average speed of 59 MPH is between 825 and 995 feet.
23. Neighbors also submitted an affidavit from Edward C. D. Duncan, a Senior Associate
with Resource Systems Group, which Mr. Duncan prepared after reviewing the exhibits filed in
these proceedings. Mr. Duncan states that the sound pressure levels at the shared property
boundary may reach 70 dBA, thereby exceeding background levels in the area by 40 dBA. He
also notes that Applicants’ proposal provides insufficient information with regard to the
proposed equipment and topsoil stockpiles to determine their effect on mitigating the noise
generated by the proposed project.
Discussion
Neighbors have appealed the District Commission’s decision granting Applicants an Act
250 permit to develop and operate a sand and gravel pit in Lowell, Vermont. Before proceeding
to the merits of the appeal, however, Neighbors must first present sufficient evidence to support
a conclusion that they are entitled to party status for each of the Act 250 criteria they wish to
appeal. See 10 V.S.A. § 8504(a) (“[T]he person may only appeal those issues under the criteria
with respect to which the person was granted party status.”). The District Commission granted
Neighbors party status under criterion 1 (noise) and criterion 8 (aesthetics and scenic beauty), but
Neighbors now seek party status under additional Act 250 criteria: criteria 1 (dust, water
pollution, asbestos, and pollution from hazardous materials), 3 (water supply), 4 (soil erosion), 5
(traffic), 7 (municipal services), 9B (primary agricultural soils), 9E (extraction of earth
resources), 9K (public investment), and 10 (town and regional plan). The sole issue raised by the
pending motion is whether Neighbors are entitled to party status for each of these Act 250
criteria.
In order to secure party status in these proceedings, Neighbors must demonstrate that they
are an “adjoining property owner or other person who has a particularized interest protected by
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[Act 250] that may be affected by an act or decision by a district commission.” 10 V.S.A.
§ 6085(c)(1)(E). There are essentially two components to this provision. First, Neighbors must
show that they have a specified interest protected by Act 250 that is particular to Neighbors, not
a general policy concern shared with the general public. In re Champlain Marina, Inc. Dock
Expansion, No. 28-2-09 Vtec, slip op. at 5–6 (July 31, 2009) (Durkin, J.). Second, Neighbors
must demonstrate a causal connection between Applicants’ proposed project and the potential
impact to their particularized interests. In re Big Spruce Road Act 250 Subdivision, No. 95-5-09
Vtec, slip op. at 6 (Apr. 21, 2010) (Durkin, J.). In other words, Neighbors must establish a
connection between the project and a particularized interest and that, due to a demonstrated
connection, their specified interests may be adversely affected. Maple Tree Place Assocs., No.
4C0775-EB, Mem. of Decision & Order, at 6 (Vt. Envtl. Bd. Oct. 11, 1996), aff’d, No. 96-559
(Vt. Oct. 10, 1997) (unpublished mem.).
In making their presentation for party status, Neighbors need not demonstrate that a
decision on Applicants’ proposal will affect their particularized interests, or that they will prevail
at a merits hearing; rather, they need only demonstrate that the project may affect their interests.
We regard this as requiring Neighbors to provide an “offer of proof.” In re Costco Act 250
Permit Amendment, No. 143-7-09 Vtec, slip op. at 1 (Dec. 4, 2009) (Durkin, J.) (entry order).
As Applicants correctly note, this offer must be more than mere speculation and theory. An
individual will not sufficiently demonstrate a causal connection with “unsupported assertions
that vaguely defined interests” may be affected by a project. Re: Village of Ludlow, No.
2S0839-2-EB, Mem. of Decision, at 4 (Vt. Envtl. Bd. May 28, 2003) (quoting Maple Tree Place,
No. 4C0775-EB, at 6). We have said before:
[A]n offer of proof must be specific and concrete. It must indicate what further
testimony or evidence will be introduced, to show what particular circumstances
or conditions, and for what purpose it is offered. An offer must be sufficiently
explicit to give the trial court an understanding of the materiality of the [to-be-]
offered evidence. These standards are generally taken to require that witnesses’
names and addresses be given, that acts or items be specifically described, and
that the matter to be proved be carefully delineated.
In re RCC Atlantic, Inc., No. 163-7-08 Vtec, slip op. at 9 (Vt. Envtl. Ct. May 8, 2009) (Durkin,
J.) (quoting R.E. Bean Constr. Co. v. Middlebury Assocs., 142 Vt. 1, 7 (1982) (citations
omitted)). We apply these standards to Neighbors’ pending request for party status.
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Applicants ask us to apply these standards “in light of all of the testimony presented, and
in light of all of the numerous conditions and mitigation requirements placed or imposed on the
project by the terms of the permit.” Applicants’ Mem. in Op. at 6. Applicants argue that our
examination of party status should show deference to the determinations already made by the
District Commission, since it made final party status determinations at the close of its hearing
and after having heard all the evidence presented. See 10 V.S.A. § 6085(c)(6) (explaining that
the “district commission shall re-examine party status determinations before the close of
hearings,” which “shall supersede any preliminary determinations”). For the following reasons,
we decline to proceed as Applicants request.
This is a de novo proceeding in which we review the application and supporting materials
anew, as if no proceedings have taken place before the municipal panel or District Commission.
In re Killington, Ltd., 159 Vt. 206, 214 (1992) (citing In re Green Peak Estates, 154 Vt. 363, 372
(1990)). We review a petition for party status “without reference to evidence or arguments
presented to the [District] Commission.” Re: McLean Enters. Corp., No. 2S1147-1-EB, Mem. of
Decision, at 2 (Vt. Envtl. Bd. Sept. 30, 2003). Thus, we may only rely upon evidence and
testimony submitted to this Court on appeal; testimony only presented during the proceedings
below is immaterial to our de novo review. We furthermore do not consider in our review the
conditions imposed by the District Commission because they are a consequence of the evidence
and testimony presented below, and they represent the project as granted, not as proposed. It
would be inappropriate for us to review the project’s potential impacts in this light; such a review
would contradict the purpose of a de novo proceeding.8
Having established the standards for review in the pending motion for party status, we
turn to the criteria for which Neighbors request party status. Again, we first determine whether
Neighbors have a particularized interest protected by each criterion. We must then examine
whether Neighbors have set forth specific and concrete evidence of a causal connection between
8
We have previously allowed an applicant to make some minor changes to its proposal, which are often made in
response to neighbors’ concerns or comments from officials, because it is a necessary part of the evolutionary
process in permit proceedings. See e.g., In re Murphy Revocable Trust, No. 47-2-05 Vtec, slip op. at 7 (Vt. Envtl.
Ct. Apr. 28, 2006) (Durkin, J.); see also In re Sisters & Bros. Inv. Group, 2009 VT 58, ¶¶ 19–21 (holding that an
applicant’s submission to the Environmental Court of a revised site plan does not necessitate a remand to the town).
Sometimes, an applicant may incorporate into a revised application the conditions imposed in the proceedings
below, when presenting their application on appeal. To date, however, we have not been made aware that
Applicants here intend to modify their proposal to include the conditions imposed by the District Commission
below. We therefore review anew the proposal as presented in the application materials provided to the Court.
8
Applicants’ proposal and Neighbors’ particularized interest such that Applicants’ proposal may
affect Neighbors’ interests.
Criterion 1 (dust and asbestos)
Neighbors first request that they be granted party status under Act 250 criterion 1 with
regard to dust and asbestos impacts upon their property that may be caused by the proposed
project. Criterion 1 is intended to ensure that a proposed development “[w]ill not result in undue
. . . air pollution.” 10 V.S.A. § 6086(a)(1). Neighbors currently use their property for walking,
hiking, hunting, sunning, having picnics, and using recreational vehicles, and they allow their
land to be farmed by local farmers for a nominal charge. Neighbors argue that air pollution
coming from Applicants’ operation, namely dust and asbestos, may emanate from the exposed
pit, travel through the air, and settle on their property, thereby interfering with their ability to
enjoy outdoor recreation, farming, and family gatherings. If the airborne emissions include
asbestos, Neighbors fear unsafe health conditions will result.
We first conclude that Neighbors’ have a sufficiently particularized interest under
criterion 1 with regard to dust and asbestos. Their property and camp-house is directly adjacent
to Applicants’ property, and the proposed pit and its support structures are somewhere between
25 and 100 feet from the shared boundary. Neighbors’ interest in avoiding undue air pollution
while recreating and farming is particular to the owners of the camp-house and not a general
concern shared with the public. However, we also conclude that Neighbors have failed to
provide a sufficiently specific and concrete offer of proof to demonstrate that their interests may
be affected by the proposal in this regard.
Neighbors’ expert Ross maintains that many geologic features in Vermont similar to the
kame terrace on Applicants’ property contain asbestos, and although he expects to find asbestos
in area soil samples, he provides no specific evidence that asbestos is actually present on
Applicants’ site. The concern over asbestos is purely speculative because no sampling of the
area has been done. Mr. Ross also opines that, despite Vermont’s prevailing westerly winds, the
predominant wind direction in the project area would likely be from the north or south, raising
the likelihood that dust from the pit will settle on Neighbors’ property. However, Mr. Ross does
not offer evidence that dust will actually settle on Neighbors’ property. In fact, he concedes that
a site-specific wind study has not been conducted and, without this data or any sampling and
analysis of the site, there is no way to assess the impact on Neighbors’ property. It appears that
9
Mr. Ross’s conclusions are based on speculation. This is an insufficient basis to support the
granting of party status.
To secure party status under criterion 1, Neighbors must provide concrete evidence of a
causal connection between the development and certain specified interests, and then demonstrate
that because of that connection, the project may adversely affect Neighbors’ interests.
Neighbors’ offer of proof lacks the requisite connection because they have not provided any
evidence that dust or asbestos from the project that will actually radiate from the project site to
their property. Accordingly, we conclude that Neighbors’ offer of proof to substantiate their
concerns over dust and asbestos are insufficient to support the granting of Neighbors’ request for
party status under Act 250 criterion 1 (dust and asbestos). We must therefore DENY their
request.
Criterion 1 (water pollution)
Neighbors also request party status under another sub-provision from criterion 1, which
ensures that a proposed development “[w]ill not result in undue water . . . pollution.” 10 V.S.A.
§ 6086(a)(1). Neighbors’ drilled well is served by an aquifer that traverses below the Pudvah
parcel, and they seek party status to protect the quality of their water supply. Neighbors contend
that the use of heavy trucks, earth extraction equipment, and crushers, all of which contain fuel
and oil, carry a risk of unintended leaks and spills that could reach the aquifer that serves
Neighbors’ camp-house.
Although we conclude that Neighbors interest under this criterion is sufficiently
particularized, Neighbors have again not laid an adequate foundation for us to conclude that
Applicants’ proposal may impact these specific interests. Neighbors’ expert (Mr. Ross) does not
provide concrete evidence of a connection between the project and the underground aquifer.
Rather, Mr. Ross contends that Applicants’ proposal omits the information necessary to assess
the potential impact on Neighbors’ water quality. For example, Mr. Ross complains that
Applicants do not identify the recharge area for the aquifer, the depth of the water table, or how
the excavation activities may affect groundwater flow and dynamics. Mr. Ross then speculates
that removing sand and gravel, which currently filters the water that may recharge the aquifer
that possibly serves Neighbors’ property, could eliminate an essential filtration function, thereby
increasing the risk of contaminating the water supply. Mr. Ross specifies a claimed omission in
the pending application materials, but then offers no factual or methodological support for his
10
conclusory statement that Applicants’ proposed project will “eliminate” essential filtration soils.
Identifying possible omissions in an Act 250 application does not automatically supply the
requisite offer of proof for an individual seeking to secure party status in the permit proceedings.
Neighbors have offered no evidentiary foundation to suggest how contaminants would
reach the aquifer; we do not have evidence of the distance (horizontal or vertical) between the
excavation activities and the aquifer’s recharge area. Mr. Ross has not conducted a groundwater
or geologic survey to provide specific and concrete evidence of a causal connection between the
proposal and interests protected by criteria 1. Mr. Ross merely theorizes that, because neither the
aquifer-recharge area nor the groundwater table is indicated on Applicants’ plans, there must be
a risk that contamination of the aquifer could occur. These assumptions are purely theoretical
and contradicted by some of Applicants’ representations of how the pit will be constructed and
operated, including that extraction activities will only disturb 4.4 of the 36.7 acres on the Pudvah
parcel.
Accordingly, we conclude that Neighbors have not set forth a sufficient offer of proof
that Applicants’ proposed pit may affect interests protected by criteria 1 related to water
pollution. See, e.g., Appeal of Rivers Development, LLC, Nos. 7-1-05 Vtec and 68-3-07 Vtec,
slip op. at 5 (Vt. Envtl. Ct. July 3, 2007) (Durkin, J.) (denying party status “because concern that
quarry well-drilling could affect [a neighbor’s] well is too speculative; no offer of proof
[concerning] groundwater flow”). We therefore DENY Neighbors party status under Act 250
criteria 1 (water pollution).
Criterion 3 (water supply)
Neighbors also seek by their pending motion to receive party status under criterion 3,
which ensures that a project “[w]ill not cause an unreasonable burden on an existing water
supply, if one is to be utilized.” 10 V.S.A. § 6086(a)(1), (3). According to Neighbors, the
contamination about which their expert speculates has the potential to reach the underground
aquifer, thereby diminishing the quality of Neighbors’ water supply and thereby aversely
affecting interests protected by criterion 3. Neighbors’ reliance on criterion 3 to protect this
interest is misplaced. Criterion 3 does not govern possible contamination of existing water
supplies. Rather, criterion 3 is concerned with “impacts on the ability to meet demand of
neighboring wells or water sources if those other wells or water sources share the same basic
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source of water.” Re: MBL Assocs., No. 4C0948-EB (Altered), Findings of Fact, Conclusions of
Law, and Order, at 28 (Vt. Envtl. Bd. May 2, 1995).
In relation to Neighbors’ professed concerns, we conclude that Applicants’ proposal does
not implicate criterion 3 for several reasons. First, Applicants’ project does not propose to
access a water source; we therefore must conclude that there will be no “unreasonable burden”
on a water source to be utilized by the proposed project. Second, Neighbors do not claim that the
proposed sand and gravel pit will burden their existing water supply by drawing from the same
aquifer; rather, their basis for seeking party status under criterion 3 is their assertion that leaks
and spills from trucks and other equipment may contaminate their water source. This concern is
not within the scope of criterion 3, the concern of which is whether a proposed project “impacts
on the ability to meet demand of neighboring wells or water sources.” Re: Nile and Julie
Duppstadt, No. 4C1013 (Corrected)-EB, Findings of Fact, Conclusions of Law, and Order at 2
(Vt. Envtl. Bd. Oct. 30, 1998) (quoting Re: MBL Assocs., No. 4C0948-EB (Altered), Findings of
Fact, Conclusions of Law, and Order at 28 (Vt. Envtl. Bd. May 2, 1995)). Concerns about a
project’s impact upon water quality, as opposed to impacts on water supply quantity, are more
appropriately raised under criterion 1(B). MBL Assocs., No. 4C0948-EB (Altered), Findings of
Fact, Conclusions of Law, and Order, at 28.
Thus, we conclude that Neighbors have not alleged that an interest protected by criterion
3 may be affected by the proposal. We therefore DENY Neighbors party status under Act 250
criteria 3 (water supply).
Criterion 4 (soil erosion)
Neighbors next request party status under criterion 4, which is designed to ensure that a
proposed project “[w]ill not cause unreasonable soil erosion or reduction in the capacity of the
land to hold water so that a dangerous or unhealthy condition may result.” 10 V.S.A.
§ 6086(a)(4). Neighbors fear that the project will cause soil erosion on or near their property,
which may result in dangerous or unhealthy conditions that interfere with the full use of their
property. According to Neighbors’ expert Ross, significant soil erosion of the pit walls could
lead to bank failure and, by virtue of the pit’s proximity to the shared boundary, unreasonably
increase the risk of destabilizing Neighbors’ property. Mr. Ross adds that there is potential for
erosion to occur on Neighbors’ property along Route 100 as the bank is cut and trees are
removed to improve sight lines at the operation’s access point. These concerns, which are not
12
solely shared with the general public, since the possible impacts could be direct to Neighbors’
adjoining property, constitute a sufficiently particularized interest protected under criterion 4.
It is hard for us to imagine, without some specific evidence, how erosion of the pit walls
could destabilize Neighbors’ property, particularly when the site plan drawings indicate that the
exposed pit walls will be separated from the boundary by at least 100 feet (which will also
include a topsoil berm). However, we view the proposed bank cut and tree clearing along Route
100 to present sufficient evidence to grant Neighbors party status under criterion 4. Applicants’
propose to cut back the bank and remove vegetation along Route 100 to improve vehicular sight
lines. This excavation will occur on a narrow strip of land that parallels Neighbors’ property for
nearly 300 feet and comes within twenty feet of their boundary line, which evidences a causal
connection between the proposal and a potential impact upon Neighbors’ interests: a steeper
slope and lack of vegetation on land in such close proximity to Neighbors’ property may increase
the potential for unreasonable erosion and dangerous or unhealthy conditions. We therefore
GRANT Neighbors party status under criterion 4, but solely as to the proposed excavation work
along Route 100.
Criterion 5 (traffic) & Criterion 9(K) (public investments)
Neighbors next request party status under criterion 5, which protects against a proposal
causing “unreasonable congestion or unsafe conditions with respect to use of the highways,
waterways, railways, airports and airways, and other means of transportation existing or
proposed.” 10 V.S.A. § 6086(a)(5). Neighbors’ driveway intersects Route 100 just north of the
proposed pit access road, and they are genuinely concerned that Applicants’ proposal will
adversely affect safe access to Neighbors’ property. In fact, a member of Neighbors’ family was
tragically killed in 1987 when a dump truck traveling south on Route 100 at a high rate of speed
collided with his car as he exited their driveway.
Although the alignment of Route 100 has since been changed, Neighbors seek party
status to ensure that increased truck traffic will not exacerbate existing adverse traffic conditions
and cause unreasonable congestion or unsafe conditions on Route 100. They argue that
Applicants’ proposed access to Route 100 is unsafe and that forty-five additional one-way truck
trips per day on Route 100 renders unsafe the intersection between their driveway and the road.
In light of this, Neighbors’ interest in providing safe access to their property is
sufficiently particularized. The interest is only shared by those who gain access to their property
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via a driveway that intersects Route 100 in the vicinity of the pit. “[T]he mere fact Neighbors’
particularized concerns may be shared by other members of the public does not cause a failure on
Neighbors’ part to demonstrate particularized injuries.” In re Champlain Marina, Inc. Dock
Expansion, No. 28-2-09 Vtec, slip op. at 4 (July 31, 2009) (Durkin, J.); see also Re: McLean
Enters. Corp., No. 2S1147-1-EB, Mem. of Decision, at 8 (Vt. Envtl. Bd. Sept. 19, 2003)
(explaining that it is irrelevant if other individuals may also be similarly impacted from a
development as long as the impacts to the petitioners are particular to them, concrete, and not an
impact only affecting the common rights of all persons). We therefore conclude that Neighbors
have a particularized interest protected by criterion 5.
We also conclude that Neighbors have set forth an adequate offer of proof that the project
may affect their particularized interest. In determining whether party status is appropriate, “the
relevant inquiry is whether the petitioner uses the roads that may be impacted by a project on a
regular basis.” RE: Pike Industries, Inc., No. 5R1415-EB, Mem. of Decision, at 2 (Vt. Envtl. Bd.
Nov. 19, 2004). Neighbors have demonstrated that they use Route 100 on a regular basis
because it provides the sole access to their property, and they have established that the daily
addition of forty-five one-way heavy truck trips on Route 100 may affect safe access to their
property. Further, Neighbors’ expert Swanson concluded, based on his speed-and-vehicle-
classification study, that the proposed 555-foot sight distance planned for the project’s access
point to Route 100 may be an inadequate stopping distance for established vehicle speeds. These
concrete and specific facts indicate that there is a connection between Applicants’ proposal and
Neighbors’ interest in safe traffic conditions; they also demonstrate that the proposal may impact
those interests. We therefore GRANT Neighbors party status under criterion 5.
Neighbors similarly request party status under criterion 9(K), which protects the public
investment in governmental facilities adjacent to a proposed project, including state highways
such as Route 100. Criterion 9(K) ensures that the proposed development “will not
unnecessarily or unreasonably endanger the public or quasi-public investment . . . or materially
jeopardize or interfere with the function, efficiency, or safety of, or the public’s use or
enjoyment” of the investment. 10 V.S.A. § 6086(a)(9)(K). Neighbors insist that Applicants’
proposal materially jeopardizes the safety of Route 100.
For the same reasons we granted Neighbors party status under criterion 5, we conclude
that Neighbors are entitled to party status under criterion 9(K). Neighbors have set forth an offer
of proof that demonstrates a connection between Applicants’ proposed pit and Neighbors’
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interest in safe use of Route 100 and safe access to their property. Accordingly, we GRANT
Neighbors party status under criterion 9(K).
Criterion 9(B) (primary agricultural soils)
Neighbors request party status under criterion 9(B) to ensure that Applicants’ proposal
will not interfere with the agricultural use of Neighbors’ property, which local farmers have
farmed for twenty years. They contend that air and water pollution from extraction operations
may adversely affect the agricultural potential of Neighbors’ property. However, for the reasons
stated below, we conclude that Neighbors have not asserted an interest that is protected by
criterion 9(B).
“Criterion 9(B) applies only if primary agricultural soils exist on the project site.” In re
Times & Seasons, LLC Act 250 Reconsideration, No. 45-3-09 Vtec, slip op. at 6 n.8 (Vt. Envtl.
Ct. Mar. 29, 2010) (Durkin, J.); Re: Allen Brook Investments, LLC, No. 4C1110-EB, Findings
of Fact, Conclusions of Law, and Order, at 8 (Vt. Envtl. Bd. Jan. 27, 2004); see also In re Village
Assocs. Act 250 Land Use Permit, 2010 VT 42, ¶ 10 (noting that analysis under 9(B) is only
triggered after a threshold determination that primary agricultural soils exist on a project site).
Agricultural operations on adjoining parcels are protected only after it is determined that a
proposed project will reduce the agricultural potential of primary agricultural soils on the project
site. See In re Morgan Meadows/Black Dog Realty, No. 267-12-07 Vtec, slip op. at 8 (Vt. Envtl.
Ct. Dec. 1, 2008) (Wright, J.) (explaining that criterion 9(B) protects agricultural operations on
adjoining lands only if the threshold determination triggers the sub-criteria of 9(B)).
In this case, Neighbors make no allegation that the project site contains primary
agricultural soils; they only maintain that presumed pollution emanating from the sand and
gravel pit may weaken the agricultural potential of soils on their property. This interest is not
protected by criterion 9(B) unless there is evidence that Applicants’ project may reduce
agricultural potential of primary agricultural soils on the project site. Without such an offer of
proof, Neighbors interest does not fall within the ambit of those protected by criterion 9(B).
Even if we were to conclude that Neighbors had a particularized interest to protect under
criterion 9(B), Neighbors have failed to demonstrate through a sufficient offer of proof that the
project may affect their interest. Neighbors argue that the proposal’s potential airborne
emissions and water contamination may jeopardize the continued agricultural operation on
Neighbors’ property, but Neighbors have not set forth specific and concrete facts of a causal
15
connection between the proposed project and their interests. As we explained above, the
potential impact from dust is entirely speculative; there is no indication that dust in any amount
will actually emanate from the project and settle on Neighbors’ agricultural lands. Further,
Neighbors presented no evidence of a connection between Applicants’ project and possible water
contamination on Neighbors’ property. Without concrete evidence of a connection to the
proposal, there is no reason to conclude that Neighbors’ interests may be affected. Accordingly,
we DENY Neighbors party status under criterion 9(B).
Criterion 9(E) (extraction of earth resources)
Neighbors request party status under criterion 9(E) to enforce the two interests protected
by that criterion. Criterion 9(E) first ensures that a resource-extraction project will not have “an
unduly harmful impact upon the environment or surrounding land uses.” 10 V.S.A.
§ 6086(a)(9)(E)(i). This part of criterion 9(E) prevents a quarry operation such as Applicants’
from infringing upon the use and enjoyment of Neighbors’ land by protecting a variety of
interests; indeed, any effects demonstrated under the other Act 250 criteria (i.e., air, noise, or
water pollution) may also be raised under criterion 9(E) if the project involves the extraction of
earth resources. Re: Pike Industries, Inc., No. 5R1415-EB, Findings of Fact and Conclusions of
Law, and Order, at 49 (Vt. Envtl. Bd. June 7, 2005). But criterion 9(E) goes further. It also
requires the development of a site-rehabilitation plan to ensure that, after extraction operations
are complete, the site is left in a condition that remains suitable for an approved alternative use.
10 V.S.A. § 6086(a)(9)(E)(ii). The reclamation plan must show that the site will be stable and
unlikely to suffer adverse consequences once extraction activities are completed. In re Rivers
Dev., Nos. 7-1-05 Vtec and 68-3-07 Vtec, slip op. at 65 (Vt. Envtl. Ct. Mar. 25, 2010)
(Durkin, J.).
In requesting party status under criterion 9(E), Neighbors contend that the proposal’s
loud noise and disruptive land use may affect how Neighbors’ hunt and enjoy wildlife on their
property. Neighbors also contend that any reclamation plan will likely affect their ability to use
and enjoy their land in the future. Based on the information in the record, we conclude that
Neighbors have evidenced a sufficiently particularized interest in both aspects of criterion 9(E).
Neighbors’ interest in preserving the use and enjoyment of their property is particular to them as
adjoining landowners; it is not a generalized grievance shared by the public. We also conclude,
as explained below, that Neighbors have demonstrated a causal connection between the project
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and both interests protected by criterion 9(E) such that we conclude that Neighbors’ interests
may be affected.
On the one hand, Neighbors have demonstrated that the resource-extraction project may
interfere with their current land use. Not only is there a risk adverse impacts from increased
traffic, but Neighbors’ expert Duncan also concluded that the sound pressure levels at the shared
property boundary may reach or even exceed 70 dBA. The increased noise caused by the project
and heard on Neighbors’ property may have an adverse impact on Neighbors’ ability to hunt and
observe wildlife or otherwise recreate on their property. See, e.g., Appeal of Rivers Dev., LLC,
Nos. 7-1-05 Vtec and 68-3-07 Vtec, slip op. at 6 (Vt. Envtl. Ct. July 3, 2007) (Durkin, J.)
(granting party status “because of potential impact on use/enjoyment of her property”). Further,
the close proximity between the project and Neighbors’ property provides a connection between
the reclamation plan and Neighbors’ future land use. Applicants’ proposal involves disturbing
4.4 acres of land and placing topsoil berms as close as twenty-five feet from Neighbors’ property
line. Neighbors’ future use and enjoyment of their land may be impacted unless a reclamation
plan sufficiently returns the site to stability and otherwise averts long-term adverse
consequences. We therefore GRANT Neighbors party status under criterion 9(E).
Criterion 10 (town and regional plans)
Finally, in order to ensure that Applicants’ proposal complies with the Lowell Town Plan
and Northeastern Vermont Regional Plan, Neighbors request party status under criterion 10,
which requires Applicants’ proposal to conform to a “duly adopted local or regional plan or
capital program.” 10 V.S.A. § 6086(a)(10). According to Neighbors, both of the existing Town
and Regional Plans encourage open farmland, seek to protect agricultural and scenic areas, and
promote compatible uses. Neighbors allege that their interests under the plans may be infringed
by Applicants’ proposal.
Every resident of the town has a particularized interest under criterion 10 to ensure that a
project complies with their town plan. Re: John J. Flynn Estate, No. 4C0790-2-EB, Mem. of
Decision, at 7 (Vt. Envtl. Bd. Oct. 8, 2003) (“[E]very citizen of a town where a project is
proposed can claim a direct interest, distinct and different from the public in general, in the
efficacy and viability of his or her town plan—an interest in seeing that such town plan is
respected.”). In this instance, however, Neighbors are not residents of Lowell; they merely have
an interest in property within the Town (either a life estate interest or an ownership interest).
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However, we need not decide today whether this is sufficient to demonstrate a particularized
interest under criterion 10 because, even if Neighbors have a particularized interest, they have
not identified any provisions in the Town Plan to which we can assess Applicants’ compliance.
In their request for party status, Neighbors have identified five provisions in the Town
Plan with which they contend Applicants’ proposal conflicts. These provisions articulate goals
such as (1) “Maintain the Town’s beautiful character as much as possible”; (2) “Have . . .
unsightly land uses screened”; (3) “Protect Lowell’s . . . natural resources”; (4) “Encourage open
farmland”; and (5) “Allow development along . . . Route 100 that compliments and does not
distract from the scenic qualities.” These abstract policy statements lack specific enforcement
standards and therefore do not provide an adequate basis for assessing conflict. In re John A.
Russell Corp., 2003 VT 93, ¶ 17, 176 Vt. 520 (mem.) (citations omitted). Even with these
provisions in mind, we are unable to determine whether Applicants’ proposal complies with the
Town Plan.
In order to assess a proposal’s compliance with a town plan, the plan must set forth a
“specific policy” stated in language that “is clear and unqualified, and creates no ambiguity.” Id.
at ¶ 16 (citations omitted). “Broad policy statements phrased as ‘nonregulatory abstractions’”
are not legally enforceable provisions of a town plan. Id. (citing In re Molgano, 163 Vt. 25, 31
(1994)).9 The rationale for these limitations when considering a project’s conformance with a
town or regional plan is rooted in the necessary understanding that land use regulations must
provide sufficient notice to a property owner of the standards by which her land use proposal will
be judged. Aspirational provisions expressed in broad, vague language provide no such notice to
a property owner.
The provisions cited by Neighbors are unenforceable: they are aspirational purpose
provisions that articulate guiding principles, but they are not regulatory provisions that explain
what is or is not allowed. In re Meaker, 156 Vt. 182, 185 (1991) (explaining that purpose
statements in municipal regulations generally have “no direct regulatory effect”). While
Neighbors may have an interest in seeing that the Town Plan is respected, they have failed to
identify any enforceable provisions in the Town Plan with which Applicants’ proposed project is
9
We recognize that zoning bylaws “are designed to implement the town plan, and may provide meaning where the
plan is ambiguous” or otherwise “provides no specific standards to enforce the policy.” In re John A. Russell Corp.,
2003 VT 93, ¶¶ 16–17 (citations omitted). However, Neighbors have not filed the Town zoning bylaws from which
enforceable standard may be discerned. Our analysis is therefore limited to the provisions provided.
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in conflict, and thus have failed to demonstrate that Applicants’ proposal may affect any interest
protected by the Town Plan under Act 250 criterion 10.
With respect to the Regional Plan, Neighbors similarly do not lay an adequate foundation
for us to assess Applicants’ compliance with enforceable provisions. Neighbors explain that the
Northeastern Vermont Regional Plan contains policies pertaining to compatible land uses, but
Neighbors do not identify which provisions implement these policies. Neighbors have therefore
neglected to highlight a specific potential basis for noncompliance, leaving us with no way to
determine whether the interests protected by the Regional Plan may be affected by Applicants’
proposal.
Accordingly, we conclude that Neighbors have not demonstrated how Applicants’
proposal may affect any interest Neighbors have in seeing that the Town and Regional Plans are
respected. They have failed to specify the potential grounds for conflict. We therefore DENY
Neighbors party status under criterion 10.
Ownership interests in neighboring property
Finally, we return to a preliminary issue that impacts upon the standing for some of the
Neighbors, namely James and Linda Murphy. Their co-Appellants—Patrick Murphy, Penny
Cargill, and Deborah Pratt—are the current fee title owners to the neighboring property. James
and Linda Murphy assert that they hold a life estate in the neighboring property, but the source
deed, presented by Applicants as Exhibit H, evidences no retained interest in the neighboring
property when James Murphy conveyed the property to his children. Neighbors assert that
James and Linda Murphy somehow now hold a life estate interest in this property and have
acknowledged their representation in the form of an affidavit, but have failed to present any deed
or other writing that could legally convey such an interest to James and Linda. Any conveyance
of an interest in real estate must be in writing, signed by a person having authority to make such
a conveyance. 27 V.S.A. § 301. Oral representations that purport to convey an interest in real
estate merely create a tenancy at will, at best, and otherwise have no force or effect recognized
by our laws. 27 V.S.A. § 302; see also Rutland County Nat’l Bank v. Swyer, 113 Vt. 485(1944).
Without a lawfully recognized interest in the neighboring property, we cannot discern
how James and Linda Murphy comply with the statutory provision that an “adjoining property
owner or other person who has a particularized interest . . . that may be affected by” a district
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commission decision on a proposed Act 250 application. 10 V.S.A. § 6085(c)(1)(E). James and
Linda Murphy have not provided sufficient evidence to support a determination that they are part
owners of the neighboring property, nor have they provided sufficient evidence that they are
entitled to classification as “other persons” that are entitled to party status under § 6085(c)(1)(E).
Thus, their party status requests must be denied in total. Further, given the absence of minimally
sufficient evidence to support their assertion of party status under criteria 1 and 8, as conferred
by the District Commission, we are compelled to DENY their party status in this appeal under
those criteria as well. See V.R.E.C.P. 5(d)(2) (noting that an appealing party retains their status
from the proceedings below, “unless the Court otherwise determines on its own motion, on
motion to dismiss a party, or on a motion to intervene”).
Conclusion
For all the reasons more fully discussed above, we DENY Neighbors’ party status
requests under Act 250 criteria 1 (dust, water pollution, asbestos, and pollution from hazardous
materials), 3 (water supply), 9B (primary agricultural soils), and 10 (town and regional plan).
Neighbors have either failed to assert a particularized interest that is protected by those criteria,
or they have failed to set forth a sufficient offer of proof that Applicants’ proposed project may
affect their particularized interests. Conversely, we GRANT Neighbors party status under Act
250 criteria 4 (soil erosion, solely as to the excavation work along Route 100), 5 (traffic), 9K
(public investment), and 9E (extraction of earth resources). Neighbors have provided concrete
evidence of a causal connection between Applicants’ project and the interests protected by these
criteria such that the proposed project may affect these particularized interests.
For the reasons stated above, we conclude that two of the originally identified
Neighbors—James and Linda Murphy—are not entitled to party status under any of the
requested Act 250 criteria, and that they are not entitled to retain their party status under criteria
1 and 8, even though the District Commission granted such party status, because they have failed
to present adequate written documentation of their claimed life estate, even after Applicants
challenged their claim to a life estate interest in the neighboring property.
Accordingly, a trial on the merits will be held to determine compliance with the Act 250
criteria for which Neighbors Patrick Murphy, Penny Cargill, and Deborah Pratt have secured
party status by this Decision or at the District Commission below. This includes criteria 1
(noise), 4 (soil erosion), 5 (traffic), 8 (scenic beauty and aesthetics), and 9E (extraction of earth
20
resources). A pretrial telephone conference will be scheduled with the Case Manager to discuss
the possibility of mediation and, if necessary, to determine the scheduling of trial. The Court
requests that the parties confer, so that they may be prepared to discuss at that conference these
and any other anticipated issues.
Done at Newfane, Vermont, this 2nd day of July 2010.
___________________________________
Thomas S. Durkin, Environmental Judge
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