A. Johnson Conditional Use Permit ( 2007 )

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: A. Johnson Conditional Use Permit } Docket No. 130-7-05 Vtec
(Appeal of Langrock and Decker) }
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Merits Decision
This appeal concerns conditional use approval of a proposed sand and gravel extraction
operation on a 33-acre parcel owned by Applicant A. Johnson Company (“A. Johnson”) on
Upper Plains Road in Salisbury. A. Johnson is represented in this proceeding by Karl W. Neuse,
Esq.; the Town of Salisbury (“Town”) is represented by Donald R. Powers, Esq.; Appellants
Peter F. Langrock and Dawn Decker represent themselves in this proceeding, as do Interested
Persons Carol Wieland and Margaret “Julie” Dawson.
As was noted in this Court’s Interim Decision of March 28, 2006, this case has a longer
procedural history than its single docket number suggests. An appeal and cross-appeal were first
taken from the November 13, 2003 Decision of the Town of Salisbury Development Review
Board (“DRB”) to grant conditional use approval for this same project. See In re: Appeal of The
A. Johnson Company, Docket No. 220-12-03 Vtec (Vt. Envtl. Ct., Dec. 23, 2004). In its 2004
Decision, this Court remanded the application back to the DRB for further consideration,
specifically in relation to Condition 13 of that Decision (which related to the imposition of
impact fees), taking into account the truck traffic expected to be generated by the proposed
project. After remand, the DRB conducted an evidentiary hearing and issued its June 20, 2005
Decision, granting conditional use approval for the proposed project, with revised impact fees
specifically tied to truck traffic.
Appellants Langrock and Decker, owners of abutting residential properties, filed a timely
appeal of the June 20, 2005 DRB Decision, preserving for appeal two issues: first, whether a
rock crusher may be used within the proposed project and second, whether the proposed hours of
operation are unreasonable.
A. Johnson filed a cross-appeal, raising eight issues, most all of which relate to the
DRB’s re-imposition of impact fees.1 Prior to trial, A. Johnson and the Town reached an
agreement as to the imposition of impact fees; their settlement was reduced to writing and
entered into evidence at trial as Exhibit 4. The settlement was ratified by the Salisbury
Selectboard, as required by paragraph 4 of the Agreement. It was not agreed to or accepted by
any other party to this appeal.
As an initial legal issue, we note that even though A. Johnson reached agreement with the
Town on all issues raised by its cross-appeal, other parties to this proceeding may raise issues
within the confines of A. Johnson’s cross-appeal, given that those remaining parties did not join
in that settlement. Even when an original appellant withdraws its appeal, through settlement or
otherwise, intervening parties may continue to prosecute the appeal, within the confines of the
original statement of questions. In re Garen, 174 Vt. 151, 153–4 (2002).
While the remaining parties had the right to prosecute issues raised in A. Johnson’s
original Statement of Questions,2 their presentation at trial was solely focused on the two issues
raised in Appellants’ Statement of Questions: the rock crusher and hours of operation. We
therefore render the following findings of fact in connection with those two issues.
Findings
1. A. Johnson owns a parcel of undeveloped land containing about 33 acres off of Upper
Plains Road. This A. Johnson parcel does not have frontage on Upper Plains Road, but is served
by an “access & woods road” that crosses over lands owned by the Town and also accesses the
Town Landfill.
2. The A. Johnson parcel is located entirely within the Low Density Residential Zoning
District (“LDR District”).
3. The A. Johnson parcel includes an access way onto Beaver Pond Road that runs along the
easterly boundary of Appellant Langrock’s residential property. A. Johnson does not intend to
use this access way for its proposed project.
1 A. Johnson appears to raise other issues in its Statement of Questions, including whether the Town had authority
to set the Zoning Administrator’s fee at $200.00 (Question 4). However, we understand from the parties’ Settlement
Agreement that the intent was to resolve all issues raised by A. Johnson’s cross-appeal, at least as between the Town
and A. Johnson.
2 A. Johnson didn’t file a separate Statement of Questions, but rather included its Questions in the Notice of its
cross-appeal, filed on July 14, 2005.
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4. A. Johnson proposes to extract approximately 350,000 cubic yards of sand and gravel
from its parcel along Upper Plains Road. The area from which sand and gravel would be
extracted is about 5 acres in size and located along A. Johnson’s southern boundary, where the
parcel abuts the Town Landfill.
5. The remaining land on this A. Johnson parcel, estimated at about 28 acres, is mostly
wooded and would remain so during the life of the pit.
6. In its original application for conditional use approval, A. Johnson requested permission
to extract and remove from the site up to 30,000 cubic yards of sand and gravel per year. A.
Johnson estimates that the 5 acre pit will yield marketable sand and gravel for the next 10 to 15
years.
7. Work is proposed to commence at the pit each weekday at 7:00 AM and end at 5:00 PM,
with public access from 7:30 AM to 3:30 PM. Work may also occur on Saturdays from
7:00 AM to 12:00 Noon, but will not be open to the public on Saturdays. The pit would be
closed, both to workers and the public, on Sundays and holidays recognized by the state or
federal governments.
8. The proposed sand and gravel pit would operate on a seasonal basis for about 200 to 250
days per year, opening in the spring and closing in the late fall or early winter of each year.
9. There is no blasting planned or authorized at the proposed pit.
10. Some of the extracted rock will be larger than is needed for A. Johnson’s customers,
particularly state and municipal entities. A. Johnson intends to use a portable rock crusher on
site to reduce the extracted stone to the needed sizes.
11. The portable crusher would be brought to the proposed pit by its operator, Paquette
Excavating, Inc., which is a co-applicant with A. Johnson in this proceeding. Emile J. Paquette,
president of Paquette Excavating, Inc., testified at trial about his experience with portable rock
crushers, such as the crusher proposed to be used at this A. Johnson pit.
12. Oversized rock would be stockpiled in the pit to be broken up to usable sizes by the
crusher. The rock crusher would be brought on site for use for about ninety days3 during the
season that the pit is operating. It would take about one day to set up the portable crusher in the
pit, and about one day to pack it up to move to another location.
3 The ninety days the portable crusher would operate at this pit would not necessarily be sequential; it would depend
on the amount of excavated rock that needed to be crushed. The portable crusher could arrive at and leave from this
pit several times during each operating season.
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13. Once assembled on site, the crusher is about eleven feet wide and sixty feet long. It has a
screener on it to initially separate different sized stone; another screener of about forty feet long
is attached to the crusher screener to further assist in separating stone by size. The crusher
breaks up rock to certain sizes directed by state specifications for roads, ditches and the like.
14. Oversized rock will be delivered from within the pit to the crusher by two wheeled
loaders. After the rock is crushed, two conveyors, each a couple of feet wide and forty feet long,
will take the crushed product away from the crusher. Excavators would also be used in the pit to
load the excavated or crushed material and to dig and shape the pit.
15. Operators of the crusher often use ear plugs or other ear protection. No specific audio
readings of the noise the crusher and excavation equipment would emit, particularly at the A.
Johnson boundaries, was admitted into evidence. Mr. Paquette testified, and the Court finds
credible, that he once operated a similar crusher near a school in Bristol, Vermont for fifteen
years, and “never had a complaint” about it.
16. Every time the portable crusher is moved it is calibrated and inspected by officials from
the U.S. Bureau of Mines.
17. The sand, gravel and crushed rock extracted from the proposed pit will be loaded into 14
yard dump trucks. These trucks would travel south on Upper Plains Road to Route 53 for
ultimate access to Vermont Route 7.The trucks would average ten round trips per day during the
operating season. A. Johnson has agreed that its trucks would not use the pit access that leads to
Beaver Pond Road, nor use that road, except for the limited purpose of delivering sand or gravel
to properties along Beaver Pond Road.
18. Because of the operating times for the pit, trucks loaded with sand, gravel or crushed rock
would sometimes be traveling on Upper Plains Road while children were being transported to
and from school.
19. There are about sixteen school-aged children living along Upper Plains Road in the
vicinity of the A. Johnson pit.
20. While concerns were expressed about the truck traffic from the pit, particularly since the
trucks would be operated during the times children are being brought to and from school, there
was no evidence of the specific dangers the operation of the A. Johnson trucks would bring to the
area. Upper Plains Road, particularly in the vicinity of the A. Johnson pit, is a rural road of
sufficient width and condition to not be adversely impacted by the truck traffic estimated to be
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generated by the A. Johnson pit. Anecdotally, there was no evidence revealed at trial of
difficulties with the trucks that travel to and from the Town Landfill on Upper Plains Road, even
though the Landfill has been in operation for a number of years.
21. No aspect of the proposed excavation plans or reclamation plan were preserved for
review by this Court in this appeal.
Discussion
The Court interprets the Settlement Agreement entered into between A. Johnson and the
Town, admitted at trial as Exhibit 4, as a request by those parties to resolve the issues presented
by A. Johnson’s cross-appeal by acceptance of the terms of that Agreement. The Settlement
Agreement speaks principally to issues surrounding the legality of assessing impact fees on this
specific project and the appropriate level of impact fees. In essence, the Settlement Agreement
recommends that the DRB Decision of June 20, 2005 be affirmed, with revisions to Condition 13
relating to impact fees.
As noted above, the Garen precedent allows other parties to an appeal to prosecute the
appeal, even when the original appellant has withdrawn or otherwise chosen not to proceed with
the appeal. Here, we have a recommendation from both the Town and the Applicant as to how
the Court should resolve all issues raised by A. Johnson’s cross-appeal. While the other parties
did not join in this Agreement, neither did they offer any evidence at trial challenging the terms
of the Agreement. Thus, the only evidence before us as to impact fees is that presented by A.
Johnson at trial in support of the legality of imposing impact fees, and the specific mechanism
for assessing and re-evaluating the calculation of impact fees during the anticipated life of this
sand and gravel pit.
The Town and A. Johnson followed the recommendation of this Court in its remand order
of December 24, 2004. See In re: Appeal of The A. Johnson Company, Docket No. 220-12-03
Vtec (Decision and Order on Pending Motions) (Vt. Envtl. Ct., Dec. 23, 2004). The Town
adopted interim zoning bylaws to correct the deficiency identified by this Court in its previous
bylaws relating to the assessment of fees on specific projects that are expected to have a
measurable adverse impact upon highways or other municipal resources.
While the Court’s remand appears to speak only to Condition 13 in the prior DRB
Decision of November 13, 2003, the DRB crafted its subsequent Decision of June 20, 2005 as
both a refinement of the impact fees assessment, after adoption of the interim zoning bylaws, and
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a “reissue” of all other conditions to its prior conditional use approval of the proposed project.
See DRB Decision of June 20, 2005 at pp. 4–6 and compare conditional use approval Conditions
1–12, 14 and 15 with identically numbered conditions of approval in the DRB Decision of
November 13, 2003. Thus, we conclude that the DRB crafted its June 20, 2005 Decision to
supersede its prior Decision. While the DRB was not specifically directed to do so by this
Court’s December 23, 2004 Decision, we conclude that the process followed by the DRB was
proper and led to the efficient procedural result that we now have just one decision—the June 20,
2005 Decision—at issue regarding this proposed project.
In light of the evidence submitted at trial in support of the impact fees that are now
jointly recommended by the Town and A. Johnson, and the lack of evidence presented at trial
contravening the suggested impact fees, we find that the suggested revised impact fees are
proper. We therefore adopt the revised Condition 13 suggested by the Town and A. Johnson.
We now turn our focus to the two issues raised by Appellants: the propriety of the
proposed rock crusher and hours of operation. We also note that to the extent that terms of the
June 20, 2005 DRB Decision were not preserved for our review in this appeal, they are outside
this Court’s jurisdiction; they have become the law of the case by virtue of not being appealed.
In re Appeal of Jolley Associates, 2006 VT 132 ¶ 9. Thus, we turn our focus, not to the
application generally, but to the portions of the DRB’s conditional use approval that were
preserved for our review by Appellants’ Statement of Questions. We address each of them in
turn.
1. The Rock Crusher.
Appellants assert in their first Question that the rock crusher proposed to be used in the
operation of this sand and gravel pit is a “manufacturing device and is not a permitted use under
the Salisbury Zoning Regulations.” Appellants offered no citation to the authority for this legal
conclusion and we find none after our own search through the Salisbury Zoning Regulations
(“Regulations”). We therefore decline to base a denial of the pending application on this point.
The term “manufacturing device” is not a term that is defined in the Regulations. See
Regulations § 130. Surface mining, gravel extraction and quarrying activities are permitted in
the LDR District, but only once the proposed project has received conditional use approval.
Regulations § 930. We conclude that the sand and gravel pit A. Johnson proposes here can
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properly be described as a “surface mining, gravel extraction and quarrying” operation, as that
term is used in Regulations § 930.
The evidence presented at trial confirmed the Court’s general understanding that some
sand and gravel pits employ rock crushers and some do not. The operation proposed here
employs a “portable” rock crusher that will be used for about one-third of the days that the pit is
in operation each season.
When attempting to determine the meaning of an ordinance or statute, we are directed to
seek out its “fair and reasonable construction.” Langrock v. Department of Taxes, 139 Vt. 108,
110 (1980), citing Holbrook Grocery Co. v. Commissioner of Taxes, 115 Vt. 275, 278 (1948).
We are also advised to look to the more specific provision for the controlling language when
interpreting provisions of a statute or ordinance. See Judicial Watch, Inc. v. Howard Dean, MD,
et. al., 179 Vt. 214, 217 (2005), citing Stevenson v. Capital Fire Mutual Aid Sys., 163 Vt. 623,
625 (1995) (mem.). Thus, we conclude that the proposed sand and gravel project is governed by
the specific provisions of Regulations § 930 and not more general provisions within the
Regulations that govern manufacturing.
Regulations § 342 governs the approval of all conditional uses in Salisbury. Only some
of the provisions of Regulations § 342 are applicable to sand and gravel extraction operations
such as proposed here; those that are applicable are further narrowed by what issues the
Appellants preserved for our review in this particular appeal. In regards to the proposed rock
crusher within this A. Johnson pit, we conclude under Regulations §§ 342.6 and 342.7 that the
evidence presented did not show that the crusher, if operated as proposed, would have an adverse
impact upon the character of the area or adjoining uses. Within the context of the proposed sand
and gravel pit and its siting within the wooded area of A. Johnson’s remaining land, the use of
the crusher as proposed is not inappropriate and will not have an adverse effect on the continued
use and enjoyment of the approved uses in its vicinity. We therefore decline to deny the pending
application on this basis.
2. Hours of Operation.
The hours A. Johnson and its co-applicant, Paquette Excavating, Inc. propose to
seasonally operate the proposed gravel pit have remained constant through the proceedings on
this application. A. Johnson has not proposed alternative hours of operation; nor have any of the
other parties to this proceeding. The proposed hours of operation appear to coincide with the
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general hours of operation, in this Court’s experience, of similar operations and the customers
that frequent sand and gravel pits, including state and local highway maintenance and
construction crews.
As with the proposed rock crusher, we view the question presented as whether the
proposed hours of operation will have an adverse impact upon the character of the area or the
authorized uses adjoining the A. Johnson property. Many expressed concern about the possible
danger of empty or loaded A. Johnson trucks driving along Upper Plains Road at the same time
that children are being brought to and from area schools. Any collision between one of these
trucks and a vehicle transporting school-aged children would be a calamity, but there was no
evidence presented that the increased truck traffic caused by the proposed pit would materially
increase the risk of injury to area children. In fact, there was no evidence presented at trial that
the long operational history of the adjoining Town Landfill, which the evidence revealed was
occasionally used to extract sand and gravel, had resulted in any increased danger to area
children. We therefore conclude that the evidence presented supports our conclusion that the
truck traffic generated by this pit, if operated as proposed, is not likely to create such adverse
impacts. We therefore decline to deny the pending application on this basis as well.
Conclusion
For all these reasons, we conclude that A. Johnson’s proposed sand, gravel and crushed
rock project should be APPROVED as a conditional use under Regulations § 930, subject to the
following revised Condition 13:
13. An impact fee of $0.13 (thirteen cents) per cubic yard of sand and gravel
removed from the pit is hereby imposed on the Applicant. Said fee, payable to
the Town of Salisbury, is to be calculated on a calendar-quarter basis and paid to
the Town on the 15th of each January, April, July and October. The proceeds of
said payments are to be set aside in an account to be used only for the repair and
maintenance of Route 53 from its junction with Route 7 to its junction with Upper
Plains Road and Upper Plains Road between the right of way and Route 53. At
the end of the fifth and tenth years of operation (and every five years thereafter, if
any), at the option of either the Town or Applicant, the impact fee shall be
redetermined based on:
a. Updated traffic counts on Route 53 and Upper Plains Road. The traffic
counts shall be taken by Addison County Regional Planning Commission, or any
other person or entity approved by both Applicant and the Town, on or about
January 15 and July 15 following or preceding expiration of the fifth and tenth
years. Applicant will reimburse the Town for half of the costs of such traffic
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counts. The data for January and July will be averaged to determine traffic
loading without Applicant’s trucks.
b. Annual road maintenance prices will be updated based upon then current
costs.
c. The annual percentage of traffic loading caused by Applicant’s trucks will
be based on then-current use data from the log to be maintained under paragraph
7, above.
d. The redetermined impact fee will be applied on the fifth and tenth
anniversaries (and every five years thereafter, if any) from the date of
commencement of operation.
e. Applicant will give the Town Select Board written notice of
commencement of operations within 10 days after such date of commencement.
This completes the current proceedings on this appeal before this Court; the matter is now
concluded. This matter is REMANDED to the Town Zoning Administrator to complete the
ministerial act of issuing a conditional use permit that incorporates the terms of this Decision and
the unappealed portions of the DRB Decision of June 20, 2005.
A Judgment Order accompanies this Decision.
Done at Berlin, Vermont this 13th day of March, 2007.
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Thomas S. Durkin, Environmental Judge
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