Rivers Development, LLC ( 2008 )

STATE OF VERMONT
ENVIRONMENTAL COURT
}
In re: Rivers Dev. Con. Use Appeal } Docket No. 7-1-05 Vtec
}
********************************************************************
}
In re: Rivers Dev. Act 250 Appeal } Docket No. 68-3-07 Vtec
}
********************************************************************
}
In re: Rivers Dev. ANR UIC JO } Docket No. 183-8-07 Vtec
}
********************************************************************
}
In re: Rivers Dev. Indirect Discharge JO } Docket No. 248-11-07 Vtec
}
Corrected1
Decision on Neighbors’ Motion for Summary Judgment
These appeals, some of which2 are consolidated for trial now set to begin on February 12,
2008, arise out of decisions by the Development Review Board (“DRB”) of the Town of
Moretown, and the District #5 Environmental Commission in which Rivers Development, LLC
(“Rivers”) was denied a conditional use permit and an Act 250 land use permit to construct and
operate a stone processing quarry in the Town of Moretown (“Moretown”).
Appellant-Applicant Rivers is represented by James Caffry, Esq. and Christopher J.
Nordle, Esq.; Cross-Appellant “Neighbors”3 are represented by David L. Grayck, Esq. and
1
This Corrected Decision is issued in connection with the granting of Neighbors’ motion for clarification. See
Entry Order dated January 18, 2008.
2
Docket No. 7-1-05 Vtec concerns the DRB’s denial of Rivers’s zoning and conditional use applications. Docket
No. 68-3-07 Vtec concerns the denial by the District #5 Environmental Commission of Rivers’s Act 250 land use
permit application. Docket No. 183-8-07 concerns the opinion issued by the Agency of Natural Resources that
Rivers’s Quarry does not require an underground injection control permit. Docket No. 248-11-07, the most recent
appeal, concerns the opinion issued by the Agency of Natural Resources that Rivers’s Quarry requires an indirect
discharge permit, but we note that is has not yet been consolidated with the preceding dockets. The consolidated
appeals have been set for trial; the most recent appeal has not yet been set for trial.
3
“Neighbors” includes the following individuals to whom the District Environmental Commission granted
individual party status in the Act 250 proceedings pursuant to 10 V.S.A. § 6086; these individuals have retained
their party status in these proceedings, pursuant to V.R.E.C.P. 5(d)(2): Thomas Allen, Robert Dansker, Jack Byrne,
Virginia Farley, Doug Hall, Cindy Hall, June Holden Life Estate, Rick Hungerford, Rita Larocca, Robert McMullin,
Beverly McMullin, John Porter, Scott Sainsbury, Patricia Sainsbury, Sandy Porter, Benjamin Sanders, Denise
Zachary K. Griefen, Esq.; Cross-Appellant Arthur Hendrickson and Linda Hendrickson are
united with the Neighbors, but are representing themselves pro se;4 Cross-Appellant Town of
Moretown is represented by Ronald Shems, Esq. and Geoffrey H. Hand, Esq.; and the Land Use
Panel of the Natural Resources Board (“NRB”), appearing in the Act 250 proceeding as an
Interested Person, is represented by Aaron Adler, Esq.
Neighbors have moved for summary judgment on three issues. First, Neighbors assert
that the proposed Quarry cannot secure a positive finding under the fourth conditional use
criteria in the Moretown Zoning Regulations (“MZR”), concerning conformance with bylaws in
effect, since the Quarry haul trucks would violate the noise standard found at MZR § 4.10(B)(1).
Second, the Neighbors assert that the proposed Quarry cannot comply with Act 250 Criteria 10
(i.e.: 10 V.S.A. § 6086(a)(10) (conformance with the Town Plan)), because Chapter Four from
the Town of Moretown Town Plan (“Town Plan”) requires that the extraction of gravel not
permanently scar the landscape. Finally, Neighbors assert that Rivers cannot meet its burden of
production and burden of persuasion concerning the safe use of the chemicals, explosives and
equipment at the Quarry. In Moretown’s response, it supports the Neighbors’ motion.
Conversely, Rivers opposes the Neighbors’ motion.
Factual Background5
The Court recently issued its Interim Decision, dated January 8, 2008, concerning the
previous motions filed in the first two consolidated appeals.6 In that Interim Decision, we
reviewed the material facts concerning the proposed Quarry, the municipal proceedings, and the
Act 250 proceedings. We incorporate that recitation of the material facts by reference, rather
than repeating it here. For purposes of our review of the pending motion, we note the following
additional material facts:
Sanders, Karen Sharpwolf, Ruth Van Heuven, Martin Van Heuven, and Constance Van Heuven. This Court’s July
3, 2007 Decision denied certain requests for additional party status, but did not disturb these Neighbors’ pre-existing
party status, as conferred by the District Commission.
4
Our subsequent references in this Decision to “Neighbors” include the Hendricksons.
5
All facts recited or referenced here are undisputed unless otherwise noted. For purposes of this motion only, we
view the material facts in a light most favorable to the non-moving parties. V.R.C.P. 56(c). We are not yet at the
stage of making specific factual findings. Thus, our recitation here should not be regarded as factual findings. See
Blake v. Nationwide Ins. Co., 2006 VT 48, ¶ 21, 180 Vt. 14, 24, citing Fritzen v. Trudell Consulting Eng’rs, Inc.,
170 Vt. 632, 633 (2000)(mem.).
6
Docket No. 7-1-05 Vtec and 68-3-07 Vtec
2
A. Town Plan and Zoning Regulations.
1. Chapter Four of the Town Plan, entitled “Natural and Cultural Resources”, states that the
DRB “shall, through the conditional use review process, ensure that the extraction of gravel and
other mineral resources does not permanently scar the landscape.”
2. The Moretown Zoning Regulations applicable to Rivers’s municipal permit applications7
state at § 4.10(B)(1) that “[n]o noise shall be permitted which is excessive at the property line or
incompatible with the reasonable use of the surrounding area. Excessive noise shall be
considered a sound pressure level that exceeds 70 decibels at the property line on a regular or
recurring basis.”
B. Proposed Quarry and Related Operations.
3. Rivers proposes that the Quarry will have a maximum extraction rate of 75,000 cubic
yards of rock product per year and will operate over an approximately thirty-three year period.
Rock extraction will be completed in six phases, with the order of phases depending on the
physical characteristics of the site and the unearthed material.
4. As with many quarries, Rivers’s reclamation plan does not return the site to its original or
natural contours, instead leaving the benched faces exposed. The stacked benches will leave an
exposed rock face that will have a maximum height of 210 feet.8 Portions of the exposed
benched faces will be visible from several places in Moretown, including the Moretown
Common Road and Route 100B.9
5. The proposed Quarry access will be from Route 100B via an existing woods road,
approximately 1,400 feet in length. The access road to the Quarry will require improvements
and grading in order to accommodate the haul trucks. Rivers proposes to remove approximately
895 feet of ledge along the northern edge of Route 100B to the east of the Quarry access road, so
as to satisfy the Vermont Agency of Transportation sight distance requirements for trucks exiting
the Quarry.
7
This would be the Zoning Regulations adopted March 7, 2000 and not the amended Regulations finally adopted
on August 2, 2004, while Rivers’s application was under consideration. See Interim Decision of Jan. 8, 2008 at 6–9.
8
A single bench level will be about fifteen feet in height; therefore, the maximum height of 210 feet of exposed face
is approximately fourteen stacked benches. Rivers avers that the exposed rock faces in the Quarry would not be
visible in their entirety due to topographical and pre-existing vegetative visual barriers.
9
Neighbors assert that the Quarry floor will be visible from several places in Moretown.
3
6. The Quarry will generate a maximum of fifty-four loaded haul trucks per day (i.e.: 108
one-way vehicle trips) and up to ten other vehicles trips (i.e.: twenty additional one-way vehicle
trips for employees and other business invitees).
7. A haul truck produces noise greater than seventy decibels at a distance of fifty feet.
However, as the distance and vegetation increase, and as the topography changes, the decibel
level may decrease.
8. As shown on Rivers’s “Project Overview Plan, Sheet 1 of 7”, the distance from the
Quarry haul road, where it intersects with Route 100B, to the Holden property line is
approximately 225 feet. The distance from the haul road to the McMullin property line is
approximately 150 feet.
9. Rivers proposes to operate the following equipment at the Quarry site: one hydraulic rock
drill; one excavator; one bucket loader; one six by twenty foot triple deck screener; one
yard/water truck; one backhoe; one crusher with a total capacity of one hundred cubic yards per
hour; and other miscellaneous equipment as needed. Rivers has yet to purchase this equipment
and cannot at this time identify the specific make and model of this equipment.
Discussion
We note that Neighbors’ pending motion seeks a summary denial of Rivers’s pending
applications and a determination that a hearing on the merits, now scheduled to be conducted
over two weeks, beginning February 12th, is unnecessary. Our Supreme Court has repeatedly
stated that summary judgment is only appropriate “when there are no genuine issues of material
fact and, viewing the evidence in a light most favorable to the non-moving party, the moving
party is entitled to judgment as a matter of law.” In re Carter, 2004 VT 21, ¶ 6 (citation omitted);
V.R.C.P. 56(c). In determining whether there is a disputed issue of material fact, we are directed
to show great deference to the non-moving party in favor of affording each party the opportunity
to present their facts at trial. Id. In the course of our review of a pre-trial summary judgment
request, we are directed to “accept as true [all] allegations presented in opposition to summary
judgment if they are supported by affidavits or other evidentiary material”, Chapman v. Sparta,
167 Vt. 157, 159 (1997), and that “the party opposing summary judgment is entitled to the
benefit of all reasonable doubts and inferences . . ..” Montgomery v. Devoid, 2006 VT 127,
¶ 28, 915 A.2d 270, 280 (citing Carr v. Peerless Ins. Co., 168 Vt. 465, 476 (1998)). “If there is a
genuine issue of material fact, summary judgment may not serve as a substitute for a
4
determination on the merits.” Devoid, 2006 VT 127, ¶ 9 (citing Human Rights Comm’n v.
Benevolent & Protective Order of Elks, 2003 VT 104, ¶ 11, 176 Vt. 125). It is with this
procedural foundation in mind that we begin our analysis of the issues raised in Neighbors’
pending motion.
Moretown Noise Standard
Neighbors assert that the Quarry haul trucks will produce noise at such a level as to make
it impossible for Rivers to show at trial that its proposed Quarry will be in conformance with the
bylaws in effect at the time of the filing of its application, thereby being in violation of MZR
§ 5.2(C). We therefore begin with an analysis of that bylaw provision.
The Moretown Zoning Regulations present five criteria for conditional use approval.
MZR § 5.2(C). Each criterion directs that a proposed project be shown by the applicant to not
have an adverse affect on (1) the capacity of existing or planned community services or facilities;
(2) the character of the area; (3) traffic on area roads and highways; (4) the applicable municipal
bylaws; and (5) the utilization of renewable resources. MZR §§ 5.2(C)(1)–(5).
By their motion, Neighbors assert that Rivers will be unable to present evidence at trial
that its proposed Quarry complies with MZR § 5.2(C)(4). That specific subsection requires that
the DRB (and this Court on appeal) “shall consider whether the proposed development complies
with all bylaws in effect at the time of application . . ..” Neighbors specifically challenge
Rivers’s ability to show compliance with the performance standard from MZR § 4.10(B)(1),
which states that “[n]o noise shall be permitted which is excessive at the property line or
incompatible with the reasonable use of the surrounding area. Excessive noise shall be
considered a sound pressure level that exceeds 70 decibels at the property line on a regular or
recurring basis.” This performance standard “appl[ies] to all uses, with the exception of
agriculture and forestry, in all [zoning] districts”, including the Agriculture-Residential District
in which the Quarry would be located. MZR § 4.10(B).
Neighbors allege that the Quarry will necessarily contravene the performance standard
from MZR § 4.10(B)(1) because the proposed haul trucks may produce noise greater than
seventy decibels at a distance of fifty feet. The Quarry is expected to generate a maximum of
fifty-four loaded haul trucks trips per day on the haul road and Route 100B. Neighbors rely on
Rivers’s Noise Impact Study, produced by Rivers’s expert, Dr. Hundal, and the Project
Overview Plan, produced by Rivers’s engineer, to calculate the noise levels which could be
5
expected on several neighboring properties. According to Neighbors’ calculations, § 4.10(B)(1)
will be violated “every time a truck crosses the property line while entering or exiting the
proposed quarry site.” Neighbors’ Motion for Summary Judgment, at 6. This violation,
Neighbors assert, will occur on a regular and reoccurring basis and therefore establish a basis for
denial of Rivers’s conditional use application, as a matter of law.
Rivers disputes Neighbors’ interpretation of Dr. Hundal’s report. First, Rivers contends
that Dr. Hundal has yet to testify at trial, thus precluding an opportunity to contest Neighbors’
interpretation and analysis of his study. Second, Rivers asserts that Neighbors have
misconstrued Dr. Hundal’s study by using the peak sound level rather than the expected sound
level, thereby giving an inflated noise level at the property line. While not expressly stated, we
understand Rivers to also object to Neighbors’ interpretation of MZR § 4.10(B)(1) as being
applicable to truck traffic at the Quarry boundary and along Route 100B, rather than the noise
produced by the general operation of the Quarry, as measured at the boundary line.
Neighbors present an intriguing legal analysis of MZR § 4.10(B)(1). If adopted by this
Court, it would appear that any development in Moretown requiring conditional use approval and
relying upon car or truck travel10 must be deemed to be in violation of MZR § 4.10(B)(1). Such
an interpretation of MZR § 4.10(B)(1) may be required of this Court, but given its enormous
impact, the lack of any previously similar interpretations by the Moretown DRB, or an
interpretation of a similar municipal regulation by this Court, we decline to so rule until after
receiving all admissible evidence on this issue at trial.
Summary judgment is therefore not appropriate because there is a material fact in
dispute: specifically, whether haul trucks will violate the § 4.10(B)(1) noise standard. In
determining that there is a disputed issue of material fact, we accepted as true the allegations
presented in Rivers’s opposition to summary judgment because they were supported by
evidentiary material. Chapman, 167 Vt. at 159. Further, Rivers is entitled to the benefit from all
reasonable doubts and inferences it raised in its opposition and attached affidavit. Devoid, 2006
VT 127, ¶ 28. Because there is a genuine issue of material fact, summary judgment may not
serve as a substitute for a determination on the merits. Id. at ¶ 9. Therefore, Neighbors’ Motion
for Summary Judgment as to conformance with MZR § 4.10(B)(1) (noise standard) is DENIED.
10
Neighbors “note that even cars and light trucks produce a noise [of] 76 dBA at twenty-five feet.” Neighbors’
Reply to Rivers’s Opposition to Summary Judgment, filed December 14, 2007, at footnote 1.
6
Permanent Scar on the Landscape
Neighbors have also moved for summary judgment by alleging that the exposed rock
benches in the Quarry constitute a permanent scar on the landscape in contravention of the
Moretown Town Plan.
Act 250 places the burden upon an applicant to demonstrate that its proposed project “[i]s
in conformance with any duly adopted local or regional plan . . . under chapter 117 of Title 24.”
10 V.S.A. § 6086(a)(10). Town Plan Chapter Four, entitled “Natural and Cultural Resources”,
states that the DRB “shall, through the conditional use review process, ensure that the extraction
of gravel and other mineral resources does not permanently scar the landscape . . ..” The
Neighbors assert that this Court must conclude, pre-trial, that the proposed Quarry operation will
permanently scar the landscape. If we conclude that this fact is undisputed, particularly after
viewing all evidence in a light most favorable to Rivers and affording Rivers the benefits of all
reasonable doubts and inferences, as we must under the precedent of Carter, Chapman, and
Montgomery, then we are obligated to grant Neighbors’ pre-trial summary judgment motion.
Neighbors and Rivers present divergent aesthetic descriptions of the proposed Quarry.
Neighbors contend that the “exposed rock face and/or quarry floor will be visible from many
places within Moretown” and that the Quarry “will present an exposed rock face ranging up to
210 feet high.” Neighbors’ Motion for Summary Judgment at 1, 2. Rivers counters that there
will not “be any line of sight to the quarry floor from off site” and “that the largest exposure of
rock face [visible from off site will] be 45 feet in height from a distance of 8,053 feet (1.52
miles).” Rivers’s Response to the Neighbors’ Motion for Summary Judgment at 5; See also
Affidavit of Gunner McCain at ¶ 7; T.J. Boyle and Associates Sight Line Report.
Through this jumble of assertions, an undisputed fact emerges: at a minimum, there will
be forty-five feet of exposed rock face visible from off of Rivers’s property. Thus, both parties
agree that there will be some ability off site to view some part of the exposed benches of the
Quarry, but they dispute the extent of that view.
Whether exposed rock face constitutes a “permanent scar” is a mixed question of law and
fact. Following V.R.C.P. 56(c), viewing the facts in a light most favorable to Rivers, the Court
cannot say, based on the evidence presented pre-trial, that a limited view of forty-five feet of
exposed face constitutes a permanent scar on the landscape. The facts presented here may form
a sufficient basis to rule in Neighbors’ favor at trial, but we cannot do so now, given the
7
procedural posture of the pre-trial summary judgment motion and given the absence of live
testimony and cross-examination, so that the Court may determine the appropriate weight and
credibility to afford the testimony. Summary judgment is therefore not appropriate. There is a
material fact in dispute: specifically, whether there is sufficient exposure of the rock face to
constitute a permanent scar on the landscape. We therefore decline to grant Neighbors’ motion
on this basis.
Rivers’s Burden of Production
Neighbors have also asserted that they are entitled to summary judgment because of
Rivers’s failure to identify the specific chemicals, explosives and equipment to be used at its
proposed Quarry. Rivers counters that it has presented enough information to the Court in order
to satisfy its burden of production, and that it will satisfy its burden of persuasion at trial.
In response to Question 7 of Neighbors’ first set of discovery requests, Rivers admits that
it “has not determined what equipment it will use for, by or in preparation of the Project.” In
response to Neighbors’ Question #8, Rivers admits that it “has not and cannot determine every
substance which will be used . . . in preparation, construction and operation of the Project” and
cannot commit to “using any particular explosive, or any particular equipment.”
Neighbors are correct in noting that in the municipal permit appeal, Rivers bears the
“burden of proving that [its] application complies with the applicable zoning ordinance
provisions”, In re Appeal of McLaughlin, Docket No. 42-2-05 Vtec, slip op. at 8 (Vt. Envtl. Ct.,
March 13, 2006), and in the Act 250 permit appeal, Rivers “carries the initial burden of
producing some evidence that would allow for positive findings upon each of the applicable Act
250 criteria.” Route 103 Quarry, Docket No. 205-10-05 Vtec, slip op. at 8 (Vt. Envtl. Ct., Nov.
22, 2006) (citations omitted). Burdens of proof and their components are often the determinative
factor in many land use appeals. We must analyze its subsets in order to properly address the
legal issue Neighbors raise here.
First, we note that the burden of production is something less than the burden of
persuasion. Malaney v. Hannaford Bros. Co., 177 Vt. 123, 130–135 (2004). To meet the burden
of production, a party is required to introduce evidence, often of a minimal nature, relating to the
assertion of a material fact. Meeting the burden of persuasion requires more, namely that the
party must present evidence sufficient to prove its case. The facts sufficient to fulfill a party’s
burden of persuasion are usually presented at trial.
8
Here, Rivers has presented evidence relating to the equipment it intends to use at the
Quarry. Rivers proposes to operate the following equipment at the Quarry site: one hydraulic
rock drill; one excavator; one bucket loader; one six by twenty foot triple deck screener; one
yard/water truck; one backhoe; one crusher with a total capacity of one hundred cubic yards per
hour; and other miscellaneous equipment as needed. We have found no legal precedent
requiring an applicant to commit to a specific make and model of equipment at this point in the
permitting process. Rather, applicants often make representations at trial of the maximum level
of noise or other disturbances that will be emitted by the equipment they propose to use within
their project. Any actual noise or other disturbance emitted in excess of maximums incorporated
into any permit that may issue could be grounds for a permit violation or revocation proceeding.
To require an applicant to predict the exact level of noise or other disturbances that will be
emitted by the specific year, make and model of equipment the applicant will employ, perhaps
many years later, appears to be an excessive and possibly an impossible burden to establish for
any applicant to meet. Conversely, those opposing a quarry application often present evidence
on the range and frequency of noise or other disturbances emitted by equipment commonly used
in a quarry. We expect such competing presentations of evidence to occur at trial here.
The more complex issue is whether Rivers has satisfied its burden of production relating
to the chemicals and explosives it intends to use at the Quarry. Regarding explosives, Rivers
“has committed to not using items containing perchlorate”, Rivers’s Answer to Neighbors’
Discovery Question #8, and has asserted that there will not be onsite storage of fuel or blasting
materials. While these responses indicate what Rivers will not do at the Quarry, they do not
provide guidance on what Rivers will do. In the former Environmental Board11 Decision in Re:
Sherman Hollow Inc., Application #4C0422-5-EB, at 18-20 (Vt. Envtl. Bd., Nov. 9, 1988), the
applicants permit was denied because “[g]iven the potential for environmental contamination
from pesticides, the Board is especially concerned about the lack of specific information
provided by the applicants.” However, the Decision in Sherman is factually distinguished from
this case because the applicant in Sherman failed to provide any analysis on the type of
pesticides to be used, frequency of pesticide applications, quantities of pesticides to be applied,
11
The former Environmental Board, predecessor to the present Land Use Panel of the Vermont Natural Resources
Board, was once charged with adjudicating Act 250 appeals. We are directed under 10 V.S.A. § 8504(m) to give the
same weight and consideration to the decisions of the former Environmental Board as we do to prior decisions of
this Court.
9
hydrology on the site, soil studies for the site, or the handling and storage of pesticides, thereby
preventing the Board from making any type of fact-based determination. Id. at 19, 20. Here,
conversely, while Rivers has failed to identify the specific blasting agents and chemicals it
intends to use, Rivers has provided evidence regarding the function of the explosives, the
handling and storage of explosives, the frequency of blasting, the hydrology, soils and bedrock
on the site. We therefore conclude that Rivers has produced some, albeit minimal, “evidence
that would allow for positive findings upon [this specific] applicable Act 250 criteri[on]”, Route
103 Quarry, Docket No. 205-10-05 Vtec, slip op. at 8, and has presented sufficient evidence on
this point to survive Neighbors’ pre-trial motion. Whether Rivers satisfies its burden of
persuasion remains an issue for trial.
In light of this reasoning, we conclude that Rivers has presented enough evidence here to
survive Neighbors’ pre-trial motion. In so ruling, we caution that we are not concluding that the
evidence presented here will be sufficient at trial to support a conclusion that Rivers has fulfilled
either its burden of production or burden of persuasion on this point. We look forward to both
parties’ presentation of evidence at trial, as to noise and other disturbances.
For all the reasons stated above, we conclude it not appropriate to grant Neighbors
summary judgment and therefore allow these disputed issues to be resolved after the taking of all
admissible evidence at trial.
Conclusion
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
Cross-Appellant Neighbors’ motion for summary judgment is DENIED.
Done at Newfane, Vermont, as of this 11th day of January, 2008.
__________________________________________
Thomas S. Durkin, Environmental Judge
10