In re: Appeal of John and Sharon O'Rear ( 2001 )

STATE OF VERMONT
ENVIRONMENTAL COURT
In re: Appeal of John and }
Sharon O= Rear, et al. }
} Docket No. 2-1-00 Vtec
}
}
Decision and Order on Threshold Issues
Appellants appealed from the December 7, 1999 decision of the Zoning Board of Adjustment
(ZBA) of the Town of Calais regarding the application of Stanley and Janice Morse and Black
Rock Coal, Inc. for a conditional use permit. A number of other individuals and the Selectboard
of the Town of Calais entered their appearance as interested parties but have not been active
participants. Appellants are represented by Gerald R. Tarrant, Esq.; Appellee-Applicant Black
Rock Coal, Inc. is represented by George E. Rice, Esq. When the term Appellee-Applicant is
used in the singular in this decision, it refers to Appellee-Applicant Black Rock Coal, Inc.
On January 23, 2001, the Court disposed of a related appeal In re Appeal of Himes, 251-11-00
Vtec, regarding the validity of a curb cut permit issued to Appellee-Applicants for the project at
issue. The Court ruled that it had no jurisdiction of challenges either to the content of access
permits issued under 19 V.S.A. ' 1111, or to the authority of the town officials who purport to
issue them or to receive them for filing under ' II(11) of the Calais Zoning Regulations. The
decision suggested that those permits may be appealable, if at all, under V.R.C.P. 74 or 75,
including actions in the nature of mandamus or quo warranto as provided in V.R.C.P. 81(b).
However, the Court noted that curb cut permits are to be issued by the selectboard, and that '
II(11) requires that the zoning administrative officer receive and file the curb cut permit before
the zoning permit application may be considered complete. Therefore, the Court advised the
parties that in the present appeal (Appeal of O= Rear, Docket No. 2-1-00 Vtec), the Court would
have to determine whether the curb cut permit is valid in order to determine if the conditional use
application is complete, as well as considering the adequacy of the sight distances along County
Road under the conditional use standards.
The Court ruled on February 22, 2001 in the present case on various summary judgment motions
and motions to dismiss the underlying application. Appellants had moved to dismiss the
application before the Court on appeal, arguing that the application was not complete for lack of
a validly-issued curb cut permit. Because the curb cut permit had not been issued by the
selectboard as required by Section II(11)of the Calais Zoning Ordinance and by 19 V.S.A. '
1111, the Court ruled that therefore the application was not complete. However, noting that the
matter is de novo before the Environmental Court, in the February 22, 2001 decision denying the
motion to dismiss, the Court specifically advised the parties that Appellee-Applicants would
have to demonstrate that the application is complete as of the hearing on the merits in
Environmental Court.
On one of the summary judgment issues, the Court ruled in the February 22, 2001 decision that
the literal text of the permit authorized Appellee-Applicants only to extract up to 8,000 cubic
yards of slate and granite in total, and not to extract that amount each year. However, the Court
suggested that Appellee-Applicants might wish to move the ZBA for clarification or amendment
of the permit on that issue. On March 5, 2001, the Court granted Appellee-Applicant=s request
for a partial remand to allow it to apply to the ZBA for clarification of or amendment of the
decision on appeal1, to determine whether the permit allowed or intended to allow the extraction
of the designated amount in total, or on an annual basis. The Court retained jurisdiction of the
remainder of the matter, and began the hearing on the merits of the threshold issues.
The parties agreed that the trial would proceed first with the presentation of evidence on the
preliminary or threshold matters of whether the proposal fits into a use category or categories
entitled to apply for a permit in the Rural Residential zoning district, and whether the status of
the curb cut permit precludes the Court from proceeding with the remainder of the merits of the
permit application. Evidence was taken on the threshold issues on March 19 and 20, and the
parties presented oral argument. At the hearing, Appellee-Applicant proposed to incorporate the
conditions of the permit as issued by the ZBA into its application before this Court. Accordingly,
the proposals stated below differ from those made in the application to the extent that the
conditions of the ZBA permit were more limited or specific than those stated in the application.
Appellee-Applicant has applied for conditional use approval2 to conduct A extraction of wall
stone and crushed stone@ on ten acres of a 45-acre parcel of property to be purchased from
Stanley and Janice Morse. The property is located in the Rural Residential zoning district, and
lies behind and to the east of the lots fronting on the County Road. The access road from the
working site of the project is proposed to extend to the County Road over a right-of-way over the
land of Sandra Guerrette. Although an existing curb cut is located on the land of Sandra
Guerette, Appellee-Applicant proposes to establish a new curb cut somewhat southerly of the
existing one.
Appellee-Applicant proposes to extract approximately 8,000 cubic yards of rock material
annually from 10 acres, with the remaining 35 acres to be kept in forest management use.
Appellee-Applicant proposes to extract slate from three ridges of material as shown on the plan,
and to extract a smaller quantity of granite from a vein of granite located farther to the east on
the property and shown on the plan. The ten acres of extraction site in those two areas is at
present forested and will be clear cut. The topsoil will be stockpiled, protected with a silt fence
and seeded, and will be stored until used for reclamation of the site at the end of the extraction
period.
Appellants first argue that the project does not propose the extraction of soil, sand, gravel or
minerals, and therefore does not fit within the conditional use category in ' IV(2)(C)(7). From
the point of view of dividing materials into the animal, vegetable or mineral categories familiar
from childhood games of A Twenty Questions,@ slate and granite are both minerals. From the
point of view of the 1997 Calais Town Plan= s discussion of the natural resources of the Town,
listed and discussed at p. 23 as the A plant, animal, aquatic, mineral and scenic resources@ of the
Town, slate and granite are mineral resources. Slate and granite are both rocks, but they are both
classified as rocks which are not Aminerals@ from a specialized geologist= s point of view, as they
are composed of mixtures of minerals in varying proportions, rather than a specific mineral
compound or element.
There is no indication, either from the text of the Zoning Regulations or from either of the town
plans, that the Regulations intended to incorporate the specialized geological meaning of the
term > minerals= to distinguish them from > rocks.= Under standard rules of statutory construction
we apply the common meaning of an undefined term. This interpretation is also consistent with
the use of the term > minerals= or > mineral resources= in the town plans that the term signifies
mineral resources, inclusive of rocks and minerals, and distinguished from already-loose deposits
of soil, sand or gravel.
Of the 8,000 cubic yards of rock to be extracted annually, approximately half will be wall stone
to be trucked off site, and the other half will be tailings, which are proposed to be crushed on site
not more than once per year for three consecutive weeks each year, with the crushed stone
offered first to the Town of Calais for road maintenance use, or sold to other customers.
Appellee-Applicant proposes to operate the facility from May 1 through November 30, from
8:00 a.m. to 5:00 p.m. Monday through Friday, with blasting to occur only between 10:00 a.m
and noon on Monday through Friday, unless necessary to clear a misfire or other safety
emergency. Appellee-Applicant proposes to make no more than four truck trips onto the property
and four leaving the property in any day, not including the Town of Calais trucks that may come
onto the site to pick up crushed stone for road work. All trucks leaving the site are proposed to
turn left or south down the County Road towards Montpelier, except for the Town of Calais
trucks which may turn to the right for use of the crushed stone at other locations within the town.
The proposed work may be considered in several components. The first is drilling and blasting.
Blasting is used to loosen the rock from the ground and may be used to break large slabs of stone
into smaller sizes. It will be done by a contractor, and each session of blasting will be complete
before the large excavator will come onto the property. Appellee-Applicant proposes a maximum
of three weeks of blasting annually.
The second component of the proposal is to peel the slabs of rock from the rock face with the
large excavator. Appellee-Applicant proposes that the use of the large excavator will take place
for a maximum of three weeks annually3. Most probably those weeks will not be consecutive,
but will occur on one week in the spring, one week in the summer, and one week in the fall to
prepare for work the following spring. The large excavator will be leased and brought onto the
property for those periods, with an operator and maintenance and fueling services to be provided
by the leasing company. As well as being used to peel slabs of stone from the rock face, the large
excavator may be used to break large slabs of stone into sizes below 132 feet in length and 4
feet in width, which is the capacity of Appellee-Applicant= s trucks.
The next component of the proposal is to load the wall stone onto trucks for transportation off
site to customers, or to move it away from the rock face into piles on the 3-acre flat working area
of the site. Those piles could be sorted roughly by size or shape. Other piles would be made of
the tailings (rocks too small to be used as wall stone) to accumulate enough to warrant the
crusher= s being brought to the site. Appellee-Applicant would keep a small excavator (leased
each season) and a front end loader (owned by Appellee-Applicant) on the site to move the stone
to the piles or load it onto the trucks.
Once approximately 8000 cubic yards of tailings have accumulated, the next component of the
proposal is for the owner of the crusher and screening machinery to bring the machinery to the
site for no more than three consecutive weeks in a year, to crush the tailings into useable crushed
stone. Appellee-Applicant proposes, depending on demand, to have the tailings crushed into five
sizes of stone, ranging from 2 -inch to six inches in size, suitable for different uses. Those five
grades or sizes of stone would be stored in piles until trucked off the site.
The remaining component of the proposal is the truck transportation to transport the wall stone
and the crushed stone off site. Appellee-Applicant does not propose to have any customers=
trucks come onto the site, except the Town trucks. Appellee-Applicant proposes to use a large A
Freightliner@ truck, with an 18-yard body. It has a 60,000 pound maximum allowable road
weight. Appellee-Applicant also has two 30-foot-long A pup@ trailers which can be attached to the
Freightliner. The combined length of the truck and trailer combination is 62 feet, and the
maximum weight is 80,000 pounds.
Appellee-Applicant claims that all components of its proposal come within category '
IV(2)(C)(7) of the conditional uses in the Rural Residential zoning district, covering A extraction
of . . . minerals.@ In the alternative, they argue that any component of their proposal that does not
fall within that category is allowed as a conditional use either as accessory to the A extraction@
use, or is allowed as a conditional use under ' IV(2)(C)(11), as an A other use or land
development not specifically described above, but deemed consistent with the purposes of this
district by the Board of Adjustment@ (and hence this Court in the de novo appeal).
We must note that, unlike the regulations of some other towns, the Calais Zoning Regulations do
not define A accessory uses@ as a separate category of conditional or permitted use, except in
connection with the category of one- and two-family residences. Thus, an applicant may apply to
build a garage or a shed as accessory to a home. But there is no provision to consider any aspect
of Appellee-Applicant= s proposal as > accessory= to the proposed extraction activities. We also
note that, again unlike the regulations of some other towns, the > other use= category in '
IV(2)(C)(11) does not speak in terms of other uses similar to the listed conditional uses, but
rather calls for > compatibility= with the > purposes= of the zoning district in which it lies.
The term A extraction (excavation)@ is defined as A removal or recovery by any means whatsoever
of soil, rock, mineral substances or organic substances other than vegetation, from water or land
on or beneath the surface thereof or beneath the land surface, whether exposed or submerged.@
By its terms, it covers only the components of Appellee-Applicant= s proposal involved in getting
the rock out of the ground and hauling4 it off the site. Thus, the drilling and blasting, the use of
the large excavator to peel rock from the rock face and to break up pieces too large to handle, the
use of the small excavator and front end loader to move the wall stone and tailings into piles, and
the use of the trucks to haul the wall stone and the tailings off site all fall within the definition of
excavation. Accordingly, Appellee-Applicant may apply for conditional use approval for those
components of its proposal, and we will schedule the hearing on the merits of that application.
Any further work proposed to be done on either the wall stone or the tailings on the site would
not fall within the use category of > extraction.= Appellee-Applicant does not propose to do any
further work on the wall stone on site, but does propose to have a contractor come on site with
crushing and screening machinery to crush the tailings into various useable sizes of crushed
stone during a period of up to three consecutive weeks a year, to store the graded crushed stone
on site, and to transport the stone to customers and allow Town trucks to come in to collect the
graded crushed stone for use on Town roads. The piles of graded crushed stone would occupy a
substantial part of the flat working area of the site, but we cannot find from the volumetric
evidence presented that it would necessarily exceed the physical capability of the land to store
piles of crushed stone.
Appellee-Applicant seeks conditional use approval of this component of its proposal in the
alternative as an activity consistent with the purposes of the Rural Residential district under '
IV(2)(c)(11). The purpose of the Rural Residential District, as stated almost identically in '
IV(2)(A) of the Zoning Regulations and at page 19 of the 1983 Town Plan5 is to provide Afor
residential and other compatible uses at low-moderate densities appropriate for the physical
capability of the land and the preservation of agricultural, scenic and natural resource areas.@
The operation of the crushing and screening machinery, although limited to three consecutive
weeks each year, would be an industrial type of process not compatible with residential uses.
Further, the transportation of the crushed stone would take place during the period from May
through November, and also would not be compatible with the purpose of the rural residential
district, especially as there is no proposed limitation on the number of Town trucks which could
come in on any day to take loads of crushed stone for use on the town roads. Based on the
evidence presented, the operation of crushing and screening machinery on the site for up to three
weeks a year, plus the storage and transportation of the graded crushed stone, is not A consistent
with the purposes of [the Rural Residential] district@ under ' IV(2)(c)(11), and is therefore not a
use for which Appellee-Applicant may seek conditional use approval in this zoning district.
The Court announced the decision on these threshold issues to Attorneys Rice and Tarrant in a
telephone conference at 6:00 p.m. on March 20, 2001, and the parties agreed that the trial date
scheduled for March 21 should be continued and a scheduling conference should be held instead.
The Court requested that the parties come to the conference prepared to state whether they
wished any part of the decision on the threshold issues to be entered as a final appealable order
under V.R.C.P. 54(b), and whether any part of the hearing on the merits of the conditional use
approval could go forward on the March 22 and March 23 scheduled dates, in anticipation of the
Selectboard= s later consideration of the curb cut permit.
At the conference held this morning, March 21, 2001, Appellee-Applicant declined to request
entry of a final order under V.R.C.P. 54(b) on the issues pertaining to the crusher use category.
Appellee-Applicant requested that the hearing on the merits of the conditional use application go
forward on March 22 and March 23 as scheduled, subject to the Selectboard= s later action on the
curb cut permit (scheduled to be heard on Monday, March 26, 2001). Appellee-Applicant also
requested that the Court take evidence on the crusher issues as well as the extraction issues, so
that such evidence would not have to be heard at a later date if the Supreme Court were to
reverse and remand this decision on the crusher use category. Appellants opposed proceeding
with any hearing on the merits until after the Selectboard ruling on the curb cut permit, as the
application cannot be deemed complete until that action has occurred. Appellants also opposed
hearing any evidence on the crusher issues, as entirely speculative and advisory under the present
law of the case.
The Court ruled that the application could not go forward to the merits hearing until it is
complete, that is, if and only if the Selectboard issues the curb cut permit, or if the project
proposes use of the existing curb cut. Accordingly, the hearing dates for March 22 and March 23
were canceled. After consultation with the parties, the dates of April 10 (concluding at 3:45),
April 13, and April 17 have been reserved for the continuation of the merits hearings. With the
parties= agreement, the Court reserved ruling on whether the merits hearing could include
evidence related to the use of the crusher, under the present law of the case, to be decided at the
next telephone conference in the case, scheduled for noon on Tuesday, March 27, 2001. Judge
Wright will be at the Bennington District Court that day, and will call Attorney Rice= s office for
the conference.
Done at Barre, Vermont, this 21st day of March, 2001.
___________________
Merideth Wright
Environmental Judge
Footnotes
1. The ZBA held a hearing and ruled on Appellee-Applicant’s request on March 19, 2001,
ruling that the permitted amount was on an annual basis. The parties and the Court have not yet
addressed how to incorporate any additional appeal from that decision into the present case, but
will do so to avoid postponing the merits hearing.
2. Under §IV(2)(C)(7) or, in the alternative, under §IV(2)(C)(11) of the Zoning Regulations.
3. As this case proceeds to the merits of the conditional use application we expect that
Appellee-Applicant will want to clarify how the ‘maximum of three weeks’ provision would be
allocated between the blasting and the large excavator. That is, to clarify whether each
excavation period will consist of up to a week of blasting followed by up to a week of operation
of the large excavator, for a possible total of six weeks.
4. Transporting the rock off the site is part of the ‘extraction’ use because if the rock were left
on the site, the extraction would not be an economic activity or ‘use’ at all.
5. In this analysis we need not resolve the parties’ arguments about the applicability of the
1997 Town Plan, because the purposes of the district are defined in the Zoning regulations
themselves.