N.E. Materials Grp, LLC Act 250 JO

STATE OF VERMONT
SUPERIOR COURT — ENVIRONMENTAL DIVISION
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In re North East Materials Group, LLC } Docket No. 143-10-12 Vtec
(Appeal of Neighbors for Healthy Communities) }
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Decision on Motion for Summary Judgment and Motions to Strike and Preclude
Neighbors for Healthy Communities (Neighbors), 26 citizens, appeal a jurisdictional
opinion (JO) of the District 5 Environmental Commission Coordinator (District Coordinator),
finding that the rock crushing operations of North East Materials Group, LLC (NEMG) at the
Rock of Ages quarry in the Towns of Barre and Williamstown, Vermont, do not constitute a
substantial change to a development in existence prior to Act 250 and therefore do not require
an Act 250 permit. Neighbors present eleven questions for this Court’s review. We now
consider Neighbors’ motion for summary judgment and motion to strike and preclude.1 We
also address a motion to strike filed by Appellees NEMG and Rock of Ages Corporation.2
Factual Background
To put the pending motions into context, the Court recites the following facts, which it
understands to be undisputed unless otherwise noted:
1. The Rock of Ages quarry property comprises approximately 1,200 acres and
approximately five quarrying sites in the Towns of Barre and Williamstown, VT.
1 The procedural history of the pending motions is comprised of the following:
• December 17, 2008: District Coordinator Ed Stanak issued a JO finding that the addition of a
crusher at the Rock of Ages property did not constitute a substantial change.
• November 2, 2010: District Coordinator Ed Stanak issued a JO finding that the addition of a
crusher adjacent to Smith Quarry at the Rock of Ages property did not constitute a substantial
change.
• May 3, 2012: Neighbors requested a JO on whether the addition of this crusher constituted a
substantial change.
• May 16, 2012: District Coordinator Boolie Sluka issued a JO declining to overturn District
Coordinator Stanak’s November 2, 2010 JO.
• Neighbors requested reconsideration of District Coordinator Sluka’s decision.
• September 28, 2012: District Coordinator Warren Foster issued a JO declining to overturn District
Coordinator Sluka’s May 16, 2012 decision, again finding that Appellees’ rock crushing
operations do not constitute a substantial change and therefore do not require an Act 250 permit.
• Neighbors’ appeal of District Coordinator Foster’s September 28, 2012 decision is now before us.
2Although this appeal is captioned “In re North East Materials Group, LLC,” the Rock of Ages
Corporation, the owner and operator of the Rock of Ages quarry, is also an appellee. NEMG and Rock of
Ages Corporation are referred to collectively as “Appellees,” unless otherwise noted.
2. Graniteville Road runs through the Rock of Ages property.
3. Three quarrying sites, including the Smith quarry, are generally north of Graniteville
Road. Two quarrying sites, including the Adam quarry, are generally south of Graniteville
Road.
4. The Rock of Ages quarry has been in operation for around 100 years.
5. The rock crusher at issue, operated by NEMG between the Smith and Adam quarries,
began operating in 2009 after the District 5 Environmental Commission Coordinator
determined, in a December 17, 2008 JO, No. 5-01, that a proposed crushing operation at the
Rock of Ages property did not constitute a substantial change and did not require an Act 250
permit.
6. The District Coordinator issued additional jurisdictional opinions in 2010 and 2012
finding that rock crushing operations adjacent to the Smith Quarry at Rock of Ages did not
constitute a substantial change to a pre-existing development and that the associated rock
crusher therefore did not require an Act 250 permit.
7. On April 11, 2012, NEMG filed an application with the District 5 Environmental
Commission (Commission) to operate a 180 ton/hour hot mix asphalt plant at the Rock of Ages
property. After determining that the application was complete, the District Coordinator noticed
the asphalt plant application for hearing on April 26, 2012. On January 24, 2013, the
Commission approved the application and issued the permit, later modified by a decision on
motions to alter dated February 26, 2013. In re: North East Materials Group, LLC, No. 5W0966-
6 (altered), Land Use Permit (Dist. 5 Envtl. Comm’n Feb. 26, 2013).
8. Neighbors appealed the issuance of that land use permit to this Court. The Court has
coordinated the asphalt plant and JO appeals; however, the asphalt plant appeal (Docket No.
35-3-13 Vtec) is scheduled to be ready for trial at a later date, July 1, 2014.
9. This decision only considers Neighbors’ appeal of the September 28, 2012 JO finding that
NEMG’s rock crushing operation is not subject to Act 250 review. This appeal is scheduled for a
site visit and trial December 3 and 4, 2013.
Discussion
Act 250, 10 V.S.A. §§ 6001 through 6093, was enacted over forty years ago “to protect
Vermont’s lands and environment by requiring statewide review of ‘large-scale changes in land
utilization.’” In re Audet, 2004 VT 30, ¶13, 176 Vt. 617 (mem.) (quoting Comm. to Save Bishop’s
House, Inc. v. Med. Ctr. Hosp. of Vt., Inc., 137 Vt. 142, 151 (1979)). A party proposing land
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“development,” must obtain an Act 250 permit. 10 V.S.A. § 6081(a). “Development” is defined
as one or more of 10 listed activities, including the construction of improvements for
commercial or industrial purposes on a tract or tracts of land involving more than 10 acres in a
municipality that has adopted permanent zoning and subdivision regulations or 1 acre in a
municipality that has not. 10 V.S.A. § 6001(3)(A)(i) and (ii). Act 250 Rule (2)(C)(3) defines
“construction of improvements” as “any physical action on a project site which initiates
development,” subject to certain enumerated exceptions. 16-5 Vt. Code R. § 200:2(C)(3) (2009).3
Any development that was commenced before June 1, 1970 is a “pre-existing
development” and is exempt from the permit requirement. Id. at § 200:2(C)(8) (2009); 10 V.S.A.
§ 6081(b). A permit is required, however, for any “substantial change” to a pre-existing
development, defined as “any change in a pre-existing development or subdivision which may
result in a significant adverse impact with respect to any of [Act 250’s 10 criteria].” 10 V.S.A. §
6081(b); 16-5 Vt. Code R. § 200:2(C)(7) (2009). The initial burden is on the party seeking an
exemption to show a pre-existing development. Re: Hale Mountain Fish and Game Club, Inc.,
No. 435, Findings of Fact, Conclusions of Law, and Order, at 14 (Vt. Envtl. Bd. Aug. 4, 2005).
Once the party seeking exemption makes this showing, the burden shifts to the opposing party
to establish that a substantial change has occurred. Id.; In re Vermont RSA Ltd. P’ship., 2007 VT
23, ¶ 10, 181 Vt. 589. The party seeking an exemption, however, retains the burden of
producing sufficient information on the pre-1970 operation for us to determine whether a
substantial change exists. Re: Hale Mountain Fish and Game Club, Inc., No. 435 at 14; Re: F.W.
Whitcomb Construction Co., No. 408, Findings of Fact, Conclusions of Law, and Order, at 8–9
(Vt. Envtl. Bd. Dec. 19, 2002). Thus, as the parties seeking exemption, NEMG and Rock of Ages
carry the burden of first showing a pre-existing development.
I. Neighbors’ Motion for Summary Judgment
In a May 9, 2013 decision, we dismissed Neighbors’ Questions 5, 10, and 11, leaving
Questions 1–4 and 6–9 for a merits hearing which was subsequently scheduled for December 3
and 4, 2013. In re North East Materials Group, LLC, No. 143-10-12 Vtec, slip op. at 6 (Vt. Super.
Ct. Envtl. Div. May 9, 2013) (Walsh, J.). In October 2013, Neighbors moved for summary
judgment, asking this Court to find as a matter of law that Appellees must obtain an Act 250
permit for the rock crushing at issue. Neighbors argue that Appellees cannot meet their burden
of demonstrating that NEMG’s operation is exempted, because “intervening public highways”
3The Legislature amended Rule 2(C)(3) in 2013. 16-5 Vt. Code R. § 200:2(C)(3) (2013). Because the JO was
requested in 2012, the 2009 language applies here.
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separate the NEMG rock crushing site at issue in this appeal from “alleged past [crushing]
sites” as a matter of law. Neighbors also argue that NEMG’s rock crushing is a “substantial
change” from any alleged past crushing as a matter of law. For these reasons, Neighbors argue
that any exemption that may have applied to other portions of the quarry operation cannot
apply to NEMG’s rock crushing.
We will grant summary judgment to a moving party if that party shows that “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” V.R.C.P. 56(a); V.R.E.C.P. 5(a)(2). The Court is directed to “accept as true the allegations
made in opposition to the motion for summary judgment, so long as they are supported by
affidavits or other evidentiary material,” and to give the non-moving party the benefit of all
reasonable doubts and inferences. Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356(citations omitted). When the non-moving party bears the burden of proof at trial, that party
must “persuade the court that there is a triable issue of fact” once the moving party shows that
there is an “absence of evidence in the record to support the nonmoving party's case.” Boulton
v. CLD Consulting Eng’rs, 2003 VT 72, ¶ 5, 175 Vt. 413 (quoting Ross v. Times Mirror, Inc., 164
Vt. 13, 18 (1995)).
Granting summary judgment in the Neighbors’ favor requires the Court to make several
important factual determinations based upon the evidence so far presented viewed in the light
most favorable to the Appellees. In particular, the Court first must find that the parties do not
dispute material facts regarding the parameters of the alleged “pre-existing development.” We
must also find upon undisputed facts that NEMG’s rock crushing operation is either beyond the
parameters of any pre-existing development, or that the operation constitutes a “substantial
change.” As described in more detail below, the Court finds material facts in dispute regarding
these determinations and therefore summary judgment is inappropriate at this stage.
In support of their motion, Neighbors filed a statement of undisputed material facts,
affidavits of their counsel, Christopher D. Ahlers, Esq., and of several neighbors, and other
evidence. In doing so, the Neighbors allege that the location of NEMG’s rock crushing between
the Adam and Smith quarries is “distinct and separate” from the locations of any earlier
crushing activities due to distance and intervening roads. (Neighbors’ Mem. of Law in Support
of Mot. for Summ. J. at 4, filed Oct. 4, 2013). They also allege that the rock crushing at issue is
separate and distinct from other quarrying activities. (Neighbors’ Reply in Support of Mot. for
Summ. J. at 8, filed Nov. 8, 2013). Neighbors argue that the Court must therefore find NEMG’s
operation outside any pre-existing development. Id. at 8–10. Neighbors also allege that
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NEMG’s rock crushing creates various impacts, including noise, particulate matter in the form
of stone dust, and truck traffic and congestion. (Neighbors’ Statement of Undisp. Mat. Facts at
3, filed Oct. 4, 2013); (Ahlers Aff. at ¶ 2–3, filed Oct. 4, 2013); (Marc Bernier Aff. at ¶¶ 4–17, filed
Oct. 4, 2013); (Lori Bernier Aff. at ¶¶ 3–8, filed Oct. 4, 2013); (Austin Aff. at ¶¶ 4–12, filed Oct. 4,
2013). Neighbors allege that the addition of a rock crusher at the Rock of Ages site and these
identified impacts constitute a “substantial change” which is not exempted.
In response, Appellees filed a statement of disputed material facts, affidavits of past and
present employees at the Rock of Ages property, and other evidence. In particular, Appellees
point to evidence of pre-1970 quarry-related operations at the Rock of Ages property, including
evidence of rock crushing operations. (Appellees’ Statement of Facts in Disp. at 1-7, filed Oct.
28, 2013); see, e.g., (Appellees’ Exhibit 1, filed Oct. 28, 2013); (Appellees’ Exhibit 2, filed Oct. 28,
2013); (Appellees’ Exhibit 3, filed Oct. 28, 2013) (referencing a crusher at Boutwell quarry);
(Murray Aff. at ¶¶ 6 and 18, filed Oct. 28, 2013) (noting Boutwell Quarry is part of the Rock of
Ages property). Appellees also presented evidence that rock crushing is an “intermittent
activity in a quarry” which serves one or more purposes in a quarry operation. (Appellees’
Statement of Facts in Disp. at 5, filed Oct. 28, 2013); (Murray Aff. at ¶¶ 7-9, filed Oct. 28, 2013).
In addition, Appellees submitted evidence that NEMG’s “moveable/portable” rock crushing
equipment is located near two Rock of Ages working quarries. (Appellees’ Statement of Facts
in Disp. at 6, filed Oct. 28, 2013); (Murray Aff. at ¶¶ 11 and 17, filed Oc. 28, 2013); (Hart Aff. at ¶
7, filed Oct. 31, 2013). Finally, Appellees provided evidence that operations at the Rock of Ages
site created truck traffic prior to 1970. (Appellees’ Statement of Facts in Disp. at 3-4, filed Oct.
28, 2013).
Considering all evidence and allegations, and giving Appellees the benefit of all
reasonable doubts and inferences, we conclude that Appellees have demonstrated a dispute of
material facts regarding the scope of any alleged pre-existing development, the scope of
NEMG’s rock crushing operation, and whether the operation constitutes a substantial change.
Because we are persuaded that there are triable issues of fact, we cannot grant summary
judgment. We look forward to a full presentation of admissible evidence at trial to assist us in
determining the location and nature of particular activities both pre-1970 and post-1970 and the
possible impacts on Act 250’s 10 criteria. We also look forward to the site visit at the Rock of
Ages property to provide context for the evidence provided at trial.
For these reasons, Neighbors’ motion for summary judgment is DENIED.
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II. Appellees’ Motion to Strike
Appellees ask the Court to strike parts of the Affidavits of Marc Bernier, Lori Bernier,
and Christopher D. Ahlers, Esq., and certain exhibits attached to Neighbors’ motion for
summary judgment. Because the Court denies Neighbors’ motion for summary judgment,
Appellees’ motion to strike is DENIED AS MOOT.
III. Neighbors’ Motion to Strike and Preclude
Neighbors ask the Court to strike and preclude affidavits and testimony from four
additional witnesses and other evidence provided by Appellees in their October 28, 2013
response to Neighbors’ motion for summary judgment and in their October 29, 2013
supplemental disclosure. Neighbors argue that the timing of disclosure related to these
witnesses and documents violates this Court’s Scheduling Order, V.R.C.P. 26(e) regarding
supplementing disclosures and responses, and V.R.C.P. 1 regarding fairness and efficiency. We
disagree.
In a Scheduling Order and subsequent Entry Order on a motion for enlargement of time,
the Court set a timeline for discovery and trial preparation, requiring the parties to disclose “all
information, documents, or materials required to be disclosed under F.R.C.P. 26(a)(1)(A)(i)” by
July 12, 2013. In re North East Materials Group, LLC, Nos. 143-10-12 Vtec and 35-3-13 Vtec, slip
op. at 1 (Vt. Super. Ct. Envtl. Div. July 2, 2013) (Walsh, J.). We also ordered that all depositions
conclude by September 20, 2013 and that this matter be trial ready on or before October 31,
2013. In re North East Materials Group, LLC, No. 143-10-12 Vtec, slip op. at 1 (Vt. Super. Ct.
Envtl. Div. Aug. 12, 2013) (Walsh, J.). Finally, the Court ordered that 20 days before trial, each
party “must serve and file with the Court the name of each witness intended to be called at trial
(other than impeachment only witnesses) and a list identifying each document or other exhibit
to be offered at trial.” In re North East Materials Group, LLC, Nos. 143-10-12 Vtec and 35-3-13
Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. July 2, 2013) (Walsh, J.).
As a preliminary matter, we note that the “trial ready date” guides the parties and the
Court in scheduling a matter for a merits hearing by setting a specific calendar date after which
the hearing may take place. It is not a deadline for discovery or disclosure of information.
Rather, the deadline set in this matter for serving and filing a list of trial witnesses and exhibits
is dependent on the actual trial date. Here, the parties were required to serve and file this list 20
days before the December 3 and 4, 2013 trial. In re North East Materials Group, LLC, Nos. 143-
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10-12 Vtec and 35-3-13 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. July 2, 2013) (Walsh, J.)
Appellees and Neighbors complied with this requirement.
V.R.C.P. 26(e) requires that a party who has made an initial disclosure or responded to
requests for information must supplement or correct that disclosure or response “in a timely
manner if the party learns that in some material respect the disclosure or response is incomplete
or incorrect . . . .” Rule 26 expressly contemplates parties learning new or more complete
information during the discovery process, and it requires timely disclosure of the information.
In addition, as Neighbors have recognized, circumstances may arise that require flexibility in
completing discovery, such as travel, scheduling challenges, or illness. (Neighbors’ Motion to
Strike and Preclude at 2, filed Nov. 8, 2013). Absent a showing of bad faith or material
misrepresentation in the discovery process, we will neither strike the affidavits and supporting
materials in a party’s response to a summary judgment motion nor preclude them from calling
witnesses at trial solely because they were identified in supplemental disclosures.
Appellees first identified Duncan McKay in their responses to interrogatories on August
28, 2013. Appellees note that they first learned of one of Neighbors’ legal theories from
Neighbors’ October 4, 2013 summary judgment motion. (Appellees’ Mem. in Opp. to Mot. to
Preclude at 3, filed Nov. 20, 2013). In response, on October 29, 2013 Appellees provided
Neighbors five additional documents and the contact information of Duncan McKay, Irvin
Stephenson, Robert Zambon, and Roland Hayford. Id. at 3; (Mem in Support of Neighbors’
Mot. to Strike and Preclude at 2, filed Nov. 8, 2013). Appellees’ opposition to summary
judgment included the affidavits of Mr. McKay, Mr. Stephenson, and Mr. Zambon. Mr.
Hayford was apparently identified for disclosure purposes only, and Appellees communicated
that they did not intend to call him as a witness. (Appellees’ Mem. in Opp. to Mot. to Preclude,
Exhibit 1, filed Nov. 20, 2013).
On the information before us, we conclude that Appellees timely disclosed their
additional witnesses upon learning that their previous disclosures or responses to
interrogatories may have been incomplete. Appellees offer that they did not disclose these four
individuals earlier because Appellees did not anticipate the specifics of Neighbors’ legal
arguments and therefore did not know the individuals’ knowledge may be relevant. Neighbors
have not presented anything to contradict this argument or show bad faith in Appellees’
discovery process. We find that Neighbors had sufficient time in the three months before trial
to depose Mr. McKay. We also find that the month before trial gave Neighbors sufficient time
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to depose the additional witnesses if they so desired. In sum, Neighbors fail to show any
evidence of bad faith, material representation, or prejudice regarding the disclosures at issue.
For these reasons, we conclude that the disclosures at issue did not violate the Court’s
Scheduling Order or Entry Order on enlargement of time, V.R.C.P. 26(e), or V.R.C.P. 1.
Neighbors’ motion to strike and preclude is therefore DENIED.
Done at , Vermont this 22nd day of November, 2013.
Thomas G. Walsh, Environmental Judge
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