O'Neil Sand & Gravel Act 250 Amendment Application

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re O’Neil Sand & Gravel }
Act 250 Amendment Application } Docket No. 48-2-07 Vtec
(Appeal of O’Neil Sand & Gravel, LLC) }
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Decision and Order on Motion to Reconsider or to Alter
Appellant-Applicant O’Neil Sand & Gravel, LLC (Applicant) appealed from a
decision of the District 2 Environmental Commission denying its application to amend
an Act 250 permit for an aggregate extraction project located on Applicant’s 139-acre
property in the Town of Chester.
Appellant-Applicant is represented by Lawrence G. Slason, Esq. Cross-
Appellants Janet Colbert, Melanie McGuirk, Helen McGuirk, Alice Forlie, Hans Forlie,
Heather Chase, Bruce Chase, Jonathan Otto, Carrol Otto, Rachel Root, Valerie Kratky,
and John Kratky (Neighbors) are represented by David L. Grayck, Esq. Intervenor
Green Mountain Union High School (GMUHS) is represented by Geoffrey H. Hand,
Esq. The Town is represented by James F. Carroll, Esq. Interested Party Paul B. Dexter,
Esq., has appeared and represents himself.
Act 250 Permit #2S0214, which was issued in 1974, applied to a 232-acre parcel of
property owned by Applicant’s predecessors-in-interest; Applicant purchased 139 acres
of that larger parcel. In 2001, Applicant obtained an Act 250 permit amendment, Act
250 Permit #2S0214-6 (the 2001 Act 250 Permit), which authorized an extraction project
on an eighteen-acre portion of Applicant’s 139-acre property, adjacent to the Green
Mountain Union High School property. The application before the Court in the present
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case seeks to further amend the 2001 Act 250 Permit to allow an additional extraction
project on an fifteen-acre portion of Applicant’s property, also adjacent to the Green
Mountain Union High School property, and adjacent to the eighteen-acre site.
On September 11, 2009, the Court issued a decision and order addressing the
parties’ cross-motions for summary judgment (the Summary Judgment Decision). In re
O’Neil Sand & Gravel Act 250 Amendment Application, No. 48-2-07 (Vt. Envtl. Ct. Sept.
11, 2009) (Wright, J.). The Summary Judgment Decision interpreted several of the forty-
six conditions of the 2001 Act 250 Permit in connection with the new project proposal.
In the Summary Judgment Decision, in regard to Condition 12 of the 2001 Act 250
Permit, the Court determined that Condition 12 applied to the entire 139-acre parcel,
therefore requiring either that Condition 12 be amended to allow for the proposed
operation or that the proposed operation fully comply with that condition as initially
imposed. Id. at 6. The Court then analyzed Condition 12 under Act 250 Rule 34(e),
which governs whether a permit condition may be amended, and determined that
Condition 12 was barred from amendment. Id. at 15.
The parties’ cross-motions for summary judgment also addressed whether the
proposed project would be able to comply with Condition 12 of the 2001 Act 250 Permit.
However, the Court did not proceed to rule on the permit on summary judgment,
ruling instead that material facts were in dispute as to whether the proposed operation
would be able to operate within the requirements of Condition 12, and that material
facts were in dispute as to whether Condition 12 applies to noise produced by blasting
activities at the proposed project. Id. at 6, 15.1
On September 24, 2009, GMUHS moved for reconsideration of or to alter the
Summary Judgment Decision “on the narrow issue of whether there is a dispute of
material fact concerning the Project’s ability to comply with Condition 12.” GMUHS
1The Summary Judgment Decision also addressed several other conditions imposed in
the 2001 Act 250 permit, which are not at issue in the present motion.
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Motion, at 1.2 In its motion, GMUHS requests the Court to reconsider its conclusion
that material facts are disputed as to whether the proposed operation can satisfy
Condition 12. GMUHS requests the Court instead to enter summary judgment in its
favor, arguing that the undisputed evidence demonstrates that the proposed project
cannot satisfy Condition 12, regardless of whether the condition applies to the blasting
aspect of the proposed operation. GMUHS therefore requests the Court to deny
Appellant’s pending Act 250 amendment application, as the Court already determined
in the Summary Judgment Decision that Condition 12 is barred from amendment, and
the proposed project cannot meet the requirements of Condition 12 absent such an
amendment.
Standards Applicable to a Motion to Reconsider or to Amend a Judgment
Vermont Rule of Civil Procedure 59(e), which is substantially identical to Federal
Rule of Civil Procedure 59(e), “gives the court broad power to alter or amend a
judgment on motion within ten days after entry thereof.” Drumheller v. Drumheller,
2009 VT 23, ¶ 28 (citing V.R.C.P. 59, Reporter's Notes). Rule 59(e) is a codification of the
trial court's “inherent power to open and correct, modify, or vacate its judgments.” Id.(citing West v. West, 131 Vt. 621, 623 (1973)). Although there is no specific
authorization in the civil rules or in the rules for environmental court proceedings for a
motion to “reconsider” a decision, such motions are treated as motions to amend or
alter a decision under Rule 59(e). Appeal of Berezniak, No. 171-9-03 Vtec, slip op. at 3
(Vt. Envtl. Ct. Apr. 6, 2007) (Wright, J.); see also Sisters & Brothers Inv. Group. v. Vt.
Nat. Bank, 172 Vt. 539, 541 (2001) (stating that a motion to reconsider is “for all intents
2
At a telephone conference on October 5, 2009, at which the Town did not participate,
Attorney Grayck, on behalf of the Neighbors, and Attorney Dexter joined in the
GMUHS motion. Applicant was given the opportunity to file a response to the motion,
but declined to do so.
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and purposes, a motion to alter or amend the judgment” under Rule 59(e)).
A Rule 59(e) motion “allows the trial court to revise its initial judgment if
necessary to relieve a party against the unjust operation of the record resulting from the
mistake or inadvertence of the court and not the fault or neglect of a party.” Rubin v.
Sterling Enterprises, Inc., 164 Vt. 582, 588 (1996) (citing In re Kostenblatt, 161 Vt. 292,
302 (1994)). More specifically, the limited functions of a motion for reconsideration are
“to correct manifest errors of law or fact on which the decision was based, to allow the
moving party to present newly discovered or previously unavailable evidence, to
prevent manifest injustice, or to respond to an intervening change in the controlling
law.” In re Vanishing Brook Subdivision, No. 223-10-07 Vtec, slip op. at 4 (Vt. Envtl. Ct.
July 10, 2008) (Wright, J.) (quoting 11 Wright, Miller, & Kane, Federal Practice and
Procedure: Civil § 2810.0 (2d ed. 1995)); see also Appeal of Van Nostrand, Nos. 209-11-
04 & 101-5-05 Vtec, slip op. at 4 (Vt. Envtl. Ct. Dec. 11, 2006) (Durkin, J.).
On the other hand, Rule 59(e) should not be used to “relitigate old matters” or
“raise arguments or present evidence that could have been raised prior to entry of the
judgment.” Appeal of Van Nostrand, Nos. 209-11-04 Vtec & 101-5-05 Vtec, slip op. at 4.
Disagreement between the moving parties, or disagreement with the court’s decision, is
not grounds for reconsideration. In re Boutin PRD Amendment, No. 93-4-06 Vtec, slip
op. at 2 (Vt. Envtl. Ct. May 18, 2007) (Wright, J.). A motion to reconsider is considered
“an ‘extraordinary’ remedy that should be used ‘sparingly’,” In re Appeal of Berezniak,
No. 171-9-03 Vtec, slip op. at 3–4 (citing 11 Wright, Miller, & Kane, Federal Practice and
Procedure: Civil § 2810.1); its disposition “is committed to the court's sound discretion.”
Rubin, 164 Vt. at 588 (citing Kostenblatt, 161 Vt. at 302).
The Court has thoroughly reviewed the evidence supplied on summary
judgment, as well as the parties’ memoranda on summary judgment, and concludes
that, applying the legal conclusions of the Summary Judgment Decision to the
undisputed facts, including those facts not countered by Applicant, summary judgment
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must be entered denying the permit amendment.
Applicability of Condition 12 to GMUHS Trail Network
Condition 12 of Applicant’s 2001 Act 250 Permit states in full:
In order to protect the public investment in Green Mountain Union High
School, noise levels from all aspects of operations occurring on the site
shall be no louder than barely audible at the school buildings and areas
used for outdoor recreation and education.
2001 Act 250 Permit, at 3, ¶ 12. The District Commission’s decision issuing the 2001 Act
250 Permit (the 2001 District Commission Decision) defined the term “barely audible”
to be that “noise which is no louder than the lowest background level noise which
presently occurs when students are in classes.” 2001 District Commission Decision, at
16.
In the Summary Judgment Decision, the Court concluded that the noise
limitation in Condition 12 must be met on the GMUHS trail network, as well as at the
school building and recreation fields, because the Court determined that the trail
network is an area used for outdoor recreation and education. In re O’Neil Sand &
Gravel, No. 48-2-07, slip op. at 14. In making its determination that Condition 12
applied to the trail network, the Court relied on the plain language of Condition 12,
interpreted in the context of the District Commission’s decision granting the permit.
In interpreting Act 250 permit conditions, the Court applies “normal statutory
construction techniques.” Sec’y, Vt. Agency of Natural Res. v. Handy Family Enters.,
163 Vt. 476, 481, 483 (1995). The Court’s goal is “to implement the intent of the
draftspersons,” which it does by “rely[ing] on the plain meaning of the words because
[the Court] presume[s] they show the underlying intent.” Id. (citing Conn. v.
Middlebury Union High Sch., 162 Vt. 498, 501 (1994)); see also In re Williston Inn
Group, 2008 VT 47, ¶ 14, 183 Vt. 621 (The Court’s “overall goal is to discern the intent of
the drafters . . . by reference to the plain meaning of the regulatory language,” when
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possible. (internal citations omitted)). However, the language used by the drafter must
be considered in the context of the permit as a whole. Handy Family Enters., 163 Vt. at
483 (stating that courts “should view the word[s] in the context used in the permits”
(citing Veterans of Foreign Wars v. City of Steamboat Springs, 575 P.2d 835, 839 (Colo.
1978)). The Court must also keep in mind that “permit conditions ‘must be expressed
with sufficient clarity to give notice of the limitations on the use of the land,’” id.(quoting In re Farrell & Desautels, Inc., 135 Vt. 614, 617 (1978)), and that “any
uncertainty [regarding the condition] must be decided in favor of the property owner.”
Id. (citing In re Vitale, 151 Vt. 580, 584 (1989)).
In its decision granting the 2001 Act 250 Permit, the District Commission
imposed Condition 12 as a result of its analysis, under Act 250 Criterion 9(K) (Public
Investment), see 10 V.S.A. § 6086(a)(9)(K), of the aggregate extraction operation that was
being proposed in 2001. 2001 District Commission Decision, at 15–17. The plain
language of Condition 12 required the “barely audible” noise standard to be met not
only at the school building, but also to be met at areas on the school’s property used for
outdoor recreation and at outdoor areas on the school’s property used for education.
The District Commission did not limit the applicability of Condition 12 to areas on the
school property that were then being used for education or for outdoor recreation in
2001, nor did it limit the applicability of Condition 12 to any specific areas close to the
school building.
In analyzing the public investment by the Town in the school property, the
District Commission emphasized the importance of the entire 162-acre school property,
not only to the educational functions of the school, but also in terms of its availability
for outdoor recreation and education for the public, as well as the students. The District
Commission stated that, “[i]n this case, the Commission must ensure that noise from
the project does not materially interfere with the efficient function of the school and the
use and enjoyment of the school by the students and the public.” District Commission
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Decision, at 16. Its analysis of “the importance of the 162 acre school site for athletic
and outdoor education programs” was based upon the Chester Town Plan’s
characterization that the school’s “162 acre site makes it possible to create a variety of
athletic and outdoor education programs which add measurably to the community’s
attractiveness and desirability as a place to work and live.” Id. at 16.
The District Commission Decision also contemplated the possibility that the
Town or the school would make changes on the 162-acre school property in the future,
which could require Applicant to accommodate those changes to ensure that Condition
12 would nevertheless continue to be met in the future. For example, the District
Commission found that the “forested buffer of trees between the project and the school
is on the school property.” Id. at 10. Based on this finding, the Commission specifically
noted in imposing Condition 12
that the Applicants have not provided a buffer to the Green Mountain
Union High School property and are relying, in part, upon the existing
forested land on the high school’s property . . . for sound reduction. The
Applicants, in representing that the project will be, at worst, “barely
audible” at the high school, must also realize that even if adjoining
landowners [including the school] remove part of that buffer, the project
will still need to meet the representations made with respect to noise.
Id. at 12.
The plain language of Condition 12—in light of the District Commission’s
discussion of the public investment in the school property for outdoor recreation as well
as for education, and to serve the public as well as the high school student population—
shows that the District Commission intended Condition 12 to apply to the whole of the
school’s property, even if changes were made to that property in the future.3
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Indeed, the 2001 District Commission Decision warned Applicant that, in the future,
“[i]f, however, noise is more than ‘barely audible’ and thus has the potential to interfere
with the enjoyment of and functions of the school and its facilities, including outdoor
education and athletic programs, the project will not be in conformance with Criterion
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Relative Timing of Development of Trail Network on School Property
On summary judgment, Applicant also argued that, even if Condition 12 applies
to the outdoor recreation trails on the school property, it does not apply to the trail
closest to the proposed project site or the to the large glacial boulder near the project
site,4 asserting that that portion of the trail network was not in existence when the
District Commission approved the 2001 Act 250 Permit. As discussed above, the
existence of that portion of the outdoor recreation trails in 2001 is not material to this
appeal, even if it is a disputed fact, because the Court has already ruled that the District
Commission intended Condition 12 to apply to future recreational and educational uses
on the 162-acre school property. In any event, GMUHS and Neighbors came forward
with evidence on summary judgment supporting their position that the disputed
portion of the trail network did exist at the time of the 2001 District Commission
Decision, and Applicant did not respond with any evidence to controvert it, so that
Applicant cannot prevail on summary judgment on that issue.
When parties file cross-motions for summary judgment, as was done in the
present case, each motion is considered in turn, and each party is “entitled to the benefit
of all reasonable doubts and inferences when the opposing party's motion [is] being
judged.” Bixler v. Bullard, 172 Vt. 53, 57 (2001) (citing Toys, Inc. v. F.M. Burlington Co.,
155 Vt. 44, 48 (1990)). Moving parties that do not bear the burden of persuasion at trial
9(K) Public Investments and the permit . . . will be subject to revocation.” 2001 District
Commission Decision, at 16.
4 The large glacial boulder, located “323 feet from the blast zone of the proposed
quarry,” is also referred to as a “glacial erratic,” which is a “piece of rock that deviates
from the size and mineralogical composition of rock native to the area in which it rests.”
Caduto Aff. ¶ 33 (Sept. 24, 2008). The term “erratic” in the name “is based on the errant
location of these boulders,” which are “carried to [their] current location[s] by glacial
ice, often over hundreds of kilometers and, in this case, 14,000 years.” Id. The glacial
boulder, or glacial erratic, on the school property “is used for educational purposes for
both GMUHS students and the public.” Id.8
may satisfy their burden of production on summary judgment by supporting their
motions with credible evidence or by “showing the court that there is an absence of
evidence in the record to support the nonmoving party's case.” Madden v. Omega
Optical, Inc., 165 Vt. 306, 309 (1996) (citing Ross v. Times Mirror, Inc., 164 Vt. 13, 18
(1995)). If the moving party does so, “the burden then shifts to the nonmoving party to
persuade the court that there is a triable issue of fact.” Id. In order for the nonmoving
party to meet this burden, it must “submit[] credible documentary evidence or
affidavits sufficient to rebut the evidence of the moving party.” Endres v. Endres, 185
Vt. 63, 67 (2008) (citing V.R.C.P. 56(e)).
In the present case, GMUHS and Neighbors presented credible evidence that
portions of the trail network near the proposed extraction site existed and were in use at
the time the 2001 Act 250 Permit was issued. See Caduto Aff. ¶ 4 (Mar. 16, 2009)
(refuting the assertion that “sections of the forest trail closest to the proposed extraction
area . . . did not exist when the original project was approved [in 2001] or when RSG
conducted its noise analysis” on the GMUHS property); id. ¶ 6 (“Most of the trails have
been there far longer than [Applicant’s] 2001 gravel pit permit . . . .”); id. ¶ 8 (stating
that the “trail along the perimeter of the high school property . . . was already in place
and was in existence before OSG’s 2001 gravel pit permit . . . .”); Neighbors’ Ex. 1, Site
Map of GMUHS Forest Trails (indicating the preexisting portions of the GMUHS trail
network, including portions located near the proposed extraction site); Forlie Aff. ¶¶ 1–
3 (stating that, as a member of the GMUHS cross-country and field teams in the late
1980s and 1990, he regularly made use of the trail system described as a “fitness loop”
with “fitness stations”).
By contrast, there is an “absence of evidence in the record to support”
Applicant’s assertion that the trails and the glacial boulder either did not exist or were
not used for educational or recreational purposes at the time the 2001 Act 250 Permit
was issued. Madden, 165 Vt. at 309. Applicant did not present “any credible
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documentary evidence or affidavits sufficient to rebut the evidence of the moving
party.” Endres, 185 Vt. at 67. Although Applicant stated that “sections of the forest
trail closest to the proposed extraction site . . . did not exist when the original project
was approved or when RSG conducted its noise analysis,” Applicant’s Consolidated
Response, at 12 (Feb. 2, 2009), Applicant cited to no statement of fact, affidavit, or piece
of documentary evidence before the Court to support this assertion.
Similarly, although Applicant noted that the Town’s Forest Trail Committee and
its trail improvement project were not in existence until after Applicant submitted its
Act 250 amendment application in 2006, see, e.g., Applicant’s Consolidated Response, at
13, Applicant did not link that fact to evidence showing that the disputed section of the
trail network did not exist in 2001. See Mello v. Cohen, 168 Vt. 639, 641 (1998) (“[T]o
defend against a summary judgment motion, a [party] cannot rely on conclusory
allegations or mere conjecture.”); Progressive Ins. Co. v. Wasoka, 2005 VT 76, ¶ 25, 178
Vt. 337 (“[M]ere allegations of counsel unsupported by documentary evidence are not
enough to create a genuine issue of material fact.” (citing Foster & Gridley v. Winner,
169 Vt. 621, 624 (1999) (mem.))). Accordingly, Applicant did not meet its burden of
refuting the evidence submitted by GMUHS and Neighbors that the trail and glacial
boulder existed in educational and/or outdoor recreational use as of the issuance of the
2001 Act 250 Permit.
Proposed Operation’s Compliance with Condition 12
In the Summary Judgment Decision, after determining that the trail system and
other outdoor areas on the school property were protected by Condition 12, and that
Condition 12 could not be amended, the Court determined that material facts remained
in dispute regarding the Project’s ability to comply with that standard. In re O’Neil
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Sand & Gravel, No. 48-2-07, slip op. at 6, 15. 5
The Court’s conclusion that facts remained in dispute was based largely on the
uncertainty embodied in the word “likely” in Applicant’s several statements that
Applicant “acknowledges that it is likely that the operational noise will exceed existing
background level noise at sections of the forest trail closest to the GMUHS boundary
and proposed project.” Applicant’s Consolidated Response, at 3 (emphasis added); see
also Applicant’s Response to GMUHS’s Statement of Additional Undisputed Facts, at
15 (Feb. 2, 2009) (stating that Applicant “[a]dmit[s] it is likely that operational noise will
exceed background noise level at the sections of the trail near the large boulder closest
to the GMUHS boundary and proposed project”). Without an admission that the
proposed operation would actually violate the standard imposed by Condition 12 at the
sections of the forest trail closest to the GMUHS boundary and to the proposed project,
the Court concluded that material facts were in dispute and that a trial would be
necessary.
In its present motion to reconsider, GMUHS points out that, aside from the
phrasing of Applicant’s admissions, GMUHS’ and Neighbors’ motions for summary
judgment had come forward with evidence that the operational noise produced by the
proposed project will not meet the Condition 12 standard at the glacial boulder or at the
trail near the boulder. See, e.g., Tocci Aff. ¶ 15, 17 (Sept. 24, 2008) (“[I]t is our opinion
that quarry equipment and activity would be audible along 80% of the trail system
length,” in particular at the “glacial erratic” location on the trail that is closest to the
proposed operation.); id. ¶ 17 (stating that Condition 12 would be met at the GMUHS
building under most conditions, but that “sound levels at the glacial erratic and parts of
5
Applicant had originally stated on summary judgment that it was “prepared to
operate its project within [the] noise limitations” in Condition 12. Applicant’s Motion
for Partial Summary Judgment, at 8 (June 23, 2008). However, this statement rested on
the mistaken premise that the noise limitation of Condition 12 did not apply to the trail
network.
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the GMUHS trail system will significantly exceed the existing measured background
sound levels”). GMUHS further points out that Applicant did not submit any of its
own credible evidence to refute GMUHS’ and Neighbors’ evidence. The evidence
presented by GMUHS and Neighbors, as well as the absence of credible evidence
presented by Applicant, was enough to shift the burden to Applicant to show that there
were material disputed facts as to whether the operational noise of the project will
violate Condition 12 on the trail network. See Madden, 165 Vt. at 309 (stating that if the
moving party meets its burden of production on summary judgment, “the burden then
shifts to the nonmoving party to persuade the court that there is a triable issue of fact”).
Applicant did not do so.
Applicant conceded “that [its] noise consultant did not take background level
measurements on the forest trail,” Applicant’s Response to Neighbors’ Statement of
Undisputed Material Facts, at 37 (Feb. 2, 2009), and “did not analyze project operational
noise on the school’s trail network.” Applicant’s Response to GMUHS’s Statement of
Additional Undisputed Facts, at 16. Therefore, Applicant’s noise study does not serve
as a basis to refute GMUHS’ and Neighbors’ evidence that the operational noise from
the proposed operation will violate Condition 12 on the trail network. Although
Applicant did answer “disputed” to some of GMUHS’ and Neighbors’ statements of
fact regarding the level of noise on the trail network, see, e.g., Applicant’s Response to
GMUHS’s Statement of Additional Undisputed Facts, at 17–18 (responding “disputed”
to paragraphs 53 and 56, among others), Applicant did not refer to any supporting
affidavits or documentary evidence to support its “mere . . . denials.” White v. Quechee
Lakes Landowners’ Ass’n, 170 Vt. 25, 28 (1999).
Accordingly, because Applicant failed to meet its burden of presenting
supporting affidavits or documentary evidence to refute GMUHS’ and Neighbors’
evidence that the proposed operation would violate Condition 12 on the trail network,
there is no triable issue of fact as to whether the operation of the proposed project is
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capable of complying with Condition 12 at the trail network, including at the glacial
boulder. Therefore, summary judgment must be issued in favor of GMUHS and
Neighbors on this issue.
Blasting
Although disputed facts may remain as to whether Condition 12 was intended to
apply to blasting noise at all, or whether or when it was intended to apply to blasting
noise, this issue appears to be moot, due to the Court’s conclusion that the project as
proposed cannot meet Condition 12 during operation.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that GMUHS’s motion for reconsideration or to amend the Summary Judgment
Decision is GRANTED, as follows. In addition to the issues concluded in that decision,
summary judgment is also hereby entered that the proposed project’s operational noise,
exclusive of any noise issues related to blasting, cannot meet the noise standard
imposed by Condition 12 of the 2001 Act 250 Permit, and that therefore the application
must be denied, concluding this appeal. GMUHS shall prepare a proposed judgment
order and circulate it prior to the scheduled telephone conference.
A telephone conference has been scheduled (see enclosed notice) to discuss how
or whether the parties wish to proceed on the related municipal appeal, Docket No. 226-
9-06 Vtec, which the parties had agreed should await the decision in this Act 250 appeal.
Done at Berlin, Vermont, this 23rd day of February, 2010.
_________________________________________________
Merideth Wright
Environmental Judge
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