Appeal of LiCausi

STATE OF VERMONT
ENVIRONMENTAL COURT
}
In re: Appeal of LiCausi } Docket No. 203-11-98 Vtec
(Crushed Rock, Inc. Conditional Use Permit Appeal) } (on remand)
}
Decision and Order
Appellant1 Gale LiCausi, originally appealed from a 1998 decision of the Zoning
Board of Adjustment (ZBA) of the Town of Clarendon, granting a conditional use permit
to Appellee-Applicants John A. Russell Corporation and Crushed Rock, Inc. for the
construction and operation of an asphalt hot-mix batch plant in addition to the rock
crushing equipment at Appellee-Applicant’s existing stone and gravel quarry with access
from Vermont Route 133 in Clarendon, Vermont. This Court’s decision on the appeal was
upheld in part by the Vermont Supreme Court, and remanded in part for further findings
or to take further evidence as to the conditional use criterion dealing with the effect of the
proposal on the character of the area. The task of this Court on remand, as described in an
interim scheduling order, was to take any additional evidence (not already presented in the
original hearings), as may be necessary to make supplementary findings regarding the
cumulative effect of any noise or any other adverse environmental consequences of the
proposed asphalt plant, when added to the existing noise or other adverse environmental
consequences from the existing quarrying, gravel extraction, and rock crushing operations
at the site. Appellant represented herself; Appellee-Applicant is represented by Edward
1
Four other appellants withdrew or were dismissed from the appeal before the
original hearing on the merits: Edward Norton, Eleanor Norton, John Cook and Patricia
Cook. During the remand proceedings, Frank LiCausi was added and later withdrew; John
Furneaux withdrew; Edward B. McCormack was dismissed; and Andrea McCormack, Eric
Jensen and Lisa Chapman were allowed to remain on the service list as informational
parties only.
1
V. Schweibert, Esq. and David L. Cleary. The Town of Clarendon did not enter an
appearance in this appeal, either in the original proceedings or on remand.
A supplementary evidentiary hearing was held in this matter before Merideth
Wright, Environmental Judge, together with the hearing on the merits of the air permit
appeal, Docket No. 91-6-04 Vtec. The parties were given the opportunity to submit written
requests for findings and memoranda of law. Upon consideration of the evidence, the site
visit taken in connection with the original appeal, and the written memoranda and
proposed findings, the Court makes the following supplementary findings, incorporates
the findings made in the 2001 decision in this matter, and in the November 1, 2005 decision
in Docket No. 91-6-04, and concludes as follows. Findings from the earlier decision and the
air permit decision are reiterated in this decision only as necessary to understand the
context of this supplementary decision on the cumulative effects on the character of the
area.
The quarry owned and operated by Appellee-Applicant has access from Route 133
in the “Residential and Commercial” (also referred to as the “Residential/Commercial”)
zoning district of the Town of Clarendon. It received conditional use approval in 1983 for
the operation of a “gravel pit and stone quarry,” and received an amended approval in
1986 to allow operation of stone crushing equipment at the gravel pit and quarry.
Section 4407(2) of Title 24 of the Vermont Statutes Annotated, as it existed as of the
time of the application,2 was incorporated by reference into §§245 and 423 of the Clarendon
2
The 2004 amendments to Chapter 117 recodified the minimum required
conditional use standards in §4414(3)(A), and further defined the ‘character of the area
affected’ as “defined by the purpose or purposes of the zoning district within which the
project is located, and [the] specifically stated policies and standards of the municipal
plan.” The statutory amendment is not to be applied retrospectively to a pending
application. Therefore the character of the area remains assessed as including the working
landscape as the area currently exists, with all approved uses. In connection with this
2
Zoning Regulations, and applies to the application on remand. It required that the
proposed conditional use shall not adversely affect the five listed criteria, of which the
“character of the area affected” is the only one at issue in the remanded proceedings.
Cumulative Effects on the Character of the Area Affected
Although provided for in the statute, 24 V.S.A. §4414(5) (2004), the Clarendon
Zoning Regulations do not contain any performance standards for noise, odor, glare or
other such standards. Therefore these issues only arise in the conditional use analysis as
they may affect the character of the area.
We also note that evidence was presented that asphalt plants are located elsewhere
in the state as near to residential areas as is proposed in the present case. This evidence is
not material to whether this particular proposed asphalt plant meets the requirements of
the Clarendon Zoning Regulations.
Noise3
Appellee-Applicant proposed to operate the asphalt hot-mix plant from 6:30 or 7
a.m. to 5:00 or 5:30 p.m. on weekdays, and from 9 a.m. to noon on Saturdays from May 1
through November 14. The noise produced by the asphalt plant operation is proposed to
analysis, we note that the existing quarry and rock crushing operations hold conditional
use approval and are not non-conforming uses in the district under the present zoning
regulations.
3
The correct term for measurement purposes is the sound produced by a source,
as ‘noise’ is simply the term for unwanted sound. However, as it is noise that is referred
to in regulatory documents, for consistency of discussion, we will use the term noise
throughout.
4
The Act 250 permit allows operation to November 30, but the conditional use
materials, like the air permit materials, refer to the original application with a November
1 cutoff date.
3
be controlled by the use of well-designed quieter equipment; by placing earthen berms and
vegetation between the source and the road and residences; and, regarding the truck
backup beepers, by a circular drive pattern to reduce the occurrences of backing up, and
by the use of backup beepers operated by sensors to operate only when an object is in their
path, on all equipment for which they are allowed under federal law.
Noise attenuates as the distance from the source increases. The rock crushing
equipment in the quarry produces noise at a level of 80 dBA at a distance of 50 feet. The
asphalt hot-mix plant produces noise at a level of 60 to 65 dBA at a distance of 50 feet. Due
largely to the traffic on Route 133, the ambient noise level without the operation of the
equipment is approximately 40 dBA during the work day. The noise produced by the
proposed asphalt hot-mix plant, either alone or in conjunction with the crusher equipment,
will not exceed 70 dBA at any point on the property boundary, as required by the Act 250
permit, and will not exceed 50 dBA at any residence. The latter level meets US EPA
standards and World Health Organization noise standards for effects on residences,
although neither of those standards is applicable to or required to be met for this proposal.
The decibel level measurement of noise is on a logarithmic scale. A 10 dBA increase
is perceived as a doubling of the noise level. A 3 or 4 dBA increase is barely noticeable; the
Vermont Agency of Transportation, in analyzing roadway noise, considers an increase of
less than nine dBA to be one of ‘no impact.’ For each doubling of the distance from the
source, the noise level decreases by approximately 6 dBA. If two sources of a roughly
equal decibel level are operating at the same time, the decibel level will rise by
approximately 3 dBA. If two sources of different decibel levels are operating at the same
time, the decibel level will not increase above that of the louder source.
Thus, because the crusher equipment is louder, the combined operation of the
crusher equipment and the asphalt hot-mix plant (and the ambient noise level) will
produce the same or nearly the same decibel level of noise as the crusher operating alone
(with the ambient noise level), up to a three or four decibel level increase, depending on the
4
location of the measurement.
Appellee-Applicant ran extensive computer modeling of the noise predicted to be
produced at each of 190 structures, including all the residences, in an extensive area around
the site, based on the operation of the crusher, the on-site trucks, the asphalt plant, and the
ambient noise on Route 133. The additional noise produced with the addition of the
asphalt plant to the other noise sources ranges from zero to four dBA, which is a barely
perceptible effect, if any at all. Thus, during the time the crushing equipment is authorized
to operate, the proposed asphalt plant will have no material substantial cumulative adverse
effect on the character of the area due to noise.
However, during the time periods during which the crushing equipment is not
authorized to operate, the additional noise produced by the asphalt plant will constitute
a material and substantial cumulative adverse effect on the character of the area, which
otherwise would be entirely free of that type and level of noise before 8:00 a.m and after
3:00 p.m. on weekdays, and all weekend long, as the ambient noise level of Route 133 is
approximately 20 to 25 dBA less than that produced by the operation of the asphalt plant.
Accordingly, unlike the air permit, based on the evidence presented on remand, this
conditional use standard requires the asphalt plant to be limited to the same hours5 of
operation as the crushing equipment.
Odor
As more fully described in the air permit decision, the asphalt hot-mix plant is
5
The Court understands that the hot-mix asphalt business requires the mix to be
supplied in a heated condition when loaded into trucks and transported to the job site.
However, no evidence was provided to distinguish between the noise-generating features
of the components of the plant, other than that the ‘dryers’ produce the most noise. If
Appellee-Applicant wishes to apply for extended hours for some subset of the asphalt
plant operation, or for some kind of heated storage of the material, that would have to be
a new application for amendment of the present approval.
5
proposed to be operated with odor prevention techniques to allow it to meet the odor
standards of no objectionable odors at the property boundary. The design of the plant
minimizes fugitive emissions of odiferous chemicals. The plant will not use cutback or
emulsified asphalt (mixed with volatile odiferous chemicals). The truck beds will use a
citrus-based release agent rather than one composed of volatile petroleum compounds.
The trucks will be covered, and are restricted from traveling too closely together (in
convoys) as they leave the plant, which will minimize the concentration of odor on the
roadways. If operated in accordance with the air permit it will meet all emission standards.
Accordingly, the proposed asphalt plant will have no material substantial cumulative
adverse effect on the character of the area due to odor or air emissions.
Water and wildlife
The water used by the crushing and any washing operations is designed to flow to
a sedimentation pond so that no sediment will reach the nearby river. That is unchanged
by the addition of the asphalt plant. No additional impervious area or runoff is calculated
to be produced by the paving of the on site roadways to reduce dust, as the unpaved but
compacted areas used for roadways and parking and equipment operation are already
treated as impervious areas for those calculations.
The wildlife in the area are acclimatized to the noise of the crushing plant and the
noise and motion trucks and other equipment used in the quarry operations. Accordingly,
the addition of the proposed asphalt plant will have no material substantial cumulative
adverse effect on the area’s water resources or wildlife, and therefore on the character of
the area for these reasons.
Safety of additional fuel on site
The proposed asphalt plant will require more petroleum storage tanks to be located
on the site than for the crushing operation. The tanks are located in containment areas with
6
berms, large enough to contain any spill or complete rupture of the tank. Petroleum
storage tanks are heavily regulated under state law and the proposed asphalt plant must
meet those requirements and have a spill prevention plan and various emergency
management plans in place. Accordingly, the proposed asphalt plant will have no material
substantial cumulative adverse effect on the character of the area due to the additional
petroleum products to be stored on site.
Traffic
We note that the scope of the remand did not reopen the traffic criterion; we address
traffic only to determine whether the traffic generated by the asphalt plant would have any
cumulative adverse effect on the character of the area.
Because Appellee-Applicant is already limited to a maximum of 85 truck trips from
the site, there will be no cumulative changes to the already-permitted traffic from the site
resulting from the operation of the proposed asphalt hot-mix plant. The allowed number
of trucks will either contain crushed rock or asphalt hot-mix product. Route 133 is
operating at a volume-to-capacity ratio of 13%; the traffic from the facility (regardless of
what the trucks are carrying) only raises that to 14%. The level of service at the intersection
will remain at level-of-service B with the trucks, and is also unaffected by what the trucks
are carrying.
Accordingly, as no changes are proposed to the amount or timing of allowed traffic
leaving the facility, or changes to the hours or seasons of operation of the facility, the
proposed asphalt hot mix plant will have no material substantial cumulative adverse effect
on the character of the area due to traffic.
Visual Appearance and Screening
The area of the site in which the proposed asphalt hot-mix plant is proposed to be
located is proposed to be screened from nearby residences and from the road by existing
7
vegetation, by the construction of a berm, and by the planting of trees, as required by the
Act 250 permit and the conditions imposed in this Court’s 2001 decision. The fence that is
required to be installed can be installed within the treeline so that it will not be visually
obtrusive. The plant itself and the stack are required to be painted or otherwise coated in
colors that will assist the plant to blend with the background of the hill and to minimize
how noticeable it may be through the trees. The air permit strictly controls visual emissions
from the plant.
The appearance of trucks, loaders and other equipment traveling in and out of, or
on the site, will not be affected by the proposed asphalt plant as the same equipment and
same number of trucks leaving the site will be associated with the operation.
Accordingly, the proposed asphalt hot mix plant will have no material substantial
cumulative adverse effect on the character of the area due to its visual appearance.
Based on this analysis, and considering all the contested components of the potential
cumulative adverse effects on the character of the area, the proposed asphalt hot-mix plant
will not have a substantial and material adverse effect on the character of the area if the
plant’s hours of operation are reduced to that of the crusher equipment, as discussed
above.
Motion to Compel, for Protective Order, and for Sanctions
In addition to the merits of this appeal, Appellee-Applicant moved for sanctions.
Appellee-Applicant filed certain discovery requests and requests to admit that either were
objected to or were not responded to, or were admitted at the hearing. Appellee-Applicant
now seeks sanctions in the form of its costs of proving these ultimately uncontested facts.
If the Court had been able to clearly lay out in a scheduling order the time frames for
responding to the requests to admit, and the possible consequences of a failure to respond
to the requests, and to rule on any opposition to the requested discovery, the Court would
8
have considered imposing such costs, as unrepresented litigants are subject to the same
rules of procedure as are represented litigants. However, under the circumstances of this
appeal, Appellee-Applicant’s motion for sanctions is DENIED, with each party to bear its
own costs.
Based on the foregoing, it is hereby ORDERED and ADJUDGED that conditional use
approval is GRANTED to Appellee-Applicant to construct and operate the proposed
asphalt hot-mix plant at its site on Route 133 in Clarendon, subject to the conditions as
stated in the 2001 decision, except that the following conditions are further amended as
discussed in this decision:
Conditions 12 and 13 are hereby further amended as follows:
Appellee-Applicant shall not operate the asphalt hot-mix plant beyond the
hours of operation allowed for the crushing equipment; that is, during six hours a
day within the time period from 8:00 a.m. to 3:00 p.m. Monday through Friday, with
no Saturday or Sunday operation. Nighttime operation is not allowed under the
conditions of this permit.
Condition 17 is hereby amended to delete references to Saturday operation of the asphalt
hot-mix plant.
Done at Berlin, Vermont, this 4th day of November, 2005.
_________________________________________________
Merideth Wright
Environmental Judge
9