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In re Ferrera & Fenn Gravel Pit

Supreme Court of Vermont

October 18, 2013

In re Ferrera & Fenn Gravel Pit

Page 484

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Superior Court, Environmental Division. Thomas S. Durkin, J.

Mark G. Hall of Paul Frank Collins P.C., Burlington, and Charles J. Ferrera, Honolulu, Hawaii, for Appellants.

Benjamin W. Putnam of Neuse, Duprey & Putnam, P.C., Middlebury, for Appellee.

Present: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.

OPINION

Page 485

DOOLEY, J.

[¶ 1] Applicant Charles Ferrera and property owners Ronald and Susan Fenn (hereafter " applicants) appeal from a decision of the Superior Court, Environmental Division affirming the Town of Middlebury's denial of their application to operate a gravel pit. Applicants contend: (1) several key findings and conclusions were unsupported by the evidence; and (2) provisions of the Town's zoning regulations are unconstitutionally vague. We affirm.

[¶ 2] We first summarize the salient facts and procedural history. Additional material facts will be set forth in the discussion that follows. Applicants submitted a proposal to construct a gravel pit on a 71.5-acre property adjacent to Route 116 in the Town of Middlebury. Just north of the proposed project site is the Lindale residential community; to the west across Route 116 is another residential area known as the Butternut Ridge neighborhood. Several existing gravel-extraction companies also operate within several miles of the project.

[¶ 3] Applicants' property lies within both a Medium Density Residential (MDR) and Forest Conservation District. The proposed sixteen-acre gravel pit lies entirely within the Forest District, while the proposed 2300-foot access road from Route 116 crosses through both districts. Although gravel extraction is not allowed in the MDR district, it is a conditional use in the Forest District, and the Design Review Board (DRB) consequently subjected the proposal to conditional-use review under a provision of the Town's zoning regulations requiring application of the rules pertaining to the " less restricted district" in mixed-zoning districts. (hereafter " Regulations" ).

[¶ 4] The DRB conducted a site visit in October 2008, and held public hearings over the course of ten days concluding in August 2010. A thirteen-page written decision issued the following month. The DRB concluded that the proposed project failed to comply with eight provisions of the zoning regulations, including the requirement that the project " shall not have an undue adverse effect on the character of the neighborhood, or area affected,", and the noise-performance standard limiting " [n]oise volume ... to levels that will not be a nuisance to adjacent uses." Id. . More specifically, the DRB found that, despite the existence of several other gravel pits within a few miles of the project site, the proposed new gravel pit -- located in closer proximity to the adjacent residential neighborhoods -- would substantially increase the noise in the area, stating: " The Lindale/Butternut neighborhood would, with the added proposed gravel pit and truck traffic, ... experience substantial added noise from a closer source." Along with the noise, ...


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