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In re Chaves A250 Permit Reconsider and Chaves Londonderry Gravel Pit A250 Permit (Hart)

Supreme Court of Vermont

January 17, 2014

In re Chaves A250 Permit Reconsider and Chaves Londonderry Gravel Pit A250 Permit (Kraig and Doreena Hart, Appellants)

Page 70

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.

Hans G. Huessy and Damien J. Leonard of Murphy Sullivan Kronk, Burlington, for Appellants.

Amy Clarise Ashworth and Nathan H. Stearns of Hershenson, Carter, Scott & McGee, P.C., Norwich, for Appellees.

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

OPINION

Page 71

Reiber, C.J.

[¶1] Neighbors Kraig and Doreena Hart appeal an Environmental Division order granting an Act 250 permit to applicants Chaves Londonderry Gravel Pit, LLC and its principal David Chaves for operation of a sand and gravel quarry. Neighbors argue that: (1) modifications made to the project prior to trial were substantial enough to require a remand to the district commission or a continuance of the trial; (2) the court erred in concluding that the noise from the project would not have an

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undue adverse aesthetic impact; (3) the court erred in finding that the project did not impact any historic sites and that the project complied with the regional and town plans; and (4) the court imposed an unenforceable restriction in condition 16 related to noise levels. We affirm, but remand for clarification of condition 16.

[¶2] Applicants' sand and gravel pit is located along the eastern border of Route 100 in the town of Londonderry. Neighbors own a country inn on property that lies across Route 100 from the operation. The project site has been historically used for sand and gravel extraction for at least fifty years. Applicants purchased the property and began extracting sand, rock and gravel from the site in 1997. At the time, no land-use permits covered the extraction operations. Applicants operated under the assumption that their activities on a preexisting quarry were grandfathered and required no state land use approval. The local environmental commission issued a jurisdictional opinion, finding that the scope of applicants' operation amounted to a substantial change from the preexisting operation and therefore a permit was required. Applicants appealed this determination to the Environmental Division.

[¶3] Meanwhile, applicants also applied for an Act 250 permit. The district environmental commission ultimately approved the application subject to several conditions. Applicants disputed some of the conditions, and appealed to the Environmental Division. Several parties entered appearances and filed cross-appeals. Neighbors entered an appearance in the Environmental Division as interested parties, but did not file a cross-appeal.

[¶4] The jurisdictional and permit appeals were coordinated for purposes of pretrial discovery, motion practice and trial. Trial was set for March 5, 2012. On February 21, 2012, applicants filed a motion to adopt a settlement agreement, which was reached with several of the parties. The terms of the settlement agreement contained proposed changes to the project, including: changing the access point to the quarry from a proposed new entrance at the south of the quarry to an existing access road at the north end of the quarry; changing the loading area and a related berm for noise mitigation; adding noise mitigation berms; limiting the maximum number of truck trips per day; restricting the days and weeks when drilling, blasting and crushing may occur; and establishing a blasting plan.

[¶5] On February 28, 2012, neighbors filed an objection to applicants' motion to adopt the settlement agreement, and filed a motion to continue the trial. Neighbors argued that they lacked sufficient time to adequately prepare for trial and that the proposed settlement agreement made material changes to the project that required a remand to the district commission for consideration in the first instance. In particular, neighbors argued that the change in location of the access point to the quarry was a material change that would negatively impact their property. The trial was reset for March 13, 2012.[1]

[¶6] On March 9, 2012, the trial court denied neighbors' motion for a remand. The court acknowledged neighbors' contention that they were unfairly disadvantaged

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in particular by applicants' decision to change the access point. The court ruled, however, that the changes were not substantial enough to change the character of the project, and that a remand was not necessary. The court noted that in reviewing a proposed Act 250 project, it was required to consider " all reasonable alternatives to the proposed project, with the limits of not changing the very essence of the project." Because the parties were obligated to be prepared to address differing proposals, the court found no basis to delay the trial and denied the motion for a further continuance.

[¶7] Prior to trial, the court informed the parties that it would reserve judgment on the motion to accept the settlement agreement until trial. The court explained that it would make " its own independent determinations as to the appropriate weight and credibility to be assigned to all trial evidence."

[¶8] At trial, applicants presented testimony from several different experts related to the project's blasting plan, impact on traffic and noise creation. At the beginning of the hearing, neighbors objected generally to the admission of any expert evidence relating to changes made as a result of the settlement agreement, arguing that they were provided with an insufficient opportunity to investigate or evaluate the experts' opinions on how the changed entry point would impact the project. Consistent with its pretrial ruling, the court overruled the objection and allowed the experts to testify.

[¶9] Neighbors were the only parties to appear and oppose the project at trial. Neighbors cross-examined applicants' experts and neighbor Doreena Hart testified, but neighbors did not present experts of their own.

[¶10] The court issued a lengthy written order. As to the jurisdictional appeal, the court affirmed the district commission, holding that applicants' operations increased the manner and intensity of the preexisting operation and therefore required an Act 250 permit. As to the merits appeal, the court noted that its review was limited to addressing the questions raised by applicants, which related to four criteria and subcriteria: criterion 5 relating to traffic impacts, criterion 8 concerning aesthetic impacts, criterion 9(E) about extraction of earth resources, environmental impacts and site rehabilitation, and criterion 10 about conformity with the town and regional plans. The court found that with appropriate conditions the project conformed to all of the criteria, and a permit should be issued. Neighbors filed a timely notice of appeal.

I.

[¶11] We first address neighbors' procedural arguments. On appeal, neighbors argue that the modifications to the project made as part of the settlement were substantial and required a remand to the district commission or, at the very least, a continuance. The Environmental Division has authority to " affirm, reverse, or modify the decision of the tribunal appealed from, may remand the case for further proceedings consistent with the order of the court, and may expressly set forth conditions and restrictions with which the parties must comply." V.R.E.C.P. 5(j). Thus, the Environmental Division may change a proposal without remand as long as the revisions do not amount to " truly ...


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