On Appeal from Superior Court, Environmental Division Thomas G. Walsh, J.
Colin R. Hagan and David J. Shlansky of Champlain Law Group, PLC, Vergennes, for Appellants.
Liam L. Murphy of Murphy Sullivan Kronk, Burlington, for Appellee.
James A. Dumont of Law Office of James A. Dumont, P.C., Bristol, for Intervenor-Appellee Orlandi.
PRESENT: Skoglund, Robinson and Eaton, JJ., and Morse (Ret.) and Burgess (Ret.), JJ., Specially Assigned
¶ 1. In this combined appeal, applicants-Allen Brisson, Michael Brisson, and Brisson Stone, LLC-claim that their application for a commercial gravel extraction permit is allowed under the Town of Monkton's zoning regulations and that their application should have been deemed approved under 24 V.S.A. § 4464(b)(1). We affirm the Environmental Division's denial of the application on the merits and hold that, even if the application was deemed approved, the deemed approval remedy would not foreclose an interested party's timely appeal to the Environmental Division on the permit's merits.
¶ 2. Allen and Michael Brisson leased part of their 324-acre parcel in Monkton to Brisson Stone, LLC, to operate a quarry. Applicants then submitted an application for a "gravel extraction operation" to Monkton's zoning administrator. The applicants' proposed site did not have alluvial deposits; that is, no naturally occurring gravel beds appeared to be on the site. Instead, the suggested location contained ledge rock. Applicants planned to drill and blast ledge rock to produce unconsolidated rock and gravel. After blasting, appropriately sized gravel would be stockpiled for sale. Any non-saleable rock pieces would be processed on-site using sorting equipment, such as a portable rock crusher and screener. The applicants believed Monkton's zoning regulations permitted a proposed gravel operation like theirs that would "remove rock and stone material from the earth using drilling and blasting, such as quarries."
¶ 3. The zoning administrator referred the permit application to Monkton's Developmental Review Board (DRB) in January 2012. Claudia Orlandi, an adjoining landowner, participated before the DRB as an interested person pursuant to 24 V.S.A. § 4471.
¶ 4. From the outset, the DRB identified a problematic issue with the application: it was unclear if the applicant's proposed project of blasting, drilling, and crushing ledge rock was a gravel extraction operation permitted by the zoning regulations or a quarrying operation precluded by the regulations. Compare Town of Monkton Zoning Regulations § 564 (1977) [hereinafter Regulations] (permitting soil, sand, or gravel extraction operations in any zoning district), with § 240 (excluding any use not specifically enumerated). The DRB addressed this issue in the initial application hearing on April 24, 2012. The matter was continued and subsequent hearings were held on May 22, July 24, August 28, and October 23, 2012.
¶ 5. Prior to the October 23 hearing, the DRB sent a letter to the parties outlining the procedures to be followed. According to the letter, following the hearing, the DRB intended to decide the discrete threshold issue of whether the proposal was a permitted gravel extraction operation.
¶ 6. Although the DRB took further evidence at the October 23 meeting, including expert testimony, it did not come to a decision. At the meeting's conclusion, the DRB unanimously voted to continue the public hearing to November 27. On November 13, prior to the next public meeting, the DRB discussed the application in a private, deliberative session; the Environmental Division found that this session was not a public hearing on the application. Thereafter, because of public and personal commitments, the DRB notified the parties that it could not reach a decision before the November 27 hearing; instead, it would officially open the hearing at the scheduled time and then continue it to a date certain. The DRB did just that on November 27, opening the hearing and continuing it to January 22, 2013. No one opposed the DRB's action.
¶ 7. On January 22, 2013, the DRB held its final public hearing on the application. At that meeting, it formally admitted into evidence a number of documents submitted by applicants and other parties to the DRB since the October 23 hearing. Applicants' attorney spoke on a number of procedural issues, including whether the application was deemed approved in the period between the November 27, 2012 hearing and the January 22, 2013 hearing.
¶ 8. At the conclusion of the January 22, 2013 hearing, the DRB formally adjourned the hearing and voted to deny the application. The DRB issued the written denial on February 26, 2013. It determined that the zoning regulations permitted extraction of naturally occurring gravel, but not applicants' ...