Sunday, December 15, 2013

It’s a Hard Rock Life

By Sara Puls

In re Ferrera & Fenn Gravel Pit, 2013 VT 97

Life on the quaint streets of Middlebury can apparently be unforgiving—that is, when you want to open a new gravel pit.

This case all started when applicants submitted a proposal to construct a sixteen-acre gravel pit on their 71.5 acre property, adjacent to Route 116 in the Town of Middlebury.  Close to the proposed pit lie residential communities, as well as several other existing “gravel-extracting” sites.  Applicants’ property lies within both the Medium Density Residential (MDR) (where gravel extraction is not allowed) and the Forest Conservation District (where gravel extraction is permitted as a conditional use).  

While applicants’ proposed pit lies entirely within the Forest District, the access road from Route 116 crosses the MDR zone.  As a “mixed-zoning” district, the Design Review Board (DRB) consequently subjected the proposal to conditional-use review under a provision of the Town’s zoning regulations.

In October of 2008, the DRB conducted a site visit and later held public hearings for ten days in August of 2010.  The following month, the DRB issued a written decision, concluding that the proposed project failed to comply with eight provisions of the Town’s zoning regulations.  The DRB cited adverse effect on the character of the neighborhood, the noise-performance standard, and concerns of the cumulative impact of an additional pit in the area.  Thus, the DRB opinion concluded the new pit would “disrupt the balanced diversity of uses currently in place and will disturb the essential character of the existing neighborhoods.”  With that, the application was denied.

Applicants first appealed their ruling to the environmental court.  There the court conducted an on-the-record review based on the transcribed hearings before the DRB and the parties’ supplemental briefing.  This is unusual, as those who follow the environmental court’s doings (and frankly, who doesn’t) will know, because most appeals from DRBs are from scratch with each party having the right to enter all new evidence.  Middlebury, however, is an on-the-record town, which means that the parties have one shot to build their evidentiary record, before a citizen board that may or may not understand the rules of evidence and the concepts of relevance.  

In this case, though, it means that applicants have few places to turn after their initial denial.  True to form, the court issued a written decision in 2012 affirming the DRB’s denial of the application for new pit.  Unsatisfied, applicants brought the present appeal to the SCOV. 

On appeal, the applicants essential raise the same issues that they first raised in environmental court.  They challenge the DRB’s findings and conclusions as unsupported, and then they launch into an argument that the Town’s zoning regulations are unconstitutionally vague.

As an appeal from a review of an on-the-record hearing, the standard of review here is the same as that used by the trial court.  Findings will be affirmed if “reasonably supported by the evidence;” conclusions of law will be analyzed independently “where such conclusions are outside the DRB’s area of expertise.”  

Applicants questioned many of the DRB’s findings including: the truck traffic, noise measurements, noise disturbance findings, inability of barriers to mitigate the adverse impact of the project, determination of the “area” affect by the project, the finding that the surrounding residential area had a “quiet character,” and the finding of negative cumulative impact of another pit.  

The SCOV repeatedly points out that applicants were required to do more than merely “question” the DRB’s calculations, methods, or findings by pointing out alternative ways in which to make those findings.  Rather, applicants carried a much higher burden of showing it was reversible error.  This is a very high burden, and it is no surprise that the SCOV finds that the applicants failed to do with respect to every single finding they questioned.  With no basis to set aside the DRB’s findings, the SCOV upholds them and quickly moves along.

The SCOV next addresses applicants’ constitutional arguments.  

First, applicants argued that the zoning regulations’ definition of “neighborhood” and “area affected” are so vague as to violate due process, and provide “no vantage point” and.  The SCOV acknowledges that municipal zoning ordinances are subject to the limits of the Constitution.  However, it rejects applicants’ position, noting that the plain import of the rule includes areas “within sight or sound of the proposed project area,” which is sufficiently clear and specific a location from which to measure impacts.

Applicants further argued that the DRB’s noise performance standards were vague and unconstitutional, asserting that a numeric decibel standard is required by the constitution. The SCOV rejects this argument as well, pointing to other courts who upheld similar qualitative noise standards against void-for-vagueness challenges.  

This is good news for a lot of Vermont towns that have noise ordinances without specific decibel tables. 

In the end, the SCOV finds that the Town’s approach was reasonable and provided an ascertainable standard sufficient to pass the void-for-vagueness test and affirms the denial.

Applicants are left with a thrice-denied application but plenty of guidance if they should go back to the drawing board.  As history teaches us, the need for gravel stretches to the beginning of time, and the need is not likely to change any time soon.  Yabba dabba doo!


  1. the hard knock life part with all the kids singing is the best part View website about Cold Laser Therapy Fort Worth

  2. Thank you Sara Puls for sharing this update to me.. its help me a lot. thanks!

  3. this is true :) thanks sarah for having this blog .
    keep it up !

  4. This is good news for a lot of Vermont towns that have noise ordinances without specific decibel tables. ty !

  5. Thank you for sharing this update to me.. its help me a lot. thanks!

  6. Wow thanks that really gave me alot of new ideas. Thanks for sharing!

  7. That is really hard! With the construction going on with just minimal noise.

  8. This is way too impossible. They should move out case closed!

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