Sunday, April 13, 2014

Prepare for the worst . . .

In re Chaves Act 250 Permit, 2014 VT 5

By Andrew Delaney

Nobody really wants a sand and gravel pit right across the road it seems. And if it’s been there a long time, people want to get rid of it when they have the chance. That’s this case in a nutshell.

Applicants’ sand and gravel pit site has been used for at least fifty years for sand and gravel extraction—though it’s not clear exactly to what degree. Neighbors own a country inn across the road. Applicants bought the property in ’97 and went to work taking out sand and gravel. They didn’t get any permits. At some point, the local environmental commission found that the applicants’ activities were a substantial change from preexisting use and a permit was required. Applicants appealed that decision to the environmental division.

In the meantime, applicants also applied for an Act 250 permit. The district environmental commission eventually approved the permit subject to a bunch of conditions. Applicants appealed some of the conditions. At that point, a whole bunch of parties joined the permit party and filed cross-appeals. Neighbors—appellants at the SCOV—also filed a notice of appearance but did not file a cross-appeal.

The applicants’ appeals were coordinated for trial purposes. Applicants filed a motion to adopt a settlement agreement (with several of the parties, but obviously not neighbors) shortly before the trial date. The settlement proposal included a number of changes, such as entry point, loading area, and a berm for noise mitigation, as well as several limitations on applicants’ quarry activities relating to noise control.

Neighbors objected and moved to continue the trial, also arguing that the changes required remand to the district commission. The court bumped back the trial by about a week, but denied the motion for remand. Because the court is supposed to consider all reasonable alternatives in connection with review of an Act 250 permit application, the parties are expected to be prepared to address reasonable alternatives. Accordingly, the trial court declined to remand or grant a further continuance.

Neighbors were the only challengers at trial. They objected to applicants’ experts testifying about the impact of recent changes, but the trial court overruled consistent with its you-gots-to-be-prepared-to-address-reasonable-alternatives ruling.

After trial, the environmental division issued a lengthy written order granting the permit and neighbors appealed on four grounds: (1) pretrial modifications to the permit application were significant enough to require remand to the district commission or a continuance; (2) the trial court shoulda found an adverse aesthetic impact; (3) the trial court screwed up when it found the project would not impact any historic sites and that the project complied with the regional and town plans; and (4) the noise level restriction imposed by the trial court was unenforceable. The SCOV remands on the last issue for clarification, but otherwise affirms.

The SCOV first addresses neighbors’ changes-were-significant-enough-to-warrant-remand-to-the-district-commission argument. The SCOV begins by noting that the environmental division’s powers on a de novo appeal are just as broad—but not broader—than the body from which the appeal originates. So, while the environmental division couldn’t allow substantial changes to the form or the type of permit, it has pretty wide latitude. In this case, the SCOV concludes that the trial court was well within its range of authority. The SCOV reasons that “[t]he revisions proposed in the settlement did not change the nature of the permit requested, alter the location of the project, or increase the scope of the project.” The SCOV notes that many of the changes were directed toward noise mitigation.

Neighbors argue that the changed entry point for the quarry significantly impacts them because it places the entry point directly across the street from them. The SCOV acknowledges that this is true, but reasons that it does not amount to a substantial change in the scope of the project or the nature of the permit.

The SCOV spends some time addressing the neighbors’ well-we-should’ve-at-the-very-least-gotten-a-continuance argument, but the basic thrust it that it’s a discretionary ruling; there wasn’t an abuse of discretion; and therefore, the court did not err in denying their motion to continue.

The SCOV next addresses neighbors’ the-project-doesn’t-comply-with-Act-250-requirements arguments. There are ten statutory criteria that must be satisfied before the issuance of a permit. Neighbors challenge the trial court’s findings on four.

First, neighbors challenge the environmental division’s aesthetic-impact findings. The SCOV adopts facts as found by the environmental division unless clearly erroneous and upholds legal conclusions so long as reasonably supported by the facts.

Here, the SCOV concludes that the trial court properly considered the aesthetic impact. There was no suggestion that the project would interfere with the natural beauty of the area; the contention was based on added noise. But here, as the trial court found, the project was in a rural area with homes and other commercial operations and there was already significant background noise from traffic. The trial court then reasoned that the additional truck traffic the project would generate would not have a discernible adverse impact. Though the trial court reasoned that the drilling, blasting and crushing noises would be adverse, the court found no undue impact “because the project was in keeping with community standards, would not offend the sensibilities of the average person, and contained mitigating steps such as berms and limits on operation that improved the harmony of the project with the surroundings.”

The SCOV notes that the increase in total traffic past neighbors’ inn is less than one percent (though a ten-percent increase in truck trips). The SCOV concludes that the trial court had ample evidence on which to base its conclusions and that neighbors bore the burden of demonstrating adverse impact. Accordingly, the trial court’s findings regarding aesthetic impact are upheld.

Neighbors also argue that the trial court screwed up when it found that no historic sites would be impacted by the project—neighbors’ inn is on the register of historic places. Here, the SCOV simply notes that no evidence was presented “as to how the inn would be specifically impacted as a historic site.” Neighbors again bore the burden here and the trial court didn’t err.

Neighbors’ next argument is that the project doesn’t comply with the local and regional town plans. In this vein, the SCOV notes that a project only conflicts with a plan when the plan’s standards are clear, unambiguous, and unqualified; broad, general policy statements don’t create automatic conflicts. Here, the SCOV agrees with the trial court that there are no clear conflicts. The neighbors make a valiant effort, citing language from three sections of the town plan, but it is all for naught. The language cited by neighbors just isn’t mandatory.

Neighbors’ last point is that the environmental division’s condition concerning the project’s noise impact is unenforceable. Simply put, the condition is that noise levels can’t exceed the noise levels that existed between 2005 and 2011. Huh?

So the SCOV does remand for clarification on that point.

The lesson here, I suppose, is to be prepared for anything when dealing with an Act 250 permit. You may be shooting at a moving target.

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