Sunday, March 6, 2016

Getting Stoned?

Brisson Stone, LLC v. Monkton, 2016 VT 15

By Andrew Delaney

This opinion deals with what constitutes extraction or removal of gravel. Specifically, can one make gravel in Monkton, or is one limited to taking away what’s already there? Let’s find out.

“Allen and Michael Brisson leased part of their 324-acre parcel in Monkton to Brisson Stone, LLC, to operate a quarry.” They—the Brissons and the LLC—applied for a “gravel extraction operation” permit with Monkton’s zoning administrator. There weren’t any natural gravel beds on the proposed site. Instead, the plan was to drill and blast ledge rock to produce rock and gravel. The applicants believed that the proposed gravel operation was allowed under Monkton’s zoning regulations.

The zoning Administrator kicked it over to the Developmental Review Board (DRB). An adjoining landowner, Claudia Orlandi, jumped in as an interested person under this statute.

Right from the get-go, the DRB was concerned. Specifically, the problem was whether the proposed operation was a zoning-allowed gravel-extraction operation or a zoning-prohibited quarrying operation. This issue was addressed in the initial application hearing. The matter was continued and there were subsequent hearings every couple months for nearly a year.

Before the six-month-mark hearing, the DRB sent a letter to the parties indicating the procedures to be followed at the upcoming hearing. The DRB indicated that it’d be deciding “the discrete threshold issue of whether the proposal was a permitted gravel extraction operation.”

Though evidence and expert testimony was taken, the DRB didn’t come to a decision on the point, and continued the hearing again to the next month. The DRB met privately to discuss the application in between. Then personal and public commitments meant that the scheduled hearing wasn’t going to be workable, so the DRB opened the hearing and continued it for another two months. Nobody challenged that action.

At this point, the DRB held its final public hearing on the application. A number of exhibits were admitted and applicants’ attorney spoke on a number of procedural issues, including whether the application was deemed approved in the latest two-month gap between hearings.

At the conclusion of the meeting, the DRB adjourned and voted to deny the application. The next month, the DRB issued a formal written denial. Essentially, it determined that Monkton’s zoning regulations allow the extraction of naturally occurring gravel, but not applicants’ proposed drilling, blasting, and crushing to make gravel.

Applicants filed for declaratory judgment in the Environmental Division, arguing that the delays in the process meant that the application was deemed approved under this statute (subsection (b)(1) to be precise). Then, in a second appeal, applicants requested review of the DRB's denial of the application. In the second appeal, Ms. Orlandi (remember her?) was granted intervenor status. She argued that she was entitled to summary judgment based on the extraction-versus-quarrying issue—that applicants’ proposal was a prohibited use as a matter of law.

The Environmental Division concluded that applicants’ proposed use was not authorized under the zoning regs, and granted summary judgment on that issue. In a separate decision, the court held that the application could not be deemed approved. Applicants appeal.

The SCOV reviews the Environmental Division’s legal decisions de novo, but defers on construction of a zoning regulation unless the Environmental Division is off in outer space with its interpretation. The deference extends to a municipality’s view of the ordinance, so long as it’s reasonable and consistently applied. In other words, applicants have an uphill battle.

The SCOV, like the DRB and the Environmental Division, focuses in on the applicable zoning regulation (§ 564), which is entitled “Extraction of Soil, Sand, and Gravel.” These activities require a permit and rehabilitation plan and bond. Another subsection restricts use of power-activated sorting machinery.

The SCOV construes zoning ordinances the same way it construes statutes—shooting for an analysis that implements the legislative purpose. If the language is clear, the language controls. The parties, naturally, have different ideas about what the regulation means.

Applicants contend that the words “gravel” and “extraction”—without specific exclusion or mention of the means by which gravel is to be extracted—indicates intent to allow applicants’ proposed quarrying methods. They further argue that various subsections necessarily imply that blasting is allowed, pointing to rules for leveling slopes, removing hills, and digging or creating pits. They also point out that blasting is allowed with setbacks. Finally, they contend that the Environmental Division made up a regulation by distinguishing between producing gravel via quarried rock and naturally occurring gravel—a distinction not contained in the regulation.

Monkton comes back with a plain-language-only-permits-the-removal-of-naturally-occurring-gravel-not-the-blasting-and-drilling-of-quarried-ledge-rock-to-produce-gravel argument. Monkton points to the now-repealed statute referenced in the reg, which specifically stated that “this provision does not apply to mining or quarrying.” By Monkton’s logic, the reference to the now-repealed statute specifically excluded mining and quarrying from the regulation.

Both the DRB and the Environmental Division took the blastin’-drillin’-and-crushin’-ledge-rock-is-different-than-removing-natural-deposits-of-gravel view. The SCOV agrees with the Environmental Division that the plain language of the reg supports that view.

The SCOV notes that the heading reads: “Extraction of soil, sand or gravel.” The SCOV reasons that the heading restricts “extraction” to three materials. The first sentence of the regulation repeats the idea, but substitutes the word “removal” for “extraction.” Because soil, sand, and gravel can be found in naturally occurring beds, the SCOV notes that it’s reasonable to infer that the drafters intended to “regulate three similar naturally occurring materials.”

The SCOV draws a distinction between gravel—which is, according to the dictionary, “any unconsolidated mixture of rock fragments or pebbles”—and consolidated ledge to be made into gravel. The SCOV also reasons that the phrases “extraction of” and “removal of” can’t be construed to mean manufacturing gravel.

The SCOV also finds merit in Monkton’s the-reference-to-the-old-statute-excludes-quarrying-and-mining pitch. The SCOV reasons that when a municipality invokes the legislative intent of a statute, that should be given due weight. Otherwise, it would be ignoring the Legislature’s directions.

The SCOV concludes that the regulation’s subdivisions demonstrate “a consistent regulatory structure governing natural gravel operations.” The SCOV notes that the blasting authorized in the regulation is consistent with removal of naturally occurring deposits. “As a whole,” the ASCOV concludes, the regulation’s “subdivisions evince a legislative intent to regulate operations that extract naturally occurring gravel, not operations that create gravel by drilling, blasting, and crushing quarried rock.”

The SCOV acknowledges applicants’ arguments that the natural-gravel-extraction-versus-quarrying distinction is absurd, but opines that “these arguments do not rise to the level necessary to overcome the deferential standard of review.” The SCOV doesn’t need to ask why there’s a separation of the two, only whether the application of the regulation is arbitrary. The SCOV concludes that it is not. The “Environmental Division reasonably based its holding on the plain language of the regulation; this decision was not clearly erroneous, arbitrary, or capricious.”

The SCOV then turns to applicants’ claim that the permit should have been deemed approved pursuant to the statute that deals with the deemed-approval issue (again, subsection (b)(1) if you want the specific language). Essentially, the statute requires issuance of a written decision within 45 days of the adjournment of a hearing. If that doesn’t happen, the application is deemed approved.

Here, the parties have different ideas about when the formal adjournment of the hearing was. The Environmental Division agreed with Monkton, and concluded that hearings were properly held until a month (or so) before the written decision issued. Therefore, the deemed-approval remedy didn’t kick in. To add a twist, Ms. Orlani chimes in that because the Environmental Division’s on-the-merits decision occurred after the decision on the deemed-approval remedy, the issue is moot.

The SCOV notes that it’s dealt with the deemed-approval remedy “numerous times.” The remedy must be carefully applied “to ensure any deemed-approval permit remains clearly consistent with the intent of the applicable zoning regulations.” Thus, even if a permit were to be deemed approved, an interested party has an opportunity to challenge the deemed-approved permit on the merits.

That happened here. Ms. Orlani “filed a timely cross-appeal and motion for summary judgment on the merits in the Environmental Division. As a result, even if applicants’ request for a deemed-approved permit had legs, the Environmental Division would still have jurisdiction to address intervenor's cross-appeal on the merits.” I love that the SCOV just used the phrase “had legs” there. That’s awesome.

The SCOV points out that deciding otherwise would effectively foreclose intervenor’s opportunity to appeal. Because the SCOV has already affirmed the on-the-merits decision, it need not get into the deemed-approval argument.

“Applicants suggested in proceedings before the Environmental Division and at oral argument before this Court that the deemed-approval remedy would effectively prevent intervenor or any other interested party from appealing the approved permit.” The SCOV makes it very clear that this is not the case. An intervenor has a right “to have the Environmental Division rule on the merits of the application, regardless of whether or not the application was deemed-approved.”

For some reason, I have this song stuck in my head now. 

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