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| It puts the granite in the crusher. |
This is a prequel. I’m no George Lucas, but I can do things out of order too. Here’s the aftermath, which I’ve been told I missed some of the facts in. I can’t promise this one is going to be any better in that regard. Grossly oversimplifying is kind of what we do here.
This case is about whether multiple quarries and one stone-crushing operation before 1970 grandfather a post-1970 rock-crushing operation. The trial court concluded that “pre-1970 dimension-stone-quarrying operations included intermittent crushing operations throughout the large tract, and that the new crushing operation thus fell within the grandfathered development and did not constitute a cognizable physical change to that preexisting development.” The SCOV majority concludes that the trial court used the wrong legal framework and one of its critical findings wasn’t supported by the evidence. So the whole thing gets kicked back to the trial court (and then goes back to the SCOV, which you can read about here).
So . . . between ’08 and ’12, district coordinators issued a series of jurisdictional opinions with the same conclusion” that North East Materials Group LLC’s (NEMG) rock-crushing activities didn’t need an Act 250 permit because there wasn’t a cognizable change from pre-1970 stuff. Thirteen neighbors calling themselves Neighbors for Healthy Communities (Neighbors) appealed a 2012 decision to the Environmental Division, which reached the same no-cognizable-difference conclusion.
Most of the trial court’s findings are uncontested. Rock of Ages (ROA) owns and operates a quarrying operation on over 1000 acres. The site includes several quarries formerly owned and operated by distinct entities. The quarries are adjacent to each other and there’s a bunch of roads, including Graniteville Road, transecting the property or connecting worksites. NEMG’s rock-crushing thang is south of Graniteville Road.
Crushing is a common practice in the granite industry. It turns otherwise useless waste into crushed stone. It’s noisy and dusty and dirty. There was some evidence of intermittent stone-crushing activity on the ROA tract as far back as the early 1900s through to the present day. The trial court made no findings, however, as to volume or duration of the old crushing activities.
The trial court did find that the former Wells-Lamson Quarry Company conducted crushing, including a crushing operation producing poultry grit and road aggregate, as far back as 1926, continuing through the 1940s and into the 1960s. It did a lot of crushing—at one point with a capacity up to a thousand tons per day—including the subbase for I-89. That operation stopped shortly after 1959.
The trial court made other findings about both pre- and post-1970 crushing operations on the ROA tract. Without getting into too much detail, there was some intermittent rock-crushing activity on the property and consistent dimension stone quarrying over the years. Sometimes material was removed to be crushed off-site. And NEMG itself did a bunch of crushing from 2009 on.
The bottom line is that the Environmental Division treated the entire ROA tract as one big ol’ brontosaurus (think little drunk John Mulaney here) for purposes of determining the preexisting-development issue. So, in theory, as long as there’d been SOME rock-crushing activity on the whole 1000+ acre parcel before 1970, that was enough for the trial court. It rejected the argument that because the ROA tract is made up of smaller quarries, some separated by public roads and at distances of up to several miles from each other, the historical evidence of crushing in one location should not be held to establish a preexisting practice in another. “Nope,” said the trial court, “It’s the whole thing.”
The trial court also rejected Neighbors’ abandonment theory on the basis that there’d been dimension-stone quarrying for over a hundred years, and fairly consistent but intermittent crushing operations on the tract.
And finally, the trial court rejected the “substantial change” argument. This argument was based on NEMG adding new rock-crushers to supply large quantities of asphalt to a proposed hot-mix asphalt plant on-site and that NEMG's 2012 air-pollution-control permit from ANR authorizing it to crush up to 175,000 tons per year established a substantial change.
The trial court found that no cognizable change in rock-crushing activity had occurred. It viewed the entire 1100-acre tract as a single granite-quarrying operation, and viewed the intermittent rock crushing at varying locations as an established component of the larger quarrying operation. It found that Neighbors had “failed to meet their burden of demonstrating that NEMG’s crushing represents a cognizable physical change to ROA’s preexisting development.” And so, the trial court found ROA and NEMG exempt from Act 250.
Neighbors appeal, challenging both the legal approach and the evidentiary basis for some of the trial court’s findings.
SCOV begins with an overview of Act 250’s purpose, which, broadly stated, is “to protect Vermont’s lands and environment by requiring statewide review of large-scale changes in land utilization.” It doesn’t apply to pre-1970 development unless the new use constitutes a “substantial change” from the preexisting use. A “substantial change” is any change in preexisting development that might result in a significant adverse impact in respect to the ten Act 250 criteria. There’s a two-part test: (1) whether there’s a cognizable change; and (2) whether the change could have a potential significant impact under one or more of the Act 250 criteria.
Neighbors contend that: (1) the whole-tract-as-preexisting finding is cray-cray; (2) even if rock-crushing activities are generally part of ROA’s the trial court screwed it up when it found no cognizable post-1970 change.
The majority notes that its review of the Environmental Divisions facts is deferential, but it does what it wants on the law.
At the outset, the majority notes that “whether NEMG's crushing operations fall within the scope of the preexisting ROA development and whether those operations constitute a substantial change can arguably be viewed as two sides of the same question.” So, if it falls within the prior scale it isn’t a change and if it falls outside, then is a change . . . dig? (That was bad—I know.)
That said, the burdens are different: the land-user (NEMG) has the burden of showing preexisting use; the objector (Neighbors) has the burden of showing substantial change to establish jurisdiction. It’s then not clear what remaining burden the land-user has, but the majority approves a framework that requires the land-user to provide sufficient information about pre- and post-1970 use to allow the factfinder to make the substantial-change determination. But then the objector bears the burden of persuasion on the substantial-change issue. Confused? Me too.
Anywho. Given that the preexisting-development analysis is more a generalized inquiry, the majority doesn’t “take issue with the Environmental Division’s broad approach to defining the preexisting development.” To the extent there was evidence of dimension-stone-quarrying and crushing operations at various sites, the Environmental Division could conclude that the crushing operations are grandfathered unless the Neighbors can demonstrate a substantial change. The majority and the trial court part ways on the idea “that instances of crushing operations decades ago and miles away from the site of NEMG's present operations can be viewed as establishing some sort of baseline defeating any claim that NEMG’s present operations constitute a cognizable change.”
The majority reasons that the trial court’s interpretation of grandfathering is far too broad when considered in the context of Act 250’s purpose. It’s a narrow exception, not a free for all. The impact of development is important, and the location is tied to that analysis.
The majority opines: “For these reasons, in the context of a straightforward Act 250 permit application, it is almost inconceivable that a dimension-stone quarry with neighbors nearby could obtain an open-ended permit to install a crusher at any location on its property that it chooses, with no requirement to mitigate its impact on neighboring landowners.” Again, through this lens, the trial court’s interpretation is far too broad.
The majority also reasons that the Environmental Division’s “no cognizable physical change” finding is “inconsistent with a string of cases treating even relatively modest changes as cognizable changes.” There’s change here and the trial court is going to have to acknowledge that.
There was also a finding with evidentiary problems. Remember the 1-89-related crushing? Turns out that activity probably wasn’t even on the ROA tract. “For that reason, the Environmental Division erred in relying on this evidence in determining the scope of the preexisting development.” And there you have it folks: a clearly erroneous factual finding that gets overturned.
The majority reverses and remands this one back to the trial court. You can read about the next round here because we already covered it.
Justice Eaton, joined by Justice Skoglund, dissents. The dissent notes that since 2008 there have been numerous findings that “rock-crushing activities by NEMG within the longstanding ROA industrial dimension-stone quarry complex do not constitute a substantial change from quarry operations that preexisted Act 250, and thus are exempt from the Act.” The dissent reasons that the majority’s decision “would effectively require a new or amended Act 250 permit every time ROA moved its crushing activities from one site to another within the industrial complex.” And that’s not reasonable.
First the dissent covers the facts —rejecting the majority’s reasoning on the I-89 crushing—because it was but one example of many different crushing operations.
The dissent generally agrees with the burdens of proof and persuasion as described by the majority, but reasons that the majority’s decision “effectively places [the significant-change persuasion] burden on ROA rather than Neighbors.”
In the dissent’s view, the majority skips the whether-there’s-a-cognizable-change analysis and goes straight to the impacts, which is not how the test is supposed to go. Without a cognizable change, we don’t get to the Act 250 criteria.
The dissent further reviews a number of Environmental Board decisions that appear to conflict with the majority’s reasoning. Expansion within a preexisting development and slight changes to operations within preexisting developments do not necessarily constitute cognizable changes.
“In this case, as noted, the Environmental Division made unchallenged findings that rock crushing is a normal part of a dimension-stone quarrying operation and is customarily done in various locations within the operation because the equipment is often portable and the source of materials to be crushed changes.” In the dissent’s view there was plenty of evidence “that rock crushing has been going on as part of quarry operations for over a century within the contiguous tract of land [ROA] has owned for forty years.”
The dissent does not conclude that there has been any real change. Moving a crusher around a property that has been crushing rock for a long, long time is not such a clear change as the majority views it.
And there you have it—a grossly oversimplified version of the case likely to cause annoyance and ire. Feel free to rip on me in the comments.
Where to start....we live in a post-truth era.
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