Brisson Stone, LLC v. Town of Monkton

• Decision Date: 12 February 2016
• Docket Number: No. 14–455.,14–455.
• Citation: 2016 VT 15,143 A.3d 550
• Court: Vermont Supreme Court
• Parties: BRISSON STONE, LLC, Allan Brisson and Michael Brisson v. TOWN OF MONKTON and Claudia Orlandi.

143 A.3d 550

2016 VT 15

BRISSON STONE, LLC, Allan Brisson and Michael Brisson

v.TOWN OF MONKTON and Claudia Orlandi.

No. 14–455.

Supreme Court of Vermont.

Feb. 12, 2016.

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.

SKOGLUND

, J.

¶ 1. In this combined appeal, applicants—Allan 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. Allan 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 nonsaleable 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 2012.¹ 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' proposed method of blasting, drilling, and crushing ledge rock to produce gravel.

¶ 9. Applicants filed for declaratory judgment in the Environmental Division, claiming the protracted review process caused their application to be deemed approved under 24 V.S.A. § 4464(b)(1)

. In a separate appeal, applicants sought review of the DRB's denial of the application. In this second proceeding, Orlandi was granted intervenor status and cross-appealed pursuant to Rule 5(b)(2) of the Vermont Rules for Environmental Court Proceedings. Intervenor sought summary judgment on the merits; she argued that, as a matter of law, applicants' proposed project was not a permitted use because the Regulations only allowed gravel extraction and not blasting, drilling, and crushing ledge rock.

¶ 10. In a November 27, 2014 decision, the Environmental Division found that “it is undisputed that Applicants seek to remove ledge rock from the ground and crush it into gravel for sale.” Because the Environmental Division held that § 564 did not authorize crushing quarried ledge rock to create gravel, it granted intervenor's motion for summary judgment on that issue. In a separate decision issued on January 30, 2014—prior to its summary judgment determination—the Environmental Division held that the application could not be deemed approved. Applicants appeal both decisions.

¶ 11. The standard of review shapes our decision in this case. We review the Environmental Division's legal decisions de novo, In re Lathrop Ltd. P'ship, 2015 VT 49, ¶ 21, 199 Vt. 19, 121 A.3d 630

, but we defer to the court's construction of a zoning regulation “unless it is clearly erroneous, arbitrary, or capricious.” In re Beliveau NOV, 2013 VT 41, ¶ 8, 194 Vt. 1, 72 A.3d 918. This deference extends “to a municipality's interpretation of its own ordinance if it is reasonable and has been applied consistently.” Lathrop, 2015 VT 49, ¶ 21, 199 Vt. 19, 121 A.3d 630 ; see In re Champlain Coll. Maple St. Dormitory, 2009 VT 55, ¶ 10, 186 Vt. 313, 980 A.2d 273. Because our review is limited, appellants “must overcome a deferential standard of review to prevail on their challenge.” In re Route 103 Quarry (J.P. Carrara & Sons, Inc.), 2008 VT 88, ¶ 4, 184 Vt. 283, 958 A.2d 694.

¶ 12. Like the DRB and Environmental Division, we focus our review on Regulation § 564, which is entitled “Extraction of Soil, Sand, and Gravel.” The section states in pertinent part: “In accordance with Section 4407(8) of the Act [24 V.S.A.], the removal of soil, sand or gravel for sale ... shall be permitted only upon approval of a plan for the rehabilitation of the site by the [DRB] and after a public hearing.” Section 564's subsections list additional requirements for extraction operations. For instance, § 564(1) provides that “a performance bond shall be secured from the applicant” to cover the rehabilitation of the land. Section 564(5) states that “[n]o excavation, blasting, or stockpiling of materials shall be located within two hundred feet of any street or other property line.” Finally, § 564(6) restricts the use of power-activated sorting machinery.

¶ 13. We construe zoning ordinances according to the principles of statutory construction, In re Laberge Moto–Cross Track, 2011 VT 1, ¶ 8, 189 Vt. 578, 15 A.3d 590

(mem.), and adopt an analysis that implements the legislative purpose. If the plain language of the regulation unambiguously reflects the legislative purpose, we will enforce the terms of the regulation. Lathrop, 2015 VT 49, ¶ 22, 199 Vt. 19, 121 A.3d 630. On appeal, applicants and Monkton offer competing interpretations of § 564.

¶ 14. Applicants argue that § 564's language demonstrates the drafters intended to allow a category of use—gravel extraction—without excluding the means of accomplishing the use—quarrying rock and then blasting and crushing the rock. Applicants contend that the word “extraction” in § 564's heading is a general term that includes mining or quarrying and that the definition of “extraction” contemplates a forcible action, such as blasting. Applicants also state that “gravel,” as commonly understood in the industry, refers to the particle size and not to the gravel's origin. Thus, according to applicants, the words “extraction” and “gravel” should be read to permit quarrying rock and then blasting and crushing it to produce specific sizes.

¶ 15. Further, applicants argue that several subsections of § 564 show the drafters intended to allow gravel production through blasting, drilling, and crushing quarried ledge rock. For example, § 564(2) sets out rules for leveling slopes, removing hills, and digging or creating pits, activities applicants assert cannot be accomplished without blasting and drilling. Similarly, § 564(5) specifically authorizes “blasting” if conducted a certain distance from the street or property line. When read as a whole, applicants claim that the drafters intended these subsections to regulate the drilling, blasting, and crushing necessary to produce gravel from ledge rock. Finally, applicants contend that the Environmental Division impermissibly imposed a...