In re All Metals Recycling, Inc.

• Decision Date: 14 August 2014
• Docket Number: No. 13–455.,13–455.
• Citation: 107 A.3d 895,2014 VT 101
• Court: Vermont Supreme Court
• Parties: In re ALL METALS RECYCLING, INC. (DRB Permit Appeal).

107 A.3d 895

2014 VT 101

In re ALL METALS RECYCLING, INC. (DRB Permit Appeal).

No. 13–455.

Supreme Court of Vermont.

Aug. 14, 2014.

Hobart F. Popick and James T. DeWeese of Langrock Sperry & Wool, LLP, Burlington, for Appellants.

Paul S. Gillies of Tarrant, Gillies, Merriman & Richardson, Montpelier, for Appellee Town of Williston.

Robert F. O'Neill and David A. Boyd of Gravel & Shea PC, Burlington, for Appellee All Metals Recycling, Inc.

Present: REIBER, C.J., SKOGLUND, ROBINSON and CRAWFORD, JJ.,¹ and ZONAY, Supr. J., Specially Assigned.

Opinion

SKOGLUND, J.

¶ 1. Thirteen Town of Williston residents appeal from the Superior Court, Environmental Division's grant of a discretionary permit to All Metals Recycling, Inc., to establish an outdoor storage area and install a scale and scale house. The discretionary permit allows applicant to continue operating a previously unpermitted scrap-metals recycling business in Williston. The permit proposes no physical changes to any buildings on the premises, as applicant has already constructed the scale and scale house which the permit will authorize. Residents argue that (1) applicant's business is not a permitted use under Williston's Unified Development Bylaws; (2) the environmental court erred in not remanding the application for further review by the Town's Development Review Board (DRB) when applicant submitted a new parking plan several weeks before trial; and (3) applicant's proposed parking plan does not conform to the Bylaws. We affirm.

¶ 2. For several years, applicant has operated a scrap-metals recycling facility at 38–42 Dorset Lane in Williston. Applicant's business consists of purchasing, sorting, and recycling metals that are either brought to the facility by customers, or collected directly from customers and trucked to the facility by applicant. Customers bringing materials to the facility are required to separate scrap metals from garbage and nonrecyclable materials prior to applicant's acceptance of the metals. Applicant does not accept garbage at the Williston facility. Materials collected offsite from customers are trucked in, and the trucks are weighed, unloaded, and weighed again. After collection and weighing, applicant then sorts, shears, crushes, and compacts the metals using a variety of industrial equipment, and ships them for resale to mills, processors, and refineries.

¶ 3. The facility is located in Williston's Gateway Zoning District North (GZDN). ReSOURCE: A Nonprofit Community Enterprise, Inc. leases the property from the owner, Riggs Properties. In turn, applicant subleases approximately 463 square feet of indoor office space as well as extensive exterior space from ReSOURCE. Prior to construction of the scale and scale house, the owner of Riggs Properties informed applicant that the area in which the scale and scale house would be placed was part of applicant's sublease. However, it was later determined that the scale and scale house were located on a small portion of land belonging to the Town.

¶ 4. Residents, including a concerned business competitor, sent a letter to the Town's Zoning Administrator expressing concerns regarding applicant's business. Residents questioned applicant's lack of a permit, and whether applicant's activities were a permitted use within the GZDN under the Bylaws. These concerns were brought to applicant's attention, and soon after, applicant submitted a discretionary permit application to the Administrator. After a public notice and hearing, the DRB approved the discretionary permit with several conditions, including that applicant obtain a lease from the Town for use of the land containing the scale and scale house. In May 2012, applicant satisfied this condition. Residents then appealed to the environmental court.

¶ 5. The environmental court swiftly disposed of a series of cross-motions for summary judgment, concluding that applicant's proposed use was permitted in the GZDN under the Bylaws. The court denied summary judgment on the sufficiency of proposed off-street parking, however, concluding that applicant lacked a plan clearly marking out locations of individual parking spaces. In response, applicant submitted an additional parking layout plan, clarifying the number and location of parking spaces around the premises. The environmental court denied residents' motion in limine to exclude the additional plan from trial. The court reviewed the parking plan de novo at trial and granted the discretionary permit, holding that, with the addition of a bicycle parking space, applicant's parking met all Bylaw requirements. Residents now appeal to this Court.²

¶ 6. We first address residents' contention that the environmental court erred in granting applicant's motion for summary judgment on the issue of whether applicant's proposed operation is a permitted use under the Bylaws. We review motions for summary judgment de novo, applying the same standard of review as the trial court. In re Miller Subdiv. Final Plan, 2008 VT 74, ¶ 8, 184 Vt. 188, 955 A.2d 1200. If there is no genuine issue of material fact, summary judgment will be granted where the moving party is entitled to judgment as a matter of law. Id.; see also V.R.C.P. 56(a). The nonmoving party will receive the benefit of all reasonable doubts and inferences. Miller, 2008 VT 74, ¶ 8, 955 A.2d 1200.

¶ 7. In setting forth the permitted uses within each zoning district, the Town relies on the North American Industrial Classification System (NAICS), which the Bylaws define as an “all-inclusive hierarchical system for describing economic activities.” Because the Bylaws expressly rely on NAICS definitions for categories and subcategories of permissible business activities, we likewise refer to these NAICS definitions to determine whether applicant's use is permitted.

¶ 8. Under the Bylaws, the GZDN “offers a location for a continuing diverse mix of light industrial, commercial, and office uses.” Among the list of NAICS categories permitted to operate in the GZDN are “Waste Management and Remediation Services.” The NAICS definition for waste management and remediation services “includes establishments ... operating materials recovery facilities (i.e., those that sort recyclable materials from the trash stream).” NAICS code 562 (2007), https://www.census.gov/eos/www/naics/index. html. “Materials Recovery Facilities” is, in turn, a NAICS-defined subcategory of “Waste Management and Remediation Services” and refers to “establishments primarily engaged in (1) operating facilities for separating and sorting recyclable materials from nonhazardous waste streams (i.e., garbage) and/or (2) operating facilities where commingled recyclable materials, such as paper, plastics, used beverage cans, and metals, are sorted into distinct categories.”Id. at 562920.

¶ 9. “[Z]oning bylaws are interpreted according to the general rules of statutory construction.” In re Champlain Oil Co. Conditional Use Application, 2014 VT 19, ¶ 7, 196 Vt. ––––, 93 A.3d 139. Our objective in statutory interpretation is to construe and effectuate the legislative intent behind a statute.

In re Carroll, 2007 VT 19, ¶¶ 9, 181 Vt. 383, 925 A.2d 990. “We will enforce the plain meaning of the statutory language where the Legislature's intent is evident from it,” but where not evident from the plain meaning, we will construe intent from consideration of “the whole statute, the subject matter, its effects and consequences, and the reason and spirit of the law.” Id. (quotation omitted). Thus, where an operation satisfies the plain meaning of the NAICS definitions provided in the Bylaws for a given district, it is a permitted use within that district.

¶ 10. The environmental court concluded that applicant satisfied the definition of “Materials Recovery Facilities” and was thus permitted to operate in the GZDN. Residents argue that applicant cannot satisfy the NAICS definition for either the waste management and remediation category or the materials recovery facility subcategory because applicant does not accept actual garbage, thereby failing to remove materials directly from the “trash” or “waste stream” as residents claim the NAICS definitions require. We are not convinced.

¶ 11. The NAICS definition for materials recovery facilities requires that an enterprise separate materials from waste streams or sort commingled recyclable materials into distinct categories. NAICS 562920, supra. Applicant's business involves taking a variety of recyclable metals, likely to otherwise land in the garbage dump, and sorting them into categories based on crushable weight or type of metal, such as aluminum and copper

or ferrous versus nonferrous. Residents do not dispute that applicant is engaged in purchasing, transporting, sorting and processing recyclable scrap-metal materials, and the environmental court found that applicant “sorts and aggregates the metals it purchases.” Sorting and aggregating are the two components required under the second prong of the materials recovery facility definition.

¶ 12. In maintaining that applicant cannot meet the requirements of either a waste management and remediation service or a materials recovery facility because it does not remove recyclables from the trash or waste streams, residents' argument ignores the “and/or” language in the NAICS definition. Regardless of whether applicant removes recyclables from the trash stream, it does take commingled recyclable materials—of which “metals” is expressly included—and sorts them into categories. Thus, based on the plain language of the NAICS definition, we hold that the

facility's activities satisfy the description of a materials recovery facility and, consequently, are an acceptable type of waste management and remediation service to operate in the GZDN. Because we hold that applicant meets the second prong of the materials recovery facility definition, we do not need to reach residents' contention that “trash stream” is an industry term of art from...