In re Katzenbach A250 Permit #7R1374-1

Decision Date09 September 2022
Docket Number21-AP-189
Citation2022 VT 42
PartiesIn re Katzenbach A250 Permit #7R1374-1 Christian Katzenbach & Clark Katzenbach, Appellants
CourtVermont Supreme Court

On Appeal from Superior Court, Environmental Division Thomas G Walsh, J.

David L. Grayck, Montpelier, for Appellants.

James W. Barlow of James W. Barlow PLC, Danville, for Interested Party Town of Albany.

Thomas J. Donovan, Jr., Attorney General, and Melanie Kehne Assistant Attorney General, Montpelier, for Appellee Vermont Natural Resources Board.

Rebecca Beidler and Jeffrey Ellis, Albany, Appellees.

PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Johnson, J. (Ret.), Specially Assigned


¶ 1. Applicants Christian and Clark Katzenbach appeal the Environmental Division's decision granting but imposing certain conditions on an Act 250 permit for operating their sand- and gravel-extraction project. Applicants challenge the court's findings and conclusions under Criterion 5 and Criterion 8 of Act 250. We conclude that the trial court's findings under both criteria are not clearly erroneous, and that its conclusions under Criterion 8 are supported by its findings. However, we conclude that one condition imposed under Criterion 5 is unreasonable in light of the trial court's findings. We therefore strike that one Criterion 5 condition and affirm in all other respects.

¶ 2. Applicants own a three-acre commercial sand and gravel pit located in Albany, Vermont. The surrounding area is primarily wooded with some open spaces and characterized by low-density residential and agricultural uses. Other gravel pits and similar operations exist in the area, including a pit about two miles away owned by the Town of Albany. Applicants' project involves extracting, loading, and transporting sand and gravel. Equipment used in the project includes a loader, screen, excavator, and two dump trucks.

¶ 3. The project site is accessible from Vermont Route 14 by turning onto West Griggs Road, a Class IV hard-packed dirt road minimally maintained by the Town. The distance from Route 14's intersection with West Griggs Road to the project site entrance is about 1300 feet. Route 14 is a busy thoroughfare with steady traffic including heavy trucks. Existing traffic on West Griggs Road is minimal and consists mainly of residential traffic from a cluster of homes situated at the end of the road near the intersection with Route 14. One such home belongs to neighbors Rebecca Beidler and Jeffrey Ellis, who reside on property adjacent to the project.

¶ 4. Applicants submitted an Act 250 permit application for their sand- and gravel-pit project on February 21, 2017. The District Commission issued applicants a permit on August 29, 2017, and the project has been in continuous operation since. The project has an operating life of twenty years with a maximum extraction rate of 30,000 cubic yards (CY) per year and a total maximum extraction of 121,000 CY. The 2017 permit approved a maximum project truck traffic of twenty round trips per day. It also restricted hours of operation to between 6:30 a.m. and 6:00 p.m. during the week and 7:00 a.m. and 1:00 p.m. on Saturdays with no operation on Sundays or national holidays.

¶ 5. Neighbors appealed applicants' project permit to the Environmental Division in September 2017, alleging that the project was not in compliance with multiple Act 250 criteria. After a trial and site visit in December 2018, the Environmental Division held that applicants failed to meet their burden of proving that their project complied with Act 250. See 10 V.S.A. § 6088(a) (requiring applicants to bear burden to establish compliance with Act 250 criteria). Applicants' permit was denied, though the court noted in its decision that applicants could apply for reconsideration within six months.

¶ 6. Instead, applicants reapplied for a permit in February 2019, supplementing their application with evidence of compliance with the relevant Act 250 criteria. After a hearing and site visit in May 2019, the District Commission issued applicants' current project permit on June 13, 2019. The 2017 permit conditions described above carried through to the 2019 permit. Neighbors again appealed to the Environmental Division. The Natural Resources Board also participated in the appeal pursuant to 10 V.S.A. § 8504(n)(3).

¶ 7. After trial in January 2021, the Environmental Division issued its decision on neighbors' appeal. Of note for the appeal to this Court, it concluded that additional permit conditions were required to ensure the project's compliance with Act 250's Criterion 5, which addresses traffic impacts, and Criterion 8, which addresses aesthetic impacts including noise. To mitigate traffic impacts on pedestrians under Criterion 5, the trial court prohibited haul trucks from travelling on West Griggs Road between 12:00 p.m. and 1:00 p.m. on any day to allow safe recreational opportunities during business hours. "As additional mitigation of project impacts" and to ensure compliance with Criterion 8, the trial court limited haul-truck hours to 10:00 a.m. to 12:00 p.m. and 1:00 p.m. to 3:00 p.m. on weekdays and 10:00 a.m. to 12:00 p.m. on Saturdays with no operation on Sundays and national holidays.

¶ 8. Applicants subsequently filed a motion to amend the Environmental Division's decision, seeking to extend the project's haul-truck operation hours beyond those ordered by the court. They argued that the court failed to consider a relevant case recently issued by this Court, In re JSCL, LLC CU Permit, 2021 VT 22, __ Vt.__, 253 A.3d 429, and that restricting haul-truck travel to four hours per day during the week and two hours on weekends was unreasonable. The court denied the motion. It concluded that JSCL was not applicable and that even if it was, the condition imposed was reasonable under the standard set forth in that case.

¶ 9. Applicants now appeal the Environmental Division's decision adding permit conditions to bring the project into compliance with Act 250 and its subsequent denial of applicants' motion to amend, raising two issues. First, applicants challenge the Environmental Division's decision regarding Criterion 8, arguing that the trial court failed to make adequate findings to support its conclusion that the project's noise impact would be adverse and that it analyzed noise impacts using private-nuisance analysis as opposed to the appropriate analysis under Criterion 8. Second, they propose that the trial court's findings on the project's traffic impacts under Criterion 5 were internally inconsistent and otherwise fail to support its decision to limit haul-truck hours. Applicants ask this Court to reverse the trial court's decision, void the added restrictions limiting the project's haul-truck hours, and remand for further impact analysis consistent with Act 250.

¶ 10. To obtain an Act 250 permit, an applicant must satisfy ten criteria. 10 V.S.A. § 6086(a). The applicant bears the burden of establishing a prima facie case of compliance with Act 250 criteria, and opponents to the proposed project bear the burden of demonstrating undue adverse impacts under Criterion 5 through Criterion 8. Id. § 6088(b). To ensure these criteria are met, the issuing body may add requirements or conditions to a permit. Id. § 6086(c).

¶ 11. We review the Environmental Division's factual findings deferentially and its legal conclusions de novo. In re N.E. Materials Grp., LLC (NEMG I), 2015 VT 79, ¶ 18, 199 Vt. 577, 127 A.3d 926. We will not overturn the Environmental Division's factual findings "unless, taking them in the light most favorable to the prevailing party, they are clearly erroneous, meaning that there is no credible evidence to support them," id. (quotations omitted), or they are "internally inconsistent." In re N.E. Materials Grp., LLC (NEMG III), 2019 VT 55, ¶ 6, 210 Vt. 525, 217 A.3d 541 (quotation omitted). Although reviewed de novo, the Environmental Division's legal conclusions will be upheld "if they are reasonably supported by the findings." In re Lathrop Ltd. P'ship I (Lathrop), 2015 VT 49, ¶ 21, 199 Vt. 19, 121 A.3d 630 (quotation omitted); see also In re Route 103 Quarry, 2008 VT 88, ¶ 4, 184 Vt. 283, 958 A.2d 694 ("[O]ur review of the Environmental Court's determination as to whether a proposed application would adversely affect surrounding lands is deferential."); In re N.E. Materials Grp., LLC (NEMG II), 2017 VT 43, ¶ 8, 205 Vt. 490, 174 A.3d 747 (noting we review Environmental Division's conclusion that certain conditions would mitigate adverse impacts deferentially).

¶ 12. We first address applicants' concerns raised under Criterion 8, then turn to issues regarding Criterion 5.

I. Criterion 8

¶ 13. Criterion 8 requires that a proposed project "[w]ill not have an undue adverse effect on the scenic or natural beauty of the area, aesthetics, historical sites, or rare and irreplaceable natural areas." 10 V.S.A. § 6086(a)(8). Truck noise is a recognized aesthetic concern under Criterion 8. NEMG III, 2019 VT 55, ¶ 8.

¶ 14. Under this criterion, the Environmental Division made the following findings based on evidence presented by applicants. To evaluate the noise impact of the haul trucks driving along Route 14 and West Griggs Road, applicants hired a sound engineer to perform sound modeling.[1]Results, measured in decibels (dBA), indicated that instantaneous noise levels from haul trucks driving on Route 14 measured 66 dBA LASmax[2] at neighbors' residence and 55-70 dBA LASmax in areas of frequent human use on neighbors' property. Other residences would experience noise levels ranging from 60 dBA LASmax to 65 dBA LASmax from haul trucks passing on Route 14. Noise from trucks on West Griggs Road measured approximately 75 dBA LASmax at...

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