In re N. E. Materials Grp. LLC Act 250 JO # 5–21

• Decision Date: 17 July 2015
• Docket Number: No. 14–190.,14–190.
• Citation: 127 A.3d 926
• Court: Vermont Supreme Court
• Parties: In re NORTH EAST MATERIALS GROUP LLC ACT 250 JO # 5–21 (Russell Austin, Pamela Austin, Julie Barre, Marc Bernier, et al., Appellants).

127 A.3d 926

In re NORTH EAST MATERIALS GROUP LLC ACT 250 JO # 5–21 (Russell Austin, Pamela Austin, Julie Barre, Marc Bernier, et al., Appellants).

No. 14–190.

Supreme Court of Vermont.

July 17, 2015.

Douglas A. Ruley, Environmental and Natural Resources Law Clinic, South Royalton, for Appellants.

Alan P. Biederman of Biederman Law Office, and James P.W. Goss of Kenlan, Schwiebert, Facey & Goss, P.C., Rutland, for Appellees.

Present: DOOLEY, SKOGLUND, ROBINSON and EATON, JJ., and MORSE, J. (Ret.), Specially Assigned.

ROBINSON, J.

¶ 1. This case calls upon us to consider whether a post–1970 rock-crushing operation is exempt from Act 250 because it is located on a site within a large tract that includes multiple quarries and is a pre–1970 development itself exempt from Act 250 permitting requirements. The Superior Court, Environmental Division concluded that the 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. We conclude that the Environmental Division used the wrong legal framework in considering whether the crushing operation constitutes a cognizable change, and that a critical finding underlying its analysis is unsupported by the evidence. Accordingly, we reverse and remand for further proceedings.

I.

¶ 2. Between 2008 and 2012, successive district coordinators of the District 5 Environmental Commission issued a series of jurisdictional opinions, each determining that the initiation of rock-crushing operations by North East Materials Group LLC (NEMG) at a site within the Rock of Ages Corporation (ROA) quarry did not require Act 250 permit review because those operations did not constitute a cognizable change to a development that existed on June 1, 1970, the effective date of Act 250. Thirteen individuals denominating themselves Neighbors for Healthy Communities (Neighbors) appealed a September 2012 decision to the Environmental Division, which likewise concluded that the rock-crushing operations did not effectuate a cognizable change to the preexisting quarry development, and therefore no Act 250 permit was required.

¶ 3. The Environmental Division made the following findings, which are uncontested on appeal, except where noted. ROA owns and operates a quarrying operation on a tract of approximately 1170 acres (930 acres in Barre and 250 acres in Williamstown). The site includes several quarries which were formerly owned and operated by distinct entities. The quarries are adjacent to each other in a configuration running roughly from north to south. Several roads, including Graniteville Road, transect the property; others connect work sites on the property. NEMG's crushing operation at issue here is located south of Graniteville Road.

¶ 4. Granite quarrying involves the cutting and extraction of large blocks of stone for sale or further processing. The most desirable kind of granite is high-quality "dimension stone." This stone is typically found deeper in the earth. In contrast, lower-quality "bedding" stone lies on the upper levels, close to the surface, in the "overburden" (i.e., stone, soil, and rock unsuitable for monument use). Typically, ROA must remove between eighty and two hundred feet of such material to reach dimension stone. Up to eighty percent of material quarried is waste. Crushing this material and reducing it to usable and salable sizes is a common industry practice, allowing quarrying operations to make use of otherwise useless waste material. Crushing entails drilling, blasting, and removing rock, and transporting it to crushing equipment. A primary crusher crushes the rock initially; smaller crushers further reduce rock sizes; and screens are used to separate the crushed rock by size so the end product may be grouped and sold. The crushed material is typically transported off-site in dump trucks. Neighbors in the area of NEMG's crushing on RDA's tract experience noise, dust, and traffic. Common noises are material being loaded or unloaded. Dust accumulates on house windows, outside furniture, lawns, and cars. Dump trucks traveling to or from the crushing site also cause traffic and kick up dust.

¶ 5. Dimension-stone-quarrying operations on what is now the ROA tract first began in the 19th century. Those quarrying operations included rock-crushing operations as early as 1904 and have included intermittent crushing operations at various locations within the ROA tract through the present day. The Environmental Division noted photographic evidence of crushing activity around 1912 south of Graniteville Road, in close proximity to NEMG's current crushing location. The Environmental Division made no findings as to the volume of crushing activity at the site during that time period, or the duration of those operations.¹

¶ 6. The Environmental Division further found that the former Wells–Lamson Quarry Company conducted crushing, including a crushing operation producing poultry grit and road aggregate, as far back as 1926. This crushing continued through the 1940s and into the 1960s. The Environmental Division made detailed findings as to the volume of Wells–Lamson's rock-crushing operations in 1958 and 1959. Those operations provided granite subbase for Interstate 89. The crushing operation, which ceased shortly after 1959, had a capacity of a thousand tons per day. Railcars with a capacity of approximately a hundred tons of crushed rock were used to transport the crushed material. Hundreds of railcars of crushed rock were transported for Interstate 89 development.²

¶ 7. In addition, the Environmental Division found that Kelley Construction, Inc. contracted with ROA in August 1969 to remove overburden and rock in the Smith Quarry, which was located in the middle of the ROA property, north of Graniteville Road, about 0.8 miles from the site at issue in this case. The contract contemplated the crushing of approximately 40,000 cubic yards of material, and the work was undertaken between September 1969 and April 1970.

¶ 8. The Environmental Division made findings of extensive crushing activity after 1970. In particular, Cooley Asphalt Paving Corporation removed and crushed an estimated 200,000 tons or more of granite during the ten-year period beginning in 1988, and had been removing and crushing granite at times even before that period. McCullough Crushing, Inc. removed more than 55,000 tons of crushed granite from a quarry south of Graniteville Road in 1990 using equipment similar to NEMG's crushing equipment. In 1992 and 1993, crusher material was hauled from three different areas on the ROA property for crushing off-site. The E.L. Smith & Company quarry, located approximately 0.8 miles north of the NEMG operations, engaged in crushing activity from 2005 to 2007.

¶ 9. Finally, NEMG itself, after the District 5 Environmental Commission Coordinator determined that no Act 250 review was required, began rock-crushing operations at the present site in 2009.³ Its equipment includes two jaw crushers, a cone crusher, a triple-deck screen, loaders, and excavators. The crushed material is transported off-site by customers using their own trucks; NEMG owns one truck that hauls grout, but no delivery trucks. In June 2013, the Agency of Natural Resources (ANR) issued an air-pollution-control permit to NEMG, allowing it to install various types of crushing equipment, including up to two primary crushers, two secondary crushers, three screening decks, discharge and stacking conveyors, and a diesel-powered electric generator. The extent of NEMG's crushing activity varies with the season and with shifting demand. NEMG crushed 20,285 tons of material in 2010; 155,577 tons (over 53 days) in 2011; 89,667 tons (over 83 days) in 2012; and 59,279 tons (over 43 days) in 2013.⁴

¶ 10. Based on these findings, the Environmental Division concluded that the challenged crushing operation was part of a pre–1970 development. It stated that rock crushing is not "separate and distinct from other quarrying activities," but rather is part and parcel of the dimension-stone quarrying that had been taking place on the ROA property for over a century. In reaching this conclusion, the Environmental Division explained that the large-scale rock-crushing activities on the tract north of ROA's properties "does not itself indicate ROA's preexisting development," but does support the finding of a relationship between quarrying and rock crushing. The Environmental Division concluded that "the ROA quarrying operations, including intermittent and portable crushing activities, are a preexisting development within the meaning of [Act 250]." It explained that it could properly consider pre–1970 crushing activity by entities other than ROA on property that was previously not held in common ownership with the other contiguous ROA quarries because the preexisting development exemption from Act 250 jurisdiction attaches to and runs with the land, rather than particular owners.

¶ 11. The Environmental Division 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. It explained that whether a development was "preexisting" would not be determined by looking at individual quarries, but rather by looking at the "overall ... preexisting development": the dimension-stone quarrying and associated crushing activity over RDA's entire 1170 acres.

¶ 12. The Environmental Division also rejected Neighbors' claim that RDA's crushing operations had been abandoned, and were therefore not eligible for "grandfathering" under Act 250. The Environmental Division noted that the dimension-stone quarrying had continuously taken...