In re Rt. 103 Quarry (J.P. Carrara & Sons)

• Decision Date: 03 July 2008
• Docket Number: No. 06-546.,06-546.
• Citation: 958 A.2d 694,2008 VT 88
• Court: Vermont Supreme Court
• Parties: In re ROUTE 103 QUARRY (J.P. CARRARA AND SONS, INC.).

958 A.2d 694

2008 VT 88

In re ROUTE 103 QUARRY (J.P. CARRARA AND SONS, INC.).

No. 06-546.

Supreme Court of Vermont.

July 3, 2008.

Stephanie J. Kaplan, East Calais, and Phoebe Mills, South Londonderry, for Appellants.

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

Present: DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ., and GREARSON, D.J., Specially Assigned.

¶ 1. SKOGLUND, J.

Neighbors appeal the Environmental Court's decision granting J.P. Carrara and Sons, Inc. an amended permit to expand its quarry operation. We affirm.

¶ 2. Carrara has long operated a dolomite quarry on part of its fifty-nine-acre tract of land in Clarendon, Vermont. Carrara obtained its original Act 250 permit for the quarry operation in 1988 and has obtained several permit amendments since. Carrara's most recent permit amendment request, which is the subject of the instant litigation, seeks (1) to lower the quarry floor by an additional 105 feet, to a depth of 517 feet above sea level; (2) to increase the maximum level of allowed explosives per blast; (3) to increase the number of truck trips to and from the quarry; and (4) to extend its permit for fifteen years. Neighbors opposed the amended permit on several grounds.

¶ 3. In July 2005, the District 1 Environmental Commission issued an amended permit with conditions that were unsatisfactory to the parties. Carrara appealed the district commission's decision to the Environmental Court, and neighbors cross-appealed. Following a site visit and a six-day de novo hearing, the court granted Carrara an amended permit imposing several conditions but rejecting some of the conditions that had been imposed by the district commission. Neighbors appeal, arguing that the court erred in concluding that Carrara met its burden of demonstrating compliance with several of the Act 250 criteria. For the most part, neighbors' appeal consists of challenges to the sufficiency of the findings and conclusions rather than questions of law.

¶ 4. As neighbors acknowledge, because the trial court determines the credibility of witnesses and weighs the persuasive effect of evidence, this Court "will not disturb a trial court's factual findings unless, taking them in the light most favorable to the prevailing party, they are clearly erroneous." In re Shantee Point, Inc., 174 Vt. 248, 263, 811 A.2d 1243, 1255 (2002). Moreover, our review of the Environmental Court's determination as to whether a proposed application would adversely affect surrounding lands is deferential. In re John A. Russell Corp., 2003 VT 93, ¶ 30, 176 Vt. 520, 838 A.2d 906 (mem.); see Sec'y, Vt. Agency of Natural Res. v. Handy Family Enters., 163 Vt. 476, 482, 660 A.2d 309, 313 (1995) (according deference to determinations made within expertise of environmental judge); In re Denio, 158 Vt. 230, 239, 608 A.2d 1166, 1171 (1992) (presuming validity of decisions made within expertise of Environmental Board); cf. In re Nehemiah Assocs., 168 Vt. 288, 292, 719 A.2d 34, 36 (1998) ("We accord deference to the Environmental Board's interpretations of Act 250, its own rules, and to the Board's specialized knowledge in the environmental field."). In short, our review of the Environmental Court's decision is limited; the neighbors must overcome a deferential standard of review to prevail on their challenge to the findings and conclusions underlying the court's decision.

¶ 5. Neighbors first argue that the court erred in concluding that the proposed quarry expansion complies with 10 V.S.A. § 6086(a)(9)(E), which, in relevant part, provides that a permit for the extraction of earth resources "will be granted" when the applicant demonstrates that "the extraction or processing operation and the disposal of waste will not have an unduly harmful impact upon the environment or surrounding land uses and development." See id. § 6088(a) (stating that applicant has burden to demonstrate compliance with Criterion 9, among others). According to neighbors, with respect to Criterion 9(E), the court ignored their reliable evidence, accepted evidence from Carrara that was not credible, ignored Carrara's history of noncompliance, and refused to require a test blast that would have allowed the court to understand the impact of granting Carrara's requested permit amendment.

¶ 6. Neighbors argued that allowing the requested permit amendment would have an undue adverse impact on their quality of life in that vibrations from the blasting would cause them stress and damage their homes. While acknowledging neighbors' concerns over the increased amount of explosives that would be allowed under the requested permit amendment, the court concluded that Carrara's past operation of the quarry had not been a major contributing factor to alleged damage to neighbors' homes, and that Carrara's continued blasting within professionally accepted limits would not have an undue adverse impact on neighbors in the future. In light of the neighbors' ongoing concerns, however, the court imposed conditions requiring Carrara: (1) to take structural surveys of adjacent properties, including video documentation, and to maintain records of those surveys, prior to conducting any future explosive blasts; (2) to maintain extensive reports for each blast for one year and to file such reports with the district commission within sixty days of the blast; (3) to provide blast notification to all adjacent property owners; and (4) in the event Carrara intended to conduct a blast using more explosives than the maximum amount used in the past, to provide notice of at least two business days to give the district commission and neighbors an opportunity to observe the blast and employ the means to record any effects of the blast.

¶ 7. On appeal, neighbors argue that the court ignored relevant, uncontroverted, and credible evidence demonstrating that blasting at the quarry had an unduly harmful impact on their lives and properties. According to neighbors, the court ignored their testimony explaining the intensity of the blasts and the physical damage to their homes. Upon review of the record, we conclude that the court did not ignore neighbors' testimony, which was not uncontroverted.

¶ 8. Just as neighbors submitted testimony speculating that past blasting had caused physical damage to their mobile homes, Carrara submitted testimony suggesting other causes for the damage alleged by neighbors. With regard to its request to be allowed to increase the total amount of explosives for each blast, Carrara presented expert testimony explaining that (1) each blast consisted of a series of explosions separated by brief delays; (2) the key factor for determining adverse effects of a blast is the maximum amount of explosives used for each explosion between delays; and (3) the amended permit would allow an increase in the total amount of explosives used for each blast, but would not increase the maximum amount of explosives allowed in the then-current permit for each delayed explosion. Carrara also submitted expert testimony that its blasts, as permitted and conducted, had always been, and would continue to be under the amended permit, well within the nationally accepted standards established by the United States Bureau of Mines (USBM) for preventing adverse effects from blasting. The unrebutted testimony indicated that the USBM standards established safe limits for protecting even fragile structures and had been employed successfully throughout North America over the past thirty years.

¶ 9. Given undisputed evidence that the previously allowed and currently requested level of blasting satisfied, by a wide margin, USBM standards, and that compliance with such standards established a high degree of certainty that there would be no adverse effects from the blasting, the court granted the requested permit amendment with the stringent conditions noted above. Given this record, we find no basis to reverse the court's determination that Carrara satisfied its burden of demonstrating compliance with Criterion 9(E).

¶ 10. Neighbors contend, however, that the court wrongly assumed that blasting within USBM standards would guarantee the absence of physical damage to neighboring properties. We disagree. The conditions the court imposed argue against any such guarantee.

¶ 11. Nevertheless, neighbors argue that the court erred by granting the amended permit request contingent upon Carrara monitoring its blasting, and by excluding evidence of Carrara's previous noncompliance with permit conditions. We find no error. Evidence at trial indicated that since at least 1994 the quarry had operated without any claim of a violation of its Act 250 permit. Further, as the court noted, previous permit violations that neighbors sought to introduce were related to Carrara's role as a landlord of the mobile home park adjoining the quarry and were remedied in cooperation with the Agency of Natural Resources. The court acted well within its discretion in concluding that evidence of past permit violations, without evidence of any pending violations or allegations of noncompliance, would not provide a legal foundation for denying Carrara's amended permit request.

¶ 12. Neighbors also complain that the court wrongly excluded certain statements made by adjacent property owners in prefiled testimony and then relied upon patently incredible testimony by one of Carrara's witnesses concerning the possible causes of alleged physical damage to neighbors' homes. The court issued a detailed order accepting and rejecting various statements submitted in prefiled testimony describing the vulnerable nature of neighbors' property and the physical damage and other adverse effects allegedly caused by the blasting. The court also heard evidence indicating that the physical damage to neighbors' homes was most likely the...