Posted by: Patricia Salkin | December 6, 2013

VT Supreme Court Upholds Denial of Application for Construction of Gravel Pit

Charles Ferrera and property owners Ronald and Susan Fenn (the applicants) submitted an application to the Town of Middlebury seeking to construct a gravel pit on a 71.5-acre property in a Forest Conservation District within the vicinity of two residential communities. At the time of their application, several other gravel extraction companies were operating gravel pits nearby.

Gravel extraction is permitted as a conditional use in a Forest Conservation District. However, the proposal also included the installation of an access road crossing a Medium Density District, where gravel extraction is not allowed. The Town applied it’s “least restricted district” rules for mixed-zoning districts, applying the conditional use rules or Forest Conservation Districts to the proposal.

After a site visit and public hearing, the Town’s Design Review Board determined that the proposal failed to comply with eight zoning regulations, including adverse impacts on neighborhood character, noise limitations, and the fact that, despite the presence of other gravel pits in the area, locating another gravel pit closer to the nearby neighborhoods would substantially increase noise, traffic, dust, and other adverse industrial impacts. Thus, the DRB concluded that “the addition of another [gravel] operation, as proposed, will disrupt the balanced diversity of uses currently in place and will disturb the essential character of the existing neighborhoods.” For those reasons, the application was denied.

On appeal, Vermont’s Environmental Division affirmed the DRB’s denial. The applicants here appeal, challenging the findings and conclusions of the DRB as unsupported and challenging specific testimony. However, the court noted that it was only permitted to review the decisions below based on the record presented to the DRB and at trial. Based on that review, the appellate court held that the lower decisions had been based on sufficient evidence, and that the applicants had failed to show any reversible error made by the DRB or the court below. The court noted that the applicants had to do more than simply question the evidence presented, they had to provide a basis for disturbing the DRB’s findings, which they failed to do.

The applicants also challenged the Town’s method of using noise limit standards which account for noise generated by surrounding uses, rather than straight numeric decibel standards, which the applicants claimed was an unconstitutionally vague standard. However, the court held that the Town’s approach was reasonable and did not fail the void-for-vagueness test, since it was not essentially without an ascertainable standard and provided the opportunity for the applicants to seek administrative guidance on the matter prior to moving forward with their plans. With the vagueness issue also weighing in favor of the Town, the appellate court upheld the decision of the court below.

In re Ferrera & Fenn Gravel Pit, 2013 WL 5663285 (Vt. 10/18/13)

The opinion can be accessed at:

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