Posted by: Patricia Salkin | November 13, 2014

VT Supreme Court Upholds Discretionary Permit to a Scrap Metal Recycling Company

Thirteen Town of Williston residents appealed from the grant of a discretionary permit to All Metals Recycling, Inc., to establish an outdoor storage area and install a 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.

The facility at issue was located in Williston’s Gateway Zoning District North (GZDN). 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).” The residents argued that the applicant could not satisfy the NAICS definition for either the waste management and remediation category or the materials recovery facility subcategory because the applicant did not accept actual garbage, thereby failing to remove materials directly from the “trash” or “waste stream” as residents claim the NAICS definitions required. Despite this contention, the court found that the Bylaws, through NAICS, did not and could not exhaustively define each iteration of possible business practices; but instead, provided examples of activities which are used to categorize businesses as neatly as possible. Thus under a plain meaning of the Bylaws the court found the facility to be a permissible use.

Residents next contended that the court should not have considered the parking plan because it presented new issues that were not addressed by the DRB, and argue that the court should have remanded the new plan to the DRB for public notice and hearing. The applicant, however, submitted a parking plan to the DRB that broadly labeled available parking areas, which the DRB approved as part of the discretionary permit application. Because the changes to applicant’s plans were not substantial, the court held that the environmental court did not err in not remanding the application. Furthermore, although residents called their own expert witness to testify against the workability of applicant’s plan, residents did not mention his testimony on this particular issue, and provided no substantive argument as to why the parking layout should be considered a “dysfunctional mix of traffic.” The court therefore found no reason to second guess the environmental court’s finding that the application complied in all respects with the Bylaws, and affirmed the environmental court’s granting of applicant’s discretionary permit.

In re All Metals Recycling, Inc., 2014 WL 4079953 (VT 8/14/2014)

The opinion can be accessed at:

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