Posted by: Patricia Salkin | March 10, 2016

VT Supreme Court Finds Deemed-Approval Remedy Did Not Foreclose an Interested Party’s Timely Appeal on Merits of the Application for Gravel Extraction Operation

Allen and Michael Brisson leased part of their 324–acre parcel in Monkton to Brisson Stone, LLC, to operate a quarry. Applicants then submitted an application for a “gravel extraction operation” to Monkton’s zoning administrator. Applicants planned to drill and blast ledge rock to produce unconsolidated rock and gravel. After blasting, appropriately sized gravel would be stockpiled for sale. Any non-saleable rock pieces would be processed on-site using sorting equipment, such as a portable rock crusher and screener. Monkton’s Developmental Review Board (DRB) denied the application, and Applicants filed for declaratory judgment in the Environmental Division, claiming the protracted review process caused their application to be deemed approved under 24 V.S.A. § 4464(b)(1). The Superior Court, Environmental Division, held that application could not be deemed approved, and subsequently granted summary judgment to the adjoining landowner intervenor.

Applicants contended that the word “extraction” in § 564’s heading was a general term that included mining or quarrying and that the definition of “extraction” contemplates a forcible action, such as blasting. Applicants also stated that “gravel,” as commonly understood in the industry, referred to the particle size and not to the gravel’s origin. The court found the plain meaning of “gravel” was defined as “any unconsolidated mixture of rock fragments or pebbles”, which did not encompass consolidated materials like ledge rock. Furthermore, neither “removal” or “extraction” suggested the object being moved undergoes a material change or transformation, such as crushing or blasting. Additionally, the court found § 564’s subdivisions evinced a legislative intent to regulate operations that extract naturally occurring gravel, not operations that create gravel by drilling, blasting, and crushing quarried rock. Because the Environmental Division reasonably based its holding on the plain language of the regulation, its decision was not clearly erroneous, arbitrary, or capricious.

The deemed-approved argument relied on 24 V.S.A. § 4464(b)(1), which stated, once the hearing is formally adjourned, the panel shall “issue a decision within 45 days after the adjournment of the hearing. If the panel does not issue a written decision within forty-five days, the application shall be deemed approved and shall be effective on the 46th day”. Here, intervenor filed a timely cross-appeal and motion for summary judgment on the merits in the Environmental Division. Accordingly, the Environmental Division had jurisdiction to address intervenor’s cross-appeal on the merits. The intervenor was therefore entitled to have the Environmental Division rule on the merits of the application, regardless of whether or not the application was deemed-approved. The court affirmed the Environmental Division’s holding that the deemed-approval remedy did not preclude the timely appeal of an interested party.

Brisson Stone LLC v. Town of Monkton, 2016 WL 555809 (VT 2/12/2016)


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