Posted by: Patricia Salkin | February 21, 2017

VT Supreme Court Holds Findings on Location and Volume of Crushing Operations Could Not Support Conclusion that They Did Not Constitute Cognizable Change to Existing Development

This case arose from the Environmental Division’s decision on remand that a rock-crushing operation, by North East Materials Group LLC (NEMG), was exempt from the permitting requirements of Act 250 as a pre-existing development. The Environmental Division reached the same conclusion in its first decision, but the court reversed and remanded, holding that the Environmental Division used the wrong legal standard in deciding that the rock-crushing operation did not constitute a cognizable physical change to the pre-existing development, and that one of the main factual findings in support of the decision was clearly erroneous.  

At the outset, the court noted that “any party seeking an exemption from Act 250 jurisdiction on the basis of a pre-existing development commenced before 1970 has the burden of providing evidence sufficient to demonstrate the existence and nature of the pre-existing development.” After a development is established as exempt from Act 250 jurisdiction, the burden shifts to the party seeking to impose jurisdiction to show that there has been a substantial change to the pre-existing development. 

As to the first prong of the exemption inquiry, the Environmental Division found that the current site was already developed because the record indicated rock crushing occurred on the site a hundred years ago.  On appeal, court found that that this framework would “cut off the substantial-change analysis at the cognizable-physical-change step,” which would in turn disregard the actual change in the impact of proposed development at a site just because similar development had already taken place within the tract was “inconsistent with Act 250’s focus on discerning the impact of proposed development.” Moreover, the court found that the likely effect of the noise and clouds of rock dust on the senses of the average person was significant enough to reach the potential impact as a matter of law, and that the second prong of the substantial change test therefore had been met. Accordingly, the court reversed the Environmental Division’s holding, and held that location was not determinative for mobile crushing equipment and activities. 

In re North East Materials Group LLC Act 250 JO #£5-21, 151 A.3d 766 (8/12/2016)


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