Posted by: Patricia Salkin | July 1, 2021

VT Supreme Court Concluded a Trucking Facility Would Not Have an Adverse Impact on the Area Character Due to Noise

This post was authored by Olena Botshteyn, Esq.

In September, 2016 JSCL, LLC (“JSCL”) applied for a conditional use permit to construct a trucking facility for its fuel-hauling business. After conducting several hearings, the Town of Ferrisburgh Zoning Board of Adjustment (“ZBA”) approved the permit with certain conditions. One of the conditions included a limitation on the applicant’s operations between 5:00 a.m. and 10:00 p.m. Both applicant and neighbors appealed to the environmental court. Before the court, the applicant testified that at the proposed facility truck drivers would begin to arrive at or after 5:00 a.m. and most of the drivers would return by 5:00 p.m., but some drivers with later shifts would not return until 10:00 p.m. The applicant requested to strike the condition, limiting its operations during this time.

Applicant’s lot is located on Tuppers Crossing, which has relatively light traffic. A railroad line crosses the road to the west of the parcel, and two to three freight trains pass by each day. The closest residence is located on the opposite side of the road, 150 feet from the proposed project. Having evaluated the expert testimony, the court found that the additional noises, produced when the trucks would enter and exit the property, would not exceed the noise levels already present in the area. Still, the court provided that certain conditions regarding noise shall be imposed on the applicant. Neighbors appealed the decision.

On appeal, neighbors argued that the court erred in concluding that the project will not have an undue adverse impact on the character of the area due to noise. They also argued that one of the conditions imposed by the court, Condition 8, which required the applicant to “minimize the frequency of truck drivers arriving at the project site” between 10:00 p.m. and 5:00 a.m. and prohibited operation on Sundays or holidays “except in the case of emergencies” was too vague.

With regard to noise levels, the court first evaluated whether the environmental court erred in interpreting the applicable noise-performance standard. Specifically, Ferrisburgh zoning bylaws states that “the sound pressure level should not exceed seventy decibels at the property line at any time, except for agricultural uses.” When a truck enters or exits the property, the sound pressure level reaches 71 decibels, however, the environmental court concluded that the limitation stated in the bylaws was not intended to apply to trucks crossing the property line. On appeal, the court agreed with such a finding. The sound engineer testified that any vehicle driving from a public right-of-way onto a property would exceed 70 decibels at the property line, accordingly, a different interpretation of the bylaws would require denial of all conditional use permits. The court further concluded that the environmental court appropriately relied on background noise data, produced by the monitor, placed close to two of the nearest neighboring residences.

Finally, the court concluded that Condition 8 imposed by the environmental court was indeed too vague to be enforceable. The court agreed with the neighbors that the terms “minimize” and “emergencies” were not defined, making it impossible for the zoning administrator to enforce it. The court therefore remanded the case to the environmental court to provide a qualitative or quantitative measure of the term “minimize” or define what constitutes an “emergency” and affirmed the rest of the court’s determinations.

In re JSCL, LLC CU Permit, 253 A.3d 429 (VT 4/2/2021)

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