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nbsp; STATE
OF VERMONT
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ENVIRONMENTAL
COURT
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Appeal of Penmar Farm =
&n=
bsp; } =
&n=
bsp; Docket
No. 113-7-03 Vtec
(Application of R.E. Tucke=
r,
Inc.) }
}
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nbsp; Decision
and Order
Appellants Penmar Farm and Kingman Penniman appealed fr=
om a
decision of the Development Review Board (DRB) of the Town of Berlin, gran=
ting
conditional use approval to Appellee-Applicant R.E. Tucker, Inc. Appellants are represented by Ger=
ald R.
Tarrant, Esq.; Appellee-Applicant
is represented by Peter J. Monte, Esq.; and Interested Parties Phil=
ip
and Marilyn (Knapp) Nelson are represented by Christopher D. Roy, Esq. The Town of Berlin did not =
enter
an appearance.
An evidentiary hearing was held in this matter before
Merideth Wright, Environmental Judge.&nbs=
p;
A site visit was taken with the parties and their representatives.<=
span
style=3D'mso-spacerun:yes'> The parties were given the opport=
unity
to submit written memoranda and requests for findings. Upon consideration of the evidenc=
e, as illustrated
by the site visit, and of the written memoranda and requests for findings =
filed
by the parties, the Court finds and concludes as follows.
Appellee-Applicant R.E. Tucker, Inc. owns what is now an
approximately 53-acre parcel=
of
land near and west of the Dog River and east of Chandler Road in the Rural
Residential (R-40) zoning district of the Town of Berlin. Chandler Road runs in an approxim=
ately
north-south direction from Route 12 in Riverton, where Route 12 loops to t=
he
east to follow the bend of the Dog River.=
Easterly of the project property, the railroad tracks run close to =
the
east side of the river. Chan=
dler
Road runs at an elevation of approximately 150 to 180 feet above the eleva=
tion
of the river.
Less than a mile south of the intersection of Chandler =
Road
with Route 12 and approximately 1/4 mile north of the entrance to
Appellee-Applicant=3Ds property, a short roadway known as Lovers Lane runs f=
rom
Chandler Road downhill to the east, over a one-lane bridge and over the
railroad tracks to connect to Route 12.&n=
bsp;
Lovers Lane is paved in the area of the bridge but unpaved as it
approaches Chandler Road. The
bridge is capable of handling a loaded 14-cubic-yard gravel truck. Around seven residences are locat=
ed
along Lovers Lane.
The Nelson property is located immediately to the south=
of
Appellee-Applicant=3Ds property, on the same side of Chandler Road. Chandler Road continues to the so=
uth
into the Town of Northfield, where it makes a T-intersection with Cox Brook
Road, which to the east has an additional access to Route 12 over a small
covered bridge and to the west is a route to Moretown and the Mad River Va=
lley.
The posted speed limit on Chandler Road is 35 miles per
hour. Gravel trucks operatin=
g under
a special town permit for Chandler Road are limited to a 25 or 30-mile-per=
-hour
speed limit. Empty trucks tr=
aveling
to the pit from the north via Chandler Road have been observed to exceed t=
hat
speed limit, as do other vehicles unrelated to the pit=3Ds operations.
While Appellee-Applicant=3Ds own drivers are generally courteous and observe the
limits, other drivers obtaining materials from the project property may not
know to do so and/or may not do so.
Section 1127 of Title 23 of the Vermont Statutes Annota=
ted
requires that when operators of motor vehicles on public highways approach=
a
horse-drawn vehicle or a horse being ridden, they are required to <=
span
style=3D'font-family:"WP TypographicSymbols";mso-bidi-font-family:Shruti;
mso-char-type:symbol;mso-symbol-font-family:"WP TypographicSymbols"'>Aoperate the vehicle in such a manner as to exercise eve=
ry
reasonable precaution to prevent the frightening of such horse . . . and to
insure the safety and protection of the person riding or driving.
Appellants=3D horse riding, boarding and training establishment is l=
ocated
on Chandler Road between Route 12 and Lovers Lane. Appellants=3D
The extraction of earth resources is an allowed conditi=
onal
use in any zoning district within the town, under '4.3 of the Zoning By-laws.[1] An approximately 45-acre portion =
of the
site was used as a sand and gravel pit for many years prior to the adoptio=
n of
zoning in Berlin, with a working area of approximately 40 to 43 acres
exposed. Appellee-Applicant<=
/span>=3Ds application and witnesses describe the existing opera=
tion
as operating under some existing municipal zoning approvals,
The present hours of operation are from 7:00 a.m. to 5:=
30
p.m. Monday through Friday, and 7:00 a.m. to 12:00 noon on Saturday, with =
an
allowance of five emergency Sunday days of operation annually. Appellee-Applicant does not propo=
se any
change to these hours of operation.
While the operation is not restricted seasonally, most of the mater=
ial
is distributed from the project property from mid-spring through the summer
months to mid-fall.
The business uses two 3-axle, 14-cubic-yard trucks owne=
d by
Appellee-Applicant to deliver material to customers; these trucks return e=
mpty
to the project site.
Appellee-Applicant=3Ds business owns other trucks at other nearby locations =
that
may be brought to the project site for use when transporting material to l=
arger
job sites. Customers may also pick up material at the site in their own
vehicles, which may range in size from passenger vehicles and pick-up truc=
ks to
commercial size trucks.
Tractor-trailer vehicles are not permitted except to transport mach=
inery
to or from the project site. If
only 14-cubic-yard trucks are used, removal of the allowed 20,000 cubic ya=
rds
of material in a year would take approximately 1400 truck trips.
Of the material removed from the site, only up to
approximately 5% is transported south on Chandler Road to the Mad River Va=
lley
via Cox Lane. Approximately =
45% to
50% is transported to the north on Chandler Road to Route 12 north;
approximately 45% to 50% is transported to the south via Lovers Lane to Ro=
ute
12 south. The empty trucks r=
eturn
on the same routes. Approxim=
ately
80% to 90% of the volume of the hauling is done by Appellee-Applicant=3Ds trucks. While
the material may be transported to different customers over time, the
percentages in each direction have remained stable and would be expected t=
o be
the same under the current proposal.
Accordingly, approximately 700 truck trips per year[3]
associated with Appellee-Applicant=3Ds project would use the portion of Chandler Road runnin=
g by
Appellants=3D property.
Appellee-Applicant has acquired an additional 7<=
span
style=3D'font-family:"WP TypographicSymbols";mso-bidi-font-family:Shruti;
mso-char-type:symbol;mso-symbol-font-family:"WP TypographicSymbols"'>2-acre parcel southwesterly of and adjacent to the 45-ac=
re
property covered by its existing permits.=
The additional parcel is bounded on the west by Chandler Road and o=
n the
south by the Nelson property.
Because under '4.3 the new or expanded or resumed extraction of earth
resources is a conditional use in any district, Appellee-Applicant may app=
ly
for conditional use approval of an earth extraction operation on any porti=
on of
the new parcel as well as on the 45-acre parcel. It therefore does not fall under =
the
nonconforming use analysis of '3.11 or In re Casella Waste Management, Inc., 20=
03 VT
49, 175 Vt. 335 (2003).
In the present application as revised during trial,
Appellee-Applicant has applied for conditional use approval of the followi=
ng
two changes to its existing operations: to allow it to conduct operations =
on 32 acres[4]
of the newly-added property, and to allow the drilling and blasting of roc=
k on
the combined property.
Appellee-Applicant intends to continue its existing
operations, that is, the already-permitted sand and gravel extraction and =
the
already-permitted crushing, washing and sorting of the extracted material.=
Crushed rock (with the individual=
pieces
having at least three facets or flat surfaces) has a higher value as aggre=
gate
than does rounded rock or gravel of the same size. Appellee-Applicant therefore alre=
ady
conducts a crushing operation on the site to process the natural (so-calle=
d >bank run=3D) gravel into that form, using three gravel crushers, a=
wash
plant, and appropriate sedimentation basins. Appellee-Applicant also operates =
four
bucket loaders on site to remove materials from the working face and fill =
the
crushers and load trucks. A
bulldozer or backhoe may also be used from time to time to remove topsoil =
from
a new area or to manage the stockpiling of materials on site.
If all the crushing equipment were operating at the same
time, it would produce a noise level of approximately 92.5dBA at a distanc=
e of
ten feet from the source, which attenuates due to distance to 68.5 dBA at a
distance of 160 feet from the source and to 62.5 dBA at a distance of 320 =
feet
from the source, which is a level equivalent to that of normal
conversation. The operation =
will
therefore be able to meet a standard of less than 70dBA at the property
boundary and 50 dBA at the existing neighboring residences, simply based o=
n the
placement of the location of this equipment within Area A.
The existing sand and gravel extraction operation has l=
eft
portions of the working area of the site with outcroppings of exposed ledg=
e. As additional sand and gravel is =
removed
from the existing working area, more ledge will be exposed, leaving a rough
surface described as a >moonscape=3D, unsuitable for later use for other purposes. After all the loose sand and grav=
el has
been removed from the working area, unless the ledge outcroppings are also
removed, it will not be possible to reclaim the area for any reasonable fu=
ture
potential use requiring a flat or gently rolling surface.
As shown on Exhibit 2, as modified by Exhibit 25,
Appellee-Applicant proposes to divide the working area of the property into
three areas, labeled Areas A, B and C.&nb=
sp;
Area A is the 10.5-acre central area of the pit; Area B is a 7-acre=
area
northerly of Area A, and Area C is the remaining area southerly of Area A,
including the 32-acre portion of the new property proposed to be added =
to
the working area.
Appellee-Applicant proposes to drill and blast (quarry)=
the
remaining exposed areas of ledge in Areas A and B, to reclaim Area B, and =
to
excavate and drill and blast in Area C, in the following sequence. If all the material were to be bl=
asted
(that is, if none of the removed material were sand and gravel), a maximum=
of
approximately 40 hours of drilling per year and a maximum of five half-sec=
ond
blast shots per year would be necessary to quarry the allowed 20,000 cubic
yards per year. Appellee-App=
licant
proposes to limit the drilling and blasting to no more than 20,000 cubic y=
ards
per year, as well as abiding by the existing permit limitation of no more =
than
that amount of material removed from the project site per year (that is,
allowing for some stockpiling of excavated material on site).
Prior to drilling and blasting, Appellee-Applicant prop=
oses
to conduct a pre-blast survey as allowed by owners of neighboring properti=
es
(see Exhibit 16), and to conduct the blasting as shown on Exhibit 20, which
will prevent excess ground vibration that might affect any neighboring wat=
er
wells.
The noise from the drilling equipment is at its maximum=
when
the drill bit remains above ground and just as it engages with the rock.
Appellee-Applicant proposes to commence drilling and
blasting operations in Area A, and to continue to conduct the crushing, wa=
shing
and stockpiling operations in Area A, in the area in which the portable cr=
usher
is now located. Area A is op=
en at
present, and will take approximately two years of extraction to reach its
proposed final contours. San=
d and
gravel extraction may continue in Areas B and C, but is not proposed to ex=
tend
onto the 32 acres of=
the
new portion of the property until Area B has been reclaimed.
Appellee-Applicant proposes then to reclaim the western=
bank
of Area A, closest to Chandler Road, and to reclaim any areas along the
easterly side of Area A not needed for the overall operation of the site, =
before
commencing drilling and blasting operations in Area B. During operations in Areas B and =
C, the
remainder of Area A is proposed to remain open and to contain the crushing,
washing, sorting and stockpiling functions of the overall operation, as we=
ll as
the office. This is essentia=
lly the
area in which those operations are conducted at present.
In addition, the slope at the northerly limit of Area B=
is
proposed to be reclaimed prior to commencing drilling and blasting operati=
ons
in Area B. After reaching the proposed final contours of Area B,
Appellee-Applicant then proposes to reclaim Area B, except for the access =
road
running through Area B, with=
in 12
months of beginning any drilling and blasting in Area C.
The quarrying operation in Area C is proposed to commen=
ce at
the exposed faces in the existing pit, with benching of the quarry face to=
be
maintained as part of the continuing operation. Any proposed screening and chain =
link
safety fencing at the top of the pit is to be installed prior to the remov=
al of
any vegetation for the expansion of the working face of the pit. Reclamation of final grades in Ar=
ea C is
proposed to occur as those grades are reached, concurrently with the
continuation of quarrying.
An estimated 300,000 to 500,000 cubic yards of sand and
gravel remain on the site for excavation, which would take 15 to 25 years =
at
the present rate of extraction, even without approval of the proposed dril=
ling
and blasting. An estimated 9=
00,000
cubic yards of rock, including the ledge outcroppings, exist within the
proposed project area for removal before reaching the final reclamation
contours.
As well as the reclamation plan and the hours of operat=
ion
and extraction rate described above, Appellee-Applicant proposes to comply=
with
the following conditions, taken primarily from the conditions imposed by t=
he
DRB, as revised in testimony at trial:
Noise limitation: Operati=
on of
the project is to be conducted so that the maximum noise level at any prop=
erty
line does not exceed 70 dBA, and so that the maximum noise level at >places of usual occupancy=3D
Duration and seasonal
limitations: The DRB imposed a duration of fou=
r years
from the first spring following receipt of approval of all necessary state=
and
local permits and approvals, subject to renewal, which Appellee-Applicant =
now
proposes to accept as a condition, as it did not itself appeal that condit=
ion
to seek a permit duration the same as the Act 250 permit. Drilling and blasting shall not e=
xceed a
total of five weeks within the time period between November 1 through Apri=
l 30
of each year. A pre-bl=
ast
survey must be performed on all consenting abutting properties and neighbo=
ring
properties with structures or wells within 500 feet of the project property
boundaries, and shall be filed with the DRB prior to initial blasting. The owners of all abutting and ne=
ighboring
properties shall be notified in writing at least two weeks in advance of t=
he
commencement of blasting each year.
Safety: Before =
work
begins in Area C, a guardrail along Chandler Road is to be installed in
accordance with Vermont Agency of Transportation (VTrans) standards, from
a point fifty feet northerly=
of the
southerly boundary of the Miller property to the southerly limit of the pr=
oject=3Ds excavation. In
addition, a six-foot-high chain link fence and warning signs is proposed t=
o be
installed between Chandler Road and the edge of the steep quarry faces.
Interested Parties Nelson are not adversely affected by=
the
existing operations on the project site, either at their house, on their
property surrounding their house, or at a so-called treehouse constructed =
on
stumps in the woods to the east and slightly to the north of their house.<=
span
style=3D'mso-spacerun:yes'> Because the 32 acre portion of the new property on which operations a=
re
proposed is screened from the Nelson property by a wooded knoll of land th=
at is
now proposed to be left in place by the present application, with the chan=
ged
area of operation they will continue not to be adversely affected at their
house or surrounding property. The
proposed drilling and blasting will not adversely affect them, as it will =
not
be in their line of sight of the operation below the cliff face. Although a line of sight may deve=
lop
from the treehouse into a small portion of the westerly area of Area C, the
treehouse is not a residence and is not used appreciably during the time of
year when drilling and blasting will be allowed to occur. Nor should the value of the Nelson
property be adversely affected, as compared with its value as already affe=
cted
by Appellee-Applicant=3Ds present operation.&n=
bsp;
The two to five blast events a year, occurring in a limited period =
of
five weeks during the winter months, will not affect the perception of the
Nelson property. The Nelson
property is a beautiful residential property located adjacent to an existi=
ng
earth extraction operation operating at a rate of 20,000 cubic yards a yea=
r,
and it remains so.
Horses are a herd animal with a strong flight instinct =
when
faced with an unexpected and frightening stimulus, which may range from the
bang from an empty truck or boat trailer going over a bump, to a flapping =
piece
of cloth or roofing material. More
competitive horses, such as some of those boarded at Penmar Farm, tend to =
be
more highly strung. To learn=
to ride
safely, both the rider and the horse must be trained to the extent possibl=
e so
that the rider=3Ds direction to the horse will override the horse=
=3Ds instinct to bolt.&nb=
sp;
Riding on a public roadway that has vehicular traffic is less safe =
than
riding on private trails or in an arena, and is only recommended after sui=
table
training.
There is no question that Appellants=3D horse farm and training establishment has been affecte=
d by
existing traffic on Chandler Road, and in particular by empty trucks trave=
ling
to Appellee-Applicant=3Ds site, which may produce loud bangs when the road surf=
ace
is irregular. The drivers of=
Tucker
trucks are more familiar with the potential for problems and therefore ten=
d to
drive more slowly and more courteously than drivers of customers
However, nothing about the application before the Court=
in
the present appeal, which is limited to the addition of 32 acres to the working area of the pit and the productio=
n of
quarried material as well as >bank run=3D sand and gravel, will affect or change the existing ef=
fect
Under '4.3 of the Zoning By-laws, the extraction of earth reso=
urces
is allowed in any zoning district in the Town of Berlin, if it meets the
standards for conditional use approval in '5.6 and also meets the additional standards for extract=
ion
of earth resources in '4.3(B)(5) and (6).&nbs=
p;
We have grouped the standards together as follows for ease of refer=
ence. =
As
Appellee-Applicant is operating and is entitled to continue operating unde=
r its
existing approvals, the appropriate analysis for this appeal is whether the
proposed changes in operation would adversely affect any of the applicable
standards, as compared with the existing operation as now allowed.
Because the amount of material removed from the project=
site
will not change, and the percentages of direction of travel of the trucks =
will
not change
With the revised working area retaining the wooded knoll
adjacent to the Nelson property, and following the proposed pre-blast surv=
ey,
blasting plan, noise limitations, hours of operation, and seasonal restric=
tions
on the drilling and blasting, the proposal to add blasted rock to the
Appellee-Applicant=3Ds sand and gravel extraction operation and to extract f=
rom
an additional 32-acre portion of the property will have no adverse effe=
ct on
the essential character of the area and neighboring uses (including existi=
ng
uses), '5.6(A)(12), nor will it adversely affect neighboring
properties or property values. '4.3(B)(6).
With the blasting plan and pre-blast survey as proposed=
, and
a peak particle velocity (PPV) limit of 1.0 inch per second, the applicati=
on
before the court will not adversely affect any groundwater supplies. '4.3(B)(6)
Under ''4.3(C) and 5.6(B), in granting conditional use approval=
for
the extraction of earth resources, the DRB, and hence this Court in this <=
u>de
novo proceeding, may impose reasonable conditions and safeguards as
necessary to implement the purposes of the zoning regulations, including t=
hose
specifically listed. Based o=
n the
foregoing, it is hereby ORDERED and ADJUDGED that Appellee-Applicant=3Ds application for conditional use approval is GRANTED, =
with
conditions as stated in the application as revised during trial and as
discussed and imposed in this decision.&n=
bsp;
Appellee-Applicants shall prepare a judgment order containing all
conditions and references to exhibits, approved as to form by the other
parties.
Dated at Berlin, Vermont, this 17th day of October, 2005.
______________________________________
Merideth Wright
Environmental Judge
&nbs=
p;
[1] The argument that earth extractio=
n is a
non-conforming rather than an allowed use, because it is not listed in the
district, would make surplusage of '4.3. Rath=
er,
that section recognizes that deposits of earth resources may be found in a=
ny
zoning district, depending on the local geology, and that their extraction=
may
therefore be allowed if the extraction operation meets both the conditiona=
l use
standards and the additional standards of '4.3, and subject to any necessary conditions allowed to=
be
imposed under that section.
&nbs=
p;
[2] No exhibit was presented containi=
ng the
existing approval; neither was there any evidence of the absence of such
existing zoning approval.
&nbs=
p;
[3] Assuming for the purposes of esti=
mation
that these take place during a seven-month period from mid-spring to mid-f=
all,
100 truck trips per month, or approximately five full trips out and five e=
mpty
return trips per working day pass by Appellants=3D
&nbs=
p;
[4] The 32 acre portion of the new property on which operations a=
re
proposed is screened from the Nelson property by a wooded knoll of land th=
at is
proposed to be left in place by the present application.
&nbs=
p;
[5] For the same reason, we will requ=
ire
that the fence be extended around the southerly edge of the excavation, be=
tween
the southerly property boundary and any steep quarry faces.
&nbs=
p;
[7] In order to insure that this rema=
ins the
case, we will impose the following conditions: (1) that Appellee-Applicant=
send
no more than 50% of its truck trips going and returning via Chandler Road =
to
the north; (2) during the first full year of operation under this approval,
that Appellee-Applicant record the approximate volume of material and dire=
ction
of travel of each customer=3Ds pick-up of material from the project site, and report=
that
record to the Town; and (3) that Appellee-Applicant instruct its drivers a=
nd
inform its customers to fasten tailgates before traveling empty on Chandler
Road, to avoid the use of so-called >jake=3D brakes in the vicinity of Penmar Farm, and to inform t=
hem
of the requirements of 23 V.S.A. '1272 regarding operation in the vicinity of horses.
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