STA= TE OF V= ERMONT

ENVIRONMENTAL COURT

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= Appeal of Walters, et al. &nb= sp; = = } = = Docket No. 206-11-03 Vtec

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Decision and Order on Cross-Mo= tions for Summary Judgment

In the above captioned matter,= Appellants appealed from a decision of the Development Review Board (DRB) of the Town= of Randolph (Town) granting Appellee-Applicant Vermont Pure Springs, Inc.R= 17;s application for an amendment to their 1993 conditional use permit and site= plan approval. Appellants are represented by Stephanie J. Kaplan, Esq.; Appellee-Applicant[1] is represented by Michael J. Marks, Esq.; and the Town is represented by Pete= r M. Nowlan, Esq. W. Hugo Liepmann appeared as an interested person and represents himself.=

This appeal is “on the record” as the Town has adopted and implemented the procedures neces= sary for such appeals, pursuant to 24 V.S.A. § 4471 and § 4472. The parties have submitted the me= rits of this appeal for the Court’s consideration by cross-motions for summa= ry judgment.[2] Of the issues presented in Appellants’ Statement of Questions, the parties have narrowed the contested issues to the following:

(a) Whether Appellee-Applicant= ‘s operation can properly be considered a conditional use;<= /p>

(b) If the application is not = for a conditional use permit, whether Appellee-Applicant’s use qualifies f= or review under Zoning Regulations (Regulations) § 2.4.3;

(d) In the alternative, if the application is not for a conditional use permit, whether Appellee-Applican= t’s application should be considered under Regulations § 2.5.4 for an expansion of a non-conforming use, and whether that section is unconstitut= ional;

(e) Whether the DRB erred in g= ranting approval for trucks with a higher maximum gallonage than was requested in = Appellee-Applicant’s application or discussed at the hearings; and

(f) Whether the DRB erred in g= ranting approval for different hours of operation—including a higher number = of truck trips during the daytime—than was requested in the written application or discussed at the DRB hearings.

Factual Background<= /b>

The record [3] for this appeal reveals the following undisputed material facts:

1.         Appellee-Appli= cant operates spring water collection and bottling facilities in the Town of Randolph<= /st1:City>. Appellee-Applicant presently oper= ates two springs off of Rogers Road near the Village of Randolph = Center in the Rural Use-5 Acre (RU5) zoning district.

2.         Appellee-Applicant&= #8217;s springs supply water to its collection site, located approximately 0.7 mil= es down Rogers Road, an unpaved Class 3 town highway, northerly of Vermont = Route 66.

3.         Appellee-Appli= cant currently conducts its business operations in the following manner:

a.        = Appellee-Applicant collects water that percolates up from the springs in holding tanks. Under the pre-existing permit, tan= ker trucks with an 8,000-gallon capacity are filled with the spring water at t= he Rogers Road site.

b.        = The filled trucks then drive approximately 3.5 miles to Appellee-ApplicantR= 17;s bottling facility off Vermont Route 66, near Interstate 89. The bottling facility acts as a c= ontainment, distribution, and storage warehouse where the bottled water is shipped for commercial, wholesale or retail sale throughout Vermont and New England.

c.        = After being emptied at the bottling facility, the trucks return to the spring si= te via Route 66 and Rogers Road to be refilled for the return= trip to the bottling plant.

4.         In addition to the two springs already in use, Appellee-Applicant proposes to develop four new springs at their 65.7-acre property on Rogers Road. Appellee-Applicant also proposes = to construct two additional 15,000-gallon holding tanks and a truck turnaround area.

5.         Appellee-Appli= cant first applied in 2002 for an amendment to its pre-existing conditional use permit to increase the volume of spring water it collected from the Rogers Road site for distribution from it= s Route 66 facility. After the DRB a= pproved their application, Mr. Walters and others filed an appeal with this Court.= See Appeal of Walters, et. al.<= /u>, Docket No. 234-10-02 Vtec (Vt. Envtl. Ct., June 13, 2= 003). Before that appeal was heard on i= ts merits, however, Appellee-Applicant announced its intention to revise its = 2002 application and resubmit it for review by the DRB. Appellee-Applicant’s revised application for an amendment to its
pre-existing conditional use permit was approved by the DRB on October 15, 2003.[4] Appellants’ appeal of that = DRB approval is the subject of this docket number.

6.         Appellee-Appli= cant’s 2003 revisions to its previous application addressed concerns about truck traffic between its Rogers Road property and its bottling pla= nt, including the frequent use of large tanker trailers. Appellee-Applicant proposed using= smaller single-bodied trucks that do not have a separate trailer or pivot point.

7.         The capacity of the proposed trucks is slightly greater than half the capacity= of trucks currently in use. App= ellee-Applicant also proposed increasing the number of truck trips between the springs on Rogers Road and the bottling plant from 160 to 240 round-trip truck trips = per week (or from 320 to 480 one-way weekly truck trips). See Appellants’ Ex. 5, at 2= . Appellee-Applicant’s revised application would result in a net reduction from its 2002 application in t= he proposed total gallons per week that would be trucked from the springs to the bottl= ing facility.

8.         To address the effect of the increase of truck trips on neighborhood traffic,= Appellee-Applicant proposed running a significant number of the truck trips at night when few= er residents use Rogers Road. Appellee-Applicant’s propos= al included daytime truck trips, but provided that no trucks would use Rogers Road between 6:00 A.M. and 8:00 A.M. and between 3:00 P.M. and 6:00 P.M., when neighboring residents a= nd the general public travel on the road most frequently.

9.         Testimony at the public hearings and evidence from the record show that the use of smaller trucks, either the 4,200-gallon trucks proposed by Appellee-Applic= ant or the 5,000-gallon trucks referred to in Appellants’ traffic report= , may improve safety on Rogers Road, though that increase in safety may be offse= t somewhat by a corresponding increase in number of truck trips due to the use of sma= ller, single-bodied trucks.

10.       A significant amount of testimony was offered at the public hearings in opposition to Appellee-Applicant’s proposed nighttime trucking hours. This testimony establ= ished that nighttime trucking is not typical of the character of the area near Appellee-Applicant’s springs. Testimony further demonstrated that Appellee-Applicant’s neig= hbors would prefer that the trucks operate during the day because daytime traffi= c is more reasonable, see Testimony of Richard Osborn, Aug. 19, 2003 Hearing, T= ape 1, Side A, at 650–60,[5] because “everyone has traffic during the day,” Testimony of Robert Whi= te, July 17, 2003 Hearing, Tape 2, Side B, at 243, and because people “e= xpect a certain amount of traffic during daylight hours,” id. Side = A, at 923–44.

11.       Rogers Road varies in width from eighteen to twenty-two feet as one travels north= erly from Route 66. However, that stretch of the road is also relatively straight and flat, with the excepti= on of a ninety degree turn to the east immediately after Appellee-Applicant̵= 7;s access drive, which is also at the foot of a short but steep grade. Appellee-Applicant proposes some = minor changes to the access drive in order for it to remain stable, but those ch= anges are not related to its general design, nor do they affect the drive’s intersection with Rogers Road.

12.       The DRB determined that truck traffic on Rogers Road from Appellee-Applicant’= ;s operation does create some dust, but the Town controls dust on its roadway= s. The DRB found that any dust creat= ed by Applicant’s increased operation does not result in material health hazards or damage to property.

13.       Some testimony was offered to the DRB that Rogers Road had sections with substandard= road widths. It is undisputed tha= t the road also curves sharply to the east near Appellee-Applicant’s access drive. Some residents report= ed hazardous conditions during mud season and some “close calls.”= However, further testimony sugges= ted that Rogers Road is not made unsafe by Appellee-Applicant’s proposed increase in truck traffic.

14.       Notwithstanding mud season conditions typical of many unpaved roads in <= st1:place>Vermont and those close encounters, t= he DRB determined that “the road capacity was adequate for the proposed use,” and that the proposed increase in truck traffic on Rogers Road “does not require any a= dditional maintenance, only routine maintenance that is typical for other similar roads.” DRB Decision a= t 5, 7. As the DRB noted in its F= indings of Fact, “Should there be burdens for road maintenance, the Town may= have the ability to assess fees prior to issuing overweight vehicle permits, wh= ich is done on an annual basis.” DRB Decision at 7, Finding 33.&nbs= p; Moreover, the DRB determined, “The roads in Randolph Center, including Rogers Road, have all seen an increase in truck traffic over the years” not associated with Appelee-Applicant’s business operat= ion. <= span style=3D'font-size:12.0pt;line-height:150%'>Id.

15.       In 1973 there were only two residences on Rogers Road between Appellee-Applicant= 217;s springs and Vermont Route 66, and there were only three farms in the area.= In 1993, when Appellee-Applicant&= #8217;s springs were first developed, there were still only two residences along t= hat stretch of Rogers Road and three farms in the area.<= span style=3D'mso-spacerun:yes'> Since 1993, three more houses were constructed while the three farms remained. The DRB described the character o= f the area as “a mixture of rural, agricultural, commercial and residential uses with much open land.” DRB Decision, at 7. Testimony at the public hearings demonstrated that Appellee-Applicant’s operation, including the corresponding truck tr= affic on Rogers Road, has been part of the character of the area since 1993.

16.       After three public hearings on the record on June 17, July 17, and August 19, 20= 03, the Town’s DRB closed public hearings, held a deliberative session, = and then approved Appellee-Applicant’s site plan and conditional use permit expansion, with conditions, on October 15, 2003.

Discussion

Appellant= s first question whether Appellee-Applicant’s spring water development can properly and constitutionally be considered as an extension of its previou= sly granted 1993 conditional use permit. At the outset, we note that this Court previously upheld the Town D= RB’s decision to treat Appellee-Applicant’s previous application as an amendment to the 1993 conditional use permit. See Appeal of Walters, et al.<= /u>, Docket No. 234-10-02 Vtec (Vt. Envtl. Ct., June 13, 2= 003). The Court reasoned that the applic= ation must be considered as an amendment to the conditional use permit because the original, unappealed 1993 conditional use permit could not be challenged, directly or indirectly, and because that application did not add a differe= nt use or change the use category of the site.

The Court’s reasoning regarding Appellee-Applicant’s prior similar application for the same property is persuasive here, as the present application does not propose adding a new use, nor does it propose a chang= e in use. The additional spring development proposed is neither a use not specifically permitted under Reg= ulations § 2.4.3, nor is it an expansion of a non-conforming use under Regulat= ions § 2.5.4. Rather, it is an appl= ication to amend the 1993 conditional use permit.= Appellee-Applicant’s 1993 conditional use permit is still val= id, and although Appellee-Applicant’s spring water production use is not specifically enumerated in the Regulations, the DRB was correct in not reevaluating the use because the 1993 permit was not appealed and therefor= e its validity cannot be challenged, directly or indirectly, in this proceeding.=

Moreover, Appellee-Applicant’s present application cannot be considered as an = expansion of a non-conforming use under Regulations § 2.5.4 because the use satisfies neither the Regulations’ definition of a “non-confor= ming use” contained in § 1.3.42, nor the applicable statutory defini= tion in 24 V.S.A. § 4408(a)(1) (2003).&nb= sp; Appellee-Applicant’s use is not non-conforming under the Regulations because it did not legally exist upon the effective date of the Regulations pertaining to that use, December 2= 8, 1988. The use also does not satisfy the= state statute’s definition because it did not exist prior to the enactment= of the Town’s Regulations. 24 V.S.A. § 4408(a)(1) (2003).[6] Because this application was prop= erly considered as an amendment to an existing conditional use permit, we do not reach the questions of whether Appellee-Applicant’s use qualifies un= der either § 2.4.3 or § 2.5.4, nor do we address the constitutionali= ty of those sections.

Appellant= s next contest the condition on Appellee-Applicant’s permit regarding the a= pplicable truck size for hauling spring water from the Rogers Road springs to the bottling plant= . Appellants allege that substantial evidence does not exist in the record to justify the permit condition requ= iring that “applicant shall only use straight-bodied trucks (no pivot poin= t for a trailer on the back) with a maximum gallonage of 5,000 gallons ± = 5% for head space in the tanker.” DRB Decision, at 11, Condition B.1. Appellants suggest that there was no justification for the DRB̵= 7;s authorization of 5,000-gallon trucks because Appellee-Applicant and the DRB only heard testimony regarding single-bodied trucks with a 4,200-gallon capacity.

In an on-= the-record appeal, the factual findings of the administrative body are given great we= ight, although they are not immune from scrutiny. The court must determine if subst= antial evidence exists in the record as a whole from which the factual findings o= f the DRB might reasonably be inferred. See In re Petition of Town of Sherburne, 154 Vt. 596, 604-05 (1990); Appeal= of Lussier and Noe, Docket No. 116-5-02 Vtec (Vt. Envtl. Ct., Sept. 16, = 2002). If there was conflicting evidence= , the DRB is the body charged with weighing this evidence. This Court will not disturb a DRB&= #8217;s factual findings if the findings are supported by substantial evidence in = the record as a whole. See Ap= peal of Doyle, Docket No. 100-5-02 Vtec (Vt. Envtl. Ct., Jan. 21, 2= 003).

In review= ing the record from the DRB, we find substantial evidence in the record as a whole= to justify the DRB’s imposition of a condition limiting the use of truc= ks to those with no more than 5,000 gallons of storage. In this instance, there is no conflicting evidence on this point. Since the only evidence pertaining to the size of trucks presented = at the hearings related to single-bodied trucks with either 4,200 or 5,000-ga= llon capacity, we find the DRB’s condition regarding truck capacity reaso= nable and adequately supported by the record.&n= bsp; While Appellee-Applicant, through their representative Jack Baker, = only testified to using 4,200-gallon trucks to transport water from the Rogers = Road springs to the bottling plant, Appellants’ own traffic study, prepar= ed by Trudell Consulting Engineers, Inc., refers specifically to Appellee-Applic= ant using either “4,200 or 5,000-gallon single unit trucks.” See Attach. 2 to Appellee’s= Mem. in Opp’n to Mot. for Summ. J., at 1; see also DRB Ex. O, at 1.

On July 17, 2003, there was substantial testimony regarding Appellants’ traffic study = from the report’s reviewer, John Pirowiski, P.E., from which the DRB could conclude that truck capacity not exceeding 5,000 gallons was warranted. Appellants seem to suggest that t= he 800-gallon difference in capacity has some material significance. Our review of the record did not = reveal a factual basis for this assertion. In fact, our review of the record does not reveal that this asserti= on was even made in the proceedings before the DRB.

Because t= his is an application to amend a conditional use permit, 24 V.S.A. § 4407(2) allows the DRB to “attach such additional reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chap= ter and the zoning regulations.” = Id. Given that evidence was presented on both 4,200 and 5,000-gallon capacity trucks, the DRB’s condition relating to truck capacity was supported by substantial evidence. In fact, it appears wise to set a maximum threshold as to both capa= city and trips of the trucks. It sometimes becomes problematic when a regulatory body sets a specific amoun= t, rather than a maximum or minimum limit in its permit conditions. Here, the record is sufficient to support the maximum limit on the gallonage capacity of the trucks traveling between Applicant’s facilities.

Appellant= s also allege that the DRB erred in approving hours different from those Appellee-Applicant proposed in its application. Appellant further argues that the= evidence presented regarding the trucks’ hours of operation was not substanti= al enough to support the DRB’s conclusion that Appellee-Applicant’= ;s trucks should only run from 6:00 A.M.–9:00 P.M Monday-Friday and from = 9:00 A.M.–9:00 P.M. on Saturday and Sunday.

The record reveals that Appellee-Applicant’s representatives, apparently believ= ing that they were responding to the wishes of the neighbors, initially propos= ed operating the water hauling trucks at times other than when Rogers Road was used most frequently by neighbors: from 6:00 A.M. to 8:00 A.M. and from 3:= 00 P.M. to 6:00 P.M. Following = this logic, Applicant initially proposed running trucks from 8:00 A.M.–3:= 00 P.M and from 6:00 P.M.–6:00 A.M. Monday-Friday; all day Saturday to = 6:00 A.M. Sunday morning; and from 8:00 P.M. Sunday night to 6:00 A.M. Monday.<= span style=3D'mso-spacerun:yes'> The error in this logic became ve= ry apparent at the DRB hearings, where several residents appeared to protest Appellee-Applicant’s proposed nighttime trucking operations, alleging among other things that nighttime trucking created a significant disturban= ce and was contrary to the character of the area.

The notab= le opposition to the nighttime trucking regime and the considerable evidence relating to the neighbors’ expectations of daytime trucking activiti= es provide ample support for the permit condition prohibiting trucking after = 9:00 P.M and limiting Appellee-Applicant’s trucking to operational hours = other than in the middle of the night. Testimony at the hearing established that nighttime trucking would = have an adverse effect on the character of the area, see DRB hearing tapes of J= une 17, 2003, tape 1, side A at 872; July 17, 2003, tape 2, side A, at 923R= 11;44, side B, at 243; August 19, 2003, tape 2, side A, at 814–end, and demonstrated that residents of Randolph Center along the trucking route fr= om the Rogers Road springs to the bottling plant preferred traffic during hou= rs that would not disrupt their sleeping.&nb= sp; See DRB hearing tapes of July 17, 2003, tape 2, side A, at 923̵= 1;44 (in particular, Robert White stated that people “expect a certain am= ount of traffic during daylight hours.”); tape 2, side B, at 243; August = 19, 2003, tape 1, side B, at 506, 650–60, 675; tape 3, side A, at 125.

While substantial evidence was presented in opposition to the proposed nighttime trucking, substantial evidence also indicated that Appellee-Applicant̵= 7;s trucks when run during daytime hours are part of the character of the area= . Therefore, we find that the condi= tion limiting Appellee-Applicant’s trucking hours is reasonable under 24 V.S.A. § 4407. There is substantial evidentiary support for the trucking hours incorporated into Appellee-Applicant’s amended conditional use permit.

The langu= age of 24 V.S.A. § 1204 also does not support Appellants’ argument tha= t the section requires the notice of a hearing to state the specific subject mat= ter of the testimony (as opposed to the subject of the hearing generally) and the specific witness who will be testifying at the hearing. The plain meaning of that unambig= uous section of the Municipal Administrative Procedures Act is that the notice = of a hearing only requires notice of an opportunity for all interested persons = to be heard, and compliance with 24 V.S.A. § 4447, which requires that noti= ce “be given not less than 15 days prior to the date of hearing” by the met= hods enumerated in that section. = 24 V.S.A. §§ 1204(a), 4447(a).&nbs= p; As long as all parties have an opportunity “to respond and pr= esent evidence and argument on all issues involved,” the notice provision = is satisfied. Id. at § 1204(b). Furthermore, Appellants’ own traffic study, referring to the use of 5,000-gallon trucks, contradicts th= eir argument that they did not have an opportunity to present evidence regardi= ng the effects of that particular size of truck. See Attach. 2 to Appellee’s = Mem. in Opp’n to Mot. for Summ. J., at 1; see also DRB Ex. O, at 1. Thus, not only did the DRB comply= with the requirements of the Municipal Administrative Procedure Act for an on t= he record appeal to amend a conditional use permit, but substantial evidence also ex= ists in the record to support our conclusion that all parties had a sufficient opportunity to be heard on all material aspects of Appellant’s application to amend its permit.

According= ly, based on the foregoing, it is hereby ordered and adjudged that Appellants’ motion for summary judgment is DENIED; Appellee-Applicant’s motion f= or summary judgment is GRANTED. The DRB’s decision on Appellee-Applicant’s amended site plan and c= onditional use permit is AFFIRMED, as all conditions specifically challenged by Appel= lants in their pending motion are supported by substantial evidence in the recor= d.

The Court= believes that it has addressed all issues presented for consideration by the parties’ pending motions, but is also aware that certain issues pres= ented in Appellants’ Statement of Questions may not have been addressed. In that regard, Appellants are to= submit within thirty (30) days (i.e.: no later than Friday, No= vember 4, 2005)= a brief detailing the remaining issues and Appellants’ factual and leg= al support for raising those issues. Any responsive motions shall be filed within fifteen (15) days of Appellants&#= 8217; submission. If Appellants ch= oose not to submit this filing within thirty days, the Court will thereafter is= sue a Judgment Order, thereby concluding this appeal.

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            =             = Done at Berlin, Vermont, this 5^th day of O= ctober, 2005.

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        =             &n= bsp;           &nbs= p;            =             &n= bsp;           &nbs= p;         =     Thomas S. Durkin, Environmental Judge