Brisson Stone LLC, Allan Brisson and Michael Brisson v. Town of Monkton and Claudia Orlandi
143 A.3d 550
Vt.2016Background
- Applicants (Allen & Michael Brisson and Brisson Stone, LLC) sought a permit from the Town of Monkton to operate a commercial gravel extraction operation on property containing ledge rock, proposing to drill, blast, crush, and screen ledge to produce saleable gravel.
- Monkton’s zoning administrator referred the application to the Developmental Review Board (DRB); adjoining landowner Claudia Orlandi participated and later intervened.
- The DRB held multiple hearings (Apr–Nov 2012, Jan 2013), delayed decision-making, and ultimately denied the application (written denial Feb 26, 2013), concluding § 564 permits removal of naturally occurring gravel but not quarrying/blasting ledge to create gravel.
- Applicants asserted the DRB’s delays triggered deemed approval under 24 V.S.A. § 4464(b)(1) and separately appealed the denial; intervenor filed a cross-appeal and sought summary judgment that the proposed use was not permitted.
- The Environmental Division granted intervenor’s summary judgment on the zoning interpretation and rejected the deemed-approval claim; applicants appealed to the Vermont Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 564 permits quarrying/blasting ledge rock and crushing it to produce gravel | Applicants: “extraction” and “gravel” are broad; producing gravel by quarrying/blasting is included; subsections (e.g., blasting, slope work, machinery) show intent to allow these methods | Monkton/Intervenor: § 564 (citing former 24 V.S.A. § 4407(8)) regulates removal of naturally occurring soil/sand/gravel and excludes mining/quarrying; any use not listed is prohibited | Court: Affirmed Environmental Division—§ 564 permits removal of naturally occurring gravel only; quarrying/blasting ledge to create gravel is not authorized |
| Proper construction method for § 564 | Applicants: industry definitions treat gravel by particle size; “extraction” can include forcible removal | Monkton: plain-meaning, caption, statutory incorporation, and subdivisions support limiting § 564 to natural deposits | Court: Use plain-meaning construction, caption, and incorporation of former § 4407(8); regulatory text reasonably distinguishes natural gravel from quarried/crushed rock |
| Whether the DRB’s actions triggered deemed approval under 24 V.S.A. § 4464(b)(1) | Applicants: delays and continuances meant the application was formally adjourned earlier and thus deemed approved | Monkton: the DRB properly continued hearings and issued a decision within the 45-day period; no deemed approval | Court: Environmental Division held no deemed approval; Supreme Court did not need to decide the issue on merits because it affirmed on the zoning merits, but held that deemed-approval, if applicable, would not bar an interested party’s timely appeal |
| Does deemed approval preclude an interested party from appealing on the merits | Applicants: a deemed-approved permit would be effective and could prevent appeals | Intervenor/Monkton: statute’s purpose is to permit appeals; deemed approval is to prevent undue delay, not to foreclose appeals | Court: Deemed-approval remedy does not preclude an interested party’s timely appeal; interested parties retain right to challenge a deemed-approved permit on the merits |
Key Cases Cited
- In re Lathrop Ltd. P’ship, 121 A.3d 630 (Vt. 2015) (deference to municipal ordinance interpretation when reasonable and consistent)
- In re Morrill House, LLC, 35 A.3d 148 (Vt. 2011) (strict construction of deemed-approval remedy)
- In re Trahan NOV, 958 A.3d 665 (Vt. 2008) (deemed-approval creates final decision to allow appeals)
- In re Champlain Coll. Maple St. Dormitory, 980 A.2d 273 (Vt. 2009) (read ordinance as a whole to effectuate intent)
- Franks v. Town of Essex, 87 A.3d 418 (Vt. 2013) (use ordinary meaning and dictionary when terms undefined in ordinance)
- In re Route 103 Quarry (J.P. Carrara & Sons, Inc.), 958 A.2d 694 (Vt. 2008) (appellants face deferential standard when challenging municipal zoning interpretations)
- Fish v. Town of (name omitted in opinion), 554 A.2d 256 (Vt. 1989) (deemed-approval not intended to foreclose appeals)
- Flanders Lumber & Bldg. Supply Co. v. Town of Milton, 258 A.2d 804 (Vt. 1969) (municipal zoning authority subject to state law and limits)