In re Chaves A250 Permit Reconsider
195 Vt. 467
| Vt. | 2014Background
- Neighbors appeal an Environmental Division order granting an Act 250 permit for a sand and gravel quarry operated by Chaves Londonderry Gravel Pit, LLC; settlement changes to the project occurred before trial, including access point relocation, noise and traffic mitigations, and blasting plan; the site is on Route 100 in Londonderry with a long history of extraction; applicants initially believed operations were grandfathered; the Environmental Division held the modifications did not require remand and issued a permit with conditions; neighbors challenged four Act 250 criteria and condition 16, and the court remanded for clarification of condition 16.
- Settlement changes included moving the quarry access to an existing north entrance, adding noise berms, limiting trips, scheduling drilling/blasting, and creating a blasting plan.
- Trial was initially set for March 5, 2012; a settlement was adopted February 21, 2012; neighbors sought remand and continuance which were denied; evidence focused on traffic, noise, aesthetics, historic sites, and compliance with town and regional plans.
- The Environmental Division reviewed four Act 250 criteria (traffic, aesthetics, extraction, conformity) and concluded conformance with conditions; the court applied deferential review and relied on expert testimony to assess noise and traffic impacts.
- On appeal, the court affirmed but remanded for clarification of condition 16 regarding noise levels.
- The project is subject to scrutiny under Quechee-based aesthetics analysis and local/ regional plan conformity, with emphasis on standards, existing traffic noise, and the enforceability of conditions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether settlement changes required remand or continuance | Hart objected to material changes needing remand | Chaves Londonderry argued changes did not alter permit type or scale | Remand not required; changes did not alter permit type or scope |
| Whether project complies with Act 250 criterion 8 (aesthetics) | Neighbors claim noise and traffic create undue adverse aesthetic impact | Court properly applied Quechee test with mitigating measures | No undue adverse aesthetic impact; findings supported by credible evidence under Quechee test |
| Whether project complies with criterion 10 (conformity with town/regional plans) | Plans contain unambiguous restrictions on historic resources | Plans contain broad nonregulatory language; zoning allows quarry use | Project conforms to town and regional plans; plans do not contain enforceable prohibitions |
| Whether condition 16 on noise is enforceable or vague | Condition 16 relies on historical noise levels; not definite | Condition provides noise constraint tied to prior levels | Condition 16 vague; remand to revise to definite standard |
Key Cases Cited
- In re Sisters & Bros. Inv. Grp., LLP, 2009 VT 58 (Vt. 2009) (modifications to an application may be approved without remand if not a substantial change)
- In re Torres, 154 Vt. 233 (Vt. 1990) (superior court authority limited to scope of original permit; remand required for substantial changes)
- In re Rinkers, Inc., 2011 VT 78 (Vt. 2011) (Quechee framework; deferential review of aesthetics criteria)
- Eastview at Middlebury, Inc., 2009 VT 98 (Vt. 2009) (Quechee analysis for aesthetic impacts and mitigation)
- In re John A. Russell Corp., 2003 VT 93 (Vt. 2003) (conformity with plans; ambiguous plan language not enforceable)
- In re JAM Golf, LLC, 2008 VT 110 (Vt. 2008) (planning/regulatory standards; vagueness problems when design to protect resources)
- In re Molgano, 163 Vt. 25 (Vt. 1994) (zoning bylaw interpretation; implementational standards)