In re North East Materials Group LLC ACT 250 JO 5-21 (Russell Austin, Pamela Austin, Julie Barre, Marc Bernier, Appellants)
127 A.3d 926
Vt.2015Background
- This case concerns whether a post-1970 rock-crushing operation within the Rock of Ages quarry complex is exempt from Act 250 as a preexisting development or if it constitutes a cognizable substantial change.
- ROA owns a 1170-acre quarry tract with multiple quarries; NEMG operates a crushing site within this tract since 2009, later obtaining ANR air-permitting in 2013.
- Prior pre-1970 quarrying included intermittent crushing at various locations on the tract, some operations possibly off-site from the ROA core tract.
- Environmental Division concluded the pre-1970 quarrying and intermittent crushing constituted a single preexisting development and that NEMG’s crushing did not create a cognizable change; thus no Act 250 review was required.
- Neighbors for Healthy Communities appealed, arguing the Division used an improper framework and evidence; the Vermont Supreme Court reversed, holding the Division used the wrong framework and that some pre-1970 crushing evidence could not be used to ignore a cognizable change, then remanded for further proceedings.
- On remand, the Environmental Division must reassess the scope of preexisting development, abandonment status, and whether NEMG’s operations constitute a substantial change with respect to Act 250 criteria.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of preexisting development (tract-wide vs site-specific) | Neighbors contends preexisting development cannot be defined tract-wide to immunize a site-specific change. | ROA/NEMG argue preexisting development runs with the land and may include activities across the tract. | The Court held tract-wide framing is inappropriate; the preexisting development must be analyzed with site-specific context on remand. |
| Cognizable physical change at the NEMG site | Neighbors assert NEMG’s crushing represents a cognizable change. | ROA/NEMG contend there is no cognizable change within the existing preexisting development framework. | The Court held that the Environmental Division erred by treating no cognizable change; it is to be reconsidered on remand. |
| Burden of proof/production in the grandfather framework | Neighbors argue burden on the proponent of jurisdiction should focus on substantial change. | The burden-shifting framework supports the proponent to show substantial change. | The Court discusses burden allocation and remands to apply correct two-prong analysis consistent with case law. |
| Role of off-site pre-1970 activities in establishing baseline | Evidence of pre-1970 off-site crushing should inform scope of preexisting development. | Off-site activities may be less probative for site-specific changes. | The Court requires careful consideration of site-specific pre-1970 activity; off-site crushing cannot automatically bar cognizable change. |
Key Cases Cited
- In re Hale Mountain Fish & Game Club, Inc., 2007 VT 102 (VT 2007) (two-part substantial-change framework; context for cognizable change and potential impacts)
- Vt. RSA Ltd. P’ship, 2007 VT 23 (VT 2007) (affirms burden framework and that substantial-change analysis follows cognizable-change step)
- Clifford’s Loam & Gravel, Inc., Declaratory Ruling No. 90 (Vt. Envtl. Bd. 1978) (gravel-pit decisions guiding pre- vs post-1970 analysis and changes within preexisting tract)
- Howrigan Gravel Extraction, Declaratory Ruling No. 358 (Vt. Envtl. Bd. 1999) (requires granular, site-specific assessment of pre- and post-1970 operations within a tract)
- Weston Island Ventures, Declaratory Ruling No. 169 (Vt. Envtl. Bd. 1985) (acknowledges gradual expansion within a preexisting tract but allows cognizable change where new operations are introduced)