In re North East Materials Group LLC Act 250 JO 5-21 (Russell Austin, Pamela Austin, Julie Barre, Marc, Marc Bernier, Appellants)
151 A.3d 766
Vt.2016Background
- NEMG operates a rock-crushing operation on a portion of a large Rock of Ages (ROA) tract primarily used for dimension-stone quarrying; Act 250 took effect June 1, 1970.
- NEMG argued crushing anywhere on the ROA tract showed pre-1970 crushing and thus the activity is grandfathered (no Act 250 permit needed); neighbors contended only crushing at the specific NEMG site matters.
- This is the second appeal: this Court in NEMG I reversed the Environmental Division for using an incorrect legal standard and for a clearly erroneous factual finding, and remanded for reconsideration of whether crushing was part of the preexisting development, whether it was abandoned, and whether a substantial change occurred.
- On remand, the Environmental Division again concluded the current crushing was not a cognizable change, relying on findings of historic, mobile crushing across the ROA tract and some additional location findings (including evidence of crushing at the NEMG site a century ago and scattered historical crushing within the tract).
- The Environmental Division also found neighbors experienced dust, noise, and traffic from current crushing operations.
- The Supreme Court majority reversed the Environmental Division on substantial-change grounds, holding that the court’s remand rationale improperly collapsed the location-specific analysis and that the current crushing potentially has significant impacts under Act 250 criteria.
Issues
| Issue | Plaintiff's Argument (Neighbors) | Defendant's Argument (NEMG) | Held |
|---|---|---|---|
| Whether rock crushing anywhere on the ROA tract is grandfathered as pre-1970 development | Only crushing at or near the NEMG site should be considered for grandfathering and substantial-change analysis | Activities anywhere on ROA tract establish pre-1970 baseline; crushing is part of preexisting development | Court assumed for purposes of decision that rock crushing was included in preexisting development (remand scope) |
| Whether the present crushing is a cognizable physical change to preexisting development | Present crushing at NEMG site is a cognizable change because location matters; moving heavy equipment into a previously less-impacted vicinity is cognizable | Crushing is inherently mobile; relocation within the tract to another developed site is consistent with historical patterns and not cognizable | Majority: Environmental Division’s “mobile-crushing” rationale is inconsistent with NEMG I; findings do not support that no cognizable change occurred — reversal |
| Whether the activity has potential for significant adverse impact under Act 250 criteria | Impacts (noise, dust, traffic) at the new site can be significant and location-specific under §6086 criteria | Impacts are the same effects on new neighbors (not new types of impacts) and thus do not show potential for significant adverse impact | Majority: Given findings of dust, noise, and traffic, potential significant impacts exist as a matter of law under criteria (a)(8), (a)(5)(A), and (a)(1) — second prong met |
| Burden of proof / scope of remand: may the Environmental Division reconsider cognizable-change question | Remand limited; cognizable-change holding in NEMG I should guide remand; location-specific analysis required | Environmental Division could revisit cognizable-change based on record and additional findings | Court: Whether remand allowed reconsideration ambiguous, but even assuming reconsideration allowed, Environmental Division’s new rationale fails; NEMG must obtain Act 250 permit |
Key Cases Cited
- In re North East Materials Grp. LLC, 127 A.3d 926 (Vt. 2015) (NEMG I) (prior opinion reversing Environmental Division’s approach and requiring a more granular, location-aware substantial-change analysis)
- Sec’y, Vt. Agency of Nat. Res. v. Earth Constr., Inc., 676 A.2d 769 (Vt. 1996) (articulates the two-pronged substantial-change test: cognizable change then potential for significant impact)
- In re Vt. RSA Ltd. P’ship, 925 A.2d 1006 (Vt. 2007) (upholding Environmental Board’s two-step substantial-change framework)
- In re Cross Pollination, 47 A.3d 1285 (Vt. 2012) (aesthetics undue-adverse-effect test: community standard, ordinary person, and mitigation)
- In re Orzel, 491 A.2d 1013 (Vt. 1985) (explaining necessity of factual detail about pre- and post-1970 activities for substantial-change determinations)