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Environmental Court rejects Route 116 gravel pit

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Posted on November 19, 2012 |
By John Flowers



MIDDLEBURY — Vermont Environmental Court Judge Thomas Durkin has rejected an appeal of the Middlebury Development Review Board’s (DRB) Sept. 22, 2010, decision not to permit a 16-acre gravel pit off Route 116.

The decision, which applicants Charles Ferrera and Ronald Fenn can appeal to the Vermont Supreme Court, was hailed by area neighbors in the Mead Lane, Butternut Ridge Drive, Drew Lane, Lindale Circle and Route 116 areas. They contended the pit near the old schoolhouse at the Quarry Road/Route 116 intersection would have violated local zoning laws; brought dust, toxic fumes and noise pollution to a residential area; and set up the potential for collisions between trucks entering/exiting the site and motorists and cyclists negotiating busy Route 116.

“We’re delighted,” Mead Lane residents Ron Kohn and Barbara Shapiro said through a joint statement. “In our view, this decisive environmental court verdict was what we expected given an application that so clearly did not, and indeed could not, meet Middlebury’s zoning requirements in that location.

 “The only benefit of going through this protracted hearing process was the strengthening of the sense of community within the Butternut Ridge/Lindale neighborhood,” they added.

In his 31-page decision, Durkin sided with the DRB on seven of nine criteria the panel had cited as reasons for denying the application. The judge affirmed the DRB’s findings with respect to the proposed pit’s potential negative impacts on the character of the neighborhood; aesthetics; highway access limitations; aquifer protection areas; noise levels; setback standards; and test wells (an inadequate number).

The judge however did not find enough evidence to side with the town on its argument that the proposed pit would worsen traffic hazards in the area, nor did he accept the notion that the proposal ran counter to Middlebury’s town plan, a document that he noted presents “aspirational” rather than regulatory directives.

Durkin also found that that there were no procedural flaws in the DRB’s evaluation of the pit application, meaning the matter will not be remanded back to the board for a new review.

“We certainly do see it as a good outcome for our on-the-record process, affirming our criteria and helpful for future complex, contested cases,” Middlebury Town Planner Fred Dunnington said of the Environmental Court decision.

Middlebury Zoning Administrator Ted Dunakin said the decision will also provide a good educational tool for the DRB in terms of framing future decisions on development proposals.

“One thing we didn’t want is to have the (application) remanded and have to go through the process again,” he said.

The applicants were hoping to to establish a gravel pit on a portion of a 70-acre parcel they own off Route 116, around 180 feet north of its intersection with Quarry Road. Plans called for the 16-acre pit to be excavated in four, four-acre phases over 20-30 years, during which an estimated 660,000 cubic yards of material was to be mined. The plan was projected to result in an average of 40 loaded truck trips per day, via a new access road off Route 116.

Durkin issued his decision on Nov. 13. The applicants have 30 days in which to file an appeal of the decision to the Vermont Supreme Court. A phone call placed Friday morning to the applicants’ attorney, Mark Hall of Burlington, went unreturned as the Addison Independent went to press.

Local officials and area neighbors are hoping the case isn’t appealed.

“This comes mostly as a huge sense of relief, that we can be done with this (application) once and for all,” neighbor Virginia Heidke said of the Environmental Court ruling.

Reporter John Flowers is at johnf@addisonindependent.co

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