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STATE OF VERMONT 

ENVIRONMENTAL COURT 

 } 

In re: Sprague Farms, LLC } Docket No. 107-6-08 Vtec 

 (Appeal of Angell, et al.) } 

 (Cross-Appeal of Sprague Farms, LLC) } 

 } 

Decision and Order

Appellants Philip A. Angell, Jr., Rosalie M. Angell, David Deep, Joseph 

Duranchinski, Arthur Fisher, Betsy D. Hale, Norman R. Runnion, and Christian T. 

Scheindel appealed from a decision of the Development Review Board (DRB) of the 

Town of Randolph, granting Cross-Appellant-Applicant Sprague Farms, LLC 

(Applicant) approval for a ledge rock quarry, with stone crushing, on property located 

on Ridge Road in Randolph. Appellants are represented by Stephen Reynes, Esq. and 

Jesse L. Moorman, Esq. Applicant is represented by Christopher J. Nordle, Esq. The 

Town has appeared through its Zoning Administrator, Mardee A. Sánchez.1

 

This is an on-the-record appeal, as the Town of Randolph has adopted and 

implemented the procedures necessary for such appeals pursuant to 24 V.S.A. § 4471(b). 

In an on-the-record appeal, the DRB’s factual findings are to be affirmed if supported 

by substantial evidence in the record as a whole. In re Miller Conditional Use 

Application, No. 59-3-07 Vtec, slip op. at 5 (Vt. Envtl. Ct. Nov. 5, 2007) (Durkin, J.).2 

 

1

 The Town has not participated in the briefing of any issues in this appeal. 

2

 For a discussion of the standard applicable to the DRB’s factual findings in on-therecord appeals, see In re Appeal of Leikert, No. 2004-213, slip op. at 1–2 (Vt. Nov. 10, 

2004) (unpublished mem.), available at http://www.vermontjudiciary.org/upeo/eo04-

213.pdf. “The purpose of findings is to make a clear statement to the parties and the 

court in the event of an appeal on what was decided and how the decision was 

reached.” Id. at 2. This Court is cautioned against searching the record for facts not 
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Legal issues, on the other hand, are reviewed without affording deference to the DRB’s 

legal conclusions. In re Beckstrom, 2004 VT 32, ¶ 9, 176 Vt. 622 (mem.) (citing In re 

Gulli, 174 Vt. 580, 582 (2002) (mem.)). 

Upon consideration of the record forwarded to the Court, and of the legal 

memoranda submitted by the parties, the Court states the relevant facts supported by 

the evidence (or undisputed), and concludes as follows. 

Quarry 

Applicant proposes a rock quarry, which would involve the blasting and 

removal of rock, sometimes called “ledge” rock, as distinct from the digging up and 

removal of gravel or other loose or unconsolidated earth materials. The first legal issue 

is whether the use category of “rock quarry” is a use that is allowed to be applied for in 

this zoning district. 

As contrasted with the use category of “rock quarry,” the activity of digging and 

removal of earth, sand, gravel and clay (that is, unconsolidated earth materials) is 

regulated by § 5.15 of the Randolph Zoning Regulations (Regulations), rather than 

being specifically classified as a conditional use or permitted use category in any zoning 

district. The state zoning enabling statute allows municipalities to take this approach, 

that is, to “specify standards or levels of performance” in connection with a specific use 

as “an alternative or supplement to the listing of specific uses” allowed in the zoning 

districts. 24 V.S.A. § 4414(5). 

Removal of unconsolidated earth materials is allowed in any district under 

§ 5.15.3 after a public hearing and approval by the DRB.3

 Section 5.15.3 allows the DRB 

 

explicitly stated in the DRB’s findings; the basis of the DRB’s decision should be 

apparent from its factual findings. Id. 

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 The question of whether § 5.15 provides adequate standards for the DRB to make this 

decision is not before the Court in the present appeal. 
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to impose any of the conditions listed in the subsections of § 5.15.3 “to protect the public 

safety and public interest.” The conditions enumerated in § 5.15.3 address a grading 

plan for the removal area, the proper drainage of the area, and, at the conclusion of the 

operation, covering the removal area with top soil and establishing a cover crop, 

“except where ledge rock is exposed.” § 5.15.3(a)–(d). 

By its terms, § 5.15 does not cover or contemplate the removal of rock or stone 

materials that require drilling or blasting, such as ledge rock. However, § 5.15 does 

refer to “ledge rock” in two places. If the sides of a removal area are composed of 

“ledge rock,” subsection (b) allows a steeper slope than otherwise would be allowed. 

Subsection (c) exempts areas “where ledge rock is exposed” from the requirement of 

establishing a suitable cover crop. It is reasonable to infer from these references that § 

5.15 contemplates that existing outcroppings of rock would remain in place during the 

removal of the unconsolidated earth materials regulated by § 5.15. 

Unlike the regulation of the removal of unconsolidated earth materials, the 

Randolph Zoning Regulations do not regulate the use category of stone or ledge rock 

quarries, either by specifying standards or levels of performance in a separate 

provision, or by making the use category of “stone or rock quarry” a permitted or 

conditional use in any district. 

Use categories that are “not specifically permitted”

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 under the Regulations, such 

as the use category of “stone or rock quarry,” are prohibited unless authorized under 

§ 2.4.3. The first sentence of § 2.4.3 provides that 

 

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 In this first phrase of § 2.4.3, the word “permitted” is used in the more general sense 

of being allowed to be applied for in the Regulations as either a permitted or 

conditional use, rather than to distinguish “permitted” uses from “conditional” uses. 

See In re: Appeal of French, No. 98-7-01 Vtec, slip op. at 2 (Vt. Envtl. Ct. March 4, 2002) 

(Wright, J.) (explaining that uses “not specifically permitted” refers to any use “not 

specifically listed as an allowed use” in any zoning district, whether it be a ‘permitted 

use’ or a ‘conditional use’). 
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[a]ny use not specifically permitted by this Regulation shall be prohibited 

unless authorized by the BOARD if it finds, after a duly warned public 

hearing, that the proposed use is not injurious, obnoxious, or offensive[,] 

and is in keeping with the Character and [the] permitted uses in the 

Zoning District. 

As discussed in French, “[u]nlike the regulations of some other municipalities, 

the Randolph Zoning Regulations do not provide for a category of ‘other uses similar to 

the listed uses’ which can be approved ‘as a conditional use’ by the DRB.” French, No. 

98-7-01 Vtec, slip op. at 2. Compare zoning ordinances defining such similar use 

categories as a conditional use, e.g., Lyndon Zoning Bylaws § 3.6.2.20 (allowing “other 

similar uses upon the finding by the Board that such uses will not be detrimental to 

other uses in the [specific zoning district] or to adjoining land uses”) (analyzed in In re 

Appeal of Davis, No. 83-5-98 Vtec, slip op. at 1, n.1 (Vt. Envtl. Ct. Jan. 4, 1999) (Wright, 

J.)); Colchester Zoning Regulations § 1203.1 (allowing “other commercial uses” upon a 

finding that “such use is of the same general character as those permitted and which 

will not be detrimental to the other uses within the district or to the adjoining land 

uses”) (analyzed in In re Sisters and Brothers Investment Group, LLP, No. 281-12-02 

Vtec, slip op. at 3 (Vt. Envtl. Ct. Aug. 6, 2003) (Wright, J.)), rev’d other grounds No. 

2004-495 (Vt. May 5, 2005) (unpublished mem.)). Under such ordinances, after the DRB 

makes the “same general character” determination and the “non-detrimental” 

determination, the application must undergo conditional use approval before the DRB.5 

 

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 Because these ordinances require the “other similar use” to undergo conditional use 

approval, the appropriate comparison is to all of the uses listed as allowed for the 

district: conditional as well as permitted. See, e.g., In re Sisters and Brothers, No. 281-

12-02, slip op. at 3. Because the Randolph ordinance does not require the uses under 

§ 2.4.3 to undergo conditional use approval, the appropriate comparison should be 

limited to the uses actually listed as “permitted uses” for the particular district, rather 

than both permitted and conditional uses. In the present case, the DRB instead 

compared the proposal to the conditional uses listed for the district, which is improper 

under the regulatory framework. 
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 By contrast, under the Randolph Zoning Regulations, § 2.4.3 does not provide a 

mechanism for the DRB to approve a new use category for a proposal that would 

thereafter undergo conditional use approval under § 3.4.1. Rather, § 2.4.3 establishes an 

alternate procedure for the DRB to approve an application for a use not specifically 

listed for any district (or not otherwise specifically allowed in the Regulations, such as 

the removal of unconsolidated earth materials under § 5.15). Section 2.4.3 does not 

authorize the DRB to establish new use categories; it simply allows the DRB to approve 

a specific application for an otherwise-prohibited use. 

Although the enabling legislation is quite flexible and inclusive of many different 

approaches to drafting zoning regulations, § 2.4.3 does not fall specifically within any of 

the enabling act sections, in particular, 24 V.S.A. §§ 4414(1)6

 and 4414(5).7 Section 2.4.3 

neither requires conditional use review for a non-listed use category, nor does it specify 

acceptable standards or levels of performance for such non-listed uses, either 

specifically or by reference to the Act 250 state standards. 

Rather, if a proposal is specifically classified as a conditional use, § 2.4.3 does not 

apply. To be approved, a proposed conditional use must undergo scrutiny by the DRB 

under all of the criteria in § 3.4.1 for conditional use approval, as well as under the five 

statutory criteria required by 24 V.S.A. § 4414(3)(A), which are made applicable in 

Randolph by the final sentence of § 3.4.1. In granting conditional use approval, the DRB 

 

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 Section 4414(1) of Title 24 authorizes municipalities to identify in their regulations, 

for each zoning district, two categories of land uses: those land uses that are “permitted 

as of right,” and those that are “conditional uses requiring [conditional use] approval” 

by the DRB. As well as the statutory conditional use standards, municipalities may 

adopt any of the Act 250 review criteria, including 10 V.S.A. § 6086(9)(E) (extraction of 

earth resources), as standards to use in conditional use review. 24 V.S.A. § 4414(3)(B), 

(C). 

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 Section 4414(5) of Title 24 allows municipal regulations to “specify acceptable 

standards or levels of performance that will be required in connection with any use,” in 

lieu of or supplementary to the listing of specific uses allowed in the specific districts. 
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can impose appropriate conditions to assure that the proposal would meet the 

conditional use standards when in operation. 

On the other hand, in a district in which the same proposed use is not allowed at 

all, even as a conditional use (making it a use “not specifically permitted” for the 

purposes of § 2.4.3), § 2.4.3 allows the DRB to approve an otherwise-prohibited use after 

much less rigorous scrutiny than that required for a conditional use. The specific 

conditional use standards under 24 V.S.A. § 4414(3)(A), requiring no undue adverse 

effect in traffic and on the character of the area, among other things, do not apply. The 

specific conditional use standards under § 3.4.1, addressing traffic safety, traffic access, 

noise, odors, road standards, screening, and runoff control, among other things, do not 

apply. The specific statutory definition of “character of the area” for conditional use 

approval in 24 V.S.A. § 4414(3)(A)(iii), defining it in terms of the purposes of the zoning 

district and the “specifically stated policies and standards of the municipal plan,” also 

does not apply. By making it easier to obtain approval for an otherwise-prohibited use 

than for a listed conditional use, the Regulations contain an internal conflict creating an 

absurd result. See In re Miller, 2009 VT 36, ¶ 17 (stating the Court’s “presumption 

against statutory [and regulatory] interpretations that produce absurd results (citing 

State v. Longley, 2007 VT 101, ¶ 10, 182 Vt. 452)). 

Due to this anomaly, the DRB in the present case, as it did in French, appears to 

have applied some of the conditional use standards to the rock quarry, rather than 

applying only the provisions of § 2.4.3. See DRB Decision at p. 10–12, Conclusions, § 2 

Conditional Use Criteria: § 2(C)(“the additional [traffic] generated by the quarry”); 

§ 2(J) (“the traffic to and from the quarry”; portion of the road “not affected by the 

quarry”; “the quarry would add only 6 trucks per day on the northern end” of the road; 

“residents in the area of the quarry”; “it is not disputed that the quarry will generate 

noise, dust and vibration”); § 2(K) (“Although the stone crushing operation itself will 

not generate traffic, the [DRB] applied [the effect on traffic] criterion to the entire project 
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[including the quarry].”) Regardless of the validity of § 2.4.3, because the DRB 

improperly applied the conditional use standards as well as § 2.4.3 to the quarry use, 

the DRB decision as to the quarry must be reversed and remanded. 

However, in the present case Appellants have also raised the issue that was not 

resolved by French: whether § 2.4.3 provides adequate standards for the DRB to make a 

decision under that provision, or whether that section is unconstitutional for being 

impermissibly vague and standardless. As discussed at length in In re Appeal of JAM 

Golf, 2008 VT 110, ¶¶ 13–14, the Court will not uphold a zoning ordinance “that ‘fail[s] 

to provide adequate guidance,’ thus leading to ‘unbridled discrimination’ by the 

[municipal] board charged with its interpretation.’” (quoting Town of Westford v. 

Kilburn, 131 Vt. 120, 125 (1973)). In striking down a state statute that lacked standards 

for the selectboard to consider when ruling on applications under an unamended 

zoning ordinance, the Supreme Court explained in In re Handy, 171 Vt. 336, 349 (2000), 

that it recognized that the intent of the statute, like the apparent intent of § 2.4.3, was to: 

give municipalities flexibility in dealing with development proposals at 

variance with . . . zoning rules. But a grant of flexibility . . . is 

constitutional only if it is accompanied by some ability of landowners to 

predict how discretion will be exercised and to develop proposed land 

uses accordingly. 

In In re Handy, the Court called for “neutral, predictable, and universal administrative 

standards.” Id. 

Unlike the process of conditional use approval, which has specific statutory 

standards under 24 V.S.A. § 4414(3)(A) and specific regulatory standards under § 3.4.1, 

§ 2.4.3 does not provide sufficiently specific standards for the DRB to determine 

whether an otherwise-prohibited use should nevertheless be allowed in a particular 

location. See JAM Golf, 2008 VT 110, ¶¶ 17–18. 

Neither the statute nor the Regulations, nor any line of case law in effect when 

the Regulations were adopted, gives any definition or standards to assist the DRB, or 
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any landowner applying under § 2.4.3, or any neighbors of the proposed project, in 

determining whether a proposed use is “obnoxious,” “offensive,” or “injurious.” The 

ordinance makes no references to the law of private or public nuisance to assist in 

interpreting any of those terms. Similarly, the ordinance does not make reference to the 

“character of the area” jurisprudence developed from conditional use cases (or the 

statutory definition), or to cases analyzing “undue adverse effect” on any of the factors 

developed in Act 250 jurisprudence, to interpret what it would mean for a use to be “in 

keeping with” the character of the area or the permitted uses allowed in the district.8

Because § 2.4.3 does not provide adequate standards to guide the DRB’s 

discretion in approving an otherwise-prohibited use, because the DRB improperly 

applied the conditional use standards in addition to § 2.4.3 in its decision as to the 

quarry, and because § 2.4.3 as written is beyond the scope of the zoning enabling 

statute, 24 V.S.A. § 4414, the DRB’s decision as to the quarry must be reversed and 

remanded in this on-the-record proceeding.9 Accordingly, the Court does not reach the 

site plan criteria for the combined project. 

Stone Crusher

Unlike a stone or rock quarry, the use category of “stone crusher” is allowed as a 

conditional use, but only in the RU 5 zoning district. Site plan approval for a stone 

crusher is required under § 4.0, regardless of the status of the quarry associated with it, 

as it is other than a one- or two-family dwelling. See § 4.0 (requiring site plan review 

“for the development of tracts for uses other than one (1) or two (2) family dwellings 

and appurtenances”). Because site plan approval was also required for the quarry, the 

 

8

 By these examples, this Court does not suggest what standards might be appropriate 

to cure the constitutional defect. See In re Handy, 171 Vt. at 350. 

9

 Because this decision is based on problems with § 2.4.3 on its face, as well as with 

§ 2.4.3 as applied, it is not a decision on the merits of the application for the quarry. 
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DRB’s findings and conclusions on site plan approval do not distinguish between the 

operation of the stone crusher and the quarry. 

However, in light of the discussion in this decision as to the quarry, it is possible 

that the parties would prefer for the Court to suspend its analysis as to the stone 

crusher at the present time, as the discussion of the stone crusher in the DRB decision 

seems inextricably intertwined with that of the quarry. If the Court does proceed to 

analyze the DRB decision as to the stone crusher, it will determine whether the 

conditional use approval and site plan approval decisions of the DRB, solely as to the 

stone crusher, are supported by substantial evidence in the record as a whole. A 

telephone conference has been scheduled (see enclosed notice); the parties should 

discuss the procedural status of this matter with each other prior to the conference, and 

be prepared to state whether any party wishes the Court to proceed with the remainder 

of the on-the-record analysis at this time, solely as to the stone crusher, and whether 

any party wishes to request a remand under V.R.E.C.P. 5(i). 

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED 

that the DRB’s approval of the quarry use under § 2.4.3 of the Zoning Regulations is 

reversed and remanded. A telephone conference (see enclosed notice) has been 

scheduled to discuss the status of the appeal as to the stone crusher. 

Done at Berlin, Vermont, this 13th day of November, 2009. 

 _________________________________________________ 

 Merideth Wright 

 Environmental Judge