1 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, D avid Deep, Joseph Duranchinski, Arthur Fisher, Betsy D. Hale, Norman R. Runnion, and Christian T. Scheindel appealed from a decision of the Developme nt 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 represen ted 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 Rand olph has adopted and implemented the procedures necessary for such appea ls pursuant to 24 V.S.A. § 4471(b). In an on-the-record appeal, the DRB’s factual findin gs 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. No v. 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 th e 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 Nov. 10, 2004) (unpublished mem.), available at http://www.ve rmontjudiciary.org/upeo/eo04- 213.pdf. “The purpose of findings is to make a cle ar 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 not2

Legal issues, on the other hand, are reviewed withou t 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 C ourt, and of the legal memoranda submitted by the parties, the Court states the relevant facts supported by the evidence (or undisputed), and concludes as follo ws.

Quarry Applicant proposes a rock quarry, which would involv e the blasting and removal of rock, sometimes called “ledge” rock, as di stinct 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 u se 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, unco nsolidated earth materials) is regulated by § 5.15 of the Randolph Zoning Regulati ons (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 perform ance” 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 allowe d 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

. 3 The question of whether § 5.15 provides adequate standards for the DRB to make this decision is not before the Court in the present app eal.3

to impose any of the conditions listed in the subse ctions of § 5.15.3 “to protect the public safety and public interest.” The conditions enumer ated in § 5.15.3 address a grading plan for the removal area, the proper drainage of t he area, and, at the conclusion of the operation, covering the removal area with top soil a nd 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 t he 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 e xposed” from the requirement of establishing a suitable cover crop. It is reasonab le to infer from these references that § 5.15 contemplates that existing outcroppings of roc k would remain in place during the removal of the unconsolidated earth materials regul ated by § 5.15. Unlike the regulation of the removal of unconsolida ted earth materials, the Randolph Zoning Regulations do not regulate the use category of stone or ledge rock quarries, either by specifying standards or levels o f performance in a separate provision, or by making the use category of “stone o r rock quarry” a permitted or conditional use in any district. Use categories that are “not specifically permitted ” 4 under the Regulations, such as the use category of “stone or rock quarry,” are p rohibited unless authorized under § 2.4.3. The first sentence of § 2.4.3 provides tha t

4 In this first phrase of § 2.4.3, the word “permit ted” is used in the more general sense of being allowed to be applied for in the Regulatio ns as either a permitted or conditional use, rather than to distinguish “permit ted” uses from “conditional” uses. See In re: Appeal of French , No. 98-7-01 Vtec, slip op. at 2 (Vt. Envtl. Ct. Ma rch 4, 2002) (Wright, J.) (explaining that uses “not specifically permitted” refers to any use “not specifically listed as an allowed use” in any zonin g district, whether it be a ‘permitted use’ or a ‘conditional use’).4

[a]ny use not specifically permitted by this Regula tion shall be prohibited unless authorized by the BOARD if it finds, after a duly warned public hearing, that the proposed use is not injurious, obno xious, or offensive[,] and is in keeping with the Character and [the] perm itted uses in the Zoning District.

As discussed in French , “[u]nlike the regulations of some other municipali ties, the Randolph Zoning Regulations do not provide for a category of ‘other uses similar to the listed uses’ which can be approved ‘as a condit ional use’ by the DRB.” French , No. 98-7-01 Vtec, slip op. at 2. Compare zoning ordinan ces 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 suc h 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 (allow ing “other commercial uses” upon a finding that “such use is of the same general chara cter as those permitted and which

will not be detrimental to the other uses within th e district or to the adjoining land uses”) (analyzed in In re Sisters and Brothers Inve stment Group, LLP , No. 281-12-02 Vtec, slip op. at 3 (Vt. Envtl. Ct. Aug. 6, 2003) (Wr ight, J.)), rev’d other grounds No. 2004-495 (Vt. May 5, 2005) (unpublished mem.)). Und er such ordinances, after the DRB makes the “same general character” determination an d the “non-detrimental” determination, the application must undergo conditio nal use approval before the DRB. 5

5 Because these ordinances require the “other simi lar use” to undergo conditional use approval, the appropriate comparison is to all of th e 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 ordinanc e does not require the uses under § 2.4.3 to undergo conditional use approval, the app ropriate comparison should be limited to the uses actually listed as “permitted u ses” for the particular district, rather than both permitted and conditional uses. In the p resent case, the DRB instead compared the proposal to the conditional uses liste d for the district, which is improper under the regulatory framework.5

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 appli cation for a use not specifically listed for any district (or not otherwise specifica lly 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 d oes 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-l isted use category, nor does it specify acceptable standards or levels of performance for s uch non-listed uses, either specifically or by reference to the Act 250 state s tandards. 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 conditiona l 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 gran ting conditional use approval, the DRB

6 Section 4414(1) of Title 24 authorizes municipal ities to identify in their regulations, for each zoning district, two categories of land use s: those land uses that are “permitted as of right,” and those that are “conditional uses r equiring [conditional use] approval” by the DRB. As well as the statutory conditional u se 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).

7 Section 4414(5) of Title 24 allows municipal reg ulations to “specify acceptable standards or levels of performance that will be req uired in connection with any use,” in lieu of or supplementary to the listing of specific uses allowed in the specific districts.6

can impose appropriate conditions to assure that th e proposal would meet the conditional use standards when in operation. On the other hand, in a district in which the same p roposed use is not allowed at all, even as a conditional use (making it a use “no t specifically permitted” for the purposes of § 2.4.3), § 2.4.3 allows the DRB to app rove 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, ad dressing traffic safety, traffic access, noise, odors, road standards, screening, and runoff con trol, among other things, do not apply. The specific statutory definition of “chara cter 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 appr oval for an otherwise-prohibited use than for a listed conditional use, the Regulations c ontain 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 D ecision 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”; porti on of the road “not affected by the quarry”; “the quarry would add only 6 trucks per da y on the northern end” of the road; “residents in the area of the quarry”; “it is not d isputed that the quarry will generate noise, dust and vibration”); § 2(K) (“Although the s tone crushing operation itself will not generate traffic, the [DRB] applied [the effect on traffic] criterion to the entire project7

[including the quarry].”) Regardless of the validi ty 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 ra ised the issue that was not resolved by French : whether § 2.4.3 provides adequate standards for t he DRB to make a decision under that provision, or whether that sect ion 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 ‘unbr idled discrimination’ by the [municipal] board charged with its interpretation.’ ” (quoting Town of Westford v.

Kilburn , 131 Vt. 120, 125 (1973)). In striking down a sta te statute that lacked standards for the selectboard to consider when ruling on appl ications 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, l ike the apparent intent of § 2.4.3, was to: give municipalities flexibility in dealing with dev elopment proposals at variance with . . . zoning rules. But a grant of f lexibility . . . is constitutional only if it is accompanied by some ab ility of landowners to predict how discretion will be exercised and to dev elop proposed land uses accordingly. In In re Handy , the Court called for “neutral, predictable, and un iversal administrative

standards.” Id

. Unlike the process of conditional use approval, whic h 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 stan dards for the DRB to determine whether an otherwise-prohibited use should neverthe less be allowed in a particular location. See JAM Golf , 2008 VT 110, ¶¶ 17–18. Neither the statute nor the Regulations, nor any lin e of case law in effect when the Regulations were adopted, gives any definition o r standards to assist the DRB, or8

any landowner applying under § 2.4.3, or any neighb ors 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 ord inance does not make reference to the “character of the area” jurisprudence developed fro m 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 wha t it would mean for a use to be “in keeping with” the character of the area or the perm itted 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 t o § 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 t he 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 distric t. Site plan approval for a stone crusher is required under § 4.0, regardless of the s tatus 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 wa s also required for the quarry, the

8 By these examples, this Court does not suggest wh at 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 meri ts of the application for the quarry.9

DRB’s findings and conclusions on site plan approva l 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 susp end its analysis as to the stone crusher at the present time, as the discussion of th e stone crusher in the DRB decision seems inextricably intertwined with that of the qua rry. 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 dec isions of the DRB, solely as to the stone crusher, are supported by substantial evidenc e in the record as a whole. A telephone conference has been scheduled (see enclos ed notice); the parties should discuss the procedural status of this matter with e ach other prior to the conference, and be prepared to state whether any party wishes the C ourt to proceed with the remainder of the on-the-record analysis at this time, solely a s 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 ORD ERED 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 13 th day of November, 2009.

________________________________________________ _ Merideth Wright Environmental Judge