Agenda - Planning Commission - 04/07/2016

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Zoning Bulletin March 25, 2016 I Volume 10 I Issue 6 VERMONT (02/12/16)—This case addressed the issue of whether a zoning regulation permitting gravel extraction allowed for only extraction of naturally occurring gravel or also of operations that cre- ate gravel by drilling and blasting. The case also addressed the issue of whether a statutory "deemed -approved" remedy for a protracted application review process forecloses an interested party's appeal on the merits of the application. The Background/Facts: Allen and Michael Brisson owned a 324- acre parcel in the Town of Monkton (the "Town"). Allen and Mi- chael leased part of that parcel to Brisson Stone, LLC to operate a quarry. Allen and Michael and Brisson Stone, LLC (collectively, "Brisson") submitted an application for a "gravel extraction opera- tion" permit to the Town's zoning administrator. Although there was no naturally occurring gravel beds on the site, Brisson planned to drill and blast ledge rock to produce unconsolidated rock and gravel, which it planned to sell. The Town's zoning regulations § 564 provided that "the re- moval of soil, sand or gravel for sale. . .shall be permitted only upon approval of a plan for the rehabilitation of the site by the [Town's Developmental Review Board (`DRB')] and after a public hearing." The zoning administrator referred Brisson's permit application to the Town's DRB. The DRB found that it was unclear if Brisson's proposed project of blasting, drilling, and crushing ledge rock was a gravel extraction operation permitted by the zoning regulations or a quarrying operation precluded by the regulations. (See Town of Monkton Zoning Regulations § 564 (permitting soil, sand, or gravel extraction operations in any zoning district) and § 240 (excluding any use not specifically enumerated).) After six public hearings on the application, on January 22, 2013, the DRB formally adjourned the hearing and voted to deny Brisson's application. The DRB had determined that the zoning regulations permitted extraction of naturally occurring gravel, but not Brisson's proposed method of blasting, drilling, and crushing ledge rock to produce gravel. The DRB issued its written denial on February 26, 2013. Brisson filed for a declaratory judgment in the Superior Court, Environmental Division. Brisson claimed that "the protracted review process caused their application to be deemed approved under [state statutory law] 24 V.S.A. § 4464(b)(1)." Section 4464 governs munic- ipal decisions involving development review applications. Section 4464(b)(1) provides, among other things, that a municipal panel "should close the evidence promptly after all parties have submitted the requested information," and that "[o]nce the hearing is formally adjourned, the panel shall `issue a decision within 45 days after the adjournment of the hearing.' " If the panel fails to issue a written de- ©2016 Thomson Reuters 9