Agenda - Planning Commission - 12/01/2016

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j October 10, 2016 1 Volume 10 1 Issue 19 Zoning Bulletin f+ because its rock-crushing activities took place prior to the enactment of Act 250, but also accepted the Neighbors' argument that there had been a substantial change in the rock-crushing activity, thus requiring current rock- crushing operations to obtain an Act 250 permit. On remand, the Superior Court again affirmed the conclusion of the Environmental Commission. In doing so it essentially suggested that the Supreme Court reconsider its conclusion on the substantial change issue. The Neighbors again appealed the Superior Court's decision to the Supreme Court. DECISION:Reversed. The Supreme Court of Vermont concluded that"even assuming that crush- ing operations were part of the preexisting quarrying development, findings on the location and volume of the crushing operations [were] too limited to support a conclusion that the present operations do not constitute a cognizable change to the existing development." The court assumed,for purposes of its decision,that the Superior Court on remand properly concluded that there was a preexisting development that included rock crushing on the ROA tract and that development had not been abandoned. Thus, focusing only on the substantial change issue, the court explained that there was a two-pronged test use d to determine if a new development constitutes a "substantial change" such that a grandfathered development is no longer exempt from the Act 250 permit requirement.Under that test, the court looks first"to determine if a cognizable [i.e., "capable of being known or recognized"] change to the existing development will result from the project in question."In other words,is the change one that is"nota- bly distinct from whatever preceded it."If so,the court then looks to determine "whether the change has the potential for significant impact under any Act 250 criteria"(in 10 V.S.A. §6086(a).) The Superior Court had found that although NEMG's crushing operations had moved around the ROA property over time, that relocation of crushing operations did not cause new impacts; "instead it `simply impact[ed] new neighbors.'"The Supreme Court disagreed with that rationale. It found that the location of development on the ROA tract was not irrelevant.That location change,was,found the Supreme Court,a cognizable change. Next, applying the second prong of the"substantial change"test, the court also concluded that the change in rock crushing activities resulted in the"likely effect of the noise and clouds of rock dust on the sensibilities of the average person,"which was"significant enough to reach the potential impact as a mat- ter of law."Thus,the court concluded that the second prong of the substantial change test had also been met. The court concluded that NEMG was required to submit an Act 250 ap- plication and obtain an Act 250 permit to continue its rock-crushing activities. See also:In re North East Materials Group LLC,'2015 VT 79, 127A.3d 926 (Vt. 2015). See also:In re Vermont RSA Ltd.Partnership, 181 Vt. 589,2007 VT 23, 925 A.2d 1006(2007). 6 ©2016 Thomson Reuters z j