                                  STATE OF VERMONT

                               ENVIRONMENTAL COURT

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In re: Appeal of                           }
 Claude V. Offray and Gloria Offray        }       Docket No. 166-9-98 Vtec
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                                  DECISION and ORDER

       Appellants Claude and Gloria Offray appealed from a decision of the Zoning Board
of Adjustment (ZBA) of the Town of Lincoln, granting a conditional use permit to Appellee-
Applicant Willard Jackson for the operation of a gravel pit. He had originally also applied
for a variance to conduct a portion of the operation close to the property line, but the
application for variance was withdrawn and the remaining conditional use application was
limited to the area for which no variance was necessary.
       Appellants are represented by John F. Evers, Esq.; Appellee-Applicant Willard
Jackson appeared and represented himself with the assistance of David Wetmore, who is
not an attorney; the Town of Lincoln entered an appearance by George R. Vince, Esq., but
did not take an active role in this appeal. An evidentiary hearing was held in this matter
before Merideth Wright, Environmental Judge. The parties were given the opportunity to
submit written requests for findings and memoranda of law. Upon consideration of the
evidence and the written memoranda and proposed findings, the Court finds and
concludes as follows.
       Appellee-Applicant owns a 134-acre parcel of land off the Gap Road in the Town of
Lincoln, which contains a former gravel pit operated from the 1940s through the early
1970s, located near the center of the property near its northerly boundary. Appellee-
Applicant proposes to operate a gravel pit on a 7-acre portion of his property designated on
Exhibit 3, third page, and on Exhibit 4, with no more than 5 acres to be under excavation at
any time. All topsoil removed is proposed to be stockpiled in berms, to be located to the
extent possible to shield Appellants= property and Town Highway #1 from the noise of the
site=s operations, and to be used in the reclamation of the site. The zoning district in which
the property is located requires a conditional use permit for a sand and gravel pit in the

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proposed location. At present there is no local source for sand and gravel within the town;
any sand and gravel used by the Town or by residents of the Town is brought in over local
roads from elsewhere.
       The land is a mix of forested and open meadow areas, and contains a gravel
deposit on a knoll of land near its westerly boundary. A road on the site (the Aaccess
road@) runs from the location of the proposed gravel extraction operation to Town Highway
#1. Its configuration is proposed to be changed to reduce its slope and to make a 90
degree intersection with Town Highway #1, and its speed limit is proposed to be 15 miles
per hour. The speed limit on Town Highway #1 is 35 miles per hour at the entrance to the
project=s access road. The ZBA decision appealed from imposed a requirement that
Applicant install a stop sign on the access road as it exits onto Town Highway #1, that
Applicant arrange for the installation of Atrucks entering@ warning signs in both directions on
Town Highway #1 approaching the access road intersection, and that Applicant impose a
10 mile per hour speed limit on the last 500 feet of access road approaching the
intersection with Town Highway #1. Appellee-Applicant did not file any cross-appeal of
these requirements.
       Appellants= 69-acre parcel adjoins the subject parcel. Because of the size of
Applicant=s parcel, other properties in the area are located a substantial distance from the
proposed excavation site.      Most of the properties in the area are agricultural and
residential, except for the Lincoln School, the Town shed, and a pallet mill qualifying as
light manufacturing.
       Appellee-Applicant proposes to remove a maximum of 20,000 cubic yards of
material annually, over the seven month operating season from mid-April through mid-
November. The trucks anticipated to be used have an average capacity of eleven cubic
yards, so that an average of 260 truck round trips per month would be required to remove
that amount of material. Operating 6 days a week would result in approximately ten truck
round trips per day.
       Appellee-Applicant proposes to operate extraction, processing, and loading of
material onto trucks Monday through Friday from 7 a.m. to 5 p.m. and to operate without
excavation or processing on Saturdays from 7 a.m. to noon. The normal processing


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equipment would be a gravel sorting screen. Appellee-Applicant expects to need to
operate gravel crushing equipment only approximately four weeks (two two-week periods)
a year. Appellee-Applicant proposes to conduct excavation and , if necessary, blasting, no
closer than 200 feet from the property boundary, and to operate processing and sorting
equipment no closer than 300 feet to the property boundary, as required by ''734.3d and
734.3e. Appellee-Applicant, and to maintain noise levels from the extraction process below
75 dBA at the property boundary, except the noise from trucks (and possibly the noise
during any blasting). Appellee-Applicant does not expect to need to conduct any blasting.
Appellee-Applicant proposes to notify the adjoining property owners at least two weeks
prior to conducting any blasting or to using any portable crusher machinery in the pit.
Appellee-Applicant proposes to use every effort to minimize noise, including to limit truck
speed to 15 mph on the access road, to stockpile processed material in a noise-reducing
berm, to plant additional trees near the entrance to the Town Highway, to maintain a large
enough pit floor area to minimize the need for trucks to back up (as the federally-required
backup beepers produce an annoying noise), and to use sonic or Asmart@-type backup
alarms on all non-registered pit machinery.
       Appellee-Applicant proposes to allocate approximately half of the gravel extracted
annually to the Town of Lincoln and other local users.           The Town Plan at page 6
recognizes that soil deposits within the Town may be very localized, and that land uses
should be compatible with the type of soil in a given area. Specifically with regard to gravel
extraction, that section of the Town Plan states that Agravel and sand banks in many areas
of town lend themselves to the extraction of those materials on a small scale, in keeping
with the traffic limitations of our roads,@ and recognizes that Asuch local projects could ease
the [Town=s] cost burden of road maintenance ans other projects by keeping hauling
expenses low.@ The proposal therefore meets criterion '734.2p regarding the conformance
of the proposal with the Town plan.
       To receive a conditional use permit, Appellee-Applicant must satisfy the five general
conditional use criteria in '734.1, applying the nine criteria specific to sand and gravel
operations in '734.3. If necessary to protect the public safety or welfare, the Planning
Commission, and hence this Court in this de novo proceeding, may impose conditions


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related to the sixteen special criteria in '734.2.
       Certain of the criteria are inapplicable and will not be further discussed. The
proposal will have no adverse effect on the utilization of renewable energy resources.
'734.1e. The proposal will have no adverse effect on the capacity of existing or planned
community facilities. '734.1a. All parking and loading is proposed to take place at the pit
site well away from the road. 734.2b. Appellee-Applicant has not now proposed any signs;
if one is proposed at the access road, it will have to meet the criteria of '550 and may
require a minor amendment of this permit. '734.2g. Appellee-Applicant does not propose
any structures or service areas ('734.2d); any outside displays ('734.2i); any outside
storage of goods ('734.2j); or any on- site or municipal water supply or sewage disposal
('734.2k). Portable toilets will be provided for the use of employees and truck drivers on
site. Appellee-Applicant does not propose any extension of a non-conforming operation.
'734.3g.
       The proposal will not have any no undue adverse effect on the scenic or natural
beauty of the area or its aesthetics. The site was formerly operated as a gravel pit and
now appears as an abandoned gravel pit, with unreclaimed areas, although it is not visible
from beyond Appellee-Applicant=s property except that it is partially visible from certain
limited areas on Appellants= property. '734.2n. After reclamation, it will have an improved
appearance compared to its present appearance, and will blend in with the surrounding
rolling landscape. The project site affects no historic sites, and no important wildlife habitat
or rare or irreplaceable natural areas identified in the Town Plan or in State law.
       Section 734.3a is satisfied by the proposed reclamation plan; however, the Court
cannot find that the cost in present dollars of the proposed reclamation plan has been
adequately updated from the 1997 estimate. Accordingly, while Appellee-Applicant is
willing to post a performance bond or letter of credit to cover the cost of the reclamation
plan, the Court will impose a condition requiring ZBA approval of an updated plan and bond
amount prior to the commencement of excavation.
       Sections 734.3b and 734.3h are satisfied by Appellee-Applicant=s proposal not to
remove any topsoil off the site, and to grade the stockpiled topsoil over the site and to
restore the site, fertilize, mulch and reseed it to result in a rolling landscape after extraction


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is complete. The finish slopes are proposed to be in the range of 6% to 8%, and will not
under any circumstances exceed 50% (a 1:2 slope). Any slopes greater than 20% (a 1:5
slope) will be adequately stabilized by being planted with a mix of aspen and white pine
seedlings at a density of 600 per acre. Section 734.2f pertaining to grading is satisfied by
the more specific requirements of 734.3b.
       Section 734.3i is satisfied by Appellee-Applicant=s proposal to allow no more than 5
acres at a time to be open for excavation, with the additional requirement that areas
beyond the initial five acres may be opened to excavation only after the corresponding
portion of the exhausted site has been stabilized and restored as provided in the
reclamation plan.
       Section 734.3c is satisfied by the fact that the Stetson gravely soils within the pit are
very well drained, and by Appellee-Applicant=s proposal to slope the pit floor towards the pit
face in a so-called cup shape, allowing surface drainage by infiltration through the pit floor.
       Sections 743.3d and 734.3e are satisfied by Appellee-Applicant=s proposal, with the
conditions that no excavation or blasting shall occur within 200 feet of the property line and
no operation of powered processing or sorting equipment shall occur within 300 feet of the
property line. Appellee-Applicant proposes to conduct these operations only within the
proposed hours of 7 a.m. to 5 p.m. Monday through Friday, and only to conduct loading
activities during the Saturday operating house of 7 a.m. to noon, which the Court finds to
be reasonable operating hours for those activities. Powered equipment necessary to load
gravel onto trucks may be operated during the Saturday hours of 7 a.m. to noon, as well as
during the weekday hours. Dust from the sorting equipment will be controlled with water
and will be controlled from blowing onto Appellants= property by the forested buffer,
satisfying '734.3e . Dust from the pit floor and roadways will be controlled with water and
calcium chloride as necessary. No residential structures are located within close proximity
to the excavation site.
       Section 734.2(l) will be satisfied by a condition that no explosives be stored at the
site and that any fuel kept on site for use by the site machinery be stored in compliance
with all state or federal fire safety and environmental standards.
       Section 734.3f will be satisfied by imposing as a condition that, in addition to the


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slope stabilization requirements as the site is undergoing reclamation, during excavation
any slopes in excess of 1:2 shall be adequately fenced.
       The traffic to be generated by the proposal will not exceed the capacity of Town
Road #1 or adversely affect traffic on the roads or highways in the vicinity. '734.1c. Town
Highway #1 is used by traffic traveling through the Town from elsewhere, and has not been
shown to be near its capacity limit. Approximately half the expected output of this gravel pit
will be allocated to the Town, which otherwise would have had to bring gravel into the Town
over the roads and highways in the vicinity. Accordingly, only at most half of the traffic to
be generated by the proposed operation is traffic to be added to the roadways. Even if all
that remaining traffic is additional traffic, an additional five round trip truck trips per day will
not adversely affect the traffic on the nearby roads and highways.
       Section 734.2e will be satisfied in that the configuration of the intersection of the
access road with Town Road #1 has been changed to provide a safe right angle turn, a
road width at the entrance to accommodate gravel trucks and fire and safety vehicles, and
a paved apron to prevent road surface gravel from migrating onto Town Highway #1. The
access road is to be posted with speed limit of 15 mph, except for a 10 mph speed limit in
the final 500 feet as the trucks approach Town Highway #1.                 In addition, the new
configuration of the access road will require that trucks move slowly to make the turn at the
bottom of the access road. The area for vehicular circulation within the pit floor will be wide
enough to allow for the adequate circulation of gravel trucks and fire and safety vehicles,
as well as to minimize the occurrence of the automatic backup beepers required by Federal
law. Sight distances in both directions are adequate at the Town Highway #1 speed limit of
35 miles per hour, augmented by the required safety signs warning of Atrucks entering.@
       Section 734.2h imposes a requirement that the proposal not generate Aobnoxious or
excessive noise, smoke, vibration, dust, glare, odors, electrical interference or heat that is
detectable at the boundaries of the lot.@ With the forested buffer and the earth berms, the
proposal will not generate obnoxious or excessive smoke, vibration, dust, glare, odors,
electrical interference or heat detectable at the boundaries of the lot, but no evidence was
presented to allow the Court to conclude that Appellee-Applicant=s proposed limitation of
the noise level at the property boundaries to 75 dBA (except for the noise from trucks)


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would necessarily satisfy '734.2h. Accordingly, the Court will instead impose as a
condition that the performance standard of '734.2h be met by the actual operation of the
facility. Appellee-Applicant proposes to create a pit floor area large enough to minimize the
need for trucks or pit machinery to have to activate backup beepers; to place the stockpiled
topsoil in berms designed to reduce noise traveling beyond the property boundaries; to limit
the speed on and the slope of the access road to reduce truck noise and reduce the need
for the trucks to use their so-called jake brakes; to limit Saturday hours of operation to
loading, with no processing or extraction, and to remain closed on Sundays and holidays,
and to plant additional trees where the access road approaches the property boundary
near the intersection with Town Highway #1.          Additional noise-reduction would be
available, if necessary, by lining the chutes of the gravel-handling machinery with rubber or
wood. It is likely that the noise reduction strategies proposed by Appellee-Applicant,
together with Appellee-Applicant=s professed willingness to work with the neighboring
property owners to install additional noise reduction methods if necessary, will enable the
project to meet the performance standard.
       With the conditions imposed by the Court, the proposal will not adversely affect the
character of the area. '734.1b. The character of the area is a mixed use rural area,
including residential, agricultural and municipal uses (including agricultural and town road
maintenance machinery) as well as a light industrial use. The project location was formerly
in use as a gravel pit and the resumption of that use remains consistent with the character
of the area, so long as an adequate forested buffer is left between the project area and the
property boundary, and additional trees are planted in the area between the newly-
configured access road and the property boundary, where the access road approaches the
boundary near Town Highway #1. With the conditions imposed by this decision, the
proposed use is not expected to adversely affect Appellants= and others= continued
enjoyment of and access to existing and approved uses in the vicinity. 734.2m. The
maintenance of the forested buffer and planting of an additional buffer near Town Highway
#1 will satisfy '734.2c regarding landscaping, and no increase in the minimum setbacks is
necessary to protect the neighboring property from the proposed operation. '734.2a.
       With the conditions imposed upon it by this decision, the proposal will comply with


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all bylaws and regulations in effect at the time of the application. '734.1.d. No other
conditions are necessary for the safety and general welfare of the public, '734.3j, or to
satisfy the conditional use criteria. '734.2o.


       Based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellee-
Applicant=s application for a conditional use permit to conduct a gravel pit operation on his
property in Lincoln is GRANTED for the following limited time period and under the
following conditions, for 24 months from the time this order becomes final, subject to
renewal of the permit upon application at any time after one full operating season.
       Appellee-Applicant shall submit for approval by the ZBA a revised reclamation plan
and associated budget of costs, updated in value to the date of this order. Upon approval
of such plan and prior to commencement of extraction, Appellee-Applicant shall post a
bond or execute a letter of credit sufficient to cover the reclamation plan.
       The gravel pit shall be operated within the 7-acre portion of the property shown in
the application, with no more than 5 acres open at any time. All topsoil shall be stockpiled
in berms placed so as to reduce the migration of noise and dust from the site, and shall be
used in the reclamation of the site. During excavation any slopes in excess of 1:2 shall be
adequately fenced. Reclamation of the site shall follow the reclamation plan to stabilize all
slopes, and shall result in a rolling landscape with typical slopes of 6% to 8%, with no
finished slope greater than 50% (1:2).
       No more than 20,000 cubic yards of material shall be removed annually, within the
period from April 15 through November 15. The hours of operation are Monday through
Friday from 7 a.m. to 5 p.m. and Saturdays from 7 a.m. to noon, except that only loading
and trucking, that is, no processing or sorting, shall be conducted on Saturdays, except
during emergency conditions and with prior notice to all neighboring landowners and the
Zoning Administrator.
       No more than 60 truck round-trips shall occur in any week, and not to exceed fifteen
truck round-trips in any single day, except that in April of each year Appellee-Applicant may
designate three weeks in the spring and in September of each year Appellee-Applicant
may designate three weeks in the fall, during which up to 120 truck round trips may occur


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per week, not to exceed 20 round trips in any single day. Appellee-Applicant shall give at
least one week advance notice in writing to all adjoining landowners and to the Zoning
Administrator of the designated weeks of increased activity.
       Gravel crushing equipment may be operated for no more than four weeks in any
calendar year, with at least two weeks advance notice in writing to all adjoining property
owners and to the Zoning Administrator. If any blasting is necessary, adjoining property
owners and the Zoning Administrator shall be notified in writing at least three weeks in
advance.
       No explosives shall be stored at the site. Any fuel kept on site for use by the site
machinery shall be stored in compliance with all applicable state and federal fire safety and
environmental standards.
       No excavation or blasting shall occur within 200 feet of any property boundary, and
no powered processing or sorting equipment shall be operated closer than 300 feet to any
property boundary. No obnoxious or excessive noise levels from the operation, except for
that from occasional blasting, shall occur which is detectable at any property boundary.
Appellee-Applicant shall enforce a speed limit of 15 miles per hour for trucks on the access
road, and shall make every effort to minimize noise from the operation of the gravel pit,
including to stockpile processed material in a noise-reducing berm, to plant additional trees
near the entrance to the Town Highway, to maintain a large enough pit floor area to
minimize the need for trucks to back up, to use sonic or Asmart@-type backup alarms on all
machinery on which standard back-up alarms are not required by federal or state law, and
to reduce slopes on the access road to minimize the need for loaded trucks to use their so-
called jake brakes.
       Appellee-Applicant shall install a stop sign on the access road as it exits onto Town
Highway #1, Appellee-Applicant shall arrange for the installation of Atrucks entering@
warning signs in both directions on Town Highway #1 approaching the access road
intersection. Appellee-Applicant shall impose a 10 mile per hour speed limit on the last
500 feet of access road approaching the intersection with Town Highway #1.
       Within the initial 24 months of operation, the Town of Lincoln Zoning Administrator
and ZBA may conduct such site visits, noise measurements or other investigation to allow


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the ZBA to rule on an application for renewal of the permit. An application for renewal of
the permit may be made prior to the expiration of this initial permit term but no sooner than
after the first twelve months from the date this order becomes final.

       Dated at Barre, Vermont, this 4th day of October, 2000.



                                   ______________________________________
                                   Merideth Wright
                                   Environmental Judge




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