                                       STATE OF VERMONT

                                    ENVIRONMENTAL COURT

             In re: Appeal of Casella Waste         }
             Management, Inc. and E.C.              }
             Crosby & Sons, Inc.                    }   Docket No. 110-7-99 Vtec
                                                    }
                                                    }




                              Decision and Order on Scope of Hearing

Appellants appealed from two conditions imposed by a decision of the Zoning Board of
Adjustment (ZBA) of the Town of Manchester granting permission with conditions for a new
access road to their transfer station. Cross-Appellants Sally Mole, Dale Gulbrandsen, Patricia A.
Trudel, Robert and Jeanne Williams, Kurt and Dorothea Ax, and Ruth Fuller White also appealed
from the decision; Patricia A. Trudel later withdrew as a party. Neighbors Perk and Randall
Perkins have intervened as interested parties, as has the Town of Sunderland. Appellants are
represented by John R. Ponsetto, Esq. and Robert F. O= Neill, Esq.; Cross-Appellants are
represented by David W. Gartenstein, Esq.; Intervenors Perkins are represented by Robert E.
Woolmington, Esq.; Intervenor Town of Sunderland is represented by Mary C. Ashcroft, Esq.; the
Town of Manchester is represented by Gary G. Ameden, Esq. Summary Judgment motions were
decided and the parties are preparing for the hearing on the merits.

Section 8.1.1.3 provides for the expansion or extension of nonconforming uses if they will have
no adverse effect upon the public health, safety, convenience and upon property values in the
vicinity. The Court understands public > convenience,= a term more frequently used in public
utility or condemnation cases rather than in zoning cases, to mean whether the proposal is useful
to the public, that is, whether it is fitting or suitable to the public need. Cross-Appellants list
several issues on which they propose to present evidence. We take each of the issues in turn.
Issues (a) regarding truck traffic and (b) regarding noise are within the scope of ' 8.1.1.3. Issue (c)
regarding its effect on A quality of life@ in this vicinity is within the scope of ' 8.1.1.3 but we
caution the parties that the ordinary rules of evidence apply, and that we will expect the evidence
to relate to objective rather than subjective measures of what is commonly called A quality of
life,@ within the conditional use standards.

Issue (d) relates to Cross-Appellants= view that Applicants intend to seek an increase in the
amount of garbage which may be processed at the plant. It is beyond the scope of this
proceeding; the Court has already ruled that any such increase would be the subject of some
future proceeding, if at all. Similarly, regarding issue (e), any history of prior violations or the
difficulty of enforcement, which might be relevant in an enforcement proceeding or under 10
V.S.A. ' 8011, is not relevant to the present case. Cf., In re Appeal of Sardi, Docket No. 99-069
(Vt. Supreme Ct., March 17, 2000 (as amended May 22,2000)).

With regard to issue (f), the zoning ordinance in Sunderland is not a > siting= statute that
provides a mechanism to choose among alternatives. Rather, as in a condemnation action, the
issue of public convenience relates to the public= s need for the particular proposal, rather than
whether it was the best choice among the available alternatives. Therefore, issue (f) is also
beyond the scope of this proceeding.

The issue of the effect of the proposal on property values A in the vicinity@ is not limited to the
effect on adjacent or neighboring properties, but rather to properties within the zone of interests
capable of being affected by the proposal. We will rule on a case-by-case basis as to whether any
of Cross-Appellants= properties or other properties in historic Manchester village are within this
scope.

Issues relating to the conditional use criteria are, of course, within the scope of the proceeding,
although it is difficult for the Court to predict what evidence is suggested by Cross-Appellants=
proffer of evidence to establish that failure to choose other alternatives for mitigating truck traffic
will adversely affect utilization of renewable energy resources. We will not, however, hear
evidence on any asserted violation of the A objectives@ of the Farming and Rural Residential
zoning district, if those objectives are not carried out in actual zoning regulations.

Finally, it is difficult to tell whether Cross-Appellants= reference to evidence about the impact of
the A proposed expansion of Casella= s nonconforming transfer station@ refers to the impact of
the proposed road, or whether it refers to the possibility of future expansions of the capacity of the
transfer station itself. To the extent that it refers to the road, it is within the scope of this
proceeding. To the extent that it refers to the possible future expansion, as already stated, it is
beyond the scope.



                                  th
Done at Barre, Vermont, this 15 day of June, 2001.




___________________
Merideth Wright
Environmental Judge




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