NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.


                                           2016 VT 87

                                          No. 2016-032

In re North East Materials Group LLC Act 250 JO #5-21         Supreme Court
(Russell Austin, Pamela Austin, Julie Barre, Marc Bernier,
et al., Appellants)
                                                              On Appeal from
                                                              Superior Court,
                                                              Environmental Division

                                                              May Term, 2016


Thomas G. Walsh, J.

Laura B. Murphy and Douglas A. Ruley, Environmental and Natural Resources Law Clinic,
 South Royalton, for Appellants.

Alan P. Biederman of Biederman Law Office, and James P.W. Goss of Facey, Goss & McPhee,
 P.C., Rutland, for Appellees North East Materials Group and Rock of Ages.

William H. Sorrell, Attorney General, and Gavin J. Boyles, Assistant Attorney General,
 Montpelier, for Amicus State of Vermont.


PRESENT: Dooley, Skoglund, Robinson and Eaton, JJ., and Pineles, Supr. J. (Ret.),
         Specially Assigned


       ¶ 1.    DOOLEY, J. This case is here for the second time, following the Environmental

Division’s decision on remand that a rock-crushing operation by North East Materials Group, LLC,

(NEMG) is exempt from Act 250 as a preexisting development. The Environmental Division

reached the same conclusion in its first decision, but we reversed and remanded, holding that the

court used the wrong legal standard in deciding that the rock-crushing operation did not constitute

a cognizable physical change to the preexisting development and that one of the main factual

findings in support of the decision was clearly erroneous. In re North East Materials Grp. LLC

Act 250 JO #5-21, 2015 VT 79, __ Vt. __, 127 A.3d 926 [hereinafter NEMG I]. Appellants, a
group of thirteen neighbors (neighbors), appealed, arguing that the Environmental Division erred

in applying our instructions on remand. We now conclude that, even assuming that crushing

operations were part of the preexisting quarrying development, findings on the location and

volume of the crushing operations are too limited to support a conclusion that the present

operations do not constitute a cognizable change to the existing development. We reverse.

       ¶ 2.    As an overview, the issues in this case are: (1) whether rock crushing was conducted

on the tract prior to July 1, 1970, the effective date of Act 250, such that rock crushing is

grandfathered-in and accordingly, no Act 250 permit is required; (2) whether the activity was

abandoned such that its renewal requires an Act 250 permit; and (3) whether there has been a

substantial change in that activity such that an Act 250 permit is required. These issues arise in a

special context—the rock crushing before us is conducted on a relatively small part of a large tract

of land owned by Rock of Ages (ROA), which is used primarily for granite quarrying. In general,

NEMG has argued that activities anywhere on the ROA land count in determining whether rock

crushing is grandfathered-in, whether rock crushing has been abandoned and whether there has

been a substantial change in the rock-crushing activity; the Environmental Division accepted this

position in its first decision. Neighbors, on the other hand, have argued that only activities

conducted on the NEMG rock-crushing site should count in determining the three issues. Also in

general, our decision accepted NEMG’s argument with respect to whether rock crushing activity

was grandfathered-in, but accepted the neighbors’ argument with respect to substantial change; the

second part of the decision caused the partial remand. As detailed below, the Environmental

Division again effectively accepted NEMG’s arguments, but changed the rationale with respect to

substantial change. Neighbors argue here that the new rationale is inconsistent with our first

decision and must be reversed. NEMG argues that the new rationale is fully consistent with our

first decision and must be affirmed. Thus, the main question we must decide is whether the new

rationale, accompanied by some new findings of fact, can support the conclusion that there has

been no substantial change.
                                                 2
       ¶ 3.    We will not repeat the facts as first found by the Environmental Division. These

are contained in our first decision, and the reader is invited to read them there. See NEMG I, ¶¶ 2-

9. To the extent that additional findings relate to the issues before us, we consider them with our

discussion of these issues.

       ¶ 4.    Before we look at NEMG I and the subsequent decision of the Environmental

Division, we examine the legal principles that govern that case. As we noted above, development

begun before June 1, 1970, the effective date of Act 250, does not require a permit. Id. ¶ 15. This

exemption, however, is limited by the caveat that “any substantial change in such excepted

subdivision or development” is subject to the ordinary permit requirement. 10 V.S.A. § 6081(b).

A “substantial change” is defined as “any change in a preexisting development . . . which may

result in a significant adverse impact with respect to any of the [ten Act 250 criteria].” Act 250

Rules, Rule 2(C)(7), Code of Vt. Rules 12 004 060-3, https://perma.cc/72EL-9ZSW.                The

Environmental Board has established a two-pronged test to determine if a new development

constitutes a substantial change, and this Court has repeatedly upheld that test. See In re Vt. RSA

Ltd. P’ship, 2007 VT 23, ¶ 10, 181 Vt. 589, 925 A.2d 1006 (mem.). Under the test, we first look

to determine if a cognizable change to the existing development will result from the project in

question. If so, we go on to determine whether the change has the potential for significant impact

under any of the Act 250 criteria in 10 V.S.A. § 6086(a). Id. (citing Sec’y, Vt. Agency of Nat.

Res. v. Earth Constr., Inc., 165 Vt. 160, 164, 676 A.2d 769, 772 (1996)). Even a modest change

may be considered a cognizable change. NEMG I, 2015 VT 79, ¶ 31 (citing In re Vt. RSA Ltd.

P’ship., 2007 VT 23, ¶ 11). A thing is cognizable as long as it is “capable of being known or

recognized.” Black’s Law Dictionary (10th ed. 2014). This indicates that a change should be

considered cognizable as long as it is notably distinct from whatever preceded it.

       ¶ 5.    Any party seeking an exemption from Act 250 jurisdiction on the basis of a pre-

existing development commenced before 1970 has the burden of providing evidence sufficient to

demonstrate the existence and nature of the pre-existing development.           In re Request for
                                           3
Jurisdictional Op.(F-35A Case), 2015 VT 41, ¶ 26 n.7, 198 Vt. 510 117 A.3d 457 (citing In re Vt.

RSA Ltd. P’ship, 2007 VT 23, ¶ 10). Once a development has been established as exempt from

Act 250 jurisdiction, any party seeking to subsequently impose jurisdiction has the burden of

showing that there has been a substantial change to the preexisting development. Id. However,

the burden is still on the holder of the exemption to provide sufficient information on pre- and

post-1970 operations to allow the finder of fact to ascertain if a substantial change has occurred.

In re Thomas Howrigan Gravel Extraction, Declaratory Ruling No. 358, slip. op. at 14 (Vt. Envtl.

Bd. Aug 30, 1999), https://perma.cc/2UKV-FRSP (finding party invoking exemption must

“produce information concerning the scope of pre-1970 operation and the post-1970 operation

sufficient for the Environmental Board to determine whether a substantial change has occurred”

(citation omitted)). This is because the owner or operator of the development is far more likely to

have historic knowledge of the site, and it is far more practicable for them to produce this evidence

than a plaintiff with no personal knowledge of their operations. To place the burden of providing

historic economic evidence wholly on the party seeking jurisdiction would prevent many parties

from bringing suit, effectively shutting out local interests that Act 250 was designed to enfranchise.

In re Barefoot Act 250, No-46-4-12, Vtec, at 5 (Vt. Envtl. Ct. April 5, 2013),

https://perma.cc/CNK8-SQ6D (recognizing “long-standing principles of encouraging public

participation in state and local land-use deliberations”); In re Lathrop Ltd. P’ship I, No. 122-7-04

Vtec, at 2 2014 WL 860823, at *1 (Vt. Envtl. Ct. Feb. 11, 2014), https://perma.cc/6GYG-UNUX

(stating public participation is “woven into” Act 250).

       ¶ 6.    Moreover, the absence of either historic or current evidence does not relieve the

party seeking an exemption of their burden of production either in demonstrating the existence of

a preexisting development or defending against imposition of jurisdiction based on substantial

change. See In re Orzel, 145 Vt. 355, 359, 491 A.2d 1013, 1015 (1985) (“The Board cannot

determine whether some activity constitutes a substantial change to a pre-existing operation unless

it is made aware of what that activity is.”); In re John Gross Sand & Gravel, Declaratory Ruling
                                                  4
No. 280, slip op. at 11 (Vt. Envtl. Bd. July 28, 1993), https://perma.cc/J42M-N4YQ (“[T]his

situation does not excuse the Petitioner from meeting its burden of production.”).

       ¶ 7.    On remand, the lower court is bound by the scope of our remand instructions, and

may only reopen issues that are within that scope. In re Twenty-Four Vt. Utils., 159 Vt. 363, 367,

618 A.2d 1309, 1311 (1992). Furthermore, the lower court is bound to follow the specific

instructions given by this Court, interpreted in the light of the opinion. Coty v. Ramsey Assocs.,

154 Vt. 168, 171, 573 A.2d 694, 695 (1990) (citing Halpern v. Kantor, 139 Vt. 365, 367, 428 A.2d

1132, 1134 (1981)). It is error for the lower court to pursue and rely on findings or reasoning that

this court has already struck down. Cleverly v. Cleverly, 151 Vt. 351, 354, 561 A.2d 99, 100

(1989) (citing Isabelle v. Proctor Hosp., 132 Vt. 243, 245, 315 A.2d 241, 243 (1974)). The purpose

of the mandate is to ensure closure—if parties are allowed to reintroduce rejected arguments, and

courts are allowed to reapply rejected logic, then “there would be no end to the litigation until the

ability of the parties or the ingenuity of their counsel were exhausted.” Coty, 154 Vt. at 171

(quotation and citation omitted).

       ¶ 8.    NEMG I started its analysis by noting that the Environmental Division had rested

its decision on the view that the entire ROA tract was an “undifferentiated whole” for purposes of

determining whether there was a preexisting development, as well as for determining whether there

had been substantial change, so that rock-crushing activity anywhere on the ROA tract is relevant

to show both preexisting development and the absence of substantial change. We held that “we

do not take issue with the Environmental Division’s broad approach to defining preexisting

development.” NEMG I, 2015 VT 79, ¶ 24. For a number of reasons, however, we disagreed with

the “undifferentiated whole” approach in determining whether there has been a substantial change.

We held that

               [O]ur conclusion [is] that some level of granuality (rather than a
               uniform ‘tract-wide’ approach) is required in assessing substantial
               change in connection with quarrying operations … [such that] [p]re-
               1970 crushing operations on one or more parts of a large tract cannot
               simply be imputed to all parts of the tract for purposes of the
                                               5
                substantial change analysis, without regard to the relative inputs of
                the pre-and post-1970 operations in the vicinity of the proposed
                change.

Id. ¶ 30.

        ¶ 9.    We added, “the deployment of heavy industrial equipment that qualifies as

development in a vicinity where it has not previously been deployed is a cognizable change” and

concluded “we accordingly reverse the Environmental Division’s conclusion that the challenged

rock-crushing activity is not a cognizable change.” Id. ¶ 31.

        ¶ 10.   Our decision went on to conclude that one of the Environmental Division’s

findings, which supported its conclusion that preexisting development had occurred and that there

had been no abandonment of that development, was clearly erroneous. In light of both errors, our

remand instructions were as follows:

                 On remand, in light of this opinion and the record evidence, the
                Environmental Division should revisit its findings concerning
                whether NEMG’s rock-crushing operations fit within the general
                scope of ROA’s pre-1970 development; whether the rock-crushing
                operations, if established as part of the pre-1970 development, were
                abandoned; and, whether, if the pre-existing development does
                include rock-crushing operations generally, NEMG’s operations in
                this case give rise to a substantial change, analyzed consistent with
                the guidance set forth above.

Id. ¶ 36.

        ¶ 11.   In this decision, we will focus only on the substantial change issue. Thus, we

assume for purposes of this decision that the Environmental Division on remand properly

concluded, based on its findings, that there was a preexisting development that included rock

crushing on the ROA tract and that development had not been abandoned. In narrowing the issues,

we recognize that there is some ambiguity in the remand instructions. Neighbors argue that we

held that the first prong of the substantial change test—whether a cognizable physical change to

the preexisting development has resulted or may result from the project—was met as a matter of

law and was not open to reconsideration on remand. NEMG argues that, like the other issues in

the case, the Environmental Division could reconsider this issue based on new findings and it did
                                               6
this on remand. Although we conclude that neighbors have the better argument, we also conclude

that this dispute over the scope of the remand makes no difference to the outcome. Thus, we will

look at the Environmental Division’s new findings and rationale.

        ¶ 12.   Essentially, the Environmental Division on remand added one finding relevant to

the substantial change issue—that, in 1988, ROA signed a contract with a paving company “to

remove rock from ROA’s grout piles and crush it off-site” and that the contract stated that the

paving company had been removing rock for a period of time and that the purpose of the contract

was to formalize the practice. From that finding the court drew the inference “that it is common

practice in the quarrying industry to conduct crushing without formal contracts.” Putting aside

that the contract was for removal, with any crushing occurring off-site, rather than for crushing,

the finding and the court’s inference adds little to its analysis.

        ¶ 13.   Thus, the Environmental Division’s action was effectively a reconsideration

without new findings of the rationale on which it had found no substantial change in the first

instance—in the context of the remand it was an argument that this Court should reconsider its

conclusion on substantial change in NEMG I. Although we are open to reconsideration of an ill-

considered decision, we note that reconsideration is not within the scope of a remand and our

decision in NEMG I was final with respect to this case and these parties. Will v. Mill Condo.

Owners’ Ass’n, 2006 VT 36, ¶ 9, 179 Vt. 500, 504, 898 A.2d 1264, 1268 (“By ignoring the impact

of our holding . . . , the trial court failed to implement the remand order in light of the content of

our opinion.”); see also Bissonnette v. Wylie, 168 Vt. 561, 562, 711 A.2d 1161, 1163 (1998)

(mem.) (holding trial court’s reargument of case on remand was “too late” because “if we had

accepted that argument, the remand that led to this appeal would have been unnecessary”).

Nevertheless, we will address the substance of the remand decision.

        ¶ 14.   In reaching its decision, the Environmental Division looked at precedents involving

gravel pits and concluded that under those cases “gravel pits could continue to expand at their

historic rates without triggering Act 250 jurisdiction because they were being operated in
                                              7
essentially the same manner as they were before 1970.” By contrast, the court noted that “[i]f,

however, a gravel pit either dramatically increased its rate of extraction or expanded into a

sufficiently distinct portion of a tract, the expansion could be considered a cognizable physical

change.” Going on to rock crushing, the court found that “just as gravel pits naturally and

inherently expand, rock crushing operations are naturally and inherently mobile.” Thus, it held

that “the relocation of rock crushing operations from one area of a well-developed preexisting

quarry to another is consistent with the rock crushing operation’s historic pattern of relocation.”

Specifically, it held that if “crushing has historically occurred on widely scattered, well-developed

areas on a tract, a move to yet another (already developed) site, even across natural boundaries and

even at significant distances, might still mean the development is ‘operated in essentially the same

manner as it was before June 1, 1970.’”

       ¶ 15.   The court concluded that the above statement of historical fact characterized the

current rock crushing activity: “Movement across significant distances and public highways has

always characterized ROA’s (or its constituent quarry operators’) crushing operations.” It found

that the current site was already developed because the evidence showed rock crushing occurred

on the site a hundred years ago. Its holding that there was no cognizable physical change was as

follows:

                In summary, while we do not hold the mere fact that crushing
               occurred on the NEMG site nearly a century ago to be conclusive in
               defeating a claim of cognizable physical change, we do hold that
               crushing at the NEMG site is no more dramatic a relocation than
               other relocations in ROA pre-1970 history, especially considering
               that the NEMG site has experienced crushing in the past. We
               conclude that the present relocation of ROA’s crushing to NEMG’s
               site is consistent with the intrinsically portable nature of rock
               crushing and with ROA’s historic pattern of mobile crushing
               operations. We therefore conclude that the ROA tract is being
               “operated in essentially the same manner as it was before June 1,
               1970,” and that no cognizable physical change has occurred.

The court went on to consider the second prong of the substantial change test—whether a

cognizable physical change has the potential for significant impact under any of the Act 250

                                                 8
criteria—in case we did not accept its conclusion on the first prong. It held that the second prong

was also not met because the relocation of crushing to the NEMG site does not cause new impacts;

instead, it “simply impacts new neighbors.”

       ¶ 16.   The Environmental Division’s new rationale, or restatement of its original

rationale, reaches the same result essentially for the same reason. As we understand it, the court

might reach a different result only in a situation where there had never been rock crushing at the

current location or nearby. As we observed above, the mobility of rock-crushing activity on the

locations of former rock-crushing activities were included in the court’s original findings. For

example, the court found that “NEMG’s crushing operations have moved around the ROA

property over this time [that NEMG has been on the ROA tract].”

       ¶ 17.   We find that the new rationale is inconsistent with our analysis of substantial

change in NEMG I. There, we held that a framework that would “cut off the substantial-change

analysis at the cognizable-physical-change step”, which would in turn disregard the actual change

in the impact of proposed development at a site just because similar development had already taken

place within the tract is “inconsistent with Act 250’s focus on discerning the impact of proposed

development.” NEMG I, 2015 VT 79, ¶ 26. We explained that “the location of a particular activity

or operation within a tract is often inextricably connected to its impact.” Id. ¶ 27. We stated our

position as follows: “We cannot agree that instances of crushing operations decades ago and miles

away from the site of NEMG’s present operations can be viewed as establishing some sort of

baseline defeating any claim that NEMG’s present operations constitute a cognizable change.” Id.

¶ 24. The Environmental Division’s rationale would take us back to the view that the location of

development on the ROA tract is generally irrelevant, a view we explicitly rejected in NEMG I.

       ¶ 18.   Once it has been determined that a cognizable change has occurred, the next step

in the substantial change analysis is to determine whether the change has a potential for significant

impact under one or more of the statutory Act 250 criteria specified in 10 V.S.A. §§ 6086(a)(1)


                                                 9
through (a)(10). In re Hale Mountain Fish & Game Club, Inc., 2007 VT 102, ¶ 4, 182 Vt. 606,

939 A.2d 498 (mem.) (citing Earth Constr., Inc., 165 Vt. at 164, 676 A.2d at 771).

        ¶ 19.   When reviewing Act 250 permit applications, the district environmental

commissions and the Environmental Division routinely engage in impact analysis that is location-

specific and evaluates the impacts on particular neighbors or households. See, e.g., In re Lathrop

Ltd. P’ship., 2015 VT 49, ¶¶ 74–88, 199 Vt. 19, 121 A.3d 630 (analyzing impact of gravel-

extraction operations on neighbors by measuring noise in decibels at property line). On remand,

the Environmental Division added findings on the impact of the rock-crushing activities on

neighboring residents. They show that that the neighbors experience dust, traffic, and noise as a

result of the rock-crushing operation. Here, the three impacts demonstrated in the findings

correspond to the criteria specified in 10 V.S.A. § 6086(a)(8), “an undue adverse effect on the

scenic or natural beauty of the area, aesthetics, historic sites or rare and irreplaceable natural areas.”

See, e.g., In re Lathrop Ltd. P’ship, 2015 VT 49, ¶ 78.          In addition to the adverse effect on

aesthetics, the traffic could be seen as causing “unreasonable congestion or unsafe conditions with

respect to use of the highways,” § 6086(a)(5)(A), while the dust could be “undue water or air

pollution.” § 6086(a)(1).

        ¶ 20.   This Court has previously held that a development will not have an undue adverse

effect on aesthetics if it (1) does not violate a clear, written community standard intended to

preserve the aesthetics or scenic, natural beauty of the area; (2) does not offend the sensibilities of

the average person; and (3) takes generally available mitigating steps that a reasonable person

would take to improve the harmony of the proposed project with its surroundings. In re Cross

Pollination, 2012 VT 29, ¶ 10, 191 Vt. 631, 47 A.3d 1285 (mem.) (citing In re UPC Vt. Wind,

2009 VT 19, ¶ 24, 185 Vt. 296, 969 A.2d 144). We recognize that there has been no evidence and

findings with respect to a clear community standard or with respect to possible mitigation. We are

looking here for only potential significant impacts under the relevant criteria. We conclude that

the likely effect of the noise and clouds of rock dust on the sensibilities of the average person is
                                                 10
significant enough to reach the potential impact as a matter of law and that the second prong of the

substantial change test has been met under the trial court’s findings.

       ¶ 21.   In reaching this conclusion, we reject the Environmental Division’s analysis of why

it found the second prong was not met. It concluded that there were no new potential significant

impacts under the Act 250 criteria, but only the same impacts on new neighbors, and as a result

the impacts could not be considered under the second prong test. The court’s evaluation of the

second prong follows its analysis of the first prong—that location was not determinative for mobile

crushing equipment and activities. For the same reason that we reject that analysis under the first

prong, we reject it here.

       ¶ 22.   For the reasons stated above, we reverse the Environmental Division’s holding that

the NEMG rock-crushing operation is not subject to Act 250 jurisdiction. NEMG is required to

submit an Act 250 application and obtain an Act 250 permit to continue its rock-crushing activities.

       Reversed.

                                                FOR THE COURT:



                                                Associate Justice


       ¶ 23.   EATON, J., dissenting. In my view, the Environmental Division followed this

Court’s remand instructions and issued a ruling supported by the law and the evidence. In

reversing the Environmental Division’s decision, the majority—despite stating otherwise—

effectively collapses the established two-part substantial-change test and places the burden on

North East Materials Group (NEMG), contrary to our law, to prove that its challenged rock-

crushing operations are not a substantial change to the preexisting development. Accordingly, I

respectfully dissent.

       ¶ 24.   The majority faults the Environmental Division for failing to make significant new

findings to support its rationale for its decision following our remand, even though we required

                                                 11
the Environmental Division only to “revisit” its findings. In re North East Materials Group LLC

Act 250 JO #5-21, 2015 VT 79, ¶ 36, ___ Vt. ___, 127 A.3d 926 [hereinafter NEMG I]. It was

manifestly evident in the first appeal that during the two-day evidentiary hearing NEMG had

mustered every bit of available evidence of past rock-crushing operations on the Rock of Ages

(ROA) industrial complex over the past hundred-plus years—a task made difficult by the long

existence of the complex and the lack of record-keeping of those operations in the distant past.

Yet, we did not hold that NEMG was required to obtain an Act 250 permit with respect to the

challenged rock-crushing operations.

       ¶ 25.   Rather, we accepted the Environmental Division’s “broad approach” of considering

the entire complex with respect to determining whether the challenged rock-crushing operations

were part of a preexisting development exempt from Act 250, but concluded that a “tract-wide

approach” could not be applied in assessing whether those particular operations constituted a

substantial change to the preexisting development. Id. ¶¶ 24, 29. We noted that the Environmental

Division had “considered any pre-1970 crushing activity anywhere on the entire 1170 acres owned

by ROA as establishing a preexisting development including rock-crushing activities, and as

establishing a baseline of rock crushing such that new rock-crushing facilities or operations

anywhere on the tract would not constitute a substantial change.” Id. ¶ 23 (emphasis in original).

We rejected this position with respect to determining whether the challenged rock-crushing

operations constituted a substantial change to a preexisting development, stating that it would

mean “the absence of prior crushing activity in the vicinity of NEMG’s crushing operations would

be irrelevant, because previous rock crushing elsewhere on ROA lands, even miles away, could

establish a baseline against which NEMG’s operations would be measured in a substantial-change

analysis.” Id. (emphasis added). We did not “agree that instances of crushing operations decades

ago and miles away from the site of NEMG’s present operations [could] be viewed as establishing

some sort of baseline defeating any claim that NEMG’s present operations constitute a cognizable

change.” Id. ¶ 24 (emphasis added).
                                               12
       ¶ 26.   Instead, we held that “some level of granularity (rather than a uniform ‘tract-wide’

approach) is required in assessing substantial change in connection with quarrying operations.”

Id. ¶ 30. We explained that “similar operations [taking] place prior to 1970 at a different site

within the same tract” could be considered, with “factors such as distance between sites and

separation by a public highway affect[ing] the weight to be given to the fact of pre-1970 operations

at another site within the tract.” Id. ¶ 30 n.14; see also id. ¶ 31 (“The deployment of heavy

industrial equipment that qualifies as development in a vicinity where it has not previously been

deployed is a cognizable change.” (emphasis added)).

       ¶ 27.   Accordingly, we did not hold that an Act 250 permit was required. Nor could we

have expected that significant new findings on past rock-crushing activities at the ROA site would

be forthcoming on remand, given NEMG’s exhaustive historical search for evidence concerning

such operations. Rather, we remanded the case for the Environmental Division to “revisit its

findings,” in relevant part, concerning whether “NEMG’s operations give rise to a substantial

change, analyzed consistent with the guidance set forth” in the opinion. Id. ¶ 36. That guidance,

as detailed above, called for a more granular approach, taking into account relative distances from

previous rock-crushing operations, in determining whether the challenged operations constituted

a substantial change.

       ¶ 28.   That is precisely what the Environmental Division did on remand.                The

Environmental Division stated that it was revisiting the existing record after the parties—not

surprisingly given the thoroughness of the evidence presented in the first evidentiary hearing—

declined an opportunity to introduce new evidence. The Environmental Division further indicated

that it was supplementing its findings with several facts to “clarify the relative locations of the

different historical crushing sites on the ROA tract.” In attempting to apply this Court’s analysis

in NEMG I, the Environmental Division struggled to make sense of our determination that a tract-

wide approach could be used in assessing whether the challenged operations were part of a

preexisting development but not in determining whether those operations constituted a substantial
                                              13
change to any such preexisting development. Recognizing that this Court directed it to assign

appropriate weight to different uses on the ROA tract depending on their location within the tract,

and that the fundamental question was whether the preexisting development was being operated

in the same manner as before the enactment of Act 250, the Environmental Division concluded

that the challenged rock-crushing operations were not a cognizable change from past use.

       ¶ 29.   The Environmental Division found that: (1) the historical quarries formed a north-

south line within the ROA industrial complex; (2) there had been rock-crushing operations in the

early twentieth century and after 1970 on the challenged site, which is located within the second

southernmost of the four quarries; and (3) there had also been pre-1970 crushing operations of at

least a similar rate and intensity at the second northernmost quarry approximately 0.8 miles from

the challenged site and at the northernmost quarry approximately 1.6 miles from the site.

Considering the relative distance between the various rock-crushing operations over the past one-

hundred-plus years along the line of quarries within the industrial complex, the Environmental

Division concluded that the challenged crushing operations fit squarely within the pattern of

crushing operations that had occurred intermittently over many decades before the enactment of

Act 250—a pattern of relocating the operations from one area of a preexisting quarry to another as

needed depending on where the stone was being extracted. The Environmental Division further

concluded that there was no cognizable change in activity because the crushing operations were

part and parcel of dimension stone quarrying and were inherently mobile and intermittent in nature.

       ¶ 30.   In short, just as this Court directed, the Environmental Division revisited its

findings, adding a few with respect to the specific location of past rock-crushing operations, and

took a more granular approach in determining whether there had been a cognizable change with

respect to the challenged crushing operations. After carefully considering the extensive record,

the Environmental Division concluded—like three different District 5 Environmental Commission

coordinators before it—that there was no cognizable change and thus no Act 250 permit was


                                                14
required. Both the record and the law fully support the Environmental Division’s findings, its

rationale, and its ultimate conclusion.

       ¶ 31.   The majority rejects the Environmental Division’s new rationale as inconsistent

with the substantial-change analysis set forth in NEMG I because it cut off the analysis at the

cognizable-change step. By rejecting the Environmental Division’s analysis on this basis, the

majority overtly collapses the established two-part substantial-change test, even though this Court

explicitly stated in NEMG I, as recognized by the Environmental Division on remand, that we

were not collapsing the two prongs of the test into one. 2015 VT 79, ¶ 31 n.16; see In re Vt. RSA

Ltd. P’ship, 2007 VT 23, ¶¶ 10-11, 181 Vt. 589, 925 A.2d 1006 (mem.) (noting that Environmental

Board analyzed potential for significant impacts only after finding that cognizable-change prong

had been met); In re F.W. Whitcomb Constr. Co., Declaratory Ruling No. 408, slip op. at 11 (Vt.

Envtl. Bd. Aug. 28, 2002), https://perma.cc/WCL7-ARWQ (“Because the Board finds no

cognizable physical change, the Board does not go on to determine whether any change has the

potential for significant impact under any Act 250 criterion.”).

       ¶ 32.   The majority also effectively imposes upon NEMG the burden of proving no

substantial change, while at the same time acknowledging that our law places that burden of proof

on the party claiming a substantial change to a preexisting development. As the majority

recognizes, a party seeking to impose Act 250 jurisdiction with respect to a preexisting

development has the ultimate burden of showing that there has been a substantial change to the

preexisting development. Vt. RSA Ltd. P’ship, 2007 VT 23, ¶ 10. To be sure, the Environmental

Board ruled in past decisions that the holder of the Act 250 exemption has the burden of producing

sufficient information on pre- and post-1970 operations to allow the finder of fact to ascertain if a

substantial change has occurred. In re Thomas Howrigan Gravel Extraction, Declaratory Ruling

No. 358, slip op. at 14 (Vt. Envtl. Bd. Aug. 30, 1999), https://perma.cc/VG6M-CQQB. But, as the

majority recognizes, this burden of production is placed on the owner/operator of the preexisting


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development because of the practicality of placing the burden on the party most likely to have that

information. That burden was met here.

       ¶ 33.   The instant case is far different than those relied upon by the majority, in the sense

that NEMG was not withholding information that it should have kept. Cf. In re John Gross Sand

& Gravel, Declaratory Ruling No. 280, slip op. at 11 (Vt. Envtl. Bd. July 28, 1993),

https://perma.cc/7C3A-5AXM (stating petitioner’s claim that records concerning various

businesses were commingled and intertwined did not excuse petitioner “from meeting its burden

of production” regarding gravel extraction rates before and after 1970). Nor is this a situation

where the owner/operator of the preexisting development did not disclose the nature of the

proposed activity. Cf. In re Orzel, 145 Vt. 355, 359, 491 A.2d 1013, 1015 (1985) (noting Board’s

finding that petitioners had no specific proposal for their operation, and stating that Board could

not “determine whether some activity constitutes a substantial change to a pre-existing operation

unless it is made aware of what that activity is”). Rather, as the Environmental Division found,

the lack of extensive information was due to the hundred-year history of the preexisting

development and the typical lack of record-keeping for past crushing activities.                The

Environmental Division also found that because rock-crushing was “part-and-parcel” with

dimension stone quarrying, it “is precisely the kind of activity that might escape formal recording.”

       ¶ 34.   Still, NEMG was able to uncover through a diligent search of historical records, as

the Environmental Division found, “impressive evidence of historical rock crushing” supporting

the Environmental Division’s conclusion that the challenged crushing operations were not a

cognizable change from pre-1970 crushing activities occurring intermittently over more than a

hundred years on a mile or two line of quarries within the heart of an industrial quarry complex.

On the other side, the objecting parties, upon whom the burden of proof of showing a substantial

change ultimately rests, produced nothing showing that there had been a substantial change. As

the Environmental Division found, rock crushing has been integrally intertwined with dimension

stone quarrying at the ROA complex and has gone on continuously, albeit intermittently, since the
                                             16
early twentieth century. Thus, per this Court’s remand instructions, the Environmental Division

engaged in a more granular approach, ultimately concluding that the inherently mobile rock-

crushing operations had continued intermittently for over a century within a line of quarries that

included the site of the challenged rock-crushing operations as well as other locations within less

than a mile to about a mile and a half of the site.

       ¶ 35.   The majority has never made it clear what are the parameters of its required “more

granular” approach, but apparently, judging from this opinion, NEMG and other companies

operating within the ROA industrial complex will now have to obtain a new Act 250 permit for

rock crushing every time they move their inherently mobile rock-crushing operations to a new spot

in the quarry, despite the evidence of intermittent rock crushing at the NEMG quarrying operations

for over a century. Mirabile dictu! That the majority may not agree with the facts as found by the

Environmental Division does not mean that those facts found are insufficient or unsupported. The

Environmental Division did as they were instructed and reached legal conclusions supported by

the facts it found.     I would affirm the Environmental Division’s decision and therefore I

respectfully dissent.

       ¶ 36.   I am authorized to state that Justice Skoglund joins this dissent.




                                                 Associate Justice




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