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,
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be made before this opinion goes to press.


                                         2016 VT 15

                                        No. 2014-455

Brisson Stone LLC, Allan Brisson and Michael Brisson         Supreme Court

                                                             On Appeal from
   v.                                                        Superior Court,
                                                             Environmental Division

Town of Monkton and Claudia Orlandi                          September Term, 2015


Thomas G. Walsh, J.

Colin R. Hagan and David J. Shlansky of Champlain Law Group, PLC, Vergennes, for
 Appellants.

Liam L. Murphy of Murphy Sullivan Kronk, Burlington, for Appellee.

James A. Dumont of Law Office of James A. Dumont, P.C., Bristol, for Intervenor-Appellee
 Orlandi.


PRESENT: Skoglund, Robinson and Eaton, JJ., and Morse (Ret.) and Burgess (Ret.), JJ.,
         Specially Assigned


        ¶ 1.   SKOGLUND, J.        In this combined appeal, applicants—Allen Brisson, Michael

Brisson, and Brisson Stone, LLC—claim that their application for a commercial gravel

extraction permit is allowed under the Town of Monkton’s zoning regulations and that their

application should have been deemed approved under 24 V.S.A. § 4464(b)(1). We affirm the

Environmental Division’s denial of the application on the merits and hold that, even if the

application was deemed approved, the deemed approval remedy would not foreclose an

interested party’s timely appeal to the Environmental Division on the permit’s merits.
       ¶ 2.    Allen and Michael Brisson leased part of their 324-acre parcel in Monkton to

Brisson Stone, LLC, to operate a quarry. Applicants then submitted an application for a “gravel

extraction operation” to Monkton’s zoning administrator. The applicants’ proposed site did not

have alluvial deposits; that is, no naturally occurring gravel beds appeared to be on the site.

Instead, the suggested location contained ledge rock. Applicants planned to drill and blast ledge

rock to produce unconsolidated rock and gravel. After blasting, appropriately sized gravel would

be stockpiled for sale. Any non-saleable rock pieces would be processed on-site using sorting

equipment, such as a portable rock crusher and screener. The applicants believed Monkton’s

zoning regulations permitted a proposed gravel operation like theirs that would “remove rock

and stone material from the earth using drilling and blasting, such as quarries.”

       ¶ 3.    The zoning administrator referred the permit application to Monkton’s

Developmental Review Board (DRB) in January 2012.1                Claudia Orlandi, an adjoining

landowner, participated before the DRB as an interested person pursuant to 24 V.S.A. § 4471.

       ¶ 4.    From the outset, the DRB identified a problematic issue with the application: it

was unclear if the applicant’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. Compare Town of Monkton Zoning Regulations § 564 (1977)

[hereinafter Regulations] (permitting soil, sand, or gravel extraction operations in any zoning

district), with § 240 (excluding any use not specifically enumerated). The DRB addressed this

issue in the initial application hearing on April 24, 2012.       The matter was continued and

subsequent hearings were held on May 22, July 24, August 28, and October 23, 2012.



       1
          After referring the matter to the DRB, the zoning administrator denied the application
on February 9, 2012. Applicants appealed this decision to the DRB, but because the referred
application was still before the DRB, the DRB’s counsel determined that the zoning
administrator was “without authority” to deny the application. Counsel then stated that the DRB
could review the application as originally referred to the DRB.
                                                 2
       ¶ 5.     Prior to the October 23 hearing, the DRB sent a letter to the parties outlining the

procedures to be followed. According to the letter, following the hearing, the DRB intended to

decide the discrete threshold issue of whether the proposal was a permitted gravel extraction

operation.

       ¶ 6.     Although the DRB took further evidence at the October 23 meeting, including

expert testimony, it did not come to a decision.        At the meeting’s conclusion, the DRB

unanimously voted to continue the public hearing to November 27. On November 13, prior to

the next public meeting, the DRB discussed the application in a private, deliberative session; the

Environmental Division found that this session was not a public hearing on the application.

Thereafter, because of public and personal commitments, the DRB notified the parties that it

could not reach a decision before the November 27 hearing; instead, it would officially open the

hearing at the scheduled time and then continue it to a date certain. The DRB did just that on

November 27, opening the hearing and continuing it to January 22, 2013. No one opposed the

DRB’s action.

       ¶ 7.     On January 22, 2013, the DRB held its final public hearing on the application. At

that meeting, it formally admitted into evidence a number of documents submitted by applicants

and other parties to the DRB since the October 23 hearing. Applicants’ attorney spoke on a

number of procedural issues, including whether the application was deemed approved in the

period between the November 27, 2012 hearing and the January 22, 2013 hearing.

       ¶ 8.     At the conclusion of the January 22, 2013 hearing, the DRB formally adjourned

the hearing and voted to deny the application. The DRB issued the written denial on February

26, 2013. It determined that the zoning regulations permitted extraction of naturally occurring

gravel, but not applicants’ proposed method of blasting, drilling, and crushing ledge rock to

produce gravel.



                                                 3
       ¶ 9.     Applicants filed for declaratory judgment in the Environmental Division, claiming

the protracted review process caused their application to be deemed approved under 24 V.S.A.

§ 4464(b)(1).   In a separate appeal, applicants sought review of the DRB’s denial of the

application. In this second proceeding, Orlandi was granted intervenor status and cross-appealed

pursuant to Rule 5(b)(2) of the Vermont Rules of Environmental Court Proceedings. Intervenor

sought summary judgment on the merits; she argued that, as a matter of law, applicants’

proposed project was not a permitted use because the Regulations only allowed gravel extraction

and not blasting, drilling, and crushing ledge rock.

       ¶ 10.    In a November 27, 2014 decision, the Environmental Division found that “it is

undisputed that Applicants seek to remove ledge rock from the ground and crush it into gravel

for sale.” Because the Environmental Division held that § 564 did not authorize crushing

quarried ledge rock to create gravel, it granted intervenor’s motion for summary judgment on

that issue. In a separate decision issued on January 30, 2014—prior to its summary judgment

determination—the Environmental Division held that the application could not be deemed

approved. Applicants appeal both decisions.

       ¶ 11.    The standard of review shapes our decision in this case.          We review the

Environmental Division’s legal decisions de novo, In re Lathrop Ltd. P’ship, 2015 VT 49, ¶ 21,

__ Vt. __, 121 A.3d 630, but we defer to the court’s construction of a zoning regulation “unless it

is clearly erroneous, arbitrary, or capricious.” In re Believeau NOV, 2013 VT 41, ¶ 8, 194 Vt. 1,

72 A.3d 918. This deference extends “to a municipality’s interpretation of its own ordinance if it

is reasonable and has been applied consistently.” Lathrop, 2015 VT 49, ¶ 21; see In re

Champlain Coll. Maple St. Dormitory, 2009 VT 55, ¶ 10, 186 Vt. 313, 980 A.2d 273. Because

our review is limited, appellants “must overcome a deferential standard of review to prevail on

their challenge.” In re Route 103 Quarry (J.P. Carrara & Sons, Inc.), 2008 VT 88, ¶ 4, 184 Vt.

283, 958 A.2d 694.

                                                 4
       ¶ 12.   Like the DRB and Environmental Division, we focus our review on Regulation

§ 564, which is entitled “Extraction of Soil, Sand, and Gravel.” The section states in pertinent

part: “In accordance with Section 4407(8) of the Act [24 V.SA.], the removal of soil, sand or

gravel for sale . . . shall be permitted only upon approval of a plan for the rehabilitation of the

site by the [DRB] and after a public hearing.”         Section 564’s subsections list additional

requirements for extraction operations. For instance, § 564(1) provides that “a performance

bond shall be secured from the applicant” to cover the rehabilitation of the land. Section 564(5)

states that “[n]o excavation, blasting, or stockpiling of materials shall be located within two

hundred feet of any street or other property line.” Finally, § 564(6) restricts the use of power-

activated sorting machinery.

       ¶ 13.   We construe zoning ordinances according to the principles of statutory

construction, In re Laberge Moto-Cross Track, 2011 VT 1, ¶ 8, 189 Vt. 578, 15 A.3d 590

(mem.), and adopt an analysis that implements the legislative purpose. If the plain language of

the regulation unambiguously reflects the legislative purpose, we will enforce the terms of the

regulation. Lathrop, 2015 VT 49, ¶ 22. On appeal, applicants and Monkton offer competing

interpretations of § 564.

       ¶ 14.   Applicants argue that § 564’s language demonstrates the drafters intended to

allow a category of use—gravel extraction—without excluding the means of accomplishing the

use—quarrying rock and then blasting and crushing the rock. Applicants contend that the word

“extraction” in § 564’s heading is a general term that includes mining or quarrying and that the

definition of “extraction” contemplates a forcible action, such as blasting. Applicants also state

that “gravel,” as commonly understood in the industry, refers to the particle size and not to the

gravel’s origin. Thus, according to applicants, the words “extraction” and “gravel” should be

read to permit quarrying rock and then blasting and crushing it to produce specific sizes.



                                                 5
       ¶ 15.   Further, applicants argue that several subsections of § 564 show the drafters

intended to allow gravel production through blasting, drilling, and crushing quarried ledge rock.

For example, Section 564(2) sets out rules for leveling slopes, removing hills, and digging or

creating pits, activities applicants assert cannot be accomplished without blasting and drilling.

Similarly, § 564(5) specifically authorizes “blasting” if conducted a certain distance from the

street or property line. When read as a whole, applicants claim that the drafters intended these

subsections to regulate the drilling, blasting, and crushing necessary to produce gravel from

ledge rock. Finally, applicants contend that the Environmental Division impermissibly imposed

a limitation not present in the regulations by distinguishing between producing gravel by blasting

quarried ledge rock and extracting naturally occurring gravel.

       ¶ 16.   By contrast, Monkton argues that the plain language of § 564 only permits the

removal of naturally occurring gravel, not the blasting and drilling of quarried ledge rock to

produce gravel. Monkton points out that the Town enacted § 564 “pursuant to 24 V.S.A.

§ 4407(8),” which was repealed in 2004. Former § 4407(8) allowed municipalities to adopt

regulations governing the “operation of sand and gravel excavations or soil removal”; further, the

adopted regulations could require potential permittees to submit an acceptable plan for

rehabilitating the site after operations concluded and to assure the rehabilitation with a bond,

escrow account, or other surety acceptable to the municipality’s legislative body. The former

section also stated: “However, this provision does not apply to mining or quarrying.” § 4407(8)

(repealed 2004). Monkton relies on this former section’s text to bolster its argument that, when

Monkton enacted § 564, municipalities were limited in their ability to adopt regulations

governing mining or quarrying.       According to Monkton, by referencing the authorization

contained in § 4407(8), the drafters specifically intended § 564 to exclude mining and quarrying

from the extraction of naturally occurring gravel.



                                                 6
        ¶ 17.   Both the DRB and the Environmental Division found that blasting, drilling, and

crushing ledge rock to create gravel-sized pieces differed from extracting or removing naturally

occurring gravel for sale; therefore, applicants’ permit could not be granted under § 564. The

Environmental Division also relied on § 240 of the Regulations, which provides, “[a]ny use not

permitted by these Regulations shall be deemed prohibited.”2 We agree with the Environmental

Division that the plain language of § 564 supports a distinction between naturally occurring

gravel and gravel created using the applicants’ proposed method. See Lathrop, 2015 VT 49,

¶ 22.

        ¶ 18.   Section 564 begins with the heading, “Extraction of soil, sand or gravel.” We

construe zoning regulations “in light of the intention indicated by the caption” to avoid

unfounded interpretations. State v. Lynch, 137 Vt. 607, 613, 409 A.2d 1001, 1005 (1979) (citing

Audette v. Greer, 134 Vt. 300, 302, 360 A.2d 66,68 (1976)). The caption restricts a general

word—“extraction”—to three specific materials: soil, sand, or gravel. Similarly, § 564’s first

paragraph repeats the language, substituting “removal” for “extraction” and listing the same

naturally occurring materials. § 564 (permitting “the removal of soil, sand or gravel for sale” in

accordance with 24 V.S.A. § 4407(8)). Soil, sand, and gravel can be found in naturally occurring

beds, so it is reasonable to assume the drafters intended to regulate three similar naturally

occurring materials. See MacDonough–Webster Lodge No. 26 v. Wells, 2003 VT 70, ¶ 11 n.2,

175 Vt. 382, 834 A.2d 25 (stating that a word can roughly be defined “by its associates”).

        ¶ 19.   Like this analogous grouping of materials, parsing § 564’s parallel phrases—

“extraction of soil, sand or gravel” and “removal of soil, sand or gravel”—supports our reading


        2
          In 1986, Monkton amended the Regulations, adding a definition of “land development”
that includes “any mining, excavation, or landfill.” See Amendments to the Monkton Zoning
Regulations § 130 (1986) [hereinafter Amended Regulations]. But neither the Regulations nor
the Amended Regulations specifically list mining or quarrying as either prohibited or conditional
uses. See § 561 (limiting uses such as junk yards, unenclosed manufacturing, and machinery
wrecking yards while prohibiting uses like smelters, blast furnaces, and hide tanning).
                                               7
of the Regulation.   Words not defined within a statute are given their plain and ordinary

meaning, which may be obtained by consulting dictionary definitions.3 Franks v. Town of

Essex, 2013 VT 84, ¶ 8, 194 Vt. 595, 87 A.3d 418. “Gravel” is defined as “any unconsolidated

mixture of rock fragments or pebbles.” American Heritage Dictionary of the English Language

575 (New College Ed. 1979). This definition does not encompass consolidated materials like

ledge rock. Moreover, the nouns “removal” and “extraction” connote taking a material from one

place and moving it to another. For example, “remove” means “To move from a position

occupied” or “To convey from one place to another” or “To take away; to extract; to separate.”

Id. at 1101 “Extract” means “To draw out or forth forcibly” or “To obtain despite resistance” or

“To remove.” Id. at 465. Neither noun suggests the object being moved undergoes a material

change or transformation, such as crushing or blasting. Instead, the preposition “of” limits the

material being moved to unconsolidated mixtures, like gravel.

       ¶ 20.   In addition to the heading and the ordinary meaning of the language, the inclusion

of former § 4407(8) in § 564’s first paragraph supports a clear distinction between natural gravel

extraction and gravel obtained via quarrying. As explained above, former § 4407(8) explicitly

separated mining or quarrying from gravel extraction. We should give weight to this sort of

statutory distinction imposed by the Legislature. See In re White, 155 Vt. 612, 619, 587 A.2d

928, 932 (1990) (“[T]he municipality’s ordinance should be read to include and effectuate state

policy.”). Indeed, in Lathrop, we recently considered the same statute—former § 4407(8)—and

noted that “the Legislature found reason to single out sand and gravel extraction as distinct from

mining and quarrying and entitled to special treatment.” Lathrop, 2015 VT 49, ¶ 23, n.6. In that

case, we analyzed the Town of Bristol’s bylaws, which—like Monkton’s Regulations—




       3
          The definitions section of the Regulations, Article I, does not provide a definition of
sand and gravel extraction.
                                               8
contained zoning language incorporating former § 4407(8).4 Town of Bristol Zoning Bylaws &

Regulations § 526 (2003) [hereinafter Bristol Bylaws]; Lathrop, 2015 VT 49, ¶ 13. We found

that numerous towns adopted former § 4407(8) to fit their particular sand and gravel needs, “all

tailored somewhat differently.”     Lathrop, 2015 VT 49, ¶ 25.         Moreover, we rejected an

interpretation of Bristol’s Bylaws that “would negate the more individualized language

incorporated by the towns into these bylaws” and disregard the Legislature’s separate treatment

of soil, sand, and gravel removal from mining and quarrying. Id. ¶¶ 25, 26.        Similarly, if we

held as applicants request here, we would ignore the Legislature’s directions in former § 4407(8)

and strike a path away from the particular treatment that Monkton choose for gravel extraction.

See generally Lathrop, 2015 VT 49, ¶ 26; Flanders Lumber & Bldg. Supply Co. v. Town of

Milton, 128 Vt. 38, 45, 258 A.2d 804, 808 (1969) (noting municipalities possess zoning authority

only in accordance with state terms and conditions).

       ¶ 21.   Finally, an examination of § 564’s subdivisions demonstrates a consistent

regulatory structure governing natural gravel operations. We construe zoning regulations to give

effect to the whole without being limited to a single sentence. In re Champlain Coll. Maple St.

Dormitory, 2009 VT 55, ¶ 13. Section 564(2) sets out rules for leveling slopes, removing hills,

and digging or creating pits, activities that occur in natural gravel bed operations. Section 564(5)

authorizes “blasting” if conducted a certain distance from the street or property line.          As

applicants’ expert testified, blasting may occur in natural gravel operations to remove bedrock

knobs that block access to natural gravel deposits. Similarly, § 564(6) governs the use of sorting

and crushing machinery. The same expert indicated that some natural gravel operations “bring

in rock and rock quarry . . . to beneficiate the gravel because it’s too soft”; these gravel

       4
          Bylaw § 526 reads in full: “In accordance with [24 V.S.A. § 4407(8) ], in any district
the removal of sand or gravel for sale, except when incidental to construction of a structure on
the same premises, shall be permitted only after conditional use review and approval by the
Board of Adjustment.” This paragraph is followed by nine subdivisions that largely track the
subdivisions in the Regulation at issue in this case. See Regulation § 564.
                                                  9
operations use machinery to crush and mix the imported quarry rock with natural gravel

extracted on site. As a whole, therefore, § 564’s subdivisions evince a legislative intent to

regulate operations that extract naturally occurring gravel, not operations that create gravel by

drilling, blasting, and crushing quarried rock.

       ¶ 22.     Although applicants protest that this interpretation improperly creates a

distinction between crushed-quarried rock and natural-gravel operations, we note that many of

the sources and experts cited by applicants distinguish between natural-gravel and crushed-

quarried rock. See, e.g., Vermont Agency of Transportation, 2011 Standard Specifications for

Construction Book § 704.05, perma.cc/PJS4-A5P8 (noting that “crushed gravel” for subbase can

be produced from “natural gravels or crushed quarried rock”) (emphasis added). Moreover,

applicants offer competing definitions that, according to applicants, demonstrate why this

distinction is absurd according to industry standards.

       ¶ 23.     But these arguments do not rise to the level necessary to overcome the deferential

standard of review outlined above. Supra, ¶ 10. The issue here is the meaning of a zoning

regulation. It is not our place to ask why Monkton separated natural-gravel operations from

crushed-rock operations, only to affirm a reading of the Regulations that is not arbitrary. Given

§ 564’s heading, the plain meaning of the section’s words, the incorporation of former § 4407(8),

and the consistency of § 564’s subdivisions, the Environmental Division reasonably based its

holding on the plain language of the regulation; this decision was not clearly erroneous, arbitrary,

or capricious.

       ¶ 24.     The second issue in this case is whether the Environmental Division correctly

denied applicants’ claim that the permit should have been deemed approved pursuant to 24

V.SA. § 4464(b)(1). Section 4464 governs municipal decisions involving development review

applications; specifically, § 4664(b) directs a municipal panel’s decision-making process after

public hearings. Id. Under § 4464(b)(1), a municipal panel may “recess the proceedings on any

                                                  10
application pending submission of additional information” and “should close the evidence

promptly after all parties have submitted the requested information.”         Once the hearing is

formally adjourned, the panel shall “issue a decision within 45 days after the adjournment of the

hearing.” Id. If the panel does not issue a written decision within forty-five days, the application

shall be deemed approved “and shall be effective on the 46th day.” Id.

       ¶ 25.   In this case, applicants and Monkton argue that different dates mark the formal

adjournment of the hearing and the beginning of the forty-five day period; the date offered by

applicants would trigger the deemed-approval remedy, while the date provided by Monkton

would preclude deemed-approval. The Environmental Division agreed with Monkton that the

DRB properly continued the public hearings on the application until the final January 22 hearing

and issued its decision within the forty-five day period. On appeal, intervenor points out that the

Environmental Division’s decision on the merits occurred after its decision regarding the

deemed-approval remedy; therefore, she argues that the deemed-approval argument has been

rendered moot by the trial court’s de novo review of the application’s merits.

       ¶ 26.   The deemed-approval remedy occupies a prominent place in chapter 117 of Title

24; as a result, we have construed the statutory language numerous times. See, e.g., In re Morrill

House, LLC, 2011 VT 117, ¶ 11, 190 Vt. 652, 35 A.3d 148 (mem.) (strictly construing deemed-

approval remedy). We have consistently stated that the purpose of the deemed-approval remedy

is “to constitute a final decision to provide a mechanism for any interested party to appeal the

decision.” In re Trahan NOV, 2008 VT 90, ¶ 12, 184 Vt. 262, 958 A.3d 665 (analyzing

predecessor statute); see also Morrill House, LLC, 2011 VT 117, ¶ 8 (applying similar language

to current § 4464). The deemed-approval remedy is not meant to foreclose appeals on the merits

but to protect against “protracted deliberations” by a municipal panel. In re Fish, 150 Vt. 462,

464, 554 A.2d 256, 258 (1988) (interpreting predecessor statute). Further, the remedy must be

applied carefully to ensure any deemed-approval permit remains clearly consistent with the

                                                11
intent of the applicable zoning regulations. Trahan, 2008 VT 90, ¶ 12; Morrill House, 2011 VT

117, ¶ 8. Thus, even if an application is deemed approved pursuant to statute, an interested party

must be allowed the opportunity to timely appeal the deemed-approved permit on the merits.

The ability to timely appeal a deemed-approved permit not only comports with the statutory

intent behind the deemed-approval remedy, Trahan, 2008 VT 90, ¶ 12, but also guarantees

interested parties can challenge a deemed-approved permit that they feel is inconsistent with the

intent of zoning regulations. Id.

       ¶ 27.   In this case, intervenor filed a timely cross-appeal and motion for summary

judgment on the merits in the Environmental Division. As a result, even if applicants’ request

for a deemed-approved permit had legs, the Environmental Division would still have jurisdiction

to address intervenor’s cross-appeal on the merits. To decide otherwise would be to foreclose

intervenor’s opportunity for an appeal. Cf. Fish, 150 Vt. at 464, 554 A.2d at 258. We have

already affirmed the Environmental Court’s decision on the merits of the application. Thus, we

do not need to address the arguments concerning the deemed-approval remedy because the

resolution does not affect our decision on the merits of the zoning application.

       ¶ 28.   Although we do not consider the applicability of the deemed-approval remedy, we

hold that the deemed-approval remedy does not foreclose an interested party’s timely appeal on

the merits of the application. Applicants suggested in proceedings before the Environmental

Division and at oral argument before this Court that the deemed-approval remedy would

effectively prevent intervenor or any other interested party from appealing the approved permit.

This interpretation does not comport with the statute’s purpose because it does not provide a

mechanism for an interested party to appeal the decision. Trahan, 2008 VT 90, ¶ 12. Intervenor

was entitled to have the Environmental Division rule on the merits of the application, regardless

of whether or not the application was deemed-approved.



                                                12
       ¶ 29.   We affirm the Environmental Division’s denial of the application. Although our

holding on the merits of the zoning application restricts full consideration of the deemed-

approval remedy, we conclude that the deemed-approval remedy does not preclude the timely

appeal of an interested party.

       Affirmed.

                                            FOR THE COURT:



                                            Associate Justice




                                             13
