                                STATE OF VERMONT

                            ENVIRONMENTAL COURT

                                              }
In re O’Neil Sand & Gravel                    }
   Act 250 Amendment Application             }       Docket No. 48-2-07 Vtec
       (Appeal of O’Neil Sand & Gravel, LLC) }
                                             }

            Decision and Order on Cross-Motions for Summary Judgment

      Appellant-Applicant O’Neil Sand & Gravel, LLC appealed from a decision of the

District 2 Environmental Commission, denying Appellant-Applicant’s application for

an amendment to an Act 250 permit for an aggregate extraction project in the Town of

Chester. Appellant-Applicant (Applicant) is represented by Lawrence G. Slason, Esq.;

Cross-Appellants (Neighbors) Janet Colbert, Melanie McGuirk, Helen McGuirk, Alice

Forlie, Hans Forlie, Heather Chase, Bruce Chase, Jonathan Otto, Carrol Otto, Rachel

Root, Valerie Kratky, and John Kratky are represented by David L. Grayck, Esq.; and

Intervenor Green Mountain Union High School (GMUHS) is represented by Geoffrey

H. Hand, Esq. The Town is represented by James F. Carroll, Esq.; Interested Party Paul

B. Dexter, Esq. has appeared and represents himself. Applicant, Neighbors, and

GMUHS have each moved for summary judgment. The following facts are undisputed

unless otherwise noted.

      In May 2001, Ralph J. Michael of the Michael Engineering Company submitted

an application (the 2001 application) on behalf of Michael and Amy O’Neil, Bruce R.

Parker In Trust, and JCJ Properties, Inc. for an Act 250 permit for a sand and gravel

extraction operation located on a 139-acre parcel on the southwest side of Route 103 in

the Town of Chester. The 139-acre parcel was part of a 232-acre property owned by the




                                          1
Bruce R. Parker Trust, et al.; Michael and Amy O’Neil entered into a contract to

purchase the 139-acre parcel pending receipt of all necessary state and local permits.

       Because the property is not directly adjacent to Route 103, the conveyance also

included a right-of-way over property owned by JCJ Properties, Inc., which provides

access from Route 103 to the 139-acre parcel. The 139-acre parcel is bordered on its

northwest side by Green Mountain Union High School and on its northeast side by the

Putney Pasta Company.        Residential properties adjoin the 139-acre parcel on the

northwest, southwest, and south sides.        There are also nearby residences on the

northeast side of Route 103, across from the 139-acre parcel.

       The 232-acre property owned by Bruce R. Parker (in trust) was subject to Act 250

permit #2S0214 and subsequent amendments.             The 2001 application cover sheet

indicated that the 2001 application was for a “new project,” but notes that there were

prior permits in the “2S0214 series” associated with the property. There is at least one

other gravel extraction operation on the 232-acre property, located about one-quarter

mile south, permitted by Land Use Permit #2S0214 in 1974. It is unclear if this gravel

extraction project is completed or still operating.

       The 2001 application proposed to conduct the sand and gravel extraction

operation on an 18-acre project site (the 2001 18-acre project site), located in the most

northerly corner of the 139-acre parcel, near the boundary shared with GMUHS.

GMUHS owns approximately 162 acres adjacent to the 139-acre parcel. There is a

forested area containing a network of trails on GMUHS property between the school

building and the shared boundary, including a trail that runs along the property line.

This trail network is used for educational and recreational purposes by GMUHS, and it

is used for recreational purposes by the public. Although the 18-acre project site was

proposed to be located approximately 550 feet from the school building itself, the

excavation was proposed to extend to the boundary of GMUHS’s property. The nearest

residences are located approximately 900 feet from the 18-acre project site.
                                             2
      The application cover sheet described the project as “a gravel extraction

operation on an 18[-]acre portion of 139 acres to be purchased from the Bruce R. Parker,

In Trust land. Construct 800 feet of access road over [property] of JCJ Properties, Inc.

Estimated 300,000 cubic yards of sand and gravel to be extracted.” The application

cover sheet indicated that the “[t]otal acres owned or controlled by applicant and

landowner at the project site” was 231 acres, and that the number of “[a]cres committed

to this project” was 139 acres. The proposed construction duration was 1 year and the

proposed duration of the permit was 6 years.

      The District 2 Environmental Commission (Commission or District Commission)

approved the proposed project in October 2001.          In its written decision on the

application, the Commission described the project as “a sand and gravel extraction

operation and construction of 800 feet of access road over property of JCJ Properties,

Inc.” The written decision noted that the “tract of land consists of 232 acres,” and that

Michael and Amy O’Neil had contracted to purchase 139 acres of the larger 232-acre

property. The written decision refers to the 18-acre project site several times, mostly in

reference to the logging that would be necessary. Applicant’s Ex. 1B1 at 4, 8, 10–12. In

finding number 11, the written decision describes the 18-acre project site as “the

proposed excavation and operations area.” Id. at 4.

      In the 2001 permit itself, the terms “site,” “premises,” “extraction area,”

“excavation area,” “tract,” and “land” are used without any definition or indication of

whether these terms are intended to refer to specific portions of the 139-acre parcel or

the 232-acre property. In the 2001 permit, the only reference to the 18-acre project site

as separate and distinct from the 139-acre parcel or the 232-acre property is in Condition


1
 Applicant’s Exhibit 1 contains the 2001 permit and the Commission’s written decision
on the permit application. For ease of referring to these documents separately, in this
decision the Court will refer to the 2001 permit as Applicant’s Exhibit 1A and the
written decision as Applicant’s Exhibit 1B.
                                            3
28, which states, “Any proposals for logging on the tract of land, other than the 18 acres

which will be logged for extraction, shall be submitted for review and approval by the

District Environmental Commission and the District Wildlife Biologist. . . .” Applicant’s

Ex. 1B at 4. The 2001 permit imposes conditions on areas of the 139-acre parcel outside

of the 18-acre project site, such as Condition 29, which requires the permittees to

“permanently protect 28.8 acres of deer wintering area” to mitigate loss of deer

wintering area at the 18-acre project site. Id.

        The 2001 permit does not contain conditions explicitly restricting future use or

development of the 139-acre parcel other than the protected 28.8 acres of deer wintering

area.   Future development of the property appears to have been anticipated, as

Condition 28 allows the protected deer wintering area to be relocated “in conjunction

with future permit amendments.” Id. Condition 42 requires written approval of the

District Commission for “further subdivision or alterations to the land.” Id. at 6. The

Commission’s written decision, in Finding No. 57, states, “The future use of the

reclaimed area will be a forested area with possibly two to three homes.” Applicant’s

Ex. 1B at 14.

        The Commission’s approval of the 2001 application was subject to numerous

conditions; the conditions relevant to the present appeal are Conditions 11, 12, 21, and

46. Conditions 11 and 12 imposed restrictions on the amount of noise generated “from

all aspects of operation occurring on the site” in order to protect adjacent land uses.

Condition 21 stated, “There shall be no blasting. . . .” Blasting had not been proposed in

the 2001 application. Condition 46 required all extraction to be completed within 6

years of commencement, and set a deadline of October 1, 2009 for reclamation.

        The 2001 permit was not appealed and became final. Applicant completed the

extraction operation in conformance with the 2001 permit, except that reclamation of

the site has not yet been completed and the deadline for reclamation has not passed.


                                              4
      On May 24, 2006, Applicant submitted an application for amendment of the 2001

permit, seeking authorization of a new project that would “extract gravel, stone, and

bedrock and process construction aggregate” on a 15-acre project site located elsewhere

on Applicant’s 139-acre parcel.    Applicant’s Ex. 6 at 1. The application states, “Total

acres owned or controlled by applicant and landowner at project site[:] 139,” and,

“Acres committed to this project[:] 15.” Id.

      The proposed 15-acre project site is separate and distinct from the 2001 18-acre

project site approved by the 2001 permit, although Applicant proposes to use the same

access road, and to use utilize a portion of the 2001 18-acre project site for stockpiling

and loading materials. The proposed 15-acre project site is located approximately 200

feet southwest of the 2001 18-acre project site, approximately 1,400 feet from the school

building. The nearest residences are located along Route 103 approximately 1,700 feet

from the 15-acre project site. The project is proposed to operate seasonally, between

April 15 and December 15. The proposed construction duration period is 10 years; the

proposed permit duration period is 15 years.

      Depending upon the scope of the 2001 permit, amendment of some of the

conditions imposed by that permit may be necessary for the newly proposed operation.

The parties do not dispute that amendment of Condition 46 is necessary, as the portion

of the 2001 project site proposed to be utilized by the proposed operation would not be

reclaimed by the October 1, 2009 deadline.         Because of the presence of ledge and

bedrock at the proposed project site, blasting is necessary for the proposed operation;

therefore, amendment of Condition 21, which prohibits blasting, is necessary if

Condition 21 applies to operations on the entire 139-acre parcel (as opposed to only the

2001 18-acre project site). Amendment of Conditions 11 and 12 may also be necessary if

the proposed operation would violate the noise limitations contained in those

Conditions, and if those Conditions apply to operations on the entire 139-acre parcel.


                                               5
       The District Commission denied the application for amendment of the 2001

permit on February 2, 2007, and this appeal followed.



Whether Conditions 11, 12, and 21 apply to 139-acre parcel or only to the 2001 18-acre

project site

       Applicants argue that Conditions 11, 12, and 21 do not need to be amended

because they only apply to the 2001 18-acre project site (and associated infrastructure)

and not to all future operations in other locations on the 139-acre parcel.

       Conditions 11 and 12 both impose noise limitations on “all aspects of the

operation occurring on the site.” Condition 11 requires that noise “shall not exceed”

certain levels “at the property line” and “outside any residence or areas on the

residential property which receive frequent human use.” Condition 12 requires that

noise “shall not exceed” certain levels “at the school buildings and areas used for

outdoor recreation and education.”

       It is clear from the plain language of these conditions that they are meant to

apply to the entire 139-acre parcel, not just the 2001 18-acre project site. See Agency of

Natural Resources v. Weston, 2003 VT 58, ¶ 16, 175 Vt. 573 (mem.) (explaining that

permit conditions are interpreted according to rules of statutory construction, which

direct courts to first look to the plain language of the provision at issue).         Both

conditions impose noise limitations that extend beyond the 2001 18-acre project site and

even beyond the 139-acre parcel. Because Conditions 11 and 12 impose requirements

outside of the 2001 18-acre project site, it is clear that the District Commission intended

for these conditions to apply to all operations on the 139-acre parcel, not only to the

2001 18-acre project site. See id. (explaining that courts’ primary goal in interpreting

permit conditions is implementing the drafters’ intent).

       On the other hand, the 2001 permit and the Commission’s written decision are

ambiguous as to whether Condition 21 was intended to apply to the entire 139-acre
                                             6
parcel or whether it is only applicable to the project then proposed for the 2001 18-acre

project site. The project proposed in 2001 did not request or propose blasting, and the

application merely indicated that no blasting was proposed.            Condition 21 simply

carried this attribute of the application forward to state: “There shall be no blasting. . . .”

The condition does not refer to any physical area, time frame, or project. The plain

language of Condition 21 provides no guidance in determining the drafters’ intent as to

the scope of this permit condition. See id.

       As the Vermont Supreme Court has stated, “because land-use regulations are in

derogation of property rights, any uncertainty in their meaning must be resolved in

favor of the property owner.’” See id., quoted in In re Eustance Act 250 Jurisdictional

Opinion, 2009 VT 16, ¶ 41 (Reiber, C.J., dissenting); Sec’y, Agency of Natural Res. v.

Handy Family Enters., 163 Vt. 476, 481–82 (1995) (quoting In re Vitale, 151 Vt. 580, 584

(1989)). Furthermore, permit conditions must be sufficiently clear to provide notice of

the restrictions placed on the land. Handy Family Enters., 163 Vt. at 482 (quoting In re

Farrell and Desautels, Inc., 135 Vt. 614, 617 (1978)). The Commission’s written decision

and the 2001 permit contains almost no discussion of blasting, as blasting was not

proposed and its effects were therefore not at issue. Because Condition 21 is ambiguous

as to its scope, and because Applicants therefore were not provided with sufficient

notice for this Condition to limit future operations on the entire parcel, Condition 21

applies only to the project that was at issue in the application then proposed for the

2001 18-acre project site.

       However, when the merits of the present application are addressed, it will be the

Applicant’s burden to establish that all aspects of the new proposed project, including

the proposed blasting activities, comply with the Act 250 criteria contained in 10 V.S.A.

§ 6086(a).   It is within the Court’s authority regarding this application to impose

conditions regarding blasting, including to determine that a condition prohibiting

blasting for the newly proposed project is appropriate, depending on the evidence
                                              7
presented by the parties as to whether such a condition is necessary to meet the Act 250

criteria.

        In addressing the issue of whether the Conditions at issue apply to the entire 139-

acre parcel, Applicants, Neighbors, and GMUHS each make arguments relating to the

former Environmental Board’s holding in In re Stonybrook Condominium Owners

Association, Decl. Ruling #385, Findings of Fact, Concl. of Law, & Order, at 9–20 (Vt.

Envtl. Bd. May 18, 2001).2 In Stonybrook, property owners sought to raze a farmhouse

and barn on property subject to Act 250 jurisdiction based on a condominium

development. Id. at 1. The issue in the appeal was whether the proposed demolition

required an amendment to the permit covering the property under Act 250 Rule 34(A),

which states that an amendment is necessary for “any material or substantial change in

a permitted project, or any administrative change in the terms and conditions of a land

use permit.” See id. at 2. The property owners argued that no permit amendment was

required for the proposed demolition because the farmhouse and barn, and the

otherwise open land on which they were located, were not within the scope of the

“permitted project” within the meaning of Rule 34(A).

        The Environmental Board determined that activity concerning the farmhouse

and barn was within the scope of the permitted project. Id. at 18. In reaching this

holding, the Board found that the default definition of “permitted project,” as that term

is used in Rule 34(A), is the entire tract of land on which construction occurs. Id. at 14–

15.   The Board found that this would the “best and most workable definition” of

permitted project for two reasons: “First, a bright line test, one that establishes a

‘permitted project’ by the physical metes and bounds of a project tract, informs the

world – the District Commission, the permittee, and all other interested persons – as to


2Under 10 V.S.A. § 8504(m), this Court is directed to give precedent from the former
Environmental Board “the same weight and consideration as prior decisions” of this
Court.
                                             8
the lands that will be subject to scrutiny when further activities occur.” Id. at 15.

Second, the Board concluded that this bright line test would make it more difficult for

potential applicants to avoid the permitting process by segmenting a development

using artificial development boundaries. Id. at 17.

          However, in order to avoid inequitable or absurd results, the Board concluded

that this bright line test could be modified in some circumstances by a “nexus”

approach to defining “permitted project.” Id. at 17–18. Under this approach, the

permittee would bear the burden of proving the “extent of the project and its impacts”

in order to limit the boundaries of the permitted project. Id. at 18.

          The Board recognizes that delineating such boundaries will require a
          careful evaluation by the Coordinator for the District Commission of the
          natural resources on the project tract and of the actual impacts or effects
          created by the project on those resources. It may also require the
          permittee to present to the Coordinator a survey and other evidence
          which accurately establish the extent of such impacts or effects.
Id. Therefore, under Stonybrook, the “permitted project” for purposes of Rule 34 is the

entire tract of land on which the project occurs, unless the permittee proves that the

extent and the impacts of the project are limited, such that the boundaries of the

permitted project should be limited.

          Neighbors and GMUHS argue that under Stonybrook, all of the conditions in the

2001 permit apply to the entire 139-acre parcel, as Applicants did not seek to limit the

boundaries of the project in their 2001 application. It is true that under Stonybrook, the

2001 permit applies to the entire 139-acre parcel, and during the pendency of the permit

any future development on that parcel will require an amendment to the existing

permit. However, the fact that the permit applies to the entire parcel does not mean

that every condition within the permit applies to the entire parcel. In fact, it is clear that

some of the conditions, such as Condition 29, only apply to portions of the 139-acre

parcel.


                                              9
       In response to Neighbors’ and GMUHS’ argument regarding Stonybrook,

Applicants have asked the Court to overrule Stonybrook and adopt a default definition

limiting the “permitted project” to the area on which actual development occurs for

purposes of Rule 34(A). This approach was specifically rejected by the Environmental

Board, which concluded that “this approach construes the concept of a ‘permitted

project’ too narrowly, as it presents a definition which could be inconsistent with the

scope and extent of a permit which is issued for such a project.” Id. at 11. Since the

impacts of a development are often felt outside the construction footprint, permit

conditions are frequently imposed on portions of the property outside the construction

footprint. The Board’s concern was that consideration of activities that impact those

conditions, but were proposed to occur outside the construction footprint, would be

prevented by defining “permitted project” in this manner. Id. The Environmental

Board’s reasoning regarding this issue was sound and this Court declines to disturb the

rule established in Stonybrook.


Legal Standard for Amendment of Act 250 Permits

       As previously discussed, Rule 34 of the Act 250 Rules governs the review of

applications for amendments to Act 250 permits.3 Subsection (A) of Rule 34 states that

an amendment is required for “any material or substantial change in a permitted

project, or any administrative change in the terms and conditions of a land use permit.”

Act 250 Rule 2(G) defines “substantial change” as “any change in a development or

subdivision which may result in significant impact with respect to any of the criteria

specified in 10 V.S.A. Section 6086(a)(1) through (a)(10).” The parties do not dispute

that the 2006 application proposes a change that may result in a significant impact to the

Act 250 criteria.


3The Act 250 Rules effective January 12, 2004 are applicable to this appeal, and are
available at http://www.nrb.state.vt.us/lup/publications/rules/2004rules.pdf.
                                           10
       Subsection (E) of Rule 34 provides standards for reviewing applications for

amendments, laying out a test to determine if amendment is appropriate in any

particular instance. The first step is to determine whether the applicant seeks to amend

permit conditions “which were included to resolve issues critical” to the issuance of the

permit. If the conditions sought to be amended were not critical, no further analysis is

required under Rule 34(E). See, e.g., In re Mountainside Props., Inc. Land Use Permit

Amendment, No. 117-6-05 Vtec, slip op. at 8–9 (Vt. Envtl. Ct. Dec. 13, 2005) (Durkin, J.).

       If the conditions sought to be amended were critical to the issuance of the

original permit, the next step in the Rule 34(E) analysis is to “consider whether the

permittee is merely seeking to relitigate the permit condition.” As the Environmental

Board explained, “[s]ubsection two of [Rule] 34(E) is designed to codify the Vermont

Supreme Court's observation that the initial permitting process should not be ‘merely a

prologue to continued applications for permit amendments.’” In re Dr. Anthony

Lapinsky & Dr. Colleen Smith, Permit #5L1018-4/#5L0426-9-EB, Findings of Fact, Concl.

of Law, & Order, at 18 (Vt. Envtl. Bd. Oct. 3, 2003) (quoting In re Stowe Club Highlands,

166 Vt. 33, 39 (1996)). Rule 34(E)(2) therefore requires the Court to determine whether

the applicant is seeking to undermine the permit’s purpose and intent, or whether there

are circumstances or some intervening factor that justify an amendment. Id. (citing In

re Dept. of Forests & Parks, Knight Point State Park, Decl. Ruling #77, at 3 (Vt. Envtl. Bd.

Sept. 6, 1976)).

       The final step in the Rule 34(E) analysis is to weigh “need for flexibility arising

from changes or policy considerations” against “the need for finality in the permitting

process.” In balancing these needs, the following factors should be considered:

       (a) changes in facts, law or regulations beyond the permittee's control;
       (b) changes in technology, construction, or operations which drive the
       need for the amendment;




                                            11
       (c) other factors including innovative or alternative design which provide
       for a more efficient or effective means to mitigate the impact addressed
       by the permit condition;
       (d) other important policy considerations, including the proposed
       amendment's furtherance of the goals and objectives of duly adopted
       municipal plans;
       (e) manifest error on the part of the district commission or the board in
       the issuance of the permit condition;
       (f) the degree of reliance by the district commission, the board, or parties
       on prior permit conditions or material representations of the applicant in
       prior proceeding(s).
Rule 34(E)(3). If the need for finality outweighs the need for flexibility, amendment of

the permit conditions is not proper.

       If applying for the proposed amendment is allowable under the Rule 34 analysis,

the reviewing body will proceed to address the merits of the amendment application

and will determine whether the proposed project meets the requirements of the Act 250

criteria found in 10 V.S.A. § 6086(a).



Rule 34 Analysis

       Condition 11

       Condition 11 states in full: “In order to protect adjacent residences, noise levels

from all aspects of operation occurring on the site shall not exceed 70dB(A) Lmax at the

property line and 55 dB(A) Lmax outside any residence or areas on the residential

property which receive frequent human use.”

       Applicant does not dispute that this Condition was critical to issuance of the 2001

permit; it is clear from the District Commission’s written decision that this Condition

was critical to positive findings under Criterion 1 (air pollution) and Criterion 8

(aesthetics).

       In the present application for a permit amendment, Applicant has not presented

evidence of any circumstances or intervening factors that justify amendment of

                                           12
Condition 11. The fact that bedrock was not present in the extraction site approved in

2001, but is present in the newly-proposed extraction site, does not justify amendment

of Condition 11. The possible presence of bedrock at potential future extraction sites

was information that was available to Applicant at the time of the 2001 application. Cf.

In re Judge Dev. Corp. & SW Corner, LLC Act 250 Permit, No. 189-9-05 Vtec, slip op. at

8–9 (Vt. Envtl. Ct. Aug. 7, 2006) (Wright, J.) (noting that applicants for an amendment to

an Act 250 permit condition were not relying on information that was available to them

at the time the condition was imposed).

       Furthermore, as to Condition 11, the need for finality outweighs the need for

flexibility. In terms of the need for flexibility, there have been no “changes in fact, law

or regulations beyond the permittee’s control.” There was no error on the part of the

Commission in issuing the 2001 permit, and no alternative or innovative designs to

mitigate the noise impacts at issue have been presented. As to finality, Neighbors and

GMUHS have presented evidence indicating that they relied on Condition 11 in

deciding not to appeal the 2001 permit.

       Accordingly, because Condition 11 was critical to issuance of the 2001 permit,

because Applicants are attempting to relitigate the condition and thereby undermine its

purpose and intent, and because the need for finality as to this Condition outweighs the

need for flexibility, Rule 34(E) bars amendment of Condition 11.

       Applicant also argues that the proposed operation will comply with Condition

11, and amendment of this Condition is therefore not necessary, making the Rule 34

analysis inapplicable. Applicant’s argument rests on the assumption that Condition 11

does not apply to blasting noise, but rather, that it only applies to other operational

noise. Applicant does not dispute that amendment of this condition is required if it

applies to blasting noise.

       Applicant argues that the A-weighted (dB(A)) scale, used to create noise limits in

Condition 11, is not typically used to measure blasting noise, and that this Condition
                                            13
therefore was not intended to apply to blasting. Applicant also notes that no blasting

was proposed in the 2001 application, so this Condition could not have been drafted

with the intent to limit blasting noise. Neighbors and GMUHS argue that Condition 11

does apply to blasting noise, and that Applicant cannot meet Condition 11 even if it

does not apply to blasting noise.

      As material facts are in dispute as to whether Applicant can meet Condition 11

without amendment, and as to whether Condition 11 applies to blasting noise, the

Court cannot grant summary judgment on these issues. See V.R.C.P. 56(c)(3).



       Condition 12

      Condition 12 states in full: “In order to protect the public investment in Green

Mountain Union High School, noise levels from all aspects of operations occurring on

the site shall be no louder than barely audible at the school buildings and areas used for

outdoor recreation and education.” The phrase “barely audible” was further defined by

the Commission as “noise which is no louder than the lowest background level noise

which presently occurs when students are in classes.” Applicant’s Ex. 1B at 16.

      Applicant argues that the proposed operation will comply with Condition 12,

and amendment of this Condition is therefore not necessary, making the Rule 34

analysis inapplicable. Applicant’s argument rests on the assumption that the noise

limitation does not apply to the trail network (especially the trail that runs along a

portion of the boundary with GMUHS and is closest to the 15-acre project site). The

plain language of Condition 12 contradicts this assumption, as the noise limitations

must be met “at the school buildings and areas used for outdoor recreation and

education” (emphasis added).        The trail network, including the trail closest to the

proposed 15-acre project site, is used for outdoor recreation and education; therefore the

noise limitation in Condition 12 must be met on the trail network, as well as at the

school building and recreation fields.
                                             14
       Applicant also argues that Condition 12 does not apply to the trail closest to the

proposed project site because that trail did not exist at the time of issuance of the 2001

permit. The Court need not address whether this Condition would apply to a new trail,

because GMUHS has presented credible evidence that the trail did exist at the time the

2001 permit issued. Applicant has not presented evidence that controverts GMUHS’s

evidence. See V.R.C.P. 56(e); Endres v. Endres, 2008 VT 124, ¶ 10 (explaining that under

V.R.C.P. 56(e), a party “has the burden of submitting credible documentary evidence or

affidavits sufficient to rebut the evidence” of the opposing party).

       As Condition 12 does, by its plain language, apply to the GMUHS trail network,

amendment of this Condition pursuant to Rule 34(E) may be required.

       Applicant does not dispute that this Condition was critical to issuance of the 2001

permit; it is clear from the District Commission’s written decision on the application

that these conditions were critical to positive findings under Criterion 1 (air pollution),

Criterion 8 (aesthetics), and Criterion 9(K) (public investments).

       Applicant has not presented evidence of any circumstances or intervening factors

that justify amendment of Condition 12. For the reasons stated above in the discussion

of Condition 11, the presence of bedrock in the newly-proposed extraction site is not a

circumstance that justifies amendment.

       The need for finality as to Condition 12 also outweighs the need for flexibility,

for the same reasons discussed above in relation to amendment of Condition 11.

Accordingly, Rule 34(E) bars amendment of Condition 12.

       However, Applicant also argues that Condition 12 does not need to be amended

because it does not apply to blasting noise, like Condition 11. As there are material

facts in dispute as to whether Condition 12 needs to be amended for the proposed

operation, and whether it applies to blasting noise, summary judgment cannot be

granted on these issues at this time. See V.R.C.P. 56(c)(3).


                                            15
          Condition 46

          Condition 46 addressed the duration of the operation and subsequent

reclamation of the 2001 18-acre project site, stating: “All extraction and removal of the

materials shall be completed within six years of commencement of extraction activities.

All reclamation shall be completed in accordance with the approved plans by October 1,

2009, unless an extension of this date is approved in writing by the District 2

Environmental Commission.”

          Applicant does not dispute that this Condition was critical to issuance of the 2001

permit; it is clear from the District Commission’s written decision on the application

that these conditions were critical to positive findings under Criterion 8 (aesthetics),

Criterion 9(D) (earth resources), and Criterion 9(E) (extraction of earth resources).

          Unlike Conditions 11 and 12, Applicant does not seek to relitigate Condition 46

and undermine its purpose and intent.           A majority of the area to be reclaimed,

approximately 85%, will be reclaimed in accordance with the approved plan by the

October 2009 deadline. The portion that will not be reclaimed will not be visible from

surrounding properties. As to Condition 46, there is an intervening factor that justifies

amendment: the possibility of using a portion of the area to be reclaimed for the newly-

proposed project, which will minimize the impacts of that project by utilizing an area

that has already been disturbed.

          The need for flexibility as to Condition 46 outweighs the need for finality.

Applicant has presented an alternative design that allows reuse of the existing access

road and a portion of the existing reclamation area, which will minimize the impacts of

the newly proposed project. Although GMUHS and Neighbors assert that they relied

on this Condition’s requirement that extraction operations would be completed within

six years, this reliance was misplaced.        The 2001 permit does not prohibit future

development, including mineral extraction operations, on all portions of the 139-acre

parcel.
                                              16
       Accordingly, even though Condition 46 was critical to issuance of the 2001

permit, because Applicants are not attempting to relitigate the condition and thereby

undermine its purpose and intent, and because the need for flexibility as to this

Condition outweighs the need for finality, Rule 34(E) does not bar Applicant’s

application to amend Condition 46.



       Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that all three Motions for Summary Judgment are GRANTED in part and DENIED in

part, as discussed above. A telephone conference has been scheduled (see enclosed

notice).


       Done at Berlin, Vermont, this 11th day of September, 2009.




                           _________________________________________________
                                 Merideth Wright
                                 Environmental Judge




                                          17
