                                    STATE OF VERMONT
SUPERIOR COURT                                                ENVIRONMENTAL DIVISION

         LEDUC CONSTRUCTION, LLC
                                                             Docket No. 102-7-14 Vtec
         CONDITIONAL USE APPEAL


         LEDUC CONSTRUCTION, LLC
                                                            Docket No. 119-10-15 Vtec
           VARIANCE APP. APPEAL


                                      Decision on the Merits
       Leduc Construction, LLC (“Applicant” or “Appellant”), by and through its principal, Andre
Leduc, seeks permit authority to excavate its property along Vermont Route 78 in the Town of
Highgate so it may extract and sell what is anticipated to be high-quality sand for use on
construction projects. When its application for conditional use and a setback waiver was denied
by the Town of Highgate Development Review Board (“DRB”), Applicant appealed to this Court.
That appeal was assigned Docket No. 102-7-14 Vtec.
       While that appeal was pending, Applicant also applied for a variance from the setback
minimums from the side and rear boundaries. When its variance application was also denied by
the DRB, Applicant appealed that determination to this Court as well. That appeal was assigned
Docket No. 119-10-15 Vtec.
       At the time of trial, Applicant was represented by Attorney Lisa B. Shelkrot. The Town of
Highgate (“Town”) has appeared and actively participated in each of the pending appeals, with
the assistance of its attorney, Edward G. Adrian. No other party has entered an appearance in
either of the appeals.
       The parties endeavored to resolve their disputes through informal discussions. When
those efforts failed, the Court initially set the first appeal for trial on August 20, 2015. However,
the parties jointly requested that the Court delay that trial, as they anticipated that the variance
application that was then pending before the DRB would result in a second appeal to this Court.
The Court therefore cancelled the August 20, 2015 trial and awaited a determination on the



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variance application and possible appeal. When that DRB determination was appealed to this
Court, the Court coordinated both matters to be jointly tried.
        That coordinated trial occurred on April 27, 2016. On the morning of the trial, the Court
conducted a site visit with the parties and their counsel. Once the trial was completed, the
parties were afforded an opportunity to file proposed Findings of Fact and Conclusions of Law.
Those post-trial filings were completed on May 31, 2016 and these coordinated appeals
thereafter came under advisement for the Court’s consideration. Other hearings and writing
responsibilities prevented the Court from completing its research and drafting on this Merits
Decision until just recently. The Court apologizes to the parties and their counsel for its delay.
        Based upon the credible evidence admitted at trial, which the site visit helped put into
context, the Court renders the following Findings of Fact, Conclusions of Law, and the
accompanying Judgment Order.

                                         Findings of Fact
1.      Applicant owns a 5± acre parcel at 835 Vermont Route 78 in Highgate, Vermont (“the
Property”).
2.      The Property is narrow and deep, being about 224 feet wide in the front (adjoining Route
78) and rear, and about 1,250 feet along each side boundary.              The property is mostly
undeveloped, save for a trailer and septic system on the front portion of the lot, and is mostly
open and lacking of trees, save for tall white pine trees that border the Property along the entire
length of the two side and rear boundaries.
3.      The Property is located in the Town of Highgate Industrial/Commercial Zoning District
(“I/C District”).
4.      The surrounding neighborhood includes several commercial developments, including a
former landfill, the Franklin County Field Days site, a trucking office and depot (Charlebois
Trucking) and a construction company office (owned and operated by Mr. Leduc).
5.      There are no residential properties in the immediate vicinity of the Property. During the
proceedings on both applications before the DRB, no interested party (other than the Town)
appeared or voiced concerns about the Leduc sand extraction operation.



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6.      Mr. Leduc discovered that the property contains deposits of what is believed to be high-
quality sand. Sand of this high quality is most suitable for use when constructing commercial and
residential on-site sewage disposal systems that require a mound or other deposit of imported
soils to host the leaching component of the sewage disposal system.
7.      This type of high-quality sand has been extracted from several other area sand pits, but
the existing pits are approaching the end of their usable life. The supply of high-quality sand is
becoming more scarce in this region.
8.      Prior to applying for any municipal zoning permits, Applicant began extracting sand from
the Property. Mr. Leduc professed to have been unaware that a permit was required for his sand
extraction activities.
9.      Once Mr. Leduc was made aware that permits were required for his planned extraction
activities, he stopped the pre-permit excavation and Applicant applied for conditional use
approval.
10.     Because of the narrowness of the Property, Applicant concluded that it needed to conduct
its sand excavation work within the 150-foot side- and rear-yard boundary setbacks. Applicant
therefore included a request for a waiver from the setback limitations in his conditional use
application. If Applicant were required to respect the 150-foot side yard setbacks, it would not
be able to conduct any excavation activities, given that the Property is no more than 274 feet
wide.
11.     Applicant proposes to excavate and extract sand up to fifty feet from the side and rear
boundary lines of its Property. A set of site plans, consisting of six pages, was admitted at trial as
Exhibit 5.
12.     The proposed excavation and extraction will be conducted in three phases over an
estimated period of two and a half years. The excavation activities would occur on the back 3±
acres of the Property, with the 2± acres closest to Route 78 remaining undisturbed, save for some
improvements to the internal roadway that will be used by excavation trucks and equipment.
See Exhibit 5, at page C-1.
13.     Excavation of the 3± acres will occur in three phases, with each phase to encompass about
1± acre of the Property. Phase 1 will occur on the acre approximately in the middle of the

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Property, with the subsequent Phase 2 and Phase 3 to occur on each of the 2± acres at the rear
of the Property. Id.
14.    Within each Phase, the open extraction area will be approximately 125 feet by 200 feet.
Exhibit 5 at pages C-2, C-3, and C-4. The excavation will create a depression in the land that will
be no more than thirteen feet below the existing ground level. The excavated area will stop at
fifty feet from the side and rear boundaries.
15.    As the high-quality sand is extracted from each Phase of the site, Applicant proposes to
truck the extracted sand to another site for storage and sale. No sand will be stored, displayed,
or sold on the Property.
16.    As the high-quality sand is extracted from each Phase, Applicant proposes to bring lesser-
quality sand onto the site from another location. This imported sand will be used to backfill the
excavated area, with the goal being to return the Property to the same level and grade as
presently exists. Applicant also proposes to bring topsoil onto the Property and will thereafter
grade, seed and mulch the topsoil for growth. The topsoil that once was on the property was
removed years ago.
17.    Sand extraction would occur during the non-winter months, for a total of 180 days each
year. The excavation activities would take place during the weekdays, from 7:30 AM to 4:00 PM.
There would not be any commercial operation on the Property during the weekends.
18.    Phases 1 and 2, once all excavation is complete, will result in about 9,600 cubic yards of
high-quality sand being extracted and trucked off site. Phase 3 will result in about 6,500 cubic
yards of high-quality sand being extracted. A similar volume of lesser-quality sand will be brought
on site to complete the planned remediation.
19.    Trucks that carry the excavated sand and the replacement sand will result in up to thirty
vehicle trips (round trips) per week. This will not cause more than a minor increase in traffic on
Route 78, given that this highway experiences between 3,000 to 5,000 one-way vehicle trips per
day in the vicinity of Applicant’s Property.
20.    Once the excavation and refilling with replacement sand and topsoil is completed in all
three phases, the Property will have the same contours and elevations as currently exist.



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21.    In anticipation of receiving conditional use approval for its sand extraction operation,
Applicant also requested and received approval from the Vermont Agency of Transportation to
widen its curb cut on Route 78, to accommodate a widened internal access road. The Agency
has issued a letter of intent for the planned access way widening.
22.    Mr. Leduc has calculated that the performance bond required by the applicable
regulations, to assure completion of his remediation plans, should equal $3,900.00 per acre.
There was some dispute at trial as to whether the required bond should simply total $3,900.00
for the entire Property. Given the anticipated remediation work to be performed, we conclude
that the total bond, if conditional use approval was to be granted, should be $19,500.00
($3,900.00 multiplied by five acres).

                                        Conclusions of Law
       Due to the narrowness of the Property, an essential component of the proposed Leduc
sand extraction project is authority to conduct excavation activities up to 50 feet from the side
and rear boundaries, either by a waiver from the applicable minimum setback requirements or,
failing that, with a variance from those same requirements. We therefore first address the
propriety of Applicant’s requests that a waiver or variance be granted.

I.     Applicable Setback Limitations
       At the time of the filing Applicant’s conditional use application, area land uses and
development were governed by the Town of Highgate Vermont Zoning Bylaws and Map, as last
amended on June 23, 2011 (“2011 Bylaws”, a copy of which was admitted at trial as Exhibit 1).
These Bylaws were amended while the conditional use application was pending before this Court,
but prior to Applicant submitting its variance application. See Town of Highgate Development
Regulations, adopted by the Town of Highgate Selectboard on March 5, 2015 (“2015
Regulations”, a copy of which was admitted at trial as Exhibit 2). We therefore evaluate the
pending conditional use application for conformance with the 2011 Bylaws and the variance
application for conformance with the 2015 Regulations.




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        The 2011 Bylaws1 have specific provisions that apply to sand and gravel excavation
operations, requiring that the proposed excavation must receive conditional use approval, an
approved rehabilitation plan and performance bond, a showing of improvements to the land
after remediation, erosion prevention measures, limitations on machinery and equipment, and
minimum slope requirements. 2011 Bylaws §§ 600, 600.1, 600.2, 600.3, 600.5, and 600.6. Most
applicable to the legal issue presently before us is a requirement that “[n]o excavation, blasting,
or stock piling of materials shall be located within one hundred fifty (150) feet of any street or
other property line.” 2011 Bylaws § 600.4 (emphasis in original). This setback requirement is
much greater than the setback requirements for other development in the I/C District. See 2011
Bylaws § 810 (requiring a minimum 30-foot setback from side yards and a minimum 85-foot
setback from the front and rear yards when property adjoins a state highway).
        We conclude that the proposed project must respect a minimum 150-foot setback from
the side, front and rear boundaries, unless a waiver or variance is appropriate to grant.

II.     Waiver Provisions
        If the applicable setback provisions are not the subject of a waiver or variance, Applicant
will not be able to conduct any of the proposed extraction. We therefore review the applicable
provisions of the 2011 Bylaws that govern Applicant’s request of a setback waiver.
        There is no waiver authorization in the 2011 Bylaws within the specific sections that
govern sand and gravel extractions. See 2011 Bylaws § 600. However, in the sections that pertain
to general developments that are required to receive conditional use approval, there is a
provision that allows for the waiver of setbacks for “principal and accessory structures.”
Applicant asserts that its planned excavation is a “structure” and that this waiver provision is
therefore applicable to its project. For the reasons detailed below, we conclude that the
proposed excavation is not a “structure” and that the waiver provisions are therefore not
applicable to the proposed project.




        1
           The 2015 Regulations also has a specific provision governing the excavation soil, sand, gravel and stone
that includes the essential terms of 2011 Bylaws §§ 600, 600.1, 600.2, 600.3, 600.5, and 600.6, but also added
additional terms and criteria for these excavation activities. See 2105 Regulations § 6.7. Included in the retained
provisions are side, front and rear setback minimums of 150 feet. 2015 Regulations §6.7(A)(8).
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       The 2011 Bylaws define structure as “[a]nything constructed, erected or placed for more
than six months which requires a fixed location on the ground in order to be used.” 2011 Bylaws
Article IX: Definitions (emphasis in original). Excavation is not specifically mentioned in this
definition, and the definition appears to be at odds with the general understanding of excavation,
which does not occur “on the ground,” but rather in or below the ground. Applicant’s proposal
is to excavate into and below the ground, so that it may extract the sand within the ground.
       In addition, the proposed project does not call for anything to be “erected or placed” on
the Property. In fact, Appellant stated in its variance application that the proposed “excavation
use, such as is proposed here, is less intrusive than a structure would be . . ..” Exhibit 4 (Variance
Application) at 6 (emphasis in original).
       The project wholly consists of excavating valuable sand from within the ground and
trucking it off site. During the project’s estimated two-and-a-half-year life span, it will not be
located “in a fixed location.” Rather, the planned excavation will move across three acres of the
site, in three phases, with the excavation moving and changing locations as sand is extracted and
new, inferior sand is brought in as part of the reclamation.
       During the trial, at the end of Applicant’s case in chief, the Town moved for a directed
verdict. The Court split its analysis of the Town’s request into two components: a directed verdict
on the legal question of whether Applicant had made a sufficient showing on whether it is
entitled to a waiver, or whether it is entitled to a variance. As to the waiver question, the Court
denied the Town’s request for a directed verdict. That ruling, which focused primarily on whether
Applicant had made a sufficient showing that its planned excavation could be defined as a
structure under the 2011 Bylaws, was made before the completion of the evidentiary portion of
the trial and was not a final determination. Rather, when considering the Town’s motion for a
directed verdict, we considered the evidence that had thus far been admitted in the light most
favorable to Applicant, the non-moving party, and disregarded any evidence contradicting the
evidence that supported Applicant’s claims. So. Burlington School Dist. v. Calcagni-Frazier-
Zajchowski Architects, Inc., et. al., 138 Vt. 33, 40 (1980). When considering such a pre-judgment
motion, we are counselled that the non-moving party “is entitled to the strongest inferences
reasonably deducible from the most favorable evidence, and insofar as the evidence ‘tends, in

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any fashion, to support’ plaintiff's claim it is entitled to” allow the trial to continue and reach final
judgment. Id. (quoting in part LaRocque v. LaMarche, 130 Vt. 311, 314 (1972)).
        Having received all evidence, and having the opportunity to complete more detailed
research on this legal issue, we conclude that Applicant’s proposed excavation project does not
fit within the definition of structures provided in the 2011 Bylaws.
        Our determination here is supported by similar determinations made by our Supreme
Court. In particular, that Court has concluded that excavation activities to build a moto-cross
track in a residential neighborhood did not equate to the building of a “structure.” See Laberge
Moto-Cross Track, 2011 VT 1, 189 Vt. 578. Of note to our analysis here is that the applicable
zoning regulations in Laberge defined the term “structure” in a manner nearly identical to the
definition from the 2011 Bylaws. Id. at ¶ 10 (defining structure as “anything constructed, erected,
or placed and which requires a fixed location on the ground in order to be used . . ..” quoting
Town of Hinesburg Zoning Regulations § 9.1 (2005)). Given the near identical definition for the
term, we conclude that Laberge provides controlling case law precedent.
        In addition, we find persuasive the statutory definition of “structure” found at 24 V.S.A.
§ 4303(27) (defining a structure as “an assembly of materials for occupancy or use, including a
building, mobile home or trailer, sign, wall, or fence.”). While this statutory definition does not
eclipse the definition provided in the 2011 Bylaws, we take it as a memorial of the common
understanding of how the term is commonly defined. We conclude that the fact that this
statutory definition is part of the state law that enables Vermont municipalities to implement
zoning regulations provides some guidance for our effort to understand the established
definition for the term.

III.    Variance Provisions
        In response to the Town’s motion for a directed verdict at the conclusion of Applicant’s
case in chief, the Court announced its conclusion that Applicant had not presented sufficient
evidence to show that it was entitled to the requested variance. Because of this determination,
the Court entered a directed verdict against Applicant and in the Town’s favor on the variance




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question. See Trial Transcript at 180–181.2 Nothing revealed in the rest of the evidentiary
portion of the trial or the Court’s subsequent legal research has convinced us to reconsider and
change our directed verdict determination. We provide a summary of our analysis here for the
sake of clarity, and to memorialize our determination.
        All Vermont municipalities are authorized to enact zoning provisions that allow for
variances from the applicable bylaws, provided that the evidence presented allows the
appropriate municipal panel, or this Court on appeal, to render findings as to five statutorily-
defined issues. 24 V.S.A. § 4469(a). Those same five variance criteria are repeated at 2015
Regulations § 3.6(C). To obtain a variance, the evidence must support a positive finding on each
of the five variance criteria. Id.
        In rendering a determination on the Town’s directed verdict request, the Court focused
its analysis on the two variance criteria where the evidence, even when viewed in the light most
favorable to Applicant, did not support positive findings. Our research and analysis of the
evidence presented at trial causes us to reach that same result today. Specifically, we concluded
then, and repeat that conclusion now, that (1) there are alternate developments that would be
permitted for the Property that would allow it to be developed in strict conformity with the
applicable Bylaw provisions (pursuant to 24 V.S.A. § 4469(a)(2) and 2015 Regulations § 3.6(C)(2))
and, (2) the requested variance does not represent “the minimum variance that will afford relief
[to Applicant] and will represent the least deviation possible from the Zoning Bylaws and from
the [applicable Town] Plan.” 24 V.S.A. § 4469(a)(5) and 2015 Regulations § 3.6(C)(5).
        There are several other types of developments permitted in the I/C District that Applicant
could pursue that would not require a variance from the applicable setback provisions, including
a contractor yard, a public facility, an indoor recreation facility, a warehouse, or an aircraft
hangar. 2015 Regulations § 2.5. In fact, if the Property were to instead be developed for one of
these permitted uses, the setback distances would be much narrower than those required for
excavation activities. See 2015 Regulations § 2.6 (limiting the side and rear setbacks in the I/C




        2
           The Town on May 27, 2016, supplied a transcript of the merits hearing when it filed its proposed Findings
of Fact and Conclusions of Law.
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District to 30 feet and the front yard setback, when on a state highway, to 85 feet, when the
proposed development is not an excavation project).
       Because the evidence presented does not support a positive finding on variance criteria
(2) and (5), we conclude that we cannot grant Applicant the requested variance from the side
and rear yard setback minimums.

IV.    Conditional Use Provisions
       As noted above, the 2011 Bylaws require that any proposed sand and gravel excavation
projects must receive conditional use approval. 2011 Bylaws § 600. We therefore review the
applicable conditional use provisions, found at 2011 Bylaws Art. V.
       Section 502.1 provides the five general standards which govern conditional uses. The
credible evidence presented leads this Court to conclude that the proposed sand extraction
operation and reclamation will not have an undue adverse effect upon (A) the capacity of existing
or planned community facilities; (B) the character of the area affected, as defined by the purposes
of the zoning district in which the project is located; (C) traffic on the area roads and highways;
or (E) the utilization of renewable energy resources.
       We conclude, however, that the proposed project has two deficiencies that compel us to
deny it conditional use approval: first, because the project cannot be granted a waiver or variance
from the applicable side- and rear-yard setbacks, we conclude that the project will not conform
to and will therefore have an undue adverse effect upon the applicable zoning bylaws; 2011
Bylaws §502.1(D) requires such a showing for conditional use approval. Secondly, 2011 Bylaws
§502.1(B) requires a showing that the proposed project conforms to the “specifically stated
policies and standards of the municipal plan.” We did not receive a sufficient showing of what
standards from the Town of Highgate Town Plan would be applicable to the proposed project,
nor a showing of how the project conforms to those applicable policies and standards.
       For all these reasons, we conclude that Applicant’s proposed sand extraction operation is
not entitled to conditional use approval.

                                      Conclusion
       For all the reasons stated above, we conclude that the application of Leduc Construction,
LLC to excavate and extract high-quality sand from its property at 835 Vermont Route 78 in
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Highgate, Vermont, is not entitled to a waiver or variance from the setback limitations found in
the applicable zoning regulations, and is also not entitled to conditional use approval for its
proposed project. We therefore DENY each of the pending applications and AFFIRM the denials
issued on June 12, 2014 and September 10, 2015, by the Town of Highgate Development Review
Board
        A Judgment Order accompanies this Merits Decision.         This completes the current
proceedings pending before this Court.
Electronically signed on December 29, 2016 at Brattleboro, Vermont, pursuant to V.R.E.F. 7(d).




________________________________
Thomas S. Durkin, Judge
Environmental Division




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