                                STATE OF VERMONT
                     SUPERIOR COURT — ENVIRONMENTAL DIVISION

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In re North East Materials Group                 }               Docket No. 35-3-13 Vtec
LLC, Amended Permit                              }
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                               Decision on Motion to Dismiss Parties

        This matter relates to the appeal of a decision by the Act 250 District 5 Environmental
Commission (the District Commission) issuing a permit to North East Materials Group, LLC
(Applicant) for a hot mix asphalt plant within the Rock of Ages Quarry (the Quarry) in Barre
Town, Vermont (the Town). The individuals that filed a notice of appeal in Docket No. 35-3-13
Vtec are Pamela Austin, Russell Austin, Julie Barre, Suzanne Bennett, Jane Berard, Lori Bernier,
Marc Bernier, Charles Brown, Melyssa Danilowicz, Michael Danilowicz, Cathy DeGreenia,
Forrest DeGreenia, Earl Everhart, Cynthia Fitzgerald, Kaley Grenier, Kirt Johnson, Victoria
Johnson, Steve Martin, Frederick McGrath Jr., Gustave Osterberg, Rock Pariseau, Dana
Robinson, Ricky Safford, Pàdriac Smith, Suzanne Smith, and Denise Viens-Kirkpatrik.1 By its
motion, Applicant seeks to dismiss Russell Austin and Pàdriac Smith as to their participation
under Act 250 Criterion 1B and to dismiss “all of the Appellants”2 as to their participation under
Act 250 Criterion 10.

                                          Factual Background
        In order to put the pending motion into context, the Court recites the following facts,
which it understands to be undisputed unless otherwise noted:
1.      The District Commission granted Appellants Austin and Smith preliminary and final
party status under Criterion 1B in this matter.
2.      Appellants Austin and Smith offered evidence at the hearing before the District
Commission under Criterion 1B in this matter.
3.      Mr. Austin’s and Mr. Smith’s properties lie approximately 1,760 feet and 3,233 feet,
respectively, from the proposed asphalt plant. Both properties are downslope from the plant.

1 Even though the 26 Appellants are members of a group called Neighbors for Healthy Communities,
they appear not as a group, but as individuals.
2 Whether and to what extent the various individuals may participate in this appeal to the Environmental
Division is the subject of a separate appeal of the District Commission’s denial of party status to certain
individuals and those individuals’ corresponding motion for party status before this Court.
4.      Applicant has obtained a Multi-Sector General Permit from the Vermont Agency of
Natural Resources that covers stormwater issues.
5.       The District Commission granted final party status on Criterion 10 to some Appellants
but denied final party status on Criterion 10 to others.

                                              Discussion

I.      Appellants Austin and Smith’s party status under Act 250 Criterion 1B.
        When this Court considers appeals from Act 250 district commission decisions, an
aggrieved person who (1) was granted party status by the district commission pursuant to 10
V.S.A. § 6085(c)(1)(E); (2) participated in the proceedings before the district commission; and (3)
retained party status at the end of the district commission proceedings “will be automatically
accorded [party] status when the notice of appeal is filed unless the court otherwise determines
on motion to dismiss a party.” V.R.E.C.P. § 5(d)(2); see 10 V.S.A. §§ 8504(a) & (d)(1).3
        Appellants Austin and Smith claim party status as aggrieved persons under 10 V.S.A.
§ 8504(a). Both were granted party status by the District Commission pursuant to 10 V.S.A.
§ 6085(c)(1)(E) under Criterion 1(B), participated in the District Commission’s proceedings
under Criterion 1(B), and retained final party status as to Criterion 1(B). Appellants Austin and
Smith therefore have automatic party status under V.R.E.C.P. § 5(d)(2) under Criterion 1(B),
unless we now determine otherwise in response to Applicant’s instant motion.
        Criterion 1(B) relates to the effects of stormwater discharge. Applicant contends that the
Multi-Sector General Permit for stormwater that it obtained from the Agency of Natural
Resources (ANR), “raises the bar” as to the showing of potential harm that Appellants must
make to obtain party status. (Applicant’s Reply to Appellants’ Resp. to Applicant’s Mot. to
Dismiss Parties at 2, filed June 17, 2013.) Applicant argues that the existence of the permit
would require Appellants to show that they will introduce “competent technical evidence or
expert testimony” at trial to rebut that presumption. (Applicant’s Reply to Appellants’ Resp. to
Applicant’s Mot. to Dismiss Parties at 1, filed June 17, 2013.) Applicant cites no case law in
support of this heightened showing requirement for party status, nor does this Court know of
any.   The existence of a valid permit and the presumptions it creates may pose a high
evidentiary burden for Appellants when they argue the merits of the case at trial or on

3 Additionally, an appellant’s participation before the Environmental Division is limited to issues under
those criteria for which the district commission granted the person party status. V.R.E.C.P. § 5(d)(2).

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summary judgment, but these factors do not enter into our well-established party status
analysis. Rather, an aggrieved person need only show a “reasonable possibility that a decision
on the proposed project may affect a person’s particularized interest,” the standard articulated
in In re Bennington Wal-Mart, Docket No. 158-10-11 Vtec, slip op. at 9–10 (Vt. Super. Ct. Envtl.
Div. Apr. 24, 2012) (Walsh, J.).
       Applicant further argues that Appellants Austin and Smith have raised only speculation
of harm. Applicant contends that pollution is unlikely and that it will utilize spill control kits
and containment measures. (Applicant’s Mot. to Dismiss Parties at 6, filed May 14, 2013.)
Applicant alleges that Appellant Austin and Smith’s personal testimony would be incompetent,
as they lack “demonstrated technical qualifications” on stormwater issues. (Applicant’s Reply
to Appellants’ Resp. to Applicant’s Mot. to Dismiss Parties at 5, filed June 17, 2013.) These
issues go to the merits of the case; at this preliminary stage, we look only to whether Appellants
have demonstrated a reasonable possibility of harm to a particularized interest. Appellants
Austin and Smith have a particularized interest in stormwater issues as their properties are not
far from the proposed plant and are downslope from it. They allege at least a reasonable
possibility that pollutants could reach their properties, citing characteristics of their properties
and pointing to specific aspects of Applicant’s Stormwater Pollution Prevention Plan.
       Applicant has not presented sufficient reasons for this Court to revoke the otherwise
automatic party status that Appellants Austin and Smith enjoy as to Criterion 1(B) under
V.R.E.C.P. 5(d)(2). Accordingly, we DENY Applicant’s motion to dismiss Appellants Austin
and Smith as to their participation under Criterion 1(B).          Our ruling does not speak to
Appellants’ chances for success on the merits.

II.    Appellants’ party status under Act 250 Criterion 10.
       The District Commission granted final party status under Criterion 10 to some of
individuals of the group Neighbors for Healthy Communities, and it denied final party status
on Criterion 10 to others. Neither Applicant nor Appellants distinguish between these distinct
groups of individuals, despite the fact that whether a party obtained party status below is the
starting point for an Act 250 party status analysis for appeals to the Environmental Division. In
re Eastview at Middlebury, Inc., No. 256-11-06 Vtec, slip op. at 2 (Vt. Envtl. Ct. Feb. 15, 2008).




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          A. Appellants Granted Party Status
          As to those Appellants to whom the District Commission granted final party status, they
“will be automatically accorded [party] status when the notice of appeal is filed unless the court
otherwise determines on motion to dismiss a party.”                  V.R.E.C.P. § 5(d)(2); see 10 V.S.A.
§§ 8504(a) & (d)(1). With regard to those Appellants, we interpret Applicant’s pleading as a
motion to dismiss a party.
          B. Appellants Denied Party Status
          Persons denied party status by a district commission may appeal that denial to this
Court. 10 V.S.A. § 8504(d)(2)(B). Such persons also “must assert that claim by motion filed with
the[ir] notice of appeal.” V.R.E.C.P. 5(d)(2); 10 V.S.A. § 8504(d)(2). In this case, certain persons
appealed the District Commission’s denial of party status under particular criteria to this Court
in a notice of appeal filed on March 27, 2013. They subsequently filed a motion for party status
on April 16, 2013 claiming that they deserve party status under various criteria, including
Criterion 10. Before this Court had time to rule on that motion, Applicant asked us in its instant
filing to “dismiss all of the Appellants’ party status with respect to Criterion 10.” (Applicant’s
Mot. to Dismiss Parties at 1, filed May 14, 2013.)               Those persons to whom the District
Commission denied final party status have not yet acquired such status unless and until this
Court rules in their favor on their motion for party status. Thus, to the extent that Applicant
intends for its instant motion to apply to those persons to whom the District Commission
denied party status under Criterion 10, we interpret Applicant’s May 14, 2013 filing as a
response in opposition to those individuals’ April 16, 2013 motion for party status with respect
to potential party status under Criterion 10.4
          C. Analysis
          Criterion 10 requires that a development permitted under Act 250 be in conformance
with “any duly adopted local or regional plan.”                   10 V.S.A. § 6086(a)(10).    Applicant
acknowledges that residents of a municipality have a particularized interest under Criterion 10
to ensure that a proposed project complies with the municipal plan. However, Applicant
argues that Appellants fail to show a reasonable possibility of harm to their particularized
interests insofar as the various town plan provisions that Appellants cite are—in Applicant’s
view—merely aspirational or informational in nature and therefore cannot constitute


4   Our decision on the motion for party status is issued concurrently with this decision.

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enforceable standards for the purpose of Act 250 review.           Whether cited provisions are
enforceable goes to the merits of the claim, however, not to the party status of the individual or
entity citing them. In re Champlain Parkway Act 250 Permit, No. 68-5-12 Vtec, slip op. at 3–4
(Vt. Super. Ct. Envtl. Div. Nov. 14, 2012) (Walsh, J.) (responding to an applicant’s argument that
excerpts from a municipal plan cited by opponents were “too broad, generalized, or irrelevant”
to enable opponents to enjoy party status under Criterion 10.) Although it is difficult to discern
how the seemingly descriptive or ambiguous excerpts cited by Appellants could represent
enforceable standards, we cannot adjudicate the merits of the case on a motion to dismiss for
lack of party status.
       For a different reason, however, we find that Appellants fail to show a reasonable
possibility of harm to their particularized interests under Criterion 10: they fail to sufficiently
allege a link between the asphalt plant that Applicant proposes to build and the potential
violation of the town plan provisions they cite. For example, Appellants point to a statement
within the Barre Town Plan that “the quarrying of granite has always been important to the
vitality of the Town of Barre.” (Appellants’ Mot. for Party Status at 6, filed Apr. 16, 2013.)
Whether or not this cited sentence constitutes enforceable language, Appellants fail to allege
how the proposed asphalt plant would lead to nonconformity with the provision. In other
words, it is not enough to merely quote from a municipal plan; to have standing, a litigant must
articulate a causal link between a decision on a proposed project and reasonable possibility of
harm to the litigant’s particularized interests. See In re Granville Mfg. Co., No. 2-1-11 Vtec, slip
op. at 6 (Vt. Super. Ct. Envtl. Div. July 1, 2011) (Durkin, J.).       Accordingly, we GRANT
Applicant’s motion with respect to all Appellants’ participation under Criterion 10.
       Thus, for the reasons articulated above we DENY Applicant’s motion to dismiss
Appellants Austin and Smith as to their participation under Criterion 1(B). We also GRANT
Applicant’s motion with respect to all Appellants’ participation under Criterion 10, and thereby
DISMISS all Appellants from this case with respect to their appeal under Criterion 10.


       Done at Burlington, Vermont this 21st day of August, 2013.




                                             ______________________________________________
                                             Thomas G. Walsh, Environmental Judge

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