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State’s highest court put an end to Fenn gravel pit appeal

MIDDLEBURY — The Vermont Supreme Court has rejected an appeal that had been filed on behalf of Ronald and Susan Fenn, ostensibly ending their effort to establish a controversial, 16-acre gravel pit on the family’s land off Route 116 in Middlebury.
It was on Sept. 22, 2010, that Middlebury’s Development Review Board rejected the Fenn gravel pit proposal on grounds that it failed to comply with eight provisions of the town’s zoning ordinances, including that it could not meet standards pertaining to character of the surrounding community; aesthetics; highway access limitations; aquifer protection areas; noise levels; and setback standards.
The gravel pit would have been located on a portion of a 70-acre parcel the Fenns own off Route 116 (Case Street), around 180 feet north of its intersection with Quarry Road. Plans called for the 16-acre pit to be excavated in four, four-acre phases over 20-30 years, during which an estimated 660,000 cubic yards of material would have been mined. The plan was projected to result in an average of 40 loaded truck trips per day, via a new, 2,300-foot access road off Route 116.
It’s a project that drew opposition from residents in the Mead Lane, Butternut Ridge Drive, Drew Lane, Lindale Circle and Route 116 areas who claimed the gravel pit operation would bring dust, toxic fumes and noise pollution to a residential area, as well as set up the potential for collisions between trucks entering/exiting the site and motorists and cyclists negotiating busy Route 116.
The Fenns appealed the town’s denial to the Vermont Environmental Court, which last fall ruled in favor of the Middlebury DRB. The Fenns then appealed the Environmental Court decision to the Vermont Supreme Court — which also sided with the town.
“I am thrilled,” said neighbor Virginia Heidke, one of dozens of area residents who spoke against the project during several Development Review Board meetings over the course of more than a year.
“There’s a huge sense of relief, and a strong sense that our community efforts were well worth it.”
The Supreme Court’s nine-page decision, written by Associate Justice John A. Dooley, was unanimous.
The applicants had pointed to what they perceived to be several flaws in the DRB’s findings, including:
• That the board used a maximum potential traffic impact of one truck trip every six minutes — or 10 per hour — during operation. The applicants indicated it would have been more fair to judge the project based on an “average hourly” number of one trip every 12 minutes, with loaded trips averaging about one every 24 minutes.
“Applicants have not cited any law or authority or advanced any argument to support their claim, nor have we discovered any basis to conclude that the DRB may not rely on the maximum number of trips in assessing the project’s impact on the character of the area,” the court ruled.
• That the evidence failed to support the DRB’s finding that noise generated by the project would violate the noise-performance standard and detrimentally affect the character of the area. They asserted that the evidence instead showed that the project “would add only trivially to the already-existing noise level.” The DRB based its evaluation on the amount of noise the project could generate during peak hours of operation and did not apply the 55-decibal standard used in Act 250.
Again, the court sided with the town.
“Although applicants maintain that this (DRB) conclusion was based solely on the ‘unfounded conjecture and hyperbole’ of area residents, it finds adequate support in the record, including the testimony of applicants’ own expert, who acknowledged that trucks traveling on or near Route 116 would measure over 70 decibels ‘as they go by your house,’” the court ruled.
• The DRB’s definition of the scope of, and potential impact, on the surrounding neighborhood.
“Applicants cite the opinion of their planning expert that increasingly ‘intensive commercial traffic’ on Route 116 and the pre-existing gravel operations necessarily define the area’s character and weigh against an adverse-impact finding,” the court noted, but added, “we have cautioned that the ‘cumulative impact of … added noise’ and other adverse effects from a project in a mixed residential/commercial area must be carefully considered to avoid ‘the risk that the character of the neighborhood will incrementally shift so that the industrial uses dominate.’ This was precisely the analysis undertaken by the DRB here. Accordingly, we find no merit to the claim that the DRB misconstrued the scope or character of the area affected.”
Attorney Mark G. Hall of Burlington-based Paul Frank & Collins P.C. — who represented the applicants — declined to comment on the court’s decision.
Ted Dunakin, Middlebury’s director of planning and zoning, said the decision demonstrates that the DRB’s “on-the-record” review process can withstand the test of a major legal challenge.
“We now know that if we do things properly during the hearing process — gather all the information and make an educated decision — that it will be supported by the courts,” Dunakin said.
Neighbors were pleased.
“It’s wonderful,” neighbor David Bumbeck said of the Supreme Court verdict. “It’s a very intelligent decision.”
“This final verdict on the Fenn gravel pit was long in coming but not surprising,” neighbors Ron Kohn and Barbara Shapiro said in an e-mailed response to a request for comment.
“The only winners in these situations are the attorneys and consultants.”
Reporter John Flowers is at johnf@addisonindependent.com.

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