Act 250 denies Chester town gravel pit application

By Shawn Cunningham
© 2020 Telegraph Publishing LLC

In a decision released on Friday, Sept. 18, the District 2 Environmental Commission denied the Town of Chester’s application to open a municipal gravel pit on a 139-acre property the town purchased as a site for a back-up tank for its water system. The site is off Route 103 south and abuts Green Mountain High School, the Chester-Andover Family Center and the Drew’s All Natural facility.

The gravel pit was a major selling point in 2015 when Chester voters approved a $4 million bond issue to pay for repairs and upgrades to its aging water system that included the addition of a 330,000-gallon tank to take care of water flow pressure issues during fire fighting and provide redundancy if the main tank needed to be offline. The system operates on gravity flow so its tanks need to be at an elevation above the users.

Engineer Naomi Johnson of Dufresne Group suggested that the town could achieve the needed elevation by purchasing the property from O’Neil Sand and Gravel, LLC M&M Excavating, which had attempted to open an extensive gravel operation there but had been denied an Act 250 permit in a long and contentious legal battle.

‘Disappointing’ decision

The district commission’s findings and order based the denial on two points – the Successive Application Doctrine and the Act 250 Rule 34(E.)

The former basically says that you can’t bring a new application that is not substantially different  from the one that was denied.

The latter — which is also known as the Stowe Club Highlands Analysis — says that for the sake of finality in its decisions the commission should “consider whether the permittee is merely seeking to relitigate the permit condition.” The commission should also determine whether changes in facts, law, regulations and even technology “outweighs the need for finality in the permitting process.”

At issue was a condition that said noise levels from the operation should be no louder than barely audible at  Green Mountain High School and that the condition was considered “critical” in the Environmental Court’s M&M decision and cannot be amended.

“It’s amazing and extremely upsetting to have an Act 250 permit denied where everyone connected to the project, town people, neighbors and the high school, all supported it,” Select Board chair Arne Jonynas said in an email on Saturday evening. “And the commission still took it upon themselves to turn it down especially where there is plenty of evidence supporting it.”

Among the supporting evidence were traffic and noise studies done last year at a cost of $14,000 and presented to the commission “at the Applicant’s insistence” at a hearing that was set up to hear arguments on the Successive Application Doctrine and on Rule 34(E).

Board member Heather Chase, who has repeatedly said she is in favor of the project, has been skeptical about the way the permitting process was being handled and what the costs would be. On May 15, 2019, as the board considered doing the studies, Chase cautioned that the conditions of the property’s Act 250 permit follows the property and that doing the studies before finding out if the project would pass legal muster was “putting the cart before the horse.” Chase’s knowledge of the Act 250 process comes from her opposition to the 2007 M&M application which was for a larger and more extensive operation.

At that point, the cost of legal fees, engineering and the two studies would total $49,000. According to Town Manager Julie Hance, who called the decision “disappointing,” the town has spent about $100,000 to date to get the permits needed to operate the gravel pit.

A blueprint for going forward

The town is going to review options and see what the next move will be,” Jonynas told The Telegraph.

But it appears that the next move was already suggested in the commission’s decision where it noted “…the purchaser of this parcel, which happened to be the Town, had the blueprint for what type of uses would be allowed on this property because of previous Commission and Court decisions. The purchaser is then accorded the benefit of being able to plan accordingly. While this blueprint was ignored in this instance, it still has value and could have been highly instructive.”

The commission went on to explain that in its recess order of April 1, 2020 it had invited the town to “stipulate to a certain number of operational days that are non-school days” and again at a hearing asked if the town would agree to limiting its working days to times when school is out of session. In its findings and order last Friday, the commission said that if the town agreed to limit the pit’s operation to days when school was not in session it “may be able to consider that a change in operations sufficient to overcome Act Rule 34 (E) and the Successive Application Doctrine…”

But according to the commission’s order, the town (through its representative) “stated that it would not limit its flexibility for operations.”

“I don’t know how that happened,” Jonynas told The Telegraph, noting that it had long been the town’s intent to only operate the pit for a few weeks each year during school vacation. “We’ll have to look into that.”

Board members will discuss their options with Rutland attorney Jim Goss who has been representing the town in the permit process on Tuesday and meet in executive session about the issue on Wednesday Sept. 23 at a special select board meeting after a “vicious dog” hearing.