UPDATE: Julians pull out of zoning application; Will DRB proceedings go on?

UPDATE- DRB accepts Julian withdrawal, Town to file notice of violation 

On Monday night, Chester’s Development Review Board issued an order accepting Julian Materials’ withdrawal of its zoning application for three quarries in the Gassetts area. And in answer to neighbors asking “where do we go from here”  Zoning Administrator Preston Bristow said would “file a notice of violation as swiftly as I can.”

Bristow said that once the notice is issued, the Julians will have five seven days to cure the violations or 15 days to appeal. The first level of appeal would be the DRB. Asked about seeking stays or injunctions against the operation of the quarries, Bristow he said that those decisions were up to the select board. Bristow has said that he held back on issuing the notice if the Julian company applied “in good faith” for a zoning permit that would cure the violations.

During the brief hearing, Mike LeClair told the board that the he and his neighbors have spent money on lawyers only to come to the point where there is no decision and no action. He pointed to the inaction of the state and the town in the face of Julian Materials’ pollution of the Dean Brook, un-permitted hydraulic hammering and the traffic in unregistered vehicles loaded with stone.

After the public had finished making their comments, the board went into an executive session to talk about its next step with town attorney Jim Carroll. The board returned with an order regarding the withdrawal of the application.

The order cited the legal basis for accepting the withdrawal and ordered that all of the materials, including recordings of the DRB hearings in the Julian application be preserved for any future zoning proceedings regarding the quarries. It also echoed LeClair’s point in taking notice of the time, effort and money expended on the effort by the town and quarry neighbors among others.

 

By Shawn Cunningham
© 2024 Telegraph Publishing LLC

Just five days before the Chester Development Review Board was to hold a final hearing on an application for a conditional use permit to operate three quarries in Gassetts, Julian Materials’ lawyer Mark Hall told the town that his client is withdrawing its application.

The DRB is scheduled to have a regular meeting and deliberative session on the Julian application at 6 p.m. Monday, Jan. 22 at Town Hall, 556 Elm St.

After four hearings, site visits to three quarries and numerable surveys, assessments, studies and plans and a huge outlay of money and time, Hall wrote in a letter dated Wednesday, Jan. 17 to Chester Zoning Administrator Preston Bristow, “Much of what was originally proposed is no longer part of the plans.”

Hall went on to say that Julian Materials “has heard and considered the comments of neighbors, which has caused it to re-think how it wishes to operate,” and that Julian Materials “does not feel its plans have solidified sufficiently to continue pursuit of the pending application, so the application is being withdrawn.” Gassetts residents have been complaining for years that quarry operations in their area are in violation of their permits and that the noise, traffic, unsafe blasting and pollution have become too much to bear.

Jim Dumont, an attorney who represents quarry neighbors Leslie Thorsen and Scott Kilgus,  said on Saturday, “In my experience, when someone at the last minute tries to drop a claim – civil, zoning application, etc. – it’s usually because they think their going to lose.”

As late as Jan. 2, Hall had filed Proposed Findings of Fact and Conclusions of Law in which Julian Materials states that all the necessary criteria have been met or are not applicable, and that the DRB should approve its application with the recent amendments.

“It wasn’t until Mark Hall filed his brief on Jan. 2 that I understood what theories he was relying on,” said Dumont. “He was taking a position that rock hammering could be done at the South quarry because it wasn’t prohibited by a 2003 conditional use permit and that because the North and Chandler quarries were grandfathered you can do anything you want. The Vermont courts don’t accept this.”

On Tuesday, Jan. 16, Dumont filed a response to Hall’s brief and the following day Hall submitted the letter withdrawing the Julian application.

So what’s next?

The DRB is a “quasi-judicial” body that reviews applications for zoning permits, according to “Unified Development Bylaws” written by the town’s planning commission. It has accepted nearly 90 exhibits into evidence, listened to hours of arguments and begun preliminary deliberations. And it has pending motions to take up.

But the question for Monday night will be whether the board follows through with its work to a decision or simply accepts the withdrawal and drops the matter. A recommendation will likely be made by the town’s  attorney, Jim Carroll.

If the board opts to allow Julian Materials to drop its application, Bristow says he will “absolutely proceed quickly with a notice of violation” against the quarries. Bristow told The Telegraph on Sunday that in May he had told the Julian company that if it applied “in good faith” for a conditional use permit to correct the problems at the three quarries, he would not issue a notice of violation.

Interestingly enough, the first body that Julian would appear before should it decide to appeal such a notice would be the Chester DRB, which could use all of the information submitted by Julian in the conditional use hearing.  Some of that – including the use of a building at the Chandler quarry for cutting stone when its building permit was for equipment storage – actually admits to violations.

Why bail on the permit now?

Back in December, just before what was then expected to be the final hearing on the application, Julian Materials submitted an amendment that substantially changed the project.  At that time, Bristow said, “There are a number of things the Julian organization has done that I don’t understand and this is one of them.” Bristow repeated that sentiment to The Telegraph on Sunday, the day before the DRB hearing.

A DRB denial of the permit can be appealed to the Vermont Environmental Court, but the Agency of Natural Resources has handed down a jurisdictional opinion saying that Julian Materials is “out of compliance” with its Act 250 land use permit, which would need to be amended if Julian were to continue operating. If the town denied Julian a permit, that would become part of what an Act 250 district commission would consider when it took up the amendment.

No matter what happens locally, on Monday, Jan. 29, Jason Julian, who owns the business with his brother Andrew, will be sentenced in a Connecticut court to 18 months in prison and fined $2.5 million  for handling and dumping fill containing toxic substances including PCBs. Connecticut Judge Tracey Lee Dayton, who presided over the Julian case, stated that, “This was the largest and most costly environmental crime in the history of the state.” Estimates published by several sources say the cleanup could run as high as $40 million.

It’s conceivable – even likely – that civil lawsuits to recoup a portion of those expenses will be filed against the Julian brothers and their companies and dropping the application may be part of a strategy to protect the value of these assets. A permit denial could reduce their value since the permit result will remain with the property even if the quarries were to be sold.