RE: Charles and Barbara Bickford, Land Use Permit #5W1186-EB, Memorandum of Decision March 15, 1994 VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 RE: Charles and Barbara Bickford by Land Use Permit Richard H. Saudek, Esq. #5W1186-EB Cheney, Brock, & Saudek, P.C. P.O. Box 489 Montpelier, VT 05601-0489 MEMORANDUM OF DECISION This Memorandum of Decision pertains to a request for a stay filed by Charles and Barbara Bickford (the Appellants). The Appellants seek a stay pursuant to Board Rule 42 of conditions 7, 27, 28 (second sentence), 32, 34, and 36 (first sentence) (the Conditions) of Land Use Permit #5W1186 (the Permit) issued by the District #5 Environmental Commission on November 12, 1993. The Permit authorizes the operation of a stone quarry with an annual maximum extraction rate of 50,000 cubic yards. As is explained below, the Board grants in part and denies in part the Appellants' request for a stay of the Conditions. I. BACKGROUND On February 15, 1994, Acting Chair Steve E. Wright convened a prehearing conference in Marshfield, Vermont. At the prehearing conference, Acting Chair Wright set February 18, 1994, as the filing deadline for memoranda in opposition to the Appellants' request for a stay, and February 25, 1994, as the filing deadline for memoranda in support of the Appellants' request for a stay. On February 18, 1994, the Appellants filed a reply affidavit of Charles Bickford, and six letters in support of the Appellants' request for a stay. On February 24, 1994, Margaret K. Arthur, a cross- appellant in this appeal, filed a memorandum in opposition to the Appellants' request for a stay of the Conditions. On February 25, 1994, Curtis and Ruth Whiteway, also cross-appellants in this appeal, filed a memorandum in opposition to the Appellants' request for a stay of the Conditions. On February 25, 1994, Michael Sioufi, who is seeking party status in this appeal, filed a letter in opposition to the Appellants' request for a stay of the Conditions. The Board deliberated on the stay request on March 4, 1994. II. BOARD RULE 42 The first paragraph of Board Rule 42 provides: No decision of the board or a district commission is automatically stayed by the filing of an appeal. Any party aggrieved by a final order of the board or a district commission may request a stay by written motion filed with the board identifying the order or portion thereof for which a stay is sought and stating in detail the grounds for the request. This first paragraph sets forth the procedural requirements related to requesting a stay. There must be a final order of the district commission, a written motion requesting a stay, and a statement detailing the grounds for the request. The Board concludes that these requirements have been met. The second paragraph of Board Rule 42 is the legal standard used by the Board when deciding whether to grant or deny a stay request: In deciding whether to grant or deny a stay, the board may consider the hardship to parties, the impact, if any, on the values sought to be protected by Act 250, and any effect upon public health, safety or general welfare. The board may issue a stay containing such terms and conditions, including the filing of a bond or other security, as it deems just. Thus, there are three factors the Board may consider in reviewing a stay request: (a) the hardship to parties, (b) the impact on the values Act 250 protects, and (c) any effect on public health and safety or the general welfare. See e.g. Re: Robert and Barbara Barlow, #8B0473-EB, Memorandum of Decision at 3 (Aug. 6, 1992). III. THE CONDITIONS A. Condition #7 Condition #7 provides: Prior to May 1, 1994, the [Appellants] shall pave the initial 40 feet of pit access road off U.S. Route 2. The [Appellants] shall also line the 100 feet of access road immediately preceding the paved length with coarse stone in order to clean truck tire treads prior to entry onto the paved portion of the access road. These improvements to the access road design must be maintained in good repair during the life of this permit. 1. Appellants The Appellants request that compliance with the paving required by condition 7 be stayed until June 1, 1994, in order to guard against the likelihood of damage to the pavement by lingering frost in early May. 2. Opponents Ms. Arthur does not object to the Appellants' request for a stay of this condition. Mr. and Mrs. Whiteway do not object to a stay provided the entire length of the access road between Route 2 and the loading/staging area of lift 1 (instead of only an additional 100 feet) is lined with gravel until such time as paving is practical. Mr. and Mrs. Whiteway contend that the requirement to line with gravel the entire length of the entrance to the quarry would impose little hardship on the Appellants who have the equipment and material to comply. 3. Board Decision Vermont's weather makes compliance with the paving requirement in condition 7 problematic. The hardship to the Appellants if the condition is not stayed as requested is to either cease operations on May 1, 1994, or comply with the paving requirement even though compliance may produce a stretch of pavement which is defective upon completion. The only countervailing hardship which the Board discerns is the potential hazard which may be created by the displacement of mud from quarry traffic onto Route 2. This countervailing hardship raises the issue of what effect a stay of condition 7 will have upon public safety. The Board has balanced these two competing hardships in the context of the traffic safety measures required by the Permit and this Decision. The Board concludes that public safety can be protected and hardship to the Appellants relieved by surfacing the first 100 feet of access road from U.S. Route 2 into the quarry with coarse stone prior to beginning operations in the quarry. Therefore, the Board stays until June 1, 1994, the requirement in condition 7 that the Appellants pave the initial 40 feet of pit access road off U.S. Route 2, but on the condition that the Appellants surface the first 100 feet of access road from U.S. Route 2 into the quarry with coarse stone prior to beginning operations at the quarry. B. Condition 27 Condition 27 provides: Warning beacons with appropriate warning signs shall be installed on both approaches on U.S. Route 2 prior to any hauling in 1994. The specifications and details for the beacons shall be determined by the Appellants and the [Vermont Agency of Transportation] and will be subject to Commission approval. The beacons shall be used at all times when material is hauled from the quarry. No material may be hauled from the quarry beginning in 1994 until the beacons are installed and operable. 1. Appellants The Appellants' seek a stay of the requirement that warning beacons be installed prior to any hauling in 1994. Originally, the Appellants alleged that warning beacons were within the province of the Vermont Agency of Trans- portation (VAOT) and entirely outside of their control. In their filing dated February 15, 1994, however, the Appellants state: "Both Mr. Bickford and his attorney have discussed this condition several times with [VAOT] personnel. It is unclear whether permanent beacons can be placed near the entrance by April 1. It has been suggested by the [VAOT] that temporary signs would suffice until the permanent solution is resolved." 2. Opponents In opposing the request for a stay, Ms. Arthur contends that the District Commission imposed the condition in lieu of a limit on the volume of quarry truck traffic. She states: The District Commission acknowledged the hazards of Route 2 and in lieu of a numeric daily limitation on quarry trucks, it required warning beacons. The District Commission considered and rejected warning signs. ([Appellants'] Requested Findings #36, p. 14. "Signs warning of trucks entering and leaving the quarry should be posted at locations on Route 2 as designated by the Agency of Transportation.") Ms. Arthur argues that a stay of the beacon requirement should not be granted unless appropriate restrictions on quarry traffic are imposed to address safety during the period while signs are in use, and that a date certain for beacon installation is vitally important. Mr. and Mrs. Whiteway vigorously dispute Mr. Bickford's contention that he has no control over the placement of beacons. They contend that condition 27 was imposed because the District Commission found that the Project would exacerbate an already unsafe traffic condition, and therefore, "it would be absurd to permit a hazardous condition to become more hazardous." 3. Board Decision The Appellants' retreat from the position that beacons are out of their control to one of negotiation with VAOT raises more questions than they have answered. Why is it unclear whether permanent beacons can be placed near the entrance by April 1? Is it a traffic engineering problem or a matter of logistics? These unanswered questions are directly related to the effect a stay of condition 27 will have upon public safety. The hardship to the Appellants is that no material may be hauled from the quarry until the beacons are installed and operable. While this is clearly a hardship to the Appellants and their customers, the Board concludes that, based upon the information now in its possession, the concern for public safety outweighs the hardship to the Appellants. However, the Board notes in the following paragraph the information it would need to grant a stay. If the Appellants submit written VAOT documentation to the Board within 14 days of the date of this decision which states: (1) that the installation of warning beacons by April 1, 1994, is not feasible because of the logistics of such an installation; (2) that the postponement of the installation of warning beacons until May 1, 1994, will not, in the opinion of VAOT, create an unreasonable safety hazard along U.S. Route 2; and (3) that temporary (or permanent) warning signs will be installed in locations designated by VAOT on or before April 1, 1994, then the Board will issue a supplementary order which will stay, until May 1, 1994, the requirement in condition 27 that warning beacons be installed on both approaches on U.S. Route 2 prior to any hauling in 1994. C. Condition 28 (Second Sentence) The second sentence of Condition 28 provides: The berm shall be planted with at least 25 nursery stock Eastern White Pines which shall be fully branched and at least 8 feet tall. 1. Appellants The Appellants seek a stay of the second sentence until June 1, 1994. The Appellants contend that the planting of the trees cannot take place by April 1, 1994, or by a date within several weeks after that date. Mr. Bickford states in his affidavit dated December 23, 1993, that his objection to condition 28 (and conditions 32 and 34) are only as to when the plantings must occur. Mr. Bickford suggests "later in the spring." Mr. Bickford states in his reply affidavit dated February 14, 1994: "The frost may require further delays. Both the advise (sic) of nursery people and my own experience tell me we should wait until warm weather has prevailed for at least several weeks." 2. Opponents Ms. Arthur does not object to postponing the required plantings to late May or early June, 1994, but does object to any delay beyond June, 1994. Mr. and Mrs. Whiteway do object and contend that to grant the Appellants' stay request would be tantamount to the Board's sanctioning the continuing unduly harmful impacts which the condition addresses, in contravention of Mr. and Mrs. Whiteway's rights and the purposes of Act 250. 3. Board Decision Again, Vermont's weather makes compliance with the planting requirement in condition 28 problematic. The hardship on the Appellants if the condition is not stayed as requested is to not conduct any blasting or crushing, or comply with the planting requirement even though compliance may not be a sound horticultural practice. The only countervailing hardship which the Board discerns is the aesthetic nuisance which may be created by the delay in planting. On balance, the Board concludes that the hardship to the Appellants outweighs the hardship to the other parties. Therefore, the Board stays until June 1, 1994, the requirement in condition 28 that the Appellants plant the berm with at least 25 nursery stock Eastern White Pines, fully branched, and at least 8 feet tall. D. Condition 32 Condition 32 provides: In order to alleviate the "matchstick" visual effect of the existing trees atop the quarry face, the Appellants shall plant fast growing shrubs and softwoods across the length of the face at the edge of the treeline. The plantings must be completed prior to any blasting or crushing operations at the quarry. 1. Appellants As noted above, in Mr. Bickford's affidavit dated December 23, 1993, he states that his objection to condition 32 is that the plantings required by the condition should be done later in the spring, based on his own experience and the advice of "nursery people." 2. Opponents Ms. Arthur does not object to postponing the required plantings to late May or early June of 1994, but does object to any delay beyond June of 1994. First, for the same reasons with respect to condition 28, Mr. and Mrs. Whiteway object to the stay request with regard to condition 32. Second, they contend that the necessity for condition 32 was brought about by the Appellants' very own actions of clear cutting and quarrying before providing for mitigation under Criterion 8. 3. Board Decision For the same reasons stated with respect to condition 28, the Board stays until June 1, 1994, the requirement in condition 32 that the Appellants plant fast growing shrubs and softwoods across the length of the face at the edge of the treeline so that blasting or crushing operations at the quarry may commence as otherwise allowed by the Permit and this decision. E. Condition 34 Condition 34 provides: Prior to any blasting or crushing operations, an overall cleanup of existing overburden and rubble shall be completed, and the hillside between lifts 1 & 2 must be reseeded and mulched. 1. Appellants The Appellants contend: "The cleanup contemplated in this condition requires that certain blasting and crushing operations be conducted. Therefore, as it now stands it is impossible to accomplish. Furthermore, as noted above reseeding and mulching cannot successfully be accomplished until well after April 1, when the quarry is scheduled to open." 2. Opponents Ms. Arthur vigorously opposes the suggestion by the Appellants that the cleanup requirement allows for additional blasting or further incursion on the existing wall. Further, she contends that "were additional blasting and excavation of the existing face allowed, substantially all of the erosion plans, berm locations, and road proposals could likely be effected (sic)." Mr. and Mrs. Whiteway concur with Ms. Arthur. 3. Board Decision. Condition 34 requires a cleanup and reseeding and mulching. With regard to the cleanup, the hardship to the Appellants is that they will be unable to conduct any blasting or crushing until the cleanup is completed. Yet, the very cleanup mandated by condition 34 may require the Appellants to crush or blast existing, dislodged overburden or rubble. The only countervailing hardship which the Board discerns is the aesthetic nuisance which may be created by the crushing or blasting of existing, dislodged overburden or rubble in fulfillment of the mandated cleanup. On balance, the Board will order a stay of the requirement in condition 34 that an overall cleanup of existing overburden and rubble shall precede any blasting or crushing operations, but only to the extent that is necessary to blast or crush existing, dislodged overburden or rubble to achieve the mandated cleanup. The stay of condition 34 does not provide for, nor shall there be any, blasting of, or crushing of, material not presently dislodged from the existing face. For the same reasons stated with respect to condition 28, the Board stays the requirement in condition 34 that the Appellants reseed and mulch the hillside between lifts 1 & 2 until May 15, 1994. F. Condition 36 (First Sentence) The first sentence of Condition 36 provides: During the use of lift 1, a flagperson shall be used to direct loaders and trucks and all backup alarms in the loading area shall be deactivated. 1. Appellants The Appellants contend that employment of a flag person is an antiquated, inefficient, and expensive way to direct traffic inside a quarry, and given that the conditions require state-of-the-art radar activated alarms at the lowest allowable decibel levels, a flag person should be unnecessary. Mr. Bickford states in his affidavit dated December 23, 1993: "Condition 36, requiring a flag person and deactivation of backup alarms, cannot be implemented, because backup alarms on trucks cannot be deactivated." Mr. Bickford states in his reply affidavit dated February 14, 1994: "As for backup warning signals, we had no complaints about them over the thirty years that the quarry operated. Now that I know they are a concern, I will make sure they are at their lowest setting. However, my own experience is that they can't be heard over the traffic when they are operating at the lower section of the quarry." 2. Opponents Mr. and Mrs. Whiteway vigorously deny Mr. Bickford's claim that electrically operated backup alarms cannot be deactivated. Further, they contend that the use of ground guides instead of beepers within the staging area (the portion of the quarry site closest to the Whiteways and several other neighbors) is a reasonable limitation on one of the most offensive irritants of the quarry's operation. Ms. Arthur joins with Mr. and Mrs. Whiteway in opposing the stay request for this condition 3. Board Decision The Board discerns two hardships to the Appellants. First, the Appellants will have to employ a flag person. Second, the Appellants' ability to extract material from the quarry may be hampered because they are limited to only those vehicles on which the backup alarm can be deactivated. The Board discerns that the hardship to Ms. Arthur and Mr. and Mrs. Whiteway, if a stay is granted, is that they will have to endure the noise generated by the backup alarms. If these were the only two hardships to be balanced, the Board would conclude that a stay should not be granted. However, there is another consideration which the Board must take into account in balancing the competing hardships. The Board has an overriding concern with the safety of the operation at the quarry. Backup alarms are a safety device which warn people that a commercial vehicle is about to travel in reverse. The Board concludes that this significant safety consideration tips the balance of the competing hardships in favor of the grant of a stay. Therefore, condition 36 shall be stayed pending the outcome of this appeal. The Board notes, however, that the issuance of a stay with regard to condition 36 in no way preordains what the outcome will be with regard to the Appellants' appeal of condition 36. The Board is in no way obligated to delete condition 36 in its final decision on the merits just because the Board has granted a stay at this preliminary juncture of the appeal. IV. ORDER 1. The requirement in condition 7 that the Appellants pave the initial 40 feet of pit access road off U.S. Route 2 is stayed until June 1, 1994, but on the condition that the Appellants surface the first 100 feet of access road from U.S. Route 2 into the quarry with coarse stone prior to beginning operations at the quarry. 2. If the Appellants submit specific written VAOT documentation to the Board within 14 days of the date of this decision which states (1) that the installation of warning beacons by April 1, 1994, is not feasible because of the logistics of arranging such an installation; (2) that the postponement of the installation of warning beacons until May 1, 1994, will not, in the opinion of VAOT, create an unreasonable safety hazard along U.S. Route 2; and (3) that temporary (or permanent) warning signs will be installed in locations designated by VAOT on or before April 1, 1994, then the Board will issue a supplementary order which will stay, until May 1, 1994, the requirement in condition 27 that warning beacons be installed on both approaches on U.S. Route 2 prior to any hauling in 1994. 3. The requirement in the second sentence of condition 28 that the berm be planted with at least 25 nursery stock Eastern White Pines, fully branched, and at least 8 feet tall, is stayed until June 1, 1994. 4. The requirement in condition 32 that the Appellants plant fast growing shrubs and softwoods across the length of the face at the edge of the treeline prior to any blasting or crushing operations is stayed until June 1, 1994. 5. The requirement in condition 34 that an overall cleanup of existing overburden and rubble shall precede any blasting or crushing operations is stayed, but only to the extent that is necessary to blast or crush existing, dislodged overburden or rubble to achieve the mandated cleanup. The stay of condition 34 does not provide for, nor shall there be any, blasting of, or crushing of, material not presently dislodged from the existing face. 6. The requirement in condition 34 that prior to any blasting or crushing operations, the hillside between lifts 1 & 2 be reseeded and mulched is stayed until May 15, 1994. 7. Condition 36 shall be stayed pending the disposition of this appeal. Dated at Montpelier, Vermont, this 15th day of March, 1994. ENVIRONMENTAL BOARD ____________________________ Steve E. Wright, Acting Chair Lixi Fortna Arthur Gibb Samuel Lloyd William Martinez John Ewing c:\mod\5w1186s.tay (d2)