RE: Talon Hill Gun Club, Inc. and John Swinington, Land Use Permit #9A0192-2-EB, Findings of Fact, Conclusions of Law and Order (June 7, 1995) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: Talon Hill Gun Club, Inc. and John Swinington Land Use Permit #9A0192-2-EB FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER In this decision, the Environmental Board grants a permit amendment for certain activities/uses at the Talon Hill Gun Club in Leicester. I. PROCEDURAL BACKGROUND On June 21, 1994, the District #9 Environmental Commission ("District Commission") issued Land Use Permit #9A0192-2 (Revised) ("Permit") to the Talon Hill Gun Club, Inc. ("Talon Hill") and John Swinington. The Permit authorizes Talon Hill and Mr. Swinington (collectively "Permittees"), in pertinent part, to: relocate and/or reorient several sporting clays shooting stations to allow for shooting in a direction not greater than 45 degrees to the south of magnetic west and not greater than 45 degrees to the east of magnetic north ("Station Changes"); use, on a temporary basis, an access road off the Leicester - Whiting Road; and install and operate an archery facility. On July 21, 1994, James Miner, A. Kim Miner, Jane De Angelis, Robert Lord, Mary Lord, Susan Young-Walsh, Robert Walsh, Bruce Brown and Carmelita Brown (collectively "Appellants") appealed the Permit. The Appellants contend that the District Commission erred with respect to the following Criteria of 10 V.S.A. § 6086(a): (1) (air-noise pollution) and (8) (aesthetics-noise). On August 22, 1994, then Board Chair Arthur Gibb convened a prehearing conference in Montpelier. At the conference, the Permittees filed a Motion to Dismiss. The motion raised the following issues: 1.) whether the Appeal should be dismissed because it is barred by either the application of res judicata or collateral estoppel; and 2.) whether if the Appellants' appeal is not barred, the scope of the Appeal should be limited to the potential effects of the Station Changes only with no consideration of the potential effects of the skeet and trap facility authorized by Land Use Permit #9A0192. On November 7, 1994, the Board concluded: 1.) each of the Appellants shall have party status under 10 V.S.A. § 6086(a)(1) (air-noise pollution) and (8) (aesthetics-noise); 2.) if the Permittees choose to operate the sporting clays facility as authorized by the Permit, then the Motion to Dismiss is denied (the Board found that the Permittees had a vested interest in those matters/privileges authorized by Land Use Permit #9A0192); and 3.) the Appeal shall be limited in scope to the Station Changes relative to 10 V.S.A. § 6086(a)(1) (air-noise pollution) and (8)(aesthetics-noise). On December 6, 1994, the Appellants filed a Motion to Appeal from the Board's November 7, 1994 ruling. During December, 1994 and January, 1995, the parties filed their prefiled testimony, lists of exhibits, objections to prefiled testimony and proposed findings of fact and conclusions of law. On February 7, 1995 Acting Chair Gibb convened a second prehearing conference. FN1 Acting Chair Gibb ruled on all outstanding evidentiary objections. On February 8, 1995, the Board convened a hearing in this matter ("Hearing"). It confirmed Acting Chair Gibb's evidentiary rulings and denied the Appellants' Motion to Appeal. The Board deliberated on this matter on February 8, 1995 and June 1, 1995. On June 1, the Board declared the record complete and adjourned the Hearing. This matter is now ready for decision. To the extent any proposed findings of fact and conclusions of law are included below, they are granted; otherwise, they are deemed redundant, irrelevant and/or inaccurate and are denied. II. ISSUES The issues before the Board are very narrow. They relate solely to the Station Changes. They do not involve the entire sporting clays facility or for that matter, the overall shooting club operation. The issues are: 1. Whether the Station Changes will result in undue air pollution due to noise under 10 V.S.A. § 6086(a)(1); and 2. Whether the Station Changes will have an undue adverse effect on aesthetics due to noise under 10 V.S.A. § 6086(a)(8). Within the scope of Appeal are the Appellants' appeal of Condition #8 of the Permit, the District Commission's omission of a dBA limit for operating noise as measured at the boundary of the shooting club operated by Talon Hill ("Gun Club"), the District Commission's definition of noise as "unwanted sound", the District Commission's finding that the level of shotgun noise measured during the sound test is in the "annoyance" category and the District Commission's findings relative to the permitted hours and days of operation of the Gun Club. III. FINDINGS OF FACT 1. The Gun Club is located on lands owned by John Swinington ("Property"). 2. Mr. Swinington leases the Property to Talon Hill. 3. The Gun Club is surrounded by open agricultural/rural land with some residential uses. It is in the vicinity of Otter Creek. Automobiles and farm machinery generate traffic noise nearby. A train is heard on occasion. Hunting and target practice occurs in the area. 4. The sporting clays facility includes ten shooting stations located on a trail in the woods on the Property. Talon Hill already has permission/authority to shoot from stations in a direction not greater than 45 degrees to the south of magnetic west and not greater than 45 degrees to the east of magnetic west. Through this matter, Talon Hill is, in part, seeking permission/authority to shoot from stations in a direction not greater than 45 degrees to the south of magnetic west and not greater than 45 degrees to the east of magnetic north. 5. Several neighbors living in a south or southeasterly direction from the Gun Club are disturbed, annoyed, unnerved and/or stressed by the noise generated by the sporting clays facility. Others are not bothered by the noise and find it comparable to noise generated by nearby car and truck traffic. 6. There are no allegations that the Station Changes have caused or will cause adverse health effects such as hearing loss. 7. The Station Changes do not involve stations 1-4 which were shot in a northwesterly direction prior to the Permit. Stations 5 and 6 would be shot in a northerly direction. Station 7 would be shot in a northeasterly direction. Shooting from stations 8 and 10 would not be affected. Prior to the Permit, they were relocated and shot in a northwesterly direction. Station 9, another relocated station, would be shot in a northeasterly direction. 8. A sound test relative to the sporting clays facility generally and the Station Changes specifically was conducted by a professional audiologist, Diane Muhr, on February 26, 1994 under the overall direction and supervision of Dana Farley, District Coordinator. Ms. Muhr submitted a report to the District Commission ("Muhr Report"). 9. The sound test was designed to replicate the various kinds of sporting clay shooting that takes place at the sporting clays facility. The format included shooting to represent an average business day, a league shoot and a tournament shoot. A special effort was made to determine whether there was any difference in the sound generated by shots fired 45 degrees to either side of magnetic west as compared with shots fired in a direction not greater than 45 degrees to the east of magnetic north. 10. The test shooters used 12 gauge shotguns and 3 dram loads including 1 ounce high speed loads. Five of the ten shotguns were ported. 11. The shotgun noises were reported on the dBA and dBC scales. The dBA or A-weighted scale simulates the subjective response of the human ear but does not react as well to measuring impulse noise such as a shotgun report. The dBC or C-weighted scale is equally as responsive to low pitched sounds as it is to mid and high pitched sounds. 12. On test day, the temperature was approximately 5-8 degrees Fahrenheit with a 10-15 knot wind from the North. The wind was blowing toward the Appellants' properties. There was snow cover on the ground. With the exception of a strong wind, the conditions were excellent for a sound test. 13. The results of the sound test are as follows: Location Avg. Business Day League Shoot Tournament Part I Part II Part I Part II Currie N/A N/A N/A N/A Brown 48dBA 48dBA 47dBA 48dBA 46dBA Walsh 62dBC 62dBC 62dBC 62dBC 62dBC Lord 45dBA 45dBA 45dBA 46dBA 45dBA 53dBC 54dBC 54dBC 54dBC 54dBC Miner 46-9dBA 46-8dBA 46-8dBA 46-9dBA 46-8dBA 14. There was no noticeable increase in shotgun sound relative to the direction of fire in any of the locations (ie: 45 degrees to either side of magnetic west or 45 degrees to either side of magnetic north). In most instances, the level of the gunshot noise was 2-3 decibels over the ambient reading. There was no difference in measured shotgun loudness between any segment of the sound test (ie: average business day, league shoot, tournament shoot). At the Currie listening post no shotgun noise was audible. 15. A doubling of the decibel reading does not represent a doubling of the sound level. Decibels are measured in a logarithmic scale. 16. The level of shotgun noise measured during the sound test at all the listening posts falls into the category of "annoyance" noise. There is no single attribute capable of providing a scale on which noise annoyance can be based. Noise annoyance is not based solely on loudness or on decibel readings. It is a complex phenomenon of both acoustic and non-acoustic components. The two aspects of noise annoyance are: (a) the noise source itself; and (b) the non-acoustical aspects or subjective considerations. 17. The noise source itself concerns things such as loudness, intermittency, duration (impact v. steady state) and spectral composition (frequency). The non- acoustic aspects concern the way the noise is perceived, its sensory and emotional effects and the time of day the noise occurs. 18. The degree of noise annoyance does not depend entirely on the loudness of the sound. The duration and intermittency of noise must also be considered. Impulse noises, such as gunshots, are often judged to be "noisier" or more unwanted than non-impulsive noise having the same total integrated energy. People vary greatly in the degree to which they are affected by noise. Attitudinal factors play a significant role. 19. In the Gun Club's locality, ambient sound levels -- no shooting -- ranged from 40 - 55 dBA over a two minute period. Measurements of gun noise were performed only when the ambient sound was low, i.e., 40 dBA. 20. The sound levels generated during the sound test are well below the harmful level as established by various federal governmental agencies: a. The Environmental Protection Agency establishes a hearing loss standard at approximately 70 dBA and the "annoyance" standard at approximately 55 dBA. b. The Federal Highway Administration recommends noise abatement when the average noise level exceeds 67 dBA outside. c. The Federal Department of Housing and Urban Development standards indicate that noise levels should not exceed an average of 62 dBA for eight (8) hours of non-construction noise or ten (10) hours of construction noise. d. The Army Corps of Engineers establishes a standard for maximum construction noise over more than a 16-day period, of 57 dBA. These federal standards are not community standards. 21. The effects from shooting at the sporting clays facility have not risen above the annoyance and/or aggravation level. 22. The use of shotgun shell reloads is a common practice and procedure among sporting clay shooters. Maximum loads are not needed and can be a handicap for sporting clays shooters. A lighter, faster, and better shot pattern or payload is achieved because of reduce recoil on the individual shooter and there is less shot pattern deformation. 23. Heavier loads cause the effectiveness of the shot pattern to degenerate at 20 - 25 yards, causing a so- called "blown pattern." The lower the velocity of the shot column, the less of a tendency for the shot to spread and create holes in the shot pattern. Using heavier than permitted loads can cause a shooter to be penalized, by forfeiture of all entry fees, purses or prizes. 24. Some towns adopt ordinances relating to objectionable noises. The standard often applies to continuous state noise such as traffic or music. For instance, the continuous state noise limit in the Town of Brandon is 70 dBA at the property line. However, it is difficult to apply continuous state noise standards to shotgun noise. 25. On June 21, 1994, the District Commission issued the Permit to the Permittees. The Permit authorizes the Permittees, in pertinent part, to: relocate and/or reorient several sporting clays shooting stations to allow for shooting in a direction not greater than 45 degrees to the south of magnetic west and not greater than 45 degrees to the east of magnetic north ("Station Changes"); use, on a temporary basis, an access road off the Leicester - Whiting Road; and install and operate an archery facility. The Permit conditions are included in this finding as if fully set forth herein. IV. BURDEN OF PROOF The Permittes have the burden of proof under Criterion 1, and the Appellants have it under Criterion 8. 10 V.S.A. §6088. To meet their respective burdens, the Permittees must persuade the Board that the Station Changes will not result in undue air pollution due to noise under Criterion 1, and the Appellants must persuade the Board that the Station Changes will have an undue adverse effect on aesthetics due to noise under Criterion 8. See In Re Denio, 158 Vt 230, 236 (1992); Re: Killington, Ltd. and International Paper Realty Corp., #1R0584-EB-1 Findings of Fact, Conclusions of Law and Order (Revised) at 21 (Sept. 21, 1990). If the Permittees fail to meet their burden, or the Appellants succeed in meeting theirs, the permit amendment must be denied. V. CONCLUSIONS OF LAW 1.) Criterion 1(air-noise pollution) Noise is considered air pollution in the context of the potential adverse health effects it can cause. Re: Sherman Hollow, Inc., #4CO422-5-EB, Findings of Fact, Conclusions of Law and Order (Revised) at 30 (Feb. 17, 1989). The Board's test for undue air pollution caused by noise is: will the noise have impacts rising above annoyance and aggravation to cause adverse health effects such as hearing damage. See Re: John and Joyce Belter, #4CO643-6R-EB, Findings of Fact, Conclusions of Law and Order at 13 (May 28, 1991). In Belter, the Applicants sought a permit to construct a 36-lot subdivision. Site preparation and building construction necessitated blasting and drilling. Noise in the Criteria 1 context was at issue. The Board found as fact: the distance between the blasting area and the nearest residence is approximately 325 feet; a number of residences are located within 1,000 feet from the blasting area; at 320 feet from the drilling source, the noise level from four drills would be 75 dBA; at 320 feet from a blast, the noise level would be 81 dBA; at 325 feet from a bulldozer's backup beeper, the noise level would be 60 dBA; and unless the neighbors are outside continuously during the drilling and blasting, the noise will not create actual hearing damage. Based on these facts, the Board concluded that the project would not cause undue air pollution under Criterion 1. The relevant evidence in the Appeal indicates that the noise generated by the Station Changes will not have an adverse effect upon human health. The difference between the permitted direction of fire and the requested direction of fire is negligible. Noise generated by shots in the requested direction of fire is no more annoying than noise generated by shots in the permitted direction of fire. No neighbors complained of potential adverse health effects such as hearing loss due to the Station Changes. The noise generated during the sound test by shots in the permitted and requested direction of fire was in the "annoyance" category and below harmful levels established by various federal agencies. The noise generated by the Station Changes will not rise to the levels at issue in Belter. The Board makes a positive finding under Criterion 1 (air-noise pollution). 2.) Criterion 8 (aesthetics-noise) 10 V.S.A. § 6086(a)(8) requires that, prior to issuing a permit for a proposed project, the Board must find that the project "[w]ill not have an undue adverse effect on the scenic or natural beauty of the area, aesthetics . . . ." The Board uses a two-part test to determine whether a project meets Criterion 8. First, it determines whether the project will have an adverse effect. Second, it determines whether the adverse effect, if any, is undue. Re: Quechee Lakes Corp., #3W0411-EB and #3W0439-EB (January 13, 1986). A. Adverse Effect If a project "fits" its context it will not have an adverse effect. In evaluating the "fit", the Board looks at the nature of the project's surroundings and the compatibility of the project with those surroundings. The Board is charged in this Appeal with a de novo review of the Station Changes. It finds that the level of noise generated by them will not "fit" into the surroundings in which they are generated. The area around the Gun Club is largely a mix of open agricultural/rural and residential uses. The occasional automobile or farm vehicle generates traffic noise. A train whistle is heard on occasion. Hunting and target practice occurs in the area. The Station Changes will generate an irregularly occurring, annoying popping sound. Some neighbors are more disturbed by the noise than others. However, they are all impacted by it. B. Undue The Board next analyzes three factors in evaluating whether the Project's adverse effects are "undue." 1. Does the project violate a clear, written community standard intended to preserve the aesthetics or scenic beauty of the area? 2. Does the project offend the sensibilities of the average person? Is it offensive or shocking because it is out of character with its surroundings or significantly diminishes the scenic qualities of the area? 3. Has the Applicant failed to take generally available mitigation steps which a reasonable person would take to improve the harmony of the proposed project with its surroundings? Quechee Lakes, supra at 19-20. a.) Clear Community Standard The various federal standards addressed by the parties are not community standards. They are broad based national standards. They were not developed with any direct input from members of the Leicester community. Even if they were community standards and thus considered by the Board in the Appeal, the Station Changes do not violate them. The Town of Brandon's zoning ordinance contains a noise limitation provision which is applicable in Brandon. The Board does not opine on whether this provision applies to the Gun Club which, as stated earlier, is located in Leicester. If it is applicable, it is not violated by the Station Changes. b.) Offensive or Shocking The Station Changes have a negligible effect upon the level of noise generated at the Gun Club. The sound test revealed that the noise generated by shooting in the currently permitted direction is not significantly different than that which is generated by shooting in the proposed direction. As already noted, the area surrounding the Gun Club is open agricultural/rural in nature. Some traffic noise is generated on the nearby roads. Farm machinery is frequently in use. A train regularly travels through the area. The Gun Club does not dramatically interrupt this setting. The noise from the Gun Club will remain annoying. Nothing more. It is not shocking. It does not offend the Board's sensibilities. c.) Mitigation The District Commission imposed a thorough set of mitigating conditions upon Talon Hill in the Permit. These conditions were designed to control the noise generated by the Gun Club in general and the Station Changes specifically. The Board, after hearing all of the evidence in this de novo proceeding, has reviewed these conditions and believes that they are appropriate in light of the record in the Appeal. The conditions are well crafted and weave a just solution to a long running dispute that should now play itself out at the local level before the District Coordinator and/or District Commission. Talon Hill did not appeal the District Commission's conditions. Talon Hill has accepted them. They include: limit the hours of operation to those approved in the original permit; specify the two nights per week on which league shooting will occur; prohibit operation over Memorial Day, July 4, Labor Day, Thanksgiving, Columbus Day, Christmas, New Years Day, and Easter FN2; restrict the highest gauge shotgun to 12 gauge; prohibit magnum loads; preclude loads in excess of 3 drams of gunpowder; post conditions at the Gun Club; remove the stations currently located in the old 8, 9, and 10 positions and keep them in an area which is not misleading to shooters. The District Commission retained jurisdiction over the noise impacts of the Station Changes and reserved the right to schedule site visits and public hearings for the purpose of reviewing unanticipated impacts under Criteria 1 (air- noise pollution) and 8 (aesthetics-noise). The District Commission also reserved the right to impose further reasonable conditions that may be necessary to mitigate any unanticipated adverse impacts associated with the Criteria 1 and 8. The Board concludes that the Permittees, by accepting the District Commission's conditions, have taken or will take generally available mitigating steps which a reasonable person would take to improve the harmony of the Station Changes with their surroundings. The Board, in part due to the conditions it imposes in its Permit, makes a positive finding under Criterion 8 (aesthetics). ____________________________________________ V. ORDER Based upon the foregoing Findings of Fact and Conclusions of Law, Land Use Permit Amendment #9AO192-2-EB is hereby issued. Dated at Montpelier, this 7th day of June, 1995. ENVIRONMENTAL BOARD s/s/ Arthur Gibb ____________________________ Arthur Gibb, Acting Chair John T. Ewing Marcy Harding William Martinez Robert Page Steve E. Wright FN1 On February 1, 1995, John T. Ewing became Board chair. Mr. Gibb is serving ad Acting chair in this matter at Chair Ewing's request. FN2 The conditions on shooting at the Gun Club will not apply to the proposed archery facility. The Board will allow Talon Hill to establish the hours and days of operation for this facility as it deems appropriate. a:TalHill.Dec (cam) c:\wp51\decision\talhill.dec (v)