OFFICE OF THE ZONING BOARD OF ADJUSTMENT
Town of Halifax, Vermont
ZBA MEETING MINUTES
C.A. DENISON CONDITIONAL USE PERMIT HEARING
June 24, 2015
Hearing Session #2
The Zoning Board of Adjustment public hearing was reconvened at 7:08 p.m. at the Halifax Community Hall. ZBA members Sirean LaFlamme, John Brimmer, Brian McNeice, Bill Pusey, and Stephan Chait were present, as was Attorney Robert Fisher, who served as moderator. Applicant’s representatives were Attorney Chris Nordle, Jerry Pratt (Ashfield Stone), Lee Kahn, and Eddie Duncan (Resource Systems Group [RSG], White River Junction, Vermont). Also in attendance: Attorney David Grayck (representing Sue Kelly and the Group of Ten), Debra Foster, Janet Eldridge-Taylor, Paul Taylor, Jan Ham, Lesley Pollitt, Matt Maranian, Loretta Palazzo, Marilyn Allen, Arthur (Jesse) Ferland, Bonny Hall, Norman Fajans, Art Copeland, Lynda Copeland, Wayne Courser, Nicholas Bartenhagen, Margaret Bartenhagen, Donna Silverberg, Peter Silverberg, Susan Kelly, Donald Pyskacek, Bobbi Shapiro, Linda Lyon, Rebecca Stone, Craig Stone, Justina Gregory, Patrick Gregory, Joyce Burland, Sasha Burland, Michaela Harlow, Carl Barmen, David Brown, Elizabeth Martin, Jane Barron, Judi Kotanchik, Bonnie Brown, and Robbin Gabriel.
Moderator Robert Fisher advised that the Zoning Board would be hearing testimony on ZBA questions 7-13, 18, and 19. (See links at http://halifaxvt.com/departments/zoning/ for full text of questions and applicant’s responses [Exhibit 21].) Lee Kahn opened with a statement conveying greetings from Russell Denison, who hopes to return to Vermont in the next several weeks. Kahn described the Denison property as a 1210-acre parcel which had been in the family for three generations. It has never been posted, but has been open to hikers, hunters, and berry-pickers. Denison knows his land well, and considers it a member of his family. He first noticed the rock outcropping at the site of the proposed quarry about twenty years ago. Although it is clear stone was quarried at the site sometime in the past, no specific documentation has been found. Kahn said the applicants believe in responsible development; there will be no blasting, processing, screening, or crushing of material at the site. The proposed two trucks a day would operate between April 1st and November 30th, during daylight hours of 7:30 a.m. to 4:30 p.m., and will not operate during mud season or at any time of heavy rains. Reclamation will be ongoing throughout the quarry’s operation, and a $10,000 restoration fund will be established. Kahn also listed the state-approved permits that have been issued for the project and provided the Zoning Board with a binder containing copies of the authorizations. The list includes discharge, construction, stormwater, stream alteration, wastewater system and water supply, and Army Corps wetlands permits.
John Brimmer asked whether the Denison property was in a land trust, as that would prohibit posting. The parcel is in current use, answered Chris Nordle, but there is no conservation easement. As hands were raised in the audience, Fisher reminded the gathering that there would be an opportunity for orderly questions after the applicants had finished their presentation.
Chris Nordle thanked the Zoning Board for sending questions to the applicant in advance of the hearing, saying that unusual step was very helpful. Responses to those queries were submitted to the ZBA on June 19th, along with several other supplemental exhibits. (See link above to view that material.) Nordle introduced Eddie Duncan, Director of RSG, who was present to give expert testimony and respond to questions on tonight’s topic of noise. Duncan provided the ZBA with color copies of the noise assessment and his resume, gave a general summary of the noise assessment process, then reviewed the basics of the report, referring in particular to sections 3, 5, 6, and 7. He explained the difference between sound pressure and sound power levels, and described various methods of sound mitigation to be used at the quarry site.
When Duncan invited questions, David Grayck said he and Peter Silverberg (who has a science degree) would address the noise topic, as Grayck’s client’s expert witness could not attend the hearing. After clarifying that an Act 250 permit had not yet been issued, Grayck referred to a discrepancy in estimated extraction volume amounts in the Act 250 exhibits and asked which of those numbers had been considered during the noise impact study. He also asked whether the study had included truck noise in area homes, and suggested the Zoning Board should consider not only the 70 decibel limit specified in the town’s zoning bylaw, but should also take community standards into account; will there be undue adverse effect from any sound level? Finally, Grayck discussed Lmax and Leq sound modeling methods and advised that a variant of these sound-measuring techniques—a one-hour Leq—might be helpful in measuring noise impacts in area residences.
Fisher called a short break to allow Nordle and Duncan to consult. When testimony resumed, Duncan first spoke to the question of a discrepancy in extraction volumes; noise impact study results would be the same, he said, even if extraction quantity varied, as the operating equipment and its attendant sound levels would remain the same. Also, sound levels decrease as the grading elevation decreases. Nordle, responding to the issue of undue adverse effect, noted that while Grayck was speaking earlier, a motorcycle had passed by on the road just outside the open window—a noise event that is part of community life. How does that compare with sound created by two truck trips a day, he asked Duncan. Duncan estimated the truck sound would be about 10 decibels less than the motorcycle. Heavy trucks are governed by federal guidelines, he added.
Stephan Chait requested a more complete answer to question #9, level of sound from a truck slowing and then accelerating at the intersection of TH52 and Jacksonville Stage Road. Duncan said the acoustic study was charged with examining on-site, not off-site, noise but federal regulations limit a heavy truck manufactured after 1988 to noise emissions of 80 decibels at 50 feet.
Grayck returned to the extraction volume discrepancy between the project and reclamation plans. That would make a difference in duration, and number of truck trips, he said. Nordle said the question had been answered. Addressing Grayck’s metrics question, Duncan gave further detail on Lmax and Leq sound levels; the methods used in the quarry study measured maximum levels. Longer-term sound levels are often used in traffic and roadway studies but were not employed in the quarry noise assessment. Grayck said he would be returning to this subject. He mentioned a detailed review of metrics in a recent Supreme Court ruling on the Lathrop quarry as pertinent to the current discussion and noted that the Denison sound study did not measure offsite noise, a topic he said was of substantial concern to a number of people present.
Bill Pusey asked whether offsite noise was examined in the Act 250 process. In some cases yes, in some cases no, answered Grayck. You have to decide whether to use the same standards as Act 250—or does your zoning bylaw provide you with a different standard. Pusey then put the same query to Duncan, whose response was no, offsite noise is not part of the Act 250 hearing. We’re still waiting to hear from the Environmental Commission whether that is a problem, said Grayck. There are instances where truck noise offsite is fundamental to the evaluation. Nordle noted that when Act 250 did take offsite sound impacts under review those projects included a substantial amount of traffic; 175 trucks a day, for instance, rather than two.
Nordle requested an opportunity to go through the ZBA’s list of noise-related questions to learn whether Board members would like further information. Debra Foster asked when the public would have a chance to ask questions. Fisher suggested hearing from interested parties before Nordle reviewed the ZBA queries. Speakers were asked to identify themselves by name and indicate where they lived in relation to the proposed quarry site. Donald Pyskacek, who said his residence is on the Halifax-Guilford line on the Amidon Road, questioned Lee Kahn’s earlier statement that the Denison land had been in the family for three generations. Pyskacek recalled a time when Russell Denison had attempted to give the land to the NRA. He wasn’t able to do that, replied Kahn. Pyskacek also said some element of time should be included in the noise study, as a short interval of sound would not have the same effect as a longer one. Jan Ham, of 5161 Jacksonville Stage Road, noted the project site was in the Conservation District, and asked if the sound tests had measured all equipment operating simultaneously. Duncan answered that tests were performed on each individual piece of equipment, but the sound study data is a summation of all the machinery. My cabin, said Ham, is twelve feet from the roadbed; I would like a number on that. Judi Kotanchik, 3874 Jacksonville Stage Road, said she lives at the intersection where trucks will be down-shifting and accelerating, and the sound will be more invasive. Janet Eldridge-Taylor quoted figures from the noise assessment Appendix for a truck accelerating to 20 miles per hour—114 to 119 decibels. Those numbers represent sound power levels, not sound pressure levels responded Duncan; sound power levels are not what you experience. How did you choose the one-second metric, asked Kotanchik. That test method is a legal precedent set by Act 250 under Criterion 8, and is used when evaluating whether sound has an undue adverse effect on aesthetics, replied Duncan.
Pete Silverberg, of 7082 Jacksonville Stage Road, had prepared a slide presentation on the sound issue. While he started the projection equipment his wife, Donna Silverberg, told the gathering this was about the character of the area, and the aesthetics. We didn’t have a residence here for ten years, she said, but we came every month. We were enjoying the outside. Pete doesn’t like music, he doesn’t like motorcycles, he doesn’t like sound. We came for the peace and quiet, and this will change the character of the area. Michaela Harlow, of 2832 Deer Park Road, said she works at her studio at that location, and was at home during the sound test. She heard the sound test from inside her studio with the door shut.
Fisher suggested hearing the remainder of comments and questions from the floor before viewing Pete Silverberg’s slide presentation. Debra Foster spoke next. If you don’t consider offsite sound, she stated, you’re not doing your job. You’re comparing a second of a motorcycle to our lives. I know people who are going to move now. We did our homework, we looked at the town plan, we had no idea that there could be a quarry in a conservation district. You have stated in letters and to the Board that you are an abutter, said Sirean LaFlamme; are you an abutter? No, replied Foster, I looked at a map, and I abut Joyce Burland’s property, but not Denison’s. But I still have the closest well. Joyce and Sasha Burland live at 2077 Deer Park Road. Joyce Burland said this was their first meeting. I live a hundred yards from this project, I am the second largest landowner in this town, I came here as someone who wanted to live in a place where our community was interested in preservation. We live in a place where we are going to have offsite noise the entire four-and-a-half months that we are here each year. The issue here is that one man’s right to do something is going to disinherit so many. Sasha Burland added that they would hear the noise from the quarry and it would change their lives. Norman Fajans, 2505 Deer Park Road, echoed Burland’s sentiments. All these sound studies are wonderful, he said, but they don’t address what we have now. Now we hear the birds and the peepers in the pond. If this project goes through it will be a constant unnatural noise. It will have an undue adverse effect on the quality of our lives. Will we even be able to sell our properties for half of what they are assessed at now? Does the proposed project have the right to affect so many different people? Matt Maranian, 169 Houghton Road, said that even though he is one of the closest neighbors to the proposed site, he was not informed of the sound test. He is a writer and works at a studio on his property. This will change the quality of our life, he added. I always hear the suggestion of two trucks; is it a condition of this proposal that there will never be more than two trucks a day, and if there is ever an excess of two trucks, do we have any recourse as a town? Fisher referred the question to Nordle, who affirmed the applicant was only asking for two loaded trucks per day and was not considering anything higher. If there are more, advised Fisher, that would be an issue for the Zoning Administrator with regard to enforcement action. Loretta Palazzo, Matt Maranian’s wife, said it seems crazy to her that full-time residents have to go through all this; this is about profit for someone who doesn’t even live here.
Craig Stone, who has served on the Planning and Zoning Boards in Halifax, said it is a very difficult job to hold that position and make everybody happy. I hear the concerns of all the neighbors in the Conservation District, he went on, but I’d like to express a concern of other local people. As a self-employed logger/forest manager I intended to be a for-profit business, but due to extenuating circumstances I am barely profitable. I find artists and others very talented; they do things I can’t do. But I’m pretty sure they’ve done something for profit, because they moved here. Mr. Denison has been a good neighbor, both in Colrain and Halifax; Mr. Pratt and I went to the same high school. This is a difficult situation; we need to try to get along, to find some common ground. I don’t want to see Halifax turned into an Adirondack Park. We all pay taxes–I hope the Board will consider that. Rebecca Stone, who came from Colrain to Halifax in 2009, said her family had been in the area for seven generations and four generations of family members had worked for Denison Lumber. If you come up through from Colrain, she said, there are no gas stations left, no businesses left, there is no way to make a living. Maybe that’s part of the reason that little paragraph is in your bylaws; to give opportunity for some economic development, a chance for employment that does not require a two-hour drive to work. As Wayne Courser stood to speak, Fisher requested participants to confine comments to the noise issue. There will be another hearing, he said, when other topics will be considered. Courser said he would wait.
Bonny Hall, who lives on Clark Road, just above Green River Road, said we’re not just talking about truck engine noise, we’re talking about what happens in front of Judi Kotanchik’s house when the truck hits the potholes. On Green River Road, when trucks hit potholes, the bed bounces and it’s a whole lot noisier. David Brown lives on Jacksonville Stage, far enough away from the site that he doesn’t expect to hear the noise. A few years ago, however, there was an Act 250 project on Jacksonville Stage—a lumberyard—that produced sound he could hear. He made the point that prolonged noise is experienced differently than sound of shorter duration. Nicholas Bartenhagen, of 3658 Jacksonville Stage Road, asked Duncan how sound power and sound pressure were measured. Sound power cannot be measured, responded Duncan, sound pressure can. We measure the sound pressure level, then we calculate the sound power level based on the environmental conditions. So what was the sound pressure level of the truck, asked Bartenhagen. He advised that there should be sound testing on the truck, especially since we don’t know which truck will be used. Nordle explained that federal regulations govern maximum permitted sound levels on all heavy trucks, no matter the make or model. Jerry Pratt noted the application specifies a tandem axle truck, and displays a photo and weight data using a Halifax town truck as an example. The quarry truck will be that size or smaller, he said.
Pete Silverberg now presented his slideshow, titled “Proposed Quarry Noise Concerns.” (See content at http://halifaxvt.com/wp-content/uploads/2013/11/Silverberg-Slides-06-24-2015-Hearing.pdf) Silverberg said he went to school in Vermont—St. Michael’s—has a bio degree, a lot of science background, and a career as an engineer. Silverberg’s slides listed sound basics bullet points and focused on the rock drill as the primary source of sound in the proposed quarry. He also questioned whether trucks would actually meet the federal standard; they take mufflers off and use jake brakes, he said, and are much louder than the federal 80 decibel limit. He raised several points regarding the RSG sound assessment; tests were not performed at the highest site elevation, foliage was turned on, not all equipment to be used was running during the test, and tested equipment was not representative of what would actually be used. Duncan responded with an explanation of how the modeling results take all elevations/locations into account in the final analysis. He clarified the definition of foliage–for purposes of sound testing foliage is not simply leaves, as many people would assume, the term represents the summation of forest growth. If there is no line of sight between two points, it is appropriate to model “foliage on.” Grayck asked Silverberg if there would be times during proposed quarry operation when leaves would not be on the trees, and Silverberg replied that given the operating window of April 1st to November 30th there would be such times. And what does that do, asked Grayck, if the models assume there would be foliage. Nordle objected to this question, as beyond the scope of the Silverberg’s expertise. Fisher advised this hearing did not require the same standards that an environmental court would with regard to witness expertise. The Zoning Board will take qualifications of testifying participants into consideration in their deliberations. Mr. Duncan has testified to a very specific definition of foliage used in sound testing, responded Nordle, while the testimony we are hearing now uses a different definition. Fisher said the Zoning Board would take expertise into account when weighing testimony. Grayck indicated he would like to pursue the foliage issue with Duncan. Let’s let Mr. Silverberg finish, and allow the applicant to review the ZBA questions, said Fisher, then we can return to this subject. Silverberg stated it seemed to him that if the test model had foliage turned on, then that model would be inaccurate for the periods when there were no leaves on the trees.
The Halifax zoning regulations specify 70 decibels at the property line. Silverberg said that would be incredibly loud. Sirean LaFlamme reminded Silverberg that the ZBA would be making a decision based on existing zoning regulations. Property owners accept the regulations that come with a conservation district, continued Silverberg, but a conservation district doesn’t have a quarry in it. We value the wildlife on our property, we’re here because of the quiet, the views, the environment; I don’t want to see that taken away. I ran my own business in Massachusetts for twenty years, it’s not easy, and I have a lot of respect for that. But that doesn’t mitigate putting a quarry in a conservation district..
Fisher invited response from Duncan, who had two points of clarification. One of Silverberg’s statements, that a 20 decibel increase in sound is 100 times louder, is not accurate, said Duncan. Again, a later reference to one billion times louder is incorrect. Nor would the rock drill produce 127 decibels of noise continuously. The 127 refers to sound power, not pressure, and would be reduced as the drill descends into the hole is it creating. Sue Kelly, of Old Stage Road, said there had been a lot of talk tonight about maximum and peak sound levels; it’s not just about how loud it is at the moment, but how much noise, and how constant. Logging operations are traditional in Vermont, she said, and a few years past when Denison was logging next to my property I did not complain. Logging operations are temporary, this is going to be constant, and to have this happen to us for the rest of our lives is an unfair burden for us to bear. Donna Silverberg said a quarry begins to resemble an amphitheater as it is cleared. Doesn’t that attenuate the sound, she asked. That’s true, answered Duncan. For that reason, the foliage within the extraction area was excluded when the model was developed. The model also classifies the ground in the extraction area as hard, or reflective, and excludes not just the extraction area but the surrounding buffer area.
Nordle had several followup points before proceeding to the ZBA question review. Logging is traditional in Vermont, he said, referring to Sue Kelly’s earlier comment, but so is quarrying. There is evidence of quarry activity on the proposed site dating back to the 1800s, and Vermont granite has been shipped all over the world for hundreds of years. Often Vermont quarries—such as those in Barre, Randolph, and Williamstown–are substantially closer to residential areas than is this particular project. Regarding truck traffic, Nordle said our highway system is designed for public use. The quarry’s two trucks a day will not represent a different usage, nor is the sound they will produce a constant noise. He also asked the Board to consider that, while there had been much conversation about sound levels produced by quarry equipment, the actual perceived sound levels at nearby residences as determined by the noise assessment study is considerably less.
Noting that the time was 9:10 p.m., and that the ZBA would like to complete testimony on the noise topic tonight, Fisher recommended going through the ZBA noise questions and then taking questions from participants. Nordle summarized question #7 with its response, and asked whether the ZBA had additional questions. Stephan Chait asked whether additional, or artificial sound buffers had been considered, and are they effective. Duncan described a portable noise barrier which would be placed between the drill and the nearest residence in relation to the location at which the drill was operating. Yes, they are effective; they are used as highway noise barriers and on construction sites. What size are the barriers, asked John Brimmer. The largest, said Duncan, is 60 to 70 feet long and about 12 feet high, and is made up of moveable sections. They are solid units of significant density. Do you have an idea of the sound difference between leaves on the trees and leaves off the trees, asked Brian McNeice. Duncan said not a lot of studies are done using those parameters; that is not how foliage is defined in terms of acoustics. Pusey asked whether there were many coniferous trees in the area; there are a few, said Pratt, but the area has been logged. Pratt went on to explain that the quarry operation would be monitored by the Mine Safety Group, who do regular unscheduled inspections and assure employee exposure to noise and dust are within regulatory limits. He described various measures he and his employees had developed to mitigate sound. For question #8, Duncan described 49 decibels as being half as loud as conversational speech. Chait asked further questions about the constancy of noise, and concluded by asking what was the impact of noise on the quality of life. Question #9 had been covered earlier in the evening, said Nordle. Chait again pointed out that the written response had not adequately answered the question, and Duncan reviewed the federal heavy truck noise standard of 80 decibels. Referencing question #10, Chait asked for an explanation of sound power and sound pressure. As he had earlier, Duncan used the example of a 60 watt light bulb, which gives off the same amount of light no matter where it is. But the bulb’s output is perceived differently depending upon the environment in which it is placed. This applies to human perception of sound. Question #11 pertained to foliage, which had been thoroughly discussed earlier in the hearing. Question #13 asked why a picture of the actual quarry truck had not been provided. Nordle explained the town truck photo had been provided to give a concrete example of the truck the quarry proposed to utilize. As the permitting process is not complete and the actual truck has not yet been purchased, there is no photo available of the specific truck which will haul stone. Chait remarked that if a text version of the foregoing statement had been provided it would have been more effective than the photographic example. Question #18: The rock saw and hand drill will not be operated simultaneously. Question #19: Chait reworded this query for clarity: What impact will the progressive reclamation of benches in the quarry have on sound levels? Will it increase or decrease them? Duncan and Pratt agreed that the noise tests charted decreasing sound as quarry operations moved to progressively lower benches, and the reclaim/reseeding process would reduce those levels even further.
Fisher solicited final questions and comments from participants. Carl Barmen, of Jacksonville Stage Road, asked what powered the drills and saw. Air and electric, said Pratt, and the compressor is a 185 (size). He told John Brimmer the air compressor is a 4-cylinder John Deere with full-time pickup. Debra Foster said she was imploring the Board, as they heard these mitigating measures, to consider what was fair. She quoted the Town Plan: [in the Conservation District] “development which creates significant amounts of traffic or noise, or which otherwise has an adverse impact on the environment, is undesirable.” This seems like such a bait-and-switch to me, said Foster, that we are talking about this in a conservation district. We had an opposite expectation. We were going to have a conservation district with 15-acre zoning, and we’re paying a good amount of taxes on it. Let’s not narrow it down to generators and trucks, narrow it down to what our hearts are living here. You told us that’s what we could have. Paul Taylor, on Josh Road, said living next door to a functioning quarry is not a real sales point. Have any studies been conducted that indicate financial impact on properties in the vicinity of a quarry? Nordle said he had seen such studies; they reported a small negative impact which decreased with distance. He has also spoken with listers in towns which have quarries in Washington and Chittendon counties, and they are not changing assessments. Nicholas Bartenhagen said he had seen a study which recorded declines of 20% to 5% in home sale values of properties near a quarry.
It’s quarter to ten, announced Fisher. We will be having another hearing. I see three hands; I’m going to let those participants speak, and Attorney Grayck, and we’ll finish at 10:00 o’clock. Sue Kelly stated the sound studies show that in order to comply with the limits at property lines unusual very large sound barriers must be relied on. I feel uncomfortable relying on the employees of this industrial operation to place those barriers and use them appropriately to keep the limits down to these numbers, she said. Michaela Harlow wished to clarify that when she heard the sound test it was summer, there were leaves on the trees, the wind was blowing, and she was in her house. Joyce Burland said that rather than going home tonight thinking quarries were a tradition in Vermont it would be wiser to say any quarry proposal initiates a conflict between the community and the person wanting to build a quarry. And I’m concerned about the health of the people who work there, she continued, it they have to be checked up on all the time it’s not a healthy job. Donald Pyskacek asked if the actual equipment to be used in the quarry was used in the sound tests. No, responded Pratt, it was heavier. Pyskacek recommended playing a recording of the sound from the actual tests. Has anyone researched the sound at Jerry Pratt’s Ashfield operation? Pratt said thirteen new houses had been built in the vicinity of his Ashfield business in the last twenty years. Presently three new houses are under construction, valued at $1.5 million each. Land values have gone up steadily in the town.
We’re going to let Attorney Grayck summarize here, advised Fisher. Then we will hear the rest of the questions when we reconvene. Grayck mentioned the Rich Rivers case, in which property values were addressed, and said he would bring lister decisions on two properties related to that case. Also, we need to hear if the applicant is willing to make the project weekly trip limit of 20 a critical permit condition, as that seriously affects the future impacts of the project.
In the next hearing, said Fisher, we are going to cover the rest of the questions–those not discussed tonight. Expert witnesses should be prepared to address those questions. LaFlamme said the specific questions could be found on the town web site. Two additional hearings have been scheduled, but the final one will be held only if needed.
The hearing recessed at 10:00 p.m., and will reconvene on Tuesday, July 14, 2015 at 7:00 p.m. at the Halifax Community Hall.
Interim ZBA Secretary