OFFICE OF THE ZONING BOARD OF ADJUSTMENT
Town of Halifax, Vermont
ZBA MEETING MINUTES—DRAFT
C.A. DENISON CONDITIONAL USE PERMIT HEARING
July 28, 2015
Hearing Session #4
The fourth session of the C.A. Denison conditional use public hearing was called to order at 7:12 p.m. at the Halifax Community Hall. Zoning Board of Adjustment members Brian McNeice, Stephan Chait, and Alternate Member Linda Lyon were present. Sirean LaFlamme arrived about 7:30; Bill Pusey was not able to attend. Also present were Town Attorney Robert Fisher (as moderator), Russell Denison, Jerry Pratt (Ashfield Stone), Attorney Chris Nordle (representing applicant), Lee Kahn (Permitting Partners), Attorney David Grayck (representing Sue Kelly and the Group of Ten), Michael Oman (Oman Analytics), Marilyn Allen, Arthur (Jesse) Ferland, Peter Silverberg, Milton Bickle, Justina Gregory, Patrick Gregory, Robert Sand, Mary Horne, Elizabeth Martin, Carl Barmen, Susan Kelly, Rick Barron, Jane Barron, Art Copeland, Lynda Copeland, Bonny Hall, Judi Kotanchik, James Coughlin, Mariette Sanders, Stephen Sanders, Debra Foster, Janet Eldridge-Taylor, Paul Taylor, Laura Sumner, David Brown, Loretta Palazzo, Liz Laona, Norman Fajans, Herman Drost, Bonnie Brown, Donna Silverberg, Matt Maranian, Joyce Burland, Maggie Bartenhagen, Nicholas Bartenhagen, Laura Gerdes, Wayne Courser, Joan Courser, Rebecca Stone, Homer Sumner, Deborah Sumner, Craig Stone, and Robbin Gabriel.
After advising that questions 1-6, 31, and 32 would be addressed during this session, Moderator Fisher gave the floor to Attorney Chris Nordle. (See links at http://halifaxvt.com/departments/zoning/ for full text of questions and applicant’s responses [Exhibit 21].) Questions 1-6 are related to traffic and roads. Nordle reminded the gathering of the applicant’s previously-submitted exhibits describing road conditions, speed limits, and the applicant’s assessment of potential traffic impacts. Jerry Pratt then spoke to each question as Nordle read them in turn. Pratt said he has extensive experience as a truck driver; he drove trucks in the service for several years and then as a civilian thereafter, in Florida, Texas, and Louisiana, operating a wide and varied range of large and small trucks. The quarry project has been designed to use a truck similar in size and type to the town highway trucks, said Pratt, and we have agreed to be fair weather haulers; we will not operate until spring mud season is over and the roads have been graded and maintained. We will make two runs a day, up and back, during daylight hours on weekdays. Stephan Chait stopped Pratt at this point, saying he respected Pratt’s experience and knowledge of trucks and their use, but the question under consideration was about road infrastructure, which is an engineering question talking about point load impact of trucks on culverts, roadbeds, or bridges. Pratt said he was addressing the question in that the quarry truck would be similar to the town trucks in weight and size, and would conform to state standards and restrictions. The town trucks are suitable for these roads, and the quarry truck will be also. Question #2 asks about cost of potential road repairs. Pratt said he did not believe the two trucks a day would add to the existing cost of road maintenance. Question #3 asks how safety concerns on Stark Mountain Road would be addressed. A “trucks use lowest gear” sign was suggested after discussion with the Road Commissioner, said Pratt, adding that it was a good road which had been widened in a number of places. No, the town will not be required to maintain town highway 52, Pratt responded to question #4. He asked Russell Denison whether Denison had made an agreement with the town in the 1980s to do private maintenance on TH52. Denison could not recall that, but said he had in fact maintained the road himself, including putting in a $7,000 bridge. Recently, said Pratt, the town stopped maintaining the short section of TH52 between its intersection with Jacksonville Stage and the Kotanchik driveway. The applicants will be responsible for road maintenance on TH52.
Regarding question #5, would TH52 be made passable for emergency and personal vehicles with less clearance than log or stone trucks, Pratt pointed out that during last fall’s site visit participants had driven their personal vehicles out the logging road. That road has gotten better since then, he added. Pratt called on Fire Chief Wayne Courser to speak to this issue. Courser does not believe either fire trucks or emergency vehicles would have difficulty accessing the site if necessary. He went on to explain the process by which 911 dispatchers transfer calls to the local dispatcher, who then pinpoints an exact location on a map. The quarry site could be assigned a specific 911 location number. Courser, who worked for the town and drove trucks here for forty years, said in his opinion the stone-hauling trucks would not cause excessive road damage. At one time, he recalled, three or four log loads a day were being hauled on Old Stage Road, and those trucks were hauling more weight than the stone trucks will carry. Courser also spoke of town trucks hauling gravel up and down Stark Mountain Road through the years. It’s a little narrow, he said, but if two trucks met in a narrow spot, one would pull over. That’s called courtesy, he added.
Nordle said he would prefer to respond to question #6 in conjunction with #32, as the main portion of the query speaks to the Town Plan. As traffic and noise are mentioned in #6, however, he stated briefly that the combination of no more than two trucks a day, five days a week, no weekends or holidays, only when the roads are suitable, significantly reduces any potential traffic or noise impacts. After determining that the Board had no questions for the applicant, Fisher gave Attorney Grayck and his clients the opportunity to speak. Grayck introduced Michael Oman, of Oman Analytics, who gave a slide presentation titled “Traffic Issues at Proposed Jerry Pratt Ashfield Stone/Denison Quarry.” (The full set of slides can be viewed at http://halifaxvt.com/wp-content/uploads/2013/11/Oman-Analytics-07-28-2015.pdf.) Oman’s primary topics were safety, roadway wear and tear, and roadway maintenance. He addressed sight and stopping distances, road widths, traffic signs, single axle loadings, culverts, and offered an estimation of increased annual road maintenance costs. In conclusion, Oman presented three different estimates of total potential volume of extracted stone over the life of the proposed quarry. Oman used these figures to theorize that quarry trucks would need to make up to 6.7 trips per day to move the largest amount of stone indicated by those figures. The Board had one question: Chait asked whether the culvert information was based on paved roads. Yes, replied Oman. Nordle said he had some observations but would hold them until Attorney Grayck’s questions were addressed. Milton Bickle described the markings left on blacktop roads at quarry road intersections. Homer Sumner asked for an explanation of the three total extraction figures. The first Oman said he had computed by using the applicant’s planned two trips per day multiplied by estimated weight of stone per load and projected operating days over the life of the quarry. The second number is from a State of Vermont form (Schedule A, Act 250 application) and was used in determining the fee due the State. The third figure Oman calculated by examining the specifications of the proposed reclamation plan. How could they extract 482,420 cubic yards (the largest extraction quantity mentioned), asked Sumner, when they only have a permit for 246,000? Something is off here, said Oman, but I don’t know where. Judi Kotanchik asked whether we were giving them (the applicant) permission to haul more than two loads per day. Mariette Sanders said the town trucks pull over when meeting her car on Stark Mountain Road, and is concerned about people unfamiliar with the road meeting trucks. Is there a plan to widen the road? Nick Bartenhagen submitted to the Board a four-page transcript he had prepared containing testimony given by Jerry Pratt at the January Act 250 hearing. He read several excerpts related to perceived inconsistencies in the testimony. (See full document at http://halifaxvt.com/wp-content/uploads/2013/11/Bartenhagen-N.-trucks-07-28-2015.pdf.) Peter Silverberg stated that while the quarry stone truck may be like the town truck, the town trucks are out there to make the roads better. Arthur Ferland also offered testimony pertaining to statements made by Pratt during several of the Act 250 hearings, and said there would be difference in weight distribution between town and quarry trucks and therefore the impact on the roads would vary. (See full document at http://halifaxvt.com/wp-content/uploads/2013/11/Ferland-trucks-07-28-2015.pdf.)
Rebecca Stone, who lives on Larrabee Road and travels Stark Mountain Road regularly, said there was no way for Stark Mountain Road, or any back roads in Vermont or across the country, to meet the criteria suggested in Oman’s presentation. As to the uncertainty over whether the applicant would purchase or lease a truck, you should consider a person’s financial situation, Stone said. Things can change in six months. If you’re going to start eliminating trucks from our back roads, she continued, you should look at UPS, FedEx, logging trucks, oil deliveries, utility, fire trucks, and well-drillers. They all have to get there. Stone thanked the ZBA for their thorough work; I’ve never been to so many hearings, she said, and I hope the Board will consider everyone’s contribution. We drove school bus in that area (of the proposed quarry) for many years, said Laura Gerdes, and we never had a problem. Susan Kelly said case law exists stating that if a road is dangerous, that does not give permission to make it more dangerous. Liz Laona stated that some of the road uses mentioned were necessities, but a quarry was not. What time will these trucks travel the roads, asked Mary Horne. Fisher said applicant would respond after all questions/comments were heard. Jim Coughlin wanted to know whether Oman’s estimated $93,000+ per year increase in road maintenance costs was in today’s dollars and how that figure compared to the taxes the Denison paid on the property. Bonny Hall said the road crew does a great job but is always playing catch-up; she wondered where the money would come from for additional work. Is there an alternate truck route, asked Carl Barmen.
Debra Foster, saying she was quoting from a transcript of the January 31, 2015 Halifax Selectboard meeting, stated that an unnamed member of the Board described Stark Mountain Road as scary, and another called it an Alpine slide. Foster spoke further on road safety concerns and then mentioned a legal case she had brought up at a previous hearing. Nordle suggested legal standards would be better addressed as post-hearing submissions, and Fisher advised the gathering that the ZBA would give instruction on submission of such materials later; at present traffic issues were being discussed. Elizabeth Martin proposed, should the quarry begin operation, driving down Stark Mountain Road and up Stowe Mountain Road, thus always avoiding the downhill side of the roadways. Matt Maranian recalled the town had testified in an Act 250 hearing that the town budget would need to be increased to implement road improvements. Arthur Copeland said he pays taxes in Halifax and if road costs were to increase by $94,000 a year he would like to see the people operating the quarry pay for that. Nick Bartenhagen offered another exhibit, concerning the proposed quarry’s potential impact on property values and related tax burdens. (See http://halifaxvt.com/wp-content/uploads/2013/11/Bartenhagen-N.-property-values-07-28-2015.pdf.) Sirean LaFlamme requested Bartenhagen submit the document to the Board. Nordle went on record with an objection to this or any testimony on property values, saying it is outside the scope of what the ZBA needs to consider, as it was beyond the scope of the Environmental Commission’s considerations. Fisher said the Board would accept the exhibit, and, as with other offerings, weigh the relevance of the testimony during deliberations. Stephen Sanders related some stories of driving on Stark Mountain Road; once he went into a ditch and needed to be pulled out, and on another occasion he had to direct an oncoming vehicle into a driveway so he could pass.
Attorney Nordle now offered responses to some of the questions raised in prior testimony. Referring to Bartenhagen’s testimony regarding trucks, Nordle quoted an Environmental Commissioner speaking at the January 23, 2015, Act 250 hearing: “We will be making a decision based on the applicant’s request of taking two truckloads a day of the material out of that site.” The applicant is asking for two trucks per day, that is all that’s proposed, that’s all the Board should consider, Nordle continued. The Board needs to consider whether the roads are too fragile to accommodate two trucks per day, 166 days of the year. As to the make, year, and model of the truck, it would be unusual for the applicant to purchase all the equipment before knowing whether he would have regulatory approval to operate the project. These trucks are costly. Also, this a project that may continue for 50 years; it would be irresponsible for the applicant to say here is the truck we are going to use over the life of the project. Operation hours will be Monday to Friday, 7:30-4:30. The route described in the application is the anticipated travel route. Noting that Michael Oman’s testimony was based on vehicles traveling 35 miles per hour, Nordle asked Pratt to comment on truck and personal vehicle travel speeds along the proposed quarry route. The trucks will not exceed 25 miles per hour, said Pratt. Going down the hill in low gear they would move at five to seven miles an hour. Pratt himself drives these roads at 20-25 miles per hour. Our intention is to protect our permit at any cost, said Pratt. I have a lot invested here, there would be no way we would want our truck to hurt your Halifax roads.
Fisher suggested moving to questions #31 and #32; Attorney Grayck wished to have Oman respond to Nordle’s comments on traffic first. The basic law governing truck weights is 23 V.S.A. §1392, if you want to look it, said Oman. The stopping sight distance data is based on a stationary object; an approaching vehicle would still need that distance to stop. Grayck asked Oman to review his qualifications. Nordle requested those be submitted; Fisher said he would allow a brief answer. Oman listed degrees from Tufts and M.I.T. and his professional work experience. He said he had testified in dozens of Environmental Court cases. Might the quarry truck chose to take a different route—for instance, down Jacksonville Stage Road—on any given day, asked David Brown. The route designated in the application is the anticipated route, replied Nordle. It’s a substantially longer distance to go down Jacksonville Stage to reach the processing facility.
Question #31 asks about the project’s possible impacts on flora and fauna. Nordle said the response in Exhibit 21, prepared by VHB, was drawn from information provided in the application’s Exhibit 8. (See http://halifaxvt.com/wp-content/uploads/2013/11/Exhibit-8-Natural-Resources-Assessment.pdf.) Nordle briefly described the project’s plans to protect natural resources, including a habitat management buffer area around the project site (Exhibit 14). He stated that no rare or endangered species were found in the proposed quarry area, and that neither the Green nor the North River would be impacted by the project. The applicant will actively promote regeneration of wildlife habitat during reclamation. The proposed site was logged five or six years ago, said Pratt, and today there is berry and light shrub growth. He also mentioned seeing increasing signs of deer herd throughout the Denison property.
Nordle moved to question #32, which references a Town Plan goal “To discourage uncoordinated or incompatible development that may jeopardize or overburden public or private investment, or damage the town’s resources, rural character, and overall quality of life,” and asks why this was not addressed in the application. Nordle stated the applicant believes the issue was addressed in a number of exhibits. Each exhibit speaks in its own respect to that criteria, he said, listing, in part, that the project is small in size, no more than two trucks a day, within a 67-acre lease area, with relatively narrow visibility and audibility impacts.
Fisher invited questions from the Board. Linda Lyon asked how much of the wildlife assessment was on-the-ground survey and how much was desktop analysis. Nordle said not all visits were noted in the application, but VHB could provide a chronology of all site visits. Lyon said she would appreciate more detail on the number of visits and methods of study used, to better understand the assessment’s conclusions. Stephan Chait pointed out that the applicant’s Exhibit 22, page 3, references a state rather than a town goal, and said it would be helpful if the applicant’s information referred to the Town Plan goal. Rick Barron questioned the effectiveness of natural regeneration if quarrying were an ongoing process over a fifty-year period. Marilyn Allen submitted, as an exhibit, four questions about various aspects of the project, including what the 50-year permit means to Halifax, and where the applicant got the reclamation plan. (See http://halifaxvt.com/wp-content/uploads/2013/11/Allen-4-questions-07-28-2015.pdf.) Debra Foster read for the record portions from the Town Plan, including an item (#16, page 5) from a list of town goals. Fisher told Maggie Bartenhagen she could submit written testimony on property values. (See http://halifaxvt.com/wp-content/uploads/2013/11/Bartenhagen-M.-property-value-07-28-2015.pdf.) Norman Fajans wondered what the economic benefit of the quarry would be. It might create a few seasonal jobs, he said, but if Michaela Harlow and Matt Maranian can’t work in their home offices due to noise, we might lose jobs.
A Board member has a follow-up question, Fisher announced, then we are going to get the Ten or More Petition on the record, and then we will deal with submittal dates. (Note: A revised Petition by 10 or More People was submitted for the record at the beginning of the hearing. It can be viewed at http://halifaxvt.com/wp-content/uploads/2013/11/Exhibit-A-Petition-interested-party-status-07-28-2015.pdf.) Brian McNeice, a geologist, said he had analyzed bedrock samples when blasting on his Halifax property; he found the samples contained about 10% pyrite. McNeice explained that when the rock is exposed to surface water, iron leaches out, acidifying the water. How do you plan to deal with acid, iron-rich water, he asked Pratt. This is not a question we have considered, answered Pratt, who suggested limestone might be a solution, and agreed to research the subject. Norman Fajans referenced the USDA Soil Survey for Windham County in discussing local soil permeability, and wondered whether water from the stormwater ponds would increase acidity in streams and groundwater, or cause corrosion. Nordle reminded the meeting of Tyler Gingras’ testimony at the last hearing session and said state-approved permits were in place. But there is no one here tonight who can answer the acidity question, he said, we need to follow up. If you are going to be taking new information, said Grayck, we will want an opportunity to review it and have our own witnesses respond. Do you want to close the hearing tonight, Fisher asked the ZBA, or set a date for submission of additional material, and then a date for argument. I think it would be difficult to close until we’ve had a chance to review all the information, said Linda Lyon, who added the Board has the authority to solicit opinions from an impartial expert witness. Fisher advised the issue needed to be voted on as a Board. After discussion, Sirean LaFlamme made a motion provide the applicant two weeks to submit further evidence on the VHB site visits and the chemistry of the water, and to then provide neighbors two weeks additional tim to respond. Brian McNeice seconded the motion. In discussion, Sue Kelly queried the Board as to whether they might not also want additional information on other points brought up in prior hearings. Fisher advised the Board could recess the hearing and set a date for another session, at which any further evidence beyond that specified in the recent motion would be submitted. Lyon again mentioned the possibility of an impartial expert. Fisher found and read the section of the zoning regulations allowing the practice. So the question is, does the Board feel it needs technical review, and, if so, on what? We don’t know until we see what gets submitted, said Chait. Bonnie Brown asked about the need for the applicant to revise his Town Plan response. After the next hearing, once the evidence is closed, each party will be accorded time to make legal arguments, said Fisher. If either party wishes to present new information on the Town Plan, they will have two weeks, and two weeks to respond. The earlier motion was now modified thus: To provide the applicant two weeks, ending 8/11/15, to submit further evidence on the VHB site visits, the chemistry of the water, and any other further evidence, and to then provide neighbors two weeks additional time, ending 8/25/15, to respond. Brian McNeice seconded the motion, which passed, 4-0.
Sirean LaFlamme made a motion to recess the hearing until 6:00 p.m. on September 8th, 2015, at the Halifax Community Hall. Brian McNeice seconded the motion, which passed, 4-0.
The hearing recessed at 10:00 p.m.
Interim ZBA Secretary