Hearing Session #5

The C.A. Denison conditional use public hearing reconvened for its final session at 6:08 p.m. at the Halifax Community Hall. Zoning Board of Adjustment members Sirean LaFlamme, Brian McNeice, Bill Pusey, Stephan Chait, and Linda Lyon were present, as 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), James Coughlin, Donald Pyskacek, Liz Laona, Joyce Burland, Sasha Burland, Donna Silverberg, Peter Silverberg, David Brown, Bonnie Brown, Tony Blackett, Janet Eldridge-Taylor, Marilyn Allen, Arthur R. Ferland, Nicholas Bartenhagen, Margaret Bartenhagen, Susan Kelly, Arthur Copeland, Lynda Copeland, Norman Fajans, Mario Sanchez, Cara Cheyette, Paul Taylor, and Robbin Gabriel.

After Chairwoman Sirean LaFlamme called the meeting to order, Moderator Robert Fisher advised the ZBA would hear additional evidence submitted on VHB site visits and water chemistry, and responses to that additional evidence. Once evidence is closed, the Board will discuss whether to hear legal arguments orally or to request written legal arguments, with a submission deadline and page limit for those documents.

Attorney Chris Nordle told the meeting the applicants had submitted two further exhibits in response to Zoning Board requests. (See Exhibits #25 and #26 at http://halifaxvt.com/departments/zoning/.) Exhibit #25 details site visits during investigation of natural resources on the property, including eight site visits by the client’s consultants, some with Agency of Natural Resources personnel and some with VHB staff. Nordle said that the applicant has agreed to comply with several Agency of Natural Resources requests resulting from these visits. The Agency of Natural Resources has concurred with the findings of the expert consultants regarding natural resource protection. This is important, said Nordle, because there is a substantial overlap between state-level and local zoning standards as they apply to wetlands and wildlife protection. The ZBA also asked VHB staff to comment on a pH management plan, specifically regarding pyrite. The multi-sector general permit, which has been issued, requires that pH be managed in a manner consistent with state water quality standards. VHB staff, continued Nordle, has not observed adverse impacts from pH levels in other quarry projects. Consistent attempts will be made to maintain cover during ongoing reclamation on the site, and water movement through the project will be primarily from rainfall. Nordle answered a question from Linda Lyon about the location of other quarries mentioned—VHB staff has experience with quarries in southern Vermont and state-wide. Lyon also remarked on a pH restriction of 6.5-8.5 mentioned in the report. The multi-sector permit specifically references that parameter, which applies state-wide, said Nordle.

As the Board had no further questions, Fisher invited comment from the audience. Bonnie Brown stated that on her Vaughn Road property testing has revealed a soil pH of 4.5, and the water has a high sulfur content. Rain run-off from that property would be consistent with that of the proposed quarry site, she said. Janet Taylor, of Josh Road, said sulfur in local waters was a common complaint.

Fisher now asked the Board what it wished to do. Stephan Chait spoke of the proposal to accept written legal argument rather than oral regarding the Town Plan; he did not want the topic to get lost. Fisher said that would not happen; having written submissions in hand during deliberation might be more helpful to the Board than oral argument. The Board needs to set a time limit on written findings, Fisher continued. You have 45 days from the time of evidence close to submit your decision. Sirean LaFlamme stated the Board has heard a great deal of testimony and received much written evidence. She asked whether someone would like to make a motion to close the evidence tonight. Lyon had a question for the audience. Referring to one submission, which carries 51 signatures and states, in part, “We believe that the new quarry will create good jobs and much needed tax revenues; . . .” she said she would like to see hard data on both jobs and tax implications. (See http://halifaxvt.com/wp-content/uploads/2013/11/Petition-for-Approval-07-28-2015.pdf to review the document.) Nordle said four jobs were anticipated, with the expectation that employees would be hired locally. As to tax impact, Nordle explained that the acreage under lease for the quarry would be removed from the state’s Current Use program, with a resulting rise in the tax per acre. Based on his experience with other quarry sites, Nordle said the actual taxable value of the land may increase somewhat—not to any great amount—but bringing it onto the Grand List as a fully taxable parcel will have an impact. Stephan Chait heard Nordle use the word “quarries,” in the plural, and asked whether this quarry might be the first of many. No, Nordle responded, this is it. Would these be full- or part-time jobs, asked Lyon. That will depend on demand for the stone, answered Nordle. They will be seasonal, as the quarry will not operate in the winter months. There may also be spillover work at the processing plant in Massachusetts. Lyon also commented that it was her understanding, when taxes were reduced on a land parcel in the Current Use program, the state made up the difference, so the town’s revenues would not change. Nordle also confirmed, for Sue Kelly and Donald Pyskacek, that new employees would be hired to work at the quarry; the positions would not be filled by present Ashfield Stone employees. Nicholas Bartenhagen asserted there was a specific statement in the Act 250 application to the effect that there would be no tax benefit to the town. Nordle could not confirm, but thought the word used was “limited.” Fisher advised that the Board could examine the application for that statement. Attorney Grayck added that the information in the application could be relied on as truthful, since it was coming directly from the applicant. Sue Kelly commented that the promise of part-time jobs could not offset the possible loss of full-time jobs, if artists and writers were unable to work in the area. Arthur Copeland had not heard the number of jobs or the job descriptions. Nordle said there would be up to four jobs; he did not have specific job descriptions available. Cara Cheyette said the promise of jobs might be a red herring, as a Halifax resident might be hired, and then decide to move to Colrain, or elsewhere. It’s not like a Vermont Yankee bringing in hundreds of jobs, she concluded. Peter Silverberg remarked it appears there will be jobs created as a result of quarry operation, but they will be jobs on the highway department, not in the quarry. Liz Laona questioned the legitimacy of the document supporting the quarry, and wondered whether an attempt should be made to advise those who signed it that they had been misinformed. Lynda Copeland asked why we were stuck with fifty years on this project, and said the Board should consider that. Bonnie Brown suggested that legal arguments be summarized tonight. Fisher said the Board had requested those arguments in writing; the documents, when submitted, will be public record and available for review.

Moderator Fisher recalled Attorney Grayck’s request at an earlier session for an opportunity to assure that his client and the Group of Ten be accurately recognized for the record. Grayck acknowledged the request but was satisfied the previously-submitted Petition and Affidavits were included in the hearing’s documents, along with attendance lists. Chait summarized the next steps in the process—45 days during which the Board would receive written argument, review all submitted materials, deliberate, and issue a written decision. Fisher said that yes, the Board could schedule more than one deliberative session, and would probably need to do so. Deliberations are closed to the public, Fisher told Lyon, and his (Fisher’s) role would be to respond to legal, but not factual, issues. Joyce Burland asked whether closed deliberative sessions were allowed under Vermont law. Fisher answered in the affirmative. Once the Board has taken a vote on a final decision, would they publish the vote by person, asked Donald Pyskacek. Yes, replied Fisher. Jim Coughlin believes the project is not compatible with the Town Plan, and asked how the Board could proceed with a decision on a permit. Fisher explained that while the Town Plan is part of the issue, and will be considered during Board deliberations, the Town Plan is not the only consideration. Wouldn’t it be up to the voters, since they approved the Town Plan to begin with, asked Coughlin. No, said Fisher, a conditional use application falls under the purview of the Zoning Board, it does not come before the voters. Margaret Bartenhagen urged the Board to understand some residents were concerned the project would have an undue adverse effect on the character of the Conservation District as described in the Town Plan. Sue Kelly asked the Board to consider holding open deliberation sessions. Attorney Grayck advised Chapter 117 in Vermont statutes, as well as Open Meeting Law, allow quasi-judicial proceedings to be held either publicly or in closed session. Bill Pusey remarked that closed sessions gave the Board the opportunity to deliberate without disruption. Grayck responded that open or closed session was at the Board’s discretion, but in open session the public was not permitted to comment.

Bill Pusey made a motion to close the evidence. Sirean LaFlamme seconded the motion, which passed, 5-0. In discussion preceding the vote, Chait asked if, in closing the evidence, the Board was saying they have all the information they need. He had concerns about the Zoning Board’s question to the applicant regarding the Town Plan, and was hoping for public discussion. I don’t want to see the issue swept under the carpet, he said. Grayck advised the Board could draw reasonable inferences from the materials presented, including omissions. He offered the reclamation plan as an example, citing an unresolved discrepancy in that portion of the application. Fisher confirmed for Bonnie Brown that closure of evidence does not preclude presentation of legal arguments from both sides. Will I be able to make a closing statement summarizing my objections, asked Norman Fajans. Final legal argument can be submitted in written form, said Fisher. The Board is working on setting a deadline for that. Pusey asked Nordle about evidence related to the Town Plan. Evidence has been submitted, replied Nordle. The State of Vermont holds the view that unless there is very specific language in the Town Plan prohibiting an activity, upholding a decision based on the Town Plan is a pretty tall order. We have reviewed the Town Plan, and do not find anything suggesting the extraction of earth resources is prohibited as a blanket category in this district. We have looked at the zoning ordinance, which defines this type of activity as resource industry, which is allowed as a conditional use in the Conservation District. The Town Plan does have language which talks about natural resource protection; we believe the project is designed in line with that protection language in the Town Plan. The question is whether there is specific language in the Town Plan forbidding the proposed activity; if there is, we don’t see it. Marilyn Allen stated that the world “shall” is used in the Town Plan, and that is legally binding. We are in the process of redoing the zoning, she said, but the Town Plan was approved. Cara Cheyette had a question about what rules the Board will use in deciding such things as burden of proof. That is spelled out in Chapter 117 of Title 24, answered Fisher. I will be helping with that aspect. Sue Kelly said the Town Plan clearly informs community intent.

With regard to setting a deadline for findings of fact and conclusions of law, what does the Board wish to do, asked Fisher. A discussion of schedules ensued, concluding with an agreed-upon date of September 22^nd, 2015, at 5:00 p.m. as the deadline for submission of written legal argument. Brian McNeice made a motion to set a 5:00 p.m., September 22, 2015 deadline for receipt of written legal argument, to be submitted electronically. Chait seconded the motion, which passed, 5-0. No page limit was set for written argument, but Lyon made a request for clear and explicit references and perhaps links to any cited case law. The Board then set September 29, 2015, 6:00 p.m. as the date of their first deliberative session. LaFlamme made a motion to deliberate in closed session. Pusey seconded the motion, which passed, 4-0-1, with Linda Lyon abstaining. Lyon said she had strong feelings on both sides of the question, and asked whether it could be revisited in the first session. Fisher said they could make that decision at the next meeting.

LaFlamme thanked the community for their participation and input in the proceedings. It’s been a long road, she said, and you’ve given us many things to think about and to review.

Pusey made a motion to adjourn the hearing. McNeice seconded the motion, which passed, 5-0. The meeting closed at 7:15 p.m.

Respectfully submitted,
Robbin Gabriel
Interim ZBA Secretary