OFFICE OF THE ZONING BOARD OF ADJUSTMENT
Town of Halifax, Vermont
ZBA MEETING MINUTES
C.A. DENISON CONDITIONAL USE PERMIT HEARING
July 14, 2015
Hearing Session #3
Chairwoman Sirean LaFlamme reconvened the Zoning Board of Adjustment public hearing at 7:07 p.m. at the Halifax Community Hall. ZBA members Sirean LaFlamme, Brian McNeice, Bill Pusey, Stephan Chait, and Alternate Member Linda Lyon were present, as was Attorney Robert Fisher (moderator). Also present were Russell Denison, Jerry Pratt (Ashfield Stone), Attorney Chris Nordle, Lee Kahn (Permitting Partners), Tyler Gingras (Vanasse, Hangen, Brustlin, Inc. [VHB]), Attorney David Grayck (representing Sue Kelly and the Group of Ten), Debra Foster, Mary Horne, Carl Barmen, Elizabeth Martin, Arthur (Jesse) Ferland, Susan Kelly, Judi Kotanchik, Peter Silverberg, Janet Eldridge-Taylor, Paul Taylor, Donna Silverberg, Justina Gregory, Patrick Gregory, Don Pyskacek, Liz Laona, Loretta Palazzo, Matt Maranian, Wayne Courser, Herman Drost, Tony Blackett, Joyce Burland, Sasha Burland, Nicholas Bartenhagen, Norman Fajans, David Brewster, David Brown, Penfield Chester, Lesley Pollitt, and Robbin Gabriel.
Moderator Robert Fisher announced that Linda Lyon, who has attended all previous hearing sessions, is now serving as Alternate Member on the ZBA to fill the vacancy left by John Brimmer’s resignation. Lyon addressed the applicants, acknowledging their possible concerns about her party status in the Act 250 process. I did attend the Act 250 hearings, but I was not speaking for or against the quarry, she said. I stated my concern about biological information provided by a person who was an expert witness as an engineer. I have a science background, and my interest is in the science. I will do my best to review all the materials and be as competent a zoning board member as I can, she concluded. Attorney Chris Nordle thanked Lyon for her statement. Jerry Pratt asked if Lyon had served on other Halifax town boards and wanted to know whether Lyon had been sworn in as a ZBA member. I was training officer for Halifax EMS, responded Lyon. Fisher explained that zoning board members and alternates are appointed by the Selectboard and, as far as he knows, there is no oath ceremony involved. LaFlamme and Brian McNeice described for Pratt the process by which the Selectboard had appointed a ZBA alternate in the face of uncertainty as to whether John Brimmer would be available for meetings and hearings.
Fisher advised that questions 1-6, 14-17, and 20-32 would be considered during this session. (See links at https://halifaxvt.com/departments/zoning/ for full text of questions and applicant’s responses [Exhibit 21].) The hope is to finish tonight; we will hear questions from the Board on the applicant’s presentation before hearing questions from the floor. Attorney Grayck stated he had an expert witness present to testify on traffic impacts. Nordle said he would start with comments from Jerry Pratt and Fire Chief Wayne Courser, and then hear testimony from VHB’s Tyler Gingras. Pratt handed out small blocks of polished stone to Board members. These are from the quarry site, he said; I had them made up so the Board could see just what we are talking about. What is the product used for, asked Stephan Chait. Is it kitchen sinks or countertops? We do both, responded Pratt. Schist is layered stone, and this schist is of a solid color. Wayne Courser spoke next, saying he was born and raised here, is Halifax Fire Chief, worked on the roads for years—and I’m still here, he added. Courser expressed concern with the cost to taxpayers of multiple conditional use hearing sessions. Taxes are already high, he said, pointing out the town had just conducted a tax sale. There is a quarry in Wilmington, just over the Halifax town line, which has been there for years. They drill and blast there, which is probably noisier than a rock saw, and I’ve never heard any complaints from Wilmington residents. I don’t know why we are complaining about this (Halifax) project. Courser gave the ZBA a list with the signatures of 75 registered voters. This is not a petition he said, it is just the signatures of 75 people who state they have no problem with a quarry on Old Stage Road. Fisher advised the ZBA would take the document as an exhibit, and give it consideration in conjunction with all the other exhibits and testimony received during the hearing process. The Zoning Board decision, he reminded those present, is based not on the number of signatures on a petition, but on the parameters of the zoning bylaw.
Nordle introduced Tyler Gingras, who works for VHB. VHB has handled consulting for issues raised in ZBA questions on all the water-related aspects of the proposed quarry project—storm water, erosion control, protecting wetlands resources, and groundwater. Chait queried the order of business; he had expected the applicant to address questions #1-6 (traffic). Nordle planned to cover questions #7 and #20-31. It is really up to the Zoning Board, said Fisher. Board members indicated a willingness to hear testimony on the water topic. Gingras outlined VHB’s work on the quarry project and identified water-related state permits approved to date as construction phase, operational phase, general industrial site, stream alteration, and Army Corps of Engineers wetlands permits. He used site plan drawings and maps to demonstrate movement of water on the site and plans to govern that movement in compliance with state guidelines. Chait asked if there were anything toxic in the water which would be running into containment ponds. The mean sector general permit, pertaining to industrial sites, identifies all potential industrial sources of contamination and the treatment methods designed to prevent impact on the environment, Gingras responded. As there will be no blasting on the site, chemicals associated with that activity will not be present. The only pollutant identified by the permit is the fines and particles produced by cutting the rock, and the permitted management plan will prevent those particles from reaching downstream natural resources. Chait then inquired about potential oil or hydraulic oil leaks from equipment. How is that dealt with? From a regulatory standpoint, answered Gingras, that volume of release does not trigger jurisdictional permitting. We check our equipment every morning, those lines are really tough and hard to sever, said Pratt. If there is a leak, we use an absorbent cloth to catch drips. Do the state guidelines provide information about the relationship of an industrial site to surrounding groundwater and wells, asked Chait. Gingras referred Chait to the applicant’s response to question #22 (see Exhibit #21 at link shown above) which states, in part, that the site location’s elevation indicates it is in a groundwater discharge, rather than recharge, area. Further, soil and bedrock types on the site limit permeability. Nordle advised that as a requirement of the state permit, a pollution prevention team and a spill response plan have been created. Spills over a certain quantity require state oversight in the clean-up process. Full details of the application originally submitted to the state can be made available for ZBA review if the Board so desires. Are the retaining ponds a passive system, asked Lyon, or are you actively treating the water? There is no mechanical filtration, responded Gingras. Particles will settle as water enters and is retained in the ponds, and there will be a flow control device at the outlet. Would you need to excavate the settled materials in the ponds at some point, asked Lyon, and if so, what would be the nature of the excavated material and how would you dispose of it? The ponds are subject to continuous maintenance, replied Gingras, as well as yearly state inspection and a three-year recompliance review. The ponds will be excavated at approximately 50% volume and the materials removed outside the buffer zone, placed with the overburden, and stabilized.
At this point Fisher said it appeared Gingras had covered questions #24-27. Nordle agreed, adding that question #7 had been addressed in the introduction, as well as #22 and #23. Gingras and Nordle responded to a query from Lyon regarding the source of information cited in response #22. Gingras then reviewed the response to question #24, would runoff from a highwater event pose a risk to Greenfield’s public water supply. State requirements take high water events into consideration, and no, runoff would not pose a concern. The design of the stormwater ponds is such that a highwater event occurring just prior to a scheduled excavation of sediment would not pose a risk.
Nordle moved on to question #29, which asks where are the documents for the reclamation plan. (See document RP-1 at https://halifaxvt.com/wp-content/uploads/2013/11/Exhibit-24-VHB-Memorandum-Attachments.pdf.) As he explained the reclamation plan, Gingras referred to a poster diagramming the process. He clarified for Chait that the quarried area would not be excavated to a depth below the level of the sedimentation ponds. What is the plan for preventing introduction of invasive species, asked Lyon. She suggested the area would be a vulnerable environment once it had been disturbed, and mentioned the possibility of invasive species being brought in on equipment. Gingras said specific species would be selected for reseeding during the reclamation process but did not know of other measures. In conclusion, Gingras explained that as benches were reclaimed, stone would be placed in a manner to encourage bobcat habitat. Chait asked who had prepared the responses to ZBA questions. That work was done by three different offices, replied Nordle. Chait advised the applicants should have numbered the pages in Exhibit 22. LaFlamme requested attention be turned to the next question, which Nordle said was #31, impact of the project on flora and fauna in the proposed project area. The lengthy response found in Exhibit 21 was prepared by a VHB staff biologist, said Gingras. No further questions were posed. Will the stormwater ponds get drained during reclamation, asked Bill Pusey. They can stay as is, answered Gingras. They could be drained, but will receive no further inflow. The state permit remains in place after decommissioning, until the state determines no further maintenance is necessary. Is there any bonding pertaining to the reclamation, asked Lyon. Nordle described the $10,000 proposed escrow account, patterned after a similar plan in place for a Randolph, Vermont quarry. As reclamation on the proposed quarry site will be ongoing throughout the course of the operation, and equipment necessary for its implementation already available onsite, the final reclaim process will not be costly.
Fisher now invited queries from the audience, asking those questions be confined to the subjects of tonight’s testimony. In what way is rock dust toxic, asked Joyce Burland. The one element considered toxic would be silica, responded Pratt. Nordle reminded those present of testimony given during the last hearing session describing methods used to monitor air quality. We who are a quarter-mile away won’t have those protections, said Burland. Downwind, am I in danger of silica? Even if you’re standing right beside it, you’re not in danger, replied Pratt. Paul Taylor requested a definition of “treatment” as used several times in relation to the stormwater ponds. Gingras said that while this was not his area of expertise, biologic treatments were available, and maintenance of the ponds would be subject to state regulation. Debra Foster expressed concerns with the wording in some of the applicant’s exhibits, referring specifically to the surface water studies which she believes do not take her 300-foot well into account. Foster called the wording impermissibly vague, a term she had drawn from a court proceeding. Lyon asked which court; Foster said Vermont, she thought Waitsfield. When?, asked Pusey. I’m not sure, I think 2008, said Foster. She went on to say the applicant’s description of methods employed to contain silica was impermissibly vague. If you drive the town sander down the road, answered Pratt, or drive your car on these dirt roads, you will spread way more silica than will be produced in our operation. Stating that environmental toxicology was her area of expertise, Lyon questioned Foster’s use of the term carcinogen, enumerating a number of factors which should be determined before such an assessment was made. Pratt reviewed his earlier testimony regarding his operation’s membership in the Mine Safety program and the monitoring process that takes place on his sites. Don Pyskacek said he would like to know the specific standards applied to safety issues.
Attorney Grayck, addressing Gingras, reminded him of the numerous questions Grayck had posed in Act 250 hearings regarding Gingras’ specific responsibilities in the site assessment project. Gingras described his work, telling Grayck a colleague had designed the stormwater ponds, while he (Gingras) had designed the reclamation plan. Have you verified its accuracy, asked Grayck repeatedly. The reclamation plan meets ANR standards, Gingras responded. Again, Grayck asked for an assessment of accuracy. Moderator Fisher, acknowledging Grayck’s expertise in cross-examination, advised the present hearing is not a court and the Board’s interest is in gathering information. Grayck then continued with a series of questions about the calculations done to determine excavation volume for the reclamation plan, and a perceived discrepancy between that number and the project’s estimated total extraction figure. Gingras said he could provide Grayck with the estimated extraction amounts that his office had calculated for the reclamation plan. Fisher advised the Board had heard Grayck’s point; I’ll move on, responded Grayck. On whose recommendation was the $10,000 escrow amount for reclamation established, he asked. Fisher asked him to specify relevance to the conditional use criteria. The character of the area and several others, responded Grayck, and appropriate financial security for reclamation. Nordle said he had previously testified that applicants had researched other facilities and determined that amount had proven acceptable in other, similar, reclamation proposals. He reminded the Board that Pratt had given testimony about the ongoing nature of the reclamation process; the majority of reclamation work will take place during the operation of the project. Pratt reiterated this testimony, adding that the $10,000 escrow is not intended to fund the reclamation process, it will be established as surety for proper completion, and will be released thereafter. Grayck suggested the inclusion of an inflation escalator clause. LaFlamme said the ZBA could consider including a condition of that sort during their deliberations. Do we have any say in the reclamation process, Lyon inquired. The Board can set conditions relevant to the conditional use standards and general conditions set forth in the zoning, responded Fisher. However, I do not see reclamation itself listed as a specific conditional use or performance standard.
What permits are still outstanding?, Grayck asked Gingras. The 9015 stormwater permit has been approved by the state, replied Gingras, but due to a technicality related to the functioning of swales conveying stormwater to the ponds, the state has asked us to resubmit the permit application as a higher level permit—an INDS, or individual stormwater permit. This permit is still under review. Grayck further questioned when the state would issue a decision and whether the applicants would submit that decision to Act 250 and the Zoning Board. He suggested those proceedings would have to remain open until such time as the permit were issued. Nordle advised there was no requirement for the Zoning Board to delay deliberations until all permits were in hand. Is the state requiring you to line the swales with clay, asked Lyon. No, responded Nordle, initially there were differing opinions at the state level regarding which type of permit would be most appropriate, and a change in legal counsel resulted in a change of opinion on the matter. Ultimately, counsel decided an individual stormwater permit would make a stronger statement. The original permit was approved and has not been revoked. Grayck began a line of questioning related to possible written correspondence between ANR and the applicants on the change of permit, and expressed frustration when Fisher advised the Board would move on to hear other queries from those present.
Norman Fajans said he has a 75-foot well that gives 13 gallons a minute. What if you drill and hit an aquifer, and it’s a gusher, he asked. Will the ponds be able to hold it? If it drains my well, will you pay for my well? Can you guarantee my well is safe? He suggested a test well should be drilled at the site. The site is over 1,000 feet from anyone’s well, answered Pratt. There is no aquifer in that location. We are not going to vibrate the land, we are simply cutting blocks out of the hillside, not excavating a hole. How do you know?, asked Fajans. Gingras began reviewing information on the subject submitted in the exhibits. Grayck objected on the grounds of hearsay; Fisher reminded him this is not a court of law. The Board is allowed to take reasonably reliable hearsay, and will give warranted weight to the testimony it receives, he said. Gingras then quoted from the groundwater memo (Exhibit 23): “Based on the absence of any water supplies within a conservative Well Study Area, the proposed Halifax Quarry is highly unlikely to cause a burden to any existing water supply. No further study is recommended with respect to Act 250 criteria 2 and 3.”
Jim Coughlin asked what would be used for lubrication on the rock saw. Nothing, responded Pratt. It is diamond. Coughlin also spent a few minutes at the front of the room, studying a map display (Exhibit 24) with Gingras and the applicants in an attempt to understand flow of water at the project site in relation to a particular unnamed brook. Coughlin has concerns about whether waters from the retention pond would leach into this stream. Not all of this conversation was audible to the Board, but LaFlamme said they would take the matter under advisement and should be able identify the brook in question from information given. Liz Laona requested clarification on permeability as it relates to possible equipment fluid leaks on the site. Penfield Chester wanted assurance that everyone who desired to do so would have an opportunity to speak during the hearings. Pete Silverberg summarized Gingras’ previous testimony on movement of fines, or rock dust, at the site, and questioned the efficacy of proposed handling methods. Gingras explained the process from which study results had been derived. Was this study a qualitative rather than a quantitative assessment, asked Lyon, and if so why. Qualitative; the study results satisfy state standards, replied Gingras. Grayck asked several times if the state used a persumptive method. Debra Foster said the applicants should be required to dig test holes, particularly underneath the stormwater ponds, to see where the groundwater is. Brian McNeice asked Gingras if tests had been done for soil depth at the pond sites. No, said Gingras. Referring to a site diagram, he told the Board the pond site elevation is 1241 feet, while the pond bottom is 1238 feet, representing a three-foot depth. What are the soil types, asked Norman Fajans. Exhibit 12 details soil types, advised Fisher, who then attempted to move the hearing to consideration of the traffic questions. Joyce Burland complained about vague information; we can’t generalize from one site to another she said. LaFlamme again advocated moving to traffic issues; we have expert witnesses present for that purpose, she said. Grayck said his clients were struggling to get their voices heard. Justina Gregory said she had come to talk about roads. Her concern is wear and tear on our dirt roads, which she described as fragile. They will require a great deal of repair, maintenance, and maybe reconfiguration, she stated. Gregory said she is not against change, but it should benefit the community. She feels this project will harm the community; there will be a lot of noise, wear and tear on roads, loss of wildlife habitat, higher taxes, and degradation of property values. She is also opposed to siting the quarry in the Conservation District; she believes that district should be maintained just as it is.
LaFlamme announced a short break in the proceedings. Fisher advised, on return, that given the lateness of the hour, hearing of traffic testimony would be held over to the next hearing. The next fifteen or twenty minutes will be devoted to general questions, he said. Referring to question #28, McNeice asked whether the six-foot fence depicted in the site plans would be in place during quarry operation or would it be constructed during reclamation. Pratt said the fence would be erected before the start of excavation. Judi Kotanchik was distressed because attendees had expected to testify on the traffic issue tonight. Fisher explained that while those questions had been on the agenda, the applicants’ presentation to the Board on water issues and subsequent questions and comments from the audience filled available time. Attorney Grayck was afforded an opportunity during the hearing to allow his expert traffic witness to testify but chose to continue with the subject under discussion. Bill Pusey confirmed the ZBA agenda for this session listed water-related questions as well as traffic. We try as a Board to let the public have their say, and sometimes, as tonight, it gets elongated. Kotanchik recommended presenting only one issue per hearing session. David Brewster, who lives on Stowe Mountain Road about two miles from the proposed quarry site, read a excerpt from a pamphlet written 85 years ago, describing, in poetic terms, Halifax in the 1930s or ‘40s. This site is a wildlife sanctuary, said Brewster, in close proximity to historic artifacts, 200-year-old stone walls, cellarholes built by our ancestors. He does not consider the location appropriate for a rock quarry. Nick Bartenhagen offered to send reminders to the Board, as they approach deliberations, of the various arguments made during the hearings. Fisher advised that a deadline date could be set for submissions made after the close of the hearing. Marilyn Allen described the landscape in the vicinity of Judi Kotanchik’s house as a stable, rural area. That will all be destroyed by the truck traffic alone, she stated, even the woods. Lesley Pollitt inquired about submitting a written statement if she could not attend the next meeting. She was told she could do so. David Brown had prepared a four-page written statement to submit to the Board; he read excerpts advocating special protection for pristine areas, and advising that tourists traveling our back roads expect them to be free from congestion and danger and do not expect to encounter any indication of industry that reminds them of what they came here to get away from. Lyon said she was appreciative of the sentiments, but in the end the ZBA needed to make its decision based on the dictates of the zoning regulations. It would be valuable, she advised, if you could craft your arguments based on how the project does or does not conform to those standards. David Brewster opined that thinking was narrow-minded. Tony Blackett said extraction and conservation were a contradiction in terms. The Town Plan has amended the Conservation area to exclude extraction, he stated, recommending that should guide ZBA decisions. Sue Kelly, referring to the earlier exchange between Brewster and Lyon, said some of tonight’s statements had been emotional, poetic, and prosaic, but they are a way of addressing the character of the area and should play a part in the ZBA’s decision. David Brown offered to provide the legal text of the Quechee analysis mentioned in his written statement. Joyce Burland spoke of harmony; she has been a large landowner here for 30 years, her property is adjacent to the Denison parcel, and she sees no harmony in this proposed project, which benefits only one or two people, and takes away from quality of life. Deb Foster reiterated her earlier remarks about the need for tests. Denison has rights on his land, she said, but he doesn’t have the right to a quarry. Foster is concerned that the ZBA decision will be rushed.
Fisher recessed the hearing at 9:55 p.m. The hearing will reconvene on Tuesday, July 28, 2015, at 7:00 p.m. at the Halifax Community Hall. Questions 1-6, 31 and 32 will be addressed at that session.
Interim ZBA Secretary