STATE OF VERMONT
ENVIRONMENTAL COURT
} Appeal of Penmar Farm } Docket No. 113-7-03 Vtec (Application of R.E. Tucker, Inc.) } }
Decision and Order
Appellants Penmar Farm and Kingman Penniman appealed from a decision of the
Development Review Board (DRB) of the Town of Berlin, granting conditional use approval
to Appellee-Applicant R.E. Tucker, Inc. Appellants are represented by Gerald R. Tarrant,
Esq.; Appellee-Applicant is represented by Peter J. Monte, Esq.; and Interested Parties
Philip and Marilyn (Knapp) Nelson are represented by Christopher D. Roy, Esq. The
Town of Berlin did not enter an appearance.
An evidentiary hearing was held in this matter before Merideth Wright,
Environmental Judge. A site visit was taken with the parties and their representatives.
The parties were given the opportunity to submit written memoranda and requests for
findings. Upon consideration of the evidence, as illustrated by the site visit, and of the
written memoranda and requests for findings filed by the parties, the Court finds and
concludes as follows. Appellee-Applicant R.E. Tucker, Inc. owns what is now an approximately 53-acre
parcel of land near and west of the Dog River and east of Chandler Road in the Rural
Residential (R-40) zoning district of the Town of Berlin. Chandler Road runs in an
approximately north-south direction from Route 12 in Riverton, where Route 12 loops to
the east to follow the bend of the Dog River. Easterly of the project property, the railroad
tracks run close to the east side of the river. Chandler Road runs at an elevation of
approximately 150 to 180 feet above the elevation of the river.
Less than a mile south of the intersection of Chandler Road with Route 12 and
approximately 1/4 mile north of the entrance to Appellee-Applicant=s property, a short
roadway known as Lovers Lane runs from Chandler Road downhill to the east, over a
one-lane bridge and over the railroad tracks to connect to Route 12. Lovers Lane is
paved in the area of the bridge but unpaved as it approaches Chandler Road. The bridge
is capable of handling a loaded 14-cubic-yard gravel truck. Around seven residences are
located along Lovers Lane.
The Nelson property is located immediately to the south of Appellee-Applicant=s
property, on the same side of Chandler Road. Chandler Road continues to the south into
the Town of Northfield, where it makes a T-intersection with Cox Brook Road, which to the
east has an additional access to Route 12 over a small covered bridge and to the west is a route to Moretown and the Mad River Valley.
The posted speed limit on Chandler Road is 35 miles per hour. Gravel trucks
operating under a special town permit for Chandler Road are limited to a 25 or 30-mile-
per-hour speed limit. Empty trucks traveling to the pit from the north via Chandler Road
have been observed to exceed that speed limit, as do other vehicles unrelated to the pit=s
operations. While Appellee-Applicant=s own drivers are generally courteous and observe
the limits, other drivers obtaining materials from the project property may not know to do
so and/or may not do so.
Section 1127 of Title 23 of the Vermont Statutes Annotated requires that when
operators of motor vehicles on public highways approach a horse-drawn vehicle or a horse
being ridden, they are required to Aoperate the vehicle in such a manner as to exercise
every reasonable precaution to prevent the frightening of such horse . . . and to insure the
safety and protection of the person riding or driving.@
Appellants= horse riding, boarding and training establishment is located on Chandler
Road between Route 12 and Lovers Lane. Appellants= property is 100 acres in area, of
which approximately 15 to 20 acres lies east of Chandler Road but only the level area
near the road is suitable for Appellants= horse-related improvements, which include both
indoor and outdoor riding arenas. Appellants= riders also use Chandler Road for riding or
to access another road and trails leading off to the west from Chandler Road. The extraction of earth resources is an allowed conditional use in any zoning district
within the town, under '4.3 of the Zoning By-laws.1[1] An approximately 45-acre portion of
the site was used as a sand and gravel pit for many years prior to the adoption of zoning
in Berlin, with a working area of approximately 40 to 43 acres exposed. Appellee-
Applicant=s application and witnesses describe the existing operation as operating under
some existing municipal zoning approvals,2[2] as well as under a state land use (Act 250
permit) allowing the extraction of up to 20,000 cubic yards of material a year. The
existing municipal permit does not require any reclamation of the site.
The present hours of operation are from 7:00 a.m. to 5:30 p.m. Monday through
Friday, and 7:00 a.m. to 12:00 noon on Saturday, with an allowance of five emergency
Sunday days of operation annually. Appellee-Applicant does not propose any change to
these hours of operation. While the operation is not restricted seasonally, most of the
material is distributed from the project property from mid-spring through the summer
1[1] The argument that earth extraction is a non-conforming rather than an allowed use,
because it is not listed in the district, would make surplusage of '4.3. Rather, that section
recognizes that deposits of earth resources may be found in any zoning district, depending on the
local geology, and that their extraction may therefore be allowed if the extraction operation meets
both the conditional use standards and the additional standards of '4.3, and subject to any
necessary conditions allowed to be imposed under that section.
2[2] No exhibit was presented containing the existing approval; neither was there any evidence
of the absence of such existing zoning approval. months to mid-fall.
The business uses two 3-axle, 14-cubic-yard trucks owned by Appellee-Applicant to
deliver material to customers; these trucks return empty to the project site. Appellee-
Applicant=s business owns other trucks at other nearby locations that may be brought to
the project site for use when transporting material to larger job sites. Customers may also
pick up material at the site in their own vehicles, which may range in size from passenger
vehicles and pick-up trucks to commercial size trucks. Tractor-trailer vehicles are not
permitted except to transport machinery to or from the project site. If only 14-cubic-yard
trucks are used, removal of the allowed 20,000 cubic yards of material in a year would
take approximately 1400 truck trips.
Of the material removed from the site, only up to approximately 5% is transported
south on Chandler Road to the Mad River Valley via Cox Lane. Approximately 45% to
50% is transported to the north on Chandler Road to Route 12 north; approximately 45%
to 50% is transported to the south via Lovers Lane to Route 12 south. The empty trucks
return on the same routes. Approximately 80% to 90% of the volume of the hauling is
done by Appellee-Applicant=s trucks. While the material may be transported to different
customers over time, the percentages in each direction have remained stable and would
be expected to be the same under the current proposal. Accordingly, approximately 700 truck trips per year3[3] associated with Appellee-Applicant=s project would use the portion of
Chandler Road running by Appellants= property.
3[3] Assuming for the purposes of estimation that these take place during a seven-month
period from mid-spring to mid-fall, 100 truck trips per month, or approximately five full trips out and
five empty return trips per working day pass by Appellants= property. However, there are no limits
to the number of trips per any given day or week, and if smaller vehicles are used, the number of
truck trips increase accordingly. In the summer, approximately 20 to 25 truck trips per day use
Chandler Road Appellee-Applicant has acquired an additional 72-acre parcel southwesterly of and
adjacent to the 45-acre property covered by its existing permits. The additional parcel is
bounded on the west by Chandler Road and on the south by the Nelson property.
Because under '4.3 the new or expanded or resumed extraction of earth resources is a
conditional use in any district, Appellee-Applicant may apply for conditional use approval of
an earth extraction operation on any portion of the new parcel as well as on the 45-acre
parcel. It therefore does not fall under the nonconforming use analysis of '3.11 or In re
Casella Waste Management, Inc., 2003 VT 49, 175 Vt. 335 (2003).
In the present application as revised during trial, Appellee-Applicant has applied for
conditional use approval of the following two changes to its existing operations: to allow it
to conduct operations on 32 acres4[4] of the newly-added property, and to allow the
drilling and blasting of rock on the combined property.
Appellee-Applicant intends to continue its existing operations, that is, the already-
permitted sand and gravel extraction and the already-permitted crushing, washing and
sorting of the extracted material. Crushed rock (with the individual pieces having at least
three facets or flat surfaces) has a higher value as aggregate than does rounded rock or
gravel of the same size. Appellee-Applicant therefore already conducts a crushing
4[4] The 32 acre portion of the new property on which operations are proposed is screened
from the Nelson property by a wooded knoll of land that is proposed to be left in place by the
present application. operation on the site to process the natural (so-called >bank run=) gravel into that form,
using three gravel crushers, a wash plant, and appropriate sedimentation basins.
Appellee-Applicant also operates four bucket loaders on site to remove materials from the
working face and fill the crushers and load trucks. A bulldozer or backhoe may also be
used from time to time to remove topsoil from a new area or to manage the stockpiling of
materials on site.
If all the crushing equipment were operating at the same time, it would produce a
noise level of approximately 92.5dBA at a distance of ten feet from the source, which
attenuates due to distance to 68.5 dBA at a distance of 160 feet from the source and to
62.5 dBA at a distance of 320 feet from the source, which is a level equivalent to that of
normal conversation. The operation will therefore be able to meet a standard of less than
70dBA at the property boundary and 50 dBA at the existing neighboring residences,
simply based on the placement of the location of this equipment within Area A.
The existing sand and gravel extraction operation has left portions of the working
area of the site with outcroppings of exposed ledge. As additional sand and gravel is
removed from the existing working area, more ledge will be exposed, leaving a rough
surface described as a >moonscape=, unsuitable for later use for other purposes. After all
the loose sand and gravel has been removed from the working area, unless the ledge
outcroppings are also removed, it will not be possible to reclaim the area for any reasonable future potential use requiring a flat or gently rolling surface.
As shown on Exhibit 2, as modified by Exhibit 25, Appellee-Applicant proposes to
divide the working area of the property into three areas, labeled Areas A, B and C. Area
A is the 10.5-acre central area of the pit; Area B is a 7-acre area northerly of Area A,
and Area C is the remaining area southerly of Area A, including the 32-acre portion of
the new property proposed to be added to the working area.
Appellee-Applicant proposes to drill and blast (quarry) the remaining exposed areas
of ledge in Areas A and B, to reclaim Area B, and to excavate and drill and blast in Area
C, in the following sequence. If all the material were to be blasted (that is, if none of the
removed material were sand and gravel), a maximum of approximately 40 hours of drilling
per year and a maximum of five half-second blast shots per year would be necessary to
quarry the allowed 20,000 cubic yards per year. Appellee-Applicant proposes to limit the
drilling and blasting to no more than 20,000 cubic yards per year, as well as abiding by
the existing permit limitation of no more than that amount of material removed from the
project site per year (that is, allowing for some stockpiling of excavated material on site).
Prior to drilling and blasting, Appellee-Applicant proposes to conduct a pre-blast
survey as allowed by owners of neighboring properties (see Exhibit 16), and to conduct
the blasting as shown on Exhibit 20, which will prevent excess ground vibration that might
affect any neighboring water wells. The noise from the drilling equipment is at its maximum when the drill bit remains
above ground and just as it engages with the rock. It diminishes within a few seconds as
the drill bit moves below ground or into the material. It attenuates to 71dBA at a distance
of 150 feet opposite from the drill bit, and to 70 dBA at that distance on the same side of
the drill bit. Because sound waves, as pressure waves, are propagated along a line of
sight, as long as the drilling is below the rim of the pit and not within the light of sight
from the property boundary, it would not increase the decibel level of the operation at the
property boundary or at any residence beyond the required standard. Should any drilling
be necessary at the top or rim of the pit, additional physical barriers would need to be put
into place to meet the required standard. In addition, because the drilling and blasting is
proposed to take place only during a maximum of five weeks within the period from
November 1 through April 30, it will minimize any effect on the neighbors= experience of
outdoor activities on their properties. Similarly the noise of blasting is muffled by the
ground and will be of very short duration with a maximum of five half-second blast shots
in a year within the five-week winter period.
Appellee-Applicant proposes to commence drilling and blasting operations in Area
A, and to continue to conduct the crushing, washing and stockpiling operations in Area A,
in the area in which the portable crusher is now located. Area A is open at present, and
will take approximately two years of extraction to reach its proposed final contours. Sand and gravel extraction may continue in Areas B and C, but is not proposed to extend onto
the 32 acres of the new portion of the property until Area B has been reclaimed.
Appellee-Applicant proposes then to reclaim the western bank of Area A, closest to
Chandler Road, and to reclaim any areas along the easterly side of Area A not needed for
the overall operation of the site, before commencing drilling and blasting operations in Area
B. During operations in Areas B and C, the remainder of Area A is proposed to remain
open and to contain the crushing, washing, sorting and stockpiling functions of the overall
operation, as well as the office. This is essentially the area in which those operations are
conducted at present.
In addition, the slope at the northerly limit of Area B is proposed to be reclaimed
prior to commencing drilling and blasting operations in Area B. After reaching the proposed
final contours of Area B, Appellee-Applicant then proposes to reclaim Area B, except for
the access road running through Area B, within 12 months of beginning any drilling and
blasting in Area C.
The quarrying operation in Area C is proposed to commence at the exposed faces
in the existing pit, with benching of the quarry face to be maintained as part of the
continuing operation. Any proposed screening and chain link safety fencing at the top of
the pit is to be installed prior to the removal of any vegetation for the expansion of the
working face of the pit. Reclamation of final grades in Area C is proposed to occur as those grades are reached, concurrently with the continuation of quarrying.
An estimated 300,000 to 500,000 cubic yards of sand and gravel remain on the
site for excavation, which would take 15 to 25 years at the present rate of extraction, even
without approval of the proposed drilling and blasting. An estimated 900,000 cubic yards
of rock, including the ledge outcroppings, exist within the proposed project area for
removal before reaching the final reclamation contours.
As well as the reclamation plan and the hours of operation and extraction rate
described above, Appellee-Applicant proposes to comply with the following conditions,
taken primarily from the conditions imposed by the DRB, as revised in testimony at trial:
Noise limitation: Operation of the project is to be conducted so that the
maximum noise level at any property line does not exceed 70 dBA, and so that the
maximum noise level at >places of usual occupancy= on neighboring properties does
not exceed 50 dBA.
Duration and seasonal limitations: The DRB imposed a duration of four
years from the first spring following receipt of approval of all necessary state and
local permits and approvals, subject to renewal, which Appellee-Applicant now
proposes to accept as a condition, as it did not itself appeal that condition to seek
a permit duration the same as the Act 250 permit. Drilling and blasting shall not
exceed a total of five weeks within the time period between November 1 through April 30 of each year. A pre-blast survey must be performed on all consenting
abutting properties and neighboring properties with structures or wells within 500
feet of the project property boundaries, and shall be filed with the DRB prior to
initial blasting. The owners of all abutting and neighboring properties shall be
notified in writing at least two weeks in advance of the commencement of blasting
each year.
Safety: Before work begins in Area C, a guardrail along Chandler Road is
to be installed in accordance with Vermont Agency of Transportation (VTrans)
standards, from a point fifty feet northerly of the southerly boundary of the Miller
property to the southerly limit of the project=s excavation. In addition, a six-foot-
high chain link fence and warning signs is proposed to be installed between
Chandler Road and the edge of the steep quarry faces.5[5]
5[5] For the same reason, we will require that the fence be extended around the southerly
edge of the excavation, between the southerly property boundary and any steep quarry faces. Interested Parties Nelson are not adversely affected by the existing operations on
the project site, either at their house, on their property surrounding their house, or at a so-
called treehouse constructed on stumps in the woods to the east and slightly to the north
of their house. Because the 32 acre portion of the new property on which operations are
proposed is screened from the Nelson property by a wooded knoll of land that is now
proposed to be left in place by the present application, with the changed area of operation
they will continue not to be adversely affected at their house or surrounding property. The
proposed drilling and blasting will not adversely affect them, as it will not be in their line of
sight of the operation below the cliff face. Although a line of sight may develop from the
treehouse into a small portion of the westerly area of Area C, the treehouse is not a
residence and is not used appreciably during the time of year when drilling and blasting
will be allowed to occur. Nor should the value of the Nelson property be adversely
affected, as compared with its value as already affected by Appellee-Applicant=s present
operation. The two to five blast events a year, occurring in a limited period of five weeks
during the winter months, will not affect the perception of the Nelson property. The Nelson
property is a beautiful residential property located adjacent to an existing earth extraction
operation operating at a rate of 20,000 cubic yards a year, and it remains so.
Horses are a herd animal with a strong flight instinct when faced with an unexpected and frightening stimulus, which may range from the bang from an empty truck
or boat trailer going over a bump, to a flapping piece of cloth or roofing material. More
competitive horses, such as some of those boarded at Penmar Farm, tend to be more
highly strung. To learn to ride safely, both the rider and the horse must be trained to the
extent possible so that the rider=s direction to the horse will override the horse=s instinct to
bolt. Riding on a public roadway that has vehicular traffic is less safe than riding on
private trails or in an arena, and is only recommended after suitable training.
There is no question that Appellants= horse farm and training establishment has
been affected by existing traffic on Chandler Road, and in particular by empty trucks
traveling to Appellee-Applicant=s site, which may produce loud bangs when the road
surface is irregular. The drivers of Tucker trucks are more familiar with the potential for
problems and therefore tend to drive more slowly and more courteously than drivers of
customers= trucks necessarily drive. Traffic from speeding passenger vehicles unrelated to
Appellee-Applicant=s operation is also a problem. Drivers in general are not familiar with
the provisions of 23 V.S.A. '1127, requiring them to slow and yield when horses are using
the road. The routing of all empty trucks via Lovers Lane would reduce Appellants=
problem but could increase problems on Lovers Lane, especially when conditions are wet
or icy, as Lovers Lane is a steeper unpaved roadway and the left turn onto Chandler Road
has problems with visibility, especially related to a heavy, slow-moving vehicle such as a gravel truck.
However, nothing about the application before the Court in the present appeal,
which is limited to the addition of 32 acres to the working area of the pit and the
production of quarried material as well as >bank run= sand and gravel, will affect or change
the existing effect6[6] of the traffic related to Appellee-Applicant=s existing operation.
6[6] In the event that an application is filed that opens up the overall operation of the project
site to regulatory scrutiny, the potential parties (that is, at least Appellants, the Town, and
Appellee) may wish to discuss whether any additional arrangements could be agreed to ameliorate
the situation. They may wish to enter into a mediation session in advance of such a regulatory
proceeding simply to explore the alternatives, which may include extra grading of the road or
paving of the southbound lane as it passes Appellants= property, signs warning not only of horses
but that state law requires vehicles to slow for horses, return of empty vehicles on Lovers Lane
during certain seasons of the year such as summer when dust on Chandler Road may be an
additional problem (see letter from town road foreman contained in Exhibit 18). Please note that
in any future appeal the Court may consider requiring mediation of such issues among the
potentially interested parties. Under '4.3 of the Zoning By-laws, the extraction of earth resources is allowed in
any zoning district in the Town of Berlin, if it meets the standards for conditional use
approval in '5.6 and also meets the additional standards for extraction of earth resources
in '4.3(B)(5) and (6). We have grouped the standards together as follows for ease of
reference. As Appellee-Applicant is operating and is entitled to continue operating
under its existing approvals, the appropriate analysis for this appeal is whether the
proposed changes in operation would adversely affect any of the applicable standards, as
compared with the existing operation as now allowed.
Because the amount of material removed from the project site will not change, and
the percentages of direction of travel of the trucks will not change 7[7], the proposal to add
blasted rock to the Appellee-Applicant=s sand and gravel extraction operation (and to
extract from an additional 32-acre portion of the property) will have no effect on the
7[7] In order to insure that this remains the case, we will impose the following conditions: (1)
that Appellee-Applicant send no more than 50% of its truck trips going and returning via Chandler
Road to the north; (2) during the first full year of operation under this approval, that Appellee-
Applicant record the approximate volume of material and direction of travel of each customer=s
pick-up of material from the project site, and report that record to the Town; and (3) that
Appellee-Applicant instruct its drivers and inform its customers to fasten tailgates before traveling
empty on Chandler Road, to avoid the use of so-called >jake= brakes in the vicinity of Penmar
Farm, and to inform them of the requirements of 23 V.S.A. '1272 regarding operation in the
vicinity of horses. adjacent street network ('5.6(A)(1)) or on traffic on roads and highways in the vicinity
('5.6(A)(10)), and will not cause a hazard to public health and safety ('4.3(B)(5)), with
the guardrails and fencing described above. With the revised working area retaining the wooded knoll adjacent to the Nelson
property, and following the proposed pre-blast survey, blasting plan, noise limitations,
hours of operation, and seasonal restrictions on the drilling and blasting, the proposal to
add blasted rock to the Appellee-Applicant=s sand and gravel extraction operation and to
extract from an additional 32-acre portion of the property will have no adverse effect on
the essential character of the area and neighboring uses (including existing uses),
'5.6(A)(12), nor will it adversely affect neighboring properties or property values.
'4.3(B)(6).
With the blasting plan and pre-blast survey as proposed, and a peak particle
velocity (PPV) limit of 1.0 inch per second, the application before the court will not
adversely affect any groundwater supplies. '4.3(B)(6)
Under ''4.3(C) and 5.6(B), in granting conditional use approval for the extraction
of earth resources, the DRB, and hence this Court in this de novo proceeding, may
impose reasonable conditions and safeguards as necessary to implement the purposes of
the zoning regulations, including those specifically listed. Based on the foregoing, it is
hereby ORDERED and ADJUDGED that Appellee-Applicant=s application for conditional
use approval is GRANTED, with conditions as stated in the application as revised during
trial and as discussed and imposed in this decision. Appellee-Applicants shall prepare a judgment order containing all conditions and references to exhibits, approved as to form by
the other parties.
Dated at Berlin, Vermont, this 17th day of October, 2005.
______________________________________ Merideth Wright Environmental Judge