In Re Meaker
Annotate this Case
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
No. 89-049
In re John Meaker, et al. Supreme Court
On Appeal From
Washington Superior Court
May Term, 1990
Alan W. Cheever, J.
Biggam & Fox, Montpelier, for appellants Fox
Valsangiacomo, Detora, McQuesten, Rose & Grearson, Barre, for appellants
Laundon, et al.
Steven F. Stitzel of McNeil & Murray, Burlington, for appellees
PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
ALLEN, C.J. Residents of the Town of Waterbury appeal the trial
court's issuance of a conditional use permit for the operation of a gravel
pit in the immediate vicinity of their homes. We reverse.
The basic facts are not in dispute. Applicants Thomas W. Meaker, John
P. Meaker, and Nancy B. Laird are co-owners of a parcel of land containing
approximately 260 acres south of what is known as Perry Hill Road in
Waterbury. They proposed to extract sand and gravel from a 10.2-acre
portion of their property, and filed an application with the Town for
approval under its zoning regulations. Such approval was required because
Town of Waterbury Zoning Bylaws (bylaws) { 11.2 authorizes sand and gravel
activities only as a conditional use. (FN1) The Zoning Board of Adjustment
(ZBA) approved the application after a hearing on September 18, 1984, and
granted the permit. Appellants filed timely notices of appeal and, after
hearing, the Washington Superior Court on March 21, 1987, ordered a remand
to the ZBA. After an appeal of that superior court order to this Court was
dismissed by stipulation, the matter was remanded to the ZBA under the
original superior court order, and the ZBA again granted the permit. A
second appeal was timely filed in the Washington Superior Court, and a de
novo trial was conducted on July 7 and 8, 1988. On December 19, 1988, the
court granted applicants a permit.
The court concluded that the proposed project met all of the criteria
set forth in { 4.4(2)(A) of the bylaws and granted a permit with conditions
that limited the pit's operation to between 8:00 a.m. and 4:00 p.m., Monday
through Friday, and prohibited operation during the period from November 1
to April 15 of each year. Further, the permit limited the rate of
extraction to ten loads of material per day. The present appeal is from
that order.
Appellants argue that the trial court erred in concluding that the
project met the requirements for a conditional use either under 24 V.S.A. {
4407(2) (FN2) or { 4.4(2)(A) of the bylaws. (FN3) They contest the court's
conclusion on all four of the stated criteria under { 4.4(2)(A).
The trial court's findings "are to be so read as to support the judg-
ment if they reasonably may be." First Vermont Bank and Trust Co. v.
Village of Poultney, 134 Vt. 28, 35-36, 349 A.2d 722, 728 (1975). We read
the findings to support the judgment as to { 4.4(2)(A)(1), (3) and (4).
First, we agree with the trial court's conclusion that "community
facilities" within the meaning of { 4.4(2)(A)(1) included only "water
supply, sewage disposal, fire protection, school services, recreation
facilities, solid waste facilities or police protection" and did not include
roads or highways. See Lakeland Parks, Inc. v. Washington Township, 147
N.J. Super. 528, 537, 371 A.2d 762, 766 (1977) (road or street is not
normally defined as a municipal facility within meaning of ordinance).
Appellants next argue that the trial court erred in failing to
conclude that the proposed project would not adversely affect the character
of the area, under { 4.4(2)(A)(3) of the bylaws. Appellants rest their
argument on the court's findings that the general area is residential in
character and that the roads in the vicinity are used for jogging, walking,
horseback riding, and biking. But those findings do not compel a conclusion
that the character of the area will be adversely affected, and the court's
contrary conclusion is not clearly erroneous. See A. Brown, Inc. v. Vermont
Justin Corp., 148 Vt. 192, 194, 531 A.2d 899, 901 (1987).
Appellants also mount a general attack on the proposed project as
inconsistent with the town's bylaws, within the meaning of { 4.4(2)(A)(4),
since { 6 of the bylaws states within its general purposes the desire to
"preserve the best possible environment for residential development."
However, the purpose statement of the bylaws has no direct regulatory
effect. See Kalakowski v. John A. Russell Corp., 137 Vt. 219, 225, 401 A.2d 906, 910 (1979) (town plan is "advisory"). Appellants' other arguments
that the proposed project offends the town's bylaws are without merit.
Appellants, however, do raise serious concerns about the consistency
between the trial court's findings and its conclusions with respect to the
proposed project's effect on roads and highways in the vicinity within the
meaning of { 4.4(2)(A)(2). Several findings indicated that the impact of
the proposed project on traffic would be significant. While we have
concluded that roads are not "community facilities" and that { 4.4(2)(A)(1)
is not violated by the proposed project, it is clear that the condition of a
road or highway can affect its capacity and the amount and speed of the
traffic that it can sustain. Hence, there is a relationship between the
impact of a project on roads and highways and its impact on the traffic on
those roads and highways.
The court found that the roads that would service the gravel trucks
were beset by numerous problems. Finding 11 stated:
11. Vehicles traveling to or from the pit will use a
road network consisting primarily of Route 100, Stowe
Street and Lincoln Streets in the Colbyville area of
Waterbury, Perry Hill Road, Kneeland Flats Road, and
Guptil Road from its intersection with Kneeland Flats
Road southward to its intersection with Route 100. None
of these roads are posted for speeds less than 50 miles
per hour. However, most of them are not safe for speeds
in excess of 35 miles per hour. Loaded trucks weighing
68,000 pounds are allowed by the Town of Waterbury on
town highways.
The court described the affected roadways as "20 to 21 feet in width with
non-existent shoulders for the most part. All affected roadways, except
Perry Hill road, are paved. However, much of the pavement is in poor
condition." The court added that in light of the "narrowness of the roads,
the sharpness of the curves and the steepness of the inclines," it doubted
that gravel trucks could safely go faster than 25 miles per hour. The trial
court was specific and detailed in its evaluation of the condition of the
roadways serving the proposed project:
43. The presently existing traffic hazards are due to
the nature of the roads, their construction, their
maintenance, and their design. It is obvious that the
residential development in the area, and on Perry Hill
Road in particular, has outpaced the improvement of the
public roads serving the area. No one would seriously
disagree that these roads must be widened with appro-
priate shoulders; that the sharpness of the curves must
be softened; and that the steep pitches must be reduced.
The Town of Waterbury will have to address these pro-
blems, regardless of what happens in this case.
(Emphasis added).
The court's findings were well-grounded in the testimony concerning traffic.
In addition, there was ample testimony that the proposed project would
exacerbate the traffic problems by accelerating the deterioration of the
roads. Applicants' expert testified that the impact of one trip by a loaded
gravel truck on a paved or gravel road would be the equivalent of 5,000 to
10,000 trips by a passenger car. Appellants' expert stated that the truck
traffic would accelerate the rate of deterioration.
However, despite its extensive findings concerning the impact of the
project on area traffic, the trial court concluded that the project
will not adversely affect traffic on roads and highways
in the vicinity. While the affected roads admittedly
have limitations, the proposed project has been planned
with such limitations in mind. By significantly
limiting the number of daily truck trips and planning
for the routing of such truck traffic, none of the
affected roadways will see an unreasonable increase in
traffic. (Citation omitted).
But there is no indication that the limitations imposed by the trial court
are significant, given the court's own findings. The pit will be operated
between 8:00 a.m. and 4:00 p.m. during workdays, between April 1 and
November 15 of each year. Thus, a significant amount of truck traffic will
occur on roads simultaneously serving school buses. The roads have sharp
pitches and steep curves, lack shoulders, and are not capable, within limits
of safety, of handling traffic at legally prescribed speeds. If the court
was satisfied that the project has been planned with the limitations of the
roads in mind, it was incumbent on the court to specify in its permit
conditions what those limitations are. Neither the hours of use, the
directions of entry and exit, nor any other conditions recited in the order
adequately address the considerable deficiencies of the road system serving
the project.
There is no support for the conclusion that loaded 68,000 pound gravel
trucks whose speed could not safely exceed 25 miles per hour do not "present
a significant hazard on the road network" when the roads are posted for 50
miles per hour and are narrow, hilly, have sharp curves and steep inclines,
and are poorly paved or unpaved. While the limitation on the number of
daily trips that can be made reduces the statistical odds of accidents
occurring, the hazard created by those trips can only be characterized as
adverse and significant. We also have serious concerns regarding the
efficacy of the daily extraction limit. The applicants will not staff the
gravel pit, but rather will rely on independent haulers for the removal of
gravel. At oral argument, the applicants indicated that they intended to
incorporate within contracts made with the independent haulers all of the
permit conditions and obtain from the independent haulers an acknowledgment
of strict compliance. We question how a hauler, let alone the applicants,
will be able to ascertain on a given day how many loads have already been
removed that day by the aggregate of all of the others with access to the
pit. In addition, we fail to see how such an arrangement can safeguard the
interests of those not parties to the contract.
In sum, the court's findings describe a multitude of adverse impacts on
road traffic in the vicinity of the project, and yet the opinion concludes
that there will be no adverse impacts. The conclusion is at odds with the
court's findings and cannot stand. See Community Feed Store v.
Northeastern Culvert Corp., 151 Vt. 152, 159, 559 A.2d 1068, 1072 (1989);
Dartmouth Savings Bank v. F.O.S. Assocs., 145 Vt. 62, 66, 486 A.2d 623, 625
(1984). The matter must be remanded for consideration of an order with
conditions that will more closely reflect the court's specific traffic
concerns or, upon an appropriate showing by applicants, another plan for
operation of the proposed project that more adequately addresses the
hazards and impediments to traffic that the court has so clearly delineated
in its findings.
Reversed and remanded.
FOR THE COURT:
Chief Justice
FN1. A prior superior court decision, which was not appealed, determined
that the proposed use should be treated as a conditional use.
FN2. 24 V.S.A. { 4407(2) states in relevant part:
(2) Conditional uses. In any district, certain uses
may be permitted only by approval of the board of
adjustment, if general and specific standards to which
each permitted use must conform are prescribed in the
zoning regulations and if the board of adjustment after
public notice and public hearing determines that the
proposed use will conform to such standards. Such
general standards shall require that the proposed
conditional use shall not adversely affect:
(A) The capacity of existing or planned community
facilities;
(B) The character of the area affected;
(C) Traffic on roads and highways in the vicinity;
(D) Bylaws then in effect; or
(E) Utilization of renewable energy resources.
FN3. Section 4.4(2)(A) provides as follows:
Prior to granting any approval the Board shall
determine that the proposed use will conform to the
following general standards:
(A) The proposed conditional use shall not
adversely affect:
1. The capacity of existing or planned
community facilities.
2. Traffic on roads and highways in the
vicinity.
3. The character of the area affected.
4. Bylaws then in effect.
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DISSENTING
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
No. 89-049
In re John Meaker, et al. Supreme Court
On Appeal From
Washington Superior Court
May Term, 1990
Alan W. Cheever, J.
Biggam & Fox, Montpelier, for appellants Fox
Valsangiacomo, Detora, McQuesten, Rose & Grearson, Barre, for appellants
Laundon, et al.
Steven F. Stitzel of McNeil & Murray, Burlington, for appellees
PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
DOOLEY, J., dissenting. I concur in the Court's analysis with respect
to the construction of the ordinance and the trial court's conclusions on
the effect of the project on the character of the area and the consistency
of the project with town bylaws. I do not agree, however, that the trial
court erred in concluding that the project as approved would not have an
adverse affect on traffic on roads and highways in the vicinity. Accord-
ingly, I dissent from the Court's opinion and would affirm.
The heart of my disagreement with the Court lies in the standard of
review, a statement of which is strikingly absent from the Court's opinion.
If we were a trial court, I could more readily accept the Court's analysis.
We are, however, an appellate court that must uphold trial court's conclu-
sions in a zoning case unless they are "clearly erroneous, arbitrary, or
capricious." In re McDonald's Corp., 151 Vt. 346, 349, 560 A.2d 362, 364
(1989). That standard of review is now well entrenched. We have applied it
recently in review of a conditional use approval, In re Duncan, 1 Vt. L.W.
482, 484 (Nov. 30, 1990); in determinations of whether a particular use is
an accessory use, In re White, 1 Vt. L.W. 455, 457 (Nov. 23, 1990); in
review of a site plan approval, In re Carrier, ___ Vt. ___, ___, 582 A.2d 110, 114 (1990); in review of the construction of a zoning ordinance, Route
4 Assoc. v. Town of Sherburne, ___ Vt. ___, ___, 578 A.2d 112, 113 (1990);
and in review of a determination of a preexisting non-conforming use,
Franklin County v. City of St. Albans, ___ Vt. ___, ___, 576 A.2d 135, 137
(1990). See also In re Town of Sherburne, Vt. , , 581 A.2d 274,
278-80 (1990) (applying similar standard in Vermont Water Resource Board
proceedings). Another standard is also applicable here. While we require
that findings be consistent with conclusions, we "must, if possible, con-
strue the findings so as to support the judgment." LaFountain v. Vermont
Employment Security Bd., 133 Vt. 42, 46, 330 A.2d 468, 471 (1974). I do not
believe that one can reach the Court's conclusion if these standards of
review are applied.
The heart of the Court's position appears to be in the next-to-last
paragraph of the opinion. There, the opinion holds, presumably as a matter
of law, that heavily loaded gravel trucks, traveling on roads that are
"narrow, hilly, have sharp curves and steep inclines" and that should be
traversed at only half the speed limit, present a significant hazard on the
road network. Further, it concludes that there is no way to police the
daily limit on the numbers of loads taken from the pit. Thus, the Court
holds that there are adverse impacts as a matter of law, and the trial
court's permit conditions fail to eliminate them.
Any development has some adverse impact on traffic conditions. Thus,
we must read into the ordinance a concept of reasonableness and give the
trial court considerable discretion in drawing that line. See In re Walker,
No. 88-584, slip op. at 2 (Feb. 11, 1991) (proper standard in conditional
use case is material adverse effect). More important, we are considering
the differential impact of the proposed development. The developer is not
responsible for current substandard road conditions unless his activities
will make them worse to an unreasonable extent.
The applicant's case on the traffic issue was based entirely on the
testimony of an expert witness, a civil engineer with experience in road
design. This witness testified at length about the road systems and the
impact of the project. He acknowledged all the deficiencies in the road
system that are cited by the Court and the appellants. He concluded:
"[W]ith that intermittent truck traffic, I really do not see a problem with
the structural aspect of the road or in fact the safety aspect." Variations
of this conclusion are scattered throughout his testimony. Based on this
testimony, the court determined that "[g]ravel trucks, as opposed to other
motor vehicles, do not present a significant hazard on the road network
. . . ." In short, based on the evidence, the court concluded that there
would be no significant differential impact from the gravel operation with
the limitations imposed upon it. I do not see how the Court can conclude
that there "is no support for [this] . . . conclusion."
It is also important to emphasize the importance of the limitations,
all based on the expert's opinion. The court limited extraction to ten
loads per day, with each load within the limit allowed by the town for the
road system. This is approximately one truck trip per hour. Extraction was
not allowed on weekends and holidays, nor between November 15th and April
1st, when the roads would be covered with snow or mud. The most important
limit was that loaded trucks would exit in only one direction to safely
enter and traverse Perry Hill Road. This stemmed from the expert's opinion,
based upon an analysis of the structure and condition of the road, that
safety required loaded trucks to descend Perry Hill Road only in the
direction that exited onto Kneeland Flats Road.
The Court has to ignore the expert's evidence to find, as a matter of
law, a conflict between the findings and the conclusions. If I understand
the Court's logic, there can never be significant development on substandard
roads with speed limits that are too high for the conditions or in a town
that sets too high a weight limit for vehicles on its roads. That is far
too extreme a position to be a rule of law. Like many rural roads in
Vermont, the road in question here has a high speed limit because it is
unposted, not because high speeds are safe. As the expert testified here,
we must look at the impact of development in light of prevailing speeds, not
the maximum imaginable. No doubt the town will set an appropriate speed
limit when the need becomes apparent. It is not the applicant's
responsibility to set that limit. I have a similar reaction to the Court's
concern about the weight of the vehicle and its impact on town roads.
Nor am I persuaded by the Court's concern for policing the restric-
tions, raised at oral argument. Ultimately, the permit conditions can be
enforced by enforcement actions since the applicant would, in effect, be
operating without a permit. See 24 V.S.A. {{ 4444, 4445. It is preferable
to impose clear performance standards, leaving it to the permit holder to
create a method to ensure compliance, rather than dictating that method from
these chambers. I am confident that the neighbors will be observant of the
activities at the gravel pit and will report the presence of any truck
traffic above that allowed by the permit.
As our cases indicate, gravel pits are highly controversial, and no
land owner wants one to locate nearby. See In re R.E. Tucker, Inc., 149 Vt.
551, 547 A.2d 1314 (1988); In re H.A. Manosh Corp., 147 Vt. 367, 518 A.2d 18
(1986); In re Orzel, 145 Vt. 355, 491 A.2d 1013 (1985). On the other hand
a supply of gravel is necessary for road construction and improvement and
other desirable purposes. I assume that everyone would agree that locating
a gravel pit in a developed and urbanized area would be inappropriate.
Under the standards imposed by the Court, it is likely that neighbors could
keep a gravel pit out of most rural areas since the quality of road systems
is unlikely to be very good where there are few people to use the roads. We
are in serious danger of expanding not-in-my-backyard into not anywhere.
I am authorized to say that Justice Morse joins in this dissent.
Associate Justice
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