Rock Crushing Operation Not Exempt From Act 250 Requirements Simply Because Similar Operations Previously Occurred in a Different Part of the Quarry Tract

In re North East Materials Group LLC ACT 250 JO #5-21 (Russell Austin, Pamela Austin, Julie Barre, Marc Bernier, et. all, Appellants), 2015 VT 79 (July 17, 2015) dealt with the question of whether a rock crushing operation was exempt from Act 250 because it was located within a larger quarry tract which had included intermittent rock crushing operations in other areas within the tract prior to 1970.

Issue: Neighbors to a rock crushing operation appealed the Environmental Division’s ruling that the rock crushing operations run by North East Materials Group (NEMG) within a quarry tract fell within the pre-1970 development (and was thus exempt from Act 250 requirements) because there had been rock crushing operations in other areas of the tract prior to 1970, and thus the new operations did not constitute a “cognizable physical change” to the grandfathered operations.

Holding: The Court reversed and remanded, finding that the Environmental Division had used the wrong legal framework in arriving at its holding. First, the Court noted that the Environmental Division took a “tract-wide” approach, finding that since there had been intermittent rock crushing operations on other parts of the tract, that the current rock crushing operations were part of the preexisting development. The Court found that, when analyzing whether a new development constitutes a “substantial change” to a preexisting development, the Environmental Division must look at the relative impact of the pre- and post-1970 operations in the vicinity of the proposed change. The Court also found that one of the Environmental Division’s findings regarding the scope of the pre-1970 rock crushing activities was unsupported by the evidence.

Dissent: J Eaton (joined by J Skoglund) dissented, arguing that the majority’s opinion collapses the two prongs of the “substantial change” test (1. the existence of a cognizable physical change, and 2. whether the change has the potential for significant impact) into one and ultimately puts the burden on NEMG to show that the rock crushing operation is not a substantial change to the grandfathered development. He warns that the Court’s holding will mean that large scale operations will be required to obtain a new Act 250 permit each time they want to develop a new operation within their industrial complexes.