Several residents of the Graniteville area of town took their complaints to the Natural Resources Board this month. The board is investigating whether to pursue enforcement against the company responsible.
“All we expect from the state of Vermont is, come on, you put these regulations in place, you put these agencies in place … why aren’t you doing anything?” said Lori Bernier, adding that as a result of the crushing “our daily lives are totally disturbed … and our quality of life is zilch now.”
Bernier and others appealed multiple decisions by the District 5 Environmental Commission that would have allowed rock to be crushed virtually anywhere on the Graniteville quarry’s 1,200 acres. The Vermont Supreme Court struck those commission rulings down twice, first in 2015 and again in August.
She and several others confronted Natural Resources Board Chair Diane Snelling at the board’s May 9 meeting and asked Snelling to halt the crushing. Bernier said the activity violates the August Supreme Court order, which required that the crushing cease until the District 5 commission could consider the case again.
A jurisdictional opinion is a finding from a district commission that says whether an Act 250 permit is necessary for a given land use. Both the Supreme Court cases Bernier and 14 others have fought over the past five years arose from contested jurisdictional opinions.
“After doing everything we’ve done, we followed the proper procedure, and now, after violation of the Supreme Court decision, for them to tell us, ‘Well, you can always get a [jurisdictional opinion],’ that’s a slap in the face,” Bernier said.
The Rock of Ages granite quarry currently faces two Vermont Supreme Court challenges over heavy machinery. The other case involves an as-yet-unpermitted asphalt plant that a company called Northeast Materials Group has built on the Rock of Ages property along with the crusher.
The Quebec marble and granite conglomerate Polycor owns the land on which Northeast Materials Group has installed the rock crusher. Both companies claim they don’t need permits to crush gravel on the site.
Polycor representatives were not available for comment.
The companies could be grandfathered under Act 250 — and thus exempt from permit requirements — if the same use was ongoing before the law’s adoption in 1970.
Obtaining an Act 250 permit could impose some conditions restricting how much noise, pollution or traffic the operation may produce.
The Rock of Ages quarry has been in operation since the 1800s.
However, Vermont’s high court ruled in August that, even though the quarry has been in use for over 100 years, not everything done on the property before 1970 may be done today on every part of it.
Rock crushing historically has taken place somewhere on the property at some point, although evidence of when or where that was is scant, according to Supreme Court documents. That only establishes the right to crush rock without a permit in a location roughly the same as where rocks were being crushed before 1970, the court found.
The court’s August decision prohibited Northeast Materials from continuing to crush rock without a permit where the crusher had been located at the time the case went to court.
Northeast Materials has now moved its rock crushing operation roughly 3,000 feet from that site, to a location where the justices said rock crushing appeared to have taken place in 1969 and 1970.
When Bernier asked the Natural Resources Board to intervene, the board’s general counsel, Greg Boulbol, said the Supreme Court case actually lends some weight to the position that Northeast Materials can crush rock at the new location without an Act 250 permit.
The court case specifically says Northeast Materials cannot crush rock at the location that was then being contested. The current location, Boulbol said, appears to have hosted rock crushing prior to 1970, and the Supreme Court even noted that fact in its decision.
The 1969 crushing, Stanak said, was an anomaly. Grandfathering occurs for activities that have historically existed on a piece of land; a single year of crushing out of more than 100 years of operation does not establish crushing as a historical part of that land use, he said.
The question of whether to grandfather the crusher could hinge on several other questions whose answers remain uncertain, officials said.
For instance, it’s known that if Rock of Ages had been crushing rock on the same site continuously since 1969, it would not require an Act 250 permit to continue.
But if Rock of Ages had been crushing rock on a given site and then quit for a period before resuming some years later, it could require a new Act 250 permit, Boulbol said.
That’s because under a principle called abandonment, a grandfathered activity ceases to be exempt from Act 250 after it’s been discontinued for some period.
In the Supreme Court’s 2015 decision, the court states that “the introduction of significant crushing operations on a site not known to have had similar operations for over 50 years — is more closely analogous to the introduction of new operations on a different site within a gravel extraction tract than to the gradual expansion of existing operations.”
What interval would need to elapse before a discontinued activity can’t be grandfathered, Boulbol said, is not established across the board.
“I don’t know that there’s a fixed number” of years, he said. “It might depend on the type of activity. … It might need to be analyzed on a case-by-case basis.”
Rock of Ages claims to have crushed rock on the current site for some period during 1969 and 1970, according to Supreme Court documents. Boulbol said a district environmental commission opinion suggests evidence exists of rock potentially being crushed at that site around 2010 or 2011, but said it’s unclear whether crushing actually took place.
Whether that would make rock crushing a grandfathered use there hasn’t been decided, Boulbol said.
There’s also the question of whether the crushing operation has substantially changed from whatever form it was in before 1970. If it has, it would likely require an Act 250 permit.
“Substantial change” for the purposes of Act 250 is defined as having two parts: a “cognizable change” and a significant adverse effect resulting from that change.
“Even a modest change may be considered a cognizable change,” the Supreme Court wrote in its most recent decision on Rock of Ages’ crusher. “A thing is cognizable as long as it is ‘capable of being known or recognized.’ … This indicates that a change should be considered cognizable as long as it is notably distinct from whatever preceded it.”
Examples of cognizable changes given by the Supreme Court in its 2015 decision include the installation of antennae inside the bell towers of a church, even when they “had no significant aesthetic impact”; new doors and ramps on a storefront; and replacement of wood-post guardrail with steel-beam guardrail along a road.
Locating a rock crusher where it hasn’t been previously on the Rock of Ages property constitutes a cognizable change, the Supreme Court found in August.
Boulbol said it’s not yet established whether a modern rock crusher, on the same site where Rock of Ages crushed rock in 1969 and 1970, would represent a cognizable change from a rock crusher built half a century ago.
Stanak said he hopes the Natural Resources Board will stop the crushing where it’s currently sited.
But he also said crushing the rocks may be an appropriate way to use them — just not so close to homes.
“I firmly believe in a working landscape, and I think this [rock] should be used,” Stanak said.
“It boils down to appropriate siting and [being] a good neighbor,” he said. “Isn’t there somewhere else on these 1,200 acres where this can be put to use?”
“It’s puzzling to me,” Stanak said, why Polycor or Northeast Materials hasn’t reached out to neighbors of the quarry to figure out where a rock crusher could operate while harming neighbors as little as reasonably possible.
“It doesn’t have to be this way, not when the company owns 1,200 acres,” Stanak said.
