Rutland Herald

Court backs limit on OMYA trucks

July 27, 2000
By ED BARNA Herald Correspondent

MONTPELIER - The Vermont Supreme Court has rejected an appeal of Act 250 limits on truck traffic between the OMYA marble company in Pittsford and its Middlebury quarry.

The court unanimously backed contentions by Brandon innkeepers and others who argued that increased traffic would harm the town. The state's Environmental Board agreed, and it limited the company to 115 round-trips a day. Any more, they said, would create unreasonable traffic congestion and adverse aesthetic impacts.

OMYA officials had said they needed 185 round-trips per day.

OMYA also appealed the case to the U.S. District Court in Burlington, which delayed its proceedings so the Vermont Supreme Court could rule first.

OMYA attorney Edward Van Schwiebert would not comment on the decision Wednesday. "I haven't had a chance to talk with my client," he said.

At the Associated General Contractors of Vermont, an organization that supports OMYA, executive director Thomas Serrani said he was not surprised by the court ruling.

But Serrani said he expected a different outcome at the federal level, where the OMYA appeal is based on constitutional issues such as interference with interstate commerce and the freedom to use designated national highways like U.S. Route 7.

"The federal level is where we have our case," Serrani said.

In Brandon, Lilac Inn owner Michael Shane was "ecstatic" about the decision, according to Stephanie Kaplan, the attorney who has represented the innkeepers in court. (Shane was away and unavailable for comment.)

Brandon Inn owner Louis Pattis said, "We are obviously glad a restriction is in place, (but) I don't call it a victory. We are as much for OMYA as for any of the corporations that do business, but within the limits of reasonable impact."

Pattis said he hoped the decision would push OMYA to create a rail spur from its quarry to the Vermont Railway line, which goes past the marble-grinding plant in Florence.

A truck bypass eventually will be needed for Brandon, he said, but that will take a long time in any case, and there is no guarantee residents will ever reach a consensus on a feasible route.

In its decision, the Supreme Court rejected several of OMYA's arguments.

OMYA contended the Agency of Transportation actually had jurisdiction over the number of truck trips, because the Environmental Board did not have jurisdiction over all trucks passing through the town.

The justices wrote, "This policy argument is better addressed to the Legislature." Applicants have to meet Act 250 standards in addition to the requirements of other agencies, and when Act 250 imposes more stringent standards, "Act 250 controls," they wrote.

As to whether the Transportation Agency's jurisdiction had been invaded, they said, "Act 250 itself explicitly proclaims its primacy over, without preemption of, ancillary permit and approval processes."

OMYA contended that limiting the number of trucks violated the company's right to due process. And the company claimed it was an improper use of police power by the Environmental Board because the truck trip limits did not have a relationship with public health or safety.

But the court said OMYA trucks were found to "disturb guests at local inns; make sidewalk conversation difficult and unpleasant; create dust and dirt that mar historic buildings; create fumes and vibrations; and impede business and personal use of property in Brandon."

"These findings establish a real and substantial relationship between (the limits on truck traffic) and public welfare," the five justices said.

OMYA also argued that the Act 250 decision was an indefinite suspension of development, which amounted to a taking of property. But the justices cited prior cases to establish that this was only so if the owner had been denied all economically beneficial use of the land. OMYA had made "no such showing," they said.

Finally, OMYA said that since other truck operators were not subject to the same limits, the common benefits clause of the Vermont Constitution had been violated.

But the court cited cases at the national level to indicate that a legislature may adopt regulations "that only partially ameliorate a perceived evil," that "the legislature may select one phase of one field and apply a remedy there" and that it is "well settled that statutes are not necessarily unconstitutional because they fail to extend legal protection to all who are similarly situated."

OMYA had cited cases where other businesses were granted permits despite increases in traffic. But the Supreme Court noted that "the permits question involved additional volumes of passenger car traffic" (and) there is no evidence that the passenger cars have similar environmental impacts to OMYA's tractor-trailer trucks."

At the Brandon Inn, Pattis had a different sort of summary of the decision.

The rejection of a large foreign corporation's arguments in favor of the needs of a small Vermont town, showed that "money is not everything," he said.

"I'm proud to say that one thing in that decision is that there is a way for David to fight Goliath."

OMYA is also trying to open a marble quarry in Danby, and residents of that town and others along the Route 7 corridor have been watching the legal proceedings related to Brandon closely.

Annette Smith of Danby said she was heartened by this week's decision. The idea of putting such truck traffic on such roads is "completely unreasonable," Smith said.