Rutland Herald

Thursday, July 27, 2000


By Ed Barna

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 180

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


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


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 a 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


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.