Background
Granite State operates an excavation (the “existing excavation”) on
Lot B–11 in the Industrial Zoning District, where bedrock is removed by
blasting, reduced to smaller pieces by a crusher, and removed from the
premises primarily by railroad. There has been an excavation on Lot B–11
since the 1960s; the removal of bedrock by blasting dates to 1966; and
the crusher was installed in 1989. Granite State now proposes to expand
the existing excavation (“the proposed expansion”) into Lots B–12 and B–154
in the General Residence and Agricultural Zoning District, adjacent to
Lot B–11.
It is undisputed that the existing excavation is exempt from the permit
requirements of RSA 155–E and the Wilton Excavation Site Plan Review Regulation
(“WESPRR”) as an existing excavation under RSA 155–E:2, I and WESPRR Section
3.0.1; that Lots B–12 and B–154 were not in common ownership with Lot B–11
on August 24, 1989; and that the proposed expansion therefore does not
fall under the permit exceptions of RSA 155–E:2, I and WESPRR Section 3.0.1.
Thus, although the proposed expansion would physically be a contiguous
expansion of the existing excavation, it is legally a new excavation, requiring
a permit under RSA 155–E:2 and WESPRR Section 3. It is the application
for such a permit which is before the Planning Board.
Legal Requirements
The primary legal framework for the permitting and regulation of excavations
is RSA 155–E.
155–E:11 provides for the adoption of local regulations, which in Wilton
are embodied in the Wilton Excavation Site Plan Review Regulation.
RSA 155–E:4, III and WESPRR Section 9.0(i) prohibit excavations which
are “not permitted by zoning or other applicable ordinance.” The Wilton
Zoning Ordinance (“the Ordinance”) provides for excavations in Section
4.1, “Alteration and Removal of Materials”:
The following restrictions are placed upon the alteration and/or removal
of natural materials from any parcel of land in order to maintain a safe,
healthy and harmonious atmosphere for all in the Town of Wilton.
The removal of sod, loam, clay, sand, gravel or other natural inorganic
material from any lot in any District is permitted upon site plan review
and approval, and receipt of an excavation permit from the Planning Board
in accordance with the Excavation Site Plan Review (ESPR) Regulations in
any instance where the Board determines that the removal will not be disadvantageous
to the premises in question or to the neighborhood, or otherwise undesirable,
and will be of such character and can be so accomplished in accordance
with the Regulations.
All excavations, except those specifically exempted under Section III
of the ESPR regulations, must obtain a permit from the Planning Board.
In reviewing any excavation proposal the Board shall consider the impact
of the excavation on the surrounding neighborhood.
The Ordinance also contains general regulations applicable to “all
land use activities” in Section 4.6, “Performance Standards,” including
Section 4.6.1, “Vibrations”:
Every use shall be so operated that ground vibration inherently and
recurrently generated is not readily perceptible, without instruments,
at any point on the property line of the property on which the use is located.
Section 4.6.2, “Noise”:
Objectionable noise due to intermittent beat, frequency, shrillness
or excessive volume shall be muffled or eliminated so as not to become
a nuisance to adjacent property.
and Section 4.6.4, “Smoke”:
No use shall be so operated that it degrades the quality of the air
by emitting smoke or particulate matter.
“Neighborhood”
The second paragraph of Section 4.1 of the Zoning Ordinance states
that the Planning Board must determine that “the removal will not be disadvantageous
to … the neighborhood”. In this context, the Planning Board interprets
the word “neighborhood” to refer to those properties which would be directly
affected by the proposed excavation, as distinguished from general effects
on the town as a whole. We reject the interpretation urged by Granite State,
that the neighborhood is just those properties directly abutting the premises
under consideration. This interpretation would produce the absurd result
that effects that would be unacceptable if they affected lots immediately
adjacent to the excavation would become acceptable if the affected lots
were far enough away.
Consideration of the Existing Excavation
The expansion is proposed as an expansion of the existing excavation,
and the presentations and documentation provided by Granite State do not
indicate that the operation of the proposed expansion would different significantly
from the operation of the existing excavation. The Planning Board therefore
finds that present effects of the existing excavation can reasonably be
extrapolated to predict the likely effects of the proposed expansion.
Granite State has suggested that some anticipated adverse consequences
of the excavation ought not to be counted against the proposed expansion,
because those consequences are already present today. We reject this argument
for several reasons:
• Granite State expects to exhaust the materials available for removal
from Lot B–11 within the next ten to twenty years. Part of the reason for
the proposed expansion is to provide access to additional materials that
would make it possible to continue operating the excavation for many decades
— possibly as long as a century — after the resources of Lot B–11 are exhausted.
Any adverse consequences occurring during those many decades after the
excavation on Lot B–11 would naturally have terminated must be treated
as direct consequences of the proposed expansion.
• The magnitude of some adverse consequences is a function of the size
of the excavation, and therefore would increase with the proposed increase
in the area of the excavation. (See especially our concerns about reclamation
below).
• Some effects on neighboring properties are related to the nearness
of the excavation to the affected properties. Additional properties could
be expected to be affected, and the effects on properties already affected
could be expected to increase, as the boundaries of the excavated area
move closer to them.
Weighing Evidence and Testimony
The Planning Board received extensive expert testimony from Granite
State and their engineers and consultants which tends to minimize the adverse
effects both of the existing excavation and of the proposed expansion.
The Planning Board also received extensive testimony from residents of
Wilton who oppose the proposed expansion, describing adverse effects which
they claim personally to have experienced from the existing excavation.
In addition, the Planning Board received testimony from the Town of
Wilton Conservation Commission concerning the impact the proposed expansion
would have on wildlife and bird life habitat and the impact of the proposed
reclamation plan, and testimony from the Wilton Heritage Commission concerning
the aesthetic impact of the proposed expansion.
The pictures painted by the Granite State’s testimony and by the opponents’
testimony are very different. For example, opponent testimony has stated
that “Blasts have been strong enough to warrant an immediate response to
cover one’s head for safety,” and that “The noise and vibrations from the
current explosions are upsetting and nerve-wracking,” while Granite State’s
blasting consultant, North American Reserve, has stated that “If controlled
blasting is occurring near a home, the occupants could feel minor vibration
or hear some noise. Energy release from controlled blasting, however, is
typically low and no more noticeable than vibrations or noise caused by
slamming a door or that caused by the running and jumping of children in
the home.”
It is the responsibility of the Planning Board to resolve such conflicts,
to weigh and balance the credibility of the testimony and evidence that
we have received. In general, the Planning Board finds the testimony of
the residents with regard to their experience with the existing excavation
to be credible and compelling.
Requirements of the Excavation Regulations
This section addresses requirements of the Wilton Excavation Site Plan
Review Regulations which the Planning Board does not find to be met by
Granite State’s proposal.
5.0.3 Reclamation Plan
The WESPRR requires that detailed reclamation plans be submitted with
the application. The Planning Board finds that the plans submitted are
far too cursory to satisfy this requirement. Granite State argues that
it is premature to make final plans for reclamation which would not occur
until many decades in the future. The Planning Board finds that the exceptional
magnitude of the proposed excavation, both in terms of area and duration,
is not a justification for reducing the standard of scrutiny on the issue
of reclamation.
6.0.1 Size and Reclamation Time Limit on New Excavations
The WESPRR requires that “No excavation of a new area shall exceed
five acres in size at any one time.” (See also RSA 155–E:5–a and WESPRR
8.0(h).) Granite State proposes to leave the entire area of the excavation
open for its entire duration. The Planning Board finds this proposal, which
exceeds the restrictions of the regulations not by a few acres, but by
a factor of ten or more, and for a period not of a few years, but possibly
for a century or more, to be inconsistent with both the letter and the
spirit of the Regulations. Granite State requests a waiver to this requirement,
arguing that it would be incompatible with the nature of their proposed
operation. The Planning Board finds that this is a reason to reject the
proposed operation, rather than to waive the regulation. See also the discussion
of reclamation under Specific Issues below.
7.0(h) Depth to Seasonal High Water
The WESPRR requires that “No excavation shall be permitted closer than
six feet to the seasonal high water table or to bedrock …” unless “… the
applicant provides scientific information to determine subsequent use of
the site would not be precluded or present a public health hazard threat
or if the applicant places restrictions upon future development of the
site.” The excavation plan submitted by Granite State proposes excavation
within approximately three feet of the seasonal high water table. Granite
State submitted no credible scientific testimony to address the public
health issues addressed by the regulation, nor were any future restrictions
proposed by Granite State. The Planning Board finds that the excavation
plan submitted by the Granite State fails to satisfy operational standard
7.0(h).
7.0(i) Fencing
The WESPRR (and also RSA 155–E:4–a, VI) requires that “Where the depth
of excavation will exceed 15 feet and temporary slopes will exceed 1:1
in grade, a fence or other suitable barricade shall be erected to warn
of danger and/or limit access to the site.” Given that Granite State intends
to leave vertical ledges to a height of fifty feet, both during excavation
and following its conclusion, the Planning Board finds that Granite State’s
proposal to limit access to the site with red plastic construction fencing
to be inadequate and incompatible with the public safety and welfare.
8.0(a) Slopes
The WESPRR requires that “No slope in soil material shall be left steeper
than 3:1 (three horizontal feet for each one foot of vertical drop) unless
it can be demonstrated by the applicant that a steeper grade can be adequately
vegetated and stabilized. Under no case shall a soil material slope
be left steeper than 2:1.” Granite State proposes to leave the periphery
of the excavation as a series of stepped rock ledges, fifty feet high and
twenty-five feet wide, to a total height of three hundred feet, which would
not be vegetated at all. The Planning Board finds this to be inconsistent
with both the letter and the spirit of the regulations. See also the discussion
of reclamation under Specific Issues below.
RSA 155–E:5, I
RSA 155–E:5, I requires that “Areas visible from a public way, from
which trees have been removed, shall be replanted with tree seedlings …
.” The area which Granite State proposes to leave as bare ledge is visible
from public ways and is now forested. Granite State makes no proposal to
replant the resulting ledges, nor can the Planning Board see how such replanting
could be practical and effective in any case.
RSA 155–E:5, I also requires that “Except for exposed rock ledge, all
areas which have been affected by the excavation or otherwise stripped
of vegetation shall be spread with topsoil or strippings, if any, but in
any case covered by soil capable of sustaining vegetation, and shall be
planted with seedlings or grass suitable to prevent erosion.” As noted
above, Granite State proposes to strip the vegetation from what is now
a vegetated area — i.e., is not now exposed rock ledge — and to leave it
as vertical rock ledge incapable of holding soil or sustaining vegetation.
8.0(f) Topography and Drainage
The WESPRR (and also RSA 155–E:5, V) requires that “Upon completion
of the reclamation operations, the topography of the land shall be left
so that water draining from the site leaves the property at the original,
natural drainage points and in the natural proportions of flow.” The proposed
excavation would remove a substantial portion of a hill, to its crest and
beyond. Consequently, water which now drains down the “back” side of the
hill (to the northeast, i.e., away from the excavation) would fall into
the excavation and drain to the south. It is physically impossible to satisfy
this requirement.
This inability to comply with the drainage requirements is particularly
significant because the northeast side of the hill at present forms a portion
of the watershed for several wetland areas also located on the subject
property. Following the completion of the excavation, those wetlands, rather
than being located in a shallow valley, would be sitting on a terrace directly
above the excavation.
Specific Issues
This section addresses specific concerns about the proposed expansion,
as they relate to the Wilton Zoning Ordinance and to the WESPRR.
Operational Noise
The Planning Board received testimony from residents of Wilton regarding
unacceptable noise levels resulting from the day-to-day operation of the
existing excavation, particularly from the operation of the rock crusher
and from vehicles on the site. We find this testimony to be credible, and
conclude that such noise levels can be expected to be at least as much
of a problem with the proposed expansion.
Objectionable noise which becomes a nuisance to adjacent property is
a violation of Section 4.6.2 of the Zoning Ordinance.
Furthermore, we find that the noise resulting from the operation is
generally detrimental to the quality of life of the residents affected
by it — to the “sanctuary from the activities and intrusions of business
and industry” described in the Wilton Master Plan as a goal for residential
land use in the community. The Planning Board therefore finds that the
proposed expansion is disadvantageous to the neighborhood.
Blasting
The Planning Board received testimony from residents of Wilton regarding
both noise and vibration resulting from the blasting that is an intrinsic
part of the operation of the existing excavation. We find this testimony
to be credible, and conclude that such blasting can be expected to be at
least as much of a problem with the proposed expansion.
Objectionable noise from the blasting which becomes a nuisance to adjacent
property is a violation of Section 4.6.2 of the Zoning Ordinance. Inherently
and recurrently generated ground vibration which is readily perceptible
without instruments at locations off the property where the use is located
are a violation of Section 4.6.1 of the Zoning Ordinance.
Furthermore, we find the blasting to be generally detrimental to the
quality of life of the residents affected by it — to the “sanctuary from
the activities and intrusions of business and industry” described in the
Wilton Master Plan as a goal for residential land use in the community.
The Planning Board therefore finds that the proposed expansion is disadvantageous
to the neighborhood.
Dust
The Planning Board received testimony from residents of Wilton regarding
dust resulting both from the day-to-day operation of the present excavation
and from blasting. The Planning Board also viewed a video recording showing
a spectacular dust cloud arising from a blast in the present excavation.
Dust emitted into the air from the excavation or as a result of blasting
is a violation of Section 4.6.4 of the Zoning Ordinance, which requires
that “No use shall be so operated that it degrades the quality of the air
by emitting smoke or particulate matter.”
Aesthetics
The existing excavation is an area of bare rock which is conspicuous
from some areas of Town well away from the excavation property. The Planning
Board also received photographs of the excavation area taken from the Miller
State Park at the top of South Pack Monadnock Mountain, some five miles
away, in which it is a glaring scar on the landscape. With the proposed
expansion, that scar would roughly double in size. Granite State has no
plans to reclaim the floor of the excavation until the excavation is complete,
some generations in the future, and no plans ever to reclaim the ledges
around the excavation.
The Planning Board finds that the proposed expansion is undesirable
as a result of these aesthetic considerations.
Property Values
Granite State submitted testimony from a professional appraiser to
the effect that the existing excavation has not had, and the proposed expansion
should not be expected to have, an adverse effect on property values in
the neighborhood. The Planning Board also heard the opinion of Richard
Rockwood, the Wilton Town Assessor, that properties in the vicinity of
the existing excavation show a deficit in value of approximately 15% compared
to similar properties located elsewhere in the Town.
Taking this testimony into account, the Planning Board finds that there
is likely to be some loss of local property values resulting from the existing
excavation. Furthermore, the Planning Board finds it likely that at least
a portion of such loss of value would be attributable to the ongoing operation
of the excavation. The Planning Board therefore concludes that the proposed
expansion would be disadvantageous to the neighborhood because it would
significantly extend the time period during which such depression of property
values would occur, and because the expansion of the excavation area would
bring additional properties into the area affected by the excavation.
Reclamation
Granite State believes that incremental reclamation of the excavation,
as required by RSA 155–E:5-a and WESPRR Section 8.0(h), would be impractical
and unfeasible. Given the expected lifetime of the excavation, Granite
State’s intention not to reclaim any of the excavation until the excavation
is closed — that is, likely not in the lifetime of anyone who is alive
today — is practically indistinguishable from an intention not to reclaim
it at all. Unexcavated areas are, at present, tree-covered. The Planning
Board finds that maintaining the entire area of more than one hundred previously
forested acres as exposed bare rock over a period of many decades, with
no intention ever to restore the existing vegetation, would be disadvantageous
to the premises in question.
Similarly, Granite State plans to leave the perimeter of the excavation
area permanently as a series of stepped bare rock ledges twenty-five feet
wide with fifty-foot vertical faces, to a total of three hundred feet in
height. The Planning Board finds that this would be aesthetically undesirable,
a permanent safety hazard, a physical barrier to wildlife movement, and
disadvantageous to the premises in question.
Conclusion
For the reasons given above:
• The Planning Board finds that the proposed expansion would violate
Sections 4.6.1, 4.6.2, and 4.6.4 of the Wilton Zoning Ordinance.
• The Planning Board finds that the proposed expansion would be disadvantageous
to the premises in question, would be disadvantageous to the neighborhood,
and would be otherwise undesirable, and that the proposed expansion is
therefore prohibited by Section 4.1 of the Wilton Zoning Ordinance.
• The Planning Board finds that the application and the proposed excavation
violate provisions of Sections 5, 6, 7, and 8 of the Wilton Excavation
Site Plan Review Regulations, and of RSA 155–E:4–a, 5, and 5–a.
WESPRR 9.0, Prohibited Projects, states that
The Planning Board shall not grant an Excavation Permit under the following
conditions.
a. The excavation would violate the operational standards of Section
7.0.
…
c. Issuance of the permit would be unduly hazardous or injurious to
the public welfare.
…
h. The project cannot comply with the reclamation provisions of Sections
6.0 and 8.0.
i. The excavation is not permitted by zoning or other applicable ordinance.
RSA 155–E:4, Prohibited Projects, states that
The regulator shall not grant a permit:
I. Where the excavation would violate the operational standards of
RSA 155-E:4-a;
…
III. When the excavation is not permitted by zoning or other applicable
ordinance … .
IV. When the issuance of the permit would be unduly hazardous or injurious
to the public welfare; VIII. Where the project cannot comply with the reclamation
provisions of RSA 155-E:5 and 155-E:5-a.
For all of these reasons, the Planning Board denies the application
by Granite State Concrete for a permit to carry out an excavation on Lots
B–12 and B–154.