Thursday, July 27, 2000
COURT BACKS LIMIT on OMYA TRUCKS
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
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
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,"
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
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,"
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
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
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
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,"