In a 3-2 ruling, the Vermont Supreme Court issued a decision on September 27 that upheld the Selectboard’s January 2008 decision to deny location approval for ABC Metals, the much-contested junkyard on Shirley Avenue.
Owner Gil Rhoades’ permit expired in 2001, and after two public hearings and a site visit, the Selectboard denied his application. Rhoades appealed the decision to Chittenden Superior Court and then the Vermont Supreme Court, both of which upheld the Selectboard’s decision.
“It was a disappointing decision,” said Rhoades’ attorney, Tom Walsh. “I feel as though the majority gave it a fairly superficial review.”
ABC Metals’ neighbor Lynn Caldwell was pleased with the result, she said.
“This is now the second court that has upheld that decision,” Caldwell said. “It is one step in the right direction of seeing an illegally operating business [close] that has been problematic for the neighbors and posing a safety risk for the town.”
At issue in this appeal were three arguments: whether the Superior Court should have tried the case “de novo”, whether the Selectboard’s findings were sufficient to deny a permit and whether Rhoades is entitled to compensation for relocating his junkyard.
The justices left the last question open – giving Rhoades another chance to try for compensation – but had much to say about the first and second appeals.
Rhoades said his case should have been tried de novo, or anew, and that using the Selectboard’s findings on-the-record was improper because the board uses a “very informal proceeding with members having no expertise.”
He pointed to a statute enacted in 2009 that allows the Environmental Court to hear appeals de novo. The majority disagreed, noting that the new law was not in place at the time of Rhoades’ appeal.
In addition, the justices said, the “separation of powers principle” says “local officials are generally more familiar with the interests of their community and are best equipped to make decisions on local matters, such as location of a junkyard.”
The majority also said that the Selectboard’s hearings, though informal, provided an OK record to go on.
The majority also examined each of the Selectboard’s seven reasons for denying Rhoades’ permit and agreed that there was enough evidence about water contamination, public health concerns over the tire pile and noise levels at the site to warrant the board’s decision.
The justices also agreed with the Selectboard’s concerns that Rhoades’ prior non-compliance, including that he let his permit lapse for eight years, provided basis for its denial of a permit.
“[These] are relevant considerations to whether he will ensure that operation of his junkyard will adequately protect the public’s health,” the majority wrote.
In a four-and-a-half page dissent, two justices argued that the Selectboard hearings didn’t allow Rhoades due process.
“It was a shouting match,” Judge Marilyn Skoglund wrote. “Apparently there were local scores to settle. Audience members questioned one another, talked over evidence and interrupted selectboard members.”
Skoglund said the hearing transcript read “more like a schoolyard argument than any sort of deliberative process” and noted that witnesses weren’t sworn in or cross-examined. Proceedings like this should not be on-the-record, Skoglund wrote.
While Skoglund agreed that a selectboard is familiar with local issues, she wrote, “Unlike my colleagues, I recognize that when such ‘interests’ and ‘local matters’ hinge on interpersonal grudges, it is the role of the judiciary to ensure that minimal standards of due process survive.”
Referring to the second appeal, Skoglund agreed with Rhoades that selectboards don’t have the technical expertise to consider pollution, water quality and noise. She called the findings “ambiguous,” evidenced by the board’s saying in 2008 that the extent of contamination at the site “has yet to be determined.”
What this means for ABC Metals
Gil Rhoades may have lost out in the latest legal round, but he’s not ready to stop fighting.
“You can plan on the fact that Gil Rhoades is not going away,” he said. “You can take that to the bank, cash it in, sign your check because that’s what’s going to happen.”
Rhoades and his attorney are considering their options, including appealing the case to the U.S. Supreme Court, they said.
“The decision now is not a question of whether I have the backbone enough but if I have the finances,” Rhoades said. “I do if I decide to spend it.”
Still in question is how this latest ruling could affect the state’s enforcement action against Rhoades in Superior Court. A trial is currently pending to determine if Rhoades and his wife, Blanche, are liable for releasing hazardous materials to the environment.
Assistant Attorney General Rob McDougall said the state will continue to pursue its case in light of the Supreme Court’s decision.
“We’re in the process of reviewing [the decision], and we need to see whether it has any application of what is our independent enforcement action,” he said.
McDougall noted that the November 2009 court-ordered injunction that prevents Rhoades from accepting more scrap still stands.
Rhoades would not allow The Milton Independent to take photos on his property, but a view from Duck’s Court shows that most of Rhoades’ scrap is cleaned up. The ever-looming tire pile that has been estimated to contain anywhere from 100,000 to 1 million tires remains, Rhoades said.
Neighbor Lynn Caldwell hopes that removing the pile will be part of the state’s penalty against Rhoades, no matter who has to clean it up, she said.
“Does Milton really want 1 million tires sitting in the middle of town?” she said. “It’s not aesthetically pleasing, and it is a safety hazard to everyone.”
The Caldwells estimated that if there are 1 million tires, even if Rhoades got rid of 2,000 a month, it would still take more than 40 years to clean them up.
Rhoades said that before the state handed him an injunction, he had a plan worked out with a company to remove the tires in two years.
Asked why he won’t continue the plan, Rhoades said, “Why the hell should I do the state of Vermont and the town of Milton that big favor?
“They eliminated my income, so I couldn’t justify the cost,” he continued.
Besides federal court, Rhoades said another option is asking the town for another certificate of location approval. Rhoades’ attorney confirmed that the Supreme Court ruling doesn’t necessarily preclude his client to ask for another permit.
“There’s a lot more information and evidence in support of an application today than there was when he started this three years ago,” Walsh said.
He pointed to the Jan. 15 report from the Environmental Protection Agency that deemed Rhoades’ site clear of any health hazards that warranted a federal response and a Jan. 31 water study that suggested that Hobbs Pond could be responsible for arsenic contamination on Rhoades site, not vis-versa.
There’s two-and-a-half years of conclusive, factual results that have occurred in my benefit,” Rhoades said.
Beyond that, to anyone suggesting this is the end of ABC Metals, Rhoades had one thing to say: “That’s all horse hockey.”