A Milton homeowners’ association will appeal the development review board’s most recent decision involving a controversial sand pit project to environmental court.

Karen Ciechanowicz of the Winter Lane Homeowners Association maintains the town didn’t properly notify abutters of a hearing for J&M Sand’s proposed sand pit on McMullen Road, despite the DRB voting otherwise late last week.

“This opens the door for us,” Ciechanowicz said.

Opponents showed in force to the March 22 DRB meeting, asking members to reopen J&M’s application. The DRB denied the request in a two-page decision mailed out on Friday, saying the HOA provided insufficient evidence to support its claims.

The DRB approved the sand pit in April 2017 after a hearing in March 2016. Adjoining landowners say they never received the typical postcard notice about the project, or they would have come en masse to protest it, as they did 2015 when the pit was initially proposed. The DRB denied those plans over traffic concerns.

At the most recent hearing, planning director Victor Sinadinoski said the town’s notification process changed between 2015 and 2017. In 2016, the town shifted the burden to the applicant to decide whom to notify.

Neighbors argued this introduced bias. They said the town notified more people in 2015 than was legally required, and in 2017, J&M basically only met the minimum standard.

J&M Sand opponent John Hemsted speaks at a development review board hearing on March 22. (Courtney Lamdin / Milton Independent)

John Hemsted, the de facto leader of the sand pit opposition in 2015 and an East Rd. resident, said town staff should have vetted J&M’s list and grandfathered in the people included three years ago.

“They should have had the right to continue with that through its finality,” he said. “But they were excluded.”

Project applicant Paul Jarvis spoke very little at the hearing, except to defend his company’s procedures, saying J&M did notify a few members in the HOA who live across the railroad tracks. Vermont law essentially says anyone who lives opposite a private right-of-way like a railroad doesn’t need notice, DRB chairman Bruce Jenkins said.

“We did it out of a matter of courtesy,” Jarvis said. “We did give notice to seven members of the association in four different households. There is a presumption in Vermont law that when something is mailed, it is received.”

But at least two Winter Lane residents, John Line and Jason Taylor, said they didn’t receive it, despite being on the mailing list.

“If the cards had gone out, you would have gotten people here,” Taylor said, adding he didn’t know the project was approved until it began the Act 250 permitting process.

Line agreed: “You have a bunch of people here that are very passionate about this subject,” he said. “If we had been notified, we would have been here. Obviously something has happened.”

The Winter Lane HOA has separately appealed the Act 250 permit, Ciechanowicz said.

Hemsted received the postcard but blamed former planning director Jake Hemmerick for giving him misinformation about the language on it.

Hemsted says Hemmerick told him the hearing was for a proposed subdivision of the sand pit lot, not a final permit. He provided a copy of a June 2017 email exchange with Hemmerick, who acknowledges he may have made a mistake.

However, in emails between Sinadinoski and Hemmerick provided to the DRB, Hemmerick says Hemsted may have confused the sketch plan hearing with the final hearing.

“I don’t recall misspeaking about a third hearing, but even if I did, [Hemsted] got notice,” Hemmerick wrote.

At the meeting, Sinadinoski said the DRB should consider the possibility of a mistake, a term, he noted, that isn’t defined in statute.

“That’s why you guys are the decision-makers,” he said. “I don’t think this has ever been an issue that’s gone to the state environmental court level.”

Sinadinoski said the town’s computer records show the postcards were mailed out, but since this case, the town began including physical copies in each case file.

“We want to make sure this doesn’t happen again,” he said. “We cannot show what previous staff did or didn’t do. That’s why we’re here today is for the DRB to make the decision whether or not there’s proof that previous staff did not mail out those cards.”

In the end, the DRB said the town provided adequate and “multiple alternate forms of notice … in substantial conformance with statutory requirements.”

“There is no evidence that the posting and notice that was provided was materially misleading in content,” it reads.

Contacted Friday, Hemsted was disappointed but unsurprised at the result.

“The DRB and the town as a whole knew they weren’t going to pass that,” he said. “They didn’t want to admit any wrongdoing.”

Hemsted he personally doesn’t have the funds to appeal but supported Ciechanowicz’s efforts. Ciechanowicz said she hasn’t given up because her concerns with the project are too great.

“The noise levels, the pedestrian safety, the sand,” she said. “We will be bombarded with sand on a regular basis.”

Jarvis, the project owner, did not respond to an interview request by deadline Tuesday.