BRISTOL — Bristol residents are counting down the weeks to the latest chapter of a years-long fight over a proposed 26-acre gravel pit off Rounds Road. A hearing slated for June 28 will determine whether the contentious pit conforms with Act 250, the state’s Land Use and Development Act.
But now some opponents of the pit are crying foul after local Act 250 commissioners in the Addison County district handed the case off to commissioners from the neighboring Rutland County board.
Addison County’s District 9 commissioners say the transfer was a necessary move to avoid any perceived conflict of interest in the case. But some opponents of the pit are upset that no stronger reason has been given for the recusal, and that bringing in commissioners from an outside board will chip away at the validity of the process.
District 9 commission chair Tom Wallace, a Bristol resident, had already recused himself from the case, and acting chair Dean George of Middlebury said other commission members had acquaintances on one side or the other of the heated gravel pit debate.
 So George said that he, along with commission members Peter Norris and Barb Otsuka, consulted with the Natural Resources Board (NRB) in Montpelier, which oversees the Act 250 commissions, and decided to step aside.
“It’s in an effort to make sure there’s no possible conflict,” George said. “We all agreed in the end that under the circumstances it would probably be best to allow another commission to hear this case. We just felt it would be in Act 250’s best interest that there not be any perceived conflict.”
Bristol resident John Moyers, a leader of the Smart Growth for Bristol group that has vehemently fought the gravel pit, worries that the transfer of the Act 250 hearing to a new set of commissioners will undermine the value of the upcoming hearing. The Act 250 districts are divided into regions throughout the state precisely because local citizens should have a say in the kind of development that is allowed in their communities, Moyers said.
His biggest concern remains that no clear reason has been outlined for why the change is happening now.
“If such an action is going to be taken, then all parties in the case are entitled to understand why. Obviously the premise of Act 250 is local people review local projects,” Moyers said. “Baring a clear and convincing reason why this particular case ought to be transferred outside the county, I have to think that shouldn’t happen.”
The pit opponents have so far been unsuccessful in filing for access to view the e-mails that District 9 commissioners exchanged prior to the decision to transfer the case. Smart Growth for Bristol lawyer Jim Dumont filed a public records request to see the e-mail correspondence in the hopes of better understanding the reason for the transfer.
The public records request was denied, as was Dumont’s appeal to the chairman of the NRB. Now Dumont is appealing that decision to the superior court.
Moyers and Dumont say they still have no idea why the case was handed off to the Rutland commissioners, and in their initial appeal to the NRB Dumont writes that his clients are entitled to an Act 250 decision from the District 9 commission unless sufficient cause was given for removing for the commissioners from the case.
Further, they argue that if the commission did collectively agree to transfer the case, the commission may have violated Vermont’s open meetings rules by making that decision in private.
Dumont argued that the Lathrop application is a longstanding, pending case that has already been the subject of District 9 hearings, rulings, an appeal to the environmental court by the applicant, and a remand to the local Act 250 board.
Bristol resident Jim Lathrop has been seeking permission to build the proposed gravel pit on his 65-acre parcel since 2004, when he first filed an application with the town seeking a conditional use zoning permit.
Since then, though, the project has been waylaid at several turns: Though the town’s Zoning Board of Adjustment (ZBA) approved Lathrop’s 2004 applications, residents in the town opposed to the pit appealed the decision to the Vermont Environmental Court. Lathrop later filed a separate, modified 2007 application, but the ZBA rejected Lathrop’s request, a decision Lathrop in turn appealed.
But any decisions at the environmental court level have been postponed until a decision is made about the proposal’s Act 250 status.
“At no time during all the proceedings was any issue of recusal raised,” Dumont wrote in his appeal to NRB chair Peter Young.
“Why do they have a problem now? What has changed?” Moyers said.
Meanwhile, the NRB maintains that while bringing in commissioners from outside districts is uncommon, it isn’t unheard of.
“This is a situation that comes up several times a year around the state,” said Lou Borie, the acting executive director of the NRB. Geoff Green, the District 9 coordinator, added this occurs in one or two out of every 100 or so cases
Borie said the final decision to make the switch was made by Young, following a request from George.
“It’s a very high profile case, and it’s a small community,” Borie said. “(George) felt that given all of that it would be best if there were appointments from outside the district to make sure again that the public felt they were getting a totally unbiased and objective (decision).”
Reporter Kathryn Flagg is at [email protected].