A.G.’s office files brief in Lathrop gravel pit case

BRISTOL — The office of the Vermont Attorney General on June 23 filed a brief in a Bristol gravel pit case currently before the Vermont Supreme Court, arguing that the Environmental Court has set a dangerous precedent by approving a proposal by Lathrop that had not been vetted by the Act 250 process.
In a 20-page brief written by Assistant Attorney General Robert McDougall, the AG’s office urged the Supreme Court to reverse the Environmental Court’s decision to give Act 250 approval to the project proposed by Bristol resident Jim Lathrop.
The proposal for a gravel pit near Bristol village has been the subject of legal battles for more than a decade. Lathrop, who owns the logging and land-clearing firm Lathrop Forest Products, first sought approval for the project in 2003.
In October 2013, Environmental Court Judge Thomas Durkin granted the project an Act 250 permit. While the project was before the Environmental Court, Lathrop made changes to its proposal — thus, parts of the approved project were never vetted by local zoning authorities or the District 9 Environmental Commission, which reviews Act 250 proposals.
In a significant departure from the original proposal, the project approved by the Environmental Court has a different access road to the gravel pit than the proposal presented for Act 250 review. The initial proposal called for vehicles to enter the site from Rounds Road, while the version approved by the Environmental Court called for an access road branching from Bristol’s busy South Street. The new proposal was not reviewed by the District 9 commission.
The attorney general’s office filed the amicus brief on behalf of the Natural Resources Board, which administers the Act 250 process.
Act 250, which was passed by the Legislature in 1970, mandates a legal process by which development proposals are evaluated by environmental and community concerns.
McDougall argued that by approving a proposal that had been altered significantly, the Environmental Court had circumvented the Act 250 process.
“In the Board’s view, allowing an applicant to substantially change a permit application on appeal to the Environmental Court diminishes the role of the District Commissions and may prevent interested parties from participating in the process,” McDougall wrote.
Instead of giving Act 250 approval to the project, the AG’s office argued that the Environmental Court should have sent the project back to the District 9 commission to allow the changes to the project to be evaluated.
More broadly, McDougall wrote that if the Environmental Court’s decision stood, it would set a dangerous precedent where developers could change their permit proposals after the Act 250 process.
“The importance of this issue goes beyond this specific project and its potential impacts,” McDougall wrote. “Permitting a developer to propose one plan at the District Commission level and then present another plan on appeal at the Environmental Court allows the developer to essentially circumvent the initial step in the Act 250 process.”
McDougall further argued that these tactics could deprive citizens of their right to participate in the Act 250 process.
“Allowing an applicant to substantially change a project on appeal not only impacts the nature of the proceedings, but could also deny affected parties with the appropriate notice and opportunity to be heard,” McDougall wrote.
The Lathrop pit proposal was first given approval, subject to 23 conditions, by the Bristol Zoning Board of Adjustment in 2004. Lathrop submitted a separate permit application in 2007, which the zoning board denied, finding that the project did not comply with the town’s bylaws.
Lathrop applied for an Act 250 permit for the project in 2006, and the District Commission found that the project did not conform with the Bristol Town Plan. Lathrop appealed to the Environmental Court.
After a 12-day trial in May 2012, the Environmental Court issued its ruling in October 2013, approving Lathrop’s request for an Act 250 and zoning permit.
Quarrying operations are nothing new in Bristol. According to court documents, there are 10 current or former gravel extraction sites close to downtown Bristol. From 1970 to 1990, the Lathrop family operated a gravel pit near the area.

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