Justices listen to Lathrop gravel pit case

MONTPELIER — The 11-year saga of the proposed Lathrop gravel pit inched toward a resolution this past Wednesday morning when the Vermont Supreme Court heard oral arguments in the case.
The Lathrop family wants to dig a 26-acre gravel pit near Round Road and South Street in Bristol, not far from downtown. Some residents who live nearby believe the pit would affect their quality of life, and also that they were not given an opportunity to weigh in on the project after the state Environmental Court approved a version of the project that town officials hadn’t.
The attorney for the Lathrops said the regulatory process has worked as it was intended, and the project should move forward without further delay.
Jim Lathrop, a town resident and owner of Lathrop Forest Products, first sought approval for the project in 2003. That same year, the Bristol zoning board awarded the project a land use permit containing 23 conditions.
Facing opposition from residents who cited traffic and noise concerns, Lathrop did not go forward with the project and instead submitted a new land use application in 2007. The town rejected that proposal in 2008, because the company had not promised to fill in the pit after extraction was complete.
The District 9 Environmental Commission also decided not to issue the project an Act 250 permit, arguing the proposal did not align with the Bristol Town Plan.
A year ago, Environmental Court Judge Thomas Durkin issued the project an Act 250 permit. The version of the project the Environmental Court approved differed from the one approved by the town in 2003. Thus, the project that received an Act 250 permit was not vetted by town zoning officials or the District 9 Environmental Commission.
A major change between the two proposals was the access road to the pit site. The original proposal included vehicle access from Rounds Road, while the version green-lighted by the Environmental Court’s Durkin calls for access from South Street, a busier road.
The residents appealed the Environmental Court decision, sending the case to the state’s highest tribunal. In total, the case represents nine residents: Russell and Maryann Rueger, Jill Mackler, John Pandiani, Naomi Swier, Randall Freeman, John Moyers, Kelly Laliberte and Kevin Harper.
At the oral arguments on Oct. 8, the Bristol residents were represented by attorneys James Dumont, Andrew Jackson and Bill Nelson.
In court, Nelson questioned whether the project should receive zoning approval, as it straddles districts designated for rural-agricultural and mixed use, neither of which permit heavy industry.
Justice John Dooley pointed to Bristol’s long history of permitting gravel pits as a possible rationale for why town zoning officials would approve a pit in an area not zoned for quarrying.
“There are nine current quarries in Bristol,” Dooley said. “They seem to be somewhat relying on that fact, that quarries are allowed in Bristol.”
Nelson criticized the Environmental Court’s approval of the project that omitted conditions imposed on the project by the town zoning board in 2003.
“Judge Durkin departed from that ruling without even mentioning it, without observing any kind of deference, without evening explaining what he was doing and why he was doing it,” Nelson said.
The Office of the Attorney General of Vermont jumped into the fray this summer when it filed an amicus brief that argued that the Environmental Court had circumvented the Act 250 process by approving a project that had not been properly vetted by local authorities.
Assistant Attorney General Robert McDougall filed the brief on behalf of the Natural Resources Board, or NRB, which administers the Act 250 process.
McDougall joined the appellants Wednesday to make his case in front of the justices. He argued that in this case, because a project was amended after it received local approval, residents affected by the changes didn’t have the chance to make their concerns heard.
“The NRB appears in this matter out of concern that in this case, and cases like it, there will be substantial changes permitted at the appellate level that will adversely impact persons who have not had the opportunity to participate in the permitting process or voice their own concerns,” McDougall said. “That’s the problem here — the court allowing the change to a project on appeal won’t necessarily know how the project affects other persons.”
Lathrop attorney Mark Hall disputed Nelson’s position that Bristol officials feel their efforts were ignored by the Environmental Court.
“The town has not taken a position against the project,” Hall said. “As far as I can tell, the town is content with the results of the Environmental Court.”
Hall added that the Lathrops believe the different locations of access roads between the 2003 project approved by the town and the 2013 approval by the Environmental Court is not a significant change.
“Those two projects that were presented are substantially similar in type,” Lathrop said.
Hall disputed that residents haven’t had the opportunity to participate in the process, and noted that the project’s notoriety made it unlikely that residents hadn’t heard of it.
“You’d almost have to be cryogenically frozen not to understand that this project isn’t being litigated,” Hall said.
He added that residents could join the case as parties at any time, but few did after the initial group of residents voiced concerns.
“It’s been the same group of appellants all the way through,” Hall said.
Now that oral arguments are over, the five justices will discuss the case amongst themselves. They could concur with Durkin’s ruling allowing the Lathrops to proceed with the pit, they could overrule Durkin’s decision and send the case back to a lower court, or they could come up with some other unanticipated ruling.
Historically, the Supreme Court issues decisions anywhere from three to nine months after it hears cases.

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