Supreme Court rules against Lathrop gravel pit plan

BRISTOL — Vermont’s highest court late last Friday ruled that a lower court had erred in approving a proposed gravel pit in Bristol in a ruling hailed as a win by project opponents. It is the latest — but perhaps not the last — twist in a case that has wound its way through the courts since 2003.
“It’s a big victory for us,” said Bristol resident John Moyers, one of nine townspeople who appealed the case to the Supreme Court. He added that the court concurred with “important points we’ve been talking about for years.”
A spokesperson at Lathrop Forest Products said Jim Lathrop, who was (for the most part) on the losing side of the decision, would not comment on the decision; she referred questions to Lathrop’s attorney, Mark Hall. Hall also declined to comment, saying he did not have permission from Lathrop to do so.
At issue was Lathrop’s proposed 26-acre gravel pit near Round Road and South Street in Bristol, a site across the New Haven River from downtown. Residents complained that the extraction process and truck traffic would diminish their quality of life, and allege that the approval process was bungled by the state Environmental Court.
The Supreme Court ruled that the Environmental Court had exceeded its authority in 2013 when it issued an Act 250 permit for a version of the project that differed from iterations approved by Bristol zoning officials and the District 9 Environmental Commission in the last decade.
In a unanimous opinion authored by Justice John A. Dooley, the Supreme Court:
•  Affirmed the Environmental Court’s findings that gravel extraction is a permitted use at the proposed site based on town zoning regulations, and that acoustic sound models presented by Lathrop in the case were admissible.
•  Reversed the Environmental Court’s issuance of an Act 250 permit and remanded the case back to the district environmental commission to re-evaluate the proposal based on Act 250 criteria.
•  Instructed the Environmental Court to send relevant parts of the case back to the Bristol zoning board for review.
Bristol attorney Jim Dumont, who represented the appellants, said he was pleased that the court struck down much of the Environmental Court’s ruling.
“I’m very satisfied with the result,” he said on Monday.
In oral arguments last fall, Dumont argued that the Environmental Court overstepped its authority by issuing a permit for a project that hadn’t been vetted by the Act 250 process.
“(The court) did its job to preserve the Act 250 process,” Dumont said. “That was an important part of the opinion.”
The 57-page ruling continues a 12-year legal battle, but it doesn’t mean the case is over. As directed by the Supreme Court, the district environmental commission must now take up the pit proposal for reconsideration.
The five justices largely agreed with the neighbors’ arguments that they had been denied due process by not having the opportunity to offer input on the version of the project that the Environmental Court approved. The court ruled that version was substantially different than what was OK’d by the district environmental commission and town zoning board.
In the version approved by the Environmental Court, the access road for the pit had been changed from Rounds Road to South Street. The Environmental Court also permitted a maximum 100 one-way truck trips from the pit per day, up from the maximum of 34 trucks per day approved by town zoning officials.
Noting that the Act 250 process “guarantees public notice and the opportunity for interested parties to participate,” the Supreme Court determined that the Environmental Court had exceeded its authority by bypassing Act 250 criteria that should have been evaluated by the district environmental commission.
“The court never considered the new criteria that may be impacted by this construction and the ensuing changes in traffic patterns,” Dooley wrote. “We therefore conclude that the Environmental Court erred in failing to remand the application to the district commission to assess the impacts from the revised South Street access point.”
In ruling that the Environmental Court had overstepped its authority, the Supreme Court sought to protect the Act 250 process and the role of citizen input in it. Dooley noted that in remanding the case back to the district environmental commission, the Supreme Court “preserves the role of the district commission and ensures interested parties have the opportunity to comment and present evidence on the new impacts.”
Conversely, the court rejected Lathrop’s position that the Environmental Court had acted prudently in awarding the project an Act 250 permit.
“Lathrop’s argument misses the point of the district commission’s role,” Dooley wrote.
For the past 12 years, the case has, in the words of the Dooley, “carved a very long and circuitous path” through Vermont’s judicial system.
The saga started in 2003, when Bristol resident Jim Lathrop, proprietor of Lathrop Forest Products, submitted the project for approval. Later that year, the town zoning board issued the project a land use permit with 23 conditions.
Neighbors concerned about traffic and noise from passing gravel trucks voiced opposition to the plan. Four years later, in 2007, Lathrop submitted a new land use application. But that time around, in 2008, the town said no, because Lathrop had not promised to fill the pit after excavation was complete.
Concurrently, the District 9 Environmental Commission also decided not to award the project an Act 250 permit, finding that the project, as proposed, did not align with the Bristol Town Plan.
The case took another turn in 2013, when Environmental Court Judge Thomas Durkin awarded an Act 250 permit for the project based on its 2003 iteration — which had not been reviewed by the District 9 Environmental Commission.
Residents appealed the Environmental Court decision to the Supreme Court, which heard oral arguments this past October. 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.
The attorney general’s office gave a boost to the appellants’ cause when Assistant Attorney General Robert McDougall posited in oral arguments that because the Environmental Court approved a project that had not been reviewed at the municipal level, residents had been denied their legal right to share their concerns about the proposal.
Moyers said that he believes that most residents of Bristol support the court’s decision. But they remain supportive of the town’s gravel industry, which dates back several generations. Owing to the geological composition of the bedrock beneath the soil, gravel produced in Bristol is considered high quality. According to case documents, there are at least 10 current or former gravel pits in Bristol.
“People aren’t inherently against gravel mining,” Moyers said. “The concern was such a large operation was simply not appropriate.”

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