In re Lathrop Ltd., No. 2013-444

Docket NºNo. 2013-445 & 2013-446
Citation2015 VT 49
Case DateMarch 20, 2015
CourtUnited States State Supreme Court of Vermont

2015 VT 49

In re Application of Lathrop Limited Partnership I
In re Application of Lathrop Limited Partnership II
In re Application of Lathrop Limited Partnership III

No. 2013-444
No. 2013-445 & 2013-446

Supreme Court of Vermont

October Term, 2014
March 20, 2015

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

Supreme Court On Appeal from Superior Court, Environmental Division

Thomas S. Durkin, J.

William A. Nelson, Middlebury, and James A. Dumont of Law Office of James A. Dumont, PC, Bristol, for Appellants.

Mark G. Hall of Paul Frank + Collins P.C., Burlington, for Appellee.

William H. Sorrell, Attorney General, and Robert F. McDougall, Assistant Attorney General, Montpelier, for Amicus Curiae Vermont Natural Resources Board.

PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Morse, J. (Ret.), Specially Assigned

¶ 1. DOOLEY, J. This appeal arises from a decision of the Superior Court, Environmental Division in three consolidated dockets, all of which carved a very long and circuitous path through the lower tribunals before reaching this Court. The subject of these dockets is the proposal of Lathrop Limited Partnership ("Lathrop") to establish a sand and gravel extraction operation on a parcel of land in the Town of Bristol, Vermont. Neighbors of the project appeal the environmental court's decision to approve Lathrop's conditional use and Act 250 permit applications, and raise six claims of error. They argue that the court erred in: (1) holding that sand and gravel extraction is permitted as a conditional use in the Town's Rural Agricultural (RA-2) and Mixed Use (MIX) zoning districts; (2) holding that the operation will not create a pit within the meaning of § 526(2) of the Town's zoning bylaws; (3) concluding that the court could review Lathrop's 2012 permit application de novo, without regard to the 2004 permit, and that the successive-application doctrine does not apply; (4) relying on one-hour average noise levels and ignoring uncontested evidence of large increases in the number of high-decibel noise events in determining impact of traffic on neighbors; (5) admitting and relying on acoustical-modeling software for predicting noise levels emitted by the project; and (6) concluding that it had jurisdiction to review Lathrop's amended Act 250 permit application without a remand. We affirm the environmental court's holdings that sand and gravel extraction is permitted as a conditional use in the RA-2 and MIX districts and that the acoustical-modeling testimony is admissible. We reverse its holdings with respect to the creation of a pit under § 526(2), the successive-application doctrine, the impact of traffic noise on neighbors, and its jurisdiction to review Lathrop's amended Act 250 permit application.

¶ 2. We start with the factual and procedural background. The three environmental court dockets, Lathrop I, No. 122-7-04, Lathrop II, No. 210-9-08, and Lathrop III, No. 136-8-10, are addressed in turn below. Much of the detailed description of the proposals and administrative and environmental court actions is set forth in the attached Appendix.

Lathrop I

¶ 3. In 2003,1 Lathrop applied for a permit from the Town of Bristol's Zoning Board of Adjustment (ZBA) for a proposed sand and gravel extraction operation on a sixty-five acre parcel located on South Street, Rounds Road, and Bristol Notch Road in the Town's RA-2 and MIX zoning districts. Lathrop proposed to extract up to 60,000 cubic yards of material per year, resulting in an average of seventeen truckloads each day over 250 days of operation. As proposed, the extraction would take place exclusively within the RA-2 district, with an access road to the pit from South Street at the northern edge of the parcel. The access road would pass through the MIX district, where it would cross over a preexisting, but abandoned, non-conforming gravel pit. At its July 2004 hearing, the ZBA voted to consider the application under § 526 of the Town of Bristol Zoning Bylaws & Regulations (2003) [hereinafter Bylaws], which provides, in pertinent part, that "in any district the removal of sand and gravel for sale . . . shall be permitted only after conditional use review and approval by the Board of Adjustment." In reviewing the application, the ZBA found no fewer than nine other gravel pits in the Town, at least three of which were also located in the RA-2 district. The ZBA also considered the character of the area; the noise levels associated with the project; possible increases in truck traffic along public highways; impact on historic and natural sites; impact on the Town's water supply; and Lathrop's proposals for a reclamation plan, erosion control, and other related issues.

¶ 4. The ZBA also addressed the nine criteria listed in § 526, to which all projects must conform. Specifically, the ZBA determined that, pursuant to provision (8), the project would not constitute an extension of an existing non-conforming operation; and, pursuant to provision (2), the project would not create a pit within the meaning of § 526 because a pit must have "vertical sides" or "an almost perpendicular slope or pitch." The ZBA ultimately approved the application with twenty-three additional conditions, which included, among other things, limits on days and hours of operation, scope of extraction, decibel levels, and daily truck trips; mitigation with respect to noise, dust, traffic, and aesthetics; and requirements for access road construction, reclamation, and reporting and recordkeeping. The conditions, which are set forth in greater detail in the Appendix, have become a central focus of this appeal.

¶ 5. Neighbors appealed the ZBA's decision to the environmental court. The parties filed cross-motions for summary judgment, which the court addressed in In re Rueger, No. 122-7-04 Vtec, slip op. (Vt. Envtl. Ct. May 5, 2005),, and again in a supplemental decision and order dated June 23, 2005. The court held that the ZBA properly reviewed Lathrop's application under § 526 of the bylaws and that the access road across the discontinued gravel pit would not constitute an extension of a non-conforming operation. The court found, however, that material facts remained in dispute as to whether, and under what conditions, the proposed sand and gravel operation should be granted a conditional use permit. The parties initially prepared for trial on the remaining issues, but then requested that the court place the appeal on inactive status while Lathrop sought additional permits for the project. This appeal has been termed Lathrop I.

Lathrop II

¶ 6. In 2007, Lathrop submitted a second application to the ZBA for the sand and gravel extraction operation, partly in response to concerns and criticisms about the original proposal. At its September 2008 hearing, the ZBA determined that the new application differed substantially from the original application approved in 2004, citing the changed access point to Rounds Road at the southern end of the parcel, altered phasing scheme for the development, and addition of plantings for screening purposes. The ZBA noted that "no provision of the [bylaws] prohibits filing an application for a zoning permit that differs substantially from a permit previously granted and that remains undeveloped." Additionally, Lathrop's second application presented extended hours of operation, an increase in the scope of extraction and average daily truck trips, higher decibel levels at property boundaries, and a narrower road bed for the access road. Although the ZBA found that the second application satisfied nearly all the conditional use requirements, it ultimately denied the permit for Lathrop's failure to submit a plan for refilling the resulting pit, as required under § 526(2).

¶ 7. Lathrop appealed the ZBA's denial of its 2007 application to the environmental court. Several neighbors filed a motion to dismiss on various grounds, including that the application was not ripe for review and that it asked for an advisory opinion. They primarily argued that the new proposal was a successive application that did not meet the requirements of the successive-application doctrine. The court denied neighbors' motion, holding in pertinent part that the successive-application doctrine does not govern because the second application was not a revised proposal submitted as a consequence of the ZBA denying the original application. Neighbors then moved for summary judgment on the issue of whether the project will create a pit within the meaning of the bylaws. The Town submitted a memorandum in support of neighbors' motion for summary judgment, concurring with their argument that Lathrop's operation will create a pit and also asserting that Lathrop failed to present its plan for a berm removal to the ZBA and therefore should be barred from doing so on appeal. In In re Lathrop Limited Partnership II, No. 210-9-08 Vtec, slip op. (Vt. Envtl. Ct. Aug. 14, 2009),, the court denied neighbors' motion for summary judgment, reasoning that the question of whether the reclaimed extraction area is a pit under § 526(2) is highly fact-specific. Id. at 3. The court also concluded that its de novo review allows it to consider project revisions so long as the revisions do not require a new application. The parties then requested to stay this and the Lathrop I appeals pending completion of the Act 250 proceedings.

Lathrop III

¶ 8. In 2006, Lathrop filed its first Act 250 permit application with the District...

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