Thursday, July 9, 2015

This is The Pits

In Re: Application of Lathrop (I, II, III), 2015 VT 49

By Elizabeth Kruska

This case is really long and really complicated. Bear with me.

When I think of Bristol, I think of it as a lovely town with a great brewery that serves possibly the best burger in the state (other than this one, this one, and this one). And this is where I admit pretty publicly that I love a good cheeseburger. Note any other top burger contenders in the comments and I’ll happily go eat them.) I also once picked cherries, raspberries, and blueberries there all on the same day. Bristol is tasty.

Bristol also is apparently perfectly suited, geologically-speaking, for quarrying sand and gravel. And that’s where the Lathrops come in. The appeal here combines 6 issues (none of which have to do with cheeseburgers), and consolidates three separate dockets from the Environmental Court. It’s probably easiest if I try to break each down separately.

1. 2003Lathrop gets its first permit to do a sand and gravel operation. There were appeals and it was supposed to go to trial, but the trial got put on hold because Lathrop started getting a new permit.

2. 2007Lathrop got a new permit because of concerns raised by the old permit. The new permit sought to change the project to fix some of the concerns raised by the first project. Some neighbors of the project got involved and said that the court case by Lathrop should be denied. The Environmental Court (EC) said that the whole inquiry was pretty fact-specific, so the trial could go forward. The EC also said that there could be revisions to the project permit so long as it was a new application.

3. While the first permit litigation was going on, there was an Act 250 question, which was whether Lathrop could even mine for sand and gravel in certain zoning districts. The proposed project was in a certain district, and based on the language, it wasn’t clear that that was a permissible use in that particular spot. So this gets appealed, and brought the other two issues out of inactive status and they all got appealed together.

Confused? Join the club!

SCOV takes up the following 6 issues. Some get reversed and remanded. Some get affirmed. Here they are:
1. Was there an error in the EC finding that sand and gravel extraction is ok in two certain specified use districts?
2. Was the EC wrong to find that this project won’t create a pit?
3. Issue with reviewing a 2012 permit without regard to an earlier permitdoes the successive-application doctrine apply?
4. Issues with noise levels and the impact on neighbors.
5. Was it wrong for the EC to rely on modeling software and expert testimony about the impact of the noise?
6. Review of the Act 250 permit.
SCOV upholds what the EC found in points 1 and 5, but reverses 2, 3, 4, and 6.

In the trial at the Environmental Court, the court found that the town’s zoning bylaws permitted sand and gravel extraction, that the project would not create a pit, that the noise would be abated. Neighbors to the project appealed, especially on the noise issue. They felt the court erred by making findings on the noise just by looking at a one-hour average, and that the expert who Lathrop had testify about it shouldn’t have been allowed. They also filed motions contending that Lathrop shouldn’t have been allowed to present a second permit application when the first one was conditionally approved.

First, the town’s zoning bylaws say sand and gravel extraction for sale is okay only after review by the zoning board and they find that it conforms to various conditions set forth so that the project doesn’t have an undue impact on the surrounding area. Extraction is considered “quarrying” which is considered “heavy manufacturing or industry.” The problem here is that none of the zoning districts specifically say they allow heavy industry. The neighbors take the position that since it’s not specifically allowed, that means it isn’t allowed. Lathrop takes the position that since it’s omitted, it’s allowed, but subject to approval.

SCOV looks at this regulatory language and applies the principles of statutory construction to interpret it. Towns adopt zoning bylaws under a state statute enabling them to do that. Most towns use the same or similar language in their bylaws. SCOV says that the neighbors’ argument that the bylaws have to say specifically where heavy industry is or isn’t allowed doesn’t work because it requires inclusion of language as a necessary condition. There needs to be flexibility so that local zoning boards can decide if projects can go in certain places. Neighbors tried to make the analogy that since gravel quarrying isn’t disallowed in residential districts, that nothing would prevent a quarrying operation to start in the middle of a downtown. SCOV disagrees and points out that there are lots of criteria that need to be met, so this seems pretty unlikely. SCOV also says that there is also a section of the law that seems to operate as an exception to the rule prohibiting manufacturing. So, SCOV says that sand and gravel extraction could be a conditional use in any zoning district.

Second, is this a pit, or not? EC said no. SCOV says, “Really? How is this not a pit? This is so a pit.” The rules about a pit are that if you make a pit you have to make a plan to fill it back in. EC looked to guidance within a statute section referring to a “steep slope.” What in tarnation does that mean? Nobody knows, but there’s a statutory section that requires that “slopes in excess of one to two shall be adequately fenced.” Lacking other definition-type guidance, the EC found that since Lathrop’s proposal was to dig a hole (not a pit) that had slopes less than 1:2, that it wasn’t a pit. EC called this a “shallow saucer” which wasn’t susceptible to filling with water and wouldn’t become an attractive nuisance. Neighbors, unsurprisingly, said, “What? This is a pit.”

SCOV says this is a pit. Even a “shallow saucer” is a pit because it doesn’t really blend in to the surroundings. Furthermore, under the rules, pits have to be refilled. It’s always easier just to dig a shallower hole than to refill a pit. So, it would make sense for a permittee to say, “This isn’t a pit” because refilling a pit is a pain. A permittee could propose what looks, walks, and quacks like a pit, but make it shallow enough so it’s not really a pit so they won’t have to refill it. SCOV thinks it’s nonsensical that a town would include a bylaw that is never applicable. Also, Lathrop included plans to refill the hole in their original permit. Since the EC found that it wasn’t a pit, it never had to get to the part about the refilling. SCOV remands this part for review again by the EC.

If you thought this ended the issues, you’d be wrong. SCOV also takes up whether or not the Environmental Court could even hear the revised permit issue since there was another pending. The neighbors say that the second permit wasn’t different from the first one, so the second one should be barred. Lathrop says the second permit application was substantially different. EC agreed with Lathrop, but SCOV disagrees with EC.

This is so confusing that SCOV made a chart in an appendix to point out the differences between the different permit applications. There are a couple main differences between the first and second permit. First, the second application had an increased extraction rate. It went from 60,000 cubic yards per year in the first to 100,000 cubic yards per year in the second. This means more truckloads out, which also means more truck traffic in. That means more traffic and more noise. Second, the second application changed the access point from one road to a different road. This would cause the impact to be shifted to different neighbors.

SCOV looks at two different doctrines of preclusion to determine if this could have gone forward. If a permit is denied, it can be appealed. But the permittee can’t just keep submitting the same permit application over and over if it gets denied. This is called the “successive-application doctrine.” Amendments can be proposed, though.

As far as permit amendments are concerned, there’s really no statutory standard to say what an amendment has to meet. And in this case, the Town of Bristol doesn’t have anything in its zoning bylaws to say when an amendment is “different enough.” However, permits can be modified in a few circumstances; whether there are changes beyond the control of the permittee, whether there are changes in the project that couldn’t have been reasonably foreseen, and whether there are changes in technology. SCOV points out that there needs to be some flexibility but also finality in the permitting process. If someone wants to do a project but it gets shot down, sometimes there can be an amendment to address particular concerns with the project.

A whole new permit can be considered (as opposed to amendments) after a denial if there’s a significant change of conditions between the first application and the second application.

Here’s how SCOV says to do this. First, determine if there is a final judgment with preclusive effect. If yes, the whole thing needs to be reviewed. If there’s a big change between the first permit and the second permit, review anew. If it’s just some amendments, file an application for an amendment.

SCOV says that the 2004 permit had a preclusive effect because Lathrop didn’t appeal. Lathrop wouldn’t necessarily have appealed because that permit was conditionally granted. The 2008 review was a very different proposal. The EC has to analyze the differences between the 2004 permit and the 2008 permit. So this gets remanded, and the EC has to decide if the second permit can even be considered.

Now SCOV turns to the issues raised about noise. When project permits are submitted, one thing that has to be considered is adverse aesthetic effects. This includes noise. Obviously, starting a sand and gravel operation where there wasn’t one before is going to increase truck traffic and, consequently, noise. The question is whether the effect is an adverse effect or not. SCOV gives a lot of weight to the EC’s findings because they’re factually-based. Conclusions have to be based on the facts as presented.

Neighbors appeal because there are 2 different ways of measuring noise, and the EC only considered one. There’s the issue of instantaneous noise versus the issue of average noise. The EC took testimony about noise levels, averaged over one hour’s time. Lathrop had an expert testify about noise levels, and also presented projections based on noise-modeling software.

Neighbors say this was the wrong way to do this, and also that the expert and the expert software were irrelevant. The software is meant to measure and calculate noise in flat areas, not hilly areas, like Bristol. Also, a one-hour average isn’t going to be sufficient to address the frequency of instances of noise. This point gets reversed. SCOV says that there’d need to be more findings by the EC with respect to instantaneous noise and the frequency of high-decibel noise. Simply doing averages isn’t enough to cover these two points.

SCOV says it was okay, though, for the EC to take the testimony from the expert, including the modeling software projections. Any issues with the software or its capabilities goes to the weight the EC should give it, not to the admissibility itself. This is the sort of thing the court could find to be helpful along with all the other evidence and testimony, so SCOV doesn’t reverse this point.

Lastly (finally!), is the issue about whether the Act 250 permit should have been remanded to the district commission to consider the change in the access point from one road to a different road. SCOV feels this actually is a big change to the project because it’s going to have impacts in different places and with respect to different roads and neighbors. The access point was changed by Lathrop to address some concerns with the original permit. But because of how this all went, procedurally-speaking, the neighbors to the changed access point didn’t get a chance to participate or be heard. That’s not how it’s supposed to work, so that gets remanded for a full review and assessment, and to give an opportunity for everybody to be heard.

So, to sum up, SCOV affirms the points that sand and gravel extraction can take place in the proposed zoning districts, and also the admission of the expert testimony. SCOV remands the issue of the pit, and whether the proposal from 2004 had a preclusive effect on future proposals. It’s also remanded to reconsider the impact of truck noise. The Act 250 permit gets remanded to the district commission for consideration.

SCOV is silent, unfortunately, on who makes the best cheeseburger in the state.


  1. The best burger in Vermont is hands down at the Burger Barn in Cambridge on Rt 15 between the N and S junctions of 108. Plus it won't steal all the money from your wallet.

  2. I will gladly try the Burger Barn in Cambridge.

    I should also add The White Cottage in Woodstock to the Good Cheeseburger List.