State of Vermont 

Superior Court - Environmental Division 

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E N T R Y R E G A R D I N G M O T I O N 

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In re Lathrop Limited Partnership I Docket No. 122-7-04 Vtec 

(Appeal of Rueger et al of Bristol DRB Approval) 

In re Lathrop Limited Partnership II Docket No. 210-9-08 Vtec 

(Appeal of Lathrop Limited Partnership of DRB Denial) 

In re Lathrop Limited Partnership Act 250 Permit Docket No. 136-8-10 Vtec 

(Appeal of Lathrop Limited Partnership of Act 250 Denial) 

Title: Motion for Declaration that Automatic Stay Applies, and if it does not, Motion for Stay 

Pending Appeal (Filing No. 21) 

Filed: November 14, 2013 

Filed By: Appellants/Interested Persons Russell Rueger et al. 

Response in Opposition filed on 12/5/13 by Applicant Lathrop Limited Partnership 

Supplemental Response filed on 02/06/14 by Interested Persons Rueger et al. 

___ Granted X Denied ___ Other 

A group of neighbors (“Neighbors”) to Lathrop Limited Partnership’s proposed gravel 

extraction operation ask this Court to declare that our October 18, 2013 merits decision and 

judgment order are automatically stayed pending Neighbors’ appeal to the Vermont Supreme 

Court. In the alternative, Neighbors ask for a stay pursuant to our discretionary power. 10 

V.S.A. § 8504(f). 

Motion for Declaration of Automatic Stay 

We first address Neighbors’ argument that the October 18 decision is automatically 

stayed pending appeal. In 2007, the Vermont Supreme Court held that 10 V.S.A. § 8504(f), 

rather than Vermont Rule of Civil Procedure 62, governs automatic stays in appeals from the 

Environmental Division. In re Route 103 Quarry, 2007 VT 66, ¶ 3, 182 Vt. 569. Neighbors argue 

that Route 103 Quarry does not control because Vermont Rule for Environmental Court 

Proceedings 5(k) has superseded that statute. We decline to adopt Neighbors’ reasoning. 

V.R.E.C.P. 5(k) provides that Vermont Rules of Appellate Procedure apply to appeals 

from the Environmental Division to the Vermont Supreme Court. Rather than establishing a 

different rule for automatic stays, however, Vermont Rule of Appellate Procedure 8 refers to 

V.R.C.P. 62. Thus the question is still whether Rule 62 acts to automatically stay a decision of 

the Environmental Division pending an appeal to the Supreme Court. Route 103 Quarry, 

decided while V.R.E.C.P. 5(k) was in effect, answered this question in the negative. Although 

the argument proposed by Neighbors was not raised in that case, we conclude that if the 
Lathrop Limited Partnership Cases, Nos. 122-7-04 Vtec, 210-9-08 Vtec, and 136-8-10 Vtec (02-11-14) Pg. 2 of 4. 

(Entry Order on Motion for Stay)

Supreme Court intended its promulgation of V.R.E.C.P. 5(k) to supersede the plain language of 

§ 8504(f), it would have stated so in that decision. In reaching this conclusion, we note that 

Neighbors’ argument seems circuitous, since our Rule 5(k) does not establish the automatic stay 

that they seek. To arrive at the Rule provision that most closely speaks to an automatic stay, 

Neighbors’ argument travels from our Rule 5(k), then to V.R.A.P. 8, and then to V.R.C.P. 62(d). 

That Civil Rule does not speak directly to automatic stays when appeals are taken from 

Environmental Division determinations. 

Judgments from the Civil Division that are subject to an automatic stay are often 

monetary judgments. In fact, V.R.C.P. 62(d) notes that automatic stays do not apply to 

injunctive (i.e.: non-monetary) relief. Here, the automatic stay that Neighbors request is not of a 

monetary judgment, but rather Lathrop’s legal authority to develop property, subject to certain 

permits and conditions. We conclude that our judgment is more akin to the non-monetary 

judgments that the Supreme Court specifically chose not to be subject to an automatic stay 

under V.R.C.P. 62(d). We therefore conclude that an automatic stay under that Rule does not 

apply to our merits decision and judgment order. 

Thus, because the Supreme Court’s binding precedent dictates that stays of 

Environmental Division decisions are governed by § 8504(f) and because this judgment is not 

automatically stayed by applicable statute or Rule, we must DENY Neighbors’ motion for a 

declaration that an automatic stay applies. 

Motion for Stay Pending Appeal

Neighbors also ask the Court to exercise its discretionary power under 10 V.S.A. 

§ 8504(f)(2) and stay our merits decision and judgment order pending appeal. As the Supreme 

Court noted in Route 103 Quarry, absent an automatic stay, this Court “must examine the 

traditional criteria, and other relevant factors, in determining whether to grant or deny the 

stay.” 2007 VT 66, ¶ 6 (citing Gilbert v. Gilbert, 163 Vt. 549, 560 (1995) (listing stay criteria)). 

“To prevail on a motion for stay, the moving party must demonstrate: (1) a strong likelihood of 

success on the merits; (2) irreparable injury if the stay is not granted; (3) the stay will not 

substantially harm other parties; and (4) the stay will serve the best interests of the public.” 

Gilbert, 163 Vt. at 560. 

For the purposes of this analysis we find that Neighbors have met the minimum burden 

required to show a likelihood of success on the merits. As this Court has recognized before, 

when considering a motion for stay, “we bring the ‘likelihood of success on the merits’ standard 

into play as a test only when the movant’s appeal ‘is so tenuous that its invalidity is suggested 

on the face of the matter, or the [appeal] smacks of bad faith or frivolousness.’” In re Howard 

Center Renovation Permit, No. 12-1-13 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Apr. 12, 

2013) (Walsh, J.) (citing Petition of Allied Power & Light Co., 132 Vt. 554, 556 (1974)). While we 

do not agree with Neighbors’ assertion that likelihood of reversal on appeal is extraordinarily 

high, or even strong, we do not pretend to be assured that our determinations will withstand all 

of Neighbors’ challenges.1 We therefore find that this element has been met for the purposes of 

determining whether a stay is appropriate. 

 

1

 Neighbors’ most recent filing also supports our approach to this element of the discretionary stay 

analysis, although we disagree with Neighbors’ assessment of the Supreme Court’s recent decision in In

re Chaves, 2014 VT 5, available at http://info.libraries.vermont.gov/supct/current/op2013-069.html. In 

fact, the circumstances surrounding the developer’s change of the location for the access road in Chaves 
Lathrop Limited Partnership Cases, Nos. 122-7-04 Vtec, 210-9-08 Vtec, and 136-8-10 Vtec (02-11-14) Pg. 3 of 4. 

(Entry Order on Motion for Stay)

Neighbors, however, have failed to establish that they will suffer irreparable injury if the 

stay is not granted. Regarding this factor, we consider whether the injuries the movant alleges 

are likely and whether they would have an adequate remedy at law for those injuries. In re 

Allen Road Land Co., Nos. 62-4-11 Vtec and 63-4-11 Vtec, slip op. at 6 (Vt. Super. Ct. Envtl. Div. 

July 6, 2011) (Durkin, J.) Neighbors argue that noise and dust caused by the initial phases of 

Lathrop’s development and an increase in truck traffic will irreparably injure their interests. 

However, they have failed to show either that these injuries are likely to occur or that, should 

they occur, the Neighbors would have no adequate remedy at law if they succeed on appeal. 

Neighbors allege no lasting and irreparable damages caused by the implementation of the 

initial stages of the proposed development, much of which includes improvements to the public 

roadway (South Street) and initial site preparation work. We conclude that any diminution in 

Neighbors’ use and enjoyment of their property during these initial site improvements, should 

their appeal be successful, could be remedied by money damages, if warranted. 

We also note that any action Lathrop may take on the permits ordered in our decision is 

at its own substantial risk. If Neighbors’ appeal is successful, Lathrop could be required to 

remediate the site following any such work. Any noise, dust, and truck traffic would also come 

to an end. Therefore, Neighbors have failed to establish that they will suffer irreparable injury if 

a stay is not granted. 

The third element also fails to support granting a stay. The work that Lathrop proposes 

to undertake during the appeal generally includes construction of South Street improvements, 

remediation of the former unpermitted gravel pit, construction of the access road, and possibly 

gravel extraction in the “woods section,” where impacts on Neighbors will be minimal. 

Lathrop argues that it will be much more convenient to undertake the initial roadwork while 

the South Street Bridge remains closed and under repair, thereby reducing traffic on South 

Street. While missing this opportunity may not rise to the level of “substantial harm” for 

Lathrop, we do recognize that the prudence of undertaking the South Street improvements 

while traffic is minimized weighs against granting a stay. 

Lathrop represents that much of the initial work, specifically the South Street 

improvements and the remediation, will be beneficial to the public even if the project is 

ultimately denied on appeal. Neighbors do not counter these representations. Instead they 

argue that the public interest is served by granting a stay because doing so upholds the process 

of law. Apart from reiterating what they view to be negative impacts of the project, none of 

which are irreversible, Neighbors argue that because our decision incorrectly applied the 

relevant laws and further review will be necessary after their successful appeal, a stay is in the 

public interest. Presumably every appellant seeks to uphold the law by challenging what they 

view to be incorrect legal conclusions by a trial court. We conclude that this broad “public 

interest” is insufficient to grant a stay. 

Because Neighbors cannot establish all four elements required for the granting of a 

discretionary stay, we DENY Neighbors’ motion for a stay pending appeal under 10 V.S.A. 

§ 8504(f)(2). 

 

is quite similar to the revisions made to the Lathrop project plans. In both cases, the interested persons 

concerned about each proposed project received prior notice of the access road relocation and an 

opportunity to be heard at trial. 
Lathrop Limited Partnership Cases, Nos. 122-7-04 Vtec, 210-9-08 Vtec, and 136-8-10 Vtec (02-11-14) Pg. 4 of 4. 

(Entry Order on Motion for Stay)

_________________________________________ February 11, 2014 

 Thomas S. Durkin, Judge Date 

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Date copies sent: ____________ Clerk's Initials: _______ 

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