STATE OF VERMONT 

ENVIRONMENTAL COURT

}

Lathrop Limited Partnership } Docket No. 64-3-06 Vtec 

(Act 250 Application #9A0315) } 

 } 

Decision and Order on Pending Motions

 Appellant-Applicant Lathrop Limited Partnership (“Lathrop”) appealed from the partial 

decision of the District #9 Environmental Commission (“District Commission”) dated March 16, 

2006, denying Lathrop’s Act 250 Permit Application #9A0315 for positive findings under 

Criterion 101 for its 31-acre gravel pit and 700-foot access road on Lathrop’s 70-acre tract of 

land in the Town of Bristol. Lathrop had applied and been approved for partial review with 

respect to Criterion 10 only, pursuant to former Environmental Board Rule 21 (EBR 21).2 

 Appellant-Applicant is represented by Mark G. Hall, Esq. Cross-Appellant John Moyers 

(Moyers) is represented by James A. Dumont, Esq., who also represents Interested Persons 

Kevin Harper, John C. Pickens, Russell and Mary Ann Rueger, Kelly Laliberte, and Carl and 

Caroline Engvall. The Natural Resources Board has intervened in this proceeding and is 

represented by Melanie Kehne, Esq. The Town of Bristol is participating in this proceeding and 

is represented by Amanda Lafferty, Esq. 

 Now pending are Lathrop’s and Moyers’s3 cross-motions for summary judgment and 

Lathrop’s motion under V.R.C.P. 6(d) for a continuance to file a responsive affidavit to the 

statement of facts accompanying Moyers’s motion for summary judgment. Lastly, Lathrop 

requested a hearing on its summary judgment motion, so that it may present oral arguments. 

                                                

1

 Criterion 10 is codified in 10 V.S.A. § 6086(a)(10). Lathrop requested that the District Commission review and 

issue positive findings under only a portion of Criterion 10, relating to its proposed project’s conformance with the 

Town Plan. Lathrop classified its request for partial review as being under “Criterion 10(a),” although Criterion 10 

does not have subsections. The District Commission followed Lathrop’s reference to Criterion 10(a). While we 

find such a reference helpful and less wordy than referencing conformance with the Town Plan under Criterion 10, 

we choose to use the latter, wordier reference, so as to be in conformance with the statute. 

2

 The former Environmental Board Rules, effective January 12, 2004, were in effect when Lathrop filed its 

application for partial review on December 2, 2005. Those Rules have since been replaced by the Act 250 Rules, 

which went into effect on May 1, 2006. Both Rules contain Rule 21, providing for partial review “with respect to 

any appropriate issue under the criteria or sub-criteria of the Act in any sequence” as a means to “avoid unnecessary 

or unreasonable costs.” 

3    Appellant Moyers is joined in his summary judgment motion by Interested Persons Kevin Harper, John C. 

Pickens, Russell and Mary Ann Rueger, Kelly Laliberte, and Carl and Caroline Engvall. We hereinafter refer to the 

pending motion as the Moyers’s motion, with no slight intended to the moving parties who joined Mr. Moyers.
Page 2.

After considering all the filings presented by all parties to date, the Court concludes that it has 

received sufficient factual representations and legal arguments to render final determinations on 

the pending summary judgment motions. We therefore decline to grant Lathrop’s Rule 6(d) 

motion and request for hearing. 

Procedural Background

The Court has some familiarity with the proposed gravel pit and access road that are the 

subject of this Act 250 appeal, since they are also the subject of an appeal from a conditional use 

determination made by the Town of Bristol Zoning Board of Adjustment (ZBA). The latter 

appeal has been pending before this Court for nearly two and a half years:4 Appeal of Rueger, et. 

al., Docket No. 122-7-04 Vtec. After remand from the Supreme Court, the Rueger appeal was 

placed on inactive status, pending the outcome of Lathrop’s Act 250 application which is now 

the very subject of this pending appeal. See Scheduling Orders dated September 27, 2005 and 

December 14, 2005 in Docket No. 122-7-04 Vtec. 

One of the substantive issues5 presented by the municipal appeal, Docket No. 122-7-04 

Vtec, is similar, but not identical, to the issue presented in this Act 250 appeal, Docket 64-3-06 

Vtec. In the municipal appeal, the first Question posed is whether the proposed quarry is in 

conformance with the Town of Bristol Zoning Bylaws & Regulations (“Zoning Regulations”); in 

the Act 250 appeal, the sole question presented is whether the proposed quarry is in conformance 

with the Town of Bristol Town Plan (“Town Plan”). The similarity of the respective legal issues 

in each appeal make it appropriate to reference and consider the determinations already made in 

the municipal appeal.6

 We do so below. 

                                                

4  The Rueger appeal was the subject of an interlocutory appeal to our Supreme Court, which remanded the matter 

back to this Court.

5  Appellants in Docket No. 122-7-04 Vtec filed an amended Statement of Questions on December 13, 2005 that lists 

six Questions presented in that appeal.

6    On the pre-trial question posed by the parties’ summary judgment motions in the municipal appeal, namely 

whether the Zoning Regulations specifically prohibit a quarry or gravel operation from being sited in the RA-2 

district, this Court previously held that the Regulations do not prohibit such an operation, specifically once it has 

been granted conditional use approval under Regulations § 526. See Decision and Order on cross-Motions for 

Summary Judgment, Docket No. 122-7-04 Vtec (May 5, 2005), and as revised by the Supplemental Decision and 

Order (June 23, 2005) and the Order of Clarification (July 8, 2005) (hereinafter collectively referred to as the Rueger

Interim Decisions). The conditional use approval, with conditions, that was granted to Lathrop by the ZBA in its 

Decision of July 6, 2004 is the subject of the pending municipal appeal in Docket No. 122-7-04 Vtec.
Page 3.

Factual Background

 The parties’ respective filings reveal that the following facts are material to the legal 

issue now pending in this Act 250 appeal and are undisputed, unless otherwise noted below. 

 1. Lathrop proposes to develop and operate a 31-acre gravel pit entirely within the 

Rural Agricultural 2-acre Zoning District (“RA-2 district”) and adjacent to the Mixed Use 

Zoning District (“MIX district”). Lathrop’s entire 70-acre parcel straddles both zoning districts. 

Lathrop once operated a pre-existing gravel pit on a portion of its property within the MIX 

district, but operation of that pre-existing pit ceased sometime before 1998.7

 2. Lathrop proposes to create a 700-foot access road to the gravel pit from River 

Street. The proposed access road lies partly within the MIX district. 

 3. On December 2, 2005, Lathrop applied to the District Commission for partial 

review of Lathrop’s proposed gravel pit and access road under Act 250 Criterion 10. 

 4. On March 16, 2006, the District Commission denied Lathrop’s request for 

positive findings as to conformance with the Town Plan under Criterion 10, concluding that 

gravel pits are prohibited in the RA-2 district by the terms of the Town Plan. The District 

Commission also concluded that the portion of the proposed access road within the MIX district 

is in conformance with the Town Plan. 

 5. Lathrop appealed the District Commission’s conclusion that the gravel pit does 

not conform to the Town Plan; Moyers appealed as to the District Commission’s conclusion that 

the access road does conform to the Town Plan. 

Discussion

Our Supreme Court has consistently directed that when ruling on a motion for summary 

judgment, we must view the relevant evidence in a light most favorable to the non-moving party 

and may only grant the motion if the applicable legal standards require an entry of judgment in 

the moving party’s favor. See Toys Inc. v. F.M. Burlington Co., 155 Vt. 44, 48 (1990) (“The 

party against whom summary judgment is sought is entitled to the benefit of all reasonable 

doubts and inferences in determining whether a genuine issue of material fact exists.”) (citing 

                                                

7  See Rueger Interim Decision (May 5, 2005) at 2.
Page 4.

Creighton v. Town of Windsor, 154 Vt. 348, 352-53 (1990)). It is with this standard in mind that 

we review each parties’ pending summary judgment motion. 

1. Lathrop Motion for Summary Judgment

Criterion 10 of Act 250 requires that the proposed development be “in conformance with 

any duly adopted local or regional plan,” 10 V.S.A. § 6086(a)(10). The District Commission 

based its March 16, 2006 denial of Lathrop’s partial application on a narrow conclusion: that 

Bristol’s Town Plan allows only agricultural, residential, and commercial uses in the RA-2 

district. The District Commission further concluded that since Lathrop’s proposed gravel pit 

cannot be defined as a “commercial use,” it fails to conform to the Town Plan. District 

Commission Partial Findings of Fact, Conclusions of Law, and Order dated March 16, 2006 

(District Commission Decision), at 9–10, 12. 

 Lathrop’s appeal of the District Commission determinations presents this Court with 

what amounts to a question of pure law: does the Bristol Town Plan generally prohibit the 

operation of a gravel pit in the RA-2 district? If the Town Plan does prohibit gravel pits in the 

RA-2 district, then we must deny Lathrop’s permit application. If, on the other hand, the Town 

Plan falls short of specifically prohibiting gravel pits in the RA-2 district, then Lathrop’s permit 

application appeal may proceed before this Court. We conclude that the Town Plan contains no 

such specific prohibition. But we cannot fully grant Lathrop’s pending summary judgment 

motion, because we find that material facts as to its specific proposed gravel pit and the propriety 

of granting it conditional use approval remain in dispute. Thus, we conclude that the proper 

procedural course to chart for this appeal is to schedule a hearing on the merits to resolve those 

disputed factual issues. 

 The Bristol Town Plan, as with most town plans in Vermont, is self-described as “a 

statement of goals, policies, strategies and programs adopted by [its] citizens . . . to guide future 

growth within” their town. Town Plan at 1. Such documents usually offer generalized goals and 

philosophies on desired land use and do not often contain the specific authorizations and 

prohibitions concerning land use contained in zoning regulations. 

The Bristol Town Plan states generally that “[d]evelopment in Bristol is based upon the 

permitted uses and conditional uses that are allowed within the district in which the development 

is proposed . . . . Specific permitted uses, conditional uses, minimum lot sizes, etc, are set forth 
Page 5.

in the Town Zoning Regulations.” Town Plan § 5.1.1. The Town Plan goes on to address the 

RA-2 district specifically, as follows: 

Much of the RA-2 (Rural Agricultural, 2 acre) district consists of areas where 

soils possess good-to-moderate capability for on-site sewage disposal and where 

direct access from existing town roads is available. The district is intended to be 

primarily a mix of residential and agricultural uses with cluster development 

desirable. Additional requirements for this district are given in 5.1.2 below. 

Id. (emphasis added). 

 Review of a proposed project for its conformance with a Town Plan in the course of an 

Act 250 proceeding requires a good measure of discipline. Such review should not supplant or 

supersede the review of a project’s conformance with zoning regulations; the latter is the domain 

of appropriate municipal panels. Decisions of the former Environmental Board, which had 

jurisdiction over appeals from the district commissions before the Permit Reform Act went into 

effect on January 31, 2005, provide excellent guidance on how to properly conduct a review of a 

proposed project’s conformance with various Act 250 criteria (ten in number, although counting 

the various sub-criteria, the total reaches 27). In fact, this Court has been instructed to give the 

decisions of the former Environmental Board “the same weight and consideration as prior 

decisions of” this Court. 10 V.S.A. § 8504(m). 

 The Environmental Board recently provided succinct guidance on the manner in which to 

analyze a town plan when considering whether a proposed project conforms to it and therefore 

complies with Criterion 10. In Re: Times and Seasons, LLC Hubert K. Benoit, Docket No. 

3W0839-2-EB, Findings of Fact, Conclusions of Law and Order (Vt. Envtl. Bd., Nov. 4, 2005), 

the Environmental Board established a two-step process for analyzing a town plan. The Board 

advised that a determination must first be made as to whether the applicable language from the 

Plan is “mandatory or . . . merely provide[s] guidance.” Id. at 58. Second, the Board directed 

that a determination must be made as to whether “the town plan’s provisions [are] specific or 

ambiguous.” Id. 

 Both Lathrop and Moyers provided thorough analysis of the Board precedent announced 

in Times and Seasons, as well as the other Board decisions cited therein. We need not repeat 

their thorough analysis here, as we conclude that the applicable language in the Bristol Town 

Plan is not mandatory, but merely provides unambiguous guidance as to how proposed 
Page 6.

commercial development will be reviewed in the RA-1, RA-2 and RA-5 districts. Town Plan 

§ 5.1.2. 

 The District Commission, noting that the use of the word “primarily” in Town Plan 

§ 5.1.1 indicates that “uses other than residential and agricultural uses may be allowed in the RA2 District,” turned to § 5.1.2 to determine what other uses may be allowed in the RA-2 district. 

Section 5.1.2 is titled “Commercial Development” and states that “[w]ithin the RA-1, RA-2 and 

RA-5 districts, commercial development will be controlled through the conditional use process.” 

The Town Plan does not define the term “commercial development.” No definition of that 

specific term is found in the Zoning Regulations, either. Unfortunately, it appears that the 

District Commission interchanged the Plan’s use of the term “commercial development” with the 

Regulation’s definition of the specific zoning classification for “commercial uses.” We conclude 

that this was error and cannot follow its logic in this de novo proceeding. 

Read in context with all of Town Plan § 5, we conclude that the use of the term 

“commercial development” in § 5.1.2 follows the every-day reference to all development that is 

not residential or agricultural. This common use of the phrase “commercial development” 

incorporates development of land conducted for industrial or manufacturing uses. Such uses are 

specifically addressed in the Zoning Regulations, but are not specifically regulated in the Town 

Plan. In fact, such uses do not receive the same level of analysis8 in Town Plan § 5 as does the 

term “commercial development.” Were we to adopt the conclusion that Section 5 provides a 

specific regulatory direction, one conclusion could be that the Plan absolutely prohibits industrial 

and manufacturing development in all but the COM-1 and MIX districts. We decline to reach 

such an interpretation here. 

There is no subsection in Town Plan § 5 devoted to a discussion of “industrial 

development” or “manufacturing development,” but there is a specific subsection devoted to a 

discussion of “commercial development”: Town Plan § 5.1.2. That subsection notes that such 

development is to be given “careful consideration” in the conditional use review process. As this 

Court has previously held, Zoning Regulations § 526 provides that sand and gravel extraction 

                                                

8 Town Plan § 5.1.1 contains provisions that discuss uses in the COM-1 and MIX districts. The former has a 

reference to providing “opportunities for small-scale commercial and industrial development.” The section which 

discusses the MIX district advises that “heavy manufacturing should not be permitted.” Both references are brief 

and of an advisory nature only; neither rise to the level of a mandatory prohibition of such uses. Neither reference 

causes us to interpret Town Plan § 5.1.2 in a more restrictive manner than noted above. 
Page 7.

projects may be permitted “in any district . . . only after conditional use review and approval by 

the Board of Adjustment.” Id.; see also Rueger Interim Decision (May 5, 2005) at 4. 

 The District Commission concluded that under § 5.1.2 only “commercial uses,” as that 

term is defined in the Town’s Zoning Regulations at § 130, can be afforded zoning approval 

through the conditional use process. District Commission Decision at 10. The Commission 

based this conclusion on its understanding that “it is the intent of [§ 5.1.2] to ensure the 

‘compatibility of commercial and residential uses’ within the District.” Id. For the reasons 

noted above, we decline to adopt a similar conclusion. The plain intent of § 5.1.2 is to guide the 

conditional use review process, and it is that zoning process, and not the Town Plan, which 

controls commercial development in the RA-2 district. While the proposed gravel pit is not a 

“commercial use” as that term is defined in § 130 of the Town Zoning Regulations,9

 we conclude 

that under the Town Plan, the proposed gravel pit is a “commercial development” which the 

Town Plan does not preclude. Again, the Town Plan does not specifically prohibit such 

development, but rather recommends that they be controlled through the conditional use review 

process. 

 Because the Bristol Town Plan does not itself specifically prohibit gravel pits, quarries, 

or any other commercial development in the RA-2 district, the District Commission erred in 

concluding that no quarry in the RA-2 district could conform to the Town Plan. Lathrop’s 

motion for summary judgment must therefore be granted, and the District Commission’s ruling 

that quarries are prohibited as a matter of law in the RA-2 district cannot be adopted here. 

It is important to note that the District Commission’s decision was based on its answer in 

the negative to the threshold question of whether any quarry could be permitted in the RA-2 

district. The question remains as to whether the specific quarry that Lathrop proposes is in 

conformance with the Town Plan. Our conclusion that the Plan does not prohibit all quarries in 

the RA-2 district does not automatically bring about a conclusion that Lathrop’s specific quarry 

is in conformance with the Town Plan. 

Viewing the material facts in a light most favorable to Mr. Moyers and those who have 

joined him to oppose the pending motion, Lathrop’s proposed sand and gravel quarry project 

could be viewed as the largest and most significant quarry in the region. Its life span could 

                                                

9

 In Regulations § 130, the definition of “commercial use” excludes “light or heavy industry.” Sand and gravel 

extraction is included in the definition of “quarries,” and quarries are included within the definition of “heavy 

manufacturing or industry.” 
Page 8.

extend over 54 years; during its life, an estimated 3.2 million yards of gravel, weighing 

approximately 7.2 million tons would be extracted from a 31-acre section of Lathrop’s 70-acre 

parcel, leaving a pit, even after reclamation, with 120-foot high walls and steep slopes. Such 

facts are material to our determination of whether the specific gravel extraction operation 

Lathrop proposes is in conformance with the Town Plan, and those facts, as well as the possible 

future impact of this quarry, remain in dispute. We therefore decline to grant Lathrop’s request 

that we summarily conclude that its proposed project is in conformance with the Town Plan. 

Such a determination must be left to a trial, where all parties will have the opportunity to present 

all relevant evidence so that this Court may make a fully informed determination of the material 

facts. 

2. Moyers’s Motion for Summary Judgment

 Cross-Appellant Moyers moves for summary judgment seeking two rulings: first, that 

this Court affirm the District Commission ruling below that Lathrop’s application for a gravel pit 

in the RA-2 district does not conform to the Bristol Town Plan, and second, that this Court 

reverse the District Commission ruling below that Lathrop’s application for the construction and 

use of an access road in the MIX district conforms to the Town Plan. 

 We addressed the District Commission ruling regarding the conformance of the proposed 

gravel pit in the RA-2 district above, in the context of Lathrop’s motion for summary judgment. 

Since the Town Plan does not prohibit gravel pits in the RA-2 district, Moyers’s motion must be 

denied as to this first issue. 

 Turning to the second issue presented by Moyers’s motion, Moyers argues that the 

District Commission erred in concluding that the proposed access road conforms to the Town 

Plan. The District Commission reasoned that, even though “heavy manufacturing should10 not 

be permitted” in the MIX district (Town Plan § 5.1.1) the proposed access road is not prohibited 

by the provisions in the Town Plan relating to lawful uses in the MIX district. The District 

Commission explained that: 

[T]he only activity occurring within the MIX District involves the construction of 

the access road, grading and reclamation. There are no plans to use the area 

within the MIX District for any use other than providing access to the sand and 

gravel pit within the RA-2 District. A majority of the Commission finds this 

                                                

10 As noted above, we regard the term “should” as advisory in nature. It does not denote the mandatory 

characteristic of the word “shall,” which the Town Plan drafters were certainly free to use.    
Page 9.

activity consistent with the objectives of the MIX District provided there is no 

quarrying in the MIX District. 

District Commission Decision at 12. 

Moyers argues that the access road cannot be viewed in isolation, but rather must be 

viewed as a quarrying use, since it is proposed to serve a quarry. Moyers points out that the 

definition of the term ‘quarrying’ in Bylaws § 130 includes “stone extraction operations and any 

land development incidental thereto.” Moyers argues that “[t]he access road is ‘land 

development incidental to’ the extraction of stone and thus it is part of the operation of a quarry. 

By definition, it is quarrying.” Moyers Mot. for Summ. J. at 8. 

 It bears repeating that a determination of whether a proposed project conforms to a town 

plan is no substitute for the more detailed analysis before an appropriate municipal panel of 

whether the same proposed project conforms to the applicable zoning regulations. In this case, 

the latter analysis will be the subject of a merits hearing in the pending Rueger appeal, Docket 

No. 122-7-04 Vtec. We decline to delve into such detailed analysis here. 

 In order to grant the summary judgment Moyers now seeks, we must conclude that the 

Town Plan must be interpreted so as to specifically prohibit from the MIX district all access 

roads that would only serve a gravel extraction operation. For the same reasons as provided 

above, and as provided in the Rueger Interim Decisions, we cannot reach such a summary 

determination. We therefore decline to grant Mr. Moyers’s motion and leave the final 

determination to be made after all relevant evidence is introduced at trial. 

3. Lathrop Motion for Continuance

 Lathrop argues that Moyers’s detailed, 54-paragraph statement of material facts is 

immaterial to the present appeal, and that Lathrop should either be relieved from responding to it 

or be granted a continuance on the need to respond to the allegations in the Moyers’s Statement 

“until the underlying legal issue is determine[d].” Lathrop Mot. to Continue at 3. 

 Our decision partially granting Lathrop’s motion for summary judgment and denying 

Moyers’s motion for summary judgment renders Lathrop’s motion for a continuance as moot. 

Given the time that has already elapsed since this appeal and the related Rueger appeal were 

filed, we conclude that the more efficient use of the parties’ and the Court’s limited resources is 

to proceed to trial. 
Page 10.

Order

 Accordingly, for the reasons given above, it is hereby ORDERED and ADJUDGED that 

Lathrop’s motion for summary judgment is GRANTED to the extent that we conclude that the 

Town Plan does not prohibits quarries or gravel extraction operations generally from the RA-2 

district. To the extent that Lathrop also requests we summarily conclude that its specific 

proposed project conforms with the Town Plan, we DECLINE to do so, but rather leave that 

specific determination to be made after all parties are afforded an opportunity to present all 

relevant evidence. 

Moyers’s motion for summary judgment is DENIED in all respects. Lathrop’s motion 

for a continuance is DISMISSED as moot. 

A pretrial conference shall be held in accordance with the attached Notice of Hearing to 

discuss the scheduling of a trial on the remaining issue of whether Lathrop’s specific gravel pit 

proposal should receive positive findings under Criterion 10, as it relates to conformance with 

the Bristol Town Plan. The undersigned judge will preside over the pre-trial conference. The 

Court requests that the parties be prepared at the pre-trial conference to discuss the propriety of 

consolidating this Act 250 appeal with the remaining issues in the municipal conditional use 

review application that is the subject of the Rueger appeal (Vt. Envtl. Ct., Docket No. 122-7-04 

Vtec). 

 Done at Berlin, Vermont this 29th day of November, 2006. 

 

 _____________________________________ 

 Thomas S. Durkin, Environmental Judge