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 Li mited Partnership (“Lathrop”) appealed from the partial
decision of the District #9 Environmental Co mmission (“District Commis sion”) dated March 16, 2006, denying Lathrop’s Act 250 Permit Application #9A0315 for positive findings under
Criterion 10 1 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 appl ied and been approved fo r partial review with respect to Criterion 10 only, pursuant to former Environm ental 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, Es q., 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’s 3 cross-motions for summary judgment and Lathrop’s motion under V.R.C.P. 6(d) for a conti nuance to file a respons ive affidavit to the statement of facts accompanying Moyers’s mo tion for summary judgme nt. Lastly, Lathrop requested a hearing on its summary judgment moti on, 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 Rule s, effective January 12, 2004, were in effect when Lathrop filed its application for partial review on Decem ber 2, 2005. Those Rules have since been replaced by the Act 250 Rules, which went into effect on May 1, 2006. Both Rules cont ain Rule 21, providing for partial review “with respect to any appropriate issue under the criteria or sub-criteria of the Act in any seque nce” 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, Ke lly 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 le gal arguments to render final determinations on the pending summary judgment mo tions. We therefore decline to grant Lathrop’s Rule 6(d) motion and request for hearing. Procedural Background The Court has some familiarity with the propos ed gravel pit and access road that are the subject of this Act 250 appeal, sinc e they are also the subject of an appeal from a conditional use determination made by the Town of Bristol Zoni ng 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 rema nd 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. Se e Scheduling Orders dated September 27, 2005 and December 14, 2005 in Docket No. 122-7-04 Vtec.
One of the substantive issues 5 presented by the municipal appeal, Docket No. 122-7-04 Vtec, is similar, but not identi cal, to the issue presented in th is Act 250 appeal, Docket 64-3-06 Vtec. In the municipal appeal, the first Ques tion posed is whether the proposed quarry is in conformance with the Town of Bristol Zoning By laws & Regulations (“Zoning Regulations”); in the Act 250 appeal, the sole questio n presented is whether the propos ed 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 a nd consider the determinations already made in the municipal appeal. 6 We do so below.

4 The Rueger appeal was the subject of an in terlocutory 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 Questi ons 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 co nditions, 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 ot herwise 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 dist rict”). Lathrop’s entire 70-acre parc el straddles both z oning districts. Lathrop once operated a pre-exis ting 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 gr avel pit from River Street. The proposed access road lies partly within the MIX district. 3. On December 2, 2005, Lathrop applied to the District Co mmission for partial review of Lathrop’s proposed gravel pit and access road under Act 250 Criterion 10. 4. On March 16, 2006, the Di strict 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 ro ad within the MIX district
is in conformance with the Town Plan. 5. Lathrop appealed the District Commissi on’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 th e applicable legal standards re quire 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 genui ne 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 w ith this standard in mind that we review each parties’ pe nding 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 region al plan,” 10 V.S.A. § 6086(a)(1 0). The District Commission based its March 16, 2006 denial of Lathrop’s partial applicatio n on a narrow conclusion: that Bristol’s Town Plan allows only agricultural, re sidential, and commerci al uses in the RA-2
district. The District Commi ssion further concluded that sin ce Lathrop’s proposed gravel pit
cannot be defined as a “commerci al use,” it fails to conform to the Town Plan. District Commission Partial Findings of Fact, Conclusi ons of Law, and Order dated March 16, 2006 (District Commission Decision), at 9–10, 12. Lathrop’s appeal of the District Commissi on 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 perm it 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 th e Town Plan contains no such specific prohibition. But we cannot full y 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 c onclude that the proper procedural course to char t for this appeal is to schedule a he aring 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 program s 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 ofte n contain the specific authorizations and prohibitions concerning land use cont ained 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 allowe d within the district in which the development is proposed . . . . Specific permitted uses, condit ional uses, minimum lot sizes, etc, are set forthPage 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 fo r 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 agricultu ral 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 disc ipline. Such review should not supplant or supersede the review of a projec t’s conformance with zoning regula tions; the latter is the domain of appropriate municipal panels . Decisions of the former E nvironmental Board, which had jurisdiction over appeals from the district commi ssions before the Permit Reform Act went into effect on January 31, 2005, provide excellent guid ance on how to properly conduct a review of a proposed project’s conformance with various Ac t 250 criteria (ten in nu mber, 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 “t he 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: Ti mes 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 applic able 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 whethe r “the town plan’s provisions [are] specific or ambiguous.” Id

. Both Lathrop and Moyers provided thorough analysis of the Boar d precedent announced
in Times and Seasons , as well as the other Board decision s cited therein. We need not repeat their thorough analysis here, as we conclude th at the applicable language in the Bristol Town Plan is not mandatory, but merely provide s unambiguous guidance as to how proposedPage 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 us e of the word “primarily” in Town Plan § 5.1.1 indicates that “uses other th an residential and ag ricultural uses may be allowed in the RA2 District,” turned to § 5.1.2 to determine what ot her uses may be allowed in the RA-2 district.
Section 5.1.2 is titled “Commercia l 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. Unfo rtunately, it appears that the District Commission interchanged the Plan’s use of the term “commercial development” with the Regulation’s definition of the spec ific zoning classification for “co mmercial 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 ev ery-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 indus trial or manufacturing uses. Such uses are specifically addressed in the Z oning Regulations, but are not speci fically regulated in the Town Plan. In fact, such uses do not receive the same level of analysis 8 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 co nclusion could be that the Planabsolutely prohibits industrial and manufacturing development in all but the COM-1 and MIX distri cts. 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 Pl an § 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 comme rcial 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 conc luded that under § 5.1.2 only “co mmercial uses,” as that term is defined in the Town’s Zoning Regula tions at § 130, can be afforded zoning approval through the conditional use proces s. District Commission Deci sion at 10. The Commission based this conclusion on its understanding that “i t is the intent of [§ 5.1.2] to ensure the ‘compatibility of commercial and residen tial uses’ within the District.” Id . For the reasons noted above, we decline to adopt a similar conclu sion. 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 define d in § 130 of the To wn 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 To wn Plan does not specifically prohibit such development, but rather recommends that they be controlled through th e conditional use review

process. Because the Bristol Town Plan does not itsel f 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 th e RA-2 district could conform to the Town Plan. Lathrop’s motion for summary judgment must therefore be granted, and th e 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 Co mmission’s decision was based on its answer in the negative to the thres hold 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 La throp’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 signi ficant 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,” an d quarries are included within the definition of “heavy manufacturing or industry.”Page 8

. extend over 54 years; during its life, an es timated 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 afte r reclamation, with 120-foot high walls and steep slopes. Such
facts are material to our determination of wh ether 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 conf ormance with the Town Plan. Such a determination must be left to a trial, wh ere 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 be low 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 ru ling below that Lathrop’s applic ation for the construction and
use of an access road in the MIX di strict conforms to the Town Plan.
We addressed the District Commission ruli ng regarding the confor mance of the proposed gravel pit in the RA-2 district above, in the context of Lathro p’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 issu e presented by Moyers’s moti on, Moyers argues that the District Commission erred in concluding that th e proposed access road conforms to the Town
Plan. The District Commissi on reasoned that, even thoug h “heavy manufacturing should 10 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 la wful uses in the MIX di strict. The District Commission explained that: [T]he only activity occurring within the MI X 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 ot her 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 To wn 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, sinc e it is proposed to serve a quarr y. Moyers points out that the definition of the term ‘quarrying’ in Bylaws § 130 includes “stone extr action operations and any land development incidental thereto.” Moye rs argues that “[t]he access road is ‘land development incidental to’ the extraction of stone a nd 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 de termination 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 th e 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 Moye rs 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 gr ant 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 Lath rop should either be relieved from responding to it or be granted a continuance on th e need to respond to the allegations in the Moyers’s Statement “until the underlying legal issue is determin e[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 La throp’s motion for a c ontinuance as moot. Given the time that has already elapsed si nce 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 qua rries 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 par ties 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 a ttached Notice of Hearing to discuss the scheduling of a trial on the remaining issue of whethe r Lathrop’s specific gravel pit proposal should receive positive findings under Crit erion 10, as it relate s to conformance with the Bristol Town Plan. The undersigned judge w ill preside over the pre-trial conference. The Court requests that the parties be prepared at the pre-trial confer ence to discuss the propriety of consolidating this Act 250 appeal with the rema ining 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 29 th day of November, 2006.

_____________________________________ Thomas S. Durkin, Environmental Judge