210-9-08 Vtec 

 136-8-10 Vtec 

Lathrop Limited Partnership Coordinated Cases 

ENTRY REGARDING MOTION

 

Title: Motion to Amend/Alter Amended Judgment 

Filer: Russell/Mary Ann Rueger, et al. 

Attorney: James Allan Dumont 

Filed Date: February 19, 2014 

Response in opposition filed on 03/10/2014 by Attorney Mark G. Hall for Appellee Lathrop 

Limited Partnership 

The motion is DENIED. 

A group of Neighbors, Russell Rueger et al., (“Neighbors”) ask the Court to alter or 

amend our amended final merits decision related to the coordinated municipal and Act 250 

permit applications of Lathrop Limited Partnership (“Lathrop”). The Court amended its October 

18, 2013 final merits decision on February 11, 2014 in response to the Town of Bristol’s motion 

to alter or amend. Neighbors assert that we must again alter our decision to rectify what they 

argue is a manifest error of law that requires the Court to reverse our approval of Lathrop’s Act 

250 and municipal permit applications. See In re UVM Certificate of Appropriateness, No. 90-7-

12 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Mar. 19, 2013) (Walsh, J.) (recognizing correction 

of manifest errors of law or fact as a principal reason for granting a Rule 59(e) motion to alter or 

amend a final judgment). For the reasons explained below, we decline to amend our decision 

and judgment order further and therefore DENY Neighbors’ additional motion. 

The Court’s February 11 decision changed a condition of the permit approval. The 

original condition required that Lathrop, at the conclusion of its extraction project (estimated to 

last thirty or more years), remove a resulting earthen berm along the border of its project and 

South Street as part of its reclamation plan. The Court recognized that imposing a condition 

now that the berm be removed at that distant time was in error because we are not now in the 

best position to determine that berm removal is appropriate and because such removal was not 

required in order for the Court to approve Lathrop’s applications. In re Lathrop Ltd. P’ship, Nos. 

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Vermont Unit Docket Nos. 122-7-04 Vtec
In re Lathrop Ltd. P’ship., Nos.122-7-04, 210-9-08, and 136-8-10 Vtec (E.O. on motion to alter) (04-17-14) Pg. 2 of 4.

122-7-04 and 210-9-08 Vtec, slip op. at 1–2 (Vt. Super. Ct. Envtl. Div. Feb. 11, 2014) (Durkin, J.).1 

We reasoned that instead, the Town, Lathrop, and all interested parties should consider at the 

conclusion of Lathrop’s extraction whether the berm should then be removed. 

Neighbors now argue that the Court’s positive findings under Act 250 Criterion 9(E) 

were specifically dependent on berm removal and that absent this condition, Lathrop’s project 

does not comply with Criterion 9(E). Neighbors are mistaken in this regard. 

Criterion 9(E) requires that a permit only be granted for extraction of mineral and earth 

resources upon approval of “a site rehabilitation plan which insures that upon completion of 

the extracting or processing operation the site will be left by the applicant in a condition suited 

for an approved alternative use or development.” 10 V.S.A. § 6086(a)(9)(E). In our original 

October 18, 2013 merits decision the Court recognized that the berm removal would “improve 

the aesthetics and usability of the site, and [would] allow the reclaimed project site to be more 

aligned with the lay of adjoining lands” and that “[a] final site that has a larger area open to 

South Street would provide a more appealing and accommodating context for the finished site, 

particularly for reclamation.” In re Lathrop Ltd. P’ship, Nos. 122-7-04 Vtec, 210-9-08 Vtec, and 

136-8-10 Vtec, slip op. at 28, 58 (Vt. Super. Ct. Envtl. Div. Oct. 18, 2013) (Durkin, J.). The Court 

also recognized the following: 

Once the site is fully reclaimed, all disturbed areas will have been re-graded, 

covered with top soil, seeded, and mulched. Some areas will have had many 

years to reestablish the natural growth of trees, bushes, and ground cover. The 

earthen berms that Lathrop proposes to establish on its northern border during 

the initial phases will have had decades for the nearly two hundred trees to 

establish and grow on top of these berms. These components of Lathrop’s 

mitigation and reclamation plans will allow the project site to return to a natural 

setting. The leveling of the project site to an elevation similar to that of the 

lands where South Street adjoins the property’s northern border will help 

accommodate future development. 

Id. at 58. Although, as mentioned in our February 11, 2014 decision, the Court did specifically 

condition approval on removal of the South Street berm, we have since concluded that 

imposing such a condition was in error and that Lathrop need not be required to remove the 

berm in order to comply with all applicable regulations. Instead, we directed that Lathrop must 

apply to either remove the berm or to be relieved from any obligation to do so upon 

completion of the project. Thus, whichever option provides the most effective reclamation of 

 

1

 In their latest motion, Neighbors assert that the Court’s determination that Lathrop’s proposed extraction 

activities would not constitute a pit and therefore would be in conformance with Bylaws § 341(1) was dependent 

upon the court-imposed condition that Lathrop remove a portion of the northern berm. This assertion is 

inaccurate. The Court concluded that the “excavated area, both during the project’s lifetime and upon its 

reclamation, will not result in [steep slopes]. Once the project is complete, the project area will rise one foot of 

height for every ten feet across. This project will result in a land formation that resembles a shallow saucer, as 

asserted by Lathrop” and not a “pit,” as defined by the Bylaws. In re Lathrop Ltd. P’ship, Nos. 122-7-04 Vtec, 210-

9-08 Vtec, and 136-8-10 Vtec, slip op. at 64. 
In re Lathrop Ltd. P’ship., Nos.122-7-04, 210-9-08, and 136-8-10 Vtec (E.O. on motion to alter) (04-17-14) Pg. 3 of 4.

the property will be determined at that time, based on the then-existing circumstances, options 

for reclamation, the municipal and State regulations then in effect, and the surrounding uses. 

The berm removal condition was not necessary for the Court considering conformance 

with Criterion 9(E) and was therefore made in error. In hindsight, by considering Lathrop’s 

berm removal proposal under Criterion 9(E), the Court imposed an aesthetic component where 

none exists in the applicable statute. See 10 V.S.A. § 6086(a)(9)(E). 

In our original merits decision, we recognized the benefits of the progressive 

reclamation plans and noted that these plans would leave the site in a natural setting suitable 

for development. That determination provided a sufficient foundation for our legal conclusion 

that the project as proposed conformed to Criterion 9(E). Furthermore, in our February 11 

decision, granting the Town’s request for amendment, we did not simply remove the berm 

condition all together, but amended it to provide for future determination of how and to what 

extent the berm should be removed in compliance with all applicable regulations, or for relief 

from the obligation to do so. 

To the extent it was not clear in our February 11, 2014 decision, we specifically state 

here that, with the amended condition in place, Lathrop’s applications comply with all State 

and local regulations considered in our October 18, 2013 merits decision. Because the 

amendment of the condition did not change our legal determinations with regard to Criterion 

9(E) and § 341(1) of the Town of Bristol Zoning Bylaws and Regulations, we find no error of law 

or fact in our amended decision that would require further alteration or amendment. For these 

reasons, the Neighbors’ motion to alter or amend is DENIED. 

Electronically signed on April 17, 2014 at 01:58 PM pursuant to V.R.E.F. 7(d). 

________________________________ 

Thomas S. Durkin, Judge 

Environmental Division 

Notifications: 

James Allan Dumont (ERN 1948), Attorney for Appellants Russell/Mary Ann Rueger 

James Allan Dumont (ERN 1948), Attorney for Appellant Jill Mackler 

James Allan Dumont (ERN 1948), Attorney for Appellant John Pandiani 

James Allan Dumont (ERN 1948), Attorney for Appellant Naoimi Swier 

James Allan Dumont (ERN 1948), Attorney for Appellant Randall Freeman 

James Allan Dumont (ERN 1948), Attorney for Appellant John Moyers 

Andrew M. Jackson (ERN 5580), Attorney for Appellants Andrew Jackson 

Andrew M. Jackson (ERN 5580), Attorney for Appellant Carolyn Dundon 

Andrew M. Jackson (ERN 5580), Attorney for Appellant David Durgin 

Andrew M. Jackson (ERN 5580), Attorney for Appellant Pam Fogg 

Andrew M. Jackson (ERN 5580), Attorney for Appellant Rhineholdt Lange 

Andrew M. Jackson (ERN 5580), Attorney for Appellant Kendra & Tim Gratton 

Andrew M. Jackson (ERN 5580), Attorney for Appellant Kevin Harper 
In re Lathrop Ltd. P’ship., Nos.122-7-04, 210-9-08, and 136-8-10 Vtec (E.O. on motion to alter) (04-17-14) Pg. 4 of 4.

Andrew M. Jackson (ERN 5580), Attorney for Appellant Peter Myer 

Andrew M. Jackson (ERN 5580), Attorney for Appellant Katie Raycroft 

Andrew M. Jackson (ERN 5580), Attorney for Appellant Eric Neal 

Andrew M. Jackson (ERN 5580), Attorney for Appellant Slim Pickins 

Andrew M. Jackson (ERN 5580), Attorney for Appellant Paul Ralston 

Joseph S. McLean (ERN 2100), Attorney for Interested Person Town of Bristol 

Mark G. Hall (ERN 2537), Attorney for Appellee Lathrop Limited Partnership 

Appellant David & Susan Folino 

James W. Runcie (ERN 2173), Attorney for For Informational Purposes Only Donald Morris and 

James W. Runcie (ERN 2173), Attorney for For Informational Purposes Only May Morris 

William A. Nelson (ERN 4316), Attorney for party 1 Co-counsel 

rkane