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 Attor ney Mark G. Hall for Appellee Lathrop Limited Partnership

The motion is DENIED.

A group of Neighbors, Russell Rueger et al., (“Neig hbors”) 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 a gain 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 U VM 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 re ason 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 conditio n of the permit approval. The original condition required that Lathrop, at the co nclusion of its extraction project (estimated to last thirty or more years), remove a resulting eart hen 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 w as in error because we are not now in the best position to determine that berm removal is app ropriate and because such removal was not required in order for the Court to approve Lathrop’ s applications. In re Lathrop Ltd. P’ship, Nos. 

## S TATE OF 

## V ERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket Nos. 122-7-04 VtecIn 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. Su per. Ct. Envtl. Div. Feb. 11, 2014) (Durkin, J.). 1
We reasoned that instead, the Town, Lathrop, and al l 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 findi ngs under Act 250 Criterion 9(E) were specifically dependent on berm removal and tha t 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 grant ed for extraction of mineral and earth resources upon approval of “a site rehabilitation p lan which insures that upon completion of the extracting or processing operation the site wil l be left by the applicant in a condition suited for an approved alternative use or development.” 1 0 V.S.A. § 6086(a)(9)(E). In our original October 18, 2013 merits decision the Court recogniz ed that the berm removal would “improve the aesthetics and usability of the site, and [woul d] 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 acc ommodating 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. E nvtl. Div. Oct. 18, 2013) (Durkin, J.). The Court also recognized the following:

Once the site is fully reclaimed, all disturbed are as will have been re-graded, covered with top soil, seeded, and mulched. Some a reas will have had many years to reestablish the natural growth of trees, b ushes, 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 ne arly two hundred trees to establish and grow on top of these berms. These co mponents of Lathrop’s mitigation and reclamation plans will allow the pro ject site to return to a natural setting. The leveling of the project site to an el evation similar to that of the lands where South Street adjoins the property’s nor thern 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 b erm, we have since concluded that imposing such a condition was in error and that Lat hrop need not be required to remove the berm in order to comply with all applicable regulat ions. Instead, we directed that Lathrop must apply to either remove the berm or to be relieved f rom 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 extr action activities would not constitute a pit and therefore would be in conformance with Bylaws § 341(1) was d ependent upon the court-imposed condition that Lathrop remov e a portion of the northern berm. This assertion i s inaccurate. The Court concluded that the “excavate d area, both during the project’s lifetime and upon its reclamation, will not result in [steep slopes]. On ce the project is complete, the project area will r ise one foot of height for every ten feet across. This project wil l result in a land formation that resembles a shall ow 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 regulation s then in effect, and the surrounding uses.

The berm removal condition was not necessary for th e 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 Cou rt 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 suf ficient 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 f or future determination of how and to what extent the berm should be removed in compliance wit h 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, Lat hrop’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 Byl aws 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 Appella nts Russell/Mary Ann Rueger James Allan Dumont (ERN 1948), Attorney for Appella nt Jill Mackler James Allan Dumont (ERN 1948), Attorney for Appella nt John Pandiani James Allan Dumont (ERN 1948), Attorney for Appella nt Naoimi Swier James Allan Dumont (ERN 1948), Attorney for Appella nt Randall Freeman James Allan Dumont (ERN 1948), Attorney for Appella nt John Moyers Andrew M. Jackson (ERN 5580), Attorney for Appellan ts Andrew Jackson Andrew M. Jackson (ERN 5580), Attorney for Appellan t Carolyn Dundon Andrew M. Jackson (ERN 5580), Attorney for Appellan t David Durgin Andrew M. Jackson (ERN 5580), Attorney for Appellan t Pam Fogg Andrew M. Jackson (ERN 5580), Attorney for Appellan t Rhineholdt Lange Andrew M. Jackson (ERN 5580), Attorney for Appellan t Kendra & Tim Gratton Andrew M. Jackson (ERN 5580), Attorney for Appellan t Kevin HarperIn 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 Appellan t Peter Myer Andrew M. Jackson (ERN 5580), Attorney for Appellan t Katie Raycroft Andrew M. Jackson (ERN 5580), Attorney for Appellan t Eric Neal Andrew M. Jackson (ERN 5580), Attorney for Appellan t Slim Pickins Andrew M. Jackson (ERN 5580), Attorney for Appellan t Paul Ralston Joseph S. McLean (ERN 2100), Attorney for Intereste d Person Town of Bristol Mark G. Hall (ERN 2537), Attorney for Appellee Lath rop Limited Partnership Appellant David & Susan Folino James W. Runcie (ERN 2173), Attorney for For Inform ational Purposes Only Donald Morris and James W. Runcie (ERN 2173), Attorney for For Inform ational Purposes Only May Morris William A. Nelson (ERN 4316), Attorney for party 1 Co-counsel

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