Lathrop Ltd Partnership ( 2014 )


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  •                                     STATE OF VERMONT
    SUPERIOR COURT                                                     ENVIRONMENTAL DIVISION
    Vermont Unit                                                        Docket Nos. 122-7-04 Vtec
    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.
    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
    

Document Info

Docket Number: 122-7-04 Vtec

Filed Date: 4/17/2014

Precedential Status: Precedential

Modified Date: 4/24/2018