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In re Application of Lathrop Limited Partnership I

Supreme Court of Vermont

March 20, 2015

In re Application of Lathrop Limited Partnership I In re Application of Lathrop Limited Partnership II In re Application of Lathrop Limited Partnership III

On Appeal from Superior Court, Environmental Division Thomas S. Durkin, J.

William A. Nelson, Middlebury, and James A. Dumont of Law Office of James A. Dumont, PC, Bristol, for Appellants.

Mark G. Hall of Paul Frank Collins P.C., Burlington, for Appellee.

William H. Sorrell, Attorney General, and Robert F. McDougall, Assistant Attorney General, Montpelier, for Amicus Curiae Vermont Natural Resources Board.

PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Morse, J. (Ret.), Specially Assigned


¶ 1. This appeal arises from a decision of the Superior Court, Environmental Division in three consolidated dockets, all of which carved a very long and circuitous path through the lower tribunals before reaching this Court. The subject of these dockets is the proposal of Lathrop Limited Partnership (“Lathrop”) to establish a sand and gravel extraction operation on a parcel of land in the Town of Bristol, Vermont. Neighbors of the project appeal the environmental court’s decision to approve Lathrop’s conditional use and Act 250 permit applications, and raise six claims of error. They argue that the court erred in: (1) holding that sand and gravel extraction is permitted as a conditional use in the Town’s Rural Agricultural (RA-2) and Mixed Use (MIX) zoning districts; (2) holding that the operation will not create a pit within the meaning of § 526(2) of the Town’s zoning bylaws; (3) concluding that the court could review Lathrop’s 2012 permit application de novo, without regard to the 2004 permit, and that the successive-application doctrine does not apply; (4) relying on one-hour average noise levels and ignoring uncontested evidence of large increases in the number of high-decibel noise events in determining impact of traffic on neighbors; (5) admitting and relying on acoustical-modeling software for predicting noise levels emitted by the project; and (6) concluding that it had jurisdiction to review Lathrop’s amended Act 250 permit application without a remand. We affirm the environmental court’s holdings that sand and gravel extraction is permitted as a conditional use in the RA-2 and MIX districts and that the acoustical-modeling testimony is admissible. We reverse its holdings with respect to the creation of a pit under § 526(2), the successive-application doctrine, the impact of traffic noise on neighbors, and its jurisdiction to review Lathrop’s amended Act 250 permit application.

¶ 2. We start with the factual and procedural background. The three environmental court dockets, Lathrop I, No. 122-7-04, Lathrop II, No. 210-9-08, and Lathrop III, No. 136-8-10, are addressed in turn below. Much of the detailed description of the proposals and administrative and environmental court actions is set forth in the attached Appendix.

Lathrop I

¶ 3. In 2003, [1] Lathrop applied for a permit from the Town of Bristol’s Zoning Board of Adjustment (ZBA) for a proposed sand and gravel extraction operation on a sixty-five acre parcel located on South Street, Rounds Road, and Bristol Notch Road in the Town’s RA-2 and MIX zoning districts. Lathrop proposed to extract up to 60, 000 cubic yards of material per year, resulting in an average of seventeen truckloads each day over 250 days of operation. As proposed, the extraction would take place exclusively within the RA-2 district, with an access road to the pit from South Street at the northern edge of the parcel. The access road would pass through the MIX district, where it would cross over a preexisting, but abandoned, non-conforming gravel pit. At its July 2004 hearing, the ZBA voted to consider the application under § 526 of the Town of Bristol Zoning Bylaws & Regulations (2003) [hereinafter Bylaws], which provides, in pertinent part, that “in any district the removal of sand and gravel for sale... shall be permitted only after conditional use review and approval by the Board of Adjustment.” In reviewing the application, the ZBA found no fewer than nine other gravel pits in the Town, at least three of which were also located in the RA-2 district. The ZBA also considered the character of the area; the noise levels associated with the project; possible increases in truck traffic along public highways; impact on historic and natural sites; impact on the Town’s water supply; and Lathrop’s proposals for a reclamation plan, erosion control, and other related issues.

¶ 4. The ZBA also addressed the nine criteria listed in § 526, to which all projects must conform. Specifically, the ZBA determined that, pursuant to provision (8), the project would not constitute an extension of an existing non-conforming operation; and, pursuant to provision (2), the project would not create a pit within the meaning of § 526 because a pit must have “vertical sides” or “an almost perpendicular slope or pitch.” The ZBA ultimately approved the application with twenty-three additional conditions, which included, among other things, limits on days and hours of operation, scope of extraction, decibel levels, and daily truck trips; mitigation with respect to noise, dust, traffic, and aesthetics; and requirements for access road construction, reclamation, and reporting and recordkeeping. The conditions, which are set forth in greater detail in the Appendix, have become a central focus of this appeal.

¶ 5. Neighbors appealed the ZBA’s decision to the environmental court. The parties filed cross-motions for summary judgment, which the court addressed in In re Rueger, No. 122-7-04 Vtec, slip op. (Vt. Envtl. Ct. May 5, 2005), Environmental/Opinions.aspx, and again in a supplemental decision and order dated June 23, 2005. The court held that the ZBA properly reviewed Lathrop’s application under § 526 of the bylaws and that the access road across the discontinued gravel pit would not constitute an extension of a non-conforming operation. The court found, however, that material facts remained in dispute as to whether, and under what conditions, the proposed sand and gravel operation should be granted a conditional use permit. The parties initially prepared for trial on the remaining issues, but then requested that the court place the appeal on inactive status while Lathrop sought additional permits for the project. This appeal has been termed Lathrop I.

Lathrop II

¶ 6. In 2007, Lathrop submitted a second application to the ZBA for the sand and gravel extraction operation, partly in response to concerns and criticisms about the original proposal. At its September 2008 hearing, the ZBA determined that the new application differed substantially from the original application approved in 2004, citing the changed access point to Rounds Road at the southern end of the parcel, altered phasing scheme for the development, and addition of plantings for screening purposes. The ZBA noted that “no provision of the [bylaws] prohibits filing an application for a zoning permit that differs substantially from a permit previously granted and that remains undeveloped.” Additionally, Lathrop’s second application presented extended hours of operation, an increase in the scope of extraction and average daily truck trips, higher decibel levels at property boundaries, and a narrower road bed for the access road. Although the ZBA found that the second application satisfied nearly all the conditional use requirements, it ultimately denied the permit for Lathrop’s failure to submit a plan for refilling the resulting pit, as required under § 526(2).

¶ 7. Lathrop appealed the ZBA’s denial of its 2007 application to the environmental court. Several neighbors filed a motion to dismiss on various grounds, including that the application was not ripe for review and that it asked for an advisory opinion. They primarily argued that the new proposal was a successive application that did not meet the requirements of the successive-application doctrine. The court denied neighbors’ motion, holding in pertinent part that the successive-application doctrine does not govern because the second application was not a revised proposal submitted as a consequence of the ZBA denying the original application. Neighbors then moved for summary judgment on the issue of whether the project will create a pit within the meaning of the bylaws. The Town submitted a memorandum in support of neighbors’ motion for summary judgment, concurring with their argument that Lathrop’s operation will create a pit and also asserting that Lathrop failed to present its plan for a berm removal to the ZBA and therefore should be barred from doing so on appeal. In In re Lathrop Limited Partnership II, No. 210-9-08 Vtec, slip op. (Vt. Envtl. Ct. Aug. 14, 2009),, the court denied neighbors’ motion for summary judgment, reasoning that the question of whether the reclaimed extraction area is a pit under § 526(2) is highly fact-specific. Id. at 3. The court also concluded that its de novo review allows it to consider project revisions so long as the revisions do not require a new application. The parties then requested to stay this and the Lathrop I appeals pending completion of the Act 250 proceedings.

Lathrop III

¶ 8. In 2006, Lathrop filed its first Act 250 permit application with the District No. 9 Environmental Commission, while the environmental court was considering Lathrop I. In the 2006 application, Lathrop requested that the district commission consider only whether the project conforms with the Bristol Town Plan-more specifically, whether the town plan prohibits sand and gravel extraction in the MIX and RA-2 districts. The district commission concluded that the project conflicted with the town plan, specifically because the plan prohibits the creation of pits, and denied the application. Lathrop appealed to the environmental court. After a series of motions from the parties, the court granted Lathrop’s motion to remand the application to the district commission for consideration under all relevant Act 250 criteria. [2]

¶ 9. In July 2010, on remand, the district commission found that Lathrop’s application conformed with criteria 1 (air pollution), 1(B) (waste disposal), 1(G) (impact on wetlands), 2 (sufficiency of water supply for dust suppression), 3 (potential impact on neighboring wells), 8(A) (impact on wildlife), 9(A) (impact of growth), 9(B) (impact upon primary agricultural soils), 9(C) (impacts on forests and secondary agricultural soils), and 9(L) (rural growth areas). The district commission also found that Lathrop failed to submit evidence sufficient to carry its burden with respect to criteria 8 (aesthetics, noise, visual impacts, odors), 5 and 9(K) (transportation and pedestrian safety, public investment), 9(E) (impacts from pit operations, sufficiency of reclamation plan, blasting impacts), and 10 (town and regional plan). Lathrop appealed to the environmental court the district commission’s determination on criteria 5, 8, 9(E), 9(K), and 10 and moved to consolidate the three dockets. The court granted Lathrop’s motion to consolidate and moved Lathrop I and Lathrop II out of inactive status.

Consolidated Appeal

¶ 10. The three consolidated dockets proceeded to trial in the environmental court. Prior to trial, neighbors filed several motions. The court addressed three of these motions, all relevant to this appeal, in a 2011 order. First, the court denied neighbors’ motion to exclude evidence of the berm removal, concluding that the proposal was merely a minor application revision allowable under the court’s de novo review. Second, the court denied neighbors’ motion for partial summary judgment on the issue of Lathrop’s conflicting permit applications. Neighbors argued that Lathrop should be prohibited from presenting a second application after its first application already was approved conditionally by the ZBA. The court concluded that nothing prevents applicants from submitting conflicting proposals for the same project and stated that “[t]he only restriction to submitting another application arises after a permit application has been denied: in that instance, an applicant is prohibited from submitting an application that is substantially similar to the one that was denied.” Finally, the court denied neighbors’ motion to reconsider its 2009 decision under Lathrop II, where it denied summary judgment on the issue of whether § 526 allows sand and gravel extraction in the RA-2 and MIX districts, because neighbors’ motion was filed beyond the ten-day limit specified in Vermont Rule of Environmental Court Proceedings 5(b) and neighbors did not submit any new information or argument that would justify reconsideration.

¶ 11. Neighbors also moved for the court to rule as inadmissible testimony based on acoustical modeling from Lathrop’s expert witness on noise impacts, arguing that it violated Vermont Rule of Evidence 702 and the standard for admissibility of expert testimony, as outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The court decided to allow the testimony at trial and make a post-trial determination as to whether it should remain part of the record. The court ultimately denied neighbors’ motion and admitted the testimony. We address this issue in the merits below.

¶ 12. The environmental court considered several issues preserved by the parties on each of the three dockets. As relevant to this appeal, it held that § 526 of the bylaws permits sand and gravel extraction operations in the RA-2 and MIX districts; Lathrop’s project will not create a pit within the meaning of § 526(2); and Lathrop’s application adequately addresses impacts from noise, as required under both the Town’s bylaws and the Act 250 criteria. Neighbors appealed. With regard to the noise impacts, neighbors specifically appeal the court’s reliance on one-hour average noise levels to determine impacts and the court’s decision to admit evidence based on acoustical modeling. In addition to these three issues, neighbors also appeal the court’s decision to review Lathrop’s conflicting conditional use applications and the change in access point from Rounds Road to South Street, which Lathrop presented for the first time at trial.


¶ 13. The first issue, and a threshold matter, is whether the bylaws allow sand and gravel extraction in the RA-2 and MIX districts. Before proceeding to the parties’ arguments, we set forth the relevant bylaws. The primary bylaw at issue is § 526, which regulates the extraction of soil, sand, and gravel. Section 526 states, in pertinent part:

In accordance with [24 V.S.A. § 4407(8)], in any district the removal of sand or gravel for sale, except when incidental to construction of a structure on the same premises, shall be permitted only after conditional use review and approval by the Board of Adjustment.

Bylaws § 526. [3] The bylaw goes on to require conformity with nine specific conditions and to allow for the attachment of additional conditions as the ZBA deems necessary to protect the safety and general welfare of the public. Additional criteria for conditional use review are laid out in § 341, including requirements that the proposed uses shall not result in an undue adverse effect on community facilities, the character of the area, traffic, and other bylaws and ordinances in effect.

¶ 14. Sand and gravel extraction is considered “quarrying” in § 130, the definition section of the bylaws. Quarrying, in turn, is listed as a form of “heavy manufacturing or industry, ” which is defined as “[t]he processing, assembly, distribution, or packaging of natural or man-made products where such activity results in substantial off-site impacts or all such activity and storage of raw or finished products is not enclosed inside a building or screened from the abutting properties and public rights-of-way.” Id. § 130. Conversely, “light manufacturing or industry” encompasses activities that do not result in substantial off-site impacts and are enclosed inside a building or otherwise screened from adjacent properties and rights-of-way. Id.

¶ 15. Sections 1000 through 1013 provide specific regulations for each individual district, including a statement of objectives and guidelines and an itemized list of permitted uses. No district expressly permits sand and gravel extraction or any form of quarrying as either an authorized or conditional use. Although several districts permit as a conditional use “light manufacturing, ” only one district, the Commercial District (C-1), § 1005, broadly permits “industrial use, ” which can be interpreted to encompass both heavy and light manufacturing. Similarly, no district expressly prohibits sand and gravel extraction or quarrying in its statement of objectives and guidelines.

¶ 16. With respect to the RA-2, § 1002, and MIX, § 1012, districts, neither lists as by-right or conditional uses sand and gravel extraction, quarrying, heavy manufacturing, or industry. The RA-2 district does not permit light manufacturing and, as noted in the statement of objectives, “is intended to be primarily residential in character.” Id. § 1002. The MIX district does permit light manufacturing as a conditional use, but expressly prohibits heavy manufacturing in its statement of objectives. Id. § 1012.

¶ 17. In addition to the district-by-district enumeration of permitted uses, § 546 provides a blanket restriction on several specific uses within certain zoning districts, including the MIX district. Within this list of prohibited uses is “unenclosed manufacturing or processing of goods or materials, ” which aligns with the definition of “heavy manufacturing.” Id. § 546. The bylaw does not specifically list “quarrying” or “sand and gravel extraction.”

¶ 18. With this regulatory background in mind, we turn to the parties’ arguments and interpretations of the bylaws. Neighbors argue that the ZBA’s and environmental court’s interpretation allowing sand and gravel extraction in any zoning district creates internal inconsistencies within the bylaws-that is, § 526 would expressly allow sand and gravel extraction while other bylaws prohibit this use. They reason that because sand and gravel extraction is defined as a form of quarrying, which in turn is defined as heavy manufacturing-and heavy manufacturing is prohibited in virtually all districts-sand and gravel extraction must be prohibited in these same districts. Specifically, they argue that because neither the RA-2 nor the MIX district expressly allows heavy manufacturing, sand and gravel extraction must be prohibited in these districts. Under neighbors’ theory, we should read § 526 to mean that “in any district zoned to allow it the removal of sand or gravel for sale... shall be permitted only after conditional use review and approval by the Board of Adjustment.” This, according to neighbors, is the only reading that will not produce absurd results.

¶ 19. Lathrop, on the other hand, urges us to look at the plain language of § 526, which, it contends, expressly allows sand and gravel extraction in all districts, subject only to conditional use approval. Lathrop’s theory is that because no other provision expressly prohibits sand and gravel extraction, but merely heavy industry or unenclosed manufacturing, the more specific language of § 526 should trump the more general language found in the other bylaws. Lathrop also argues that any ambiguity should be resolved in favor of the landowner and that because the ZBA twice stated that § 526 allows sand and gravel extraction we should sustain its interpretation. Both the ZBA and the environmental court agreed with Lathrop and concluded that § 526 of the bylaws allows sand and gravel operations in any district, including the RA-2 and MIX districts, subject only to conditional use review.

¶ 20. The fundamental difference between the two interpretations advanced by the parties is that neighbors’ reading creates a necessary condition, while Lathrop’s reading, and the reading adopted by the ZBA and environmental court, creates a sufficient condition. The ambiguous phrase at issue in § 526 is “in any district.” Neighbors’ theory asks that we read “in any district” to mean in any district where sand and gravel extraction is permitted. Thus, meeting the requirements of § 526 is a necessary, but not sufficient, condition of approval; the use still must be expressly permitted in the relevant district. Lathrop’s theory asks that we read “in any district” without restriction. Thus, meeting the requirements of § 526 is sufficient to meet the requirements of conditional use approval because sand and gravel extraction is conditionally permitted in any district.

¶ 21. Our decision is greatly affected by the standard of review. Although we review the environmental court’s legal conclusions de novo, In re Grp. Five Inv. CU Permit, 2014 VT 14, ¶ 4, ___ Vt. ___, 93 A.3d 111, we will uphold those conclusions if “they are reasonably supported by the findings.” In re Champlain Oil Co. Conditional Use Application, 2014 VT 19, ¶ 2, ___ Vt. ___, 93 A.3d 139. We will defer to the court’s factual findings and uphold them “unless taking them in the light most favorable to the prevailing party, they are clearly erroneous.” Id. We also defer to the environmental court’s construction of a zoning ordinance “unless it is clearly erroneous, arbitrary, or capricious, ” In re Beliveau NOV, 2013 VT 41, ¶ 8, 194 Vt. 1, 72 A.3d 918, and to a municipality’s interpretation of its own ordinance if it is reasonable and has been applied consistently. In re Champlain Coll. Maple St. Dormitory, 2009 VT 55, ¶ 10, 186 Vt. 313, 980 A.2d 273.

¶ 22. This case involves competing claims of statutory interpretation, each relying on a different canon of construction. We interpret zoning ordinances according to the principles of statutory construction, In re Laberge Moto-Cross Track, 2011 VT 1, ¶ 8, 189 Vt. 578, 15 A.3d 590 (mem.), and adopt an interpretation that implements the legislative purpose. In re Grp. Five Inv., 2014 VT 14, ¶ 23. As usual, we start with the plain language and will enforce it according to its terms if it is unambiguous. Evans v. Cote, 2014 VT 104, ¶ 13, ___ Vt. ___, ___ A.3d ___. We conclude that the plain language of § 526 is ambiguous and therefore cannot interpret the bylaw on the plain language alone. [4]

¶ 23. Neighbors base their interpretation of § 526 on the text of 24 V.S.A. § 4407(2) (repealed 2005), [5] from which part of the language of § 526 was derived. They cite Drumheller v. Shelburne Zoning Board of Adjustment, 155 Vt. 524, 586 A.2d 1150 (1990), for the proposition that when the language of a regulation closely tracks the language of an enabling statute, the regulation must be construed in the same way as the statute. Id. at 529, 586 A.2d at 1152. Consequently, neighbors reason, because the enabling statute here confers on the municipality only the authority to allow conditional uses in any zoning district, and does not state that such uses may be undertaken in all districts so long as the applicant satisfies the relevant criteria, then § 526 cannot be read any more broadly to allow sand and gravel extraction in any district. [6]

¶ 24. We are not persuaded by neighbors’ argument. They overextend our statement in Drumheller to mean that any time regulatory language is derived from statutory language it must be read in precisely the same manner. The question in Drumheller was one of defining an ambiguous term: “developed.” Because the language in the ordinance was identical to that of the enabling statute, using the term “developed” in the same manner, we inferred that the drafters of the bylaw intended the term to have the same meaning as in the statute. Id. We then looked to the related definition section in the statute to discern the term’s meaning. Id. Here, however, we are not comparing identical language. While the language of § 526 indeed has been derived from the statute, the nature of the language as transposed from the statute to the bylaw has been altered from the general-municipalities may permit conditional uses-to the specific-sand and gravel extraction requires a conditional use permit. We cannot conclude here as we did in Drumheller that the bylaw regulating sand and gravel extraction must be read in precisely the same manner as the enabling statute. [7]

¶ 25. The fact that myriad other towns have adopted the same pro forma language with respect to sand and gravel extraction, all tailored somewhat differently, lends further support for our conclusion. [8] If we were to interpret every such bylaw in the same manner as the statute, we would negate the more individualized language incorporated by the towns into these bylaws. [9]

¶ 26. Nor are we persuaded by neighbors’ other related arguments. They argue that it makes no sense for the Town to single out sand and gravel extraction for special treatment. While it is not for us to judge the wisdom of the drafters in choosing to incorporate this bylaw, we do note that the Town contains several sand and gravel extraction operations, as found by the ZBA when reviewing Lathrop’s first application. The proliferation of these operations may suggest that the region is well-suited for this type of operation, or that the Town itself finds a strong demand for sand and gravel. Whatever the rationale, it is reasonable for the Town to create an exception for this type of activity. And the fact that so many other towns have followed suit with similar bylaw provisions suggests a larger trend toward favoring sand and gravel operations throughout the state. Moreover, as we observed above, supra, ¶ 23 n.6, the Legislature treated soil, sand, and gravel removal separately from other extraction activities when it passed 24 V.S.A. § 4407(8).

¶ 27. In another related argument, neighbors predict that the ZBA’s and environmental court’s construction of § 526 will result in sand and gravel extraction in districts reserved for residential use, the historic downtown, or other areas not suitable for intensive industrial operations, thereby interfering with the use and enjoyment of those neighboring properties impacted by the operations. They cite to the seminal zoning case Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), to support their contention that construing zoning regulations narrowly in favor of the landowner cuts both ways. Neighbors liken sand and gravel operations in the Town’s many non-industrial districts to the notorious “pig in a parlor” from Euclid -the right thing in the wrong place that creates a nuisance for the surrounding properties. Id. at 388.

¶ 28. We emphasize that just because the bylaws permit sand and gravel extraction in any district does not mean that such an operation will end up in the middle of a high-density residential or commercial district, a sensitive conservation district, or on any other parcel of land where it is incompatible with surrounding uses. Such is the nature of conditional use review to ensure that the uses are appropriately sited and conditioned to harmonize with their surroundings. Not only does § 4414(3)(A) provide baseline standards for review, including that the proposed use “shall not result in an undue adverse effect on... [t]he character of the area affected, ” 24 V.S.A. § 4414(3)(A)(ii), but § 341 of the bylaws ensures, among other things, a “harmonious relationship between proposed uses and existing adjacent uses.” Moreover, the high-density commercial and residential districts invariably offer restrictive lot sizes with strict setback requirements. See Bylaws §§ 1009-1013.

¶ 29. We do find that a number of statutory construction principles aid Lathrop. First, because zoning ordinances “are in derogation of common law property rights, ” they must be construed narrowly in favor of the property owner, In re Champlain Oil Co., 2014 VT 19, ¶ 2, and “any ambiguity is resolved in favor of the landowner.” In re Tyler Self-Storage Unit Permits, 2011 VT 66, ¶ 16, 190 Vt. 132, 27 A.3d 1071 (quotation omitted). Neighbors misunderstand the rationale behind this rule. They reason that it equally should favor the rights of neighboring property owners, but their reliance on Euclid here undercuts their argument. Euclid concerned a municipality’s power to regulate land use within the constraints of the United States Constitution’s substantive due process protections. The United States Supreme Court upheld zoning regulations, recognizing that a municipality may have a rational reason for separating incompatible uses, and set the precedent that zoning regulations are presumptively valid. Euclid, 272 U.S. at 395. Ambiguous zoning regulations, however, risk arbitrary and capricious exercise of the police power in violation of due process. 1 A. Rathkopf et al., The Law of Zoning and Planning ยง 2:3 (4th ed. 2014). The strict construction rule serves ...

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