Environmental Court’s Decisions Regarding a Sand and Gravel Extraction Operation Are Partially Upheld and Partially Reversed

In In re Application of Lathrop Limited Partnership I, II, III, 2015 VT 49 (March 13, 2015), the Vermont Supreme Court considered in detail various challenges to the Environmental Court (EC)’s decision to approve a sand and gravel extraction operation, and approved some portions of the EC’s order while reversing others.

Issue: Neighbors of Project to establish sand and gravel extraction operation appeal Environmental Court (EC)’s decision to approve Project’s conditional use and Act 250 permit applications.

Holding: Affirmed in part and reversed in part.

More Detail: 1) Affirmed EC’s holding that bylaws allow sand and gravel extraction as a permitted conditional use in any district, including RA-2 and MIX districts; 2) Reversed EC’s holding regarding pits, finding that as a matter of law, the Project would create a “pit” within the meaning of bylaw 526(2). Remanded to address whether the Project otherwise complies with 526(2); 3) Reversed EC’s holding regarding the successive application doctrine, finding that the EC was precluded from hearing and adjudicating the revised permit application or issuing a judgment inconsistent with a previous decision by the Zoning Board of Adjustment; 4) Reversed EC’s holding regarding traffic noise impact, finding that the court erred in not making findings regarding Lmax instantaneous noise levels and in failing to consider the increase in the frequency of high-decibel noise events. Remanded so the EC could make findings regarding the Project’s compliance with Criterion 8 regarding noise levels. 5) Affirmed the EC’s admission of and reliance upon acoustical modeling testimony, finding such testimony to be relevant and reliable under Rule 702 and Daubert; and 6) Reversed the EC’s holding regarding its jurisdiction to review the Project’s Act amended 250 permit application, finding that the EC was required to remand the application to the district commission to consider project changes.