                                      State of Vermont
                           Superior Court - Environmental Division

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                   ENTRY REGARDING MOTION
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In re Lathrop Limited Partnership I                                Docket No. 122-7-04 Vtec
(Appeal of Rueger et al of Bristol DRB Approval)

In re Lathrop Limited Partnership II                               Docket No. 210-9-08 Vtec
(Appeal of Lathrop Limited Partnership of DRB Denial)

In re Lathrop Limited Partnership Act 250 Permit                   Docket No. 136-8-10 Vtec
(Appeal of Lathrop Limited Partnership of Act 250 Denial)

Title: Motion for Declaration that Automatic Stay Applies, and if it does not, Motion for Stay
Pending Appeal (Filing No. 21)
Filed: November 14, 2013
Filed By: Appellants/Interested Persons Russell Rueger et al.
Response in Opposition filed on 12/5/13 by Applicant Lathrop Limited Partnership
Supplemental Response filed on 02/06/14 by Interested Persons Rueger et al.


  ___ Granted                                   X Denied                             ___ Other

        A group of neighbors (“Neighbors”) to Lathrop Limited Partnership’s proposed gravel
extraction operation ask this Court to declare that our October 18, 2013 merits decision and
judgment order are automatically stayed pending Neighbors’ appeal to the Vermont Supreme
Court. In the alternative, Neighbors ask for a stay pursuant to our discretionary power. 10
V.S.A. § 8504(f).
                           Motion for Declaration of Automatic Stay
        We first address Neighbors’ argument that the October 18 decision is automatically
stayed pending appeal. In 2007, the Vermont Supreme Court held that 10 V.S.A. § 8504(f),
rather than Vermont Rule of Civil Procedure 62, governs automatic stays in appeals from the
Environmental Division. In re Route 103 Quarry, 2007 VT 66, ¶ 3, 182 Vt. 569. Neighbors argue
that Route 103 Quarry does not control because Vermont Rule for Environmental Court
Proceedings 5(k) has superseded that statute. We decline to adopt Neighbors’ reasoning.
        V.R.E.C.P. 5(k) provides that Vermont Rules of Appellate Procedure apply to appeals
from the Environmental Division to the Vermont Supreme Court. Rather than establishing a
different rule for automatic stays, however, Vermont Rule of Appellate Procedure 8 refers to
V.R.C.P. 62. Thus the question is still whether Rule 62 acts to automatically stay a decision of
the Environmental Division pending an appeal to the Supreme Court. Route 103 Quarry,
decided while V.R.E.C.P. 5(k) was in effect, answered this question in the negative. Although
the argument proposed by Neighbors was not raised in that case, we conclude that if the
Lathrop Limited Partnership Cases, Nos. 122-7-04 Vtec, 210-9-08 Vtec, and 136-8-10 Vtec (02-11-14)   Pg. 2 of 4.
(Entry Order on Motion for Stay)

Supreme Court intended its promulgation of V.R.E.C.P. 5(k) to supersede the plain language of
§ 8504(f), it would have stated so in that decision. In reaching this conclusion, we note that
Neighbors’ argument seems circuitous, since our Rule 5(k) does not establish the automatic stay
that they seek. To arrive at the Rule provision that most closely speaks to an automatic stay,
Neighbors’ argument travels from our Rule 5(k), then to V.R.A.P. 8, and then to V.R.C.P. 62(d).
That Civil Rule does not speak directly to automatic stays when appeals are taken from
Environmental Division determinations.
        Judgments from the Civil Division that are subject to an automatic stay are often
monetary judgments. In fact, V.R.C.P. 62(d) notes that automatic stays do not apply to
injunctive (i.e.: non-monetary) relief. Here, the automatic stay that Neighbors request is not of a
monetary judgment, but rather Lathrop’s legal authority to develop property, subject to certain
permits and conditions. We conclude that our judgment is more akin to the non-monetary
judgments that the Supreme Court specifically chose not to be subject to an automatic stay
under V.R.C.P. 62(d). We therefore conclude that an automatic stay under that Rule does not
apply to our merits decision and judgment order.
       Thus, because the Supreme Court’s binding precedent dictates that stays of
Environmental Division decisions are governed by § 8504(f) and because this judgment is not
automatically stayed by applicable statute or Rule, we must DENY Neighbors’ motion for a
declaration that an automatic stay applies.
                                    Motion for Stay Pending Appeal
        Neighbors also ask the Court to exercise its discretionary power under 10 V.S.A.
§ 8504(f)(2) and stay our merits decision and judgment order pending appeal. As the Supreme
Court noted in Route 103 Quarry, absent an automatic stay, this Court “must examine the
traditional criteria, and other relevant factors, in determining whether to grant or deny the
stay.” 2007 VT 66, ¶ 6 (citing Gilbert v. Gilbert, 163 Vt. 549, 560 (1995) (listing stay criteria)).
“To prevail on a motion for stay, the moving party must demonstrate: (1) a strong likelihood of
success on the merits; (2) irreparable injury if the stay is not granted; (3) the stay will not
substantially harm other parties; and (4) the stay will serve the best interests of the public.”
Gilbert, 163 Vt. at 560.
        For the purposes of this analysis we find that Neighbors have met the minimum burden
required to show a likelihood of success on the merits. As this Court has recognized before,
when considering a motion for stay, “we bring the ‘likelihood of success on the merits’ standard
into play as a test only when the movant’s appeal ‘is so tenuous that its invalidity is suggested
on the face of the matter, or the [appeal] smacks of bad faith or frivolousness.’” In re Howard
Center Renovation Permit, No. 12-1-13 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Apr. 12,
2013) (Walsh, J.) (citing Petition of Allied Power & Light Co., 132 Vt. 554, 556 (1974)). While we
do not agree with Neighbors’ assertion that likelihood of reversal on appeal is extraordinarily
high, or even strong, we do not pretend to be assured that our determinations will withstand all
of Neighbors’ challenges.1 We therefore find that this element has been met for the purposes of
determining whether a stay is appropriate.

1  Neighbors’ most recent filing also supports our approach to this element of the discretionary stay
analysis, although we disagree with Neighbors’ assessment of the Supreme Court’s recent decision in In
re Chaves, 2014 VT 5, available at http://info.libraries.vermont.gov/supct/current/op2013-069.html. In
fact, the circumstances surrounding the developer’s change of the location for the access road in Chaves
Lathrop Limited Partnership Cases, Nos. 122-7-04 Vtec, 210-9-08 Vtec, and 136-8-10 Vtec (02-11-14)   Pg. 3 of 4.
(Entry Order on Motion for Stay)

         Neighbors, however, have failed to establish that they will suffer irreparable injury if the
stay is not granted. Regarding this factor, we consider whether the injuries the movant alleges
are likely and whether they would have an adequate remedy at law for those injuries. In re
Allen Road Land Co., Nos. 62-4-11 Vtec and 63-4-11 Vtec, slip op. at 6 (Vt. Super. Ct. Envtl. Div.
July 6, 2011) (Durkin, J.) Neighbors argue that noise and dust caused by the initial phases of
Lathrop’s development and an increase in truck traffic will irreparably injure their interests.
However, they have failed to show either that these injuries are likely to occur or that, should
they occur, the Neighbors would have no adequate remedy at law if they succeed on appeal.
Neighbors allege no lasting and irreparable damages caused by the implementation of the
initial stages of the proposed development, much of which includes improvements to the public
roadway (South Street) and initial site preparation work. We conclude that any diminution in
Neighbors’ use and enjoyment of their property during these initial site improvements, should
their appeal be successful, could be remedied by money damages, if warranted.
        We also note that any action Lathrop may take on the permits ordered in our decision is
at its own substantial risk. If Neighbors’ appeal is successful, Lathrop could be required to
remediate the site following any such work. Any noise, dust, and truck traffic would also come
to an end. Therefore, Neighbors have failed to establish that they will suffer irreparable injury if
a stay is not granted.
        The third element also fails to support granting a stay. The work that Lathrop proposes
to undertake during the appeal generally includes construction of South Street improvements,
remediation of the former unpermitted gravel pit, construction of the access road, and possibly
gravel extraction in the “woods section,” where impacts on Neighbors will be minimal.
Lathrop argues that it will be much more convenient to undertake the initial roadwork while
the South Street Bridge remains closed and under repair, thereby reducing traffic on South
Street. While missing this opportunity may not rise to the level of “substantial harm” for
Lathrop, we do recognize that the prudence of undertaking the South Street improvements
while traffic is minimized weighs against granting a stay.
        Lathrop represents that much of the initial work, specifically the South Street
improvements and the remediation, will be beneficial to the public even if the project is
ultimately denied on appeal. Neighbors do not counter these representations. Instead they
argue that the public interest is served by granting a stay because doing so upholds the process
of law. Apart from reiterating what they view to be negative impacts of the project, none of
which are irreversible, Neighbors argue that because our decision incorrectly applied the
relevant laws and further review will be necessary after their successful appeal, a stay is in the
public interest. Presumably every appellant seeks to uphold the law by challenging what they
view to be incorrect legal conclusions by a trial court. We conclude that this broad “public
interest” is insufficient to grant a stay.
        Because Neighbors cannot establish all four elements required for the granting of a
discretionary stay, we DENY Neighbors’ motion for a stay pending appeal under 10 V.S.A.
§ 8504(f)(2).



is quite similar to the revisions made to the Lathrop project plans. In both cases, the interested persons
concerned about each proposed project received prior notice of the access road relocation and an
opportunity to be heard at trial.
Lathrop Limited Partnership Cases, Nos. 122-7-04 Vtec, 210-9-08 Vtec, and 136-8-10 Vtec (02-11-14)      Pg. 4 of 4.
(Entry Order on Motion for Stay)




_________________________________________                                February 11, 2014
       Thomas S. Durkin, Judge                                                  Date
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