STATE OF VERMONT
SUPERIOR COURT                                                 ENVIRONMENTAL DIVISION
Vermont Unit                                                    Docket No. 267-11-08 Vtec
                                                                & Docket No. 60-4-11 Vtec

                     In re Chaves Act 250 Permit App. Appeal

                             ENTRY REGARDING MOTION

Title:        Motion (on remand) to revise Condition 16 (Motion 9)
Filer:        Vermont Supreme Court
Proposed replacement language filed on March 21, 2014 by Nathan H. Stearns, attorney for
   Applicants David Chaves and Chaves Londonderry Gravel Pit, LLC.
Objection filed on April 11, 2014 by Hans G. Huessy, attorney for Appellants Kraig and Dorenna
  Hart.
Revised replacement language filed on April 23, 2014 by Attorney Stearns, for Applicants.



       By its Decision issued on January 17, 2014, the Vermont Supreme Court affirmed the
January 17, 2013 Merits Decision and Judgment Order of this Court that granted a state land
use (“Act 250”) permit to Applicants David Chaves and Chaves Londonderry Gravel Pit, LLC
(“Applicant”), subject to several conditions.
       The Supreme Court further concluded, however, that a portion of Condition 16 of the
January 2013 Merits Decision and Judgment Order imposed a vague standard for measuring
noise levels from the project, particularly when applied to noises emanating from both the
project and the adjacent state highway, Route 100. In re Chaves Act 250 Permit, 

, ¶
46. The Supreme Court therefore remanded the appeal concerning the pending Act 250
application (Docket No. 60-4-11 Vtec) to this Court in order to replace the vague language in
Condition 16 with a more defined standard for noise measurement.
        This Court immediately set this matter for a conference so that all parties could offer
their initial suggestions for improving Condition 16. The Court afforded the parties time to
determine whether they could come to a consensus on suggested language. In response,
Applicants initially suggested replacement language that Appellants opposed. Thereafter,
Applicants revised their suggested replacement language. This Court then provided all parties
additional time to respond, until May 22, 2014. No further filings were made; the Court
therefore considers this final issue ripe for resolution.
In re Chaves Act 250 Permit Appeal, No. 60-4-11 Vtec (EO on Condition 16)(06-23-2014)                       p. 2.


     From the Supreme Court’s decision, we understand that the specific language that it
deemed vague was the third sentence of Condition 16, which reads as follows:
        In no event, however, may these noise levels [from trucks entering and exiting
        the project site, when measured from] any portions of the properties to the
        north and west of the existing access driveway be greater than the noise levels
        which have existed in these locations for the period beginning in 2005 and
        ending on December 31, 2011.
        With the benefit of hindsight and reflection, we agree that this language is vague and
fails to provide workable standards for review of the noise levels resulting from this project.
Pursuant to the Supreme Court’s remand directive, we STRIKE the third sentence from
Condition 16.
       Based upon Applicant’s suggested replacement language (as revised and detailed in
Attorney Stearns’s April 21, 2014 letter), and in the absence of any subsequent objections or
suggestions, we hereby replace the stricken third sentence of Condition 16 with the following
language:
      [To begin as a separate paragraph within Condition 16:] In no event, however,
      may the noise levels caused by the trucks entering and exiting from the project site
      be greater than the following limits at receivers 4, 5, and 6 that are depicted in
      Figure 18 of trial Exhibit 19:

                                                                     Receivers
                         Scenario
                                                              4                5                6
                Truck exiting Chaves with no
                                                         61 dBA           55 dBA           55 dBA
                traffic on VT 100
                Truck exiting Chaves with
                                                         68 dBA           57 dBA           71 dBA
                other traffic on VT 100

        (The last two sentences of Condition 16 shall remain, as another separate paragraph.)
       We believe that this Entry Order provides sufficient notice to the parties and the District
2 Environmental Commission* of this Court’s revisions to its January 17, 2013 Judgment Order.
Although this Court considered issuing an amended judgment order, we have elected not to
because the Supreme Court affirmed the Judgment Order in all matters other than the third
sentence of Condition 16. In the event that any party believes that an amended judgment
order is warranted and within this Court’s remanded jurisdiction, we direct that they confer


*
  We have requested that the Court Clerk forward to the District Commission a copy of this Entry Order, as well as
copies of the January 17, 2014 Supreme Court decision and our January 17, 2013 Judgment Order and Merits
Decision, all for informational purposes only. Jurisdiction over any future permit conformance matters, including
conformance with the revised Condition 16, shall rest with the District Commission and the Natural Resources
Board.
In re Chaves Act 250 Permit Appeal, No. 60-4-11 Vtec (EO on Condition 16)(06-23-2014)   p. 3.


with the other parties and advise the Court of the same within fifteen calendar days of this
Order.
       We understand that our responsibilities under the Supreme Court’s remand directive
have now been completed. This concludes our proceedings in this remanded matter.


Electronically signed on June 23, 2014 at 04:24 PM pursuant to V.R.E.F. 7(d).




_________________________
Thomas S. Durkin, Judge
Environmental Division

Notifications:
C. Daniel Hershenson (ERN 3586) and Nathan H. Stearns(ERN 3585), Attorneys for David Chaves
Melanie Kehne (ERN 2561), Attorney for Natural Resources Board (FYI purposes only)
Judith L. Dillon (ERN 5040), Attorney for Agency of Natural Resources (FYI purposes only)
Hans Huessy (ERN 1813), Attorney for Kraig and Doreena Hart
David Grayck (ERN 4510), Attorney for Riverside Farm and Thomas Ettinger (FYI purposes only)
Nancy Kemper (FYI purposes only)
Angelique Jarvis (FYI purposes only)
David A. Jarvis (FYI purposes only)
David M. Rathburn (FYI purposes only)
District 2 Environmental Commission (FYI purposes only)
dchamber