& 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, 20 14 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, 201 4 by Attorney Stearns, for Applicants.

By its Decision issued on January 17, 2014, the Ver mont 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 a nd 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 imp osed a vague standard for measuring noise levels from the project, particularly when ap plied to noises emanating from both the project and the adjacent state highway, Route 100. In re Chaves Act 250 Permit, 2014 VT 5, ¶ 46. The Supreme Court therefore remanded the appea l 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 confer ence so that all parties could offer their initial suggestions for improving Condition 1 6. 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 lang uage. 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 resol ution. 

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SUPERIOR COURT ENVIRONMENTAL DIVISION Vermont Unit Docket No. 267-11-08 VtecIn re Chaves Act 250 Permit Appeal, No. 60-4-11 Vte c (EO on Condition 16)(06-23-2014) p. 2.

From the Supreme Court’s decision, we understand th at 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 g reater than the noise levels which have existed in these locations for the perio d beginning in 2005 and ending on December 31, 2011. With the benefit of hindsight and reflection, we ag ree that this language is vague and fails to provide workable standards for review of t he noise levels resulting from this project. Pursuant to the Supreme Court’s remand directive, w e STRIKE the third sentence from Condition 16. Based upon Applicant’s suggested replacement langua ge (as revised and detailed in Attorney Stearns’s April 21, 2014 letter), and in t he absence of any subsequent objections or suggestions, we hereby replace the stricken third s entence 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:

Scenario Receivers

4 5 6 Truck exiting Chaves with no traffic on VT 100 61 dBA 55 dBA 55 dBA

Truck exiting Chaves with other traffic on VT 100 68 dBA 57 dBA 71 dBA

(The last two sentences of Condition 16 shall remai n, as another separate paragraph.) We believe that this Entry Order provides sufficien t 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 j udgment order, we have elected not to because the Supreme Court affirmed the Judgment Ord er in all matters other than the third sentence of Condition 16. In the event that any pa rty 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 decisi on and our January 17, 2013 Judgment Order and Meri ts Decision, all for informational purposes only. Jur isdiction over any future permit conformance matter s, including conformance with the revised Condition 16, shall re st with the District Commission and the Natural Res ources Board.In re Chaves Act 250 Permit Appeal, No. 60-4-11 Vte c (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 S upreme Court’s remand directive have now been completed. This concludes our procee dings 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. Stear ns(ERN 3585), Attorneys for David Chaves Melanie Kehne (ERN 2561), Attorney for Natural Reso urces 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 Dore ena Hart David Grayck (ERN 4510), Attorney for Riverside Far m 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 o nly)

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