& 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, 2014 VT 5, ¶ 

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. 

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Vermont Unit Docket No. 267-11-08 Vtec
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: 

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 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) 

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