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STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Vermont Unit Docket No. 130-9-13 Vtec

Hovey A250 Permit DECISION ON THE MERITS 

Robert and Toni Flanigan (the Flanigans) appeal the September 6, 2013 decision of the 

District #7 Environmental Commission (Commission) granting Gregory Hovey (Mr. Hovey) an 

after-the-fact Act 250 Land Use Permit (LUP) to construct and operate a dog breeding facility in 

the Town of Victory, Vermont. In April 2014, while this appeal was pending before the Court, 

Mr. Hovey filed an application to amend the LUP (the -1 Application). The Commission 

approved the -1 Application and issued an amended Land Use Permit. The Flanigans appealed 

that approval to this Court. All parties agree that because the original LUP was before the Court 

on appeal, the Commission was without jurisdiction to consider the -1 Application. As ordered 

below, we therefore VOID the Commission’s approval of the -1 Application, and DISMISS 

Docket No. 57-4-14 Vtec. 

Prior to trial, Mr. Hovey filed a Motion to Dismiss and the Flanigans filed a Motion to 

Amend and Clarify their Statement of Questions. In a March 6, 2014 decision we denied Mr. 

Hovey’s motion to dismiss, granted the Flanigans’ motion to amend and clarify their Statement 

of Questions with respect to Amended Questions 1, 2, 3, 5 and 6, and denied the Flanigans’ 

motion to amend and clarify their Statement of Questions with respect to Amended Questions 

4 and 7. 

On November 10, 2014, the parties filed a Joint Stipulation as to Statement of 

Questions. By this stipulation, the Flanigans’ withdrew Amended Questions 5 and 6 on the 

condition that Mr. Hovey remove dog waste daily should the Court affirm the Commission’s 
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grant of the Land Use Permit.1 Thus, Amended Questions 1, 2, and 3, relating to Criterion 1 (Air 

Pollution – noise) and Criterion 8 (Aesthetics – noise), remain for the merits hearing. 

The Court conducted a site visit to the Property on November 12, 2014 immediately 

followed by a single day merits hearing at the Vermont Superior Court, Caledonia Civil Division 

courthouse in St. Johnsbury, Vermont. Appearing at the site visit and trial were the Flanigans 

and their lawyer Hans G. Huessy, Esq., Gregory Hovey and his lawyer Deborah T. Bucknam, Esq., 

and the Vermont Natural Resources Board’s lawyer Melanie Kehne, Esq.

Based upon the evidence presented at trial, including that which was put into context by 

the site visit, the Court renders the following Findings of Fact and Conclusions of Law. 

Findings of Fact 

1. Mr. Hovey owns a 10.4 acre parcel of land located at 3000 Victory Hill Road in Victory, 

Vermont (the Property). 

2. Mr. Hovey resides at the Property. 

3. In 2013, Mr. Hovey constructed and began operating a dog kennel at the Property (the 

Project). The kennel is known as Victory Hill Kennels. 

4. Upon learning that the Project triggered the need for an Act 250 land use permit, Mr. 

Hovey filed an application with the District #7 Environmental Commission (the 

Commission). 

5. On September 6, 2013 the Commission issued Act 250 Land Use Permit #7E1340 (LUP) 

for the Project. 

6. The LUP restricts the Project to 50 dogs. During the Court’s November 12, 2014 site 

visit, the Project included 41 dogs which were either Beagles or Labrador Retrievers. At 

the time of the Flanigans’ noise monitoring in July 2014, the Project had 23 dogs. 

7. Tom Duane owns property adjacent to the north of the Property. Mr. Duane did not 

participate in this appeal. 

8. Doug Preston owns property abutting the Duane property to the north. Mr. Preston 

cannot hear Project dogs barking when his windows and doors are closed. Mr. Preston 

does not generally hear Project dogs barking when he drives by the Property. 

 

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 The stipulation also withdraws Amended Question 4, however, this is unnecessary as the Court previously 

dismissed Amended Question 4. 
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9. Victory Hill Road is a dead end road terminating approximately 200 yards north of the 

Property. The Duane and Preston properties are the only properties to the north of the 

Property. 

10. The Flanigans own property at 2870 Victory Hill Road adjacent to the south of the 

Property. The Flanigans have a residence on their property which is approximately 150 

yards from the Project. 

11. There is approximately 70 yards of wooded land between the Flanigans residence and 

the Project. 

12. The Flanigans do not reside full time at their Victory property; they estimate that they 

spend on average about one weekend a month there. 

13. The MacDonald/Loomis property is located at 2754 Victory Hill Road to the south of the 

Flanigans. They have two Labrador Retrievers. 

14. Ryan Hovey is the first cousin of Greg Hovey. Ryan Hovey owns and lives at 2622 Victory 

Hill Road to the south of the MacDonald/Loomis property. Ryan Hovey runs a dog 

kennel at his property, which is located approximately 1000 feet south the Flanigan’s 

southern property boundary. In June 2014, Ryan Hovey had 19 Labrador Retrievers at 

his kennel. At the time of our merits hearing, Ryan Hovey had 5 dogs at this kennel. 

15. Skip Easter owns property at 2428 Victory Hill Road adjacent to the south of Ryan 

Hovey’s property and approximately one half mile from the Project. Mr. Easter serves 

as a foster home for dogs. He has up to 5 dogs at a time. His dogs bark when they are 

outside or when someone comes to visit. He hears other dogs in the neighborhood 

including the Project dogs. 

16. Mr. Easter and Fern Loomis testified that they cannot hear Ryan Hovey’s Labrador 

Retrievers bark but can hear Greg Hovey’s Beagles bark. 

17. Ruth Neborsky has lived for 12 years at 2364 Victory Hill Road which is to the south of 

the Easter Property. Ms. Neborsky has one dog and she occasionally hears dogs barking 

from other properties. 

18. Dogs at the Project are well managed which limits their barking. 
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19. Project management activities undertaken by Mr. Hovey include feeding and watering 

during regular hours and in a time limiting fashion. Mr. Hovey prepares food ahead of 

time, which shortens the time he is at the kennels during feeding, which can be as short 

a 7 to 8 minutes. He feeds the dogs early in the morning and provides water at 

nighttime. 

20. Mr. Hovey also cleans the kennels once per day in the early afternoon. 

21. The kennels are designed with adequate space and the Beagles are exercised weekly in 

field training. 

22. Mr. Hovey uses electronic collars to control excessive barking. 

23. Approximately 155 forsythia plants were planted in the fall of 2014 around the 

perimeter of the kennels. Each plant is fairly small and thin. The plants are expected to 

grow as much as three feet per year. 

24. Aaron Bronkdyke, Vermont Natural Resources Board (NRB) compliance investigator, 

conducted an unannounced site inspection to the Project on January 30, 2014. Mr. 

Bronkdyke observed no dog barking from the Project when he drove to the site, exited 

his car, or when he first entered the Property. When Mr. Bronkdyke approached within 

25 feet of the kennels, the Labrador Retrievers barked, but the Beagles did not. When 

Mr. Bronkdyke turned so he was not facing the kennels, the dogs immediately stopped 

barking. 

25. The Flanigans retained David-Michael Lozupone of Resource Systems Group (RSG) to 

conduct noise monitoring. Mr. Lozupone collected noise and wind data over a ten day 

period between June 13, 2014 and June 23, 2014; more specifically, he collected 9 days 

of sound pressure level data and 10 days of audio data. 

26. Mr. Lozupone placed noise monitoring equipment in the Flanigan’s northern yard, 10 

yards south of the tree line and 5 yards north of the house. The equipment was 

approximately 40 yards from the center of Victory Hill Road. 

27. In addition to barking dogs, noise in the area is attributable to birds, insects, and wind. 

28. The A-weighted sound level (dBA) is a logarithmic expression of the relative loudness of 

sound as perceived by the human ear. 
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29. The maximum sound level (Lmax) represents the maximum sound level of a noise event, 

irrespective of its duration. 

30. The equivalent sound level (Leq) represents the average sound level from all sources of 

noise in a given area over a stated period of time (e.g. 24 hours, one year, etc.). Leq 

represents the energy average, rather than the arithmetic average, and is equivalent to 

a steady sound of the same magnitude over a given period of time. Because the Leq is 

based on the logarithmic average sound pressure, it gives more weight to the higher 

decibel levels. 

31. The percentile sound level (Ln) represents the noise level exceeded n% of the 

measurement period. L90 therefore represents the noise level exceeded 90% of the 

measurement period, whereas L50 represents the noise level exceeded 50% of the 

measurement period. Because L90 represents the quieter portion of a measurement 

period (90% of the observations exceed it), it is often used to establish the ambient or 

background sound level in an environment. 

32. During the Flanigans’ 10 day noise monitoring period, the daytime L90 and L50 were 

estimated to be 25 dBA and 34 dBA, respectively, and the nighttime L90 and L50 were 

estimated to be 24 dBA and 29 dBA, respectively. 

33. There were 76 incidents of dog barking over the 10 day noise study, or an average of 8 

incidents per day. The duration of barking events lasted from 4 to 60 minutes, with 

durations averaging between 4 to 21 minutes. 

34. Daytime and nighttime maximum sound levels—Lmax—were recorded on June 20, 2014 

at 6:58 PM and 7:40 PM as 64 and 62 dBA, respectively.2

Conclusions of Law

The legal questions presented in this appeal are whether Applicant’s proposed use of 

the Property will result in undue air pollution as it relates to noise under Act 250 Criterion 1, 

 

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 Mr. Hovey provided a July 31, 2014 letter from Eric Reuter or Reuter Associates commenting on the Flannigans 

noise data collection report. Exhibit D. Mr. Reuter’s letter appears to refer to a draft of Table 2 of Mr. Lozupone’s 

report having different maximum noise data. We note that Mr Lozupone’s report states in its subject line “Hovey 

Dog Kennel Noise Consultation with Table 2 Correction.” Exhibit A. 
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and/or result in an undue adverse impact to aesthetics relating to noise under Act 250 Criterion 

8. The Amended Statement of Questions 1, 2, and 3 ask the following: 

1. Does the Project comply with Criteria 1 (Air Pollution) and 8 (Aesthetics) with 

respect to noise? 

2. Does the noise from the Project exceed the noise standards established by this 

Court, i.e. 70 dBa at the Property line and 50 dBa at the nearest residence? 

3. Is the noise from the Project of a quality and nature that can be found to have an 

undue adverse impact even if it does not exceed the established noise standards? 

I. Burden of Proof 

As discussed below, the burden of proof in this matter has bearing on the Court’s 

ultimate conclusions. The burden of proof is on the applicant (here, Mr. Hovey) for Criterion 1, 

and on the party opposing the application (here, the Flanigans) for Criterion 8. 10 V.S.A. 

§ 6088. Regardless of who has the burden of proof on a particular issue, the applicant always 

has the burden of producing evidence sufficient to enable the Court to make the requisite 

positive findings on all of the criteria. Re: EPE Realty Corp. and Fergessen Mgmt., Ltd., No. 

3W0865-EB, Findings of Fact, Concl. of Law, and Order, at 18 (Vt. Envtl. Bd. Nov. 24, 2004) 

(citing Re: Peter S. Tsimortos, No. 2W1127-EB, Findings of Fact, Concl. of Law, and Order, at 13 

(Vt. Envtl. Bd. Apr. 13, 2004); Re: McLean Enter. Corp., No. 2S1147-1-EB, Mem. of Decision, at 

43 (Vt. Envtl. Bd. Sept. 19, 2003)). Specifically with respect to Criterion 8, if an applicant 

satisfies the initial burden of production, the ultimate burden of proving that a project does not 

conform to Criterion 8 rests upon the project’s opponents. 10 V.S.A. § 6088(b); In re Rivers 

Dev. Act 250 Appeal, No. 68-3-07 Vtec, slip op. at 33 (Vt. Envtl. Ct. Mar. 25, 2010) (Durkin, J.) 

(citing In re Route 103 Quarry, No. 205-10-05 Vtec, slip op. at 8 (Vt. Envtl. Ct. Nov. 22, 2006) 

(Durkin, J.), aff’d, 2008 VT 88, 184 Vt. 283). 

II. Criterion 1 

The noise a proposed project may generate can be of such an adverse level as to 

constitute air pollution. See Re: Bull’s-Eye Sporting Center, No. 5W0743-EB, Findings of Fact, 

Concl. of Law, and Order, at 14 (Vt. Envtl. Bd. Feb. 27, 1997) (“The test for undue air pollution 

caused by noise is whether the noise has ‘impacts rising above annoyance and aggravation to 

cause adverse health effects such as hearing damage.’” (quoting Re: Talon Hill Gun Club’ Inc. 

and John Swininem, No. 9AO192-2-EB, Findings of Fact, Concl. of Law, and Order, at 8 (Vt. Envtl. 
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Bd., June 7, 1995))). “Noise analysis under Criterion 1 focuses primarily on the health and 

safety impacts of noise, rather than on its welfare and aesthetic impacts, which are considered 

under Criterion 8.” In re Godard College, Nos. 175-12-11 Vtec and 173-12-12 Vtec, slip op. at 9 

(Vt. Super. Ct. Envtl. Div. Jan. 6 2014) (Walsh, J.) (citing Re: City of Montpelier and Ellery E. & 

Jennifer D. Packard, No. 5W0840-6-WFP, Findings of Fact, Concl. of Law, and Order, at 21 (Vt. 

Envtl. Bd. May 22, 2000)). 

The former Environmental Board reviewed many Act 250 applications for land use 

permits where noise from a proposed project was at issue. The prior decisions of the 

Environmental Board established thresholds or limits of noise levels evidencing compliance or 

non-compliance with Criterion 1. Title 10 V.S.A. § 8504(m) directs us to give these prior 

decisions of the Environmental Board the same weight and consideration as prior decisions of 

this Court. 

When evaluating noise impacts under Criterion 1, the Environmental Board relied on the 

United States Environmental Protection Agency (EPA) Report, Information on Levels of 

Environmental Noise Requisite to Protect Public Health and Welfare with an Adequate Margin 

of Safety, EPA document No. 5 50/9-74-0004, dated March 1974, for guidance. See Re: Paul 

and Dale Percy, No. 5L0799-EB, Findings of Fact, Concl. of Law, and Order, at 7-8, 17 (Vt. Envtl. 

Bd. Mar. 20, 1986). Specifically, the Environmental Board adopted EPA’s standard based on the 

risk of hearing loss or other adverse health effects caused by nearly continuous exposure to 

noise. Bull's Eye Sporting Center et al., #5W0743-2-EB, Findings of Fact, Concl. of Law, and 

Order, at 14. Under this standard, noise is considered air pollution under Criterion 1 if it 

exceeds a maximum Leq of 70 dBA for 24 hours a day, 365 days a year over a lifetime. Re: Pike 

Indus., Inc. and Inez M. Lemieux, No. 5R1415-EB, Findings of Fact, Concl. of Law, and Order, at 

32 (Vt. Envtl. Bd. June 7, 2005); Re: Casella Waste Mgmt. and E.C. Crosby & Sons, Inc., No. 

8B0301-7-WFP, Findings of Fact, Concl. of Law, and Order, at 29–30 (Vt. Envtl. Bd. May 16, 

2000). Furthermore, the Environmental Board determined that maximum noise levels 

consistently lower than 90 decibels did not constitute air pollution under Criterion 1. Casella 

Waste Mgmt., No. 8B0301-7-WFP, at 30; Wildcat Constr. Co., No. 6F0283-1-EB, Findings of Fact, 
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Concl. of Law, and Order (Vt. Envtl. Bd. Oct. 4, 1991), aff'd, In re Wildcat Constr. Co., 160 Vt. 631 

(1993). 

Based upon the totality of evidence before the Court, we find that Mr. Hovey has 

produced evidence sufficient to enable the Court to make positive findings on Criterion 1. We 

conclude that while noise from the Project operations might be apparent to the Flanigans and 

other area property owners and neighbors, the noise will be less than the EPA-established 

adverse health impact standard of an Leq less than 70 dBA for 24 hours each day, 365 days a 

year. Thus, the proposed project noise will not cause adverse health effects and is, therefore, 

not air pollution in violation of Criterion 1. 

III. Criterion 8 

As discussed above, to receive an Act 250 land use permit the Court must find that the 

proposed project “[w]ill not have an undue adverse effect on the scenic or natural beauty of 

the area, aesthetics, historic sites or rare and irreplaceable natural areas.” 10 V.S.A. § 

6086(a)(8). While it is the applicant that must satisfy the initial burden of production, the 

ultimate burden of proving that a project does not conform to Criterion 8 rests upon the 

project’s opponents. 10 V.S.A. § 6088(b); In re Rivers, No. 68-3-07 Vtec, slip op. at 33 (citing In 

re Route 103 Quarry, No. 205-10-05 Vtec, slip op. at 8 (Vt. Envtl. Ct. Nov. 22, 2006) (Durkin, J.), 

aff’d, 2008 VT 88, 184 Vt. 283). 

Whether noise produced by a proposed project will have an undue adverse effect is 

assessed using a two-step evaluation. First, the Court reviews whether a project would have an 

“adverse impact” by considering the question: “[w]ill the proposed project be in harmony with 

its surroundings—will it ‘fit’ the context within which it will be located?” Quechee Lakes Corp., 

Nos. 3W0411-EB and 3W0439-EB, Findings of Fact, Concl. of Law, and Order, at 18 (Vt. Envtl. 

Bd. Nov. 4, 1985). If the Court concludes that the Project has an adverse effect under Criterion 

8, we then evaluate whether the adverse effect is “undue.” Id. at 18. 

a. The character of the area. 

Whether noise produced by a proposed project is out of character with its setting is a 

qualitative determination, involving an examination of both the neighboring land uses and the 

type of noise that the project will generate. Hannaford Bros. Co. and Southland Enterprises, 
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Inc., No. 4C0238-5-EB, Findings of Fact, Concl. of Law, and Order, at 16 (Vt. Envtl. Bd. Apr. 9, 

2002). We therefore weigh the following factors collectively: the nature of the project’s 

surroundings, the compatibility of the project’s design with those surroundings, and the 

locations from which the project can be heard. See Id. at 15–18 (analyzing a project under 

Criterion 8 for potential adverse effect of noise and signage on aesthetics). 

Here, the Project’s surroundings include several residences with access from Victory Hill 

Road. Victory Hill Road is unpaved and generally characterized as a secondary road. The 

closest residence is approximately 150 yards from the Project and is separated by 

approximately 70 yards of trees. There is an L90 dBA of 24 to 25. This area of Vermont is rural. 

b. Whether the noise impacts are “adverse” to the area’s character. 

Assessing the impacts of the Project on the surroundings is a fact specific determination, 

including the type of noise. Precedent has long considered that different types of noises—such 

as sharp, intermittent, or high frequency noises—must be treated differently from low 

frequency continuous noises. See Id. at 16 (citing Bull’s Eye Sporting Center et al., No. 5W0743-

2-EB, Findings of Fact, Concl. of Law, and Order, at 17). Although a bark itself, and intermittent 

barking events, do not represent a significant departure from existing land uses in the area—

Ryan Hovey operates a kennel to the south of the Flanigans’ property and there are several 

dogs in the area, all of which produce intermittent dog barking—we conclude that the Project 

itself does not fit the context of this rural neighborhood. On the totality of the evidence, we 

conclude that adding a dog kennel with a maximum of 50 dogs would produce an adverse 

effect on the area under Criterion 8. See John and Joyce Belter, No. 4C0643-6R-EB, Findings of 

Fact, Concl. of Law, and Order, at 14 (Vt. Envtl. Bd May 28, 1991) (concluding that additional 

drilling and blasting would be more than the neighborhood was already used to on a regular 

basis, thus, the noise would have an adverse effect on aesthetics). 

c. Whether the adverse noise impact is “undue.” 

Having concluded that the proposed project’s noise is adverse, the Court conducts the 

second evaluative step by reviewing whether the adverse effect is undue. Hannaford Bros., No. 

4C0238-5-EB, at 15. To determine whether an adverse effect is undue, the Court reviews the 

following factors: 
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1) Does the project violate a clear, written community standard intended to 

preserve the aesthetics or scenic, natural beauty of the area? 

2) Does the project offend the sensibilities of the average person? Is the project 

offensive or shocking because it is out of character with its surroundings or 

significantly diminishes the scenic qualities of the area? 

3) Has the Applicant failed to take generally available mitigating steps which a 

reasonable person would take to improve the harmony of the proposed project 

with its surroundings? 

See In re Rinkers, Inc., 2011 VT 78, ¶ 9, 190 Vt. 567; Quechee Lakes Corp., Nos. 3W0411-EB and 

3W0439-EB, Findings of Fact, Concl. of Law, and Order, at 19–20 (Vt. Envtl. Bd. Nov. 4, 1985). 

 The parties did not provide any evidence of the existence of community standards 

intended to preserve the aesthetics or scenic, natural beauty of the area. As the Flanigans have 

the burden to show that a project does not conform to Criterion 8, we conclude that the 

proposed project does not violate any community standard. 

 We next consider whether the noise will be so out of character with its surroundings or 

so significantly diminish the scenic qualities of the area as to be offensive or shocking to the 

average person. Re: Pike Indus., Inc. and William E. Dailey, Inc., No. 1R0807-EB, Findings of 

Fact, Concl. of Law, and Order, at 18–19 (Vt. Envtl. Bd. June 25, 1998). This requires 

consideration of the Project’s impacts from the perspective of the average person, and not 

simply testimony from neighboring landowners as to how the Project impacts them personally. 

See In re Godard College, Nos. 175-12-11 Vtec and 173-12-12 Vtec, slip op. at 14 (Vt. Super. Ct. 

Envtl. Div. Jan. 6 2014) (Walsh, J.) 

 As discussed above, adding more intermittent dog barking noise to an area that already 

experiences such noise would produce an adverse effect. We cannot, however, say that the 

adverse effect is “shocking or offensive to the average person.” Residents in the area are used 

to hearing sporadic dog barking noise from other residential properties in the area, including 

another dog kennel. The impact of noise is not entirely reflected by a decibel rating; it must 

also consider the intermittency and duration of noise. See Re: Bull's Eye Sporting Center et al., 

#5W0743-2-EB, Findings of Fact, Conclusions of Law, and Order at 17. As the Environmental 

Board has explained, “[t]he impact or quality of noise is not entirely reflected by decibel rating. 

The degree of noise annoyance must also consider the duration and intermittency of noise.” Id. 
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 The Flanigans’ 10 day noise study shows an average of 8 instances of dogs barking per 

day, and that the typical duration of such events last between 4 and 21 minutes, although one 

event did last for 60 minutes. During this 10 day period, the instantaneous maximum noise 

levels were recorded on a single day, June 20, 2014, at 6:58 and 7:40 PM from the Flanigans’ 

property as 64 and 62 dBA Lmax, respectively. There is no indication that these barking events 

lasted for a prolonged period of time or that similar barking events at similar times occurred on 

other dates. Furthermore, although the Flanigans and other neighbors testified to loud dog 

barking noises at night, even to the degree of waking them up, there was no noise data offered 

to support nighttime barking of this nature. Additionally, Mr. Easter and Fern Loomis testified 

that they cannot hear Ryan Hovey’s Labrador Retrievers bark but can hear Greg Hovey’s 

Beagles bark even though Ryan Hovey’s kennel is much closer than Greg Hovey’s. These 

statements go against reason and without credible data in support of this testimony we cannot 

afford it much weight. We therefore conclude that the Project does not offend the sensibilities 

of the average person and it is not out of character with its surroundings. While the barking 

may be annoying, it would not disrupt day to day living to the level that is shocking and 

offensive. 

 With respect to mitigating steps to reduce the level or impact of noise from the 

proposed activities, we note the following facts. Mr. Hovey employs a feeding and watering 

routine where he prepares food ahead of time in order to shorten his time at the kennel during 

feeding, sometimes to as short as 7 to 8 minutes. He feeds the dogs early in the morning and 

provides water at nighttime, cleans the kennels once per day in the early afternoon, and uses 

electronic collars all of which aid to control excessive barking. Furthermore, Mr. Hovey has 

planted immature forsythia which, over time, may serve to reduce the noise of dogs barking. 

All of these measures serve to reduce barking events and durations and mitigate noise impacts. 

Considering the evidence before the Court as a whole, including both an examination of 

the type and frequency of noise that the Project will generate and the neighboring land uses, 

we conclude that the proposed project, as conditioned, will not have an undue adverse effect 

on the character of the area. We reach this conclusion as Appellant has not provided evidence 

of noise levels or other data demonstrating that noise levels from the Project create an undue 
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adverse aesthetic impact. See 10 V.S.A. § 6088(b) (placing ultimate burden of showing a 

project’s nonconformance to Criterion 8 on the project’s opponents). Thus, we conclude that 

the proposed project complies with Criterion 8. 

In reaching our positive finding under Criterion 8, we consider prior Act 250 approvals 

which concluded that noise from a proposed project does not have undue adverse impacts on 

aesthetics where the noise is limited to no more than 55 dBA Lmax at surrounding residences 

and outside areas of frequent human use and no more than 70 dBA Lmax at the property line. 

Barre Granite Quarries, No. 7C1079(Revised)-EB, Findings of Fact, Concl. of Law, and Order, at 

81–82 (Vt. Envtl. Bd. Dec. 8, 2000); see also Re: Alpine Stone Corporation, ADA Chester Corp. 

and Ugo Quazzo, No. 2S1103-EB, Findings of Fact, Concl. of Law, and Order, at 32 (Vt. Envtl. Bd., 

Feb. 4, 2002) (noise from a proposed quarry does not have undue adverse impacts on 

aesthetics where the noise is limited to 55 dBA Lmax at areas of frequent human use). These 

noise limits are typically established for commercial or industrial operations, where noise is 

more regular in duration as compared to intermittent dog barking. See Hannaford Bros., No. 

4C0238-5-EB, at 24 (“For commercial operations such as quarrying operations, the Board has 

set maximum sound levels (Lmax) at either the applicant’s property line or at relevant receptors 

on neighboring property, or both.”). In this case a dog bark or barks have limits on the level of 

noise created. In such instances, establishing maximum noise levels is less of an issue than 

regulating the duration and frequency of barking or barking events. See Re: John and Jovce 

Belter, #4C0643-6REB, Findings of Fact, Conclusions of Law, and Order at 13–15 (May 28,199l) 

(distinguishing between noise of limited duration and continuous noise). Thus, to ensure that 

the dog kennel does not result in an undue adverse impact from noise, we condition this 

approval under Criterion 8 as follows:

Prolonged barking at the dog kennel shall be prohibited. 

Prolonged barking is considered to be sustained barking for 

one hour or more during the daytime or sustained barking 

for 30 minutes or more during the nighttime. 

The Court establishes this condition and leaves Mr. Hovey to determine how to satisfy 

the condition. See Re: George and Diana Davis, No. 2S1129-EB, Findings of Fact, Concl. of Law, 

and Order, at 11 (Vt. Envtl. Bd. Dec. 15, 2004); Hannaford Bros., No. 4C0238-5-EB, at 23. Should 
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the Flanigans or other interested parties experience noise impacts exceeding these levels, they 

may come forward to the Natural Resources Board with evidence of non-compliance. Such 

evidence may be used in consideration of enforcement against Mr. Hovey for violating this 

approval or lead to revocation of the land use permit. 

Conclusion

For the reasons discussed above, all parties agree that as the original Land Use Permit 

was on appeal before the Court, the Commission was without jurisdiction to consider the -1 

Application. We therefore VOID the Commission’s approval of the -1 Application, and DISMISS 

Docket Number 57-4-14 Vtec. 

Pursuant to the parties’ Stipulation and agreement to withdraw Amended Questions 5 

and 6, we impose the following condition: 

1. All dog waste shall be removed from the kennels daily. 

We also conclude that Mr. Hovey’s proposed project does not result in undue air 

pollution relating to noise under Act 250 Criterion 1 and that the proposed project does not 

result in an undue adverse impact to aesthetics relating to noise under Act 250 Criterion 8. We 

condition our positive findings under Criteria 1 and 8 on the following: 

2. Prolonged barking at the dog kennel shall be prohibited. 

Prolonged barking is considered to be sustained barking for 

one hour or more during the daytime or sustained barking 

for 30 minutes or more during the nighttime. 

A Judgment Order accompanies this Decision. This completes the current proceedings 

before this Court. 

Electronically signed on March 31, 2015 at 02:25 PM pursuant to V.R.E.F. 7(d). 

_________________________________________ 

Thomas G. Walsh, Judge 

Superior Court, Environmental Division