1 STATE OF VERMONT SUPERIOR COURT — ENVIRONMENTAL DIVISION
} Re: Chaves Londonderry Gravel Pit, } Docket No. 2 67-11-08Vtec LLC, Jurisdictional Opinion (#2-257) } (Appeal from Act 250 District 2 } Dist. Coordinator JO Decision)

*************************************************** ******************************************** } Re: Chaves Londonderry Gravel Pit, } Docket No. 6 0-4-11 Vtec LLC, and David Chaves Act 250 App. } (Appeal from Act 250 District 2 } Environmental Comm. Decision } Case No. 2W1275) }

Decision on the Merits
Chaves Londonderry Gravel Pit, LLC, and its princip al, David Chaves, (hereinafter collectively referred to as “Applicants”) acquired a pre-existing sand and gravel pit and originally asserted that its current operation was “grandfathered” and required no state land use approval to continue its operation. When prese nted with the question of whether Applicants’ current operation required a state land use permit, the Coordinator for the District 2 Environmental Commission (“District Coordinator”) i ssued Jurisdictional Opinion #2-257 (“JO #2-257”), concluding that Applicants’ current opera tion of the pre-existing pit constituted a “substantial change” from the manner and intensity of the pre-existing operations and therefore required a state land use permit (otherwise known a s an “Act 250 permit”). Applicants thereafter filed a timely appeal of JO #2-257; that appeal was assigned Docket No. 267-11-08 Vtec and is hereinafter referred to as the “JO appe al.” Procedural History and Rulings While the District Coordinator was considering the jurisdictional question, Applicants filed an application for an Act 250 permit. The Di strict 2 Environmental Commission (“the District Commission”) conducted several hearings an d ultimately issued an approval of Applicants’ application, subject to several conditi ons relating to Act 250 Criteria 5, 8, 9(E) and 10 (codified in 10 V.S.A. §§ 6086 (a)(5), (8), (9)(E), and (10)). See Re: Chaves Londonderry Gravel Pit, LLC, and David Chaves, Case No. 2W1275, Findin gs of Fact and Conclusion of Law and Order, (Dist. 2 Envtl. Comm’n Mar. 4, 2011). Appli cants disputed several findings and conclusions of the District Commission, particularl y in relation to the conditions that the District Commission placed upon its approval of App licants’ application. Applicants therefore2

filed an appeal from the District Commission decisi on and permit; that appeal was assigned
Docket No. 60-4-11 Vtec. Applicant filed a Statement of Questions on May 13, 2011 that raised legal issues under Act 250 Criteria 5, 8, 9(E) and 10. Once Applicants filed their appeal from the Distric t Commission decision, several parties entered their appearances in the permit app lication appeal proceedings, two of whom filed cross-appeals. Riverside Farm Condominium As sociation (“Riverside Farm”), appearing through its agent, Thomas Ettinger, 1 filed a cross appeal and a Statement of Questions (filed May 26, 2011) that raised legal issues under Act 25 0 Criteria 3, 5, 8, and 9(E). Neighbor Nancy Kemper, an individual unit owner in the Riverside F arm condominium development, also filed a cross appeal and a Statement of Questions (filed May 31, 2011) that raised legal issues under Act 250 Criteria 3, 8, and 9(E). Kraig and Doreena Hart, owners and operators of the Frog’s Leap Inn, a country inn established on property tha t lies across Vermont Route 100 from Applicants’ sand and gravel extraction operation, e ntered their pro se appearance as Interested Persons. The Harts did not file a cross-appeal. Angelique Jarvis, David Jarvis, and David Rathbun a lso entered their individual pro se appearances as Interested Persons in Docket No. 60- 4-11 Vtec. In each Docket, Applicants are represented by their attorney, C. Daniel Hershenson , Esq.; Riverside Farm 2 is assisted by its designated representative, Thomas Ettinger, and its attorney, David Grayck, Esq.; Mr. & Mrs. Hart are represented by their attorney, Hans Huessy , Esq. Cross-Appellant Kemper also appeared pro se in the permit application appeal (D ocket No. 60-4-11 Vtec). The Court initially set the JO appeal (Docket No. 2 67-11-08 Vtec) for trial before the District Commission rendered its decision on the pe nding Act 250 permit application. However, when the parties jointly represented to th e Court at a January 4, 2010 conference that the de novo trial on the JO appeal should be “put o ff” because the permit proceedings may render the JO appeal moot, the Court placed the JO appeal on inactive status. When the District Commission rendered its decision and an appeal from that decision was filed with this Court and assigned Docket No. 60-4-11 Vtec, the JO appeal was reactivated and both matters were

1 Mr. Ettinger initially asserted individual appell ant/party status, but the legal issue of his indivi dual status as a party was answered when this Court gran ted Applicants’ motion to dismiss Mr. Ettinger, individually, as a party. See In re Chaves Londond erry Gravel Pit, LLC, et. al., No. 60-4-11 Vtec (Vt

. Super. Ct. Envtl. Div. Dec. 22, 2011) (Durkin, J.).

2 Riverside Farm only entered an appearance in the permit application appeal (Docket No. 60-4-11 Vtec)

.3

coordinated for the purposes of pre-trial discovery , motion practice, mediation, other negotiations, and trial. The two coordinated appeals were set to be tried on successive days at the Windham Superior Courthouse in Newfane, Vermont, beginning on March 13, 2012. Prior to the beginning of the trial, Applicants advised that a s ettlement had been reached with several, but not all of the other parties. As a consequence of this settlement, Applicant moved for the Court to adopt the terms of the settlement. By Entry Ord er filed March 9, 2012, the Court gave notice that it intended to reserve judgment on Applicants’ motion until the time of trial. Applicants attached to their motion a Stipulation, marked Exhi bit A and signed on behalf of Applicants and Riverside Farm. Angelique and David Jarvis off ered their verbal agreement to the Stipulation terms during the Court’s final pre-tria l conference, held on March 7, 2012, (conditioned upon Applicants using the northerly ac cess road). Cross-Appellant Kemper and
Interested Person Rathbun did not advise whether th ey agreed or disagreed with the settlement terms, did not contact the Court, and did not appea r or otherwise present any evidence at trial. Mr. and Mrs. Hart expressed their strong opposition , both to the Stipulation terms and to the propriety of the trial going forward as sche duled, given what they characterized as the “substantial changes” to Applicants’ project that w ere outlined in the other parties’ settlement Stipulation. Because of these substantial changes, the Harts moved for the Court to either (1) remand the permit application back to the District Commission for additional hearings, deliberations, and decision, or (2) continue the de novo appeal trial to a later date. By Entry Order also dated March 9, 2012, the Court denied bo th of the Harts’ requests, concluding that, based upon the description of the project changes o utlined by all parties, the project changes outlined in the Stipulation did not appear to be “s ubstantial” and did not appear to justify
remand or continuance. The parties appear to agree 3 on the following summary of the project changes ou tlined by the Stipulation: (1) Applicants will abandon the original plans for the proposed access way into the pit, which was to be located on southern and eastern por tions of the property, and will solely use the historical pit access way on the nor thern end of the project site, with some modification on how the access way will intersect w ith Vermont Route 100;

3 The Harts continued to assert throughout the tria l that the changes outlined in the other parties’ Stipulation, as well as the general operation of Ap plicants’ pit, would have a substantial and adverse impact upon them and their property.4

(2) Applicants will relocate the product loading zone w ithin the pit; (3) Applicants will add several sound mitigation barrie rs within the pit, parallel to Route 100 and opposite the Frog’s Leap Inn; (4) The permit will impose limitations on the amount of sand, rock, and gravel produced at the pit and the quantity of those items that could be sold or loaded at the pit; (5) The permit will impose limitations on the noise lev els emanating from pit operations and Applicants will provide a methodology for monit oring the noises emanating from the pit, at several locations; (6) The permit will limit the maximum number of truck t rips per day; (7) The permit will restrict the days and weeks during which drilling, blasting and crushing may occur; and (8) Applicants will establish a specific blasting plan, including guidelines for adherence to the blasting plan by Applicants, their employees, a nd their contractors. 4 Applicants offered details of these changes, as wel l as the modified pit operation plans, through trial testimony and exhibits, some of which the Court references and adopts in its Findings below. After having received all evidence at trial and now completed its deliberations,
the Court DENIES Applicants’ motion to simply adopt the Stipulation terms. Rather, the Court has made its own, independent determinations as to the appropriate weight and credibility to be assigned to all trial evidence and has thereby r endered its own Findings of Fact and Conclusions of Law, as noted below. One final procedural matter remains to address: the status of Applicants’ appeal of JO #2-257. The District Commission, in its review of Applicants’ permit application, noted that: The operations undertaken on the site since the Cha ves ownership ha[ve] been extensive and have permeated the site. These opera tions have included removal of vegetation[, including] removal of vegetation in the wetland buffer, extensive blasting creating a steep quarry face, extensive pr ocessing of materials [on site], dewatering and construction of a large sedimentatio n basin, and recontouring of the site. Any grandfathered status that the projec t site once enjoyed has been extinguished through the magnitude and scope of the changes initiated during the Chaves ownership. Re: Chaves Londonderry Gravel Pit, LLC, and David C haves, Case No. 2W1275, Findings of Fact and Conclusion of Law and Order, slip. op. at 3 (Dist. 2 Envtl. Comm’n Mar. 4, 2011).
At trial, Applicants provided no evidence to refute the conclusions reached in JO #2-257 that their operation of the pit was substantially d ifferent from that which had existed at the pit in the years before the enactment of Act 250. This may be a consequence of Applicants’

4 Applicants assert that many of these operational changes were proposed and agreed to in an effort to mitigate the impacts of the pit operations upon nei ghbors and their property. Mr. and Mrs. Hart dispu te that these changes will eliminate the undue adverse impacts from pit operations.5

Stipulation with some of the parties to the permit application appeal, or—as some parties offered when convincing the Court to “put off” the originally-scheduled trial of the JO appeal— the possibility that the permit application proceed ings may render the JO appeal moot. Nonetheless, the JO appeal remains pending, thereby requiring this Court to address it. Therefore, in light of the lack of evidence and arg uments presented at the trial of these coordinated appeals that would support a ruling fro m this Court that Applicants’ current operation of the Londonderry pit is grandfathered a nd does not require state land use approval, we hereby conclude that the nature of Applicants’ p it operations triggered Act 250 jurisdiction and Applicants must obtain an Act 250 permit. In t his regard, we AFFIRM the District Coordinator’s issuance of Jurisdictional Opinion #2 -257. We now turn to the adjudication of Applicants’ requ est that an Act 250 permit issue, authorizing their operation of the sand, stone and gravel extraction operation that they have proposed, without conditions similar to those impos ed by the District Commission. Based upon the evidence presented, including that evidence whi ch was put into context by the site visit the Court conducted after the trial was completed, the Court makes the following Findings of Fact and Conclusions of Law. A Judgment Order accompani es this Decision.
Findings of Fact

I. The Project Site, Past and Planned Operations.
1. Appellants’ project (“the Project”) is sited on a p arcel of land containing approximately 49 acres (hereinafter referred to as “the Property” ), along the eastern border of Vermont Route 100, in the Town of Londonderry (“Town”), just sout h of the Town’s northern border with the adjoining Town of Weston. The Property has hosted some form of an earth extraction operation for at least the last fifty years.
2. Applicants began their own extraction of sand, rock , and gravel from the Project site shortly after acquiring the Property in 1997.
3. When Applicants purchased the Project site, no stat e land use permits existed covering extraction operations at the site. Any prior extra ction operations were believed to have begun prior to the enactment of the Vermont land use laws (10 V.S.A. Chapter 151, commonly referred to as “Act 250”) and were therefore believed to be “grandfathered” and exempt from any requirement to receive an Act 250 permit.6

4. When Applicants began their own earth extraction op erations, they expanded the nature of the excavation work by conducting blasting and p rocessing the extracted rock, gravel, and sand within an expanded quarry hole area that encom passed about 3.5 acres of the Property. In its current state, Applicants’ extraction operation s include areas of quarrying; rock, gravel, and sand processing; dewatering of the quarry hole; cre ation of sedimentation basins; stormwater runoff; and the trucking by Applicants and outside contractors of rock, gravel, and sand extracted from the Project site.
5. Applicants’ operations constitute a substantial cha nge and increase in operations from that which existed prior to Applicants’ acquisition of the Property.
6. Applicants’ original plans for the Project site are depicted in their original Overall Site Plan, a copy of which was admitted at trial as Exhi bit 4.
7. Applicants revised their plans for the project as a consequence of their Stipulation with some of the parties to this appeal; those revisions are depicted in a revised Overall Site Plan, a copy of which was admitted at trial as Exhibit 2.
8. Applicants originally proposed to construct a new a ccess road that would enter the Project Site from the southern portion of the Prope rty and travel along the southern and eastern portions of the Project Site, then enter into the q uarry work areas. Riverside Farm and several other parties to this proceeding initially opposed this access proposal, since it would bring
internal truck traffic closer to the Riverside Farm property. Applicants thereafter agreed to use an existing access way that enters the quarry work areas from the northern portion of the Property.
9. Applicants now propose that access to the quarry wi ll remain from the northern portion of the Property. The access road will travel along its existing route, down into the quarry work areas. The only material change to the access road will be where it intersects with Route 100;
the access road intersection will be moved about 10 0 feet north on Route 100, so that a more beneficial curb cut and sight distances can be prov ided.
10. The access road intersection with Route 100 will al so be developed in accordance with intersection standards (the “B-71 Standards”) estab lished by the State of Vermont Agency of Transportation (“VTrans”). See Exhibit 6. VTrans has issued a Letter of Intent to issue a permit authorizing the completion of the access road impro vements within the designated area in the highway right-of-way. See Exhibit 3. The only rem aining pre-condition to the issuance of the VTrans permit is the issuance of municipal and stat e land use permits for the Project. Id.7

11. Applicants also agreed to “ensure that vegetation i s regularly trimmed and snow banks maintained so as not to reduce the sight distances [at the access road/Route 100 intersection] below those required under applicable Vermont Agenc y of Transportation standards.” See Stipulation at ¶6, suggesting revisions to Act 250 Permit Condition 11.
12. Applicants also will install a ten-foot high earthe n berm, running along the southerly edge of the access road, starting shortly after its intersection with Route 100 and continuing for approximately 87 feet. This earthen berm will prov ide a visual and sound buffer from the truck traffic travelling along the access road for proper ties to the south and west, including the Frog’s Leap Inn, and for those travelling along Route 100 from the south.
13. The access road and all the revisions to it describ ed in ¶¶ 8–12, above, are depicted on
Exhibit 2.
14. The elimination of the access road Applicants initi ally proposed on the southern and eastern portions of the Property and the improvemen ts to the existing northern access road, including mitigation berms, reduce impacts from the Project as now proposed, as compared to the Project as originally proposed. Benefits of th ese changes include the following: a.) a wetland and its buffer will no longer be impacted by the southern access road development; b.) the northern access road will be farther away from a school bus stop at the end of Cliff’s Lane; the former proposed southern access r oad was close to this bus stop and would have delivered truck traffic to an inters ection on Route 100 in the vicinity of the school bus stop; and c.) with the northern access road being farther away fr om Cliff’s Lane and the earthen berms to be added near the northern access road, tr uck traffic noises will be less apparent to those residences on or near Cliff’s Lan e, as well as to the Frog’s Leap Inn owners and their guests.
15. Applicants plan to operate the project in three pha ses over the course of twenty-five years. As work in one phase is completed and pit o perations move to another phase, the areas of the then-completed phase will be reclaimed by to p soil, mulch material, and seeding, wherever possible. The areas of the three phases a re generally depicted on Exhibit 2.
16. Unlike most other Act 250 permits, those that gover n earth extraction operations usually have a specific term of duration. Applicants propo se that, should this appeal result in an Act 250 permit being issued for their Project, that the permit “expire twenty-five (25) years following the issuance [t]hereof or upon completion of the reclamation plan for the project, whichever occurs last.” Stipulation at ¶ 11, sugge sting a revision to Permit Condition 30.8

Riverside Farms and Mr. and Mrs. Jarvis concur with this proposal. Id. No other party suggested an alternate term or termination language for the Project.
17. The Project will operate on a seasonal basis, gener ally from March 1 through December 31 of each year, with the following further restric tions on the times of operation: a) The hours of operation open to the public: 7:00 AM to 5:00 PM, Monday through Friday. b) There shall be no sales, loading, or processing of earth products on Saturdays. c) The quarry shall be closed in all respects on Sundays. d) In addition to the limitation on the hours of opera tion in sub-paragraph (a), above, there also shall be no drilling, blasting, o r crushing during the months of July and August, the last week in June, and the fir st week in September. e) In addition to the above, and except for pumping performed with submersible electrical pumps, there shall be no pumping of wate r from the quarry ponds between the hours of 9:00 PM and 7:00 AM. In emer gencies (such as natural disasters), the District Commission or District Coo rdinator may allow operations outside of these times for the purpose of, and upon such terms and conditi ons for, the protection of public health, safety, and w elfare. f) All crushing or screening will only be allowed with in the quarry limits and at or below existing quarry floor levels. Stipulation at ¶ 4, suggesting revisions to Permit Condition 6.

18. Applicants, as a consequence of their Stipulation w ith some of the other parties to this appeal, have agreed to reduce the annualized volume of rock, gravel, and sand processed and sold from their Project to the following levels: a. Maximum annual processing 5 of all earth products shall be limited as follows: i. Year One: no more than 35,000 cubic yards (not i ncluding up to 7,000 cubic yards of materials supplied with regard to repairs related to Tropical Storm Irene, a storm that caused substanti al damage in Vermont in 2011 ); ii. Year Two: no more than 40,000 cubic yards; iii. Year Three: no more than 45,000 cubic yards; a nd iv. Year Four and all subsequent years of operation : no more than 50,000 cubic yards. b. Maximum annual loading of or sale of product sha ll not exceed 120% of the annual processing limits set forth above in sub -paragraph (a), above. Stipulation at ¶ 1.

5 Applicants and the other stipulating parties have defined the term “processing” to include all excavation, crushing, drilling, and blasting of ear th products on or at the Project site, but to not i nclude the loading of or sale of earth products.9

19. Applicants propose to extract rock, gravel, and san d from the project site by conducting several explosive blasts, after drilling a number o f holes into the walls and floor of the quarry work areas and into which explosive materials will be loaded and then detonated. Applicants’ blasting expert and contractor, David Thomas of Tho mas Drilling and Blasting Corporation, provided credible explanations of the blasting proc edures and safeguards that will be employed during the drilling and blasting events at the Proj ect site. Those procedures are detailed in Mr. Thomas’s revised blasting plan, a copy of which was admitted at trial as Exhibit 15. Applicants have agreed to abide by all procedures detailed in Exhibit 15.
20. Applicants’ presentation on the impacts from its pl anned drilling and blasting on the Project site was made more credible by a somewhat u nique set of circumstances: during the course of Applicants’ operation of the pre-existing pit, prior to Applicants’ receipt of an Act 250 permit, Applicants conducted a series of drilling a nd blasting exercises. Initially, these exercises were not condoned by state officials. However, whe n the State suffered the severe flooding and damages on and after August 28, 2011 from Tropical Storm Irene, the Chaves pit was called upon to supply rock, gravel, and sand needed to rep air area roads and properties. 6 To supply the needed rock, gravel, and sand, Applicants condu cted additional drilling and blasting exercises at the pit during the fall of 2011.
21. The drilling and blasting events that occurred on t he Project site from September 11, 2011 to November 3, 2011, were monitored and their impacts recorded. Copies of the records
from those blasts were admitted at trial as Exhibit s 17(a) through (k).
22. As detailed in the Blasting Plan (Exhibit 15), Appl icants have proposed several measures to provide notice of each blasting event and to mon itor the blasting events and the resulting noises. They have also proposed procedures for rev ising the blasting plans, should the blasts cause a greater impact to surrounding properties th an Applicants and their contractors anticipate. These procedures will reduce the poten tial for adverse impacts upon area neighbors and their properties.

6 Due to the damages suffered throughout the State, particularly in southern Vermont, the Vermont Natural Resources Board issued the Tropical Storm I rene Emergency Quarry Exemption (“Exemption”) to ensure that earth materials were available for r oad and infrastructure repair projects. The Exempt ion suspended the Board’s enforcement of permit extract ion limits, allowed for the reopening of closed roc k quarries and gravel pits, and allowed for extractio n from unpermitted quarries and pits. See In re Ch aves Londonderry Gravel Pit, No 60-4-11 Vtec, slip op. a t 1 (Vt. Super Court Envtl. Div. Nov. 3, 2011).10

23. Applicants have agreed to limit the number of and t iming of blasts that may occur during an operational season. These limitations we re presented within the Stipulation proposed by Applicants, Riverside Farm, and the Jar vises: There shall be a maximum of eighteen (18) blasts pe r year. All said blasts shall occur only between the months of March and June, an d September and December. All blasts shall be designed to displace no more than 3,500 cubic yards of material. Blasting shall take place only between the hours of 9:00 a.m. to 3:00 p.m., Monday through Friday, and drilling shal l only take place Monday through Friday between the hours of 7:00 a.m. to 4: 30 p.m. Permittees shall provide all property owners within 1,500 feet, and other property owners who so request, 48 hours written or electronic notice of a ny blasting event. Stipulation at ¶ 9, suggesting revisions to Permit Condition 18.

24. The most significant impacts from pit and quarry op erations generally come from the noises caused by drilling, blasting, rock crushing, large equipment operating within the quarry or pit, and trucks travelling to and from area high ways, both when they are loaded with extracted products and when the trucks are travelli ng with an empty bed.
25. Applicants have agreed to limit some of the noise c aused by their Project to a level that will not exceed 55 dBA (Lmax) at any existing area residence or areas of frequent human use, including the nearby Frog’s Leap Inn. Specifically , Applicants agreed to the following noise
limitations: The maximum noise levels from operations on the sit e, including trucking, but excluding trucks accessing and egressing the site a t its juncture at Route 100 and excluding blasting noise, shall not exceed 55 dba L max at any existing residences or areas of frequent human use as found by the Dist rict Commission in its March 4, 2011 decision. It is understood and agreed that if the existing access is improved and utilized as the sole access . . . , th at truck traffic entering and exiting the project site may, in combination with e xisting Route 100 road noise, cause periodic exceedances of the 55 dba Lmax stand ard on limited portions of the properties to the north and west of the existin g access driveway. In no event, however, may these noise levels on 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 begi nning in 2005 and ending on December 31, 2011. An operations manual shall be p repared which documents and explains all of the noise mitigation measures a nd how they are to be implemented, and such manual shall be an exhibit to the Act 250 Permit for the Quarry on file with the Commission. Additionally, a site plan which shows the location of all noise mitigation measures and the a pproved locations for processing and equipment for each phase shall be on site at all times along with the operations manual, and the site plan shall be a n exhibit to the Act 250 Permit for the Quarry on file with the Commission11

Stipulation at ¶ 7, suggesting revisions to Permit Condition 16.
26. Applicants recognize that the actual noises that em anate from their Project, once in full operation, may cause some unanticipated noise level s and impacts upon project neighbors. In an effort to mitigate and eliminate such unanticipa ted impacts, Applicants proposed the following procedure for both monitoring the sound l evels and to correct the procedures manual, when the pit operations cause unanticipated noise levels: A sound-monitoring plan shall be developed jointly by the expert for Permittees and an expert designated by Riverside Farm to provi de for a cost-effective, verifiable compliance-monitoring plan for the sound standards specified in the Permit. The sound plan shall utilize the assumption s and methodologies contained in the RSG noise study[ 7 ] submitted to the District Commission as part of its March 4, 2011 decision and shall emphasize r apid sharing of data, prompt mitigation of any exceedances, and reasonable means to prevent repeated exceedances, Any plan approved by the designated experts shall b e submitted jointly by Riverside Farm and Permittees to the [District] Com mission, and compliance with the sound plan and the terms thereof shall be incorporated in and become a part of Permittees’ Act 250 permit. In addition to the Permittees’ compliance with the sound plan, Permittees shall, except where otherwise permitted by an effected neighboring landowner, comply with Permit Condition 16 and the 55 dba Lmax [maximum] standard at existing residenc es and areas of frequent human use. Permittees[‘] compliance with the sound plan shall not preclude the State of Vermont or a party hereto from obtaining an adminis trative or judicial remedy for exceedances of the 55 dba Lmax standard by Perm ittees, nor is the State of Vermont or any party precluded from conducting comp liance-monitoring which is in addition to that required by the sound plan. Upon submission of the sound plan to the [District] Commission, any other party hereto, should they desire, may submit to the Commission written comments in op position to the adoption of the sound plan if said written objections are fi led within fifteen (15) days after said plan is filed with the Commission. Any party w ho fails to file a written objection to the sound plan as describe above shall be deemed to have approved said plan, but a party's agreement to the sound pla n does not preclude such person from obtaining an administrative or judicial remedy for exceedances by Permittees, nor shall a party's agreement to the so und plan be construed against that person in any administrative or judicial proce eding.

7 Applicants’ noise expert, Eddie Duncan, testified at our de novo trial and provided several reports that were admitted as evidence: the RGS, Inc. report tit led “Chaves Quarry: Noise Impact Assessment Updated,” dated May 2010 and admitted as Exhibit 19 ; a memorandum from Mr. Duncan to Attorney Hershenson, dated Sept. 29, 2011 and with a subject line of “Sound Monitoring around Chaves Quarry during Flood Emergency Operation,” admitted as Exhi bit 22; and a memorandum from Mr. Duncan to Attorney Hershenson, dated Feb. 24, 2012 and with a subject line of “Sound Propagation Model Results a t the Frog’s Leap Inn for Chaves Utilizing the Existi ng Access Road,” admitted as Exhibit 24.12

The above-stated Parties agree to exercise good fai th and utilize their best efforts to develop the sound plan on or before June 1, 2012 . In the event Permittees and Riverside Farm are unable to develop a mutually agr eeable sound-monitoring plan, either party may request that the Commission hold a hearing for the sole purpose of establishing a monitoring plan consisten t with this paragraph. Stipulation at ¶ 8, suggesting revisions to Permit Condition 17.
27. In addition to noise, another source of adverse imp acts that may be caused by the operation of a quarry that conducts blasting is wha t is commonly known as “flyrock.” Flyrock is exactly what the term implies: rock that flies a s a result of quarry blasts. Quarry operators and employees attempt to limit or eliminate flyrock , due to the hazards it can cause and the waste of blasting energy that it represents. When flyrock lands within the quarry perimeters, it is usually not a cause of concern or harm. However , when flyrock travels beyond a quarry’s boundaries and onto surrounding properties, it can cause grave concerns, damage to nearby properties, and significant physical harm to neighb ors.
28. Applicants and their experts credibly explained why flyrock is unlikely to occur at the Project, particularly because of the revisions to t heir blasting plan (Exhibit 15), especially the planned re-orientation of the drilled holes and bla sting away from the westerly neighbors and Route 100. Applicants’ original and revised blasti ng plans also require that corrective measures and revisions to the blasting plan occur if any ear th materials from a blast travel more than half the distance between the blast and Applicants’ Prop erty boundary. Nonetheless, Applicants devised a procedure to respond to any flyrock that may have an impact upon the Project neighbors and their property: In the event that any blasting event results in an occurrence of flyrock landing outside of Permittees' property line, blasting shall immediate ly cease and shall not resume until the District Commission determines that the resumption of blasting complies with 10 V.S.A. § 6086(a)(9)(E). Permittees shall notify all parties of the event and shall arrange a meeting as soon as possible with all parties who request to participate and with Permitt ees' blasting consultant. All parties shall be given at least five (5) days' advance notice of the time and place of the meeting. Permittees shall prepare proposed revisio ns in the blasting plan to effectively mitigate the risk of a ny reoccurrence [of flyrock] and submit the same to the parties and the District Com mission. Blasting may [only] resume after the District Commission determines tha t the revisions to the blasting plan comply with 10 V.S.A. § 6086(a)(9)(E) and a permit or permit amendment, if required, is issued for the revised blasting plan. Unless the proposed revisions to the blasting plan are found by the Commission or District Commission Coordinator pursuant to [a] Rule 3 jurisdictional opinion to constitute material changes to Permittees’ Act 2 50 Permit, or they determine13

that a permit amendment is otherwise required under the Rules, no permit amendment shall be required. Nevertheless, no blasting may occur except in compliance with the blasting plan as revised. Stipulation at ¶ 10, suggesting revisions to Permit Condition 23.
29. The Act 250 Permit (No. 2W1275) issued by the Distr ict Commission on March 4, 2011,
was admitted at trial as Exhibit 29. Permit No. 2W 1275 contains 30 conditions; Applicants initially contested a number of these conditions in this appeal. However, as a consequence of the Stipulation that Applicants entered into with some of the other parties to this appeal, Applicants agreed to abide by the following conditions and hav e them incorporated into any Act 250 permit that issues as a consequence of this appeal: 8

• Conditions 1 through 5, which include standard cond itions imposed in most Act 250 permits.

• Condition 8, which obligates Applicants to abide by the Vermont Agency of Natural Resources (“ANR”) Discharge Permit (#3-1529 ), Multi-Sector General Permit (#5893-9003), and Conditional Use Determinat ion #NS09-0033 (File 2008- 394).

• Condition 9, which regulates the on-site disposal o f extracted stumps.

• Condition 10, which prohibits the on-site storage o f hazardous materials.

• Conditions 12 and 13, which direct the types of ero sion control measures that Applicants must employ and maintain.

• Condition 14, which requires the establishment and maintenance of a 50-foot undisturbed, naturally vegetative, un-mowed buffer strip from the top of the bank of all watercourses and wetlands on the Project sit e.

• Condition 15, which obligates Applicants to employ all recommended noise mitigation measures.

• Condition 19, concerning the methods of blasting wi thin the Project, blast monitoring, and the maintenance of logs and video r ecording for each blast.

• Condition 20, which requires the installation and m aintenance of air blast monitoring equipment, and restricts peak air blast overpressure levels to below 143 dBA at the nearest structures.

• Condition 21, which obligates Applicants to complet e pre-blast surveys at all residences within 1,500 feet of Applicants’ Propert y (including the Frog’s Leap Inn), provided the residence owner requests a pre-b last survey and authorizes Applicants’ agents to enter upon their land. Appli cants are also required to complete and maintain such surveys to be used as ba selines in evaluating any future claims of damages and to consider any necess ary revisions to the blasting plan.

• Condition 22, which requires Applicants to maintain all blasting records, make them available to the requesting public (at reasona ble times), and file copies of such records with the District Commission.

8 See Stipulation at ¶ 3.14

• Condition 24, which requires Applicants to abide by Air Pollution Permits No. AP06-023 and AP-05-024 and to “ensure that reasonable precautions are taken at all times to control fugitive particulate matter (dust) emissions from the site . . . .”

• Condition 25, requiring Applicants to retain all ex isting vegetation on the Property for screening purposes.

• Conditions 26, through 29, which include standard c onditions imposed in most Act 250 permits governing earth extraction operatio ns. II. Surrounding Neighborhood.
30. Applicants’ Property borders Vermont Route 100, whi ch serves as a major north-south thoroughfare that spans the length of our State. W hile Route 100 is known and serves as a major artery for commercial, industrial, business, and residential transportation, it also includes some of our state’s most scenic highway vistas. Ro ute 100 in many locations runs along the spine of the Green Mountains or through the valley floors along the Green Mountains. Route 100 borders Applicants’ Property and the Frog’s Lea p Inn, then travels down into the nearby Town of Weston, and includes several scenic vistas.
31. The areas near Applicants’ Property are generally r ural, although dissected by Route 100 and the traffic Route 100 brings to this area.
32. The Frog’s Leap Inn is across Route 100 from the Pr oject site. There is an area of vegetation and trees on Applicants’ Property, betwe en the Inn and the Project site, that acts as a buffer between the two properties. However, Inn oc cupants are able to see a portion of the quarry operations as they currently exist from the second floor windows of the Inn.
33. Mr. and Mrs. Hart, the owners of the Frog’s Leap In n, purchased the property in 1998. At the time of their purchase of the Inn, the Chave s gravel pit was in operation, although not at the intensity with which it was operated in later y ears.
34. Several single family residences occupy lands to th e north, east, and west of Applicants’ Property, although these residences are very scatte red and of low density. Only nine residences were identified during trial testimony as being loc ated within 1,500 feet of Applicants’ Property.
35. Wooded and agricultural lands adjoin Applicants’ Pr operty to the north and east. The Riverside Farm Condominium development does not adj oin Applicants’ Property and the project site cannot be seen from Riverside, but the Riverside Farm development is a short distance to the east from Applicants’ Property, acr oss a nearby river.
36. Applicants’ Property has been the site of a sand an d gravel pit operation since at
least 1952. See Exhibits 5a and 5b.15

37. There are or have been several other sand and grave l extraction operations within the vicinity of Applicants’ Property. Also, nearby pro perties host the former Londonderry Landfill (which was the site of a former sand and gravel ope ration), the Town waste transfer station, and a septic spray field.
38. The Windham Regional Planning Commission has identi fied Applicants’ Property and surrounding areas as containing sand and gravel res ources that are not otherwise readily available in this region. See the 2006 Windham Reg ional Plan Sand and Gravel Resources Map, a copy of which was admitted at trial as Exhibit 7. The Windham Regional Plan also identifies
this as an area suitable for land uses identified a s “productive rural lands” and defines such
land uses as follows: Productive rural lands are low density and very low density residential areas containing land-based resources that, when in produ ctive use, contribute to the working landscape and have significant economic val ue. These productive resources include active agricultural lands, sand/g ravel/mineral deposits and operations, high value agricultural soils, and fore stlands. Productive rural lands provide a significant contribution to rural areas b y maintaining open space and providing lands for rural lifestyles and occupation s. Windham Regional Plan at 26; a copy of pages 26 & 7 4 from the Windham Regional Plan was admitted as Exhibit 9; a full cop y of the Windham Regional Plan was admitted as Exhibit 27.
39. The Town of Londonderry Town Plan (“Town Plan”) was adopted to serve “at least two functions: . . . to guide decision-making [such as] . . . adopt[ing] amendments to the zoning and subdivision ordinances. Second, the clearly stated , mandatory provisions of this plan are intended to be legally enforceable standards as pro vided by Act 250 . . . .” Exhibit 28 at 3.
40. The Town Plan contains a section titled “Earth and Mineral Resources” that notes the importance of continued sand and gravel extraction operations to support regional growth, including “construction, fill, erosion control, and highway maintenance.” Id. at 26. This section continues with a list of three general policies, in cluding the importance of assuring “that the extraction and processing of mineral and earth reso urces do not have an adverse effect on the environment, burden municipal services[,] or result in an undue inconvenience to neighboring
landowners.” Id.
41. Unlike some of the other sections of the Town Plan, the Earth and Mineral resources section does not include any “Legally Enforceable S tandards” for purposes of Act 250 review.
See Exhibit 28 at 26–27.16

III. Traffic Impacts.
42. Applicants’ traffic expert provided credible testim ony that Vermont Route 100 in the vicinity of the Project receives about 2,600 vehicl e trips per day, based upon data compiled by VTrans. See Exhibit 13. Trips by large commercial trucks, such as gravel dump trucks, accounted for 225 of those daily vehicle trips, whi ch equals just under 9% of the total estimated daily vehicle trips on Route 100 for 2010. Id.
43. Traffic technicians and experts often rely upon a q ualitative analysis of traffic known as “level of service” (“LOS”), which classifies the qu ality of traffic flows on highways and through highway intersections. A highway that experiences no delays in traffic flow may be classified as having an “LOS A” rating; a highway that has the mo st frequent and extended delays in traffic may be classified as having an “LOS F” rating. LOS ratings vary based upon the length of delays experienced by highway travelers. Traffic e xperts regard an LOS rating from “A” to “C” as an acceptable level of traffic flow on a highway

. 44. Applicants’ traffic expert credibly testified that Route 100 in the vicinity of the Project is regarded as a low-accident area and is often rated at LOS A. The Court accepts this characterization, since the traffic testimony appea red credible and was confirmed by the testimony of other witnesses, including witnesses w ho have driven commercial trucks on Route 100 in the vicinity of the Project and who used to purchase sand and gravel from the Project. No testimony was offered to contradict Applicants’ traffic expert’s assertion that he was unable to find a report of a traffic accident involving an y trucks in the vicinity of the Project.
45. The Town of Londonderry Road Foreman and the Town o f Weston Road Commissioner provided credible, uncontradicted testimony about t he adequacy and safety of the section of Route 100 in the vicinity of the Project and the ne ed in their respective towns for the rock, gravel, and sand that has historically been availab le from the Project.
46. Pursuant to the Stipulation Applicants reached with some of the parties to this appeal, Applicants have agreed to limit the daily truck tra ffic generated from the project to a maximum of 75 loaded trucks per day. See Stipulation at ¶ 5, suggesting revisions to Permit Condition 7. Applicants also agreed to “keep a log of all truck trips, listing the date and time of each trip. Accurate copies of the log shall be submitted to th e [District] Commission within three (3) business days upon request.” Id.
47. Trucks used to haul rock, gravel, and sand from the Project will have the ability to haul up to 14 cubic yards of earth materials per truck t rip. When the Project reaches its maximum17

extraction rate of 50,000 cubic yards per year and assuming all extracted product is sold, the Project will generate up to 3,572 loaded trucks lea ving the Project site in that year. This would equate to 7,144 one-way truck trips per year, becau se each truck must first travel to the Project
before it is then loaded and leaves the site.
48. While this annual maximum number of truck trips app ears large, the limitation on
extraction rates will act as a restriction on the t otal number of days that the project could operate per season. For example, if Applicants wer e to operate at the maximum of 75 loaded truck trips per day, the maximum extraction rates a nd the quantity of material that can be carried per truck would limit the project to no mor e than 48 days of operation per season.
49. What is more likely to occur is that loaded trucks will travel from the Project, on average, at a daily frequency that is much less tha n the stated daily maximums. Applicants’ traffic expert credibly estimated that, on average, the Project will generate 32 new one-way truck trips per day to and from the Project (i.e., 16 loaded trucks per day, on average).
50. Historical customer usage rates for the previous ex traction operations suggest that, on average, 75% of the trucks will travel south on Rou te 100 and 25% will travel north. Using the average rates of truck travel, and now that the Pro ject will employ only an access road on the northern portion of the Property, Applicants’ traff ic expert credibly estimated that an average of 24 of the one-way truck trips each day will travel past the Frog’s Leap Inn. These estimated average daily truck trips will represent less than a one percent addition to the average number of daily vehicle trips on Route 100 and about a 10% increase in the average number of daily truck trips on Route 100.

IV. Aesthetic Impacts.
51. The Project may generate aesthetic noise impacts fo r its neighbors. It may also generate visual impacts, to the extent the Project will even be visible from adjoining properties.
52. As noted above and below, Applicants and their expe rts have credibly established that most of the activities at the Project will generate noises of less than 55 dBA (Lmax) at nearby residences and areas that people frequent. Where t he Project activities, including drilling and blasting, will occasionally exceed 55 dBA (Lmax), t he Project noises will be no louder than the
discernible noises from the Route 100 traffic and a ctivities on surrounding properties. Where noises are generated at unanticipated levels, Appli cants have agreed to a procedure to amend their operations manual. Any changes to the Projec t operations manual will only occur after18

area residents receive notice and an opportunity to be heard. Applicants have also agreed that material changes to its operations manual must be c onsidered by the District Commission.
53. In order to provide more reliability for their nois e level estimates, Applicants also conducted noise monitoring during certain blasting and quarry operation exercises. One monitoring station was set up at the edge of Route 100; another was set up on the Frog’s Leap Inn property. The monitoring recorded area noises both when earth extraction operations were ongoing at the Project site and when they were not.
54. Noise levels recorded from the Route 100 monitoring station are depicted on Exhibit 20; the noise levels from the monitor on the Frog’s Lea p Inn property are depicted on Exhibit 23. Each Exhibit credibly shows that the quarry operati ons did not contribute to a measurable increase in the noise levels at those monitoring st ations.
55. Applicants’ noise expert also prepared a modeled co mparison of the sound levels from various types of vehicles passing by the Project si te on Route 100 and the noises generated from regular pit operations, including drilling and blas ting. The results of these modeling exercises are depicted on Exhibit 21. This modeling included calculations for the pit noises that reach the nine residences closest to the Project site: two re sidences are located north of the Project site, along the northerly edge of Woodstock Lane, and sev en residences are located on the westerly side of Vermont Route 100, across from the Project site, including the residence at the Frog’s Leap Inn. Each of these residences is specificall y identified on Exhibit 21.
56. Applicants’ noise expert provided credible testimon y that the noises from Applicants’ earth extraction operations, including drilling and blasting, are unlikely to produce noise levels in excess of 55 dBA (Lmax) at locations off of Appl icants’ Property. Applicants’ expert’s assessments of various noise levels are credibly su mmarized on Exhibit 21. Of particular importance to the Court’s assessment of this noise modeling is the credible testimony, also depicted on Exhibit 21, that the noises generated b y the pit operations will occur at a lower dBA (Lmax) level than noises generated by the vehicles that already pass along Route 100.
57. Appellants’ noise expert also completed modeling ex ercises for two possible scenarios of the noises that Applicants’ earth extraction operat ion will cause at off-site locations. The first models noise levels for the operation as originally proposed, while the second models noise levels generated from the Project, as revised as a consequence of Applicants’ Stipulation with some of the parties to this appeal.19

58. Applicants’ noise expert summarized this modeling o n Exhibit 25. As a consequence of the revisions to the Project site and operations, A pplicants’ noise expert credibly testified that the noise levels at off-site locations when the pit is in regular operation, including when drilling and blasting will be occurring, are likely to be re duced by 2 dBA (Lmax), due to the mitigation measures Applicants have agreed to take, based upon their Stipulation. Such a reduction in noise levels is significant, since experts in this field commonly recognize that an increase in noise levels by only 10 dBA equates to a doubling i n the level of recognized noise.
59. The Project site is generally screened by trees and other vegetation, especially on its western, southern, and northern boundaries. See Ex hibit 5(e). While Ms. Hart asserted at trial that Applicants cut a significant portion of the tr ees and vegetation that provided screening of the Project when viewed from the Frog’s Leap Inn, t he more credible testimony and other evidence shows that significant vegetative screenin g remains along the land between the Project site and Route 100. While Applicants did not dispu te Mrs. Hart’s testimony that the quarry operations can be seen from the second floor window s at the Inn, the remainder of relevant trial testimony established that much, if not all of the Project site is screened from view at most areas of the Inn. There was no testimony offered at tria l that the Project site is visible from any other nearby residence.
60. Applicants have also agreed to install two earthen berms to the west of the Project site and one to the east of the Project site, all in an effort to provide additional visual and noise screening from the Project, for the benefit of neig hbors to the west and east. Each berm is depicted on the Revised Overall Site Plan. See Exh ibit 2.
61. In consideration of Applicants revisions to the sit e and operations plans, Appellants Riverside Farms and Mrs. Kempner 9 agreed that their concerns about the project had b een addressed, that they therefore were withdrawing the ir opposition to Applicants’ Project, and that a revised Act 250 permit should issue for the Project, in conformance with the terms and conditions in those parties’ Stipulation. See Stip ulation at ¶ 12.

Conclusions of Law This appeal presents a somewhat curious set of proc edural facts. While the appeal originally included three appellants, all of whom f iled a statement of questions that established

9 The Court considers Ms. Kempner’s agreement to be implicit, since she did not object to Applicants’ Stipulation and motion for the Court to adopt its t erms, and also did not appear at trial to assert an y objections to Applicants’ revised site plan and pro posed operations.20

the legal issues to be addressed in this de novo ap peal, settlement discussions concluded just prior to trial that resulted in all three appellant s concurring that an Act 250 permit could issue, subject to conditions mostly similar to the conditi ons imposed by the District Commission in its approval of the pending application. Applicants fi led a Stipulation with the Court prior to trial, along with a motion that the Court adopt their Stip ulation terms. While the Court has declined to grant that motion, concluding that the more appr opriate practice is for the Court to render its own Findings of Fact and Conclusions of Law, the Co urt has concluded that the facts agreed to by the settling parties include the most credible f acts that are material to the legal issues remaining in this appeal. Appellants Riverside Farms and Kempner have withdra wn the oppositions raised in their respective appeals. Appellant/Applicants ori ginally filed a Statement of Questions that raised fifteen legal issues, 10 but all of Applicants’ legal challenges are addres sed in their Stipulation, which provides for revisions to or rep lacements of the permit conditions Applicants sought to challenge in their appeal. Applicants’ Stipulation with some of the parties do es not dispose of the legal issues remaining to be addressed in this appeal, however, since not all parties agreed to the terms of the Stipulation. Rather, the Stipulation amongst s ome, but not all of the parties to this appeal merely means that the evidentiary hearing goes forw ard with some parties presenting a unified set of facts and proposed conditions. In this part icular instance, only Mrs. Hart appeared at trial and she was the only witness offered in opposition to the Project. As we do during and after all disputed de novo hearings, we have considered all e vidence presented at trial, assessed its credibility and relevancy to the legal issues prese nted, and thereafter made our factual and legal
determinations. While Applicants presented multiple legal issues in their Statement of Questions, we understand that Applicants’ Questions only address four of the criteria and sub-criteria available for our review under the applicable Act 2 50 criteria detailed in 10 V.S.A § 6086(a)(1)– (10): Criterion 5 concerning traffic impacts; Crit erion 8 concerning aesthetic impacts, Criterion 9(E) concerning the extraction of earth resources, environmental impacts, and the appropriate rehabilitation of the extraction site; and Criterio n 10, concerning conformance with the

10 Applicants’ Statement of Questions, filed May 13, 2011, contains seven Questions; Question 7 is made up of nine sub-questions.21

applicable town and regional land use plans. We th erefore limit our legal analysis of the facts presented at trial to those four criteria. When a district environmental commission, or this C ourt on appeal, is charged with reviewing and making a determination on an applicat ion for an Act 250 permit, we may only conclude that the application should be approved an d an Act 250 permit issued when we have rendered positive findings under all applicable cri teria. 10 V.S.A. § 6068(a). Our review on appeal is often more limited than the review conduc ted by a district commission, since our jurisdiction is limited to the legal issues preserv ed for our review by the appellant’s statement of questions. V.R.E.C.P. 5(f). Thus, we must firs t determine whether positive Findings and Conclusions may be rendered on the four Act 250 cri teria remaining for our review in this appeal. Because we have concluded, as explained be low, that positive Findings and Conclusions may be rendered, with the appropriate c onditions, we also have concluded that Applicants’ application should be granted and an Ac t 250 permit issued.

I. Traffic Impacts (10 V.S.A. § 6086(a)(5)). To render positive Findings and Conclusions under A ct 250 Criterion 5, we must conclude that the Project as now proposed will “not cause unreasonable congestion or unsafe conditions” on area highways. 10 V.S.A. § 6086(a)( 5). No suggestion was made at trial that the volume of truck traffic generated by this Project w ill be so substantial as to cause unreasonable congestion or unsafe conditions on Route 100 and we therefore conclude that no such congestion or unsafe conditions will be caused by t he new truck traffic from the Project. The fact that previous earth extraction operations have operated from this same site for decades provides a strong foundation for determinin g whether this Project will cause traffic congestion or unsafe conditions. We temper our ana lysis here, since Applicants’ proposed earth extraction operation will generate more truck traff ic than the historical operations. But even at the increased level of the proposed Project, the es timated new traffic from the Project will represent less than a one percent increase in the a verage number of vehicles passing the Property on Route 100, and will represent no more t han a ten percent increase in the average number of heavy trucks travelling in this area on R oute 100. There were concerns previously expressed about the relative safety of the existing access
road intersection with Route 100. These concerns m ay have contributed to Applicants’ suggestion to construct an alternate access road on the southern portion of the Property. However, Applicants now proposes to use the origina l northern access road, with some22

modifications to specifically improve the curb cut and site distances by relocating the access road junction 100 feet north on Route 100. No part y contradicted Applicants’ and their traffic expert’s assessment that the improved northern acce ss intersection with Route 100 will conform to all VTrans recommendations, specifically the B-7 1 Standards, and provide for a safe and adequate access to Route 100 for trucks entering an d exiting the project site. Conditioned upon the northern drive being the sole access road, as well as completion of the proposed improvements to the access road inters ection with Route 100, we conclude that the Project as proposed conforms to Criterion 5.

II. Aesthetic Impacts (10 V.S.A. § 6086(a)(8)). Criterion 8 requires that we determine whether the Project as proposed will have “an
undue adverse effect on the scenic or natural beaut y of the area, aesthetics, historic sites, or rare and irreplaceable natural areas.” 10 V.S.A. § 6086 (a)(8). We did not receive any evidence that historic sites or rare or irreplaceable natural are as are located on the Property or in the surrounding areas. We therefore limit our review u nder Criterion 8 to the Project’s impact upon scenic or natural beauty of the area and its a esthetics. As noted in our Findings above, Route 100 includes many scenic vistas and the area of Route 100 near the Project generally contains rural areas of natural beauty, although no portions of Route 100 near the Project site, nor any portion s to the north or south of the Project site contain the expansive scenic vistas that exist in s ome other parts of this rural highway. See In re Rivers Dev. Act 250 Appeal, No. 68-3-07 Vtec, slip op. at 9–10 (Vt. Envtl. Ct. March 25, 2010) (describing the scenic characteristics of another s ection of Route 100). More to the point, there were no suggestions at our trial that the Project a s proposed will interfere with any areas of scenic or natural beauty. We now turn to the last Criterion 8 category: impacts upon aesthetics. A general analysis of aesthetic impacts can be very subjective, but the former Vermont Environmental Board established a two-part test, kn own as the Quechee test, to evaluate a project under Criterion 8. Re Quechee Lakes Corp., Docket Nos. 3W0411-EB and 3W0439-EB, Findings of Fact, Conclusions of Law and Order, sli p op. at 17 (Vt. Envtl. Bd. Nov. 4, 1985) (quoting Re: Brattleboro Chalet Motor Lodge, Inc., Docket No. 4C0581-EB (Vt. Envtl. Bd. Oct. 17, 1984)). First, a court examines whether a proposed project may cause an adverse impact and, if so, the court determines whether that impact will b e “undue,” thereby leading to negative findings under Criterion 8. Id.23

We turn first to the “adversity” prong of the test. In establishing a definition for adverse impacts, the Board noted that “the word ‘adverse’ m eans unfavorable, opposed, hostile” to the character of the area. Id. We start by examining the baseline character of the area, including its aesthetics, in order to determine whether this prop osed use will be adverse.

a. The character of the area. Route 100 and the traffic that travels on it permea te this neighborhood, especially for the homes and commercial properties that are close to t he highway boundaries. The Frog’s Leap Inn is about 200 feet away from the highway boundar ies, but Mrs. Hart conceded at trial that visitors to the front rooms of the Inn can regularl y hear and see trucks and other vehicles that travel along this highway. There may be portions o f the Harts’ property where the traffic from Route 100 is only faintly heard, but we received li ttle details of that. Mrs. Hart’s testimony did not contradict the presentation of other witnesses that Route 100 traffic permeates the neighborhood, especially all properties adjoining t he highway. Any person sitting in front of the Inn, or in its rooms adjoining Route 100, must be very much aware of the highway traffic
and noise. Many of the other properties adjoining Applicants’ Property are undeveloped; where they are developed, several properties have single family residences that are sparsely situated. Only nine homes were identified within 1,500 feet o f the Property. No immediate neighbors appeared to express concerns about the proposed Pro ject; the neighbors who did appear occupy nearby lands that are not adjoining Applicants’ Pro perty, and all neighbors (other than the Harts) who did appear in this appeal later chose to offer no objections to the Project at trial. This Property has historically been used as a rock quarry and a sand and gravel pit; that history dates back to 1952, before Vermont’s legisl ature adopted state land use regulations. Several nearby properties also hosted earth extract ion operations and the Londonderry Landfill, and the neighborhood currently hosts a commercial t ransfer station and a municipal septic spray field. The area may be rural, but it include s a working landscape with varied commercial operations. Importantly, the baseline “character o f the area” that we consider in evaluating the impact of the project’s operational and traffic noi se includes pre-existing background noise from passing traffic on Route 100 and noises tradit ionally emitted from other nearby uses. It is in this context that we consider whether the projec t’s effect on the area will be “adverse” to that
character.24 b. Whether the impact is “adverse” to the area’s chara cter. The Project’s expected truck traffic will bring add itional traffic noises to the neighborhood, but the evidence presented at trial c auses us to conclude that the increase in traffic noises generated by the Project will be min imal. Actual readings of truck traffic noises while Applicants were operating their Project prior to receiving a permit convincingly show
that the noises from the increased truck traffic wi ll not exceed the existing traffic noises in the neighborhood, and the modeling conducted by Applica nts’ noise expert, unchallenged at trial, confirmed this noise impact assessment. Based upon the evidence presented, we conclude that the additional truck traffic the Project generates will not have an adverse discernible impact on this neighborhood, since the neighborhood is alread y subject to noises from traffic on Route 100. This neighborhood has also experienced sand and gra vel extraction noises for more than fifty years, both from this property and other near by properties. But Applicants propose to bring more intensive operations to the neighborhood . These intensified operations will include drilling, blasting, and crushing of rock, noises th at may be regarded as unfavorable or hostile to the surrounding area. Noises from drilling, blasti ng, and rock crushing will be unique to the area, since such activities haven’t occurred in the past under state land use permit authority. Even when such noises from the proposed Project do not rise above the discernible level of other area noises, the drilling, blasting, and crus hing noises will have a unique, discernible, and disturbing character. We therefore conclude that s uch noises may be adverse to the neighborhood, its residents, and visitors.

c. Whether the impact is “undue,” given the area’s char acter. We therefore address the second component of an Act 250 aesthetic analysis, that is, when an impact is deemed adverse, whether it is und ue and therefore in conflict with Criterion 8. 10 V.S.A. § 6086(a)(8).
The former Environmental Board established that an adverse impact would be considered to be “undue” if any one of the three fo llowing questions is answered in the
affirmative: (1) Does the project violate a clear, written commu nity standard intended to preserve the aesthetics or scenic, natural beauty o f the area; (2) Does the project offend the sensibilities of th e average person; and (3) Has the applicant failed to take generally avai lable mitigating steps that a reasonable person would take to improve the harmony of the proposed project with its surroundings.25

Quechee Lakes Corp., Docket Nos 3W0411-EB and 3W043 9-EB, slip op. at 19–20.
We provided a summary of what has become known as t he “Quechee test,” introduced above, in the merits decision of In re Eastview at Middlebury, Inc., No. 256-11-06 Vtec (Vt. Envtl. Ct. Feb. 15, 2008) (Durkin, J.), aff’d 2009 VT 98, 187 Vt. 208. Our Vermont Supreme Court most recently spoke approvingly of the use of the Q uechee test in In re Rinkers, Inc., 2011 VT 78, ¶ 9, 190 Vt. 567. The Quechee test is an establish ed methodology, used in all forums called upon to consider a project’s conformance to Criteri on 8. We therefore employ it here. First, we note that the only evidence of clear, wri tten community standards received at trial reinforces the appropriateness of Applicants’ Project in this area. The Windham Regional
Plan establishes that this section of the Town is a ppropriate for productive rural land uses, that earth extraction operations are one of those identi fied land uses, and that the lands in this particular area are known for having sand and grave l resources that are not otherwise readily
available. See Exhibit 7. Second, while Mrs. Hart provided testimony of her c oncerns that she and her guests will find the quarry noises to be undue and offensive, h er concerns were presented in generalities and were difficult to assign credibility, given tha t a sand and gravel operation has been operating in this neighborhood since before the Har ts purchased their adjoining property. We received more credible testimony from Applicant Cha ves, his experts, and area town officials who have witnessed the prior pit operations and hav e experience with other, similar gravel extraction operations. In short, while an increase in operational noises at the Project will certainly be noticeable to the Harts and perhaps ot her neighbors, we do not have sufficient evidence to conclude that the Project as proposed w ill offend the sensibilities of the average

person. Lastly, we look favorably upon the berms, access ro ad relocation, limitations on operational hours, and limitations on the days and weeks of seasonal operation to which Applicants have agreed. These represent substantiv e steps of mitigation that improve the harmony of the proposed Project with its surroundin gs. In sum, we cannot conclude that any one of the crit eria established by the former
Environmental Board have been met to conclude that the aesthetic impacts from Applicants’ Project will be “undue,” even though we also conclu de that some of those aesthetic impacts may be adverse. Having rendered these assessments, we conclude that the Project as proposed
conforms to Act 250 Criterion 8.26

III. Extraction of Earth Resources (10 V.S.A. § 6086(a)( 9)(E)). No evidence was provided at trial of any anticipate d harmful impacts that are feared to be caused by the Project as proposed. Applicants’ expert has presented a blasting plan that has gone through several revisions, including after the District Commission issued its permit decision and after several neighbors offered their assessments as well. Applicants’ revised blasting plan (Exhibit 15) incorporates pre-blastin g surveys of area residences, so that a proper baseline is established to respond to damage claims . As proposed in the revised blasting plan, there is little evidence that damage from blasts, i ncluding flyrock leaving the Property, will occur from this Project. Applicants have also agreed to annual limits of bla sts and when blasting is prohibited during the operational season. Applicants have agr eed to limits on the amount of explosives to be employed and the pea stone packing to be used in each blast hole. These procedures will limit the intensity of the blasts and appear to eli minate the likelihood of harmful impacts from the Project. Further, Applicants have committed to providing at least 48 hour notices of every blast to all residents within 1,500 feet, and have agreed to an effective procedure by which its general and blasting operations manuals may be revised, sho uld unanticipated impacts occur. In the event of a needed revision to Applicants’ blasting plan, all blasting will cease until neighbors are noticed and provided with an opportunity to com ment, and any necessary approval from
the District Commission is received. In summary, Applicants have pledged to implement op erational and blasting procedures that both appear to assure that no harmf ul impacts will occur, and have designed a reliable procedure for revising its plans in the un likely event that unanticipated impacts occur. We conclude that Applicants’ proposed Project confo rms to Criterion 9(E)(i). Little attention during trial was paid to challengi ng the District Commission’s assessment that the proposed project will satisfy C riterion 9(E)(ii). We note that Applicants’ revised Project plan, including the revisions conte mplated by the parties’ Stipulation, establish that Applicants will follow an established phasing and rehabilitation plan that will allow for the Property, once these extraction operations are comp leted and the term of any permit expires, to support an alternative use or development. We ther efore conclude that Applicants’ proposed Project conforms to Criterion 9(E)(ii).27

IV. Conformance with Town and Regional Plans (10 V.S.A. § 6086(a)(10)). Any applicant for an Act 250 permit must show that its proposed project conforms to the applicable municipal and regional land use plans. 10 V.S.A. § 6086(a)(10). Municipal and regional plans serve as important documents for com munities, since they often articulate a community’s goals and desires for its future; howev er, their direct applicability in the regulation of land use can be limited, since town and regional plans a re often stated in language that is best described as “nonregulatory abstractio ns.” In re Molgano, 163 Vt. 25, 31 (1994). The Supreme Court has therefore cautioned that to suppo rt a conclusion that a proposed project conflicts with a town or regional plan, the plan la nguage relied upon must be “’stated in language that is clear and unqualified, and creates no ambiguity.’” In re Appeal of JAM Golf, LLC, 2008 VT 110, ¶ 17, 185 Vt. 201 (quoting In re John A. Russell Corp., 2003 VT 93, ¶ 16, 176 Vt. 520). For the reasons detailed below, we concl ude that no language in either the Town or Regional Plan expresses a clear, unqualified, and u nambiguous restriction on the uses Applicants propose for their Project. In fact, the language from either Plan that references earth extraction operations such as Applicants’ proposed operations reinforces the importance of and need for such uses. Furthermore, these documents i dentify the area of the Project as an area appropriate for such uses. The Town Plan (Exhibit 28) expresses general polici es concerning earth and mineral resources and the importance of those resources to the region’s future growth. Id. at 26. While the Town Plan does not provide specific standards t o guide our review, we note that the second stated general policy seeks to ensure “that all tow n regulations and review procedures provide
for restoration of extracted sites.” Id. We view Applicants’ proposal to rehabilitate the excavated area as phasing is completed to further t his general policy. Conversely, we find no specific language in the Town Plan that can be reli ed upon to prohibit Applicants’ proposed

uses. The Windham Regional Commission, of which Londonder ry is a member town, has identified the area of Applicants’ Property as an a rea with significant sand and gravel resources. See Exhibit 8, the 2006 Windham Regional Plan Sand and Gravel Resources Map. The Regional Plan also notes the historical use of Applicants’ p roperty and surrounding properties for earth extraction operations. The Regional Plan identifies this as an area suitable for land uses identified as “productive rural lands” that can “co ntribute to the working landscape and have28

significant economic value[, including] sand/gravel / mineral deposits and operations . . . .” Exhibit 27 (Regional Plan) at 26. There was no evidence presented at trial of standar ds within the Regional Plan that specifically prohibit the proposed project, and our own review revealed no such standards. We therefore conclude that the proposed Project confor ms to both the Town and Regional Plans.

Conclusion For all the reasons more fully discussed above, we GRANT Applicants’ application for an Act 250 permit by concluding that the Project as proposed, subject to the conditions established below, conforms to Act 250 Criteria 5, 8, 9(E), and 10, which are the criteria we were called upon to review in this de novo appeal of the proceedings before the District 2 Environmental Commission. Our approval is subject to the conditions detailed in this decision, all of which may be summarized as follows:

• Conditions 1 through 5 shall remain as stated by the District Commission in Permit No. 2W1275, issued March 4, 2011, which was admitted at trial as Exhibit 29.

• Condition 6 shall read as follows: a) The hours of operation open to the public: 7:00 AM to 5:00 PM, Monday through Friday. b) There shall be no sales, loading, or processing of earth products on Saturdays. c) In addition to the limitation on the hours of op eration in sub-paragraph (a), above, there also shall be no drilling, blasting, o r crushing during the months of July and August, the last week in June, and the fir st week in September. d) In addition to the above, and except for pumping performed with submersible electrical pumps, there shall be no pumping of wate r from the quarry ponds between the hours of 9:00 PM and 7:00 AM. e) The quarry shall be closed in all respects on Su ndays. f) In emergencies (such as natural disasters), the District Commission or District Coordinator may allow operations outside of these t imes for the purpose of, and upon such terms and conditions for, the protection of public health, safety, and welfare. g) All crushing or screening will only be allowed w ithin the quarry limits and at or below existing quarry floor levels.

• Condition 7 shall read as follows: Except in emergency situatio ns invoked under Permit Condition 6, there shall be a maximum of 150 trips (75 loads) per day. The Permittees shall keep a log of all truck trips, lis ting the date and time of each trip. Accurate copies of the log shall be submitted to th e Commission within three (3) business days upon request.29

• Conditions 8 through 15 shall remain as stated by the District Commission in Permit No. 2W1275.

• Condition 16 shall read as follows: The maximum noise levels from operations on the sit e, including trucking, but excluding trucks accessing and egressing the site a t its juncture at Route 100 and excluding blasting noise, shall not exceed 55 dBA ( Lmax) at any existing residences or areas of frequent human use as found by the Dist rict Commission in its March 4, 2011 decision. It is understood and agreed that if the existing access is improved and utilized as the sole access, that truck traffic entering and exiting the project site may, in combination with existing Route 100 road no ise, cause periodic exceedances of the 55 dBA (Lmax) standard on limite d portions of the properties to the north and west of the existing access drivew ay. In no event, however, may these noise levels on any portions of the propertie s 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 an d ending on December 31, 2011. An operations manual shall be prepared which docume nts and explains all of the noise mitigation measures and how they are to be im plemented, and such manual shall be an exhibit to the Act 250 Permit for the Q uarry on file with the Commission. Additionally, a site plan which shows t he location of all noise mitigation measures and the approved locations for processing and equipment for each phase shall be on site at all times along with the operations manual, and the site plan shall be an exhibit to the Act 250 Permit for the Quarry on file with the Commission.

• Condition 17

shall read as follows: A sound-monitoring plan shall be developed jointly by the expert for Permittees and an expert designated by Riverside Fa rm to provide for a costeffective, verifiable compliance-monitoring plan fo r the sound standards specified in the Permit. The sound plan shall utilize the as sumptions and methodologies contained in the RSG noise study admitted at trial as Exhibits 19, 22, and 24 and shall emphasize rapid sharing of data, prompt mitig ation of any exceedances, and reasonable means to prevent repeated exceedances. Any plan approved by the designated experts shall b e submitted jointly by Riverside Farm and Permittees to the District Commi ssion, and compliance with the sound plan and the terms thereof shall be incor porated in and become a part of Permittees’ Act 250 permit. In addition to the Per mittees’ compliance with the sound plan, Permittees shall, except where otherwis e permitted by an affected neighboring landowner, comply with Permit Condition 16 and the 55 dBA (Lmax) [maximum] standard at existing residences and areas of frequent human use. Permittees’ compliance with the sound plan shall no t preclude the State of Vermont or a party hereto from obtaining an adminis trative or judicial remedy for exceedances of the 55 dBA (Lmax) standard by Permit tees, nor is the State of Vermont or any party precluded from conducting comp liance-monitoring which is in addition to that required by the sound plan. Up on submission of the sound plan to the District Commission, any other party he reto, should they desire, may submit to the Commission written comments in opposi tion to the adoption of the30

sound plan if said written objections are filed wit hin fifteen (15) days after said plan is filed with the Commission. Any party who f ails to file a written objection to the sound plan as described above shall be deeme d to have approved said plan, but a party's agreement to the sound plan does not preclude such person from obtaining an administrative or judicial remedy for exceedances by Permittees, nor shall a party's agreement to the sound plan be cons trued against that person in any administrative or judicial proceeding. Permittees and Riverside Farm have agreed to exerci se good faith and utilize their best efforts to develop the sound plan, with notice to all other parties of record. In the event Permittees and Riverside Farm are unable to develop a mutually agreeable sound-monitoring plan, either pa rty may request that the Commission hold a hearing for the sole purpose of e stablishing a monitoring plan consistent with this paragraph.

• Condition 18 shall read as follows: There shall be a maximum of eighteen (18) blasts pe r year. All said blasts shall occur only between the months of March and Ju ne, and September and December. All blasts shall be designed to displace no more than 3,500 cubic yards of material. Blasting shall take place only between the hours of 9:00 AM to 3:00 PM, Monday through Friday, and drilling shall only take place Monday through Friday between the hours of 7:00 AM to 4:30 PM. Permittees shall provide all property owners within 1,500 feet, and other property owners who so request, 48 hours written or electronic notice of a ny upcoming blasting event.

• Conditions 19 through 22 shall remain as stated by the District Commission in Permit No. 2W1275.

• Condition 23 shall read as follows: In the event that any blasting event results in an occurrence of flyrock landing outside of Permittees' property line, blasting shal l immediately cease and shall not resume until the District Commission determines tha t the resumption of blasting complies with 10 V.S.A. § 6086(a)(9)(E). Permittee s shall notify all parties of the event and shall arrange a meeting as soon as possib le with all parties who request to participate and with Permittees' blasting consul tant. All parties shall be given at least five (5) days’ advance notice of the time and place of the meeting. Permittees shall prepare pro posed revisions in the blasting plan to effectively mitigate the risk of any reoccu rrence of flyrock and submit the same to the parties and the District Commission. B lasting may only resume after the District Commission determines that the revisio ns to the blasting plan comply with 10 V.S.A. § 6086(a)(9)(E) and a permit or perm it amendment, if required, is issued for the revised blasting plan.
Unless the Commission or District Commission Coordi nator finds, pursuant to a Rule 3 jurisdictional opinion, that the proposed revisions to the blasting plan constitute material changes to Permittees’ Act 250 Permit, or they determine that a permit amendment is otherwise required under the Ru les, no permit amendment shall be required. Nevertheless, no blasting may o ccur except in compliance with the blasting plan as revised.31

• Conditions 24 through 29 shall remain as stated by the District Commission in Permit No. 2W1275.

• Condition 30 shall read as follows: This permit shall expire twenty-five (25) years fol lowing the issuance hereof or upon completion of the reclamation plan for the pro ject, whichever occurs last.

• An additional Condition shall be added as follows: a. Maximum annual processing of all earth products shall be limited as follows: i. Year One: no more than 35,000 cubic yards (not including up to 7,000 cubic yards of materials supplied with regard to repairs related to Tropical Storm Irene, a storm that caused substantial damage in Ve rmont in 2011); ii. Year Two: no more than 40,000 cubic yards; iii. Year Three: no more than 45,000 cubic yards; and iv. Year Four and all subsequent years thereafter: 50,000 cubic yards. b. Maximum annual loading of or sale of product sha ll not exceed 120% of the annual processing limits set forth above in sub-par agraph (a), above.

Applicants are obligated to provide the District Co mmission with a complete set of site plans, operation manuals, and all other Exhibit s admitted at trial and shall maintain a copy of such Exhibits at all times during the durat ion of the underlying Act 250 permit. These proceedings are remanded to the District 2 En vironmental Commission to complete the ministerial act of issuing a revised A ct 250 Permit in conformance with this Merits Decision and the unappealed terms and conditions of the District Commission’s March 4, 2011
Decision and Permit. A Judgment Order accompanies this Decision. This c ompletes the current proceedings before this Court concerning this appeal.

Done at Berlin, Vermont, this 17th day of January 2 013.

___________________________________________ Thomas S. Durkin, Environmental Judge