1 

VERMONT SUPERIOR COURT 

Environmental Division Docket No. 79-7-19 Vtec

32 Cherry St, 2nd Floor, Suite 303, 

Burlington, VT 05401 

802-951-1740 

www.vermontjudiciary.org 

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Katzenbach A250 Permit #7R1374-1 │ DECISION ON THE MERITS 

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Rebecca Beidler and Jeffrey Ellis, individually and d/b/a Peace of Earth Farm (together, 

Neighbors), appeal Act 250 permit #7R1374-1 issued on June 13, 2019 by the District #7 

Environmental Commission (District Commission) to Christian and Clark Katzenbach (Applicants) 

for development and operation of a 3-acre commercial sand and gravel pit on property located 

off West Griggs Road in Albany, Vermont. 

Neighbors raise ten Questions in their Amended Statement of Questions. The Court 

resolved Question 2 in an Entry Order issued December 23, 2019, by concluding that the 

successive application doctrine does not bar the present application. See Katzenbach A250 

Permit #7R1374-1, No. 79-7-19 Vtec, slip op. at 3 (Vt. Super. Ct. Envtl. Div. Dec. 23, 2019) (Walsh, 

J.). We held a four-day merits trial on the remaining Questions on January 12–14 and January 

20, 2021. 

Neighbors are self-represented, and Applicants are represented by David L. Grayck, Esq. 

The Natural Resources Board (NRB) is participating in this appeal pursuant to 10 

V.S.A. § 8504(n)(3) and is represented by Gregory J. Boulbol, Esq. 

Based upon the evidence presented at trial the Court issues the following Findings of Fact, 

Conclusions of Law, and Judgment Order that accompanies this Merits Decision. 
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Findings of Fact 

Procedural Background 

1. Applicants seek an Act 250 permit to operate a three-acre commercial sand and 

gravel pit (the Project) on their property located off West Griggs Road, identified in Book 39, 

Pages 201–03 of the land records of the Town of Albany, Vermont (the Property). 

2. On August 29, 2017, the District Commission issued Land Use Permit #7R1374 

(LUP 7R1374) for the Project. 

3. The Project has been in operation since the granting of this permit. 

4. Neighbors, who own property adjacent to the Project, were joined by Mimi Aoun 

and Judy Valley in a timely appeal to this Court. 

5. The Court conducted a single-day trial on November 13, 2018, at the Orleans 

County Courthouse in Newport, Vermont. We conducted a site visit after trial on the same 

day. 

6. Based upon the evidence presented at trial we issued a January 2, 2019 decision 

concluding that Applicants had failed to meet the initial burden of production for each of the 

criteria under review. We expressly noted that pursuant to 10 V.S.A. § 6087(c), Applicants 

had the opportunity to apply for reconsideration within six months of the January 2 decision 

after supplementing the application with evidence of compliance with the relevant criteria. 

See In re Times & Seasons, LLC, No. 45-3-09 Vtec, slip op. at 7–8 (Vt. Envtl. Ct. Mar. 29, 2010) 

(Durkin, J.) (discussing an Act 250 application for reconsideration), aff’d, 2011 VT 76, 190 Vt. 

163. 

7. On February 22, 2019, Applicants filed application #7R1374-1 with the District 

Commission for the same sand and gravel operation. The District Commission approved the 

application and issued Land Use Permit #7R1374-1 (the Dash 1 Decision and Dash 1 Permit) 

for the Project on June 13, 2019. 

8. This proceeding concerns Neighbors’ appeal of the Dash 1 Permit, filed on July 12, 

2019. 
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Project Overview 

9. The Project occupies approximately 3 acres on Applicants’ property, located off 

West Griggs Road in Albany, Vermont. 

10. West Griggs Road is a Class IV dirt road, which means it is minimally maintained 

by the Town. See 19 V.S.A. § 302(b). Beginning at an intersection with Vermont Route 14, 

the road runs uphill to the southeast. The entrance to the sand and gravel pit, or the Project 

site, is approximately 1300 feet up West Griggs Road from Route 14, on the south side of the 

road. 

11. Applicants own land on both the north and south sides of West Griggs Road, 

beginning at a western boundary approximately 1200 feet up the road from Route 14. The 

3-acre Project site is located on the south side of West Griggs Road, near Applicants’ western 

boundary. 

12. There is a cluster of residences on the lower segment of West Griggs Road, near 

the Route 14 intersection. The houses are generally closer to West Griggs Road than Route 

14, and one building is so close that extends into the West Griggs Road right-of-way. 

13. Property owners with residences on West Griggs Road include Ms. Beidler and Mr. 

Ellis (Neighbors), and Judy Valley. 

14. The property of Janice and Kenneth Adams is located at 397 Vermont Route 14 N., 

on the south side of West Griggs Road. The Adams property runs along West Griggs Road 

from the end of the residential area to Applicants’ western boundary. The Adams residence 

is over 1000 feet from the pit, and their eastern property line is approximately 100 feet from 

the pit. 

15. Neighbors live and work at 43 West Griggs Road. Their residence is within 100 

feet of West Griggs Road; approximately 200 feet from Route 14; and approximately 1400 

feet from the pit. Their property extends up the north side of West Griggs Road to a boundary 

with Applicants’ land. The southeastern corner of their property is closest to the pit: 

approximately 100 feet away. 

16. Neighbors are ecological farmers. In broad terms, this means that their farming 

operation uses organic inputs, minimal machinery, and no chemical pesticides or herbicides. 
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They maintain commercial vegetable gardens, greenhouses, and fruit trees on their property. 

They also cultivate mushrooms and raise various types of livestock, utilizing portions of their 

land for rotational grazing. They are concerned about the Project’s potential impacts on their 

land, business, and quality of life. 

17. Haul trucks access the Project site from Route 14, driving up West Griggs Road and 

turning right into the pit entrance. To leave the Project site, trucks turn left out of the pit 

entrance and head down West Griggs Road again to the Route 14 intersection. 

18. Between the intersection and the pit entrance, parts of the road are quite steep. 

19. The lower segment of the road, near Route 14 and the residences, is 

approximately 18 feet wide. Further up, the road narrows to 14 feet. 

20. The Project is currently operating pursuant to the Dash 1 Permit. On appeal, 

Applicants’ proposal mirrors the terms and conditions of the Dash 1 Permit with some 

exceptions. Aspects of the proposal carried over from the Dash 1 Permit include the 

following.1 

21. The hours of operation shall not exceed 6:30 AM to 6:00 PM, Monday to Friday, 

and 7:00 AM to 1 PM on Saturdays, with no operation on national holidays. 

22. Water and/or calcium chloride will be used to control dust on haul roads, traffic 

area, and storage piles. 

23. Trucks entering, exiting, or operating at the site will be covered when they are 

loaded with materials that may generate dust. 

24. Only trucks with factory original (or equivalent) equipment will be allowed at the 

Project and on West Riggs Road. 

25. There will be a maximum of 2.9 acres of open un-reclaimed pit area at any given 

time. 

26. The annual rate of extraction will not exceed 30,000 cubic yards (CY) per year. 

27. Total extraction will not exceed 121,000 CY over the 20-year operating life of the 

Project. 

1

 We include only the terms and conditions with particular relevance to our consideration of the criteria 

under review on appeal. 
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28. The maximum Project truck traffic will be 40 one-way trips per day or 20 round 

trips (truckloads) per day. 

29. In contrast to the proposal approved in the Dash 1 Permit, the proposal before 

this Court does not include on-site or off-site crushing of material. The District Commission 

previously approved up to 15 days of crushing operations per calendar year. 

Experts and Witnesses 

30. Nathan P. Sicard, P.E., an engineer with Ruggles Engineering Services, Inc., 

testified on behalf of Applicants as an expert witness. Mr. Sicard spoke to his report and 

accompanying exhibits regarding the Project’s impacts on air pollution, aesthetics, floodways 

and streams, soil erosion, and traffic. He prepared his report after visiting the site and 

reviewing information presented to the District Commission, along with the study prepared 

by Applicant’s sound expert and relevant permits including LUP 7R1374 and the Dash 1 

Permit. Mr. Sicard has provided permitting design and support for at least ten Act 250 

projects in the last five years, including quarries. He has been regularly involved with Act 250 

projects since 2004 and has also consulted on numerous statewide transportation projects. 

31. Eric L. Reuter is a Board-Certified acoustics consultant with Reuter Associates, LLC, 

a firm he founded to provide acoustic and noise control consulting services. Mr. Reuter 

testified on behalf of Applicants as a sound expert. He offered his study and assessment of 

noise impacts from the Project, based on sound measurements he took and modeling he 

conducted for various scenarios involving pit equipment, haul trucks, and traffic on Route 14. 

There was no monitoring of noise outside of the pit itself. Mr. Reuter has considerable 

experience in environmental sound control, evaluating sound propagation and impacts. He 

has managed several hundred environmental noise projects, including those involving 

mineral extraction and transportation. He has also worked on several Act 250 projects. 

32. Brian Goodridge, a member of the Town of Albany selectboard, testified on behalf 

of Applicants. He relayed his knowledge of the Town’s discussions with Applicants, and the 

maintenance and classification of West Griggs Road. He also gave his impressions of the road 

conditions and the general characteristics of Project area including nearby residences and 

traffic. 
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33. Clark Katzenbach testified on his own behalf as one of the Applicants. He 

discussed past, present, and future operations and maintenance activities associated with 

the Project. He also spoke to his knowledge and impressions of the Project area, including 

surrounding properties and West Griggs Road. Mr. Katzenbach also indicated that he 

understands the reasons for this Court’s prior denial of the Project: a lack of evidence relevant 

to the Act 250 Criteria. He hired experts and worked to supplement the application with 

additional evidence to meet the burden of production. 

34. Jeffrey Ellis testified on behalf of Neighbors. He provided background 

information, including his knowledge of the area and Neighbors’ property, and he described 

their farming operations and recreational uses of the land. He also provided a detailed 

account of the impacts Neighbors have experienced and observations they have made 

regarding many aspects of the Project since it began operating. 

35. Janice and Kenneth Adams each submitted affidavits which were accepted into 

evidence, stating that they have no objection to the Project or the noise from the Project. 

They also do not object to the noise and sound levels predicted by Mr. Reuter. Ms. Adams 

testified at trial to the same, and Mr. Adams adopted her testimony. 

Criterion 1: Air Pollution 

Dust 

36. Mr. Sicard identified potential sources of airborne dust from sand and gravel 

extraction and associated operations: excavation and processing, the conditions at the 

extraction and processing site, and transportation. Depending on the project, processing may 

include screening, crushing, loading, and trucking. 

37. Applicants propose to operate within 3 acres of exposed pit area at any given time. 

The Project will involve excavation, screening, loading, and transportation of sand and gravel. 

38. Equipment used at the site will include an excavator, bucket loader, screen, and 

dump trucks. There is the possibility of more than one truck on-site at a given time. Once 

loaded, trucks will transport material down West Griggs Road. 

39. Applicants are not proposing any crushing of material, on-site or otherwise. 
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40. Mr. Sicard testified the Project will generate some dust; however, the scope of the 

Project is small relative to other earth extraction projects in the region and its scale will limit 

potential dust impacts. He stated that the Project is set up well to contain dust within the 

site. 

41. The conditions imposed by the Dash 1 Permit limit the volume of extraction to 

30,000 cubic yards per year, thereby limiting the potential dust impacts. 

42. The comparatively small size of the pit, with its triangular and narrow shape, will 

not provide enough space for a large, acute extraction face. Mr. Sicard explained that large 

open face conditions with acute, or right angles can allow wind to come up from the base and 

create dust. The restrictive size of the Project effectively controls dust by ensuring a relatively 

low face height and a more relaxed angle, limiting the potential for dust to become airborne. 

43. Other significant factors in the amount of dust generated by excavation and 

processing include the amount of activity and the amount of precipitation. As operational 

intensity increases, more frequent dust control measures may be needed. Precipitation will 

reduce the potential for dust, while dry site conditions will increase the potential. Applicants 

should adapt dust control practices to suit the conditions at the site and the intensity of the 

activity. 

44. Mr. Sicard also spoke about the potential for dust generated by trucks travelling 

up and down West Griggs Road. Trucks will pick up dust on the road as they drive along, and 

the higher the speed, the more dust will be picked up and thrown into the air. 

45. West Griggs Road is narrow, and the middle segment between the start of the hill 

and the pit entrance has an average grade of approximately 15%. Mr. Sicard noted that the 

road sits between embankments or berms that can be 8–10 feet tall on either side, which he 

attributed to years of erosion. Combined with tree cover along most of the road’s length, the 

effect is a “tunnel of vegetation.” As most of the road is well shielded, most of the dust that 

becomes airborne is expected to settle back onto the road. 

46. Applicants have made improvements to West Griggs Road, including the 

placement of gravel or crushed ledge materials which act as stabilizers and limit the amount 
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of dust attributable to fine sand and silt on the roadway. Mr. Katzenbach plans to make 

additional improvements and maintain the road over the life of the Project. 

47. The width and grade of the road is expected to limit truck speed to around 5-10 

miles per hour (mph) for safe operation. Low truck speeds will limit the amount of dust 

thrown into the air. 

48. Though Condition 2 of the Dash 1 Permit issued by the District Commission 

incorporates a finding that the Town of Albany will be responsible for dust control on West 

Griggs Road, Applicants propose to take full responsibility for dust control measures. 

49. Mr. Katzenbach will spray West Griggs Road and pit area with calcium chloride or 

water as necessary when dry and dusty conditions arise. Mr. Sicard testified that calcium 

chloride is commonly used by earth extraction projects and will effectively stabilize the road 

by binding soils together. While water can be used in the same way, calcium chloride is more 

effective in extreme heat. Applicants do not object to prioritizing calcium chloride over water 

for dust control. 

50. Though Mr. Sicard expects comparatively more dust on the lower portion of West 

Griggs Road, which is more exposed, he concluded that Applicants’ dust control measures 

will be adequate. 

51. If the Project operates as proposed, following the control measures outlined 

above, dust from the road will not be a significant concern. 

52. Section 5-231(4) of the Vermont Air Pollution Control Regulations applies to the 

Project and requires reasonable precautions to prevent particulate matter from becoming 

airborne. 

53. Neighbors are concerned about dust impacts on their property. They have 

avoided using the southeastern corner of their property since the Project began operating, 

due to noise and dust issues from trucks entering and exiting the pit. 

Exhaust Emissions and Fumes 

54. There are two sources of exhaust emissions from the Project: exhaust from 

equipment working on-site and from trucks on West Griggs Road and Route 14. 
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55. Exhaust at the Project site will come from Applicants’ excavator, bucket loader, 

and the portable generator associate with the screen, along with their haul trucks and the 

trucks of customers. 

56. Mr. Sicard spoke to the potential exhaust impacts based on his observations and 

experience with heavy equipment. In his opinion, there will be no adverse air quality impacts 

from the exhaust of equipment working on-site. He stated that the distance between the pit 

and nearby residences is such that any fumes will disperse and dissipate before creating 

impacts. He also noted the small size of the Project and the Dash 1 Permit conditions limiting 

the hours of operation, rate of extraction, and truckloads of material per day as limiting 

factors. 

57. As to exhaust emissions from trucks, Applicants rely on Vermont’s Vehicle 

Emissions Inspection and Maintenance Program as well as the conditions imposed in the Dash 

1 Permit. 

58. Except for school buses and motor buses, all motor vehicles registered in Vermont 

must undergo a safety and visual emissions check each year. See 23 V.S.A. § 1222(a). Vehicles 

16 model years old or newer must undergo an emissions or on board diagnostic (OBD) 

systems inspection on an annual basis as well. See id. Section 1222(a) applies to trucks 

associated with the Project. 

59. In addition to the State inspection requirements, Applicants propose to carry 

forward conditions from the Dash 1 Permit requiring non-modified exhausts for their trucks, 

and factory original equipment or its equivalent for all trucks allowed at the Project.

Applicants will place a sign at the pit entrance informing drivers of the requirement and take 

appropriate action when there is reason to believe that non-factory equipment is in use. Mr. 

Sicard opined that factory-original equipment will limit truck emissions. 

60. On behalf of Neighbors, Mr. Ellis testified to his experience with exhaust fumes 

from the Project. He focused primarily on the fumes from trucks on West Griggs Road. The 

smell of diesel fumes is noticeable at numerous places on their property when trucks pass by, 

particularly in wooded areas and on the portion of Neighbors’ property that runs along the 

road. Mr. Ellis has experienced some throat irritation and estimates that the smell can linger 
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for as long as 10 minutes. Neighbors’ property also abuts Route 14, where heavy trucks often 

pass by, but Mr. Ellis indicated that he does not notice those fumes. The impacts from Project 

trucks have reduced his desire to work outside at the affected areas on their property, as he 

prefers not to breathe diesel fumes. 

Noise 

61. Neighbors have raised the issue of noise impacts from the Project, under Criterion 

1 and Criterion 8. The Court’s findings as to noise are described in full at ¶¶ 115–146. 

Criterion 1(D): Floodways 

62. Mr. Sicard presented a map from the Vermont Agency of Natural Resources (ANR) 

Natural Resources Atlas and a Flood Insurance Rate Map from the Federal Emergency 

Management Agency (FEMA), along with a topographic map he prepared with LIDAR data 

from the Vermont Center for Geographic Information. 

63. The Project is not located within a designated river corridor. 

64. The Project is not located within the special flood hazard area for the Black River 

shown on the FEMA Flood Insurance Rate Map. 

65. Based on the information before the Court, neither the Project nor the larger tract 

on which it sits is within a floodway or floodway fringe. 

Criterion 1(E): Streams 

66. Neither the Project nor the larger tract on which it sits are located within 100 feet 

of a perennial stream or river, a designated special flood hazard area, or a designated river 

corridor. The nearest perennial river is the Black River, located well over 1000 feet to the 

east of the pit. 

67. Mr. Sicard interpreted the topographic map he prepared, noting that surface 

water can be expected to flow perpendicular to the contour lines delineating changes in 

elevation. 

68. The topographic map shows a ravine, indicated by tightly grouped v-shaped 

contour lines, beginning near the north side of West Griggs Road opposite the pit and 

proceeding roughly northward. The beginning of this channel is over 100 feet from the 

nearest area of disturbance at the pit. 
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69. Mr. Sicard characterized the ravine as an intermittent or ephemeral stream, 

where water will naturally flow during heavy precipitation events. There was inconclusive 

debate at trial as to whether water would be present on a more regular or seasonal basis. 

70. Given the distance between the nearest disturbance and the stream, the Project 

is not “adjacent to” the stream. 

71. The Project site is situated on a hill, and topographic contours show that water 

from uphill sources will be diverted away from the site rather than washing through it. 

72. As to surface water discharge from the Project to the stream or nearby properties, 

Mr. Sicard concluded that there will be no impact to the stream and “almost zero potential” 

for discharge to Neighbors’ property. In part, this is because site is topographically shielded, 

and the work area at the pit will be maintained to slope toward the extraction face which 

allows water to pool on-site before being absorbed into the ground (infiltrating). 

73. Neighbors presented photos of the pit entrance taken in November, 2019, 

showing evidence of a small amount of sediment transportation onto West Griggs Road. 

According to Mr. Sicard, the sediment appeared to be coming from embankments along the 

edge of the pit entrance which were not properly stabilized. 

74. Mr. Katzenbach testified that he has seen water leave the pit entrance, but he also 

noted that he has taken steps to build up and stabilize the entrance and West Griggs Road at 

that location since the photos were taken. In accordance with plans submitted to the District 

Commission and this Court, he has stabilized the overburden embankments along the south 

side of the pit entrance and added material to West Griggs Road creating a 3% slope to the 

south, which will help prevent any water from crossing the road. Applicants will continue to 

maintain the pit entrance to minimize erosion and runoff. 

75. Additional photos from 2010 through 2016, and testimony from Mr. Ellis, 

illustrated that areas of Neighbors’ property have experienced increasing erosion over the 

years. They have experienced significant flooding following major storm events like 

Hurricane Irene. The intermittent or ephemeral stream discussed above contributes to 

surface discharge onto their property. Neighbors are concerned that any additional 
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disturbance of the land above their property, which includes the pit, will lead to further runoff 

and erosion. 

76. Mr. Sicard expects opined that the site is “99 percent self-contained,” and he does 

not expect any water from the pit entrance to cross the road and enter the stream. He also 

noted that any water escaping the pit entrance would follow the topographic contours and 

would not flow toward Neighbors’ property. 

Criterion 4: Erosion 

77. In addition to surrounding topographic features and the sloping work area, which 

both act to minimize erosion and discharge at the Project site, the sand and gravel material 

in the pit is well draining and therefore is not highly erodible. 

78. On May 30, 2017, ANR issued Applicants an Authorization to Discharge 

stormwater runoff under their Multi-Sector General Permit (MSGP) 3-9003. The 

Authorization covers stormwater runoff from the pit and requires Applicants to comply with 

all terms and conditions of their MSGP, including inspection, monitoring, and reporting 

requirements. 

79. In accordance with the Authorization, Applicants must also implement the best 

management practices (BMPs) specified by the Low Risk Site Handbook for Erosion 

Prevention and Sediment Control. 

80. Applicants have offered their Authorization to Discharge to establish a rebuttable 

presumption of compliance with Criterion 4 as provided by Act 250 Rule 19. 

81. Applicants will follow the requirements set forth in the Authorization to Discharge, 

as well as the Stormwater Pollution Prevention Plan for the site, prepared by Watershed 

Consulting Associates, LLC. 

82. Once the extraction phase of the Project is complete, the site will be contained in 

accordance with Applicants’ reclamation plan. The pit will be graded, capped with topsoil, 

and seeded for revegetation. Applicants have stockpiled topsoil from the pit on-site, and that 

material will be used to cover the pit. Mr. Sicard noted that the current berms and piles of 

soil at the site are stable, and that revegetation will prevent the erosion that would occur 

from precipitation and other exposure if the pit were left open. 
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83. Potential erosion on West Griggs Road is not within the scope of Applicants’ 

Authorization to Discharge. 

84. Mr. Goodridge stated his understanding that West Griggs Road is Class IV in its 

entirety, meaning the Town is not responsible for maintaining it apart from culverts and 

bridges. Applicants presented a letter from the Town Selectboard to the same effect, stating 

the Town’s position that Applicants will be wholly responsible for maintaining the section of 

road at issue here: West Griggs Road from the intersection of Route 14 to the pit. Mr. 

Katzenbach agrees that he is wholly responsible for maintaining the road. 

85. When asked about the Town Road Foreman’s role in ensuring that the road is 

maintained, Mr. Goodridge relayed that the Foreman inspects the many dirt roads in town. 

The Foreman will inspect West Griggs Road on a roughly seasonal basis and respond to 

complaints by working with Applicants to make sure the appropriate maintenance is done. 

86. Mr. Sicard observed areas where Applicants have built up and stabilized the road 

with gravel and similar materials. In the absence of such stabilization, fine-grain soils can 

become susceptible to erosion and can be transported with the flow of water. 

87. In Mr. Sicard’s opinion, the truck traffic on West Griggs Road will not create an 

erosion concern, especially given Applicants’ work on road maintenance. 

88. Applicants submitted a site plan for proposed road improvements to the district 

commission and this Court. Mr. Katzenbach testified that he has begun making 

improvements in accordance with the plan, creating one of three stone-lined turn outs. He 

has not yet completed the additional turn outs, but will complete them if the Project is 

approved. The plan also depicts an existing water bar and vehicle pull-off. 

89. In addition to improvements specified in the site plan, Mr. Katzenbach has applied 

Staymat to eroded areas along the upper and lower sections of West Griggs Road. He applied 

Staymat on parts of the upper section of the road in 2018, and most recently applied it on 

areas of the lower section in December 2020. Staymat is a type of gravel material that is 

effective in stabilizing dirt road and driveway surfaces to resist erosion. 
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90. Mr. Katzenbach will continue to improve the road in accordance with Applicants’ 

plans, and maintain it using Staymat and other materials. He will follow the Vermont Better 

Backroads Manual. 

91. Neighbors offered several photos and videos, taken in 2019 and 2020, to show 

what they believe to be erosion issues on West Griggs Road. Aside from photos of the pit 

entrance, addressed above in the context of Criterion 1(E), the photos were taken in and 

around the residential area. The videos show many areas of the road from the intersection 

with Route 14 to just before the pit entrance. Mr. Sicard identified an area near residences 

where the road lacked a well-defined crown, which led to some water flowing over the top 

of the road and some tracking of sediment. He opined that this is typical of gravel town 

highways and could be fixed through stabilization with gravel and rock. Other segments of 

the road appeared to him to be in excellent condition. 

92. The photos and videos presented by Neighbors did not show unreasonable or 

dangerous erosion on West Griggs Road. 

Criterion 5: Traffic 

93. The Project will create additional truck traffic on West Griggs Road and Route 14. 

Applicants propose to carry forward conditions of the Dash 1 Permit which limit truck traffic 

to a maximum of 40 one-way trips, or 20 round trips per day. 

94. Existing traffic on Route 14 is steady and includes heavy truck traffic. Existing 

traffic on West Griggs Road is minimal; most uses are related to the residences near Route 

14. The upper section of the road is rarely used by vehicles other than haul trucks. 

95. Near Route 14 and the residences, where West Griggs Road is wider, there is 

sufficient room for passenger cars to pass haul trucks as they travel up and down the road. 

There is sufficient room for two trucks to pass each other in opposite directions, although 

they may need to use some additional space in the right-of-way as they pass. 

96. Beyond the residences, where the road narrows, it is not possible for two trucks 

to pass each other in opposite directions. There is a pull-off area about 700 feet up the road 

and about 200 feet from the pit entrance, which allows vehicles to pass each other. 
15 

97. Due to the width and grade of West Griggs Road, trucks traveling to and from the 

pit are expected to drive at 5–10mph. 

98. Route 14 is designed to accommodate heavy traffic, and vehicle speeds are much 

higher than those on West Griggs Road. 

99. Applicants have installed a “stop ahead” sign on West Griggs Road, 300 feet before 

the intersection with Route 14, and a stop sign at the intersection. The signage comports 

with recommendations from the Town. 

100. Trucks traveling to the pit will arrive via Route 14 and turn either right or left onto 

West Griggs Road. Trucks leaving the pit turn left down West Griggs Road, travel to the stop 

sign, and then enter Route 14 heading north or south by turning right or left. Applicants 

represent that the percentage of trucks turning right or left thus far has been approximately 

50/50. 

101. Mr. Katzenback sought and received a permit from the Vermont Agency of 

Transportation (VTRANS) for an asphalt apron extension at the end of West Griggs Road as it 

intersects Route 14. He has constructed the apron, which will strengthen the transition 

between Route 14 and West Griggs Road where the roadway is more susceptible to wear 

from truck acceleration and deceleration. 

102. Traffic safety conditions are a concern when trucks back out into Route 14. 

103. The Project will generate a comparatively small amount of truck traffic, and trucks 

will be moving slowly along the entire 1300-foot section from Route 14 to the pit. Truck 

speed will be slow through the residential area thanks to the stop sign and turning 

movements associated with entering or exiting Route 14. 

104. If a car or truck is present at the stop sign on West Griggs Road, waiting to turn 

onto Route 14, there is enough space for arriving trucks to turn onto West Griggs Road. 

105. Trucks have occasionally stopped on Route 14 to wait for oncoming traffic to pass 

before turning onto West Griggs Road. Mr. Ellis stated that he has seen trucks waiting on 

Route 14 while another truck exits West Griggs Road. 

106. Mr. Ellis and Mr. Katzenbach confirmed that there have been occasions where a 

truck backed out into Route 14. The reason for this is not clear to the Court. 
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107. Trucks on West Griggs Road have occasionally backed down the road to reach the 

wider section near the bottom and allow trucks descending from the pit to pass. 

108. The pit cannot accommodate more than two trucks at a time for loading and 

transportation. The Project does not operate as a “self-serve” establishment: customer pickups are scheduled, and Mr. Katzenbach can communicate with incoming and outgoing 

customer trucks through a CB radio channel. Applicants do not object to a permit condition 

requiring customer pick-ups to be scheduled. 

109. In terms of traffic, this is a small extraction project. Traffic impacts will be minor. 

110. Considering the scale of the Project, the amount of additional traffic, and the 

existing capacity of Route 14 and West Griggs Road, a formal transportation demand 

management (TDM) strategy is not warranted. 

111. Mr. Ellis explained that Neighbors have historically used West Griggs Road for 

recreation, including walks with their dog. He asserted that haul trucks on the road take up 

almost all the available width, to the point where he no longer feels safe as a pedestrian. As 

a result, Neighbors have stopped taking their regular walks. A video submitted by Neighbors 

shows one of Applicants’ trucks driving up West Griggs Road, occupying most of the road. 

Tall embankments can be seen on either side of the road for a significant portion of its length. 

As Mr. Ellis noted, it would be difficult for a pedestrian to get out of the path of an oncoming 

truck. 

Criterion 8: Aesthetics 

112. The area surrounding the Project is rural and is characterized by low-density 

residential and agricultural uses. The land is primarily wooded, with some open areas. 

113. Route 14 is a busy thoroughfare, with consistent traffic including heavy trucks. 

114. Other gravel pits and similar operations exist in the area, including a pit about 2 

miles away which is owned by the Town. 

Noise 

115. Natural sounds and the traffic on Route 14 define the noise characteristics of the 

area 
17 

116. Mr. Reuter conducted a study of noise impacts from the Project and provided 

background information about sound measurement to put his study in context. In preparing 

the study, he assumed that the Project would operate as proposed and as conditioned by the 

Dash 1 Permit. He also reviewed Applicants’ other permits and Act 250 application materials, 

along with Mr. Sicard’s report. 

117. Sound levels are typically described in terms of decibels (dB). To account for 

frequency, or pitch, sound levels are typically “A weighted” and reported as dBA. 

118. Decibels can be used in various ways, including to describe instantaneous sound 

or an average of sound energy over time. When measuring sound, the response time of 

recording instruments must be accounted for, because a computer can register changes in 

sound “faster” than humans. 

119. The former Environmental Board, in In re Barre Granite Quarries, No. 7C1079 

(Rev.)-EB (Dec. 8, 2000), designated a general standard for on-site noise which satisfies 

aesthetic concerns under Criterion 8 for commercial and industrial projects (the “Barre 

Granite standard”). Under the Barre Granite standard, instantaneous on-site noise from a 

prospective project under normal circumstances should not exceed 55 dBA Lmax at homes 

and areas of frequent human use, or 70 dBA Lmax at the property line. The Vermont Supreme 

Court has held that the Barre Granite standard is to be applied flexibly and may be departed 

from depending on the acoustical context of the project area. See In re Lathrop Ltd. P’ship, 

2015 VT 49, ¶¶ 81–82, 199 Vt. 19. 

120. Mr. Reuter used “Lmax” and “LASmax” designations interchangeably to describe 

his measurements and modeling for maximum sound levels. LASmax stands for the Level, AWeighted, Slow-Weighted, Maximum. There are two time-weightings to account for how 

quickly a meter responds to changes in sound levels: “slow” or “fast.” In this case, because 

the maximum levels come from events like engines and equipment interacting with material 

rather than “impulsive” events like gunshots, a “slow” meter response time is appropriate. 

121. It is the Court’s understanding that the LASmax designation used by Mr. Reuter is 

equivalent to and interchangeable with the “Lmax” designation used to evaluate maximum 

instantaneous sound levels in prior Act 250 cases. See NE Materials Grp., LLC, No. 75-6-17 
18 

Vtec, slip op. at 21 (Vt. Super. Ct. Envtl. Div. June 20, 2018) (Walsh, J.) (accepting maximum 

sound levels described as Lmax with a “slow” meter response and noting that the meters 

used in the Barre Granite decision were set to slow response). Therefore, the Court’s findings 

as to maximum sound levels are designated Lmax. 

122. Adding sound energy from multiple sources does not increase the overall Lmax. 

123. Mr. Reuter visited the site in July 2020, where he observed the pit and surrounding 

area including West Griggs Road and neighboring properties. While visiting the pit, he 

measured sound levels from Applicants’ equipment from 25 feet away, running each machine 

through a variety of common operations to determine the loudest typical event. 

124. He identified the following Lmax measurements for Applicants’ equipment. 

Loader: 87.3 dBA, Screen (side): 88.6 dBA, Screen (rear): 91.2 dBA, Materials dropped into 

Dump Body: 89.4 dBA, Dump Truck (Peterbilt): 80 dBA, Excavator: 91.4 dBA. 

125. These Lmax measurements, along with topographic information, were used as 

inputs to calculate sound propagation and model the maximum sound levels from on-site 

operations experienced at nearby properties. Topographic information for the site and 

surrounding area came from the Vermont Center for Geographic Information LIDAR database 

and Applicants’ application materials. All modeling was done using an industry-standard 

modeling software package called SoundPlan. SoundPlan results are regularly relied upon by 

acoustics experts and have been verified through post-construction monitoring data. The 

software uses the international ISO 9613-2 standard to calculate sound propagation based 

on user inputs. 

126. Mr. Reuter’s modeling results include maximum sound levels in two categories: 

equipment operating at the pit, and trucks driving along West Griggs Road and Route 14. The 

sound levels are depicted graphically as contour rings propagating outward from the source. 

This represents the predicted levels at various locations in the area. 

127. To model on-site equipment sound levels, Mr. Reuter set the sound source for 

each piece of equipment at the worst-case location within the pit in terms of impacts to 

neighboring properties. Some equipment is expected to move over time as the pit is 
19 

excavated, but the movement will be parallel to or away from neighboring property lines. 

Movement is accounted for in the models. 

128. Screen: Sound levels at or above 70 dBA Lmax will extend into the Adams property 

approximately 100 feet and into the West Griggs Road right-of-way. Levels at residences and 

most areas of frequent human use will be below 40 dBA Lmax, and the levels will not exceed 

55 dBA Lmax at any areas of frequent use. 

129. Loader: Sound levels at or above 70 dBA Lmax will extend into the Adams property 

approximately 100 feet and into the West Griggs Road right-of-way. At residences and most 

areas of frequent human use, sound levels will be lower than 40 dBA Lmax, and the levels will 

not exceed 55 dBA Lmax at any areas of frequent use. 

130. Excavator: Sound levels at or above 70 dBA Lmax will extend into the Adams 

property approximately 125 feet, and into the West Griggs Road right-of-way. At residences 

and most areas of frequent human use, levels will be lower than 40 dBA Lmax, and the levels 

will not exceed 55 dBA Lmax at any areas of frequent use. 

131. Gravel Dumped into Empty Truck: Sound levels at or above 70 dBA Lmax will 

extend into the Adams property approximately 100 feet and into the West Griggs Road rightof-way. At residences and most areas of frequent human use, levels will be below 35 dBA 

Lmax, and the levels will not exceed 55 dBA Lmax at any areas of frequent use. 

132. Dump Truck Operating On-Site: Sound levels at or above 70 dBA Lmax will extend 

into the West Griggs Road right-of-way but will not cross neighboring property lines. At 

residences and most areas of frequent human use, levels will be below 40 dBA Lmax, and the 

levels will not exceed 55 dBA Lmax at any areas of frequent use. 

133. Mr. Reuter also modeled the instantaneous sound levels from trucks driving along 

West Griggs Road and Route 14. He used the Lmax measurement from Applicants’ Peterbilt 

dump truck as the input. 

134. West Griggs Road: As trucks pass by, the Lmax at Neighbors’ residence and the 

Valley residence across the road will be approximately 75 dBA. Most areas of frequent human 

use on Neighbors’ property will experience levels above 55 dBA Lmax. 
20 

135. Route 14: Lmax during a truck pass will be approximately 66 dBA at Neighbors’ 

residence and the Valley residence. Several areas of frequent human use on Neighbors’ 

property will experience levels from 55–70dBA Lmax. Other residences will experience levels 

ranging from approximately 60–65 dBA. Heavy trucks similar to those used by Applicants 

already travel on Route 14 regularly. 

136. While maximum sound levels are important, they are not the only metric used to 

assess noise impacts. Lmax only accounts for a particular event or action during one very 

short interval of time. It is not particularly useful in gauging impacts over longer time periods 

or the cumulative impact of multiple sources. The equivalent sound level, or Leq, represents 

an average of sound energy over a specified time interval, often 1 hour or 1 day. Thus, Leq 1-

hr looks at changing sound energy levels over the period of an hour and converts them to a 

constant level representing the same amount of sound energy spread evenly over that hour. 

Leq 1-hr is often used to assess traffic noise impacts and it correlates well with human levels 

of annoyance. The Court finds Leq to be helpful in considering the full scope of noise impacts 

from the Project. 

137. Mr. Reuter modeled 3 scenarios using the Leq-1hr metric to capture noise impacts 

from existing traffic on Route 14 and Project truck traffic on West Griggs Road. During his 

testimony on January 13, the Court and Neighbors inquired about impacts associated with 

trucks turning onto and off of Route 14. Mr. Reuter then worked to supplement his modeling 

and include those impacts. In the process he noticed an error in the two models looking at 

Project truck traffic. He corrected the error, which related to a truck speed value, and he 

presented a revised exhibit. The Court is satisfied with the correction and we find that the 

error was isolated to Leq-1hr modeling for Project trucks. 

138. For the Leq-1hr scenarios, Mr. Reuter again used SoundPlan. Instead of the actual 

sound measured from Applicants’ truck, he used the Federal Highway Administration Traffic 

Noise Model (TNM) as an input. The TNM provides noise data based on the type of vehicle, 

and accounts for factors like vehicle speed and traffic control devices such as stop signs. 

139. The “Existing Traffic” scenario focuses on Route 14 and assumes 148 cars, 10 light 

trucks, and 10 heavy trucks over the course of an hour. Traffic counts were based on data 
21 

from the closest VTRANS monitoring station, about a half-mile away from the intersection of 

Route 14 and West Griggs Road. The Leq-1hr is predicted to be approximately 50 dBA at 

Neighbors’ residence, and between 35–55 dBA at most areas of frequent use. 

140. The “Maximum Hourly Volume” scenario represents Mr. Reuters’ assessment of 

the worst-case hourly impact from the Project, with 10 truck passes or 5 round trips along 

both West Griggs Road and Route 14. Noise from turning movements, acceleration, and 

deceleration is included. The predicted Leq-1hr is approximately 58 dBA at Neighbors’ 

residence, and between 40–60 dBA at most areas of frequent use. 

141. The “Minimum Hourly Volume” accounts for the same truck movements but 

represents the lowest hourly impact of 4 truck passes, or 2 round trips, resulting in an Leq1hr of 56 dBA at Neighbors’ residence and between 35–60 dBA at most areas of frequent use. 

142. Based on his modeling and experience, Mr. Reuter stated that he did not expect 

the noise to have a significant impact overall. He also estimated that existing traffic on Route 

14 includes approximately 100 trucks per day, and he opined that 40 additional truck passes 

would not be significant. He also concluded that the increased traffic from trucks on West 

Griggs Road would have some impact, considering the proximity of residences to the road. 

143. Trucks heading downhill from the pit need to engage their brakes to maintain safe 

speeds. Mechanical drum brakes will be used most often, but there are occasions when “jake 

brakes” or engine braking have been used. 

144. Jake brakes create a loud and distinct sound. Many communities prohibit jake 

braking in town centers or residential communities. Applicants have stipulated to a condition 

prohibiting jake brakes except in emergency situations. 

145. Mr. Ellis stated that Neighbors can hear noise from the pit operations almost 

everywhere, except in their home. He asserted that the pit has significantly increased noise 

levels at the southeastern corner of their property, an area which was previously quiet. It is 

not clear how frequently Neighbors used that area prior to the Project, but they now avoid it 

except to harvest firewood. Project trucks passing on West Griggs Road and Route 14 are 

audible practically everywhere on Neighbors’ property, and they perceive the noise to be 

loudest near the roadways and inside their home. Mr. Ellis indicated that he can also feel 
22 

vibrations as trucks pass. The noise has caused Neighbors to stop using parts of their 

property, especially along West Griggs Road, and they feel it has severely impacted the use 

and enjoyment of their land. 

146. Neighbors also demonstrated that the operating hours of larger sand and gravel 

businesses across the state, including those in the Northeast Kingdom, begin later and end 

earlier than Applicants’ proposed hours of operation. 

Dust 

147. The Court’s findings as to dust are described at ¶¶ 36–53. 

Exhaust Emissions and Fumes 

148. The Court’s findings as to exhaust and diesel fumes are described at ¶¶ 54–60. 

Conclusions of Law 

 The central questions in this appeal are whether the Project complies with Act 250 

Criteria 1, 1(D), 1(E), 4, 5, and 8. Before reaching those questions, we address two preliminary 

issues raised by Neighbors: whether the application should be denied because Applicants did 

not submit an affidavit pursuant to 10 V.S.A § 6087(c), and whether the District Commission’s 

Finding 10, incorporated through Condition 2 of the Dash 1 Permit, is invalid. See Amended 

Statement of Questions, filed Oct. 14, 2019. 

I. Compliance with 10 V.S.A § 6087(c) 

 Pursuant to 10 V.S.A. § 6087(c), an applicant whose permit has been denied may apply 

for reconsideration within six months. The application “shall include an affidavit to the District 

Commission and all parties of record that the deficiencies have been corrected.” 10 V.S.A. § 

6087(c); see also In re Times and Seasons, LLC, 2011 VT 76, ¶ 5, 190 Vt. 163 (noting that applicants 

must “certif[y] that the deficiencies causing the denial have been corrected.”). In this case, 

Applicants received their first permit for the Project, LUP 7R1374, from the District Commission 

in 2017. On appeal in 2019, this Court denied the application because Applicants had failed to 

meet the initial burden of production for each of the criteria at issue. Katzenbach Act 250 Permit, 

No. 124-9-17 Vtec, slip op. at 7 (Vt. Super. Ct. Envtl. Div. Jan. 2, 2019) (Walsh, J.). We expressly 
23 

noted that pursuant to 10 V.S.A. § 6087(c), Applicants could apply for reconsideration within six 

months of the January 2019 decision after supplementing the application with evidence of 

compliance with the relevant criteria. See id.; In re Times & Seasons, LLC, No. 45-3-09 Vtec, slip 

op. at 7–8 (Vt. Envtl. Ct. Mar. 29, 2010) (Durkin, J.). 

 Applicants did file application #7R1374-1 (Dash 1 Application) with the District 

Commission within six months, and Commission indicated that it was considering the Dash 1 

Application as an application for reconsideration under § 6087(c). See Dash 1 Decision, 

Applicants’ Exhibit K43 (stating that the District Commission would review only the criteria at 

issue in the Court’s 2019 denial and that the Commission’s prior findings and conclusions as to 

other criteria remained in effect); see also Times and Seasons, 2011 VT 76, ¶ 10 (“The 

reconsideration application . . . offers . . . the opportunity to revisit only those aspects of the 

application that led to denial of the permit. That is, the . . . process allows an applicant to 

maintain . . . affirmative findings made on the original application and to receive additional review 

only in those areas found deficient.”). Thus, this appeal of the Dash 1 Permit is part of a 

reconsideration of the 2019 denial and “a continuation of the original Act 250 permit 

application,” with our review confined to Neighbors’ Amended Statement of Questions. See 

Times and Seasons, 2011 VT 76, ¶ 10. Neighbors’ Question 1 asks whether the application should 

be denied “because [A]pplicants did not submit an affidavit as required by 10 V.S.A. § 6087(c).” 

 It is not clear whether Question 1 is directed at proceedings before the District 

Commission, or this Court on appeal. We do not address the former, because our de novo review 

means that we do not consider the proceedings below; “rather, we review the application anew.” 

In re Whiteyville Props. LLC, No. 179-12-11 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Dec. 13, 

2012) (Durkin, J.); see also 10 V.S.A. § 8504(h); Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 11 (1989) 

(quoting In re Poole, 136 Vt. 242, 245 (1978)) (“A de novo trial ‘is one where the case is heard as 

though no action whatever had been held prior thereto.’”). As to the current proceedings before 

this Court, Applicants did not submit an affidavit.2 In Mr. Katzenbach’s sworn testimony, 

however, he indicated that he understood the reasons for the prior denial and that he took steps, 

2

 We note that Neighbors did not raise this issue at trial, or in their post-trial filing. 
24 

including hiring experts, to supplement the application with additional evidence to meet the 

burden of production. To the extent that the affidavit requirement of § 6087(c) applies in the 

context of an appeal, its clear purpose is to require applicants to “certif[y] that the deficiencies 

causing the denial have been corrected.” See Times and Seasons, 2011 VT 76, ¶ 5; 10 V.S.A. § 

6087(c). The Court concludes that Mr. Katzenbach’s sworn testimony is sufficient in lieu of an 

affidavit. For that reason, we answer Question 1 in the negative. See Amended Statement of 

Questions. 

II. Condition 2 of the Dash 1 Permit 

Neighbor’s Question 3 asks “[w]hether Finding 10, incorporated through Permit Condition 2, 

is invalid because it relies on the action of a third party (the Town of Albany).” Amended 

Statement of Questions. Condition 2 of the Dash 1 Permit requires the Project to be “completed, 

operated, and maintained in accordance with” the District Commission’s Findings of Fact and 

Conclusions of Law. See Dash 1 Permit, Applicants’ Exhibit K42. Finding 10 of the Commission’s 

decision states: “The Town of Albany will ensure application of dust control (e.g. calcium chloride) 

on its town highway (West Griggs Road).” Dash 1 Decision, Applicants’ Exhibit K43. In the context 

of this de novo appeal, we do not assess the merits of the District Commission’s decision; “rather, 

we review the application anew” as to the issues before us and determine what conditions, if 

any, are appropriate. See Whiteyville, No. 179-12-11 Vtec at 1 (Dec. 13, 2012); see also 10 V.S.A. 

§ 8504(h) (requiring a de novo hearing). 

 We are mindful that Neighbors have raised the issue of dust impacts under Act 250 

Criterion 1 and Criterion 8. See Amended Statement of Questions. The Court’s authority on 

appeal is the same as that of the Commission below, therefore we may impose “such 

requirements and conditions as are [an] allowable proper exercise of the police power and which 

are appropriate [with respect to the Act 250 criteria under review].” 10 V.S.A. § 6086(c); see also 

V.R.E.C.P. 5(g); In re Killington Village Master Plan, No. 147-10-13 Vtec, slip op. at 6 (Vt. Super. 

Ct. Envtl. Div. Aug. 6, 2014) (Durkin J.) (“[W]e have the same jurisdictional limits as those the 

District Commission enjoyed when considering the application . . . .”) (quotation omitted). We 

address the Project’s dust impacts and proposed dust control measures elsewhere in this 
25 

decision, as part of the Criterion 1 and Criterion 8 analyses, and we consider what conditions may 

be appropriate going forward based on the evidence and the proposal presented to the Court. 

As explained below, we replace Finding 10 of the Commission’s decision which states: “The Town 

of Albany will ensure application of dust control (e.g. calcium chloride) on its town highway (West 

Griggs Road),” with a condition requiring that Applicants shall be wholly responsible for dust 

control on West Griggs Road, including road stabilization and application of calcium chloride or 

water as needed. 

III. Act 250 Criteria 

 Neighbors’ Amended Statement of Questions challenges the Project’s compliance with 

Criterion 1 (air pollution), 1(D) (floodways), 1(E) (streams), 4 (erosion), 5 (traffic), and 8 

(aesthetics). We address each in turn. 

a. Criterion 1 

 Act 250 Criterion 1 requires applicants to show that their project “[w]ill not result in 

undue water or air pollution.” 10 V.S.A. § 6086(a)(1). Here, the question is whether dust, exhaust 

emissions, or noise from Project operations will result in undue air pollution.3 While Criterion 1 

does not specify what amounts to “undue” pollution, the longstanding definition is “that which 

is more than necessary––exceeding what is appropriate or normal.” See In re N. E. Materials 

Grp., LLC, 2019 VT 55, ¶ 28, 210 Vt. 525 (quoting Re: John A. Russell Corp., No. 1R0849-EB, 

Findings of Fact, Conclusions of Law, and Order, slip op. at 43–44 (Vt. Envtl. Bd. Jul. 10, 2001)). 

“[W]hether ‘undue’ pollution will result from a proposed project is a highly fact-specific inquiry 

that depends on a wide variety of factors.” In re Diverging Diamond Interchange SW Permit, 2019 

VT 57, ¶ 44, 210 Vt. 577 (citing N. E. Materials Grp., 2019 VT 55, ¶ 28). 

 Important factors include “the nature and amount of the pollution, the character of the 

surrounding area, whether the pollutant complies with certain standards or recommended 

levels, and whether effective measures will be taken to reduce the pollution.” N.E. Materials 

3

 Neighbors’ Question 4 asks: “Whether the operation of the proposed gravel pit, including but not limited 

to on-site crushing, on- and off- site truck traffic, and excavation will result in undue air pollution due to dust, noise, 

and exhaust, in violation of Act 250 Criterion 1.” Amended Statement of Questions. 
26 

Grp., 2019 VT 55, ¶ 28 (quoting Re: Mclean Enters. Corp., No. 2S1147-1-EB, Findings of Fact, 

Conclusions of Law, and Order, at 41 (Vt. Envtl. Bd. Nov. 24, 2004)). Compliance with applicable 

air quality standards is “an important, but nondispositive, factor in this inquiry,” and we may 

consider “any factors relevant to a determination of whether a proposed project will cause undue 

pollution.” N. E. Materials Grp., 2019 VT 55, ¶ 28 (citation omitted); Diverging Diamond, 2019 

VT 57, ¶ 45 (citation omitted). 

 Applicants bear the initial burden to produce “evidence sufficient to enable [the district 

commission or this Court] to make the requisite positive findings” on Criterion 1, and they bear 

the burden of persuasion as well. Katzenbach Act 250 Permit, No. 124-9-17 Vtec at 4 (Jan. 2, 

2019) (quoting In re Rinkers, Inc., No. 302-12-08 Vtec, slip op. at 11 (Vt. Envtl. Ct. May 17, 2010) 

(Wright, J.)) (modification in original); see also 10 V.S.A. § 6088(a); In re Eastview at Middlebury, 

Inc., No. 256-11-06 Vtec, slip op. at 4 (Vt. Envtl. Ct. Feb. 15, 2008) (Durkin, J.). We begin by 

evaluating potential dust impacts from the Project along with Applicants’ proposed control 

measures. 

1. Dust 

 Neighbors ask whether the Project’s operations, including crushing, excavation, and 

trucking, will result in undue dust pollution. In support of the Project’s compliance, Applicants 

offered the report and testimony of their engineer, Mr. Sicard, along with various exhibits and 

the testimony of Mr. Katzenbach. Mr. Sicard credibly addressed potential dust impacts from the 

pit and from haul trucks on West Griggs Road. 

 Though operations at the pit will generate dust, Mr. Sicard opined that the Project’s scale, 

design, and operational constraints would limit the amount of dust and largely contain it within 

the site. Sources of dust will include excavation, screening, loading, and trucking of material, and 

the amount of dust depends on the intensity of the activity and the weather conditions.4 

Applicants propose to carry forward requirements imposed under the Dash-1 permit issued by 

the District Commission, including extraction limits of 30,000 cubic yards per year and trucking 

4

 We note that crushing can be a significant source of dust, and was contemplated in Applicants’ prior 

proposals, however they no longer seek approval for any on-site or off-site crushing operations. 
27 

limit of 20 loads (20 round trips to and from the pit) per day, which represents a comparatively 

small operation. These limits on activity will in turn limit the amount of dust generated. Mr. 

Sicard also explained that the small size of the pit, along with its shape, will limit dust because it 

does not allow for a large, upright extraction face which can catch the wind. 

 The Project will also generate dust from haul trucks traveling on West Griggs Road and 

entering or exiting the pit. As with excavation and other processing, we credit Mr. Sicard’s 

assessment that certain constraints will limit the amount of dust produced. West Griggs Road is 

narrow and quite steep in places, which will keep truck speeds low and thereby limit the dust 

thrown into the air. The road is also protected by tall embankments and tree cover for much of 

its length, which will contain the dust produced as trucks pass. The residential segment of the 

road is less protected, and as a result there will be comparatively more dust, though speeds will 

remain low as trucks will be entering and exiting the Route 14 intersection. 

 Applicants propose to further control dust by applying calcium chloride or water to the 

pit area and West Griggs Road as necessary during dry conditions, and stabilizing the road as 

needed to reduce dust associated with fine sand and silt. Mr. Sicard’s testimony indicated that 

calcium chloride is preferable to water in extreme heat, though both are effective for controlling 

dust. The Dash 1 Permit issued by the District Commission also requires covering haul trucks that 

are loaded with materials that may generate dust. As Applicants propose to operate as 

conditioned by the Dash 1 Permit unless otherwise specified, we consider this as part of their 

proposal. Overall, Mr. Sicard concluded that Applicants’ proposed dust control measures will be 

adequate. 

 Neighbors expressed concern about dust impacts on their property, particularly near the 

southeastern corner which is across the road from the pit. Mr. Ellis testified that he and Ms. 

Beidler avoid that area of their property, in part because of dust from trucks exiting the pit. It is 

apparent that there will be some impacts, and Neighbors’ evidence is relevant to the Project’s 

impact on the character of the area. See N. E. Materials Grp., 2019 VT 55, ¶ 28 (noting that the 

character of the area is one factor among several to be considered under Criterion 1). Even so, 

they presented no evidence to suggest that Applicants’ dust control measures will be inadequate 

or that the Project will generate an excessive amount of dust from an air pollution perspective. 
28 

While Mr. Ellis’s testimony is relevant to our Criterion 1 analysis, it relates more closely to the 

type of aesthetic concern best addressed under Criterion 8. 

 As to air quality standards, the Vermont Air Pollution Control Regulations (APCR) state: 

A person shall not cause, suffer, allow, or permit any process operation to operate; 

any materials to be handled, transported, or stored; or a building, its 

appurtenances, or a road to be used, constructed, altered, repaired or demolished 

without taking reasonable precautions to prevent particulate matter from 

becoming airborne. Public roads will not be subject to this section unless a public 

nuisance is created. 

APCR § 5-231(4). Based on the evidence before the Court, we conclude that Applicants’ proposal 

includes reasonable precautions to prevent airborne particulate matter. Thus, the Project 

complies with applicable air quality standards as they relate to dust. See id. 

 Applicants have shown that the dust generated by the Project will be limited and 

proportionate to its small scale. They have also established that the proposed dust control 

measures will be effective, and that the Project complies with applicable regulations. See N. E. 

Materials Grp., 2019 VT 55, ¶ 28 (listing key factors in the Criterion 1 analysis). Though Neighbors 

raise a legitimate concern with respect to impacts on the neighborhood, they did not show a 

significant effect on the character of the area as it relates to air quality or pollution. Considering 

the relevant factors, we are persuaded that dust will not be “more than necessary––exceeding 

what is appropriate or normal” and therefore the Project will not create undue air pollution 

related to dust. See id.; 10 V.S.A. § 6086(a)(1). 

 Our conclusion is based in part on Applicants taking full responsibility for dust control 

measures including maintenance and calcium chloride application on West Griggs Road. 

Condition 2 of the Dash 1 Permit issued by the District Commission incorporates a finding that 

the Town of Albany will be responsible for dust control on the road. To avoid confusion and 

ensure compliance with Criterion 1, we impose the following condition: Applicants shall be wholly 

responsible for dust control on West Griggs Road, including road stabilization and application of 

calcium chloride or water as needed. We now turn to exhaust emissions. 

 
29 

2. Exhaust 

 Vehicles and equipment associated with the Project will generate exhaust emissions. At 

the pit, emissions will come from Applicants’ excavator, bucket loader, and the portable 

generator which powers the screen, along with Applicants’ haul trucks and those of customers. 

Haul trucks traveling the roads to and from the pit will also create emissions. On behalf of 

Applicants’ Mr. Sicard opined that there will be no adverse air quality impacts from the 

processing equipment at the pit: emissions will be limited by proposed restrictions on extraction 

rates, trucking, and hours of operation, and the distance between the pit and nearby residences 

will allow fumes to dissipate before affecting adjoining landowners. 

 As to haul trucks specifically, all trucks associated with the Project are subject to 

Vermont’s Vehicle Emissions Inspection and Maintenance Program. Pursuant to 23 V.S.A. § 

1222(a), the trucks must undergo inspections including an annual safety and emissions check. 

Vehicles 16 years old or newer must undergo an additional emissions or OBD systems check. Id. 

Mr. Katzenbach testified that Applicants’ trucks have valid inspections. Applicants’ proposal also 

incorporates a condition imposed by the Dash 1 Permit which requires non-modified exhausts 

for their trucks and factory original equipment or its equivalent for all trucks allowed at the 

Project. This requirement will limit potential emissions from haul trucks. Applicants will place a 

sign at the pit entrance informing drivers of the requirement and take action when there is reason 

to believe that non-factory equipment is in use. Apart from the inspection requirements under 

23 V.S.A. § 1222(a), the Court did not receive evidence of applicable air quality standards with 

respect to vehicle or equipment exhaust. 

 Neighbors described smelling diesel fumes from the Project, particularly from haul trucks 

as they pass on West Griggs Road. They can smell the fumes at various places on their property, 

especially in wooded areas, and they estimate that the smell can linger for as long as 10 minutes. 

Though their property also abuts Route 14, where heavy trucks routinely pass by, they observed 

that the fumes from Route 14 are not noticeable. We do not doubt that exhaust fumes from the 

Project represent an annoyance or irritation for Neighbors, and we consider these aesthetic 

impacts below in our discussion of Criterion 8. As relevant to undue air pollution under Criterion 

1, Neighbors presented no evidence that Project emissions will be excessive or otherwise impact 
30 

air quality. Nor did they show that the emissions will be out of place in the area, especially 

considering the proximity of Route 14. Based on the evidence before the Court, we conclude 

that emissions from the Project will not be “more than necessary––exceeding what is appropriate 

or normal.” N. E. Materials Grp., 2019 VT 55, ¶ 28. Thus, the Project will not create undue air 

pollution related to exhaust emissions. 10 V.S.A. § 6086(a)(1). 

3. Noise 

 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.”) (quotation omitted). “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.” Goddard Coll. 

Conditional Use, Nos. 175-12-11 Vtec and 173-12-12 Vtec, slip op. at 10 (Vt. Super. Ct. Envtl. Div. 

Jan. 6, 2014) (Walsh, J.) (citation omitted). 

 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. Pursuant to 10 V.S.A. § 8504(m), we 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, Conclusions 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, No. 5W0743-2-EB, at 14. Under this standard, noise is considered air pollution 
31 

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, Conclusions 

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, Conclusions 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; Re: Wildcat Constr. Co., No. 6F0283-1-EB, 

Findings of Fact, Conclusions 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 Applicants have 

produced evidence sufficient to enable the Court to make positive findings. We conclude that 

while noise from the Project operations might be apparent to Neighbors and other area property 

owners, the noise will be less than the EPA-established adverse health impact standard of an Leq 

exceeding 70 dBA for 24 hours each day, 365 days a year. Thus, the proposed project noise will 

not cause adverse health effects and is not air pollution in violation of Criterion 1. 

 For the forgoing reasons, we conclude that the Project, as conditioned, complies with 

Criterion 1 as to dust, exhaust emissions, and noise. We therefore answer Neighbors’ Question 

4 in the negative. 

b. Criterion 1(D) 

 Criterion 1(D) requires applicants to demonstrate that any development “within a 

floodway” or a “floodway fringe” will not endanger the public by “restrict[ing] or divert[ing] the 

flow of flood waters” or “significantly increas[ing] the peak discharge” of the river or stream in 

question.5 See 10 V.S.A. § 6086(a)(1)(D)(i), (ii); In re Zaremba Grp., 2015 VT 88, ¶ 7, 199 Vt. 538. 

The threshold question “is whether the [P]roject is in the floodway or floodway fringe of a nearby 

waterway. In re Korrow Real Estate, LLC, 2018 VT 39, ¶ 5, 207 Vt. 274 (quotations omitted). 

Under Act 250, “floodway” and “floodway fringe” are defined as follows: 

5

 Neighbors’ Question 5 asks “[w]hether the application complies with floodways requirements in 

conformity with Act 250 Criterion 1(D).” Amended Statement of Questions. 
32 

6) “Floodway” means the channel of a watercourse that is expected to flood on 

an average of at least once every 100 years and the adjacent land areas that are 

required to carry and discharge the flood of the watercourse, as determined by 

the Secretary of Natural Resources with full consideration given to upstream 

impoundments and flood control projects. 

(7) “Floodway fringe” means an area that is outside a floodway and is flooded with 

an average frequency of once or more in each 100 years, as determined by the 

Secretary of Natural Resources with full consideration given to upstream 

impoundments and flood control projects. 

10 V.S.A. § 6001(6), (7). 

 On behalf of Applicants, Mr. Sicard presented maps obtained from the ANR Natural 

Resources Atlas and FEMA, along with a topographic map he prepared with data from the 

Vermont Center for Geographic Information. The ANR map shows that the Project is not located 

within a designated river corridor, while the FEMA Flood Rate Insurance Map (FIRM) shows that 

the Project is not located within the Special Flood Hazard Area for the Black River as designated 

by the National Flood Insurance Program. Based on the ANR and FEMA maps and the topography 

of the area, we conclude that the Project is not located within a floodway or floodway fringe for 

purposes of Criterion 1(D). Therefore, no further review is necessary. See Korrow, 2018 VT 39, 

¶ 5, (noting that the threshold question for further review is “whether the project is in the 

floodway or floodway fringe”) (quotations omitted). The Project complies with Criterion 1(D), 

and we answer Neighbor’s Question 5 in the affirmative. 

c. Criterion 1(E) 

 Criterion 1(E) requires that “the development or subdivision of lands on or adjacent to 

the banks of a stream [must], whenever feasible, maintain the natural condition of the stream, 

and will not endanger the health, safety, or welfare of the public or adjoining landowners.”6 10 

V.S.A. § 6086(a)(1)(E). Applicants bear the burden of proof. 10 V.S.A. § 6088(a). While the sand 

and gravel pit is not near any perennial stream or river, there is a ravine containing an ephemeral 

or intermittent stream on the north side of West Griggs Road, across the road and over 100 feet 

6

 Neighbors’ Question 6 asks “[w]hether the project will have a negative impact on a nearby stream or 

endanger the health, safety, and welfare of nearby landowners in violation of Act 250 Criterion 1(E). 
33 

from the Project’s nearest area of disturbance. Mr. Sicard’s testimony indicated that the stream 

is ephemeral, in that water would flow through the ravine during times of heavy precipitation, 

however Applicants’ evidence did not rule out the possibility that the stream flows on an 

intermittent or seasonal basis. Regardless, the question is whether the Project is “adjacent” to 

the stream and, if so, whether the requirements of Criterion 1(E) are met. See 10 V.S.A. § 

6086(a)(1)(E). 

 Given the distance of over 100 feet from the stream to the nearest area of disturbance, 

Mr. Sicard concluded that the Project will not be adjacent to the banks of a stream. See id. 

Though we do not disagree, “[p]rior cases have not required that development actually abut 

streams for Criterion 1(E) to apply.” Killington Resort Parking Project Act 250 Amendment 

Application, No. 173-12-13 Vtec, slip op. at 18 (Vt. Super. Ct. Envtl. Div. Mar. 7, 2016) (Durkin, J.) 

(citing Re: Barre Granite Quarries, LLC, No. 7C1079, at 72 (Vt. Envtl. Bd. Dec. 8, 2000)). Thus, we 

turn to the potential impacts on the stream and nearby landowners. 

 Applicants have demonstrated that the Project will not disrupt the natural condition of 

the stream nor present a danger to nearby landowners as relevant to Criterion 1(E). Mr. Sicard 

opined that the topographic features surrounding the pit and the design of the Project itself 

effectively control runoff such that the site will be “99 percent self-contained” in terms of surface 

discharge. He explained that the topography of the area will divert water from uphill, off-site 

sources away from the pit, thereby reducing the amount of water entering the Project area and 

the amount of potential runoff. To the extent that water does enter the site through 

precipitation or other sources, the work area will be maintained to slope toward the extraction 

face where the water will pool and infiltrate the soil. Mr. Sicard did not discount the possibility 

that a small amount of water could flow from the pit entrance onto West Griggs Road, but he 

does not expect any runoff to cross the road and reach the stream. Based on the topography of 

the area, he does not expect any water which may leave the pit entrance to flow onto Neighbor’s 

property. 

 Neighbors presented several photos to the Court, including photos of the pit entrance as 

it connects to West Griggs Road, taken in November 2019. The photos show a small amount of 

sediment transportation onto West Griggs Road, and Mr. Sicard noted the sediment appeared to 
34 

be coming from embankments along the edge of the pit entrance which were not properly 

stabilized. He described the sediment issue as very minor. Applicants submitted a plan for 

improvements at that location which include stabilizing the overburden embankments along the 

southern side of the pit entrance and creating a 3% slope to the south on West Griggs Road to 

further prevent water from crossing the road. Mr. Katzenbach testified that he has completed 

the improvements according to the plan since the 2019 photos were taken. Additional photos 

from 2010–2016 and testimony from Neighbors established that areas of their property have 

experienced increasing erosion over the years, particularly following major storm events like 

Hurricane Irene. The intermittent or ephemeral stream discussed above contributes to surface 

discharge onto their property. Neighbors are concerned that any additional disturbance of the 

land above their property, which includes the pit, will lead to further runoff and erosion. 

Nonetheless, the photos showing erosion problems on their property predate any of Applicants’ 

permits for the Project under review, and Neighbors did not offer evidence to refute Mr. Sicard’s 

conclusion that the Project will not impact the stream or their property. 

 In sum, we find Mr. Sicard’s opinion to be credible and uncontradicted. His conclusions 

are supported by topographic mapping and the Project’s design characteristics, as well as 

Applicants’ improvements to West Griggs Road in the vicinity of the pit entrance. While 

Neighbors’ concerns are understandable, we have no evidence that discharge from the Project 

will enter the stream or Neighbors’ property. For the foregoing reasons, we conclude that the 

Project will “maintain the natural condition of the stream, and will not endanger the health, 

safety, or welfare of the public or adjoining landowners.” 10 V.S.A. § 6086(a)(1)(E). Thus, the 

Project complies with Criterion 1(E) and Neighbors’ Question 6 is answered in the negative. See 

id.; Amended Statement of Questions. 

d. Criterion 4 

 Under Criterion 4, Applicants must demonstrate that the Project “will not cause 

unreasonable soil erosion or reduction in the capacity of the land to hold water so that a 
35 

dangerous or unhealthy condition may result.”7 10 V.S.A. § 6086(a)(4). 10 V.S.A. § 6086(d) and 

Act 250 Rule 19 provide that certain ANR permits create presumptions of compliance with certain 

Act 250 Criteria. Pursuant to Act 250 Rule 19(E)(6), an approval from ANR for coverage by a 

general permit for stormwater runoff creates a presumption that the stormwater runoff will not 

cause unreasonable soil erosion or reduction in the capacity of the land to hold water. Act 250 

Rules, Rule 19(E)(6). The issuance of such an approval creates a presumption that the application 

is not detrimental to the public health and welfare with respect to the specific requirement for 

which it is accepted. Id., Rule 19(F). This presumption is rebuttable. In re Hawk Mountain Corp., 

149 Vt. 179, 186 (1988); see also Act 250 Rules, Rule 19(F). Here, Applicants received an 

Authorization to Discharge Stormwater (Permit No. 7744-9003) from ANR which represents 

approval for coverage under Multi-Sector General Permit (MSGP) 3-9003. Thus, Applicants are 

entitled to a presumption of compliance with Criterion 4 as to stormwater runoff from the pit. 

See Act 250 Rules, Rule 19(E)(6). 

 To rebut the presumption, Neighbors must introduce admissible evidence that allows a 

“rational inference to be drawn” that stormwater runoff from the pit will likely cause 

unreasonable soil erosion or reduction in the capacity of the land to hold water. See Hawk 

Mountain, 149 Vt. at 186. Neighbors provided testimony and photographic evidence which, as 

noted above in our discussion of Criterion 1(E), shows preexisting erosion and runoff issues on 

their property. Though we recognize Neighbors’ erosion concerns, they provided no evidence 

linking present or future runoff from the pit to present or future impacts on their property or 

other lands. We conclude that Neighbors have not provided the Court with sufficient information 

to draw a “rational inference” of noncompliance, therefore the presumption stands. See id. 

 In addition to the Authorization to Discharge from ANR, which includes required BMPs for 

erosion prevention and sediment control, Applicants presented erosion prevention measures for 

the end of the pit’s operating life and the maintenance of West Griggs Road. Mr. Sicard explained 

that once extraction is complete, the pit will be graded, capped with topsoil, and seeded for 

7

 Neighbors’ Question 7 asks: “Whether the proposed gravel pit will cause unreasonable soil erosion or 

reduction in the capacity of the land to hold water such that a dangerous or unhealthy condition will occur, including 

but not limited to causing or exacerbating erosion on Neighbors’ property, in violation of Act 250 Criterion 4.” 

Amended Statement of Questions. 
36 

revegetation in accordance with Applicants’ reclamation plan. Revegetation will prevent the 

erosion that would occur due to rainfall and other exposure if the pit were left open to the 

elements. 

 As to West Griggs Road, Mr. Sicard observed areas where Applicants had built up and 

stabilized the road with gravel and crushed rock. He opined that the truck traffic will not create 

an erosion concern, especially given the work Applicants have done to improve and stabilize the 

road. In the absence of stabilization, fine-grain soils become susceptible to erosion and can be 

transported with the flow of water. Mr. Katzenbach confirmed that he has applied Staymat, a 

type of gravel used in stabilizing dirt road surfaces, to eroded areas on the upper and lower 

sections of West Griggs Road. He will continue to improve and maintain the full length of West 

Griggs Road using Staymat and other materials, in accordance with the Vermont Better 

Backroads Manual. Mr. Katzenbach also presented a site plan showing several road 

improvements, including an existing water bar and plans for three stone-lined water turn outs. 

One of the three turn outs is complete, and the others will be added if the Project is approved. 

Testimony from Mr. Katzenbach and Mr. Goodridge established that Applicants will take full 

responsibility for the maintenance of West Griggs Road. 

 Neighbors offered several photos and videos purporting to show erosion issues on West 

Griggs Road. These include photos from the residential section of the road, and videos showing 

various portions of the road from the intersection with Route 14 to the section just before the 

pit entrance. Mr. Sicard identified an area where the road lacked a well-defined crown, which 

led to some water flowing over the top of the road and some tracking of sediment. He opined 

that this is typical of gravel town highways and could be fixed through stabilization with gravel 

and rock. In other areas Mr. Sicard noted that the road was in excellent condition, and that 

improvements had been made. In all cases, he affirmed that the conditions shown did not 

represent unreasonable or dangerous erosion and that his opinion as to the impacts of truck 

traffic was unchanged. 

 We credit Mr. Sicard’s opinion as to the adequacy of Applicants’ pit reclamation plan and 

maintenance measures on West Griggs Road. Mr. Sicard’s testimony and report, together with 

Applicants’ Authorization to Discharge, proposed prevention measures, and demonstrated 
37 

commitment to road maintenance, persuades us that pit operations, the eventual pit 

decommissioning and Project truck traffic will not cause unreasonable erosion or reduce the 

capacity of the land to hold water. See 10 V.S.A. § 6086(a)(4). With that said, we require that 

Applicants be wholly responsible for maintaining West Griggs Road for the life of the Project. 

Though they have affirmed that this is their intent, the responsibility for road maintenance has 

been somewhat ambiguous before now. To ensure compliance with Criterion 4 and avoid any 

confusion moving forward, we conclude that it is appropriate to impose the following condition: 

Applicants will be wholly responsible for maintaining West Griggs Road from the pit entrance to 

the Route 14 intersection for the life of the Project. The road shall be stabilized and improved as 

needed to minimize erosion and sediment transportation, in accordance with the Vermont Better 

Backroads Manual. 

 For the reasons above, we conclude that the Project as conditioned complies with 

Criterion 4: it “will not cause unreasonable soil erosion or reduction in the capacity of the land to 

hold water so that a dangerous or unhealthy condition may result.” 10 V.S.A. § 6086(a)(4). 

Neighbors’ Question 7 is answered in the negative. 

e. Criterion 5 

 Pursuant to Criterion 5, a project must not “cause unreasonable congestion or unsafe 

conditions with respect to the use of the highways.”8 10 V.S.A. § 6086(a)(5)(A). Though 

applicants always bear the burden of production, opposing parties bear the burden of persuasion 

for Criterion 5. See In re Eastview at Middlebury, Inc., No. 256-11-06 Vtec, slip op. at 4 (Vt. Envtl. 

Ct. Feb. 15, 2008) (Durkin, J.) (noting that “the burden of persuasion refers to the obligation of 

persuading the fact finder that certain facts are more likely true than not”) (citation omitted); 10 

V.S.A. § 6088(b) (under Criteria 5–8, opposing parties have the burden “to show an unreasonable 

or adverse effect”). A project may not be denied solely based on a lack of positive findings under 

Criterion 5; rather, the Court may impose “reasonable conditions and requirements” to alleviate 

any impacts. 10 V.S.A. §§ 6087(b), 6086(c). 

8

 Neighbors’ Question 8 asks “[w]hether the proposed heavy truck traffic will cause unreasonable 

congestion or unsafe traffic conditions in violation of Act 250 Criterion 5. 
38 

 Applicants acknowledge that the Project will create additional truck traffic on West Griggs 

Road and Route 14, as haul trucks travel to and from the pit. As proposed, the additional traffic 

will be no more than 40 one-way trips or 20 round trips per day. Trucks will arrive and depart 

from the north and south on Route 14, with approximately half of the trucks departing to the 

north and half to the south. Existing traffic on Route 14 is fairly constant and includes heavy truck 

traffic. Existing traffic on West Griggs Road is minimal, with most uses attributable to the 

residential area near Route 14. The upper section of the road is rarely used by vehicles other 

than haul trucks associated with the Project. 

 Mr Sicard opined that the overall traffic impacts will be minor, in keeping with the small 

scale of the Project relative to other earth extraction operations in the region. He noted that 

Route 14 is designed to accommodate heavy traffic, and that Applicants have improved the 

intersection with West Griggs Road by adding an asphalt apron. The new apron bolsters the 

transition between Route 14 and West Griggs Road, where the roadway is more susceptible to 

wear from truck acceleration and deceleration. Applicants have also installed signage in 

accordance with the Town’s recommendations: they placed a “stop ahead” sign on West Griggs 

Road, 300 feet from the intersection, and a stop sign at the intersection itself. 

 As to conditions and congestion on West Griggs Road, Mr. Sicard did not have any 

concerns. The Project will generate a comparatively small amount of truck traffic in his opinion, 

and he explained that trucks will be moving slowly along the entire 1300-foot section from Route 

14 to the pit. Truck speed will be slow through the residential area thanks to the stop sign and 

turning movements associated with entering or exiting Route 14. Beyond the residences, steep 

grades and the narrowing roadway will limit speeds to approximately 10 miles per hour. On the 

residential segment of the road including the intersection with Route 14, there is sufficient space 

for trucks to pass each other safely in opposite directions, and for other vehicles to pass the 

trucks. Further uphill, the road narrows to 14 feet and it is not possible for two vehicles to pass 

each other unless they utilize the vehicle pull-off located about 200 feet from the pit entrance. 

If two trucks were to meet on West Griggs Road between the residential segment and the pulloff, one truck would be required to back down the road until it widens enough to allow passing. 
39 

 Mr. Katzenbach testified that the pit cannot accommodate more than two trucks at the 

same time for loading. He schedules truck pick-ups at the pit; customers are not allowed to arrive 

whenever they choose. These aspects of the Project’s operations will help limit the amount of 

truck traffic and congestion on West Griggs Road at any one time. Mr. Katzenbach also has the 

ability to communicate with drivers via CB radio. The road will be maintained and stabilized by 

Applicants, as described in the Court’s discussion of Criterion 4 above. Mr. Sicard is comfortable 

with the proposed traffic and road conditions; he described them as similar to those found in 

logging operations throughout the Northeast Kingdom. 

 In addition to considering congestion and safety issues, Criterion 5 requires that projects 

“as appropriate, will incorporate transportation demand management strategies.” 10 V.S.A. § 

6086(a)(5)(B). Considering the scale of the Project, the amount of additional traffic, and the 

existing capacity of Route 14 and West Griggs Road, Mr. Sicard concluded that a formal 

transportation demand management (TDM) strategy was not warranted. We credit Mr. Sicard’s 

report and testimony as it relates to Criterion 5. Based on his opinion and testimony, the 

testimony of Mr. Katzenbach, existing and planned road improvements and maintenance, and 

the details of the Project proposal, we conclude that Applicants have provided the Court with 

sufficient information to find that the Project “will not cause unreasonable congestion or unsafe 

conditions” and will be adequately managed without a formal TDM strategy. Thus, Applicants 

have satisfied their burden of production. 10 V.S.A. § 6086(a)(5); see In re Champlain Parkway, 

2015 VT 105, ¶ 15, 200 Vt. 158 (indicating that the burden is satisfied when an applicant 

establishes “prima facie compliance with Criterion 5”). 

 It is Neighbors’ burden “to show an unreasonable or adverse effect” from the Project 

under Criterion 5. 10 V.S.A. § 6088(b). Through Mr. Ellis’s testimony and Neighbors’ crossexamination of Mr. Sicard and Mr. Katzenbach, they have identified three areas of concern 

regarding the Project’s traffic impacts. First, Mr. Ellis recounted seeing a truck backing down 

West Griggs Road on multiple occasions to allow another truck to pass. This necessarily involves 

backing down to the residential segment of the road, where the width is sufficient for passing. 

While the Court did not receive evidence that this practice is inherently unsafe, we share 

Neighbors’ concern. The road is narrow and steep above the residential area, and at least one 
40 

residence is very close to the road. Furthermore, it is apparent that Applicants have the means 

to minimize the problem through appropriate scheduling and radio communication. Second, Mr. 

Ellis expressed concern at seeing a truck back out into Route 14 at the intersection with West 

Griggs Road. Mr. Katzenbach confirmed that this has occurred, and Mr. Sicard stated that a truck 

backing into Route 14 represents a traffic safety hazard. Therefore, Neighbors have shown the 

potential for a dangerous condition caused by trucks associated with the Project. 

 Third, Mr. Ellis described Neighbors’ historic use of West Griggs Road for recreation, 

primarily to walk their dog and enjoy a stroll. He explained that haul trucks on the road take up 

almost all the available width, to the point where he no longer feels safe as a pedestrian. As a 

result, Neighbors have stopped taking their regular walks. A video submitted by Neighbors shows 

one of Applicants’ trucks driving up West Griggs Road and persuasively illustrates the potential 

impact on pedestrians. The truck occupies most of the road width, and tall banks can be seen on 

either side of the road for a significant portion of its length. As Mr. Ellis explained, these banks 

would make it difficult for a pedestrian to get out of the path of an oncoming truck. 

 Though we cannot deny the Project based solely on the requirements of Criterion 5, we 

may impose conditions to protect against unsafe conditions. See 10 V.S.A. §§ 6087(b), 6086(c). 

Based on the evidence before the Court, we determine that the following conditions are 

appropriate: Applicants shall schedule the arrivals and departures of haul trucks and 

communicate with drivers via radio to minimize the occurrence of trucks reversing down West 

Griggs Road. Haul Trucks shall be prohibited from reversing into Route 14 for any reason. To 

allow for safe recreation opportunities during business hours, haul trucks shall not travel West 

Griggs Road between 12:00PM and 1:00PM on any day.9 As conditioned, we conclude that the 

Project complies with Criterion 5. See 10 V.S.A. §§ 6086(a)(5), 6086(c). Neighbors’ Question 8 is 

therefore answered in the negative. 

 

9

 The Court has also imposed other restrictions on operating hours pursuant to Criterion 8, discussed below. 

These will further reduce potential conflicts with pedestrians on West Griggs Road. 
41 

f. Criterion 8 

 Pursuant to Criterion 8, an applicant must provide evidence sufficient to enable the Court 

to find that the proposed project will 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). In this case, our review is limited to aesthetic impacts from noise, dust, and diesel 

fumes or exhaust emissions.10 If Applicants satisfy the initial burden of production, the ultimate 

burden of proving that the Project does not conform to Criterion 8 rests upon Neighbors. See 10 

V.S.A. § 6088(b); 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. The cornerstone of our analysis under Criterion 

8 is whether “the proposed project [will] be in harmony with its surroundings—will it ‘fit’ the 

context within which it will be located?” Re: Quechee Lakes Corp., Nos. 3W0411-EB and 3W0439-

EB, Findings of Fact, Conclusions of Law, and Order, at 18 (Vt. Envtl. Bd. Nov. 4, 1985), aff'd, In re 

Quechee Lakes Corp., 154 Vt. 543 (1990). 

 To evaluate a project under Criterion 8, we follow the two-part test known as the 

“Quechee test” established by the former Environmental Board. See Quechee Lakes Corp., Nos. 

3W0411-EB and 3W0439-EB, at 19–20; In re Rinkers, Inc., 2011 VT 78, ¶ 9, 190 Vt. 567 (approving 

use of the Quechee test). First, we examine whether the project may cause an adverse impact 

on the character of the area. Quechee Lakes Corp., Nos. 3W0411-EB and 3W0439-EB, at 19. If 

so, we must then determine whether that impact will be “undue.” Id. 

 “The word ‘adverse’ means unfavorable, opposed, hostile” to the character of the area. 

See id. at 17 (quoting Re: Brattleboro Chalet Motor Lodge, Inc., No. 4C0581-EB, Findings of Fact, 

Conclusions of Law, and Order (Vt. Envtl. Bd. Oct. 17, 1984)). To determine whether a project 

will have an “adverse” aesthetic impact, the Court is charged to look at how the project fits within 

the context of its area in terms of size, scale, nature of use and various off-site impacts, here with 

specific regard to noise, dust, and exhaust emissions. See Quechee Lakes Corp., Nos. 3W0411-

EB and 3W0439-EB, at at 18–19; see also In re Free Heel, Inc., No. 217-9-06 Vtec, slip op. at 5 (Vt. 

10 Neighbors’ Question 9 asks “[w]hether the operation of the proposed gravel pit, including but not limited 

to on-site crushing, on- and off- site truck traffic, and excavation will cause an undue adverse aesthetic impact as a 

result of noise, dust, diesel fumes, and exhaust in violation of Act 250 Criterion 8.” 
42 

Envtl. Ct. Mar. 21, 2007). If a project fits within its aesthetic context, it will not have an “adverse” 

aesthetic impact and will comply with Criterion 8. 

 Even if the Court finds that a project does not fit within its context, and therefore has an 

“adverse” aesthetic impact on the area, a project will still be found to comply with Criterion 8 

unless the adverse aesthetic impact is found to be “undue.” An impact is undue if: 

(1) it violates a clear, written community standards intended to preserve 

aesthetics or scenic, natural beauty of the area; (2) it offends the sensibilities of 

the average person; or (3) the applicant has failed to take generally available 

mitigating steps that a reasonable person would take to improve the harmony of 

the proposed project with its surroundings. 

In re Lathrop Ltd. P’ship, 2015 VT 49, ¶ 74, 199 Vt. 19 (quotation omitted). 

1. Noise 

 In evaluating noise impacts under the Quechee test, we are guided by a benchmark 

known as the Barre Granite standard, where instantaneous noise levels are adverse for purposes 

of Criterion 8 if they exceed 70 dBA Lmax at the property line and 55 dBA Lmax outside 

surrounding residences or areas of frequent human use. Lathrop, 2015 VT 49, ¶ 80 (citing Re: 

Barre Granite Quarries, LLC, No. 7C1079 (Revised)-EB, Findings of Fact, Conclusions of Law, and 

Order, at 80 (Vt. Envtl. Bd. Dec. 8, 2000)). The Barre Granite standard is not set in stone: it “is 

applied flexibly to accommodate existing background noise and the project context.” See 

Lathrop, 2015 VT 49, ¶ 85; see also Re: McLean Enters. Corp., No. 2S1147–1–EB, Findings of Fact, 

Conclusions of Law, and Order, at 64 (Vt. Envtl. Bd. Nov. 24, 2004) (noting “the need to consider 

a relative approach that would adjust the standard upward in areas with loud existing 

background noise”). If noise impacts are found to be adverse, we continue to the second step of 

the Quechee test and consider whether they are unduly adverse. 

 In this case, the area surrounding the Project is rural: the existing soundscape is defined 

by natural noises and steady traffic on Route 14. Route 14 traffic often includes heavy trucks, 

however, West Griggs Road is a small, Class IV dirt road which had only minimal, residential traffic 

before Applicants began operating. Broadly speaking, the potential noise impacts from the 

Project come from two sources: equipment operating at the pit, and haul trucks traveling West 
43 

Griggs Road and Route 14. Applicants’ sound expert, Mr. Reuter, presented the results of his 

sound measuring and modeling and his conclusions as to the impacts on the area. 

i. Adverse Impact 

 We begin with the noise impacts from excavation and processing activities at the pit. Mr. 

Reuter visited the pit to measure the sound levels generated by Applicants’ equipment, 

identifying the maximum instantaneous noise level (Lmax) for the excavator, screen, bucket 

loader, and Peterbilt dump truck. He then used those levels as inputs to model sound 

propagation from the pit and predict Lmax at various locations. The results show that noise from 

each piece of equipment working onsite will exceed 70 dBA Lmax at the Project’s property line. 

This exceeds the Barre Granite limit. See NE Materials Grp., LLC, No. 75-6-17 Vtec, slip op. at 35 

(Vt. Super. Ct. Envtl. Div. June 20, 2018) (Walsh, J.) (stating that the limit is 70 dBA Lmax “at the 

property line of a project”). Though the Barre Granite standard is flexible, and totality of the 

evidence presents a close question, we conclude that the noise impacts from the pit will be 

adverse. 

 Turning to the noise impacts from haul trucks traveling the roads, we reach the same 

conclusion. To predict the relevant instantaneous noise levels, Mr. Reuter used the Lmax 

measurement he obtained from Applicants’ Peterbilt dump truck as an input to model sound 

propagation along West Griggs Road and Route 14. The results show that a truck traveling on 

Route 14 will produce a noise level of approximately 66 dBA Lmax at Neighbors’ residence and 

the Valley residence. The noise from a truck on West Griggs Road will be approximately 75 dBA 

Lmax at the same residences. Thus, the Project is predicted to exceed the Barre Granite standard 

of 55 dBA Lmax by up to 20 dBA. See id. 

 Though this is a large exceedance, it is tempered by fact that Route 14 traffic is already a 

source of significant background noise. Mr. Reuter provided additional modeling to help put the 

Lmax results in context: he showed that the worst-case hourly traffic of 10 trucks, or 5 round 

trips on West Griggs Road, would produce noise levels of approximately 58 dBA Leq 1-hr while 

existing traffic would generate approximately 50 dBA Leq 1-hr assuming the same number of 

heavy trucks. The Leq 1-hr metric identifies the average of sound energy levels over the course 
44 

of an hour and is typically used for gauging noise impacts because it correlates well with levels of 

annoyance. Nonetheless, the Project as proposed will add up to 40 one-way truck trips, or 20 

roundtrips per day and will produce higher noise levels than existing traffic. We therefore 

conclude that noise impacts from haul trucks will be adverse. The next question is whether the 

noise impacts from pit operations and haul trucks will be undue. 

ii. Undue Adverse Impact 

 Under the Quechee test, adverse aesthetic impacts will still comply with Criterion 8 unless 

it is shown that they (1) will violate a clear, written community standard intended to preserve 

aesthetics, (2) will offend the sensibilities of the average person; or (3) the applicant has failed to 

take generally available mitigating steps that a reasonable person would take to improve the 

harmony of the proposed project with its surroundings. See Lathrop, 2015 VT 49, ¶ 74. Neither 

party provided evidence of the existence of community standards that were intended to preserve 

the aesthetics of the area, therefore we consider whether the Project’s 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.” Goddard, Nos. 175-12-11 Vtec and 173-12-12 

Vtec at 16 (Jan. 6, 2014) (citing Re: Pike Indus., Inc., No. 1R0807-EB, Findings of Fact, Conclusions 

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

 Mr. Ellis described the noise from Neighbors’ perspective, with particular attention to 

impacts on the use and enjoyment of their property. Neighbors can hear noise from the pit 

operations almost everywhere, except in their home. They assert that the pit has significantly 

increased noise levels at the southeastern corner of their property, an area which was previously 

quiet. Though Mr. Ellis did not indicate that Neighbors use of that area was particularly frequent 

in the past, they now avoid it except to harvest firewood. From Mr. Ellis’s testimony, we gather 

that the impacts from haul trucks are of greater concern. Project trucks passing on West Griggs 

Road and Route 14 are audible practically everywhere on Neighbors’ property, and they perceive 

the noise to be loudest near the roadways and inside their home. Mr. Ellis indicated that he can 

also feel vibrations as trucks pass. The noise has caused Neighbors to stop using parts of their 

property, especially along West Griggs Road, and they feel it has drastically impacted the nature 
45 

of their surroundings. We find Mr. Ellis’s testimony to be credible and persuasive as to Neighbors’ 

experiences. 

 With respect to noise from the pit, we conclude that the impacts will not be shocking or 

offensive. First, though the noise levels are predicted to be over the Barre Granite limit at the 

property line, the exceedance is slight. Considering all equipment, the 70 dBA Lmax extends into 

the West Griggs Road right-of-way no further than approximately 100 feet. The 70 dBA level also 

extends into the abutting property of Janice and Kenneth Adams no further than approximately 

125 feet. We also note that operating multiple pieces of equipment simultaneously does not 

increase the overall Lmax. Second, the noise levels at the property line do not provide the full 

context for impacts on neighboring properties. At trial, Ms. Adams testified that she has no 

objection to noise from the Project. Nearby residences are at least 1000 feet away, where 

predicted noise levels are less than 40 dBA Lmax. All areas of frequent human use known to the 

Court are below the 55dBA, with most areas predicted to experience less than 40 dBA Lmax. 

Perhaps most importantly, Mr. Reuter’s modeling shows that the existing steady traffic on Route 

14 produces noise levels ranging from 35–60 dBA Leq-1hr at residences and most areas of 

frequent human use. The Leq-1hr metric represents the average of sound energy over a given 

time period, thus we can infer that existing noise levels also reach an Lmax of least 35–60 dBA in 

the same areas. In short, the Lmax at residences and areas of frequent use will be comparable 

to or lower than existing background levels. While Neighbors noted that some equipment noises 

differ in character to that of the existing traffic, they did not demonstrate that 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.” Goddard, Nos. 175-12-11 Vtec and 

173-12-12 Vtec at 16 (Jan. 6, 2014). 

 The impacts from trucks traveling to and from the Project will be more significant. With 

the Project operating as proposed, instantaneous noise from haul trucks on West Griggs Road is 

predicted to reach 75 dBA Lmax at residences up to 40 times over an 11.5-hour operating day. 

The Court has no difficulty understanding Neighbors’ concern with this arrangement, but we 

must evaluate the effect on an average person given the existing noise context. See id. Beyond 

West Griggs Road, a Project truck on Route 14 yields a predicted Lmax of approximately 66 dBA 
46 

at Neighbors’ residence, and 55–70 dBA at several areas of frequent use. At some other nearby 

residences, the Lmax will be between 60 and 65 dBA. Considering that the existing traffic on 

Route 14 includes similar heavy trucks, we would expect existing traffic to create similar impacts. 

In fact, Mr. Reuter indicated that existing trucks could be louder because they will be traveling 

faster. The predicted Leq, or equivalent sound levels in the area are also helpful in 

contextualizing potential noise impacts to residents. 

 Mr. Reuter modeled 3 scenarios with the Leq metric to compare existing traffic and 

Project trucks. Instead of the actual sound measured from Applicants’ truck, he used the Federal 

Highway Administration Traffic Noise Model (TNM) as an input.11 The first scenario represents 

existing traffic on Route 14 and assumes 148 cars, 10 light trucks, and 10 heavy trucks over the 

course of an hour, based on VTRANS traffic count data. There, the Leq-1hr is predicted to be 

approximately 50 dBA at Neighbors’ residence, and between 35–55 dBA at most areas of 

frequent use. The second scenario represents the worst-case hourly impact from the Project, 

with 10 truck passes or 5 round trips along both West Griggs Road and Route 14. Noise from 

turning movements, acceleration, and deceleration is included. The predicted Leq-1hr is 

approximately 58 dBA at Neighbors’ residence, and between 40–60 dBA at most areas of 

frequent use. The third scenario has the same parameters except it reflects the lowest hourly 

impact of 4 truck passes, or 2 round trips, resulting in an Leq-1hr of 56 dBA at Neighbors’ 

residence and similar levels to the worst-case scenario on their property overall. 

 All of this suggests that Project trucks will increase the instantaneous and hourly noise 

levels experienced at key areas on neighboring properties, though not to a shocking degree as 

compared to existing levels. Considering the Project’s hours of operation, existing traffic and the 

overall character of the area, Mr. Reuter stated that he did not expect the noise to have a 

significant impact. He did, however, conclude that the increased traffic from trucks on West 

11 Although Mr. Reuter modeled various scenarios using actual measurements or the TNM to predict Lmax 

and Leq1-hr, we note that Applicants did not conduct any noise monitoring of traffic on Route 14 or West Griggs 

Road. Mr. Reuter opined that Lmax values are best assessed with modeling, because it is impractical to isolate 

background noise from monitoring results. Nonetheless, the Project is operational, and where possible we would 

prefer evidence of the actual noise levels and noise events at nearby residences to compare Project trucks on the 

roads with existing traffic on Route 14. See, e.g., Hovey A250 Permit, No. 130-9-13 Vtec, slip op. at 4–5 (Vt. Super. 

Ct. Envtl. Div. Mar. 31, 2015) (Walsh, J.) (discussing the results of noise monitoring). 
47 

Griggs Road would have some impact, especially considering the proximity of residences to the 

road. 

 While the Court finds Mr. Reuters’ opinion to be credible, Applicants’ evidence did not 

fully account for the additional frequency of noise events, particularly on West Griggs Road. See 

N. E. Materials Grp., 2019 VT 55, ¶ 23, (endorsing consideration of “the impact of each additional 

truck on residents in the area” as part of a multifactored analysis). If the Project operates at its 

proposed limits, residences will experience intermittent truck passes from 6:30am to 6:00pm on 

weekdays and a total of 40 truck passes per day at up to 75 dBA Lmax. If we consider that trucks 

will pass by residences on West Griggs Road, navigate the intersection, and pass some residences 

again on Route 14 during a one-way “trip,” it could be argued that the actual number of additional 

noise events experienced will be more than the 40. The passes on West Griggs Road will last 

longer than those on Route 14, because trucks will be moving slowly. The houses in the 

residential area are generally closer to West Griggs Road than Route 14. Mr. Reuter estimated 

that existing traffic on Route 14 includes 100 trucks per day, and he opined that 40 additional 

truck passes would not create a significant impact. In the Court’s view, however, Applicants did 

not substantively address the impact of 11.5 hours of operation and 40 passes on the much 

smaller West Griggs Road, which had only minimal residential traffic prior to the Project. We 

recognize that the Project might not operate at its limits, but we must evaluate the implications 

of the full proposal. The above factors, in combination with Neighbors’ experiences with the 

Project thus far, lead us to conclude that truck noise impacts in the early morning and late 

afternoon or evening have the potential to be shocking or offensive to the average person unless 

further limits are imposed on trucking. 

 To ensure compliance with Criterion 8, we conclude that it is appropriate to impose the 

following condition on Project truck traffic: Operating hours for haul trucks on West Griggs Road 

shall be limited to 10:00AM to 12:00PM and 1:00PM to 3:00PM on weekdays, 10:00AM to 

12:00PM on Saturdays, with no operation on national holidays. Given Applicants’ estimated 

maximum of 5 round trips or 10 one-way trips per hour, this will allow the Project to reach its 

proposed daily limit on hauling during the week while greatly reducing impacts on the 
48 

surrounding community. With this further condition, the Project will not offend the sensibilities 

of the average person.12 

 The final question in determining whether an adverse impact is undue is whether the 

applicant has failed to take reasonable and generally available mitigating steps. See N. E. 

Materials Grp., 2019 VT 55, ¶ 11. Neighbors assert that trucking should be limited in various 

ways. They have shown that the operating hours of larger sand and gravel businesses across the 

state, including those in the Northeast Kingdom, begin later and end earlier than Applicants’ 

proposed hours of operation. We have already imposed appropriate limits on the hours for 

trucking, which will enable the Project to operate up to its proposed hauling capacity and will 

improve the harmony of the Project with its surroundings. See id. Neighbors request additional 

limits on the number of truck trips, but they have not shown that such limits would be reasonable 

or even viable. See id. They also suggest limiting extraction to 20,000 cubic yards per year rather 

than 30,000, yet they offer no way to quantify the effect of the annual reduction as it relates to 

truck noise. We conclude that the Project, as conditioned, accounts for all reasonable and 

generally available noise mitigation. 

 Considering the evidence before the Court in its entirety, including both the type and 

frequency of noise that the Project will generate, the existing noise characteristics, and 

neighboring land uses, we conclude that the Project, as conditioned by the Court, will not have 

an undue adverse effect on aesthetics with respect to noise. See 10 V.S.A. § 6086(a)(8); Lathrop, 

2015 VT 49, ¶ 74 (discussing the Quechee test). 

2. Dust 

i. Adverse Impact 

 Any earth extraction operation can be expected to generate some dust, and this Project 

is no exception. In this case the potential sources of dust include operations at the pit and the 

haul trucks traveling the roads. The area surrounding the Project is rural, with many dirt roads 

12 Neighbors also raised the issue of engine braking, or the use of “jake brakes,” which generates a loud and 

distinct sound. Applicants have stipulated to a condition limiting engine braking to emergency situations, and we 

impose such a condition in the Conclusion of this decision. 
49 

serving the Town’s population. There are other gravel pits and similar operations in the area, 

including a pit owned by the Town. As discussed above in the context of Criterion 1, Applicants 

have shown that the Project’s dust impacts will be limited by, and proportionate to, its 

comparatively small scale. Their proposal also incorporates effective dust control measures 

which will further mitigate potential impacts. 

 Neighbors spoke to their concern about dust in general, but provided limited evidence as 

to adverse impacts, if any, on the character of the area. Mr. Ellis stated at trial that Neighbors 

have avoided using the southeastern corner of their property since the Project began operating, 

in part because of dust issues from trucks entering and exiting the pit area via West Griggs Road. 

Though this type of impact is a concern, it is Neighbors’ burden to demonstrate an adverse effect 

within the context of the area. See 10 V.S.A. § 6088(b). Based on the evidence before the Court, 

we conclude that the Project “fits” with its surroundings and will not have an adverse effect on 

the aesthetics of the area due to dust. Nonetheless, we err on the side of caution and proceed 

to the second prong of the Quechee analysis to consider whether any impacts are “undue.” 

ii. Undue Adverse Impact 

 The parties provided no evidence of a clear, written community standard intended to 

preserve the aesthetics of the area. See In re Rinkers, Inc., 2011 VT 78, ¶¶ 9–10 (describing the 

three factors to be considered under the second prong of the Quechee test). Therefore, the next 

question is whether the Projects’ dust impacts would offend the sensibilities of the average 

person. Id. We recognize that Applicants are proposing a considerable increase in truck traffic 

on West Griggs Road, and therefore an increased potential for dust, during most hours of the 

day. Based on Mr. Ellis’s testimony, it is likely that Neighbors will see some impact to a portion 

of their property. Yet, we have already imposed conditions limiting the hours of operation for 

Project trucks, and Neighbors have not provided evidence to suggest that the dust will be 

shocking or offensive to the average person. See id. 

 As to mitigation, Applicants’ proposal includes effective dust control measures. 

Neighbors also suggest limits on hours of operation, truck trips, and extraction, along with a 

requirement that Applicants take responsibility for maintenance and dust control on West Griggs 
50 

Road. We have imposed conditions on operating hours, road maintenance, and dust control, and 

Neighbors have not established that their remaining suggestions are reasonable or generally 

available to Applicants as a practical matter. For the reasons above, we conclude that the Project, 

as conditioned, will not create unduly adverse dust impacts. See id. 

3. Exhaust and Diesel Fumes 

i. Adverse Impact 

 The Project will produce diesel fumes and exhaust emissions consistent with the 

processing equipment and heavy trucks involved in its operations. As discussed above in the 

context of Criterion 1, Applicants’ engineer provided credible testimony that emissions from 

equipment at the pit will be limited by several aspects of the proposal and will dissipate before 

impacting neighboring properties. Applicants have also established that truck emissions are 

subject to state inspection requirements and further limited by a proposed requirement for nonmodified and factory original equipment. We have already discussed several relevant 

characteristics of the surrounding area, the most notable of which in this context is the existing 

traffic on Route 14. 

 Neighbors’ evidence largely focuses on the impacts of truck emissions on West Griggs 

Road. Mr. Ellis described smelling diesel fumes from haul trucks at numerous places on their 

property, especially in wooded areas and on the portion of their property that runs along the 

road. He noted experiencing some throat irritation and estimated that the smell can linger for 

as long as 10 minutes. Though Neighbors’ property also abuts Route 14, they assert that the 

fumes from trucks on that road are not noticeable. The impacts from Project trucks have reduced 

Neighbors’ desire to work outside at the affected areas on their property: understandably, they 

prefer not to breathe diesel fumes while working. 

 Considering the proximity of Route 14 and the prevalence of existing truck traffic, we 

cannot say the Project’s emissions or fumes are overly “hostile” to the broad character of the 

area. Neighbors’ evidence, however, suggests that the residences in the area may be negatively 

affected by the additional emissions associated with haul trucks. We therefore conclude that 

exhaust and diesel fumes from the trucks will have an adverse effect. 
51 

ii. Undue Adverse Impact 

 Because neither party provided evidence of an applicable community standard, we move 

on to evaluate whether the emissions and fumes will be shocking or offensive. The testimony of 

Mr. Ellis demonstrated that the fumes are offensive to Neighbors, yet the Court received little 

information with which to evaluate the perspective of the average person. The evidence does 

allow us to conclude that exhaust and diesel fumes from trucks on West Griggs Road will be 

noticeable, and likely unpleasant. 

 Under Applicants’ proposal, which calls for operations from 6:30 AM to 6:00 PM on 

weekdays and 7:00 AM to 1:00 PM on Saturdays, there is the potential for fumes to become a 

considerable nuisance. The Court has imposed further limits on trucking hours, which will greatly 

reduce the hours of possible exposure. Considering the Project as conditioned, the presence of 

existing heavy truck traffic and the lack of other evidence leads us to conclude that Project 

exhaust emissions or fumes will not be “so out of character with [their] surroundings or so 

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

person.” Goddard, No. 173-12-12 Vtec at 16 (Jan. 6, 2014); see also In re Goddard Coll. 

Conditional Use, 2014 VT 124, ¶ 12, 198 Vt. 85 (“[I]n the absence of evidence on the issue, or 

where the evidence is indecisive, the issue must be decided in the applicant's favor.”) (quotation 

omitted). 

 Beyond the mitigation already proposed by Applicants and further mitigation imposed by 

the Court, Neighbors point to reductions in the number of truck trips and the yearly extraction 

volume. Neighbors have not demonstrated that these measures represent reasonable 

modifications to the Project proposal. We conclude that the exhaust and diesel fumes from the 

Project, as conditioned, will not have an undue adverse effect on aesthetics. 

 Based on the evidence before the Court with respect to noise, dust, and exhaust or diesel 

fumes, we further conclude that the Project, as conditioned, complies with Criterion 8. 

Neighbors’ Question 9 is answered in the negative. 

 
52 

Conclusion 

 For the foregoing reasons, we conclude that the Applicants’ sand and gravel Project 

complies with Act 250 Criteria 1, 1(D), 1(E), 4, 5, and 8, subject to the following conditions13: 

1. Applicants shall be wholly responsible for dust control on West Griggs Road for the life of 

the Project, including road stabilization and application of calcium chloride as needed. 

2. Applicants shall be wholly responsible for maintaining West Griggs Road from the pit 

entrance to the Route 14 intersection for the life of the Project. The road shall be 

stabilized and improved as needed to minimize erosion and sediment transportation, in 

accordance with the Vermont Better Backroads Manual. 

3. Applicants shall schedule the arrivals and departures of haul trucks and communicate 

with drivers via radio to minimize the occurrence of trucks reversing down West Griggs 

Road. 

4. Haul Trucks shall be prohibited from reversing into Route 14 for any reason. 

5. To allow for safe recreation opportunities during business hours, haul trucks shall not 

travel West Griggs Road between 12:00PM and 1:00PM on any day. As additional 

mitigation of project impacts, haul trucks use of West Griggs Road shall be limited to 

10:00 AM to 12:00 PM and 1:00 PM to 3:00 PM on weekdays, 10:00 AM to 12:00 PM on 

Saturdays, with no operation on national holidays. These time restrictions do not apply 

to pit operations. 

6. Engine braking, or the use of “jake brakes,” shall be prohibited on West Griggs Road 

except in case of emergency. 

7. Crushing of material is not authorized at any location. 

We further conclude that Applicants have satisfied the certification requirement under 10 V.S.A. 

§ 6087(c). The District Commission’s Finding 10, incorporated through Condition 2 of the Dash 1 

Permit, is replaced by the condition that Applicants shall be wholly responsible for dust control 

on West Griggs Road, including road stabilization and application of calcium chloride or water as 

needed. The District Commission previously approved up to 15 days of crushing operations per 

calendar year, and that approval is voided. 

 We therefore conclude that the application for an Act 250 Land Use Permit, as 

conditioned, complies with the Act 250 criteria before the Court and we REMAND the matter to 

13 Neighbors’ Question 10 asks whether “reasonable conditions must be placed on the operation and 

construction of the proposed project,” and lists several potential restrictions. See Amended Statement of Questions. 

The conditions imposed by the Court here reflect our consideration of Question 10, the parties’ post trial filings, the 

Act 250 criteria, and the full scope of evidence presented. Our answer to Question 10 is therefore affirmative in 

part, as reflected by the conditions imposed. 
53 

the District 7 Environmental Commission for the ministerial act of issuing a permit consistent 

with the Commission's June 13, 2019 decision as modified by this decision. 

 

 A Judgment Order is issued concurrently with this decision. This concludes the matter 

before the Court. 

Electronically Signed: 4/16/2021 1:46 PM pursuant to V.R.E.F. 9(d). 

Thomas G. Walsh, Judge 

Superior Court, Environmental Division