Chaves Londonderry Gravel Pit LLC JO ( 2013 )

STATE OF VERMONT
SUPERIOR COURT — ENVIRONMENTAL DIVISION
}
Re: Chaves Londonderry Gravel Pit, } Docket No. 267-11-08Vtec
LLC, Jurisdictional Opinion (#2-257) } (Appeal from Act 250 District 2
} Dist. Coordinator JO Decision)
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}
Re: Chaves Londonderry Gravel Pit, } Docket No. 60-4-11 Vtec
LLC, and David Chaves Act 250 App. } (Appeal from Act 250 District 2
} Environmental Comm. Decision
} Case No. 2W1275)
}
Decision on the Merits
Chaves Londonderry Gravel Pit, LLC, and its principal, David Chaves, (hereinafter
collectively referred to as “Applicants”) acquired a pre-existing sand and gravel pit and
originally asserted that its current operation was “grandfathered” and required no state land
use approval to continue its operation. When presented with the question of whether
Applicants’ current operation required a state land use permit, the Coordinator for the District 2
Environmental Commission (“District Coordinator”) issued Jurisdictional Opinion #2-257 (“JO
#2-257”), concluding that Applicants’ current operation of the pre-existing pit constituted a
“substantial change” from the manner and intensity of the pre-existing operations and therefore
required a state land use permit (otherwise known as an “Act 250 permit”). Applicants
thereafter filed a timely appeal of JO #2-257; that appeal was assigned Docket No. 267-11-08
Vtec and is hereinafter referred to as the “JO appeal.”
Procedural History and Rulings
While the District Coordinator was considering the jurisdictional question, Applicants
filed an application for an Act 250 permit. The District 2 Environmental Commission (“the
District Commission”) conducted several hearings and ultimately issued an approval of
Applicants’ application, subject to several conditions relating to Act 250 Criteria 5, 8, 9(E) and 10
(codified in 10 V.S.A. §§ 6086 (a)(5), (8), (9)(E), and (10)). See Re: Chaves Londonderry Gravel
Pit, LLC, and David Chaves, Case No. 2W1275, Findings of Fact and Conclusion of Law and
Order, (Dist. 2 Envtl. Comm’n Mar. 4, 2011). Applicants disputed several findings and
conclusions of the District Commission, particularly in relation to the conditions that the
District Commission placed upon its approval of Applicants’ application. Applicants therefore
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filed an appeal from the District Commission decision and permit; that appeal was assigned
Docket No. 60-4-11 Vtec.
Applicant filed a Statement of Questions on May 13, 2011 that raised legal issues under
Act 250 Criteria 5, 8, 9(E) and 10.
Once Applicants filed their appeal from the District Commission decision, several
parties entered their appearances in the permit application appeal proceedings, two of whom
filed cross-appeals. Riverside Farm Condominium Association (“Riverside Farm”), appearing
through its agent, Thomas Ettinger,1 filed a cross appeal and a Statement of Questions (filed
May 26, 2011) that raised legal issues under Act 250 Criteria 3, 5, 8, and 9(E). Neighbor Nancy
Kemper, an individual unit owner in the Riverside Farm condominium development, also filed
a cross appeal and a Statement of Questions (filed May 31, 2011) that raised legal issues under
Act 250 Criteria 3, 8, and 9(E). Kraig and Doreena Hart, owners and operators of the Frog’s
Leap Inn, a country inn established on property that lies across Vermont Route 100 from
Applicants’ sand and gravel extraction operation, entered their pro se appearance as Interested
Persons. The Harts did not file a cross-appeal.
Angelique Jarvis, David Jarvis, and David Rathbun also entered their individual pro se
appearances as Interested Persons in Docket No. 60-4-11 Vtec. In each Docket, Applicants are
represented by their attorney, C. Daniel Hershenson, Esq.; Riverside Farm2 is assisted by its
designated representative, Thomas Ettinger, and its attorney, David Grayck, Esq.; Mr. & Mrs.
Hart are represented by their attorney, Hans Huessy, Esq. Cross-Appellant Kemper also
appeared pro se in the permit application appeal (Docket No. 60-4-11 Vtec).
The Court initially set the JO appeal (Docket No. 267-11-08 Vtec) for trial before the
District Commission rendered its decision on the pending Act 250 permit application.
However, when the parties jointly represented to the Court at a January 4, 2010 conference that
the de novo trial on the JO appeal should be “put off” because the permit proceedings may
render the JO appeal moot, the Court placed the JO appeal on inactive status. When the District
Commission rendered its decision and an appeal from that decision was filed with this Court
and assigned Docket No. 60-4-11 Vtec, the JO appeal was reactivated and both matters were
1 Mr. Ettinger initially asserted individual appellant/party status, but the legal issue of his individual
status as a party was answered when this Court granted Applicants’ motion to dismiss Mr. Ettinger,
individually, as a party. See In re Chaves Londonderry Gravel Pit, LLC, et. al., No. 60-4-11 Vtec (Vt.
Super. Ct. Envtl. Div. Dec. 22, 2011) (Durkin, J.).
2 Riverside Farm only entered an appearance in the permit application appeal (Docket No. 60-4-11 Vtec).
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coordinated for the purposes of pre-trial discovery, motion practice, mediation, other
negotiations, and trial.
The two coordinated appeals were set to be tried on successive days at the Windham
Superior Courthouse in Newfane, Vermont, beginning on March 13, 2012. Prior to the
beginning of the trial, Applicants advised that a settlement had been reached with several, but
not all of the other parties. As a consequence of this settlement, Applicant moved for the Court
to adopt the terms of the settlement. By Entry Order filed March 9, 2012, the Court gave notice
that it intended to reserve judgment on Applicants’ motion until the time of trial. Applicants
attached to their motion a Stipulation, marked Exhibit A and signed on behalf of Applicants
and Riverside Farm. Angelique and David Jarvis offered their verbal agreement to the
Stipulation terms during the Court’s final pre-trial conference, held on March 7, 2012,
(conditioned upon Applicants using the northerly access road). Cross-Appellant Kemper and
Interested Person Rathbun did not advise whether they agreed or disagreed with the settlement
terms, did not contact the Court, and did not appear or otherwise present any evidence at trial.
Mr. and Mrs. Hart expressed their strong opposition, both to the Stipulation terms and
to the propriety of the trial going forward as scheduled, given what they characterized as the
“substantial changes” to Applicants’ project that were outlined in the other parties’ settlement
Stipulation. Because of these substantial changes, the Harts moved for the Court to either (1)
remand the permit application back to the District Commission for additional hearings,
deliberations, and decision, or (2) continue the de novo appeal trial to a later date. By Entry
Order also dated March 9, 2012, the Court denied both of the Harts’ requests, concluding that,
based upon the description of the project changes outlined by all parties, the project changes
outlined in the Stipulation did not appear to be “substantial” and did not appear to justify
remand or continuance.
The parties appear to agree3 on the following summary of the project changes outlined
by the Stipulation:
(1) Applicants will abandon the original plans for the proposed access way into the pit,
which was to be located on southern and eastern portions of the property, and will
solely use the historical pit access way on the northern end of the project site, with some
modification on how the access way will intersect with Vermont Route 100;
3 The Harts continued to assert throughout the trial that the changes outlined in the other parties’
Stipulation, as well as the general operation of Applicants’ pit, would have a substantial and adverse
impact upon them and their property.
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(2) Applicants will relocate the product loading zone within the pit;
(3) Applicants will add several sound mitigation barriers within the pit, parallel to Route
100 and opposite the Frog’s Leap Inn;
(4) The permit will impose limitations on the amount of sand, rock, and gravel produced at
the pit and the quantity of those items that could be sold or loaded at the pit;
(5) The permit will impose limitations on the noise levels emanating from pit operations
and Applicants will provide a methodology for monitoring the noises emanating from
the pit, at several locations;
(6) The permit will limit the maximum number of truck trips per day;
(7) The permit will restrict the days and weeks during which drilling, blasting and crushing
may occur; and
(8) Applicants will establish a specific blasting plan, including guidelines for adherence to
the blasting plan by Applicants, their employees, and their contractors.4
Applicants offered details of these changes, as well as the modified pit operation plans,
through trial testimony and exhibits, some of which the Court references and adopts in its
Findings below. After having received all evidence at trial and now completed its deliberations,
the Court DENIES Applicants’ motion to simply adopt the Stipulation terms. Rather, the Court
has made its own, independent determinations as to the appropriate weight and credibility to
be assigned to all trial evidence and has thereby rendered its own Findings of Fact and
Conclusions of Law, as noted below.
One final procedural matter remains to address: the status of Applicants’ appeal of
JO #2-257. The District Commission, in its review of Applicants’ permit application, noted that:
The operations undertaken on the site since the Chaves ownership ha[ve] been
extensive and have permeated the site. These operations have included removal
of vegetation[, including] removal of vegetation in the wetland buffer, extensive
blasting creating a steep quarry face, extensive processing of materials [on site],
dewatering and construction of a large sedimentation basin, and recontouring of
the site. Any grandfathered status that the project site once enjoyed has been
extinguished through the magnitude and scope of the changes initiated during
the Chaves ownership.
Re: Chaves Londonderry Gravel Pit, LLC, and David Chaves, Case No. 2W1275, Findings of
Fact and Conclusion of Law and Order, slip. op. at 3 (Dist. 2 Envtl. Comm’n Mar. 4, 2011).
At trial, Applicants provided no evidence to refute the conclusions reached in JO #2-257
that their operation of the pit was substantially different from that which had existed at the pit
in the years before the enactment of Act 250. This may be a consequence of Applicants’
4 Applicants assert that many of these operational changes were proposed and agreed to in an effort to
mitigate the impacts of the pit operations upon neighbors and their property. Mr. and Mrs. Hart dispute
that these changes will eliminate the undue adverse impacts from pit operations.
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Stipulation with some of the parties to the permit application appeal, or—as some parties
offered when convincing the Court to “put off” the originally-scheduled trial of the JO appeal—
the possibility that the permit application proceedings may render the JO appeal moot.
Nonetheless, the JO appeal remains pending, thereby requiring this Court to address it.
Therefore, in light of the lack of evidence and arguments presented at the trial of these
coordinated appeals that would support a ruling from this Court that Applicants’ current
operation of the Londonderry pit is grandfathered and does not require state land use approval,
we hereby conclude that the nature of Applicants’ pit operations triggered Act 250 jurisdiction
and Applicants must obtain an Act 250 permit. In this regard, we AFFIRM the District
Coordinator’s issuance of Jurisdictional Opinion #2-257.
We now turn to the adjudication of Applicants’ request that an Act 250 permit issue,
authorizing their operation of the sand, stone and gravel extraction operation that they have
proposed, without conditions similar to those imposed by the District Commission. Based upon
the evidence presented, including that evidence which was put into context by the site visit the
Court conducted after the trial was completed, the Court makes the following Findings of Fact
and Conclusions of Law. A Judgment Order accompanies this Decision.
Findings of Fact
I. The Project Site, Past and Planned Operations.
1. Appellants’ project (“the Project”) is sited on a parcel of land containing approximately
49 acres (hereinafter referred to as “the Property”), along the eastern border of Vermont Route
100, in the Town of Londonderry (“Town”), just south of the Town’s northern border with the
adjoining Town of Weston. The Property has hosted some form of an earth extraction operation
for at least the last fifty years.
2. Applicants began their own extraction of sand, rock, and gravel from the Project site
shortly after acquiring the Property in 1997.
3. When Applicants purchased the Project site, no state land use permits existed covering
extraction operations at the site. Any prior extraction operations were believed to have begun
prior to the enactment of the Vermont land use laws (10 V.S.A. Chapter 151, commonly referred
to as “Act 250”) and were therefore believed to be “grandfathered” and exempt from any
requirement to receive an Act 250 permit.
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4. When Applicants began their own earth extraction operations, they expanded the nature
of the excavation work by conducting blasting and processing the extracted rock, gravel, and
sand within an expanded quarry hole area that encompassed about 3.5 acres of the Property. In
its current state, Applicants’ extraction operations include areas of quarrying; rock, gravel, and
sand processing; dewatering of the quarry hole; creation of sedimentation basins; stormwater
runoff; and the trucking by Applicants and outside contractors of rock, gravel, and sand
extracted from the Project site.
5. Applicants’ operations constitute a substantial change and increase in operations from
that which existed prior to Applicants’ acquisition of the Property.
6. Applicants’ original plans for the Project site are depicted in their original Overall Site
Plan, a copy of which was admitted at trial as Exhibit 4.
7. Applicants revised their plans for the project as a consequence of their Stipulation with
some of the parties to this appeal; those revisions are depicted in a revised Overall Site Plan, a
copy of which was admitted at trial as Exhibit 2.
8. Applicants originally proposed to construct a new access road that would enter the
Project Site from the southern portion of the Property and travel along the southern and eastern
portions of the Project Site, then enter into the quarry work areas. Riverside Farm and several
other parties to this proceeding initially opposed this access proposal, since it would bring
internal truck traffic closer to the Riverside Farm property. Applicants thereafter agreed to use
an existing access way that enters the quarry work areas from the northern portion of the
Property.
9. Applicants now propose that access to the quarry will remain from the northern portion
of the Property. The access road will travel along its existing route, down into the quarry work
areas. The only material change to the access road will be where it intersects with Route 100;
the access road intersection will be moved about 100 feet north on Route 100, so that a more
beneficial curb cut and sight distances can be provided.
10. The access road intersection with Route 100 will also be developed in accordance with
intersection standards (the “B-71 Standards”) established by the State of Vermont Agency of
Transportation (“VTrans”). See Exhibit 6. VTrans has issued a Letter of Intent to issue a permit
authorizing the completion of the access road improvements within the designated area in the
highway right-of-way. See Exhibit 3. The only remaining pre-condition to the issuance of the
VTrans permit is the issuance of municipal and state land use permits for the Project. Id.
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11. Applicants also agreed to “ensure that vegetation is regularly trimmed and snow banks
maintained so as not to reduce the sight distances [at the access road/Route 100 intersection]
below those required under applicable Vermont Agency of Transportation standards.” See
Stipulation at ¶6, suggesting revisions to Act 250 Permit Condition 11.
12. Applicants also will install a ten-foot high earthen berm, running along the southerly
edge of the access road, starting shortly after its intersection with Route 100 and continuing for
approximately 87 feet. This earthen berm will provide a visual and sound buffer from the truck
traffic travelling along the access road for properties to the south and west, including the Frog’s
Leap Inn, and for those travelling along Route 100 from the south.
13. The access road and all the revisions to it described in ¶¶ 8–12, above, are depicted on
Exhibit 2.
14. The elimination of the access road Applicants initially proposed on the southern and
eastern portions of the Property and the improvements to the existing northern access road,
including mitigation berms, reduce impacts from the Project as now proposed, as compared to
the Project as originally proposed. Benefits of these changes include the following:
a.) a wetland and its buffer will no longer be impacted by the southern access road
development;
b.) the northern access road will be farther away from a school bus stop at the end of
Cliff’s Lane; the former proposed southern access road was close to this bus stop
and would have delivered truck traffic to an intersection on Route 100 in the
vicinity of the school bus stop; and
c.) with the northern access road being farther away from Cliff’s Lane and the earthen
berms to be added near the northern access road, truck traffic noises will be less
apparent to those residences on or near Cliff’s Lane, as well as to the Frog’s Leap
Inn owners and their guests.
15. Applicants plan to operate the project in three phases over the course of twenty-five
years. As work in one phase is completed and pit operations move to another phase, the areas
of the then-completed phase will be reclaimed by top soil, mulch material, and seeding,
wherever possible. The areas of the three phases are generally depicted on Exhibit 2.
16. Unlike most other Act 250 permits, those that govern earth extraction operations usually
have a specific term of duration. Applicants propose that, should this appeal result in an Act
250 permit being issued for their Project, that the permit “expire twenty-five (25) years
following the issuance [t]hereof or upon completion of the reclamation plan for the project,
whichever occurs last.” Stipulation at ¶ 11, suggesting a revision to Permit Condition 30.
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Riverside Farms and Mr. and Mrs. Jarvis concur with this proposal. Id. No other party
suggested an alternate term or termination language for the Project.
17. The Project will operate on a seasonal basis, generally from March 1 through December
31 of each year, with the following further restrictions on the times of operation:
a) The hours of operation open to the public: 7:00 AM to 5:00 PM, Monday
through Friday.
b) There shall be no sales, loading, or processing of earth products on Saturdays.
c) The quarry shall be closed in all respects on Sundays.
d) In addition to the limitation on the hours of operation in sub-paragraph (a),
above, there also shall be no drilling, blasting, or crushing during the months of
July and August, the last week in June, and the first week in September.
e) In addition to the above, and except for pumping performed with submersible
electrical pumps, there shall be no pumping of water from the quarry ponds
between the hours of 9:00 PM and 7:00 AM. In emergencies (such as natural
disasters), the District Commission or District Coordinator may allow operations
outside of these times for the purpose of, and upon such terms and conditions
for, the protection of public health, safety, and welfare.
f) All crushing or screening will only be allowed within the quarry limits and at or
below existing quarry floor levels.
Stipulation at ¶ 4, suggesting revisions to Permit Condition 6.
18. Applicants, as a consequence of their Stipulation with some of the other parties to this
appeal, have agreed to reduce the annualized volume of rock, gravel, and sand processed and
sold from their Project to the following levels:
a. Maximum annual processing5 of all earth products shall be limited as
follows:
i. Year One: no more than 35,000 cubic yards (not including up to 7,000
cubic yards of materials supplied with regard to repairs related to
Tropical Storm Irene, a storm that caused substantial damage in
Vermont in 2011);
ii. Year Two: no more than 40,000 cubic yards;
iii. Year Three: no more than 45,000 cubic yards; and
iv. Year Four and all subsequent years of operation: no more than
50,000 cubic yards.
b. Maximum annual loading of or sale of product shall not exceed 120% of
the annual processing limits set forth above in sub-paragraph (a), above.
Stipulation at ¶ 1.
5 Applicants and the other stipulating parties have defined the term “processing” to include all
excavation, crushing, drilling, and blasting of earth products on or at the Project site, but to not include
the loading of or sale of earth products.
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19. Applicants propose to extract rock, gravel, and sand from the project site by conducting
several explosive blasts, after drilling a number of holes into the walls and floor of the quarry
work areas and into which explosive materials will be loaded and then detonated. Applicants’
blasting expert and contractor, David Thomas of Thomas Drilling and Blasting Corporation,
provided credible explanations of the blasting procedures and safeguards that will be employed
during the drilling and blasting events at the Project site. Those procedures are detailed in Mr.
Thomas’s revised blasting plan, a copy of which was admitted at trial as Exhibit 15. Applicants
have agreed to abide by all procedures detailed in Exhibit 15.
20. Applicants’ presentation on the impacts from its planned drilling and blasting on the
Project site was made more credible by a somewhat unique set of circumstances: during the
course of Applicants’ operation of the pre-existing pit, prior to Applicants’ receipt of an Act 250
permit, Applicants conducted a series of drilling and blasting exercises. Initially, these exercises
were not condoned by state officials. However, when the State suffered the severe flooding and
damages on and after August 28, 2011 from Tropical Storm Irene, the Chaves pit was called
upon to supply rock, gravel, and sand needed to repair area roads and properties.6 To supply
the needed rock, gravel, and sand, Applicants conducted additional drilling and blasting
exercises at the pit during the fall of 2011.
21. The drilling and blasting events that occurred on the Project site from September 11,
2011 to November 3, 2011, were monitored and their impacts recorded. Copies of the records
from those blasts were admitted at trial as Exhibits 17(a) through (k).
22. As detailed in the Blasting Plan (Exhibit 15), Applicants have proposed several measures
to provide notice of each blasting event and to monitor the blasting events and the resulting
noises. They have also proposed procedures for revising the blasting plans, should the blasts
cause a greater impact to surrounding properties than Applicants and their contractors
anticipate. These procedures will reduce the potential for adverse impacts upon area neighbors
and their properties.
6 Due to the damages suffered throughout the State, particularly in southern Vermont, the Vermont
Natural Resources Board issued the Tropical Storm Irene Emergency Quarry Exemption (“Exemption”)
to ensure that earth materials were available for road and infrastructure repair projects. The Exemption
suspended the Board’s enforcement of permit extraction limits, allowed for the reopening of closed rock
quarries and gravel pits, and allowed for extraction from unpermitted quarries and pits. See In re Chaves
Londonderry Gravel Pit, No 60-4-11 Vtec, slip op. at 1 (Vt. Super Court Envtl. Div. Nov. 3, 2011).
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23. Applicants have agreed to limit the number of and timing of blasts that may occur
during an operational season. These limitations were presented within the Stipulation
proposed by Applicants, Riverside Farm, and the Jarvises:
There shall be a maximum of eighteen (18) blasts per year. All said blasts shall
occur only between the months of March and June, and September and
December. All blasts shall be designed to displace no more than 3,500 cubic
yards of material. Blasting shall take place only between the hours of 9:00 a.m. to
3:00 p.m., Monday through Friday, and drilling shall only take place Monday
through Friday between the hours of 7:00 a.m. to 4:30 p.m. Permittees shall
provide all property owners within 1,500 feet, and other property owners who so
request, 48 hours written or electronic notice of any blasting event.
Stipulation at ¶ 9, suggesting revisions to Permit Condition 18.
24. The most significant impacts from pit and quarry operations generally come from the
noises caused by drilling, blasting, rock crushing, large equipment operating within the quarry
or pit, and trucks travelling to and from area highways, both when they are loaded with
extracted products and when the trucks are travelling with an empty bed.
25. Applicants have agreed to limit some of the noise caused by their Project to a level that
will not exceed 55 dBA (Lmax) at any existing area residence or areas of frequent human use,
including the nearby Frog’s Leap Inn. Specifically, Applicants agreed to the following noise
limitations:
The maximum noise levels from operations on the site, including trucking, but
excluding trucks accessing and egressing the site at its juncture at Route 100 and
excluding blasting noise, shall not exceed 55 dba Lmax at any existing residences
or areas of frequent human use as found by the District Commission in its March
4, 2011 decision. It is understood and agreed that if the existing access is
improved and utilized as the sole access . . . , that truck traffic entering and
exiting the project site may, in combination with existing Route 100 road noise,
cause periodic exceedances of the 55 dba Lmax standard on limited portions of
the properties to the north and west of the existing access driveway. In no event,
however, may these noise levels on any portions of the properties to the north
and west of the existing access driveway be greater than the noise levels which
have existed in these locations for the period beginning in 2005 and ending on
December 31, 2011. An operations manual shall be prepared which documents
and explains all of the noise mitigation measures and how they are to be
implemented, and such manual shall be an exhibit to the Act 250 Permit for the
Quarry on file with the Commission. Additionally, a site plan which shows the
location of all noise mitigation measures and the approved locations for
processing and equipment for each phase shall be on site at all times along with
the operations manual, and the site plan shall be an exhibit to the Act 250 Permit
for the Quarry on file with the Commission
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Stipulation at ¶ 7, suggesting revisions to Permit Condition 16.
26. Applicants recognize that the actual noises that emanate from their Project, once in full
operation, may cause some unanticipated noise levels and impacts upon project neighbors. In
an effort to mitigate and eliminate such unanticipated impacts, Applicants proposed the
following procedure for both monitoring the sound levels and to correct the procedures
manual, when the pit operations cause unanticipated noise levels:
A sound-monitoring plan shall be developed jointly by the expert for Permittees
and an expert designated by Riverside Farm to provide for a cost-effective,
verifiable compliance-monitoring plan for the sound standards specified in the
Permit. The sound plan shall utilize the assumptions and methodologies
contained in the RSG noise study[7] submitted to the District Commission as part
of its March 4, 2011 decision and shall emphasize rapid sharing of data, prompt
mitigation of any exceedances, and reasonable means to prevent repeated
exceedances,
Any plan approved by the designated experts shall be submitted jointly by
Riverside Farm and Permittees to the [District] Commission, and compliance
with the sound plan and the terms thereof shall be incorporated in and become a
part of Permittees’ Act 250 permit. In addition to the Permittees’ compliance
with the sound plan, Permittees shall, except where otherwise permitted by an
effected neighboring landowner, comply with Permit Condition 16 and the
55 dba Lmax [maximum] standard at existing residences and areas of frequent
human use.
Permittees[‘] compliance with the sound plan shall not preclude the State of
Vermont or a party hereto from obtaining an administrative or judicial remedy
for exceedances of the 55 dba Lmax standard by Permittees, nor is the State of
Vermont or any party precluded from conducting compliance-monitoring which
is in addition to that required by the sound plan. Upon submission of the sound
plan to the [District] Commission, any other party hereto, should they desire,
may submit to the Commission written comments in opposition to the adoption
of the sound plan if said written objections are filed within fifteen (15) days after
said plan is filed with the Commission. Any party who fails to file a written
objection to the sound plan as describe above shall be deemed to have approved
said plan, but a party's agreement to the sound plan does not preclude such
person from obtaining an administrative or judicial remedy for exceedances by
Permittees, nor shall a party's agreement to the sound plan be construed against
that person in any administrative or judicial proceeding.
7 Applicants’ noise expert, Eddie Duncan, testified at our de novo trial and provided several reports that
were admitted as evidence: the RGS, Inc. report titled “Chaves Quarry: Noise Impact Assessment
Updated,” dated May 2010 and admitted as Exhibit 19; a memorandum from Mr. Duncan to Attorney
Hershenson, dated Sept. 29, 2011 and with a subject line of “Sound Monitoring around Chaves Quarry
during Flood Emergency Operation,” admitted as Exhibit 22; and a memorandum from Mr. Duncan to
Attorney Hershenson, dated Feb. 24, 2012 and with a subject line of “Sound Propagation Model Results at
the Frog’s Leap Inn for Chaves Utilizing the Existing Access Road,” admitted as Exhibit 24.
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The above-stated Parties agree to exercise good faith and utilize their best efforts
to develop the sound plan on or before June 1, 2012. In the event Permittees and
Riverside Farm are unable to develop a mutually agreeable sound-monitoring
plan, either party may request that the Commission hold a hearing for the sole
purpose of establishing a monitoring plan consistent with this paragraph.
Stipulation at ¶ 8, suggesting revisions to Permit Condition 17.
27. In addition to noise, another source of adverse impacts that may be caused by the
operation of a quarry that conducts blasting is what is commonly known as “flyrock.” Flyrock
is exactly what the term implies: rock that flies as a result of quarry blasts. Quarry operators
and employees attempt to limit or eliminate flyrock, due to the hazards it can cause and the
waste of blasting energy that it represents. When flyrock lands within the quarry perimeters, it
is usually not a cause of concern or harm. However, when flyrock travels beyond a quarry’s
boundaries and onto surrounding properties, it can cause grave concerns, damage to nearby
properties, and significant physical harm to neighbors.
28. Applicants and their experts credibly explained why flyrock is unlikely to occur at the
Project, particularly because of the revisions to their blasting plan (Exhibit 15), especially the
planned re-orientation of the drilled holes and blasting away from the westerly neighbors and
Route 100. Applicants’ original and revised blasting plans also require that corrective measures
and revisions to the blasting plan occur if any earth materials from a blast travel more than half
the distance between the blast and Applicants’ Property boundary. Nonetheless, Applicants
devised a procedure to respond to any flyrock that may have an impact upon the Project
neighbors and their property:
In the event that any blasting event results in an occurrence of flyrock landing
outside of Permittees' property line, blasting shall immediately cease and shall
not resume until the District Commission determines that the resumption of
blasting complies with 10 V.S.A. § 6086(a)(9)(E). Permittees shall notify all
parties of the event and shall arrange a meeting as soon as possible with all
parties who request to participate and with Permittees' blasting consultant.
All parties shall be given at least five (5) days' advance notice of the time and
place of the meeting. Permittees shall prepare proposed revisions in the
blasting plan to effectively mitigate the risk of any reoccurrence [of flyrock] and
submit the same to the parties and the District Commission. Blasting may [only]
resume after the District Commission determines that the revisions to the
blasting plan comply with 10 V.S.A. § 6086(a)(9)(E) and a permit or permit
amendment, if required, is issued for the revised blasting plan.
Unless the proposed revisions to the blasting plan are found by the Commission
or District Commission Coordinator pursuant to [a] Rule 3 jurisdictional opinion
to constitute material changes to Permittees’ Act 250 Permit, or they determine
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that a permit amendment is otherwise required under the Rules, no permit
amendment shall be required. Nevertheless, no blasting may occur except in
compliance with the blasting plan as revised.
Stipulation at ¶ 10, suggesting revisions to Permit Condition 23.
29. The Act 250 Permit (No. 2W1275) issued by the District Commission on March 4, 2011,
was admitted at trial as Exhibit 29. Permit No. 2W1275 contains 30 conditions; Applicants
initially contested a number of these conditions in this appeal. However, as a consequence of the
Stipulation that Applicants entered into with some of the other parties to this appeal, Applicants
agreed to abide by the following conditions and have them incorporated into any Act 250 permit
that issues as a consequence of this appeal:8
• Conditions 1 through 5, which include standard conditions imposed in most
Act 250 permits.
• Condition 8, which obligates Applicants to abide by the Vermont Agency of
Natural Resources (“ANR”) Discharge Permit (#3-1529), Multi-Sector General
Permit (#5893-9003), and Conditional Use Determination #NS09-0033 (File 2008-
394).
• Condition 9, which regulates the on-site disposal of extracted stumps.
• Condition 10, which prohibits the on-site storage of hazardous materials.
• Conditions 12 and 13, which direct the types of erosion control measures that
Applicants must employ and maintain.
• Condition 14, which requires the establishment and maintenance of a 50-foot
undisturbed, naturally vegetative, un-mowed buffer strip from the top of the bank
of all watercourses and wetlands on the Project site.
• Condition 15, which obligates Applicants to employ all recommended noise
mitigation measures.
• Condition 19, concerning the methods of blasting within the Project, blast
monitoring, and the maintenance of logs and video recording for each blast.
• Condition 20, which requires the installation and maintenance of air blast
monitoring equipment, and restricts peak air blast overpressure levels to below
143 dBA at the nearest structures.
• Condition 21, which obligates Applicants to complete pre-blast surveys at all
residences within 1,500 feet of Applicants’ Property (including the Frog’s Leap
Inn), provided the residence owner requests a pre-blast survey and authorizes
Applicants’ agents to enter upon their land. Applicants are also required to
complete and maintain such surveys to be used as baselines in evaluating any
future claims of damages and to consider any necessary revisions to the blasting
plan.
• Condition 22, which requires Applicants to maintain all blasting records, make
them available to the requesting public (at reasonable times), and file copies of
such records with the District Commission.
8 See Stipulation at ¶ 3.
13
• Condition 24, which requires Applicants to abide by Air Pollution Permits No. AP-
06-023 and AP-05-024 and to “ensure that reasonable precautions are taken at all
times to control fugitive particulate matter (dust) emissions from the site . . . .”
• Condition 25, requiring Applicants to retain all existing vegetation on the Property
for screening purposes.
• Conditions 26, through 29, which include standard conditions imposed in most
Act 250 permits governing earth extraction operations.
II. Surrounding Neighborhood.
30. Applicants’ Property borders Vermont Route 100, which serves as a major north-south
thoroughfare that spans the length of our State. While Route 100 is known and serves as a
major artery for commercial, industrial, business, and residential transportation, it also includes
some of our state’s most scenic highway vistas. Route 100 in many locations runs along the
spine of the Green Mountains or through the valley floors along the Green Mountains. Route
100 borders Applicants’ Property and the Frog’s Leap Inn, then travels down into the nearby
Town of Weston, and includes several scenic vistas.
31. The areas near Applicants’ Property are generally rural, although dissected by Route 100
and the traffic Route 100 brings to this area.
32. The Frog’s Leap Inn is across Route 100 from the Project site. There is an area of
vegetation and trees on Applicants’ Property, between the Inn and the Project site, that acts as a
buffer between the two properties. However, Inn occupants are able to see a portion of the
quarry operations as they currently exist from the second floor windows of the Inn.
33. Mr. and Mrs. Hart, the owners of the Frog’s Leap Inn, purchased the property in 1998.
At the time of their purchase of the Inn, the Chaves gravel pit was in operation, although not at
the intensity with which it was operated in later years.
34. Several single family residences occupy lands to the north, east, and west of Applicants’
Property, although these residences are very scattered and of low density. Only nine residences
were identified during trial testimony as being located within 1,500 feet of Applicants’ Property.
35. Wooded and agricultural lands adjoin Applicants’ Property to the north and east. The
Riverside Farm Condominium development does not adjoin Applicants’ Property and the
project site cannot be seen from Riverside, but the Riverside Farm development is a short
distance to the east from Applicants’ Property, across a nearby river.
36. Applicants’ Property has been the site of a sand and gravel pit operation since at
least 1952. See Exhibits 5a and 5b.
14
37. There are or have been several other sand and gravel extraction operations within the
vicinity of Applicants’ Property. Also, nearby properties host the former Londonderry Landfill
(which was the site of a former sand and gravel operation), the Town waste transfer station, and
a septic spray field.
38. The Windham Regional Planning Commission has identified Applicants’ Property and
surrounding areas as containing sand and gravel resources that are not otherwise readily
available in this region. See the 2006 Windham Regional Plan Sand and Gravel Resources Map,
a copy of which was admitted at trial as Exhibit 7. The Windham Regional Plan also identifies
this as an area suitable for land uses identified as “productive rural lands” and defines such
land uses as follows:
Productive rural lands are low density and very low density residential areas
containing land-based resources that, when in productive use, contribute to the
working landscape and have significant economic value. These productive
resources include active agricultural lands, sand/gravel/mineral deposits and
operations, high value agricultural soils, and forestlands. Productive rural lands
provide a significant contribution to rural areas by maintaining open space and
providing lands for rural lifestyles and occupations.
Windham Regional Plan at 26; a copy of pages 26 & 74 from the Windham
Regional Plan was admitted as Exhibit 9; a full copy of the Windham Regional
Plan was admitted as Exhibit 27.
39. The Town of Londonderry Town Plan (“Town Plan”) was adopted to serve “at least two
functions: . . . to guide decision-making [such as] . . . adopt[ing] amendments to the zoning and
subdivision ordinances. Second, the clearly stated, mandatory provisions of this plan are
intended to be legally enforceable standards as provided by Act 250 . . . .” Exhibit 28 at 3.
40. The Town Plan contains a section titled “Earth and Mineral Resources” that notes the
importance of continued sand and gravel extraction operations to support regional growth,
including “construction, fill, erosion control, and highway maintenance.” Id. at 26. This section
continues with a list of three general policies, including the importance of assuring “that the
extraction and processing of mineral and earth resources do not have an adverse effect on the
environment, burden municipal services[,] or result in an undue inconvenience to neighboring
landowners.” Id.
41. Unlike some of the other sections of the Town Plan, the Earth and Mineral resources
section does not include any “Legally Enforceable Standards” for purposes of Act 250 review.
See Exhibit 28 at 26–27.
15
III. Traffic Impacts.
42. Applicants’ traffic expert provided credible testimony that Vermont Route 100 in the
vicinity of the Project receives about 2,600 vehicle trips per day, based upon data compiled by
VTrans. See Exhibit 13. Trips by large commercial trucks, such as gravel dump trucks,
accounted for 225 of those daily vehicle trips, which equals just under 9% of the total estimated
daily vehicle trips on Route 100 for 2010. Id.
43. Traffic technicians and experts often rely upon a qualitative analysis of traffic known as
“level of service” (“LOS”), which classifies the quality of traffic flows on highways and through
highway intersections. A highway that experiences no delays in traffic flow may be classified as
having an “LOS A” rating; a highway that has the most frequent and extended delays in traffic
may be classified as having an “LOS F” rating. LOS ratings vary based upon the length of
delays experienced by highway travelers. Traffic experts regard an LOS rating from “A” to “C”
as an acceptable level of traffic flow on a highway.
44. Applicants’ traffic expert credibly testified that Route 100 in the vicinity of the Project is
regarded as a low-accident area and is often rated at LOS A. The Court accepts this
characterization, since the traffic testimony appeared credible and was confirmed by the
testimony of other witnesses, including witnesses who have driven commercial trucks on Route
100 in the vicinity of the Project and who used to purchase sand and gravel from the Project.
No testimony was offered to contradict Applicants’ traffic expert’s assertion that he was unable
to find a report of a traffic accident involving any trucks in the vicinity of the Project.
45. The Town of Londonderry Road Foreman and the Town of Weston Road Commissioner
provided credible, uncontradicted testimony about the adequacy and safety of the section of
Route 100 in the vicinity of the Project and the need in their respective towns for the rock,
gravel, and sand that has historically been available from the Project.
46. Pursuant to the Stipulation Applicants reached with some of the parties to this appeal,
Applicants have agreed to limit the daily truck traffic generated from the project to a maximum
of 75 loaded trucks per day. See Stipulation at ¶ 5, suggesting revisions to Permit Condition 7.
Applicants also agreed to “keep a log of all truck trips, listing the date and time of each trip.
Accurate copies of the log shall be submitted to the [District] Commission within three (3)
business days upon request.” Id.
47. Trucks used to haul rock, gravel, and sand from the Project will have the ability to haul
up to 14 cubic yards of earth materials per truck trip. When the Project reaches its maximum
16
extraction rate of 50,000 cubic yards per year and assuming all extracted product is sold, the
Project will generate up to 3,572 loaded trucks leaving the Project site in that year. This would
equate to 7,144 one-way truck trips per year, because each truck must first travel to the Project
before it is then loaded and leaves the site.
48. While this annual maximum number of truck trips appears large, the limitation on
extraction rates will act as a restriction on the total number of days that the project could
operate per season. For example, if Applicants were to operate at the maximum of 75 loaded
truck trips per day, the maximum extraction rates and the quantity of material that can be
carried per truck would limit the project to no more than 48 days of operation per season.
49. What is more likely to occur is that loaded trucks will travel from the Project, on
average, at a daily frequency that is much less than the stated daily maximums. Applicants’
traffic expert credibly estimated that, on average, the Project will generate 32 new one-way
truck trips per day to and from the Project (i.e., 16 loaded trucks per day, on average).
50. Historical customer usage rates for the previous extraction operations suggest that, on
average, 75% of the trucks will travel south on Route 100 and 25% will travel north. Using the
average rates of truck travel, and now that the Project will employ only an access road on the
northern portion of the Property, Applicants’ traffic expert credibly estimated that an average of
24 of the one-way truck trips each day will travel past the Frog’s Leap Inn. These estimated
average daily truck trips will represent less than a one percent addition to the average number
of daily vehicle trips on Route 100 and about a 10% increase in the average number of daily
truck trips on Route 100.
IV. Aesthetic Impacts.
51. The Project may generate aesthetic noise impacts for its neighbors. It may also generate
visual impacts, to the extent the Project will even be visible from adjoining properties.
52. As noted above and below, Applicants and their experts have credibly established that
most of the activities at the Project will generate noises of less than 55 dBA (Lmax) at nearby
residences and areas that people frequent. Where the Project activities, including drilling and
blasting, will occasionally exceed 55 dBA (Lmax), the Project noises will be no louder than the
discernible noises from the Route 100 traffic and activities on surrounding properties. Where
noises are generated at unanticipated levels, Applicants have agreed to a procedure to amend
their operations manual. Any changes to the Project operations manual will only occur after
17
area residents receive notice and an opportunity to be heard. Applicants have also agreed that
material changes to its operations manual must be considered by the District Commission.
53. In order to provide more reliability for their noise level estimates, Applicants also
conducted noise monitoring during certain blasting and quarry operation exercises. One
monitoring station was set up at the edge of Route 100; another was set up on the Frog’s Leap
Inn property. The monitoring recorded area noises both when earth extraction operations were
ongoing at the Project site and when they were not.
54. Noise levels recorded from the Route 100 monitoring station are depicted on Exhibit 20;
the noise levels from the monitor on the Frog’s Leap Inn property are depicted on Exhibit 23.
Each Exhibit credibly shows that the quarry operations did not contribute to a measurable
increase in the noise levels at those monitoring stations.
55. Applicants’ noise expert also prepared a modeled comparison of the sound levels from
various types of vehicles passing by the Project site on Route 100 and the noises generated from
regular pit operations, including drilling and blasting. The results of these modeling exercises
are depicted on Exhibit 21. This modeling included calculations for the pit noises that reach the
nine residences closest to the Project site: two residences are located north of the Project site,
along the northerly edge of Woodstock Lane, and seven residences are located on the westerly
side of Vermont Route 100, across from the Project site, including the residence at the Frog’s
Leap Inn. Each of these residences is specifically identified on Exhibit 21.
56. Applicants’ noise expert provided credible testimony that the noises from Applicants’
earth extraction operations, including drilling and blasting, are unlikely to produce noise levels
in excess of 55 dBA (Lmax) at locations off of Applicants’ Property. Applicants’ expert’s
assessments of various noise levels are credibly summarized on Exhibit 21. Of particular
importance to the Court’s assessment of this noise modeling is the credible testimony, also
depicted on Exhibit 21, that the noises generated by the pit operations will occur at a lower dBA
(Lmax) level than noises generated by the vehicles that already pass along Route 100.
57. Appellants’ noise expert also completed modeling exercises for two possible scenarios of
the noises that Applicants’ earth extraction operation will cause at off-site locations. The first
models noise levels for the operation as originally proposed, while the second models noise
levels generated from the Project, as revised as a consequence of Applicants’ Stipulation with
some of the parties to this appeal.
18
58. Applicants’ noise expert summarized this modeling on Exhibit 25. As a consequence of
the revisions to the Project site and operations, Applicants’ noise expert credibly testified that
the noise levels at off-site locations when the pit is in regular operation, including when drilling
and blasting will be occurring, are likely to be reduced by 2 dBA (Lmax), due to the mitigation
measures Applicants have agreed to take, based upon their Stipulation. Such a reduction in
noise levels is significant, since experts in this field commonly recognize that an increase in
noise levels by only 10 dBA equates to a doubling in the level of recognized noise.
59. The Project site is generally screened by trees and other vegetation, especially on its
western, southern, and northern boundaries. See Exhibit 5(e). While Ms. Hart asserted at trial
that Applicants cut a significant portion of the trees and vegetation that provided screening of
the Project when viewed from the Frog’s Leap Inn, the more credible testimony and other
evidence shows that significant vegetative screening remains along the land between the Project
site and Route 100. While Applicants did not dispute Mrs. Hart’s testimony that the quarry
operations can be seen from the second floor windows at the Inn, the remainder of relevant trial
testimony established that much, if not all of the Project site is screened from view at most areas
of the Inn. There was no testimony offered at trial that the Project site is visible from any other
nearby residence.
60. Applicants have also agreed to install two earthen berms to the west of the Project site
and one to the east of the Project site, all in an effort to provide additional visual and noise
screening from the Project, for the benefit of neighbors to the west and east. Each berm is
depicted on the Revised Overall Site Plan. See Exhibit 2.
61. In consideration of Applicants revisions to the site and operations plans, Appellants
Riverside Farms and Mrs. Kempner9 agreed that their concerns about the project had been
addressed, that they therefore were withdrawing their opposition to Applicants’ Project, and
that a revised Act 250 permit should issue for the Project, in conformance with the terms and
conditions in those parties’ Stipulation. See Stipulation at ¶ 12.
Conclusions of Law
This appeal presents a somewhat curious set of procedural facts. While the appeal
originally included three appellants, all of whom filed a statement of questions that established
9 The Court considers Ms. Kempner’s agreement to be implicit, since she did not object to Applicants’
Stipulation and motion for the Court to adopt its terms, and also did not appear at trial to assert any
objections to Applicants’ revised site plan and proposed operations.
19
the legal issues to be addressed in this de novo appeal, settlement discussions concluded just
prior to trial that resulted in all three appellants concurring that an Act 250 permit could issue,
subject to conditions mostly similar to the conditions imposed by the District Commission in its
approval of the pending application. Applicants filed a Stipulation with the Court prior to trial,
along with a motion that the Court adopt their Stipulation terms. While the Court has declined
to grant that motion, concluding that the more appropriate practice is for the Court to render its
own Findings of Fact and Conclusions of Law, the Court has concluded that the facts agreed to
by the settling parties include the most credible facts that are material to the legal issues
remaining in this appeal.
Appellants Riverside Farms and Kempner have withdrawn the oppositions raised in
their respective appeals. Appellant/Applicants originally filed a Statement of Questions that
raised fifteen legal issues,10 but all of Applicants’ legal challenges are addressed in their
Stipulation, which provides for revisions to or replacements of the permit conditions Applicants
sought to challenge in their appeal.
Applicants’ Stipulation with some of the parties does not dispose of the legal issues
remaining to be addressed in this appeal, however, since not all parties agreed to the terms of
the Stipulation. Rather, the Stipulation amongst some, but not all of the parties to this appeal
merely means that the evidentiary hearing goes forward with some parties presenting a unified
set of facts and proposed conditions. In this particular instance, only Mrs. Hart appeared at trial
and she was the only witness offered in opposition to the Project. As we do during and after all
disputed de novo hearings, we have considered all evidence presented at trial, assessed its
credibility and relevancy to the legal issues presented, and thereafter made our factual and legal
determinations.
While Applicants presented multiple legal issues in their Statement of Questions, we
understand that Applicants’ Questions only address four of the criteria and sub-criteria
available for our review under the applicable Act 250 criteria detailed in 10 V.S.A § 6086(a)(1)–
(10): Criterion 5 concerning traffic impacts; Criterion 8 concerning aesthetic impacts, Criterion
9(E) concerning the extraction of earth resources, environmental impacts, and the appropriate
rehabilitation of the extraction site; and Criterion 10, concerning conformance with the
10Applicants’ Statement of Questions, filed May 13, 2011, contains seven Questions; Question 7 is made
up of nine sub-questions.
20
applicable town and regional land use plans. We therefore limit our legal analysis of the facts
presented at trial to those four criteria.
When a district environmental commission, or this Court on appeal, is charged with
reviewing and making a determination on an application for an Act 250 permit, we may only
conclude that the application should be approved and an Act 250 permit issued when we have
rendered positive findings under all applicable criteria. 10 V.S.A. § 6068(a). Our review on
appeal is often more limited than the review conducted by a district commission, since our
jurisdiction is limited to the legal issues preserved for our review by the appellant’s statement
of questions. V.R.E.C.P. 5(f). Thus, we must first determine whether positive Findings and
Conclusions may be rendered on the four Act 250 criteria remaining for our review in this
appeal. Because we have concluded, as explained below, that positive Findings and
Conclusions may be rendered, with the appropriate conditions, we also have concluded that
Applicants’ application should be granted and an Act 250 permit issued.
I. Traffic Impacts (10 V.S.A. § 6086(a)(5)).
To render positive Findings and Conclusions under Act 250 Criterion 5, we must
conclude that the Project as now proposed will “not cause unreasonable congestion or unsafe
conditions” on area highways. 10 V.S.A. § 6086(a)(5). No suggestion was made at trial that the
volume of truck traffic generated by this Project will be so substantial as to cause unreasonable
congestion or unsafe conditions on Route 100 and we therefore conclude that no such
congestion or unsafe conditions will be caused by the new truck traffic from the Project.
The fact that previous earth extraction operations have operated from this same site for
decades provides a strong foundation for determining whether this Project will cause traffic
congestion or unsafe conditions. We temper our analysis here, since Applicants’ proposed earth
extraction operation will generate more truck traffic than the historical operations. But even at
the increased level of the proposed Project, the estimated new traffic from the Project will
represent less than a one percent increase in the average number of vehicles passing the
Property on Route 100, and will represent no more than a ten percent increase in the average
number of heavy trucks travelling in this area on Route 100.
There were concerns previously expressed about the relative safety of the existing access
road intersection with Route 100. These concerns may have contributed to Applicants’
suggestion to construct an alternate access road on the southern portion of the Property.
However, Applicants now proposes to use the original northern access road, with some
21
modifications to specifically improve the curb cut and site distances by relocating the access
road junction 100 feet north on Route 100. No party contradicted Applicants’ and their traffic
expert’s assessment that the improved northern access intersection with Route 100 will conform
to all VTrans recommendations, specifically the B-71 Standards, and provide for a safe and
adequate access to Route 100 for trucks entering and exiting the project site.
Conditioned upon the northern drive being the sole access road, as well as completion of
the proposed improvements to the access road intersection with Route 100, we conclude that
the Project as proposed conforms to Criterion 5.
II. Aesthetic Impacts (10 V.S.A. § 6086(a)(8)).
Criterion 8 requires that we determine whether the Project as proposed will have “an
undue adverse effect on the scenic or natural beauty of the area, aesthetics, historic sites, or rare
and irreplaceable natural areas.” 10 V.S.A. § 6086(a)(8). We did not receive any evidence that
historic sites or rare or irreplaceable natural areas are located on the Property or in the
surrounding areas. We therefore limit our review under Criterion 8 to the Project’s impact
upon scenic or natural beauty of the area and its aesthetics.
As noted in our Findings above, Route 100 includes many scenic vistas and the area of
Route 100 near the Project generally contains rural areas of natural beauty, although no portions
of Route 100 near the Project site, nor any portions to the north or south of the Project site
contain the expansive scenic vistas that exist in some other parts of this rural highway. See In re
Rivers Dev. Act 250 Appeal, No. 68-3-07 Vtec, slip op. at 9–10 (Vt. Envtl. Ct. March 25, 2010)
(describing the scenic characteristics of another section of Route 100). More to the point, there
were no suggestions at our trial that the Project as proposed will interfere with any areas of
scenic or natural beauty. We now turn to the last Criterion 8 category: impacts upon aesthetics.
A general analysis of aesthetic impacts can be very subjective, but the former Vermont
Environmental Board established a two-part test, known as the Quechee test, to evaluate a
project under Criterion 8. Re Quechee Lakes Corp., Docket Nos. 3W0411-EB and 3W0439-EB,
Findings of Fact, Conclusions of Law and Order, slip op. at 17 (Vt. Envtl. Bd. Nov. 4, 1985)
(quoting Re: Brattleboro Chalet Motor Lodge, Inc., Docket No. 4C0581-EB (Vt. Envtl. Bd. Oct. 17,
1984)). First, a court examines whether a proposed project may cause an adverse impact and, if
so, the court determines whether that impact will be “undue,” thereby leading to negative
findings under Criterion 8. Id.
22
We turn first to the “adversity” prong of the test. In establishing a definition for adverse
impacts, the Board noted that “the word ‘adverse’ means unfavorable, opposed, hostile” to the
character of the area. Id. We start by examining the baseline character of the area, including its
aesthetics, in order to determine whether this proposed use will be adverse.
a. The character of the area.
Route 100 and the traffic that travels on it permeate this neighborhood, especially for the
homes and commercial properties that are close to the highway boundaries. The Frog’s Leap
Inn is about 200 feet away from the highway boundaries, but Mrs. Hart conceded at trial that
visitors to the front rooms of the Inn can regularly hear and see trucks and other vehicles that
travel along this highway. There may be portions of the Harts’ property where the traffic from
Route 100 is only faintly heard, but we received little details of that. Mrs. Hart’s testimony did
not contradict the presentation of other witnesses that Route 100 traffic permeates the
neighborhood, especially all properties adjoining the highway. Any person sitting in front of
the Inn, or in its rooms adjoining Route 100, must be very much aware of the highway traffic
and noise.
Many of the other properties adjoining Applicants’ Property are undeveloped; where
they are developed, several properties have single family residences that are sparsely situated.
Only nine homes were identified within 1,500 feet of the Property. No immediate neighbors
appeared to express concerns about the proposed Project; the neighbors who did appear occupy
nearby lands that are not adjoining Applicants’ Property, and all neighbors (other than the
Harts) who did appear in this appeal later chose to offer no objections to the Project at trial.
This Property has historically been used as a rock quarry and a sand and gravel pit; that
history dates back to 1952, before Vermont’s legislature adopted state land use regulations.
Several nearby properties also hosted earth extraction operations and the Londonderry Landfill,
and the neighborhood currently hosts a commercial transfer station and a municipal septic
spray field. The area may be rural, but it includes a working landscape with varied commercial
operations. Importantly, the baseline “character of the area” that we consider in evaluating the
impact of the project’s operational and traffic noise includes pre-existing background noise
from passing traffic on Route 100 and noises traditionally emitted from other nearby uses. It is
in this context that we consider whether the project’s effect on the area will be “adverse” to that
character.
23
b. Whether the impact is “adverse” to the area’s character.
The Project’s expected truck traffic will bring additional traffic noises to the
neighborhood, but the evidence presented at trial causes us to conclude that the increase in
traffic noises generated by the Project will be minimal. Actual readings of truck traffic noises
while Applicants were operating their Project prior to receiving a permit convincingly show
that the noises from the increased truck traffic will not exceed the existing traffic noises in the
neighborhood, and the modeling conducted by Applicants’ noise expert, unchallenged at trial,
confirmed this noise impact assessment. Based upon the evidence presented, we conclude that
the additional truck traffic the Project generates will not have an adverse discernible impact on
this neighborhood, since the neighborhood is already subject to noises from traffic on Route 100.
This neighborhood has also experienced sand and gravel extraction noises for more than
fifty years, both from this property and other nearby properties. But Applicants propose to
bring more intensive operations to the neighborhood. These intensified operations will include
drilling, blasting, and crushing of rock, noises that may be regarded as unfavorable or hostile to
the surrounding area. Noises from drilling, blasting, and rock crushing will be unique to the
area, since such activities haven’t occurred in the past under state land use permit authority.
Even when such noises from the proposed Project do not rise above the discernible level of
other area noises, the drilling, blasting, and crushing noises will have a unique, discernible, and
disturbing character. We therefore conclude that such noises may be adverse to the
neighborhood, its residents, and visitors.
c. Whether the impact is “undue,” given the area’s character.
We therefore address the second component of an Act 250 aesthetic analysis, that is,
when an impact is deemed adverse, whether it is undue and therefore in conflict with Criterion
8. 10 V.S.A. § 6086(a)(8).
The former Environmental Board established that an adverse impact would be
considered to be “undue” if any one of the three following questions is answered in the
affirmative:
(1) Does the project violate a clear, written community standard intended to
preserve the aesthetics or scenic, natural beauty of the area;
(2) Does the project offend the sensibilities of the average person; and
(3) Has the applicant failed to take generally available mitigating steps that a
reasonable person would take to improve the harmony of the proposed
project with its surroundings.
24
Quechee Lakes Corp., Docket Nos 3W0411-EB and 3W0439-EB, slip op. at 19–20.
We provided a summary of what has become known as the “Quechee test,” introduced
above, in the merits decision of In re Eastview at Middlebury, Inc., No. 256-11-06 Vtec (Vt.
Envtl. Ct. Feb. 15, 2008) (Durkin, J.), aff’d 2009 VT 98, 187 Vt. 208. Our Vermont Supreme Court
most recently spoke approvingly of the use of the Quechee test in In re Rinkers, Inc., 2011 VT 78,
¶ 9, 190 Vt. 567. The Quechee test is an established methodology, used in all forums called
upon to consider a project’s conformance to Criterion 8. We therefore employ it here.
First, we note that the only evidence of clear, written community standards received at
trial reinforces the appropriateness of Applicants’ Project in this area. The Windham Regional
Plan establishes that this section of the Town is appropriate for productive rural land uses, that
earth extraction operations are one of those identified land uses, and that the lands in this
particular area are known for having sand and gravel resources that are not otherwise readily
available. See Exhibit 7.
Second, while Mrs. Hart provided testimony of her concerns that she and her guests will
find the quarry noises to be undue and offensive, her concerns were presented in generalities
and were difficult to assign credibility, given that a sand and gravel operation has been
operating in this neighborhood since before the Harts purchased their adjoining property. We
received more credible testimony from Applicant Chaves, his experts, and area town officials
who have witnessed the prior pit operations and have experience with other, similar gravel
extraction operations. In short, while an increase in operational noises at the Project will
certainly be noticeable to the Harts and perhaps other neighbors, we do not have sufficient
evidence to conclude that the Project as proposed will offend the sensibilities of the average
person.
Lastly, we look favorably upon the berms, access road relocation, limitations on
operational hours, and limitations on the days and weeks of seasonal operation to which
Applicants have agreed. These represent substantive steps of mitigation that improve the
harmony of the proposed Project with its surroundings.
In sum, we cannot conclude that any one of the criteria established by the former
Environmental Board have been met to conclude that the aesthetic impacts from Applicants’
Project will be “undue,” even though we also conclude that some of those aesthetic impacts
may be adverse. Having rendered these assessments, we conclude that the Project as proposed
conforms to Act 250 Criterion 8.
25
III. Extraction of Earth Resources (10 V.S.A. § 6086(a)(9)(E)).
No evidence was provided at trial of any anticipated harmful impacts that are feared to
be caused by the Project as proposed. Applicants’ expert has presented a blasting plan that has
gone through several revisions, including after the District Commission issued its permit
decision and after several neighbors offered their assessments as well. Applicants’ revised
blasting plan (Exhibit 15) incorporates pre-blasting surveys of area residences, so that a proper
baseline is established to respond to damage claims. As proposed in the revised blasting plan,
there is little evidence that damage from blasts, including flyrock leaving the Property, will
occur from this Project.
Applicants have also agreed to annual limits of blasts and when blasting is prohibited
during the operational season. Applicants have agreed to limits on the amount of explosives to
be employed and the pea stone packing to be used in each blast hole. These procedures will
limit the intensity of the blasts and appear to eliminate the likelihood of harmful impacts from
the Project.
Further, Applicants have committed to providing at least 48 hour notices of every blast
to all residents within 1,500 feet, and have agreed to an effective procedure by which its general
and blasting operations manuals may be revised, should unanticipated impacts occur. In the
event of a needed revision to Applicants’ blasting plan, all blasting will cease until neighbors
are noticed and provided with an opportunity to comment, and any necessary approval from
the District Commission is received.
In summary, Applicants have pledged to implement operational and blasting
procedures that both appear to assure that no harmful impacts will occur, and have designed a
reliable procedure for revising its plans in the unlikely event that unanticipated impacts occur.
We conclude that Applicants’ proposed Project conforms to Criterion 9(E)(i).
Little attention during trial was paid to challenging the District Commission’s
assessment that the proposed project will satisfy Criterion 9(E)(ii). We note that Applicants’
revised Project plan, including the revisions contemplated by the parties’ Stipulation, establish
that Applicants will follow an established phasing and rehabilitation plan that will allow for the
Property, once these extraction operations are completed and the term of any permit expires, to
support an alternative use or development. We therefore conclude that Applicants’ proposed
Project conforms to Criterion 9(E)(ii).
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IV. Conformance with Town and Regional Plans (10 V.S.A. § 6086(a)(10)).
Any applicant for an Act 250 permit must show that its proposed project conforms to the
applicable municipal and regional land use plans. 10 V.S.A. § 6086(a)(10). Municipal and
regional plans serve as important documents for communities, since they often articulate a
community’s goals and desires for its future; however, their direct applicability in the
regulation of land use can be limited, since town and regional plans are often stated in language
that is best described as “nonregulatory abstractions.” In re Molgano, 163 Vt. 25, 31 (1994). The
Supreme Court has therefore cautioned that to support a conclusion that a proposed project
conflicts with a town or regional plan, the plan language relied upon must be “’stated in
language that is clear and unqualified, and creates no ambiguity.’” In re Appeal of JAM Golf,
LLC, 2008 VT 110, ¶ 17, 185 Vt. 201 (quoting In re John A. Russell Corp., 2003 VT 93, ¶ 16, 176
Vt. 520). For the reasons detailed below, we conclude that no language in either the Town or
Regional Plan expresses a clear, unqualified, and unambiguous restriction on the uses
Applicants propose for their Project. In fact, the language from either Plan that references earth
extraction operations such as Applicants’ proposed operations reinforces the importance of and
need for such uses. Furthermore, these documents identify the area of the Project as an area
appropriate for such uses.
The Town Plan (Exhibit 28) expresses general policies concerning earth and mineral
resources and the importance of those resources to the region’s future growth. Id. at 26. While
the Town Plan does not provide specific standards to guide our review, we note that the second
stated general policy seeks to ensure “that all town regulations and review procedures provide
for restoration of extracted sites.” Id. We view Applicants’ proposal to rehabilitate the
excavated area as phasing is completed to further this general policy. Conversely, we find no
specific language in the Town Plan that can be relied upon to prohibit Applicants’ proposed
uses.
The Windham Regional Commission, of which Londonderry is a member town, has
identified the area of Applicants’ Property as an area with significant sand and gravel resources.
See Exhibit 8, the 2006 Windham Regional Plan Sand and Gravel Resources Map. The Regional
Plan also notes the historical use of Applicants’ property and surrounding properties for earth
extraction operations. The Regional Plan identifies this as an area suitable for land uses
identified as “productive rural lands” that can “contribute to the working landscape and have
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significant economic value[, including] sand/gravel/ mineral deposits and operations . . . .”
Exhibit 27 (Regional Plan) at 26.
There was no evidence presented at trial of standards within the Regional Plan that
specifically prohibit the proposed project, and our own review revealed no such standards. We
therefore conclude that the proposed Project conforms to both the Town and Regional Plans.
Conclusion
For all the reasons more fully discussed above, we GRANT Applicants’ application for
an Act 250 permit by concluding that the Project as proposed, subject to the conditions
established below, conforms to Act 250 Criteria 5, 8, 9(E), and 10, which are the criteria we were
called upon to review in this de novo appeal of the proceedings before the District 2
Environmental Commission. Our approval is subject to the conditions detailed in this decision,
all of which may be summarized as follows:
• Conditions 1 through 5 shall remain as stated by the District Commission in
Permit No. 2W1275, issued March 4, 2011, which was admitted at trial as
Exhibit 29.
• Condition 6 shall read as follows:
a) The hours of operation open to the public: 7:00 AM to 5:00 PM, Monday through
Friday.
b) There shall be no sales, loading, or processing of earth products on Saturdays.
c) In addition to the limitation on the hours of operation in sub-paragraph (a),
above, there also shall be no drilling, blasting, or crushing during the months of
July and August, the last week in June, and the first week in September.
d) In addition to the above, and except for pumping performed with submersible
electrical pumps, there shall be no pumping of water from the quarry ponds
between the hours of 9:00 PM and 7:00 AM.
e) The quarry shall be closed in all respects on Sundays.
f) In emergencies (such as natural disasters), the District Commission or District
Coordinator may allow operations outside of these times for the purpose of, and
upon such terms and conditions for, the protection of public health, safety, and
welfare.
g) All crushing or screening will only be allowed within the quarry limits and at or
below existing quarry floor levels.
• Condition 7 shall read as follows: Except in emergency situations invoked under
Permit Condition 6, there shall be a maximum of 150 trips (75 loads) per day. The
Permittees shall keep a log of all truck trips, listing the date and time of each trip.
Accurate copies of the log shall be submitted to the Commission within three (3)
business days upon request.
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• Conditions 8 through 15 shall remain as stated by the District Commission in
Permit No. 2W1275.
• Condition 16 shall read as follows:
The maximum noise levels from operations on the site, including trucking, but
excluding trucks accessing and egressing the site at its juncture at Route 100 and
excluding blasting noise, shall not exceed 55 dBA (Lmax) at any existing residences
or areas of frequent human use as found by the District Commission in its March
4, 2011 decision. It is understood and agreed that if the existing access is improved
and utilized as the sole access, that truck traffic entering and exiting the project site
may, in combination with existing Route 100 road noise, cause periodic
exceedances of the 55 dBA (Lmax) standard on limited portions of the properties
to the north and west of the existing access driveway. In no event, however, may
these noise levels on any portions of the properties to the north and west of the
existing access driveway be greater than the noise levels which have existed in
these locations for the period beginning in 2005 and ending on December 31, 2011.
An operations manual shall be prepared which documents and explains all of the
noise mitigation measures and how they are to be implemented, and such manual
shall be an exhibit to the Act 250 Permit for the Quarry on file with the
Commission. Additionally, a site plan which shows the location of all noise
mitigation measures and the approved locations for processing and equipment for
each phase shall be on site at all times along with the operations manual, and the
site plan shall be an exhibit to the Act 250 Permit for the Quarry on file with the
Commission.
• Condition 17 shall read as follows:
A sound-monitoring plan shall be developed jointly by the expert for
Permittees and an expert designated by Riverside Farm to provide for a cost-
effective, verifiable compliance-monitoring plan for the sound standards specified
in the Permit. The sound plan shall utilize the assumptions and methodologies
contained in the RSG noise study admitted at trial as Exhibits 19, 22, and 24 and
shall emphasize rapid sharing of data, prompt mitigation of any exceedances, and
reasonable means to prevent repeated exceedances.
Any plan approved by the designated experts shall be submitted jointly by
Riverside Farm and Permittees to the District Commission, and compliance with
the sound plan and the terms thereof shall be incorporated in and become a part of
Permittees’ Act 250 permit. In addition to the Permittees’ compliance with the
sound plan, Permittees shall, except where otherwise permitted by an affected
neighboring landowner, comply with Permit Condition 16 and the 55 dBA (Lmax)
[maximum] standard at existing residences and areas of frequent human use.
Permittees’ compliance with the sound plan shall not preclude the State of
Vermont or a party hereto from obtaining an administrative or judicial remedy for
exceedances of the 55 dBA (Lmax) standard by Permittees, nor is the State of
Vermont or any party precluded from conducting compliance-monitoring which is
in addition to that required by the sound plan. Upon submission of the sound
plan to the District Commission, any other party hereto, should they desire, may
submit to the Commission written comments in opposition to the adoption of the
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sound plan if said written objections are filed within fifteen (15) days after said
plan is filed with the Commission. Any party who fails to file a written objection
to the sound plan as described above shall be deemed to have approved said plan,
but a party's agreement to the sound plan does not preclude such person from
obtaining an administrative or judicial remedy for exceedances by Permittees, nor
shall a party's agreement to the sound plan be construed against that person in any
administrative or judicial proceeding.
Permittees and Riverside Farm have agreed to exercise good faith and utilize
their best efforts to develop the sound plan, with notice to all other parties of
record. In the event Permittees and Riverside Farm are unable to develop a
mutually agreeable sound-monitoring plan, either party may request that the
Commission hold a hearing for the sole purpose of establishing a monitoring plan
consistent with this paragraph.
• Condition 18 shall read as follows:
There shall be a maximum of eighteen (18) blasts per year. All said blasts
shall occur only between the months of March and June, and September and
December. All blasts shall be designed to displace no more than 3,500 cubic
yards of material. Blasting shall take place only between the hours of 9:00 AM to
3:00 PM, Monday through Friday, and drilling shall only take place Monday
through Friday between the hours of 7:00 AM to 4:30 PM. Permittees shall
provide all property owners within 1,500 feet, and other property owners who so
request, 48 hours written or electronic notice of any upcoming blasting event.
• Conditions 19 through 22 shall remain as stated by the District Commission in
Permit No. 2W1275.
• Condition 23 shall read as follows:
In the event that any blasting event results in an occurrence of flyrock landing
outside of Permittees' property line, blasting shall immediately cease and shall not
resume until the District Commission determines that the resumption of blasting
complies with 10 V.S.A. § 6086(a)(9)(E). Permittees shall notify all parties of the
event and shall arrange a meeting as soon as possible with all parties who request
to participate and with Permittees' blasting consultant.
All parties shall be given at least five (5) days’ advance notice of the time and
place of the meeting. Permittees shall prepare proposed revisions in the blasting
plan to effectively mitigate the risk of any reoccurrence of flyrock and submit the
same to the parties and the District Commission. Blasting may only resume after
the District Commission determines that the revisions to the blasting plan comply
with 10 V.S.A. § 6086(a)(9)(E) and a permit or permit amendment, if required, is
issued for the revised blasting plan.
Unless the Commission or District Commission Coordinator finds, pursuant to
a Rule 3 jurisdictional opinion, that the proposed revisions to the blasting plan
constitute material changes to Permittees’ Act 250 Permit, or they determine that a
permit amendment is otherwise required under the Rules, no permit amendment
shall be required. Nevertheless, no blasting may occur except in compliance with
the blasting plan as revised.
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• Conditions 24 through 29 shall remain as stated by the District Commission in
Permit No. 2W1275.
• Condition 30 shall read as follows:
This permit shall expire twenty-five (25) years following the issuance hereof or
upon completion of the reclamation plan for the project, whichever occurs last.
• An additional Condition shall be added as follows:
a. Maximum annual processing of all earth products shall be limited as follows:
i. Year One: no more than 35,000 cubic yards (not including up to 7,000 cubic
yards of materials supplied with regard to repairs related to Tropical Storm
Irene, a storm that caused substantial damage in Vermont in 2011);
ii. Year Two: no more than 40,000 cubic yards;
iii. Year Three: no more than 45,000 cubic yards; and
iv. Year Four and all subsequent years thereafter: 50,000 cubic yards.
b. Maximum annual loading of or sale of product shall not exceed 120% of the
annual processing limits set forth above in sub-paragraph (a), above.
Applicants are obligated to provide the District Commission with a complete set of
site plans, operation manuals, and all other Exhibits admitted at trial and shall maintain a
copy of such Exhibits at all times during the duration of the underlying Act 250 permit.
These proceedings are remanded to the District 2 Environmental Commission to
complete the ministerial act of issuing a revised Act 250 Permit in conformance with this Merits
Decision and the unappealed terms and conditions of the District Commission’s March 4, 2011
Decision and Permit.
A Judgment Order accompanies this Decision. This completes the current proceedings
before this Court concerning this appeal.
Done at Berlin, Vermont, this 17th day of January 2013.
___________________________________________
Thomas S. Durkin, Environmental Judge
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