                                       STATE OF VERMONT
                                     ENVIRONMENTAL COURT

                                                        }
Appeal of Rivers Development, LLC                       }                    Docket No. 7-1-05 Vtec
Rivers Development Act 250 Land Use                     }
       Application                                      }                    Docket No. 68-3-07 Vtec
                                                        }


                            Decision on Motions Related to Party Status
                                         & Consolidation

        These appeals arise out of Rivers Development, LLC’s (Rivers) applications to develop
and operate a rock quarry and crushed rock processing facility on a 93± acre parcel in the Town
of Moretown. In Docket No. 7-1-05 Vtec, Rivers appealed a decision of the Town of Moretown
(Town) Development Review Board dated December 10, 2004;1 several individuals and entities
filed cross-appeals. In Docket No. 68-3-07 Vtec, Rivers appealed a decision of the District #5
Commissioner dated January 19, 2007; several individuals and entities also filed cross-appeals.
        Now pending before the Court are several motions. Rivers has filed a three motions: (1)
a motion to re-activate the municipal appeal (Docket No. 7-1-05 Vtec) and consolidate it with the
now-pending Act 250 appeal (Docket No. 68-3-07 Vtec); (2) a motion to dismiss several
individuals and entities; and (3) a motion for summary judgment on Question 11 of the
Statement of Questions filed by a group calling itself the “Neighbors.”2
        The Neighbors have filed a motion for party status and, in the alternative, a motion to
intervene.
        Appellant Rivers is represented by James A. Caffry; the Town is represented by Ronald
A. Shems; the Neighbors are represented by David Grayck; and the following individuals,
groups or entities represent themselves: Mark and Priscilla Case, James and Willow Falkenbush,
Patrick Quimby, Shepard’s Flats Group, Bikers/Walkers Safety 100B Group, Common Road
Area Group, Moretown Village Action Association, Moretown Elementary School Board, Mark


1
   This older docket was placed on inactive status as of February 7, 2007. We address below the request to
reactivate this older docket and consolidate it with the now-pending Act 250 appeal:, Docket No. 68-3-07 Vtec.
2
  The Neighbors are Thomas Allen, Jack Byrne, Virginia Farley, Doug Hall, Cindy Hall, Robert Dansker, June
Holden Life Estate, Rick Hungerford, Rita LaRocca, Robert McMullin, Beverly McMullin, John Porter, Sandy
Porter, Scott Sainsbury, Patricia Sainsbury, Benjamin Sanders, Denise Sanders, Karen Sharpwolf, Ruth van Heuven,
Marten van Heuven, Wichard van Heuven, Constance van Heuven, and Arthur and Linda Hendrickson.
Pfister, Patricia LaBarge, Edith T. Drury, Ray Holland, Laura Grala, William Brubeil, Roger
Quirion, Sharon Cote, Susan Wallace, Barbara Buska, Donald Buska, William and Michelle
Durrell, Mary and Tim Larson, the North End Group, Carolyn Friberg, Carl Yalicki, Mary
Ronner, John Gallagher, Elizabeth Porter, Jacqueline Sainsbury, Tracy Holden, Holly A. Holden,
and Pamela Holden.
       In the course of reviewing the pending motions, we concluded that our determinations,
particularly affecting party status, would best be expressed in a chart format, particularly for ease
of reference in future conferences and at the merits hearing where necessary. We therefore have
prepared the attached chart and incorporate it here for reference so as to provide notice of our
determinations on the pending motions and the basis for such rulings.
       As reflected in the appended chart, and for the reasons stated therein, Rivers’ motion to
dismiss is GRANTED in part and DENIED in part; Rivers’ motion for summary judgment is
GRANTED in part and DENIED in part; the Neighbors’ motion for party status is GRANTED
in part and DENIED in part; and the Neighbors’ motion to intervene is DENIED. Rivers’
motion to re-activate Docket No. 7-1-05 Vtec and consolidate it with Docket No. 68-3-07 Vtec is
hereby GRANTED.
       The parties should note, for future reference, that pursuant to V.R.E.C.P. 2(d)(1), all
parties, including unrepresented parties, must attend all conferences, unless excused in advance
by the Court. This matter shall now proceed through the pre-trial phase for each appeal. A
Scheduling Order regarding mediation accompanies this Interim Decision.

       Done at Berlin, Vermont this 3rd day of July, 2007.


                                       _____________________________
                                       Thomas S. Durkin, Environmental Judge




                                                 2
           Rivers Development, LLC, Docket Nos. 68-3-07 Vtec and 7-1-05 Vtec

                                     Party Status Chart

Motion for Party Status/Motion to Intervene Disposition
(68-3-07)
Thomas Allen          10 V.S.A. §              Motion for Party Status (MPS) GRANTED
                      6086(a)(5) (traffic)      as to § 6086(a)(5) because he resides on
                      and (9)(K)                Route 100B where trucks would pass and
                      (development)             he bikes and walks along the road.
                                               MPS DENIED as to (9)(K) because he does
                                                not assert that he personally will be
                                                affected, only that the general public will be
                                                affected.
                                               Motion to Intervene (MI) DENIED as to
                                                (a)(5) as moot and as to (9)(K) for same
                                                reason as MPS.
Jack Byrne &          § 6086(a)(2)             MPS DENIED as to § 6086(a)(2) because
Virginia Farley       (sufficient water         quarry well is not certain and no offer of
                      supply), (a)(6)           proof regarding groundwater flow.
                      (educational services),  MPS DENIED as to (a)(6) because their
                      (a)(7) (govt’l servs.),   alleged injury is based on a decreased tax
                      (9)(A) (impact of         valuation leading to decreased educational
                      growth), (9)(H) (cost     services, which is too attenuated.
                      of devel.), and (9)(K)  MPS DENIED as to (a)(7) because
                      (effect on public         argument about decreased tax base is too
                      investments)              attenuated.
                                               MPS DENIED as to (9)(A) because no
                                                showing that quarry will affect/not affect
                                                future population growth and how they
                                                would be aggrieved personally.
                                               MPS DENIED as to 9(H) because no
                                                showing that cost of quarry to Town would
                                                outweigh tax revenue and how that would
                                                directly impact them.
                                               MPS GRANTED as to (9)(K) because of
                                                investment that they have made in
                                                cultivating lands along Rte. 100B and
                                                because they use the road for
                                                biking/walking.
                                               MI DENIED as to (9)(K) as moot and
                                                DENIED as to (a)(2), (a)(6), (a)(7), (9)(A),
                                                and (9)(H) for same reasons as MPS.




                                              3
Doug & Cindy Hall   § 6086(a)(1) (air) and        MPS GRANTED as to § 6086(a)(1)
                    (9)(E) (extraction of          because of proximity of site to residence
                    resources)                     and concerns regarding alleged airborne
                                                   carcinogens that might affect them at their
                                                   residence.
                                                  MPS DENIED as to (9)(E) because
                                                   criterion relates to impacts to
                                                   environment/land uses, not to noise impact.
                                                  MI DENIED as to (a)(1) as moot and
                                                   DENIED as to (9)(E) for same reasons as
                                                   MPS.
June Holden Life    § 6086(a)(8)(A)               MPS GRANTED as to § 6086(8)(A)
Estate              (wildlife habitat) and         because hunting is allowed during spring
                    (9)(K)                         (turkey) and fall (deer) on their land and
                                                   habitat may be impacted both by traffic and
                                                   noise.
                                                  MPS DENIED as to 9(K) because their
                                                   alleged interest relates to traffic, not
                                                   endangering public investments; no
                                                   showing of impact upon investment in
                                                   Route 100B.
                                                  MI DENIED as to (8)(A) as moot and
                                                   DENIED as to 9(K) for same reasons as
                                                   MPS.
Rick Hungerford     § 6086(a)(5) (traffic)        MPS GRANTED as to § 6086(a)(5)
                    and (8) (aesthetics)           because he uses Route 100B at quarry
                                                   entrance to walk and bike.
                                                  MPS GRANTED as to (8) because of
                                                   alleged injury to scenic value of Route
                                                   100B.
                                                  MI DENIED as moot.
Robert & Beverly    § 6086(a)(9)(H) (costs        MPS DENIED as to § 6086(a)(9)(H)
McMullin            of scattered                   because alleged interest is that horse farm
                    development)                   would not be able to operate, decreasing
                                                   property value and shifting tax burden to
                                                   other residents, which is too attenuated.
                                                  MI DENIED for same reasons as MPS.




                                             4
John & Sandy Porter   § 6086(a)(1)(B)                MPS DENIED as to § 6086(a)(1)(B)
                      (waste), (1)(E)                 because no offer of proof as to groundwater
                      (streams), (1)(F)               flow.
                      (shorelines), (2)              MPS DENIED as to (1)(E) because concern
                      (water supply), (4)             about stream flow into Mad River causing
                      (erosion), (6)                  overflowing is too attenuated.
                      (educational services),        MPS DENIED as to (1)(F) because
                      (7) (munic. servs.),            concerns related to Mad River
                      (9)(A) (impact of               flooding/erosion are too attenuated due to
                      growth), (9)(H) (costs          quarry location.
                      of devel.), and (9)(K)         MPS DENIED as to (2) because concern
                      (public investments)            that quarry well-drilling could affect their
                                                      well is too speculative; no offer of proof re
                                                      groundwater flow.
                                                     MPS GRANTED as to (4) because quarry
                                                      development could increase surface water
                                                      flow (due to removal of vegetation); erosion
                                                      is already a problem.
                                                     MPS DENIED as to (6), (7), (9)(A), and
                                                      9(H) because property value argument is
                                                      too attenuated and not addressed in this
                                                      criterion.
                                                     MI DENIED as to (4) as moot; DENIED as
                                                      to (1)(B), (1)(E), (1)(F), (2), (6), (7), (9)(A)
                                                      and 9(H) for same reasons as MPS.
Scott & Patricia      § 6086(a)(1)(B)                MPS DENIED as to § 6086(a)(1)(B) and
Sainsbury             (waste), (1)(C) (water          (3) because no offer of proof regarding
                      conservation), (1)(E)           groundwater flow.
                      (streams), (1)(F)              MPS DENIED as to (1)(C) because
                      (shorelines), (3)               criterion relates to water conservation, not
                      (burden on water                water quality.
                      supply), (4) (erosion),        MPS DENIED as to (1)(E), (1)(F), and (4)
                      (6) (educ. services),           because concerns related to Mad River
                      (7) (munic. services),          flooding are too attenuated.
                      (9)(A) (impact of              MPS DENIED as to (6), (7), and 9(K)
                      growth), and (9)(K)             because concerns are too generalized.
                      (public investments)           MPS DENIED as to (9)(A) because
                                                      concerns regarding impact of growth are
                                                      too speculative.
                                                     MI DENIED as to (1)(B), 1(C), 1(E), 1(F),
                                                      (4), (6), (7), (9)(A), (9)(K) for same reasons
                                                      as MPS.




                                                5
Benjamin & Denise   § 6086(a)(1)(F)              MPS GRANTED as to § 6086(a)(1)(F)
Sanders             (shorelines), (6)             because they use the river in front of their
                    (educ. services), (7)         home for recreation.
                    (munic. services),           MPS DENIED as to (6), (7), (9)(A) and
                    (8)(A) (wildlife),            (9)(H) because interest is too attenuated and
                    (9)(A) (impact of             tax base argument is too attenuated and
                    growth), (9)(H)               speculative.
                    (devel. costs), and          MPS GRANTED as to (8)(A) because they
                    (9)(K) (public                have wildlife on their property throughout
                    investments)                  the year that may be impacted by quarry.
                                                 MPS DENIED as to (9)(K) because
                                                  concerns relate to aesthetics, not public
                                                  investment in government lands/facilities.
                                                 MI DENIED as to 1(F) and 8(A) as moot;
                                                  DENIED as to (6), (7), (9)(A), (9(K) and
                                                  9(H) for same reasons as MPS.
Karen Sharpwolf     § 6086(a)(1)                 MPS GRANTED as to § 6086(a)(1)
                    (water/air), (5)              because of concerns about airborne dust
                    (congestion-                  affecting her on her property.
                    highways), (6) (educ.        MPS DENIED as to (5) because concern is
                    services), and (9)(E)         with noise of traffic, not traffic itself.
                    (extraction of               MPS DENIED as to (6) because tax base
                    resources)                    argument is too attenuated.
                                                 MPS GRANTED as to (9)(E) because of
                                                  potential impact on use/enjoyment of her
                                                  property.
                                                 MI DENIED as to (a)(1) and 9(E) as moot;
                                                  DENIED as to (5) and (6) for same reasons
                                                  as MPS.
Arthur & Linda      § 6086(a)(1)(D)              MPS GRANTED as to § 6086(a)(1)(D)
Hendrickson         (floodways) and               because of current run-off from quarry
                    (9)(A)                        property onto their property; concerns re
                                                  quarry on run-off.
                                                 MPS DENIED as to (9)(A) because
                                                  decrease in tax base is too attenuated.
                                                 MI DENIED as to (1)(D) as moot; DENIED
                                                  as to (9)(A) for same reason as MPS.




                                            6
Motion to Intervene Only (68-3-07) (all of             Disposition
the following granted party status by the
District Commission on some criteria, but not
others)
Robert Dansker (D.C. granted party status on §         DENIED because there has been no showing
6086(a)(1) (Air), (5) (highways), (8)                  that the requirements of 10 V.S.A. § 8504(n)(1),
(aesthetics), (9)(E) (extraction of resources)         (4), or (6) have been met.
and (10) (town plan); denied on (6) (educ.
services) and (7)(munic. services))
Rita LaRocca (D.C. granted party status on 8           DENIED because there has been no showing
(aesthetics) and 10 (town plan); denied on 1           that the requirements of 10 V.S.A. § 8504(n)(1),
(air), 6 (educ. services), 9(A) (impact of             (4), or (6) have been met.
growth) and 9(E) (extraction))
Marten & Ruth van Heuven (D.C. granted                 DENIED because there has been no showing
party status on 8 (aesthetics) and 10 (town            that the requirements of 10 V.S.A. § 8504(n)(1),
plan); denied on 1 (air), 5 (highways), 6 (educ.       (4), or (6) have been met.
services), 9(A) (impact of growth), 9(H) (costs)
and 9(K) (public investments))
Wichard & Constance van Heuven (D.C.                   DENIED because there has been no showing
granted party status on 8 (aesthetics) and 10          that the requirements of 10 V.S.A. § 8504(n)(1),
(town plan); denied on 1 (air) and 9(E)                (4), or (6) have been met.
(extraction of resources))

Motion to Dismiss (7-1-05)                             Disposition
Mary Ronner                                            GRANTED. Ms. Ronner’s mail has been
                                                       returned to the Court as undeliverable, she did
                                                       not appear at the status conference and did not
                                                       file any response to the motion to dismiss.
James & Willow Falkenbush                              GRANTED. The Falkenbushes did not appear
                                                       at the status conference and did not file any
                                                       response to the motion to dismiss.
Mark & Priscilla Case                                  GRANTED. The Cases did not appear at the
                                                       status conference and did not file any response
                                                       to the motion to dismiss.
Edith Drury                                            MTD withdrawn
Shepherd’s Flats and Neighbors                         GRANTED. This group no longer contains ten
                                                       people with standing pursuant to 24 V.S.A.
                                                       § 4465(b)(4). Group members should note that
                                                       they may file individual motions to intervene
                                                       should they wish to continue to participate in
                                                       this appeal.
Common Road Area Group                                 MTD withdrawn
Patrick Quimby                                         DENIED. Although Mr. Quimby didn’t appear at
                                                       the status conference, there is no evidence that he
                                                       should lose party status.


                                                   7
Moretown Village Action Ass’n                               MTD withdrawn
Moretown Elementary School Board                            DENIED. Although the Board did not appear at
                                                            the status conference, there is no evidence that it
                                                            should lose party status.
Mark Pfister3                                               DENIED. Although Mr. Pfister did not appear at
                                                            the status conference, there is no evidence that
                                                            he should lose party status.
Patricia LaBarge4                                           DENIED. Although Ms. LaBarge did not appear
                                                            at the status conference, there is no evidence that
                                                            she should lose party status.
Ray Holland5                                                DENIED. Although Mr. Holland did not appear
                                                            at the status conference, there is no evidence that
                                                            he should lose party status.
Laura Grala6                                                DENIED. Although Ms. Grala did not appear at
                                                            the status conference, there is no evidence that
                                                            she should lose party status.
William Brubeil7                                            DENIED. Although Mr. Brubeil did not appear
                                                            at the status conference, there is no evidence that
                                                            he should lose party status.
Roger Quirion8                                              DENIED. Although Mr. Quirion did not appear
                                                            at the status conference, there is no evidence that
                                                            he should lose party status.
Sharon Cote9                                                DENIED. Although Ms. Cote did not appear at
                                                            the status conference, there is no evidence that
                                                            she should lose party status.
Susan Wallace                                               GRANTED. Ms. Wallace’s mail has been
                                                            returned to the Court as undeliverable, she did
                                                            not appear at the status conference and did not
                                                            file any response to the motion to dismiss.
Barbara Buska10                                             DENIED. Although Ms. Buska did not appear at
                                                            the status conference, there is no evidence that
                                                            she should lose party status.
Donald Buska11                                              DENIED. Although Mr. Buska did not appear at
                                                            the status conference, there is no evidence that
                                                            he should lose party status.

3
  Mr. Pfister claims membership in the Cob Hill/Stevens Brook Group, which never filed a notice of appearance in
Docket No. 7-1-05. However, the group members all entered their appearances as individual cross-appellants.
Therefore, their request to join the Shepherd’s Flats group is DENIED because each member of the Cob
Hill/Stevens Brook Group has party status individually.
4
  See note 1, supra.
5
  See note 1, supra.
6
  See note 1, supra.
7
  See note 1, supra.
8
  See note 1, supra.
9
  See note 1, supra.
10
   See note 1, supra.
11
   See note 1, supra.


                                                        8
William & Michelle Durrell       GRANTED. The Durrells did not appear at the
                                 status conference and have filed no response to
                                 the motion to dismiss.
Mary & Tim Larson                GRANTED. The Larsons did not appear at the
                                 status conference and have filed no response to
                                 the motion to dismiss.
Martin van Heuven                DENIED. Mr. van Heuven’s wife Ruth
                                 appeared at the status conference and they are
                                 listed as one Interested Person.
Carolyn Friberg                  GRANTED. Ms. Friberg did not appear at the
                                 status conference and has filed no response to
                                 the motion to dismiss.
Carl Yalicki                     GRANTED. Mr. Yalicki did not appear at the
                                 status conference and has filed no response to
                                 the motion to dismiss.
John Gallagher                   DENIED. Although Mr. Gallagher did not
                                 appear individually, he apparently attempted to
                                 participate through a representative of the
                                 Common Road Area Group and there is no
                                 evidence he should lose party status.




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