                                      State of Vermont
                           Superior Court—Environmental Division

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                   ENTRY REGARDING MOTION
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In re Chaves Londonderry Gravel Pit                              Docket No. 60-4-11 Vtec
(Appeal of Act 250 District 2 Environmental Commission Decision)

Title: Motion to Postpone Trial Due to Scheduling Conflict (Filing No. 4)
Filed: October 11, 2011
Filed By: David Grayck, Attorney for Cross-Appellants Riverside Farm and Thomas Ettinger

Response in agreement filed on 10/20/11 by Hans Huessy, Attorney for Interested Persons
  Kraig Hart and Doreena Hart
Response in opposition filed on 10/24/11 by C. Daniel Hershenson, Attorney for Appellants
  Chaves Londonderry Gravel Pit and David Chaves


 ___ Granted                    X Denied                     ___ Other


        Chaves Londonderry Gravel Pit, LLC and David Chaves (“Appellants”) appeal the
District 2 Environmental Commission’s (“the Commission”) March 4, 2011 Findings of Fact and
Conclusions of Law concerning an Act 250 permit they obtained, subject to certain conditions,
for the operation of a pre-existing quarry in Londonderry, Vermont. They also appeal the
Commission’s April 11, 2011 Memorandum of Decision on Appellants’ Motion to Alter.
Thomas Ettinger, individually and as a representative of Riverside Farm (“Cross-Appellants”),
cross-appeals.
       Cross-Appellants have now filed a motion to postpone trial due to scheduling conflicts
involving two witnesses, Thomas Ettinger and Frank Petralito. They have also filed a
supplement to that motion.
        First, Cross-Appellants contend that Mr. Ettinger “has commitments to be out-of-state
for the winter.” In their supplemental motion, they specify that Mr. Ettinger’s dog breeding
and training activities require his absence from Vermont through February. However, by his
motion, Mr. Ettinger represents that his schedule is uncertain for mid-February and beyond.
Thus, in order to accommodate both parties, we have scheduled the trial for early March, 2012.
This will avoid a lengthy delay and will give Mr. Ettinger sufficient notice so that he may
schedule his winter travels around the March trial date.
        Second, Cross-Appellants argue that Mr. Petralito cannot travel to Vermont during the
winter months due to a heart condition. In their supplemental motion, they provide a doctor’s
recommendation that Mr. Petralito not travel to Vermont in the winter. They also discuss the
parties’ agreement that, if trial is not postponed, Mr. Petralito could testify by telephone rather
than by deposition. Although it is not ideal to hear testimony by phone, due to Mr. Petralito’s
In re Chaves Londonderry Gravel Pit, No. 12-1-11 Vtec (EO on Motion to Postpone Trial)(11-03- 2011) Pg. 2 of 2.


medical condition and in order to avoid postponing the trial, the Court will permit his
telephonic testimony.
        Accordingly, the Court DENIES the motion to postpone trial due to scheduling
conflicts. Trial has been scheduled to commence on March 5th. Mr. Petralito’s testimony will
be heard by telephone.
        This matter is scheduled for trial beginning on March 5, 2012 and concluding on March
9,  20121at the Windham Superior Courthouse in Newfane, Vermont. The Court directs the
parties to plan accordingly.




_________________________________________                                             November 3, 2011      _
       Thomas S. Durkin, Judge                                                            Date
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Date copies sent to: ____________                                              Clerk's Initials _______
Copies sent to:
    C. Daniel Hershenson, Attorney for Appellants Chaves Londonderry Gravel Pit and David Chaves
    David Grayck, Attorney for Cross-Appellants Riverside Farm and Thomas Ettinger
    Hans Huessy, Attorney for Interested Persons Kraig Hart and Doreena Hart
    Cross-Appellant Nancy Kemper
    Interested Person Angelique Jarvis
    Interested Person David A. Jarvis
    Interested Person David M. Rathburn
    For Informational Purposes Only Natural Resources Board
    For Informational Purposes Only Agency of Natural Resources




1
 The trial has been scheduled for consecutive days. However, the Newfane Courthouse will be closed on Tuesday,
March 6, 2012, which is Town Meeting Day.
