                                         State of Vermont
                              Superior Court—Environmental Division

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

Title: Motion to Dismiss Cross Appellant Nancy Kemper’s Questions 5, 6, and 7 (Filing No. 2)
Filed: August 15, 2011
Filed By: C. Daniel Hershenson, Attorney for Appellants Chaves Londonderry Gravel Pit, LLC
    and David Chaves

Response in opposition filed on 9/9/11 by Cross-Appellant Nancy Kemper


    ___ Granted                     X Denied                      ___ Other

        Chaves Londonderry Gravel Pit, LLC and David Chaves (“Appellants”) appeal certain
findings contained in the District 2 Environmental Commission’s (“the District Commission”)
March 4, 2011 Findings of Fact and Conclusions of Law and Order concerning an Act 250 permit
they obtained for the operation of a pre-existing quarry in the Town of Londonderry, Vermont.
They also appeal the District Commission’s April 11, 2011 Memorandum of Decision on Motion
to Alter. Nancy Kemper (“Cross-Appellant”) cross-appeals, as does Thomas Ettinger.1
       In support of her cross-appeal, Cross-Appellant filed a statement of questions containing
seven questions. Appellants have now filed a motion to dismiss Questions 5, 6, and 7,
contending that those Questions address Act 250 Criterion 9(E),2 a criterion on which Cross-
Appellant was not granted party status. Appellants assert that because Cross-Appellant did not
secure party status under criterion 9(E), she should not be allowed to assert these Questions in
this appeal. For the reasons stated below, we deny Appellants’ motion to dismiss.
        Appellants correctly state that a party must have party status under a specific criterion
in order to appeal a district commission’s conclusions on that criterion. See 10 V.S.A. § 8504(d)
(establishing the requirements to appeal a district commission’s decision, which include the
granting of party status). Here, the District Commission did not grant Cross-Appellant party
status on Criterion 9(E), and Cross-Appellant has not asked this Court to apply any of the
exceptions to the party status requirement listed in 10 V.S.A. § 8504(d)(2). Thus, if Cross-
Appellant’s Questions 5-7 were limited to Criterion 9(E), this Court would be required to
dismiss them.
       We need not dismiss these Questions, however, because nowhere in Questions 5-7 does
Cross-Appellant specifically mention Criterion 9(E). In fact, Cross-Appellant argues that those
Questions are intended to address Criterion 8, a criterion on which she was granted party status

1   See the Entry Order also issued today addressing the Motion to Dismiss Thomas Ettinger.
2
    Codified in 10 V.S.A. § 6086(a)(9)(E).
Chaves Londonderry Gravel Pit, LLC, No. 60-4-11 Vtec (EO on Mot. to Dismiss Questions) (11-23-11)       Pg. 2 of 2.


by the District Commission. Accordingly, we DENY Appellants’ Motion to Dismiss Questions
5-7 of Cross-Appellant’s Statement of Questions.
       So as to reduce any confusion that our determination today may cause, we note that
Cross-Appellant is specifically restricted from presenting evidence or arguments at trial that are
premised upon Criterion 9(E); her presentations on Questions 5-7 must be restricted to the legal
analysis allowed under Criterion 8.




_________________________________________                                           November 23, 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
