                                        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 Thomas Ettinger (Filing No. 1)
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 8/30/11 by Cross-Appellant Thomas Ettinger
Reply filed 9/9/11 by C. Daniel Hershenson, Attorney for Appellants Chaves Londonderry
   Gravel Pit, LLC and David Chaves


    ___ Granted                  ___ Denied                       X 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 subsequent April 11, 2011 Memorandum of
Decision on Motion to Alter. Thomas Ettinger, individually and as a representative of Riverside
Farm, cross-appeals,1 as does Nancy Kemper.
        Appellants have now filed a motion to dismiss Thomas Ettinger, individually, as a party
to this matter. They contend that he neither requested nor obtained individual party status
before the District Commission, but rather was granted party status solely as a representative of
Riverside Farm. In response, Mr. Ettinger quotes portions of the District Commission’s April
11, 2011 Memorandum of Decision on the motion to alter its original March 4, 2011 Findings
and Conclusions.
       The District Commission’s April 11, 2011 Memorandum of Decision references Mr.
Ettinger’s motion as “a party” in the District Commission proceedings, but the referenced
provisions in no way announced a new party status determination. The only relevant party
status determination announced by the District Commission is that “Thomas Ettinger,
representing Riverside Farm,” was granted party status. Re: Chaves Londonderry Gravel Pit,
LLC, and David Chaves, Findings of Fact and Conclusion of Law and Order, at 4, ¶ 3 (District 2
Envtl. Comm’n Mar. 4, 2011). The District Commission never specifically granted party status
to Mr. Ettinger individually in its April 11, 2011 Memorandum of Decision.

1 We note that the issue before this Court on the Motion to Dismiss is whether Thomas Ettinger is a party
to this action individually or solely as a representative of Riverside Farm. We use both terms here only
because his statement of questions and his cross-appeal address him as such.
In re Chaves Londonderry Gravel Pit, No. 60-4-11 Vtec (EO on Mot. Dismiss) (11-23-11)                   Pg. 2 of 2


       In light of the District Commission’s party status determination, we conclude that Mr.
Ettinger was granted party status only as a representative of Riverside Farm. We are now left to
wonder, given the limited record presently before us in this de novo appeal, what type of entity
Riverside Farm is considered to be.
       The Court is reluctant to announce its determination on Appellants’ pending dismissal
motion until it receives some evidence on the legal status of Riverside Farm. Therefore, the
Court directs that Mr. Ettinger, as representative of Riverside Farm, submit documentation by
no later than Friday, December 9, 2011 addressing the following: Riverside Farm’s status
(corporate, partnership, sole proprietorship, or other); Mr. Ettinger’s position in or relationship
to Riverside Farm; and documentation verifying Mr. Ettinger’s authority to speak on behalf of
and bind Riverside Farm. The Court will thereafter render its final determination on
Appellant’s motion to dismiss.




_________________________________________                                           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
