Durham Select Board approves consent agreement for Jaden pit after adding heavy‑truck restriction on Rabbit Road

The Durham Select Board voted to approve an administrative consent agreement resolving alleged unpermitted excavation at the Jaden pit, after adding a requirement that the property owner bar its own vehicles with a registered gross vehicle weight over 23,000 pounds from using Rabbit Road.

The change to paragraph 7 followed public comment from nearby residents and a motion from a board member to remove ambiguous language about Truck access. Emma Fuller, attorney for the property owner, told the board her client consents to the revised language. Town counsel Grama Lewis confirmed the board may add noise or traffic requirements as conditions of the agreement.

Why it matters: Neighbors had urged the board to reject the settlement, arguing the $15,000 fine in the agreement is small relative to the estimated economic value of material removed during the unpermitted expansion and that the agreement omits adequate protections for buffer strips, revegetation and traffic safety. Joe Keith, who identified himself as a nearby resident, told the board “the current fine levied in the agreement is $15,000” and argued that amount “doesn’t sort of stack up to the economic benefit obtained,” calling it “the cost of doing business” if left unchanged.

Board and staff discussion focused on enforcement, remediation and practical limits to what the select board can require. Town staff and counsel explained the agreement pairs the $15,000 fine with required reclamation work and a performance security intended to ensure remediation. Counsel said a performance bond (discussed in the meeting at about $100,000) would fund remediation if the operator did not complete required work; the exact bond amount could be adjusted based on remediation cost estimates.

Traffic and safety also drove the debate. Residents and board members asked for a clear prohibition of heavy through‑trucks on Rabbit Road. The board amended paragraph 7 to read that the property owner “will bar any of its vehicles with a gross vehicle weight registered that exceeds 23,000 pounds from using Rabbit Road,” and added that the owner will request that contractors refrain from using the road. The amendment passed after the operator’s counsel confirmed client consent.

On legal fees and penalties, board members pressed whether the fine should cover town legal costs. The board discussed language to require the operator to reimburse town legal fees up to a cap; that proposal was debated and then revised to focus on legal fees accrued up to execution of the agreement. Board members ultimately decided further negotiation with counsel was appropriate before finalizing additional fee language.

The agreement also directs reclamation measures flagged by DEP and the town’s staff, including revegetation in specified buffer areas and fixes near streams. Staff (Calvin) reviewed the plan and DEP’s observations and pointed to mapped areas the DEP has required to be replanted.

Next steps: The board approved the administrative consent agreement as modified and returned the document to counsel for signatures and execution. The planning board will separately review permitting for Lot 60A if the operator pursues expansion, and neighbors were encouraged to follow that public process. The select board asked staff to ensure maps and flagged revegetation areas are double‑checked and to report back on compliance and enforcement timelines.

The decision followed public comment urging delay until missing enforcement records and noise/traffic studies were released; the board asked residents to submit written comments and said it will monitor implementation of the remediation and traffic provisions.