STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Vermont Unit

Hinesburg Hannaford CU Approval; Docket No. 129-9-12 Vtec 

Hinesburg Hannaford SP Approval; Docket No. 163-11-12 Vtec 

Hinesburg Hannaford Subdivision Revision Docket No. 68-5-14 Vtec 

Aubuchon (FH Plaza) SP Revision 

Application Docket No. 69-5-14 Vtec 

Automotion SP Revision Application Docket No. 70-5-14 Vtec 

Hinesburg Hannaford Wetland 

Determination Docket No. 73-5-14 Vtec 

Hinesburg Hannaford Act 250 Permit Docket No. 113-8-14 Vtec 

Hinesburg Hannaford Water Quality 

Certification Docket No. 114-8-14 Vtec 

Decision on Motions to Strike and Motions for Entry of Judgment and/or Remand 

 The matter before the Court relates to a proposed 36,000 square foot Hannaford 

grocery store and pharmacy with associated parking on Lot 15 of the Commerce Park 

subdivision (the Project) in the Town of Hinesburg, Vermont (the Town). Martin’s Foods of 

South Burlington, LLC (Applicant) is the project developer. This development proposal requires 

multiple state and local use permits and decisions. There are eight coordinated appeals 

pending before the Court involving five municipal decisions, two decisions of the Agency of 

Natural Resources related to wetlands and water quality, and a State Act 250 Land Use Permit. 

The Court has already decided more than a half dozen motions related to these coordinated 
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appeals, the matter is set for trial, and the parties have begun to submit pre-filed testimony. 

This decision addresses four new motions filed by a group of interested persons: Catherine 

Goldsmith; James Goldsmith; Jean Kiedaisch; John Kiedaisch; Chuck Reiss; Sally Reiss; Lindsay 

Hay; Brian Bock; Natacha Liuzzi; Mary Beth Bowman; Wendelin Patterson; Bethany Ladimer; 

Kate Schubart; Michael Sorce; Dark Star Properties, LLC; and Responsible Growth Hinesburg, an 

association of Hinesburg residents (collectively, Appellants). Two of the motions seek to strike 

portions of the pre-filed testimony of a number of Applicant’s witnesses as well as portions of 

some of Applicant’s exhibits. The other two motions, relying in part upon the motions to strike, 

ask for judgment in Appellants favor or, in the alternative, for remand to the bodies appealed 

from. 

Applicant is represented by Christopher D. Roy, Esq.; Appellants are represented by 

James A. Dumont, Esq.; the Vermont Agency of Natural Resources is represented by Leslie A. 

Welts, Esq. and Elizabeth Lord, Esq.; the Vermont Natural Resources Board is represented by 

Peter J. Gill, Esq.; and the Town is represented by Ernest M. Allen, III, Esq. 

I. Motions to Strike 

 Appellants have filed two motions seeking to strike certain portions of the pre-filed 

testimony of Applicant’s witnesses Robert Bast, Michael Willard, Paul O’Leary, David White, 

Adam Crary, and Jeffrey Nelson. The objections fall into two general categories. First, for each 

witness, Appellants object to any testimony regarding the content, meaning, interpretation, or 

application of the legal standards governing the various appeals before the Court. Second, 

Appellants object on hearsay grounds to reference to or discussion of the decisions appealed 

from in these de novo appeals. We address these general categories first and then specifically 

consider each witness’s testimony. 

i. Testimony as to legal standards and ultimate issues to be decided by the Court 

 Many of Appellants’ objections to Applicant’s pre-filed testimony relate to Applicant’s 

expert witnesses’ testimony regarding the local and state regulatory standards applicable in 

reviewing the Project and the opinions of the experts explaining why, in their opinion, the 

project satisfies the requirements. Appellants argue that Applicant’s witnesses may not testify 

as to the requirements or interpretation of a statute or ordinance. Appellants also assert that 
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testimony as to whether a project satisfies a legal standard should be treated the same as 

testimony describing the legal standard itself. Applicant responds that all of its pre-filed 

testimony is relevant in these proceedings and is not otherwise inadmissible, and that 

Appellants’ objections go to the weight of the evidence and not its admissibility. 

 Vermont Rule of Evidence 704 states that “[t]estimony in the form of an opinion or 

inference otherwise admissible is not objectionable because it embraces an ultimate issue to be 

decided by the trier of fact.” The Reporter’s Notes to Rule 704 state that “[t]he purpose of the 

rule is to avoid arbitrary line drawing between ‘ultimate’ and lesser issues that would inhibit the 

natural presentation of testimony which Rules 701 and 702 are intended to secure.” Thus, 

testimony that is “otherwise [a] helpful expression of opinion” should not be excluded simply 

because it coincides with an issue to be decided by the Court. Reporter’s Notes, V.R.E. 704 

(citing Cadel v. Sherburne Corp., 139 Vt. 134, 137 (1980); State v. Norton, 134 Vt. 100, 102–04 

(1976)). Notwithstanding this inclusionary rule, testimony that gives nothing more than a bare 

assertion of an ultimate legal conclusion is inadmissible as it provides no helpful information to 

the fact finder. See V.R.E. 701, 702; see also Riess v. A.O. Smith Corp., 150 Vt. 527, 530–31 

(1988). “On the other hand, where the question involves an ultimate issue, but is not phrased 

in terminology carrying a precise legal definition that may be at variance with the common 

meaning of the terms, the decisions allow it.” Riess, 150 Vt. at 532. 

Related to the prohibition of opinions on the “ultimate issue” is the prohibition on 

witnesses testifying as to what the law is. “As a general rule, a witness may not give his opinion 

on questions of law for the determination of such questions is exclusively within the province of 

the court.” Town of Brighton v. Griffin, 148 Vt. 264, 271 (1987) (internal citation omitted) 

(citing Holton Estate v. Ellis, 114 Vt. 471, 476 (1946)). In Brighton, the Vermont Supreme Court 

upheld the trial court’s exclusion of testimony of a State employee as to the meaning of 

provisions of Title 24 of the Vermont Statutes and the Brighton zoning ordinance. 

Both of these classes of testimony—opinions on the ultimate issue and on questions of 

law—are not relevant or helpful to the Court as they provide no information to assist the 

decision maker, but rather infringe on the Court’s obligation to determine what the law is, both 
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generally and with regard to specific questions before the Court. The complained-of testimony 

here, however, does not fall into either category. 

For example, the testimony of Robert Bast, a registered architect who designed the 

Project building, discusses the provisions of the Hinesburg Zoning Regulations (Zoning 

Regulations or Regulations) that he considered in designing the Project and explains why, in his 

opinion, the Project complies with the Regulations he considered. His testimony relative to 

compliance with Act 250 Criterion 8 is also structured around the analysis known as the 

“Quechee test.” Mr. Bast testifies as to his understanding of the elements of the Quechee test 

in order to testify as to his opinions on whether the Project will have an undue adverse effect 

on the character of the area. Mr. Bast’s testimony does not present to the Court what he 

believes the Quechee test or the Regulations to mean, but rather states the regulatory 

provisions he considered in designing the Project and in rendering his opinion on the Project 

design. Thus, while it is not helpful to hear an expert witness offered for his architectural 

expertise recite the meaning of Act 250 Criterion 8, it is equally unhelpful to draw an arbitrary 

line that says the witness can make no mention of the regulations he considered in designing 

the project, especially since the regulations provide context and structure for his testimony. 

Mr. Bast’s testimony relates to the aesthetic character of the Project and the surrounding areas 

and what he took into consideration in designing the Project. The references in his testimony to 

the regulations do not change this. If Appellants believe Applicant’s witness designed or 

reviewed the Project based on the wrong standards and therefore the Project does not 

conform to the governing regulations, Appellants will have ample opportunity to explore those 

topics through cross-examination. 

ii. Testimony regarding the decisions appealed from. 

Appellants also object to Applicant’s witnesses’ testimony regarding the proceedings 

below on grounds that such testimony is inadmissible hearsay and is irrelevant in these de novo 

proceedings. Appellants’ objection is unavailing. The decisions of the municipal panel, Act 250 

District Commission, or of the Agency of Natural Resources are not being offered for the truth 

of what is asserted in the decisions. Rather, they provide background information on the 

history of the processes appealed from. The Court gives no deference to and is not bound by 
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the decisions appealed from, but rather considers the appeals anew. This review process does 

not make the entirety of the decisions below irrelevant. Nor does it prohibit a witness who was 

involved in proceedings below from testifying as to the application presented below, changes 

from that application to what is now presented in these de novo proceedings, or even the 

substance of the decisions themselves. 

Furthermore, even where a decision is hearsay, this Court is permitted to exercise 

discretion and admit evidence otherwise inadmissible where “it is of a type commonly relied 

upon by reasonably prudent persons in the conduct of their affairs.” V.R.E.C.P. 2(e)(1). The 

documents submitted as part of the proceedings below, testimony relative to what happened 

at those proceedings, and stray references to the decision appealed from in the testimony of 

Applicant’s expert witnesses will not be excluded. The decisions provide helpful background 

and context for the proceedings and tend to show how the Project design has been altered in 

response to criticisms. The prior decisions and testimony about them are admissible for this 

purpose. 

iii. Specific objections to the testimony of certain witnesses 

a. Robert Bast 

Appellants’ motion to strike the testimony of Applicant’s architect, Robert Bast, is 

generally resolved by the discussion above. The Court has reviewed his testimony and finds 

that his references to the zoning regulations and to Act 250 Criterion 8 are not offered to tell 

the Court what those standards mean or even that they apply to the Project, but only that they 

are what Mr. Bast considered in designing the project. References to those standards are 

necessary context for his opinions. Appellants argue that Mr. Bast may have an incorrect 

assessment of what the standards mean, and therefore, he should not be allowed to testify that 

the Project complies. Such concerns are more appropriate for cross-examination and are not 

grounds to strike testimony. Additionally, Appellants argue that Mr. Bast is not qualified to 

testify as to the content or meaning of the “Quechee test,” as he has not read the Quechee 

Lakes decision and has no specialized knowledge on applying the test. This argument 

fundamentally misses the point of Mr. Bast’s testimony. Mr. Bast does not testify as to what 

the test is, where it came from, or even how the Court should apply it. He only uses its very 
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common framework to structure his otherwise helpful and admissible opinions. The motion to 

strike the testimony of Robert Bast is therefore DENIED. 

Appellants also object to Exhibit 26, a memorandum prepared by Mr. Bast summarizing 

the ideas generated during a public meeting on the Project design, on hearsay grounds. The 

memorandum, however, is not being offered for the truth of the matter but for its effect on Mr. 

Bast as he worked on the Project design. The motion to strike Exhibit 26 is DENIED. 

b. Michael Willard 

Michael Willard is Applicant’s landscape architect who prepared or provided oversight 

for the landscaping and lighting plan, sheet L1 of Hannaford Exhibit 4. Appellants again object 

to Mr. Willard testifying that the Project landscaping complies with the Landscaping Plan & 

Standards provision in the Hinesburg Zoning Regulations. See Hinesburg, Vt., Zoning 

Regulations § 4.3.8 (2014). It is helpful to the Court to have Mr. Willard testify as to what 

landscaping elements are proposed for the Project and how, in his opinion, those elements 

satisfy the requirements of the Regulations. While the ultimate issue of compliance must be 

determined by the Court, Mr. Willard’s testimony does not provide grounds for objection 

simply because it embraces this ultimate issue. V.R.E. 704. Testimony as to compliance, with 

nothing more, would be unhelpful. But, where the witness fully describes how and why he 

formed his opinion that the Project complies with the regulations, the testimony provides the 

Court with useful information and will not be excluded. 

Appellants also move to strike Mr. Willard’s testimony related to Act 250 Criterion 8 for 

the same reasons they object to Mr. Bast’s testimony, and the Court denies the motion for the 

same reasons. The motion to strike the testimony of Mr. Willard is DENIED. If Appellants 

disagree with the opinions of Mr. Willard or the methodology he used in forming those 

opinions, they will have an opportunity to challenge the opinions through cross-examination. 

c. Paul O’Leary 

Appellants’ first objection to the testimony of Mr. O’Leary relates to the use of a 

neighboring property as part of the Project’s stormwater management system. This issue has 

been withdrawn by the Appellants as Applicant has altered the stormwater plan to eliminate 

this issue. 
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Appellants also move to strike essentially all of Mr. O’Leary’s testimony on the grounds 

that his “opinions and conclusions are irrelevant and lack necessary foundation because his 

Hydrocad modeling relies upon use of Town of Hinesburg property for placement of 300 feet of 

drainage pipe – but Hannaford possesses no agreement with or deed from the Town allowing 

this use of its land, and no such agreement or deed can be provided in the future.” (Mot. to 

Strike at 16, filed Jun. 11, 2015). The fact that Applicant may need future authorization for 

construction of part of the stormwater management system does not mean the Court cannot 

review, consider, deny, or grant approval conditioned on that future authorization. The Court 

addressed a similar argument made by Appellants in its March 4, 2015 decision. Appellants 

contend that, based on their interpretation of the governing statute, 19 V.S.A. § 1111, Applicant 

cannot obtain approval for the use of the Town highway to install the drainage pipe. First, as 

discussed below in Section IV, the Court disagrees with Appellants’ reading of section 1111. But 

more importantly, even if it were impossible for Applicant to obtain permission for its necessary 

stormwater pipe under section 1111, that does not in any way prevent this Court from making 

the legal determination that the Project as proposed either does or does not comply with State 

and municipal regulations, and it certainly does not make the otherwise admissible testimony 

of Applicant’s engineer inadmissible. 

The remaining objections to Mr. O’Leary’s testimony fall into the general categories 

discussed above. Mr. O’Leary’s testimony as to what regulations he believes govern review of 

the Project are not admitted for the truth of the matter, but rather to establish what he 

considered in designing and reviewing the project and to structure his testimony. His 

references to the proceedings below are likewise provided to add context, describe the effect 

of those proceedings on the project design, and to structure his testimony. The motion to 

strike the testimony of Mr. O’Leary is DENIED. 

d. David White 

Appellants first move to strike the entirety of Mr. White’s testimony because he will be 

paid a contingency fee for his testimony based on the outcome of the case. This argument is 

unsupported by the facts offered by Appellants. In his deposition, which was provided in 

support of this motion to strike, Mr. White testified that he has been and will continue to be 
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paid hourly for his work. His associate, Mr. Burke, who assisted with locating and purchasing 

the subject property, will be paid a brokerage when all permits are received and the appeal 

time concluded, and another when the store opens. This is not, as Appellants argue, Mr. White 

being paid to testify in court on a contingency basis. Furthermore, Mr. White’s opinions are 

based on plans and reports he created over his many years working on this project, and the 

Court sees no risk that his testimony will in any way be influenced by the brokerage fee to be 

paid to his partner, and therefore, no reason to exclude his testimony on this basis. If 

Appellants wish to cross-examine Mr. White regarding his compensation and any changes to his 

opinions relative to the Project, they are free to do so at trial. 

The majority of Appellants’ remaining objections to Mr. White’s testimony fall into the 

categories already discussed. Mr. White’s opinions provide context, background, and structure 

to his otherwise admissible testimony regarding the Project design. 

Appellants also argue that Mr. White is not qualified to testify regarding the adequacy of 

the stormwater system, traffic safety issues, or visual aesthetic impacts of the project, as 

insufficient foundation has been laid for his qualifications as an expert regarding these issues. 

Mr. White has over thirty years of experience in real estate development in Vermont, including 

experience as a city planner and as a project manager. His work includes overseeing architects, 

engineers, landscape architects, traffic experts and the like. He has played a significant role in 

the design of this Project as it relates to the very issues Appellants argue he is unqualified to 

testify about. Appellants’ arguments go to the weight and not the admissibility of Mr. White’s 

testimony. Applicant has met the burden of establishing sufficient experience, education, and 

personal knowledge of the Project plans to qualify Mr. White to testify regarding all elements of 

the Project design. 

Appellants further object to Mr. White’s testimony regarding visual simulations created 

using a program called “PepperChrome.” They argue that Applicant has not laid sufficient 

foundation because Mr. White does not know if the person who created the simulations is a 

landscape architect, is unaware of the person’s credentials, and has only spoken with the 

person over the telephone. Mr. White’s testimony does establish that the PepperChrome 

simulations are based on actual photographs of the site (which he took) and computer-aided 
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drafting (CAD) plans of the proposed development (with which he is familiar). The result, he 

testifies, is a highly accurate representation of what the developed lot will look like. Sufficient 

foundation has been laid for admission of the PepperChrome simulations and Mr. White’s 

testimony regarding them. The motion to strike Mr. White’s testimony is DENIED in full. 

e. Adam Crary 

Appellants object to certain testimony of Adam Crary, a senior wetland scientist, 

regarding the Project’s impacts on wetlands. Appellants again object that Mr. Crary cannot 

testify as to the State and federal legal standards that govern classification and protection of or 

development within a wetland. Here again, his testimony as to what regulatory provisions he 

considered is helpful to structure his otherwise admissible testimony, and is therefore not 

objectionable. See V.R.E. 704. Appellants also object to his testimony about the 

hydrogeological function of wetlands as he is a wetlands biologist. Mr. Crary has, however, 

established sufficient experience and education to qualify him to testify regarding the functions 

of wetlands, including hydrogeological functions. Appellants will have an opportunity to crossexamine Mr. Crary regarding his conclusions as to those functions and the basis for those 

conclusions. 

Appellants also object to testimony regarding permits issued by and correspondence 

from the Vermont Agency of Natural Resources and the United States Army Corps of Engineers. 

These documents and Mr. Crary’s testimony are admissible to establish the history of the 

regulatory proceedings and how Applicant responded to the correspondence. Such permits 

and related agency correspondence are commonly relied upon by developers and interested 

parties and they are therefore admitted. The motion to strike Mr. Crary’s testimony is 

therefore DENIED. 

f. Jeffrey Nelson 

Appellants object to the testimony of Mr. Jeffrey Nelson, a hydrologist and 

hydrogeologist who testified regarding the stormwater treatment and management system and 

other water-related impacts of the Project. Appellants move to strike all of Mr. Nelson’s prefiled testimony on the same grounds on which they objected to Mr. O’Leary’s testimony: 

because the stormwater management system relies on the use of an as yet unapproved pipe 
10 

along the Town highway, the Project cannot be approved. For the reasons describe above, the 

motion to strike is DENIED. The remaining motions to strike Mr. Nelson’s testimony also 

overlap with the objections discussed above and are also DENIED for the same reasons. 

II. Motion for Judgment Regarding Parking 

 Appellants have moved for judgment in their favor based on the facts presented in 

Applicant’s pre-filed testimony pursuant to Vermont Rules of Civil Procedure 52 and/or 56. 

Appellants argue that because the Project proposes parking in the front yard in violation of the 

Regulations, the application should be denied. Applicant asserts that there is no parking 

proposed in the front yard, and therefore, Appellants are not entitled to judgment. 

 The applicable provision of the Regulations states: 

“Parking and loading areas for any new structures shall be located in the side or rear 

yards of the structure. Where sufficient screening is provided, and with Development 

Review Board approval, up to 20% of the total number of parking spaces may be located 

in the front yard of the structure.” 

Hinesburg, Vt., Zoning Regulations § 5.6.3 (2014). The Regulations define “Yard, Front” as “[a] 

yard on the same lot with a principal building, extending the full width of the lot and situated 

between the centerline of the street or right-of-way and the front line of the building extending 

to the side lines of the lot.” Id. § 10.1. Here, the lot is bordered to the southeast and east by 

Mechanicville Road. Northerly access is provided by way of a right-of-way to Commerce Street. 

Apart from the access road, the lot does not border on Commerce Street; rather, there are 

several properties and existing structures that separate the lot from Commerce Street. The 

northern side of the lot nearest to Commerce Street is not the front yard. Thus, based on the 

evidence thus far presented, the area between the building and the lot line bordering 

Mechanicsville Road would be the “front yard.” 

While some confusion is created by the reference to the “front line of the building” in 

the definition of “Yard, Front,” the Court understands section 5.6.3 to be intended to prohibit 

large parking areas between a building and a travelled roadway. Thus, whichever side of the 

building faces the roadway is considered the “front line of the building” for the purposes of 

defining the front yard. To hold otherwise would lead to an absurd result. Appellants argue the 

common understanding of the “front” of a building would be the side providing access to the 
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building and having signage. Where, as here, the regulations prohibit locating parking in the 

“front yard,” it makes little sense to locate the building entrance on a different side of the 

building than the parking. Where the parking is located on the opposite side of the building 

from the travelled road way, the entrance can be located on the same side without converting 

that side into the “front yard.” Thus, based on the plain language of the Regulations and the 

evidence before the Court, Appellants are not entitled to judgment regarding compliance with 

the parking regulations. The motion is DENIED. 

III. Motion for Judgment on Act 250 Criteria 8 and 9(K) and Act 250 Rule 34(E) 

 Appellants have also moved for judgment in their favor on Act 250 Criteria 8 and 9(K), 

arguing that if their motions to strike are granted, Applicant would fail to meet its burden of 

production as to those criteria. As the motions to strike are denied, and as Applicant has 

submitted significant testimonial and documentary evidence to the Court thus far, the motion 

for judgment is DENIED. 

 Appellants also argue that Applicant has failed to provide any testimony relative to Act 

250 Rule 34(E), also known as the Stowe Club Highlands test, and they are entitled to judgment 

as a matter of law on that issue. Rule 34(E) prohibits the amendment of an Act 250 permit 

condition that was critical to the issuance of the initial permit where the Court determines that 

finality of that condition outweighs any flexibility in the permitting process. Applicant argues 

that, based on the language of the prior Act 250 permit and the Project description, the Court 

could conclude that the Project does not seek to amend any permit condition that was critical 

to issuance of the permit and therefore Rule 34(E) does not apply. Based on Applicant’s 

assertions, the Court cannot conclude at this time that Appellants are entitled to judgment on 

the Rule 34(E) issue. The motion is DENIED. 

IV. Motion to Dismiss the Application for Failure to have the Town as a Co-Applicant

 Appellants move to dismiss the appeal because the Town did not sign the Act 250 or 

municipal applications and has not appeared as a co-applicant. 

The Court’s understanding at this preliminary stage is that the Town is not the owner of 

involved land; it rather owns a right-of-way. Furthermore, Applicant does not need an 

easement or property interest for the proposed stormwater pipe, but rather a permit to use the 
12 

highway pursuant to 19 V.S.A. § 1111(c). Subsection 1111(c) authorizes town selectboards to 

issue permits for the installation of “pipes and wires” under town highways. Subsection 

1111(d) authorizes the State Agency of Transportation to issue permits for private “sewer or 

water lines” in public highways. Appellants’ primary contention is that the stormwater pipe is a 

“sewer line,” see 24 V.S.A. § 3501 (defining “sewage”), and that, because subsection (d) gives 

the State Agency of Transportation the right to issue a permit for sewer lines but makes no 

reference to municipal approval for sewer lines, a municipality cannot grant approval for a 

stormwater pipe. This interpretation ignores the plain “pipes and wires” language of 

subsection (c)—language that is broad enough to encompass sewer lines—and would lead to 

irrational results. If the Court were to accept Appellants’ interpretation of the statute, no 

private party in the State of Vermont could obtain permission to place a culvert or other 

stormwater conveyance within a municipality-owned right-of-way. This runs contrary to 

common sense and longstanding practice, and we therefore reject this interpretation. 

Thus, Applicant does not need any property interest in the Town-owned right-of-way, 

but rather only a permit to place a drainage pipe. Further, as the Town is not the owner of 

involved land, it need not have signed the application or be a co-applicant. For all the reasons 

discussed above, the Court retains jurisdiction to hear the Act 250, municipal, and State permit 

appeals now before the Court. If Applicant needs additional permits or approvals, those 

proceedings are beyond the scope of the Court’s current reviews. The motion to dismiss is 

therefore DENIED. 

V. Motion for Judgment Regarding Conditional Use Review

 The proposed grocery store is a permitted use within the commercial district where it is 

located. It does not, therefore, need to go through conditional use review. The grocery store 

must, however, comply with the prescribed hours of operation for commercial or industrial 

uses within the commercial district. Section 4.3.6 of the Zoning Regulations states that “[n]o 

commercial or industrial use shall operate outside the hours of 6:00 a.m. to 10:00 p.m. without 

the conditional use approval of the Development Review Board.” Applicant seeks approval for 

interior cleaning and re-stocking work outside of the hours of 6:00 a.m. to 10:00 p.m. 

Appellants argue that the entire project must meet all conditional use criteria, and review is not 
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limited to the issue of whether the additional hours of operation alone are allowed. The Court 

disagrees. 

Section 4.3.6 allows the Development Review Board to allow a commercial use to 

operate outside the stated hours, provided the applicant can satisfy the Board that certain 

adverse impacts will not result from the extended hours. Nowhere does section 4.3.6 indicate 

that the otherwise permitted use shall be treated as a conditional use because the use will 

operate until 10:30 p.m. instead of 10:00 p.m. To the extent this section can be read to mean 

what Appellants’ suggest, the regulation is ambiguous and we are directed by law to resolve all 

ambiguities in favor of the landowner. In re Weeks, 167 Vt. 551, 555 (1998) (citations omitted). 

As Applicant has provided testimony relative to approval for the extended hours, Appellants’ 

motion for judgment on that issue is DENIED. 

Conclusion

 Appellants’ two motions to strike are DENIED. Based on the testimony and 

documentary evidence presented to the Court thus far, the Court cannot say that Appellants 

are entitled to judgment as a matter of law on any issue raised in this appeal. The two motions 

for judgment and/or remand are DENIED. 

ON SEPTEMBER 9 PARTIES FILED A LETTER EXPRESSING THE INTENT TO FILE 

ADDITIONAL MOTIONS TO STRIKE CERTAIN PRE-FILED TESTIMONY AND RESPONSES THERETO. 

THE COURT ENCOURAGES THE PARTIES TO CONSIDER THE ABOVE DECISION AND EXCERSIZE 

RESTRAINT WITH RESPECT TO THE FILING OF ADDITIONAL PRE-TRIAL MOTIONS. 

Electronically signed on September 16, 2015 at 12:09 PM pursuant to V.R.E.F. 7(d). 

_________________________________________ 

Thomas G. Walsh, Judge 

Superior Court, Environmental Division