1 STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

} In re Rinkers, Inc., d/b/a } Rinkers Communications, and } Docket No. 302-1 2-08 Vtec Beverly and Wendell Shepard } (Appeal of Shaw, et al .) } }

Decision and Order on Motion for Reconsideration

Appellants Karen Shaw, Forrest Foster, Joe McCarthy, J o-Anne McCarthy, Katherine Mitchell, and David Mitchell appealed from a decision of the District 7 Environmental Commission issuing Act 250 Land Use P ermit No. 7C1219-2 to Appellee-Applicant Rinkers, Inc., d/b/a Rinkers Commu nications (Rinkers), as well as to landowners Beverly and Wendell Shepard, who have no t entered an appearance in this appeal. Heather Bryant was granted “friend of the commission” status by the District

Commission and retained that status as amicus curiae in the present appeal. Rural Newco, LLC, d/b/a AT&T Mobility (AT&T) also was given leave to participate in this appeal as amicus curiae

. Appellants and Ms. Bryant are represented by Jared M. Margolis, Esq.; AppelleeApplicant Rinkers is represented by L. Brooke Dingl edine, Esq.; AT&T is represented by William J. Dodge, Esq. and Charlotte B. Ancel, Esq . The Land Use Panel of the Natural Resources Board did not enter an appearance in this matter, but has informational status through Melanie M. Kehne, Esq.; the Vermont Agency of Natural Resources did not enter an appearance in this matte r, but has informational status through Judith Dillon, Esq. On May 17, 2010, the Court issued a decision and orde r resolving the merits of this appeal. In re Rinkers, Inc. , No. 302-12-08 Vtec (Vt. Envtl. Ct. May 17, 2010). The2

only issue addressed in the decision was whether “t he proposed project will or will not

have an undue adverse effect on aesthetics” under A ct 250 Criterion 8, 10 V.S.A. § 6086(a)(8). In re Rinkers , No. 302-12-08 Vtec, slip op. at 10. The Court conc luded that the proposed tower “will not have an undue adverse effect on aesthetics,” and therefore held that the project satisfied Act 250 Criterion 8 . Id . at 24, 26. Accordingly, the Court granted Act 250 Land Use Permit No. 7C1219-2 to App licants and remanded the case

back to the District 7 Environmental Commission “so lely for the purpose of completing the ministerial act of issuing the Act 250 [permit] .” Id . at 26. Appellants have now filed a Motion for Reconsiderat ion of the Court’s May 17, 2010 decision under V.R.C.P. 59(e).

Standard Applicable to a Motion for Reconsideration or to Alter or Amend a Judgment Vermont Rule of Civil Procedure 59(e), which is subs tantially identical to Federal Rule 59(e), “gives the court broad power to alter or amend a judgment on motion within ten days after entry thereof.” Drumheller v . Drumheller , 2009 VT 23, ¶ 28, 185 Vt. 417 (quoting V.R.C.P. 59, Reporter's Notes). Ru le 59(e) is a codification of the trial court's “inherent power to open and correct, modify, or vacate its judgments.” Id

. (citing West v. West , 131 Vt. 621, 623 (1973)). Although there is no spe cific authorization in the civil rules or the rules appli cable to the Environmental Division for a motion to “reconsider” a judgment, such motions ar e also treated as motions to amend or alter a judgment under V.R.C.P. 59(e). Ap peal of Berezniak , No. 171-9-03 Vtec, slip op. at 3 (Vt. Envtl. Ct. Apr. 6, 2007) (Wr ight, J.). A Rule 59(e) motion “allows the trial court to revi se its initial judgment if necessary to relieve a party against the unjust ope ration of the record resulting from the

mistake or inadvertence of the court and not the fa ult or neglect of a party.” Rubin v. Sterling Enterprises, Inc. , 164 Vt. 582, 588 (1996) (citing In re Kostenblatt , 161 Vt. 292, 302 (1994)). More specifically, the limited functio ns of a motion to alter or amend a3

judgment are “to correct manifest errors of law or fact on which the decision was based, to allow the moving party to present newly discover ed or previously unavailable evidence, to prevent manifest injustice, or to respon d to an intervening change in the controlling law.” In re Vanishing Brook Subdivisio n , No. 223-10-07 Vtec, slip op. at 4 (Vt. Envtl. Ct. July 10, 2008) (Wright, J.) (quoting 11 Wright, Miller, & Kane, Federal Practice and Procedure: Civil § 2810.0 (2d ed. 1995 )); see also Appeal of Van Nostrand , Nos. 209-11-04 & 101-5-05 Vtec, slip op. at 4 (Vt. E nvtl. Ct. Dec. 11, 2006) (Durkin, J.). Rule 59(e) should not be used to “relitigate old ma tters” or “raise arguments or present evidence that could have been raised prior to entry of the judgment,” id ., and mere disagreement between the moving party and the court is not grounds for

reconsideration. In re Boutin PRD Amendment , No. 93-4-06 Vtec, slip op. at 1–2 (Vt. Envtl. Ct. May 18, 2007) (Wright, J.).

Motion for Reconsideration Appellants ask the Court to alter its holding that while “Applicants have not taken mitigating steps to reduce the height of the proposed tower,” Applicants have “tak[en] generally available mitigating steps to re duce the negative aesthetic impact of [the proposed] project” under the Quechee Lakes test. In re Rinkers , No. 302-12-08 Vtec, slip op. at 19–20. Appellants argue that the Court erred in finding that “Applicants ha[d] shown that reducing the height of the tower would frustrate both the project’s purpose of providing coverage in all dire ctions and [would frustrate] the Town Plan’s preference for co-location of such services rather than the proliferation of towers,” and that therefore a reduction in the heig ht of the tower was not a “reasonably available” mitigating step. Id . at 20–21. Appellants argue that the “evidence demonstrated that the height of the tower could rea sonably be reduced [to 100 feet] to mitigate the aesthetic impacts of the Project while still providing sufficient coverage.” Appellants’ Motion for Reconsideration, at 2–3 (May 27, 2010).4

Upon determining that the proposed tower would have an adverse impact on the aesthetics of the area the Court employed the three part second step of the Quechee

Lakes analysis to determine if that impact was undue. I n re Rinkers , No. 302-12-08 Vtec, slip op. at 5. Under the third part of that a nalysis the Court examined “whether Applicants have ‘failed to take generally available mitigating steps that a reasonable person would take to improve the harmony of the pro posed project with its surroundings.’” In re Rinkers , No. 302-12-08 Vtec, slip op. at 19 (quoting In re T imes &

Seasons , 2008 VT 7, ¶ 8, 183 Vt. 336). For a mitigating step to be considered “generally available” it must be reasonably feasible and canno t frustrate either the purpose of the project or the goals of Act 250. Id . (citing In re Stokes Commc’ns Corp. , 164 Vt. 30, 39 (1995)). The Court determined that while “Applican ts [did] not take[] mitigating steps to reduce the height of the proposed tower from the maximum height permitted” they demonstrated “that reducing the height of the tower would frustrate both the project’s purpose . . . and the Town Plan’s preference for co -location of [wireless] services.” In re

Rinkers , No. 302-12-08 Vtec, slip op. at 20. Appellants argue that the record does not support t he Court’s finding on either

of these issues. Motion for Reconsideration at 2–4 . Instead of the height of 180 feet approved in the municipal proceedings, as well as in this Act 250 decision, Appellants

claim that a tower of 100 feet is sufficient to sat isfy the wireless purposes of Applicants.

Id . Appellants point to their own Supplemental Propo sed Conclusions of Law at 13–15, as well as to the October 27 testimony of Mr. Rinke r and Mr. Breuer, and to AT&T exhibits GG and II and Rinkers exhibits 10 and 29, in support of their argument that a shorter tower would not frustrate the purposes of R inkers or AT&T and would still provide “enough space to accommodate the actual num ber of collocated users that the Applicant expects.” Id . at 5. Appellants characterize the Court’s conclu sion as having

been based on a “manifest error of fact” derived fr om the “unsupported and incorrect”5

testimony of Mr. Rinker. Appellants’ Response to A pplicants’ Opposition to Appellants’ Motion for Reconsideration, at 3 (June 1 8, 2010). In a non-jury trial such as this one, it is the resp onsibility of the trial judge not only to determine the credibility of witnesses but also to weigh the persuasive effect of all the evidence. In re Route 103 Quarry , 2008 VT 88, ¶ 4, 184 Vt. 283; see also Estate of George v. Vermont League of Cities and Towns , 2010 VT 1, ¶ 36. The Court has fully reviewed the documentary eviden ce and its notes as to the testimony of each of the witnesses who addressed th e issue of the adequacy of the tower height, and declines to alter its decision on this point. Although the evidence of course was conflicting on this issue, the Court’s de cision is supported by the evidence presented. Appellants also argue that “to the extent that the Court’s findings regarding the need for a 180 foot tower may be based on the heigh t of the trees surrounding the proposed project” the evidence does not support the Court’s conclusions regarding the height of the trees. Motion for Reconsideration at 5–6. Appellants are correct that Rinkers’ exhibits 9 and 36 show both the actual height of certain trees at or near the Shaw boundary and t heir height relative to the tower base, and that, as of 2009, the tallest of those specific t rees was 68 feet in height, that is, that the 85-foot-height quoted in the decision already h ad been adjusted to reflect the height relative to the base of the proposed tower. Howeve r, the height of the trees was only used in the portion of the Court’s decision, under t he heading of “Location within the project property” at p. 20, that concluded that, “wi thin the project property itself, Applicants have taken generally available mitigatin g steps to locate the tower to improve its harmony with its surroundings.” On thi s point, regardless of the thencurrent height of the trees as of the time of trial , evidence was presented to the Court that the trees near the tower location, depending up on their direction from the tower base, included trees that ranged from approximately 50 feet to as much as 90 feet in6

height, and that some were of species that could rea ch 100 feet in height at maturity. That portion of the Court’s decision was not based on the current height of those specific trees, but instead on the anticipated heigh t of the trees at maturity, relative to the proposed tower. Accordingly, the Court declines to alter its decision due to the error that the 85-foot height already included the relative height adjustment. By contrast, the portion of the Court’s decision tha t concluded that reducing the height of the tower is not a mitigating measure rea sonably available to Applicants did not depend on the current height of the surrounding trees, but was based on the evidence regarding the height needed to propagate t he users’ signals in all directions over surrounding topography, not solely into the cen ter of Hardwick Village, and to facilitate the co-location of present and potential tower users. Accordingly, the Court also declines to alter its decision on this point.

Based on the foregoing, it is hereby ORDERED and ADJ UDGED that Appellants’

Motion for Reconsideration is DENIED.

Done at Berlin, Vermont, this 20th day of October, 20 10.

________________________________________________ _ Merideth Wright Environmental Judge