1 The City is not the appellee in this matter and i s not responsible for any of the costs

sought by Appellant.

1 STATE OF VERMONT

ENVIRONMENTAL COURT

} In re Appeal of Berezniak } Docket No. 171-9-03 Vtec (Application of Wager) } }

Decision and Order on Motion to Reconsider re Post-Judgment (Post-Appeal) Costs Appellant David Berezniak appealed from a decision of the Development Review Board (DRB) of the City of Burlington regarding App ellee-Applicants John and Dena Wager’s application to modify the existing Burgess Electric Building and to construct a new 27-unit affordable housing apartment building elsew here on the same property, with associated site improvements. Appellant is represe nted by Norman Williams, Esq., who also represents nineteen intervenors; Appellee-Appl icants are represented by Carl H. Lisman, Esq.; and the City 1 is represented by Kimberlee J. Sturtevant, Esq.
After trial the Court issued a decision and entered judgment in Appellee-Applicants’ favor on certain aspects of their proposal, but den ied their application because of issues regarding parking for both buildings, on-site circu lation, and design features of the front of the proposed apartment building. Appellee-Appl icants appealed that decision to the Supreme Court; the appeal was later dismissed, withleave for Appellant to seek costs and expenses in this Court.

On November 3, 2006, this Court issued a Decision and Order (the 2006 Costs Order) awarding Appellant the filing fee (then $150), as w ell as his costs and expenses related only2 Appellant’s Statement of Questions contains five numbered paragraphs, raising

issues as to 1) density, 2) dimensional requirement s of setbacks and lot coverage, 3) parking, 4) design, and 5) enlargement of non-confo rming use resulting in greater noncompliance with dimensional or parking requireme nts.

2 to the issues on which he had prevailed: Question 3 of his Statement of Questions 2 related to parking, the portion of Question 4 related to lac k of harmonious design of the front of the new apartment building, and the portion of Ques tion 5 related to the issue of increased noncompliance with the required parking. In the 2006 Costs Order, the Court determined that A ppellant was a “prevailing party” and sought to award Appellant costs on the i ssues upon which he prevailed, citing V.R.C.P. 54(d)(1); Peterson v. Chichester , 157 Vt. 548, 553 (1991); and see Patch v. Lathrop , 116 Vt. 151, 154 (1950) (costs awarded to defendant on counterclaim on which defendant had prevailed), and reasoning as follows:

The determination of who is the “prevailing party” for the purposes of Rule 54 is committed to the sound discretion of the trial court, Jordan v. Nissan N. America, Inc. , 176 Vt. 465, 473 (2004). We apply the same sort of ‘functional analysis’ used by the Supreme Judicial Court of Maine in analyzing the identical Maine rule. Landis v. Hann aford Bros. Co. , 2000 ME 111, ¶6; 754 A.2d 958, 959–960 (Me. 2000). The fac t that no damages or other monetary award was at issue does not necessarily pr eclude a determination that a particular party has prevailed. Ibid , at ¶7, 960. Rather, “to be the prevailing party, one must prevail on a significantissue in the litigation and achieve some of the benefits sought by the litigati on.” Board of County Comm’rs v. Crystal Creek Homeowners Ass’n, 891 P.2d 981, 984 (Colo. 1995) (regarding applications for decrees determining con ditional water rights). With respect to deposition expenses, the 2006 Costs Order awarded Appellant his costs related to the depositions of Thomas Adler, William Nedde, Michael Richardson, and William Maclay, but only to the degree that such co sts related to the issues upon which Appellant prevailed, as discussed above. The 2006 C ourt Order also ruled that the costs3 Rather, his memorandum, at page 5, described the tas k as requiring “hours of

effort” not warranted by the total amount of costs sought.

3 attributable to the depositions of Ann Vivian, Kenn eth Lerner, and Brian Pine had to be denied on the basis of the insufficiency of informa tion provided in memoranda and affidavits then filed by Appellant. The 2006 Cost s Order suggested that if the “attendance and mileage” witness fees for Thomas Adler and Ann Vivian pertained to the trial, then they “may be recoverable as costs to the extent tha t they relate to the issues on which Appellant prevailed at trial.” The 2006 Costs Order allowed the parties to file anagreed calculation of costs on the basis of that decision, prorated by any method on w hich they could agree, (including the number of transcript pages or the amount of trial t ime spent on the respective issues), or, if they could not agree, allowed Appellant to file a revised Affidavit containing his proposed calculations and providing a proposed cour t order. Appellant moved to reconsider the 2006 Costs Order and, in the alternative, filed a revised affidavit including further detail related to his claims for certain expenses. He did not propose any allocation or calculation of the ex penses 3 based on the concepts explained
in the 2006 Costs Order. Although there is no explicit basis in the civil ru les for a motion to “reconsider” a decision, such motions are treated as motions to al ter or amend a judgment under Vermont Rule of Civil Procedure 59(e) (allowing “the trial court to revise 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.”). See Office of Child Support, ex rel. Stanzione v. Stanzione , 2006 VT 98, ¶5. Rule 59(e) relief is, however, an “extraordinary” remedy that should be u sed “sparingly” and the decision whether to grant relief lies within the discretion of the trial court. 11 Wright, Miller &4In full, V.R.C.P. 54(d)(1) states: “Costs other th an attorneys’ fees shall be allowed

as of course to the prevailing party, as provided by statute and by these rules, unless the court otherwise specifically directs.”

5 Idaho has made this concept explicit in its Rule o f Civil Procedure 54(d), which states that a judge “may determine that a party to an action prevailed in part and did not prevail in part, and thus the [j]udge may apportion the costs between and among the parties in a fair and equitable manner after consid ering all of the issues and claims involved in the action and the resultant judgment or judgmen ts obtained.”

4 Kane, Federal Practice and Procedure: Civil 2d § 281 0.1, as found on Westlaw; see Rubin v. Sterling Enterprises, Inc. , 164 Vt. 582, 588 (1996) (citing In re Kostenblatt, 161 Vt. 292, 302 (1994)). Appellant argues that it was error for the Court to determine the issues on which Appellant prevailed and did not prevail and to awar d him his costs accordingly. Rather, Appellant seeks a ruling that he is entitled to cos ts even as to issues on which he did not prevail, because Appellee-Applicants’ project was n ot approved. Appellant’s interpretation of V.R.C.P. 54(d) would, however, comp letely make surplusage of the last clause of the rule, which gives courts discretion in determining whether and in what manner to award costs. V.R.C.P. 54(d)(1). 4 The discretion given to the trial court under V.R.C .P. 54(d)(1) is broad and contemplates both the award of costs to a prevailin g party entirely, and the award of costs to a prevailing party only on the issues upon whichthat party prevailed. See Smith v.
Mitton, 104 P.3d 367, 377 (Idaho 5 2004) (affirming trial court’s award to Appellant of 75% of his costs because he prevailed on some issues, bu t not on others); see also Cleland v. Clayton, 447 So. 2d 187, 189 (Ala. 1984) (affirming trial court’s allocation of 50% of costs of survey to Appellant). Unlike in much civil litigat ion for damages, in Environmental Court5

the issues on appeal are limited to those specifica lly defined by the appellant’s statement of questions, V.R.E.C.P. 5(f), making it possible f or the Court easily to determine the issues on which a party has or has not prevailed. Appellant now argues that this Court must follow aninterpretation of Federal Rule of Civil Procedure 54(d) (on which V.R.C.P. 54(d) i s based) to reach Appellant’s preferred “all or nothing” result. This Court declines to in terpret either the Vermont or the federal rule to render the final clause of the rule as surp lusage. Further, even the federal rule has been interpreted to give federal trial courts broad er discretion in awarding costs than that argued by Appellant. Coastal Conservation Ass’n v. Gutierrez , 417 F. Supp. 2d 1304, 1308- 09 (M.D. Fla. 2006) (awarding costs to parties on a claim-by-claim basis); 10 Wright, Miller, & Kane, Fed. Practice & Proc. 3d §2668, as found on Westlaw (advising a “case by case approach” in light of the “circumstances and equiti es” of each case); 20 Am. Jur. 2d Costs § 13 (“[w]hen each party prevails on some issues, there is no single prevailing party and
the award of costs is committed to the sole discret ion of the trial court.”). That is, even under Federal Rule 54(d), courts retain broad discr etion to allocate costs as is being done in the present case. In light of the standard set forth in V.R.C.P. 54(d ), the Court has fully reconsidered its Decision and Order of November 3, 2006. The Co urt finds no manifest error of law or fact and declines to alter its interpretation of V. R.C.P. 54(d). Appellant’s motion to
reconsider is therefore DENIED.

With respect to the award of costs, the November 3, 2006 Decision and Order requested Appellant to provide the Court with a cal culation of costs based upon the degree to which he prevailed on the issues as described inthat order. Appellee-Applicants now argue that costs should be denied to Appellant for his failure to provide the requested allocation; that is, that it would be reasonable for each party to bear its own costs for the6 Appellee-Applicants suggest that Appellant could have had photocopies made

when the depositions were provided for his witness’ signatures. The availability of depositions and their transcripts depends upon the continued willingness of court reporters to produce transcripts for a fair price; the Court will not require parties to undercut this system.

6 litigation. While that might have been a reasonabl e result if both parties had sought costs, the remand order from the Vermont Supreme Court onl y contemplated Appellant’s motion. The Court therefore is in the position of ruling on a motion for costs filed essentially by only one of the two partially-prevai ling parties, and must proceed to award costs insofar as Appellant has provided the informa tion to allow the Court to do so. In the revised affidavit for costs, Appellant has e stimated that “approximately half” of the Nedde, Adler, Maclay, and Richardson costs w ere “dedicated to the issues on which Appellant prevailed,” regardless of whether those is sues were parking or design issues, or both. That estimate is not based on any proffered rationale. The Court has not been provided with a trial transcript from which to esti mate the amount of testimony by these witnesses on the issues on which Appellant prevaile d, accordingly, we will apply a factor of 40% overall, based on the rough rationale that p arking was the subject of all of Question 3 and half of Question 5 (that is, 1.5 out of 5 que stions, or 30% of the case as a whole), and the design of the frontage of the new building was the subject of no more than half of Question 4 (10% of the case as a whole).

Filing fee: $150 Witness fees for attendance at trial and mileage: Thomas Adler $103 x 40% = $41.20 Deposition transcript copy 6 : Thomas Adler $82 x 40% = $32.807

Deposition transcripts: William Maclay $341.74 x 40% = $136.70 William Nedde $445 x 40% = $178 Michael Richardson $210.60 x 40% = $84.24 As to Ann Vivian, neither Appellant’s original affi davit nor his revised affidavit even stated the issue on which she appeared at tria l, nor did either affidavit assert that any portion of her testimony related to the issues on w hich Appellant prevailed. Accordingly, even though the 2006 Costs Order stated that her wi tness fees and deposition transcript might be recoverable as costs to the extent that th ey relate to the issues on which Appellant prevailed at trial, Appellant has not provided the Court with sufficient information from
which the Court could make that determination. Acc ordingly, those costs are not allowed to Appellant. Appellant did not show that the depositions of two city employees, Ken Lerner and Brian Pine, were reasonably necessary for him to pre pare for trial on the issues on which he prevailed; accordingly the costs of those deposi tions are not allowed to Appellant.

Done at Berlin, Vermont, this 6 thday of April, 2007.

_________________________________________________ Merideth Wright Environmental Judge