VERMONT SUPERIOR COURT

Environmental Division

32 Cherry St, 2nd Floor, Suite 303,

Burlington, VT 05401

802-951-1740

www.vermontjudiciary.org

Rescue Lake Encroachment Permit No. 92-8-18 Vtec

DECISION ON MOTION

This appeal concerns the Vermont Department of Environmental Conservation’s (“DEC”) 

issuance of Lake Encroachment Permit # 2536-LEP (“LEP”) to the Vermont Agency of Natural 

Resources (“ANR” or “Applicant”) Department of Fish and Wildlife (“DFW”), authorizing the 

installation of a floating dock at the DFW Rescue Lake fishing access area located at 22 Fishing Access 

Road, Ludlow, Vermont. Several individuals owning adjacent property on Rescue Lake (“the Lake”), 

as well as the Lake Rescue Association (“LRA”), (together “Appellants”) timely appealed the permit 

to this Court. Presently before the Court is ANR’s motion in limine to exclude certain evidence from 

being presented at trial.

Background

We recite the following facts and procedural history purely for the purpose of deciding the 

present motion. The following are not specific factual findings with relevance outside of this decision. 

See Blake v. Nationwide Ins. Co., 2006 VT 48, ¶ 21, 180 Vt. 14 (citing Fritzeen v. Trudell Consulting 

Eng’rs, Inc., 170 Vt. 632, 633 (2000) (mem. op.)). 

DEC seeks permission to add a floating dock next to its existing boat ramp at a public access 

point it manages. The stated purpose for the project is to bring the site into compliance with the 

Americans with Disabilities Act (ADA); DFW has embarked on a process of making several of its 

access points around the state ADA-compliant, thereby making such sites more accessible to 

individuals with certain mobility impairments. This particular public access point is located in a 

relatively self-contained portion of Rescue Lake known as “Round Pond.” Round Pond is connected 

to the rest of Rescue Lake by a channel between two peninsulas known as “The Narrows.” There are 
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numerous homes with private docks and other private access points to the Lake near the public access 

point. The Lake is generally popular with boaters and swimmers. The public access point is presently 

used to launch kayaks and other paddling devices as well as sail and motor boats. Swimming is 

forbidden at Department of Fish and Wildlife Access areas, but fishing is permitted in accordance 

with regulations. Public water rules require that boats within 200 feet from shore travel at a speed 

that does not produce a wake, generally regarded as no more than 5 mph.

DFW requires a shoreline encroachment permit from DEC to authorize construction of this 

water-bound dock, as an encroachment into public waters. DFW applied for such a permit in January 

2018. DEC solicited and received written comments and held a public informational meeting on the 

proposal. In August 2018, DEC issued a permit for the project, numbered 2536-LEP. Neighbors 

appealed to this Court. In February 2020 DFW applied for an amendment to Permit 2536-LEP to 

approve relocation of the proposed floating dock from one side of the boat launch ramp to the other. 

That amendment was approved as a minor permit amendment by DEC.

On June 9, 2021, we granted ANR’s motion for partial summary judgment and motion to 

clarify. As a result, we dismissed certain of Appellants’ Questions in their Amended Statement of 

Questions and ordered them to clarify others. Among the Questions we dismissed were a question 

about whether the project constitutes an attractive nuisance and a question about whether the project 

will lead to damage to adjoining shoreline properties. We concluded both questions exclusively raised 

issues that lay outside the scope of DEC’s initial review and our review in a de novo appeal.

On August 30, the parties filed with the Court a stipulation as to the evidentiary exhibits to be 

admitted at trial and a preliminary list of fact and expert witnesses they plan to call. The list of 

stipulated exhibits came with a list of specific objections either party planned to raise thereto, and the 

following language: “The parties stipulate the following documents into evidence subject only to the 

specific objections noted by the listing.” Stipulation of Parties Regarding Evidence and Scheduling at 

1 (emphasis added). One of the exhibits listed is a report prepared by the LRA summarizing its 

members’ opposition to the project and issues with the DEC decision. Next to the listing for the 

LRA report is the following parenthetical: “Note specific language objections of Fish and Wildlife in 

Objections - these specific objections will be contested by Appellant to the extent noted.” Id. The 

Stipulation went on to list a number of objections to language in the LRA report with pinpoint 

citations as well as Appellants’ indication of which objections they planned to contest. On September 

14, 2021, ANR filed this motion in limine.
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Discussion

ANR seeks through the present motion to exclude the following:

1. On the grounds of relevance: “evidence offered for the purpose of demonstrating 

facts related to the dock contract, pedestrian activity, attractive nuisance, loitering, 

noise, littering, trash, picnicking, private property and water rights, motor vehicular 

traffic on land, and parking,” which, it argues, are beyond the scope of the issues 

DEC and now this Court must consider when deciding whether to grant a 

shoreline encroachment permit. It included with its motion is a highlighted copy 

of the LRA Report, demonstrating the portions of the report raising the above 

issues that it seeks to exclude. 

2. A statement in the LRA report, as well as any other testimony regarding mediation 

the parties attempted, based on the confidentiality of mediation communications.

3. A letter written by Warren Hall and labeled “Waterfront Engineer Analysis”, 

included at pages 28-30 of the LRA report, both as hearsay and, insofar as it 

purports to be an expert opinion, as lacking the requisite factual or technical 

foundation. 

4. Two letters of Craig Peters included in the LRA report, as hearsay, but only if Mr. 

Peters does not testify.

Appellants have agreed to exclude any reference to mediation communications and any 

specific references to an “attractive nuisance.” They have further indicated that Mr. Peters will testify 

at trial, mooting that objection of ANR for the moment. Appellants object to all the other exclusions 

ANR seeks, both from the LRA report and insofar as ANR seeks to prevent similar evidence from 

being introduced at trial. Appellants claim that ANR’s objections go beyond what it specifically 

stipulated to in the Parties’ August 30 stipulation and that ANR takes too narrow a view of the factors 

DEC must consider when deciding on a shoreline encroachment permit application. Appellants also 

argue that the letter from Mr. Hall falls within the business records exception to hearsay. We address 

each issue in turn.

I. Objections Beyond The Parties’ Stipulation

As an initial matter, Appellants claim that ANR’s objections go beyond what ANR specifically 

stipulated to. We see two instances where this is true: ANR’s objections to a reference on page 58 of 

the LRA report to a pre-contracted dock and to the reference on page 6 to private property rights and 

private water rights. Compare Motion in Limine at 4 with Stipulation Re: Evidence at 4—5. While 

ANR may not now object to just any portion of the LRA report it wishes in light of the stipulation, 

both objections parallel objections to similar language at other places in the report. Further, per the 

Vermont Supreme Court’s guidance, we favor “resolving litigation on the merits, to the end that 
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fairness and justice are served.” Desjarlais v. Gilman, 143 Vt. 154, 158–59 (1983). We will therefore 

decide these requests from ANR on their merits.

II. Scope of Review

ANR seeks to exclude “evidence offered for the purpose of demonstrating facts related to the 

dock contract, pedestrian activity...loitering, noise, littering, trash, picnicking, private property and 

water rights, motor vehicular traffic on land, and parking,” which it claims are not relevant to the 

analysis we must undertake. 

When deciding whether to issue a shoreline encroachment permit, DEC must ask how the 

proposal would affect the public good. This is not a boundless inquiry: DEC must consider how the 

project, in isolation and in combination with existing shoreline encroachments, will affect “water 

quality, fish and wildlife habitat, aquatic and shoreline vegetation, navigation, and other recreational 

and public uses, including fishing and swimming, consistency with the natural surroundings, and 

consistency with municipal shoreland zoning ordinances or any applicable State plans.” 29 V.S.A. 405. 

We agree with Appellants that such an analysis encompasses both the physical encroachment and the 

uses expected to be associated with it. See In re Champlain Marina, Inc., Dock Expansion, No. 28-2-

09 Vtec, Slip op. at 13 (Vt. Super. Ct. Envtl. Div. Jan. 10, 2011) (Durkin, J.) (“We conclude that there 

will be no adverse effect on water quality attributable to the 177-foot dock extension, its adjoining 

finger docks, and the additional sixteen larger boats that will use the new dock slips.”) (emphasis added). 

Separate from this “public good” analysis, DEC also must determine that the project does not violate 

the “public trust” interest in the natural resources affected. Id. at 18—20.

Evidence is relevant if it has “any tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or less probable than it would be 

without the evidence.” V.R.E. 401. Relevant evidence is generally admissible. V.R.E. 402. As we 

have previously stated, “All Environmental Division merits hearings are bench trials and, therefore, 

we are generally liberal in allowing relevant evidence to be admitted...we are unlikely to be ‘unduly 

swayed by a questionable evidentiary offering’ as a jury may be.” Morrisville Hydroelectric Project 

Water Quality, 103-9-16 Vtec, Slip op. at 1 (Vt. Super. Ct. Envtl. Div. Mar. 23, 2018) (Walsh, J.) 

(quoting The Van Sicklen Ltd. P’ship, No. 4C1013R-EB, slip op. at 1 (Vt. Env. Bd. Sep. 28, 2001). 

However, “once relevant evidence is admitted, we afford it the weight it deserves, if any.” Id.

We cannot now definitively say that evidence that the project will enhance or impair 

“pedestrian activity ... loitering, noise, littering, trash, picnicking ... motor vehicular traffic on land, 

and parking” will not be relevant, directly or indirectly, to the public good analysis we must undertake 
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pursuant to 29 V.S.A. 405. While we may ultimately at trial exclude certain testimony on the above 

topics, it would be premature to do so here, as to the LRA report or as to testimony generally. 

For a slightly different reason, we decline to exclude the identified passages on private property 

rights or private water rights: We are confused as to what rights exactly Appellants are asserting. If 

they mean to suggest a right to exclude other users from the public water at a certain distance from 

their private property, we expect the parties to provide citations to the relevant law in arguments at 

trial.

We agree, however with ANR that references in the LRA report to a supposed ANR “blanket 

contract” with Dock Doctors are plainly not relevant to the legal issues before us. These assertions 

do not attempt to present evidence of any impacts the project will have; rather they seek to impugn 

DFW’s motives in selecting the proposed dock design and/or location. As DFW’s motives are

irrelevant to our analysis of the effect the project will have on the public good, we grant ANR’s motion 

to exclude such references from the LRA report at trial.

III. Claimed Hearsay

Lastly, Applicant claims that the report of Warren Hall, located at pages 28-30 of the LRA 

Report, is impermissible hearsay. Our response is based on our understanding derived from the 

Appellants’ Response to the Motion in Limine that they do not plan to bring forward Mr. Hall as a 

witness at trial. While the report, as a document, itself may not be hearsay,1 what it contains most 

certainly is: The entirety of the letter after the salutation, as well as the attached map, are out-of-court

statements offered for the truth of what they assert. V.R.E. 801. Without Mr. Hall as a witness, the 

foundation for the document’s integrity cannot be established nor can the truth of the claims be tested 

through the adversarial process. 

Appellants assert that the claims in the report fall under the business records exception to 

hearsay. See V.R.E. 803(6). In brief, they do not. “Business records,” as defined in the Vermont 

Rules of Evidence and the Federal Rules of Evidence they largely parallel, must be “kept in the course 

of a regularly conducted business activity,” where “it was the regular practice of that business activity 

1 See Williamson v. United States, 512 U.S. 594, 599 (1994) (“[W]e must first determine what the Rule 

means by “statement,” which Federal Rule of Evidence 801(a)(1) defines as “an oral or written assertion.” One 

possible meaning, “a report or narrative,”, connotes an extended declaration... .Another meaning of 

“statement,” [is] “a single declaration or remark....” Although the text of the Rule does not directly resolve 

the matter, the principle behind the Rule, so far as it is discernible from the text, points clearly to the narrower 

reading.”) (internal citations omitted).
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to make” the records. Id. As the Reporter’s Notes remind us, the chief concern with hearsay 

testimony is the inability of the parties or the Court to test the trustworthiness of the declarant and 

the reliability of their memory, impressions, and opinions. The hearsay exceptions all present instances 

where such trustworthiness is deemed guaranteed by alternative methods. In the case of business 

records, “trustworthiness is guaranteed by the regularity and lack of future concern with which the records 

are made, the actual reliance placed upon them in human affairs, and the duty of the recorder to make 

an accurate record.” Reporter’s Notes to the Vermont Rules of Evidence Rule 803(6). 

Quintessential examples of such records are timesheets, invoices, and the like. In contrast, as 

a leading treatise on the Federal Rules notes, “When records are prepared in anticipation of litigation, 

they will often, but not always, demonstrate that lack of trustworthiness.” McCormick On Evid. § 288 

(8th ed.); see also Palmer v. Hoffman, 318 U.S. 109 (1943) (“Unlike payrolls, accounts receivable, 

accounts payable, bills of lading and the like, [accident] reports are calculated for use essentially in the 

court, not in the business. Their primary use is in litigating, not in railroading.”); United States v. Feliz, 

467 F.3d 227, 234 (2d Cir. 2006) (“[B]ecause Rule 803(6) requires business records to be kept in the 

regular course of a business activity, records created in anticipation of litigation do not fall within its 

definition...”).

The report from Warren Hall is dated November 1, 2019, or well over a year after this appeal 

was filed. It indicates that Mr. Hall reviewed the DEC permit at the request of Appellants Kenneth 

and Kate Haslam. The report was clearly prepared for the purposes of contesting that permit and was 

not kept in the regular course of Mr. Hall’s business activity as a regularly conducted activity. It 

therefore does not fall within the business records exception and both the contents of the letter and 

the map must be excluded as hearsay. We note again that this conclusion is premised on our 

understanding that Appellants do not plan to produce Mr. Hall to testify; if he does appear as an 

expert or lay witness, and is therefore subject to examination by the other parties and this Court, there 

may be other avenues by which to introduce the report into evidence.

Conclusion

We close by noting one general concern and expectation for trial. To date, neither party has 

presented the Court with data showing the likely increase in visitor traffic—both of persons with 

mobility impairments and of persons without—that may reasonably be attributed to constructing an 

ADA-accessible dock next to the existing boat ramp at this site. To a certain extent that is 

understandable given that projections are inherently speculative to a degree. However, extrapolation

from existing examples of such projects, or other forms of data such as survey results should certainly 
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be possible to produce. In our previous decision on a proposed dock addition or expansion, we had 

evidence before us of the expected increase in use associated with said expansion. See Champlain 

Marina, No. 28-2-09 Vtec at 11 (Jan. 10, 2011) (noting the dock expansion was expected to host 16 

additional boats, some of which had larger drafts). Such evidence is critical for assessing the impact 

of such a project on the public good. The original burden to produce such data (and ultimate burden

of persuasion) of course lies with Applicant, see Id. at 13. However, once Applicant meets that initial 

burden of production, Appellants will need to provide more than conclusory assertions of negative 

impacts to rebut any conclusions that may follow.

As to the present motion, it is GRANTED insofar as we order Appellants to strike the 

passages Applicant has noted containing references to a blanket dock contract or “pre-contract” from 

pages 1 and 58 of the LRA report when they submit that report as an exhibit at trial. The references 

to an attractive nuisance and to mediation must also be struck, per the parties’ agreement. We note 

Appellants’ commitment that Craig Peters will testify as trial, but may revisit the objection to his letters 

if he does not. Finally, the report from Warren Hall, including both the letter and the map, will be 

excluded if Mr. Hall does not testify. In all other respects, the motion is DENIED.

SO ORDERED. 

Electronically signed on January 13, 2022, at Newfane, VT pursuant to V.R.E.F. 9(d).

________________________________

Thomas S. Durkin, Superior Judge

Environmental Division