Environmental Court of Vermont 

State of Vermont 

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E N T R Y R E G A R D I N G M O T I O N 

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In re Gerlach Area Parking Permit Docket No. 31-2-09 Vtec 

(Appeal of Desch, et al) 

Title: Motion to Alter 

Filed: January 6, 2010 

Filed By: Stephen A. Reynes & Jesse L. Moorman, Attorneys for Appellants 

 Daniel Desch, Christopher Hancock, & Christopher Rohan 

Response filed on 01/12/10 by Appellee/Applicants Ralph & Sharon Gerlach 

____ Granted _X_ Denied ____ Other 

Appellants seek by their current motion to have the Court alter its 

December 21, 2009 Decision on Appellant’s Motion for Partial Summary Judgment 

(“Decision”). Appellants claim that the Court erred in its determination 

that two specific issues raised by the Appellants should not be summarily 

dismissed.1 Appellants claim that the Decision should reflect, as a matter of 

law, that the Appellees’ permit application does not comply with the 

screening requirements or the pedestrian facility and circulation 

requirements of the Montpelier Zoning and Subdivision Regulations 

(“Regulations”). We begin our analysis with a review of the standards under 

V.R.C.P. 59(e) regarding motions to alter.

A motion to reconsider or alter gives the court an opportunity to 

“revise its initial judgment if necessary ‘to relieve a party against the 

unjust operation of a record resulting from the mistake or inadvertence of 

the court and not the fault or neglect of a party.’” Osborn v. Osborn, 147 

Vt. 432, 433 (1986) (quoting Haven v. Ward Real Estate, 118 Vt. 499, 502 

(1955)). In order to establish the necessity of revision, the moving party 

“must clearly establish either a manifest error of law or fact or must 

present newly discovered evidence.” Northern Sec. Ins. Co. v. Mitec 

Electronics, Ltd., 2008 VT 96, ¶ 44, 184 Vt. 303, 321 (2008) (quoting FDIC v. 

Meyer, 781 F.2d 1260, 1268 (7th Cir.1986). 

Conversely, a Rule 59(e) motion should not be used to “raise arguments 

or present evidence that could have been raised prior to entry of the 

judgment.” Northern Sec. Ins. Co., 2008 VT 96, ¶ 44, 184 Vt. at 320 (quoting 

11 Wright, Miller, & Kane, Federal Practice and Procedure: Civil § 2810.1, at 

127–28 (2d ed. 1995)). 

A motion to alter should also not be used to “relitigate old matters.” 

Appeal of Van Nostrand, Nos. 209-11-04 & 101-5-05 Vtec, slip op. at 4 (Vt. 

Envtl. Ct. Dec. 11, 2006) (Durkin, J.). Additionally, disagreement between 

the moving parties and the court is not grounds for reconsideration. In re 

Boutin PRD Amendment, No. 93-4-06 Vtec, slip op. at 2 (Vt. Envtl. Ct. May 18, 

2007) (Wright, J.). In practice, “because of the narrow purposes for which 

 

1

 These issues were raised in Questions 1 and 15 of Appellants’ Amended Statement of Questions. 
In re Gerlach Parking area permit, No. 31-2-09 Vtec (Entry Order on motion to alter)(02-18-10) Page 2 

they are intended, Rule 59(e) motions typically are denied.” Appeal of Van 

Nostrand, Nos. 209-11-04 & 101-5-05 Vtec, slip op. at 4. 

Appellants’ Motion to Alter focuses on two issues. First, Appellants 

claim that the undisputed facts reflect, as a matter of law, that the 

Appellees’ proposed vegetation screening is insufficient to satisfy 

Regulations § 707.C. In support, Appellants claim that the Court erred in 

its analysis of the sufficiency of the vegetation screening by failing to 

address Regulations §§ 708.E and 708.F. 

Regulations §§ 708.E and 708.F provide suggested methods for screening 

and buffering “parking areas.” Id. These methods for implementing screening 

and buffering are not mandatory; they are prospective ideas that the DRB (and 

this Court on appeal) “may,” or may not, require an applicant to implement. 

Id. Whether the methods used by a permit applicant provide sufficient 

screening under Regulations §707.C is a question that is specific to the 

facts surrounding each permit application. Whether this Court should 

exercise the discretion afforded by Regulations §§ 708.E and 708.F and require 

further screening of the proposed parking area is a factual determination 

that we have concluded must be left to the de novo trial 

Since our first Decision addressed a pre-trial motion for summary 

judgment, we viewed the material facts in a light most favorable to the nonmoving party, who in this instance are Appellee/Applicants. See Madkour v. 

Zoltak, 181 Vt. 347, 351, 924 A.2d 11, 14 (2007). We also note that, at this 

time, this Court has a limited perspective in comparison to that of the 

parties, since the Court is not yet familiar with the neighborhood and 

property at issue. With this limited perspective, and in an effort to view 

the facts in the proper light, we again conclude that it is improper to 

render a summary conclusion that Applicants’ proposed site plan provides 

inadequate screening for this five-space parking area. Our current 

conclusion does not mean that at trial, judgment for Appellee/Applicants is a 

foregone conclusion. Rather, we are simply concluding at this time that the 

regulatory language does not support a summary dismissal of the pending 

application. 

Appellants’ Motion to Alter appears to rest on the same arguments 

presented in their prior Motion for Partial Summary Judgment: that 

Regulations § 707.C contains mandatory language that requires a summary ruling 

that Appellee/Applicants’ proposed screening is insufficient as a matter of 

law. We continue to disagree. More important to our analysis here, a motion 

to alter is not an avenue to relitigate the previously-addressed issues. See 

Appeal of Van Nostrand, Nos. 209-11-04 & 101-5-05 Vtec, slip op. at 4. 

Although Appellants claim that the Court erred by failing to address 

Regulations §§ 708.E and 708.F, when viewed more closely, the Appellants’ 

claim is more accurately characterized as a disagreement with the Court’s 

analysis that the Regulations do not contain the mandatory directive that 

Appellants suggest. To be successful, a motion to alter must serve a purpose 

greater than expressing disagreement with a court’s prior decision. See In 

re Boutin PRD Amendment, No. 93-4-06 Vtec, slip op. at 2. Appellants’ motion 

to alter fails in this regard. Only after the benefit of receiving evidence 

at trial, including that which will be put into context by a site visit, can 

the Court make a determination of what amount of additional screening for 

these five parking spaces “may” be appropriate under the Regulations. 

Second, Appellants claim that the Court relied on mistaken, or 

“mischaracterized,” factual information when making its decision regarding 

pedestrian facilities and pedestrian circulation under Regulations § 703.A. 
In re Gerlach Parking area permit, No. 31-2-09 Vtec (Entry Order on motion to alter)(02-18-10) Page 3 

Appellants claim that their argument has been mischaracterized as relating to 

“an increase in pedestrian traffic” rather than the pedestrian traffic that 

will specifically result from the Appellees’ proposed parking lot. The 

individual pedestrian traffic and the overall increase in pedestrian traffic 

are inter-related issues under Regulations § 703.C(2), which provides that 

“pedestrian facilities shall be required whenever necessary to serve existing 

or projected pedestrian traffic.” Id. Following the Regulations, the Court 

is required to consider at trial both the existing and projected pedestrian 

traffic for this project and what facilities may be required for each. 

Appellants have failed to identify any manifest errors of fact or law 

upon which the prior Decision was based. In the absence of some manifest 

error of fact or law being identified, a motion to alter must fail. See 

Northern Sec. Ins. Co., 2008 VT 96, ¶ 44, 184 Vt. at 321. 

As to pedestrian traffic, the Court conducted its prior analysis by 

viewing this issue in a light most favorable to Appellees. In so doing, and 

solely for purposes of considering Appellants’ pre-trial motion, the Court 

determined that a genuine dispute remained on the material fact of whether 

the additional five-parking spaces would generate or increase pedestrian 

traffic and whether additional pedestrian facilities would be necessary. We 

concluded then, and now, that this is a disputed factual issue that may only 

be resolved through trial. 

Prior to granting Appellants’ summary judgment request, we must arrive 

at an unwavering conclusion that no material facts are in dispute and that 

the applicable law requires an entry of judgment. We perceive a dispute as 

to the material facts, and we do not view the applicable law as requiring an 

entry of judgment at this time. Thus, an evidentiary merits hearing is 

necessary, at which all parties will be afforded an opportunity to present 

their relevant, admissible evidence. 

For all these reasons, we conclude that Appellants’ Motion to Alter 

should be DENIED. 

This matter remains scheduled for a final pre-trial telephone 

conference on Monday, June 28, 2010 at 9:00 AM and a merits hearing on July 

21–22, 2010, at the Vermont Environmental Courthouse, commencing on both days 

at 9:00 AM, unless otherwise directed by the Court. 

We request that the parties confer and attempt to agree upon the best 

date and time for the Court to conduct a site visit with the parties. The 

Court suggests that the site visit could occur at 8:30 AM on July 21, 2010. 

___________________________________________ __February 18, 2010__ 

 Thomas S. Durkin, Judge Date 

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Date copies sent to: ____________ Clerk's Initials _______ 

Copies sent to: 

Attorneys Stephen A. Reynes and Jesse L. Moorman for Appellants Daniel Desch, 

 Christopher Hancock, and Christopher Rohan 

Attorney James A. Caffry for Appellee/Applicants Ralph and Sharon Gerlach 

Attorney Amanda Lafferty for the City of Montpelier 

Kenneth Randall, Interested Person