Environmental Court of Vermont State of Vermont

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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, Att orneys for Appellants Daniel Desch, Christopher Hancock, & Christop her Rohan Response filed on 01/12/10 by Appellee/Applicants R alph & 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 fo r Partial Summary Judgment (“Decision”). Appellants claim that the Court erre d in its determination that two specific issues raised by the Appellants s hould not be summarily dismissed. 1 Appellants claim that the Decision should reflect , as a matter of law, that the Appellees’ permit application does no t comply with the screening requirements or the pedestrian facility a nd circulation requirements of the Montpelier Zoning and Subdivisi on Regulations (“Regulations”). We begin our analysis with a revi ew 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 relie ve a party against the unjust operation of a record resulting from the mis take 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 Est ate , 118 Vt. 499, 502 (1955)). In order to establish the necessity of re vision, 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) (quotin g 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 pri or 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 Pro cedure: Civil § 2810.1, at 127

– 28 (2d ed. 1995)).

A motion to alter should also not be used to “relit igate 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.). Additional ly, 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. M ay 18, 2007) (Wright, J.). In practice, “because of the n arrow 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 matte r of law, that the Appellees’ proposed vegetation screening is insuffi cient to satisfy Regulations § 707.C. In support, Appellants claim that the Court erred in its analysis of the sufficiency of the vegetation s creening by failing to address Regulations §§ 708.E and 708.F. Regulations §§ 708.E and 708.F provide suggested me thods for screening and buffering “parking areas.” Id . These methods for implementing screening and buffering are not mandatory; they are prospecti ve 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 p rovide sufficient screening under Regulations §707.C is a question th at 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 moti on for summary judgment, we viewed the material facts in a light m ost favorable to the nonmoving party, who in this instance are Appellee/App licants. See Madkour v. Zoltak , 181 Vt. 347, 351, 924 A.2d 11, 14 (2007). We als o note that, at this time, this Court has a limited perspective in compa rison to that of the parties, since the Court is not yet familiar with t he neighborhood and property at issue. With this limited perspective, and in an effort to view the facts in the proper light, we again conclude th at it is improper to render a summary conclusion that Applicants’ propos ed site plan provides inadequate screening for this five-space parking ar ea. Our current conclusion does not mean that at trial, judgment fo r Appellee/Applicants is a foregone conclusion. Rather, we are simply conclud ing at this time that the regulatory language does not support a summary dism issal 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 ins ufficient as a matter of law. We continue to disagree. More important to o ur analysis here, a motion to alter is not an avenue to relitigate the previou sly-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 f ailing to address Regulations §§ 708.E and 708.F, when viewed more cl osely, the Appellants’ claim is more accurately characterized as a disagre ement with the Court’s analysis that the Regulations do not contain the ma ndatory 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’ mot ion to alter fails in this regard. Only after the bene fit of receiving evidence at trial, including that which will be put into con text by a site visit, can the Court make a determination of what amount of ad ditional screening for these five parking spaces “may” be appropriate unde r the Regulations. Second, Appellants claim that the Court relied on m istaken, or “mischaracterized,” factual information when making its decision regarding pedestrian facilities and pedestrian circulation un der 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 misch aracterized as relating to “an increase in pedestrian traffic” rather than the pedestrian traffic that will specifically result from the Appellees’ propos ed parking lot. The individual pedestrian traffic and the overall incre ase in pedestrian traffic are inter-related issues under Regulations § 703.C( 2), which provides that “pedestrian facilities shall be required whenever n ecessary 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 err ors of fact or law upon which the prior Decision was based. In the ab sence 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 p rior analysis by viewing this issue in a light most favorable to App ellees. In so doing, and solely for purposes of considering Appellants’ pre- trial motion, the Court determined that a genuine dispute remained on the m aterial fact of whether the additional five-parking spaces would generate o r increase pedestrian traffic and whether additional pedestrian facilitie s would be necessary. We concluded then, and now, that this is a disputed fa ctual issue that may only be resolved through trial. Prior to granting Appellants’ summary judgment requ est, 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 appli cable law as requiring an entry of judgment at this time. Thus, an evidentia ry 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 a gree 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

=================================================== ==================== Date copies sent to: ____________ Cler k's Initials _______ Copies sent to: Attorneys Stephen A. Reynes and Jesse L. Moorman fo r Appellants Daniel Desch, Christopher Hancock, and Christopher Rohan Attorney James A. Caffry for Appellee/Applicants Ra lph and Sharon Gerlach Attorney Amanda Lafferty for the City of Montpelier Kenneth Randall, Interested Person