State of Vermont 

Superior Court—Environmental Division 

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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 Schwarzkopf 4-Lot Subdivision Application Docket No. 94-6-10 Vtec 

(Appeal from Village of Old Bennington 

Planning Commission decision) 

 

Title: Motion for Pretrial Discovery (Filing No. 11) 

Filed: January 19, 2011 

Filed By: David Grayck, Attorney for Applicants/Appellants Donald S. Schwarzkopf and Margaret O’Neil 

Schwarzkopf 

Response in Opposition to filed on 1/25/11 by Robert E. Woolmington, Attorney for Appellee Village of Old 

Bennington 

Reply filed on 2/3/11 by David Grayck, Attorney for Applicants/Appellants Donald S. Schwarzkopf and 

Margaret O’Neil Schwarzkopf 

 ___ Granted X Denied ___ Other 

This appeal concerns conditions that the Village of Old Bennington (“Village”) Planning 

Commission attached to its May 26, 2010 permit approval of the four-lot subdivision application submitted 

by Applicants/Appellants Donald S. Schwarzkopf and Margaret O’Neil Schwarzkopf (“Appellants”). The 

only remaining issue on appeal is the legality and appropriateness of the following condition: “No trees, or 

other existing foliage, shall be removed from those areas outside of the building envelopes shown for the 

subdivided parcels, on the subdivision plan.” In re the Application of Donald S. S. Schwarzkopf and 

Margaret O’Neil Schwarzkopf for a Four-Lot Subdivision at: 37 Monument Avenue, Old Bennington, 

Vermont, at 3 (Village of Old Bennington Planning Comm’n May 26, 2010). With its currently pending 

motion, Appellants ask this Court to order the Village and Interested Person Peter L. Stromgren to identify 

particular trees on Appellants’ property that concern the two parties and to note, on a subdivision plat, the 

trees’ location, trunk diameters, and, if possible, species. 

Under this Court’s procedural rules, we either establish the scope of discovery by a pretrial order, 

limited by “that which is necessary for a full and fair determination of the proceeding,” or allow parties to 

reach an agreement on their own. V.R.E.C.P. 2(c); see also 4 V.S.A. § 1004(b). Here, no discovery order 

was issued by the Court.1 To the extent that Appellants now seek such an order, only six weeks before the 

merits hearing, we conclude that their request is untimely. 

We also find that Appellants are asking this Court to make an unduly burdensome request of the 

Village and Interested Person Peter L. Stromgren on the eve of trial. The information Appellants now seek 

could have been sought at an earlier date and, by waiting, Appellants now ask the Village and an interested 

person to complete expedited field work in the middle of winter, the time, scope, and expense of which is 

unclear. Appellants, on whose property the trees lie, are in a better position to collect most of the specimen 

data requested. We also do not find the discovery request necessary for a full and fair determination of the 

 

1

 The Court issued its first and only Scheduling Order in this appeal on August 12, 2010. Pursuant to the parties’ 

representations, that Scheduling Order did not contain any specific discovery deadlines. The Court often issues 

scheduling orders without specific discovery deadlines when the parties advise the Court either that they have already 

completed any needed discovery, or that they are willing to complete needed discovery without specific deadlines. In 

this appeal, no request for specific discovery was made by any party until Appellants’ request, filed six weeks prior to 

the scheduled trial. 
In re Schwarzkopf Sub. Application, No. 94-6-10 Vtec (EO on Motion for Pretrial Discovery) (2-15-11) Pg. 2 of 2. 

issue before us. We note in this regard that, if a similar condition is attached to any approval of the 

subdivision that this Court may issue after the completion of the de novo merits hearing, that condition 

would restrict tree cutting in the future. Thus, the trees as they currently exist may have little relevance to 

the trees Appellants may be prohibited from cutting in the future. 

Finally, we note that Appellants have also made no representations that they sought the requested 

information from the Village and Interested Person Peter L. Stromgren before asking the Court for an order 

directing that it be provided. While we do not have before us a motion to compel discovery, but rather a 

motion seeking a court order directing discovery under V.R.E.C.P. 2(c), we see the spirit of V.R.C.P. 26(h) 

as applying here. See V.R.E.C.P. 5(a)(2). Rule 26(h) of the Vermont Rules of Civil Procedure begins with 

the statement that “[c]ounsel have the obligation to make good faith efforts among themselves to resolve or 

reduce all differences relating to discovery procedures and to avoid filing unnecessary motions.” Rule 26(h) 

goes on to require that a motion related to discovery procedures be accompanied by “an affidavit or a 

certificate of a party’s attorney . . . certifying that he or she has conferred or has attempted to confer with 

counsel for the opposing party in an effort in good faith to resolve by agreement the issues raised by the 

motion without the intervention of the court, and has been unable to reach such an agreement.” We view 

V.R.C.P. 26(h) as instructive for our review of Appellants’ pending motion and would expect parties who 

ultimately file a motion for discovery before this Court to have first made good faith efforts with opposing 

parties at resolving their discovery disputes. We have no representation before us that the spirit of Rule 

26(h) has been honored. 

Additionally, while we do appreciate Appellants’ attention to discussions that occurred during our 

recent site visit on January 14, 2011, we wish to remind Appellants and other parties that the purpose of the 

site visit is only to help the Court put into context the evidence that will be submitted at trial. The Court 

cannot rely on evidence presented at the site visit to reach conclusions. To the extent that Appellants or other 

parties wish to make arguments stemming from representations made at the site visit, they will have to first 

present any and all relevant evidence at trial. 

For all of the reasons stated above, we DENY Appellants’ motion for pretrial discovery and ask 

parties to prepare for the upcoming merits hearing that will be held on March 4, 2011. 

_________________________________________ February 15, 2011_____ 

 Thomas S. Durkin, Judge Date 

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Date copies sent to: ____________ Clerk's Initials _______ 

Copies sent to: 

David Grayck, Attorney for Appellants Donald S. Schwarzkopf and Margaret O’Neil Schwarzkopf 

Robert E. Woolmington, Attorney for Appellee Village of Old Bennington 

Interested Person Peter L. Stromgren 

Interested Person Patricia Lynn Green 

Interested Person Peter Green 

Interested Person Susan Wright 

G. Richard Dundas (FYI purposes only) 

Bonita Dundas (FYI purposes only)