State of Vermont Superior Court—Environmental Division

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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/App ellants Donald S. Schwarzkopf and Margaret O’Neil Schwarzkopf Response in Opposition to filed on 1/25/11 by Rober t 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 appr oval of the four-lot subdivision application submit ted 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 tre es, 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 r e the Application of Donald S. S. Schwarzkopf and Margaret O’Neil Schwarzkopf for a Four-Lot Subdivis ion at: 37 Monument Avenue, Old Bennington, Vermont , at 3 (Village of Old Bennington Planning Comm’n M ay 26, 2010). With its currently pending motion, Appellants ask this Court to order the Vill age and Interested Person Peter L. Stromgren to ide ntify particular trees on Appellants’ property that conce rn the two parties and to note, on a subdivision pl at, the trees’ location, trunk diameters, and, if possible, species. Under this Court’s procedural rules, we either esta blish 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 par ties 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 or der was issued by the Court. 1 To the extent that Appellants now seek such an or der, only six weeks before the merits hearing, we conclude that their request is u ntimely. 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 w aiting, Appellants now ask the Village and an inter ested person to complete expedited field work in the midd le of winter, the time, scope, and expense of which is unclear. Appellants, on whose property the trees l ie, 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 Or der in this appeal on August 12, 2010. Pursuant to the parties’ representations, that Scheduling Order did not cont ain any specific discovery deadlines. The Court of ten issues scheduling orders without specific discovery deadli nes when the parties advise the Court either that t hey have already completed any needed discovery, or that they are wi lling 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 Disco very) (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 t he subdivision that this Court may issue after the com pletion of the de novo merits hearing, that conditi on would restrict tree cutting in the future. Thus, t he trees as they currently exist may have little re levance 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 o rder directing that it be provided. While we do not hav e before us a motion to compel discovery, but rathe r a motion seeking a court order directing discovery un der 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 t o make good faith efforts among themselves to resol ve or reduce all differences relating to discovery proced ures and to avoid filing unnecessary motions.” Rul e 26(h) goes on to require that a motion related to discove ry 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 co nfer 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 h as been unable to reach such an agreement.” We vie w V.R.C.P. 26(h) as instructive for our review of App ellants’ pending motion and would expect parties wh o ultimately file a motion for discovery before this Court to have first made good faith efforts with op posing 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’ at tention to discussions that occurred during our recent site visit on January 14, 2011, we wish to r emind Appellants and other parties that the purpose of the site visit is only to help the Court put into conte xt the evidence that will be submitted at trial. T he Court cannot rely on evidence presented at the site visit to reach conclusions. To the extent that Appellan ts or other parties wish to make arguments stemming from repres entations 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

=================================================== ========================== Date copies sent to: ____________ Clerk's Initials _______ Copies sent to: David Grayck, Attorney for Appellants Donald S. Sch warzkopf and Margaret O’Neil Schwarzkopf Robert E. Woolmington, Attorney for Appellee Villag e 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)