STATE OF VERMONT ENVIRONMENTAL COURT

} In re Jackson Subdivision ROW Access } Docke t No. 195-9-07 Vtec }

Decision on Motion to Amend and Request for Costs This matter arises out of a decision by the Town o f Bristol Zoning Board of Adjustment (“ZBA”), approving Andrew Jackson’s application for an expanded right-of-way to access a proposed subdivision on 10 High Street in Bristol. Appellants Lynn and Terry Brown appealed this decision, and Mr. Jackson cross-appealed to se ek a determination of the extent of authority granted to the ZBA and the Town of Bristol Selectbo ard (“Selectboard”) by §§ 502 and 620 of the Town of Bristol Zoning Bylaws and Regulations ( “Zoning Bylaws”). The Browns are represented by Debra L. Bouffard, Es q. Mr. Jackson is an attorney and represents himself. The Town of Bristol (“Town”) i s represented by William E. Flender, Esq. We issued a decision dated July 8, 2008 (“Decision” ), in which this Court dismissed all six of the Questions in the Browns’ Statement of Qu estions, as well as all three of the Questions in Mr. Jackson’s Statement of Questions “to the ext ent that they refer to § 620 and the conditions based thereon, as they seek review of issues not pr operly preserved for our review in this appeal.” Decision at 13. The Decision also grante d summary judgment in favor of Mr. Jackson, specifically determining that Mr. Jackson’s right-o f-way access for his proposed subdivision conformed with Zoning Bylaws § 502. The Browns the reafter filed a motion to amend the Decision. Mr. Jackson responded and also filed a r equest that the Court direct the Browns to reimburse his out-of-pocket costs in conducting and transcribing a deposition of Mr. Brown. We address each of the pending motions in this Decisio n.

I. Motion to Amend We analyze motions to amend or reconsider a decisio n under a very restrictive standard of review. The decision to grant relief requested by a motion to amend or reconsider is
“committed to the court’s sound discretion.” Rubin v. Sterling Enters. , 164 Vt. 582, 588 (1996). In ruling on such motions, we review earlier decisi ons “for the presence of legal error or the absence of factual support.” Town of Hartford v. W ood , Nos. 72-3-00 Vtec, 121-7-03 Vtec, 185-10-04 Vtec, 81-4-07 Vtec, & 176-8-07 Vtec, slip op. at 8 (Vt. Envtl. Ct. Mar. 6, 2008)2

(Durkin, J.) (citing Garrow v. Garrow , 150 Vt. 426, 428 (1988)). If amendment of the ju dgment serves no useful purpose, the motion will be denied . In re S. Vill. Cmtys., LLC , No. 74-4-05 Vtec, slip op. at 2 (Vt. Envtl. Ct. Sept. 14, 2006) (Durkin, J.) (citing 11 Wright, Miller, & Kane, Federal Practice and Procedure: Civil 2d § 2810.1). Reconsideration and amendment is “an extraordinary remedy that should be used sparingly.” Id .; In re Bouldin Camp – Noble Road , No. 278-11-06 Vtec, slip op. at 1 (Vt. Envtl. Ct. Sept. 13, 2007) (Wright, J.). Disagreement bet ween the moving parties and the Court is not grounds for amendment or reconsideration. In re Bo utin PRD Amendment , No. 93-4-06 Vtec, slip op. at 2 (Vt. Envtl. Ct. May 18, 2007) (Wright , J.). Motions to amend a Court decision can, however, ser ve a useful purpose, particularly
when amendment will allow a trial court to reverse an error it may have made and thereby reduce the expense of prosecuting an appeal to correct tha t error. We have held on numerous occasions that motions to amend or reconsider should not be used to repeat arguments that have been raised and rejected by the Court in the earlier decision.
Id . at 1. Rather, the limited functions of such a mo tion are “to ‘correct manifest errors of law or fact’ on which the decision was based, to allow the moving party to present newly discovered or previously unavailable evidence, to prevent manifes t injustice, or to respond to an intervening change in the controlling law.” In re Vanishing Br ook Subdivision , No. 223-10-07 Vtec, slip op. at 4 (Vt. Envtl. Ct. July 10, 2008) (Wright, J.) (q uoting 11 Wright, Miller, & Kane, Federal Practice and Procedure: Civil 2d § 2810.1). Becaus e these purposes are so narrow, motions to amend or reconsider are usually denied. In re S. V ill. Cmtys., LLC , No. 74-4-05 Vtec, slip op. at 2 (citing 11 Wright, Miller, & Kane, Federal Practi ce and Procedure: Civil 2d § 2810.1). In this case, we are hard pressed to discern how Ap pellants’ present motion fits into the narrow set of circumstances in which the granting o f an amendment or reconsideration is proper. The Browns appear to include a general repetition o f their previous argument that this Court somehow has the jurisdictional authority and obliga tion under the Zoning Bylaws to direct Selectboard review of Mr. Jackson’s § 502 access ap plication. As stated in our Decision, we find no authority in the Zoning Bylaws for the ZBA in the first instance, or this Court on appeal,
to direct the Selectboard to conduct such review. The only application before the ZBA or this Court was that of Mr. Jackson, seeking a determinat ion that his newly subdivided parcel was served by an easement that conformed with Bylaws § 502. To reach beyond that application to3

address what further approvals Mr. Jackson could or should obtain for his development requires this Court to exceed its jurisdictional authority. We have already emphasized in our Decision the reasons why such overreaching would be improper. W e cannot ignore our jurisdictional
constraints. Appellants suggest that this Court remand the pendi ng application back to the ZBA, so that the ZBA may determine what conditions should b e imposed and whether § 620 review should be required. We cannot discern how such a r emand would be wise or proper. We fear that such a remand would only force the parties to re-litigate their dispute before the ZBA, and then return to this Court on appeal. Such a remand would only evidence this Court abdicating its responsibility to render a determination in this de novo appeal. Appellants also appear to infer that this Court has issued Mr. Jackson a “zoning permit.” We have done no such thing. Rather, we sought to a ddress all land use requests posed by Mr. Jackson’s application that were preserved for our r eview by the appeal and cross-appeal in this case. In our Decision, we concluded that the only issue properly before this Court was whether the easement serving Mr. Jackson’s land-locked parc el conformed with Zoning Bylaws § 502. Since no application was made for § 620 approval, n o Selectboard determination under § 620 was made and properly appealed to this Court, and s ince we concluded that § 620 approval was not a pre-condition to § 502 approval, we concluded that addressing § 620 in this appeal was improper. Decision at 5–6, 9–12. Appellants have offered no legal foundation for disturbing our prior determination. We therefore decline to amend our earlier Decision and DENY the Browns’
motion to amend. 1

II. Request for Costs
Mr. Jackson has asked this Court to award him costs in the amount of $168.35, to be paid by the Browns. Mr. Jackson represents that he incu rred these costs in conducting a deposition of Mr. Brown and then having the deposition tape recor ding transcribed so that Mr. Jackson could refer to Mr. Brown’s statements in the various plea dings Mr. Jackson filed with this Court.

1 Although our previous Decision stands as is and w ill not be amended, we note that it is unclear whet her the Browns are correct in interpreting that Decision as “effectively den[ying] the Browns all avenues to a ssert their claims and concerns” regarding the applicability of § 620. (Appellant’s Mot. Amend J. at 3.) Even Mr . Jackson has admitted that the Browns can still “request that th e Selectboard determine that the Jackson project wa s subject to the provisions of § 620.” (Cross Appellant’s Resp. to Appellant’s Mot. Amend at 2.) The Decision itself explicitly declined to rule on this matter and stated that “th e record before us does not reveal that a Selectboa rd determination on the applicability of § 620 has been made.” Deci sion at 6.4

Appellants do not dispute that Mr. Jackson actually incurred these costs in connection with Mr. Brown’s deposition and do not assert that the amoun t of these costs was unreasonable for the supplies and services used. Appellants do assert, however, that it would be improper for the
Court to order them to reimburse such costs. As the prevailing party, Mr. Jackson asserts that h e should be awarded these costs, pursuant to V.R.C.P. 54(d)(1), which states that “[ c]osts other than attorneys’ fees shall be allowed as of course to the prevailing party, as pr ovided by statute and by these rules, unless the court otherwise specifically directs.” The Browns disagree and note that they have already expended large amount of resources on this case and should not have to pay anything more. Although we are sympathetic to the fact that the Br owns have already had to spend a great deal of money on this case, we have a duty to evaluate Mr. Jackson’s claim objectively. The Vermont Rules of Civil Procedure, which (accord ing to V.R.E.C.P. 5(a)(2)) are applicable to proceedings before the Environmental Court, represe nt a policy decision to reimburse a party that was forced to litigate a claim on which that p arty ultimately prevailed. See V.R.C.P. 54(d)(1). Indeed, we are directed to award such co sts “as of course.” Id . Nevertheless, the prevailing party cannot recover costs that were inc urred unnecessarily, an issue that arises when (as happened here) the prevailing party takes a dep osition that the other party asserts to be unnecessary. On this note, the Rules have a specia l section addressing the costs of depositions: The taxing of costs in the taking of depositions sh all be subject to the discretion of the court. No costs shall be allowed unless the co urt finds that the taking of the deposition was reasonably necessary , whether or not the deposition was actually used at trial. Taxable costs may include the cost of service of subpoena upon the deponent, the reasonable fee of the officer before whom the deposition is taken, the stenographer's reasonable fee for attendance, a nd the cost of the original transcript of the testimony or such part thereof as the court may fix. V.R.C.P. 54(g) (emphasis added).

The costs for which Mr. Jackson seeks reimbursement are all related to the taking of Mr. Brown’s deposition. In fact, apparently in an effo rt to minimize the deposition costs, Mr. Jackson forewent the use of a stenographer and inst ead used a tape recorder and had the tape transcribed. Nonetheless, this Court must determin e whether these costs were “reasonably necessary” before they can be awarded to Mr. Jackso n. Id

. We conclude that the requested costs were reasonabl y necessary. It is clear from Mr. Jackson’s use in his pleadings of Mr. Brown’s depos ition statements that the deposition served5

the purpose of understanding Appellants’ factual re presentations and the legal foundations for their appeal. Mr. Jackson submitted a copy of the transcript from Mr. Brown’s deposition in support of his pleadings and made specific referenc es to the Brown deposition transcript in his statement of undisputed or disputed facts. The Bro wn deposition transcript helped this Court in
at least two instances determine what facts remaine d disputed. For all of these reasons, we find that the depositi on of Lynn Brown was necessary and limited to reasonable and actual out-of-pocket cost s that this Court is authorized to direct Appellants, as the party against whom this Court ru led, to reimburse. See V.R.C.P. 54(g). Mr. Jackson’s request for costs is therefore GRANTED . Appellants are directed to provide reimbursement to Mr. Jackson in the amount of $168. 35 within thirty days of this Decision

Conclusion For all of the reasons more fully discussed above, the Browns’ motion to amend the
Decision is DENIED , and Mr. Jackson’s request for costs is GRANTED . This proceeding, previously concluded by this Court’s Decision of Ju ly 8, 2008, remains closed.

Done at Berlin, Vermont this 20th day of January 20 09.

______________________________________ Thomas S. Durkin, Environmental Judge