                                        STATE OF VERMONT
SUPERIOR COURT                                                        ENVIRONMENTAL DIVISION

Hinesburg Hannaford SP Approval                                  Docket No. 163-11-12 Vtec

                                 Decision on Motion to Reconsider

        On April 12, 2016, this Court issued its merits decision on the site plan application by
Martin’s Foods of South Burlington (Applicant) for the construction of a 36,000-square-foot
Hannaford grocery store and 128-space parking lot (the Project) on Lot 15 of the Commerce
Park subdivision in Hinesburg, Vermont. See In re Hinesburg Hannaford SP, No. 163-11-13 Vtec,
slip op. (Vt. Super. Ct. Envtl. Div. Apr. 12, 2016) (Walsh, J.). Now before the Court is a motion to
alter or amend our site plan decision filed by a group of Hinesburg residents opposed to the
Project (Appellants).1 Appellants raise seven issues that they argue warrant reconsideration and
an amended decision, claiming: 1) that we erred in finding an alleged 75-foot setback in the
Hinesburg Planning Commission’s final plat approval for the Giroux 15-Lot Commercial
Subdivision, unenforceable; 2) that it was improper for Applicant to challenge the enforceability
of the setback after the close of evidence; 3) that by challenging the enforceability of the
setback, Applicant mounted an impermissible collateral attack on the condition; 4) that our
approval of Applicant’s stormwater system disregarded necessary permits; 5) that our factual
findings concerning the stormwater impacts lacked footing in the record; 6) that our approval
of a 200-foot east-west grass treatment swale on the northern border of Lot 15 (the East-West
swale) relied on an impermissible condition subsequent and future permitting; and 7) that
certain traffic mitigation measures fail to satisfy the Hinesburg Zoning Regulations and deny
Appellants their statutory role in the proceedings.
        V.R.C.P. 59(e) gives this Court the broad power to alter or amend a judgment “if
necessary to relieve a party against the unjust operation of the record resulting from the



        1
          We note that Appellants move under both V.R.C.P. 59(e) and 60. As this motion was filed within ten days
of our decision, and raises substantive grounds for reconsideration, we treat it as a motion under V.R.C.P. 59(e).
See Reporter’s Notes, V.R.C.P. 59(e).

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mistake or inadvertence of the court and not the fault or neglect of a party.” Rubin v. Sterling
Enterprises, Inc., 164 Vt. 582, 588 (1996); Reporter’s Notes, V.R.C.P. 59(e). There are four
principal reasons for granting a Rule 59(e) motion: (1) “to correct manifest errors of law or fact
upon which the judgment is based”; (2) to allow a moving party to “present newly discovered
or previously unavailable evidence”; (3) to “prevent manifest injustice”; and (4) to respond to
an “intervening change in the controlling law.” 11 Wright, Miller & Kane, Federal Practice and
Procedure: Civil 3d § 2810.1; see In re Zaremba Group Act 250 Permit, No. 36-3-13 Vtec, slip op.
at 1 (Vt. Super. Ct. Envtl. Div. Apr. 10, 2014) (reviewing a motion made pursuant to V.R.C.P.
59(e) using four grounds from the federal rule). Granting a motion to alter or amend “a
judgment after its entry is an extraordinary remedy which should be used sparingly.” Zaremba,
No. 36-3-13 Vtec, at 2 (quoting 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil
2d § 2810.1).
        Appellants have not identified any newly discovered evidence, and there has been no
offer of a change in controlling law. We therefore only consider whether the motion identifies
manifest errors of law or fact in our decision, or establishes that an altered or amended
decision is necessary to prevent manifest injustice. See Zaremba, No. 36-3-13 Vtec, at 2.

        Further limiting the scope of our decision, a Rule 59(e) motion is not an opportunity to
present arguments or evidence that could have been raised prior to entry of the judgment, and
mere disagreement with the Court’s decision will not sustain a motion to reconsider. Put
simply, we will not entertain efforts to reargue the merits of the case that were properly before
us at trial. To that end, we read Appellants’ motion with a critical eye and will quickly dismiss
those arguments that essentially re-hash what has already been raised and decided.

    1. Enforceability of Building Setback
        Appellants first claim that the record contradicts our conclusion that there is no
enforceable 75-foot setback provision in the Giroux 15-Lot Commercial Subdivision Final Plat
Approval (Final Plat Approval).2 Appellants specifically point to the phrase from our merits




        2
          In our Decision on the Merits in Docket No. 163-11-12 Vtec, we mislabeled the subdivision approval with
the year 1987. We note that final plat approval occurred in December of 1986. To clarify, the terms subdivision
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decision where we said “there is no writing that would indicate an intent to impose a setback.”
In re Hinesburg Hannaford Site Plan Approval, No. 163-11-12 Vtec, slip op. at 22 (Vt. Super. Ct.
Envtl. Div. Apr. 12, 2016). Appellants claim that this statement demonstrates a factual error
since the Final Plat for the Giroux 15-Lot Commercial Subdivision (Plat), labels one of the lines in
the key as “Building Setback Limit.” See Appellants’ Ex. Courtney C. In our decision we
specifically identify the fact that the key on the Plat labels a particular line the “Building Setback
Limit,” and describe how there is no writing that explains what the setback is or that a setback
was intended as part of the Final Plat Approval. Accepting that the Plat labels a certain type of
line as identifying the building setback limit, nowhere on the Plat itself is a specific setback
distance mentioned, and the written Final Plat Approval by the Hinesburg Planning Commission
is completely devoid of any mention of setbacks. See Appellants’ Ex. Courtney B. Therefore, as
our decision makes clear, we are not ignoring the fact that the Plat labels one type of line as
demarcating building setbacks, but rather we conclude that the three-word label, without any
written permit condition or any mention of setbacks at all in the Final Plat Approval does not
establish a clear permit condition.
        This lack of any description or clear intent was the same situation addressed by the
Vermont Supreme Court in In re Willowell Found. Conditional Use Certificate of Occupancy,
2016 VT 12, ¶ 16, where the Court found that a two-word description on the plat failed to
impose an enforceable condition where there was no recorded permit condition or
accompanying description of the phrase. In Willowell, the Court emphasized the principle of
construction that zoning ordinances act in derogation of private property rights and thus must
be read narrowly. Id. ¶ 18. To be enforced, a condition must be explicit and sufficiently clear to
notify landowners of the restriction on their use of the property. Id. ¶ 15. Therefore, here, we
reaffirm our holding that a line in the key on the Plat labelled as the setback limit is, alone,
insufficient to create a binding 75-foot setback limit when there is no mention of setbacks in
the written Final Plat Approval.




approval or the 1987 Commerce Park subdivision approval reference the Hinesburg Planning Commission’s written
Final Plat Approval of the Giroux 15-Lot Commercial Subdivision, provided as Appellants’ Ex. Courtney B.
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   2. Raising Legal Argument After the Close of Evidence

       Appellants next argue that because Applicant did not raise the legal theory of the
unenforceability of the alleged setback contained in the Final Plat Approval until after the close
of evidence, we erred in considering it. Further, Appellants argue, that they are now entitled to
an opportunity to reopen the evidence in order to present evidence rebutting Applicant’s
untimely legal argument as they were not aware such evidence would be relevant. We find
neither of Appellants’ claims persuasive.
       First, we are unaware of any requirement that a party raise all legal arguments before
the close of evidence. Through Appellants’ Question 7 and Parts 1 and 2 of their motion for
entry of judgment, Appellants challenged the Project’s conformance with subdivision setbacks.
Applicant initially argued that there was no request for a subdivision amendment, and thus
those questions were beyond the scope of our review. Later, Applicant argued that, to the
extent conditions of the subdivision approval were considered zoning restrictions and thus
reviewable in the site plan application, there was no enforceable setback condition that was
part of the subdivision approval. We see no error in considering either of Applicant’s defenses
to the issues raised by Appellants in their Statement of Questions and in their motion for entry
of judgment.
       Second, reopening the evidence is not warranted. We treat a motion to reopen the
evidence as a motion for a partial new trial under V.R.C.P. 59(a) and (d). It is within this Court’s
discretion to grant such a request. See In re Bjerke Zoning Permit Denial, 2014 VT 13, ¶ 16, 195
Vt. 586. Reopening the evidence may be allowed in the case of newly discovered evidence or
previously unavailable evidence. See 11 Wright, Miller & Kane, Federal Practice and Procedure:
Civil 3d § 2810.1. Where that evidence could have been presented at trial, however, we need
not reopen the case. See Goslant v. Goslant 130 Vt. 210, 212 (1972).
       Appellants suggest that because Applicant did not raise the legal argument of
unenforceability until after the close of evidence, Appellants were unaware of the relevance of
the evidence they now seek to introduce. Appellants have continuously argued that the Project
must comply with the alleged subdivision setback provision. Appellants were thus adequately
aware of the need to support the existence and enforceability of such a setback. The fact that

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Appellants may have overlooked the need to introduce this evidence does not establish that
the trial should be reopened.3 We therefore deny Appellants’ request to reopen the evidence.

    3. Whether Challenge to Enforceability was a Collateral Attack on Permit Condition
         Appellants next argue that we improperly allowed Applicant to collaterally attack the
Final Plat Approval by considering Applicant’s argument that the subdivision approval did not
contain an enforceable setback condition.4 Appellants misconstrue the facts before us and the
legal implications of 24 V.S.A. § 4472(d). We agree that 24 V.S.A. § 4472(d) establishes that an
unappealed permit condition cannot be collaterally attacked in a later proceeding. In order for
Section 4472(d) to apply, however, there must be a final unappealed permit condition. As this
Court and the Vermont Supreme Court have repeatedly held, a permit condition must be
“expressed with sufficient clarity to give notice of the limitations on the use of the land.”
Appeal of Farrell & Desautels, Inc., 135 Vt. 614, 617 (1978); see also In re Byrne Trusts Nov, No.
150-7-08 Vtec, slip op. at 14 (Vt. Envtl. Ct. July 15, 2009). Applicant’s claim that it need not
comply with a 75-foot setback was not barred by Section 4472(d), for, as we explained in our
merits decision, there was no enforceable setback condition contained in the Final Plat
Approval. Appellants’ argument in its Rule 59 motion assumes the existence of an express
permit condition, ignoring our lengthy discussion on whether a setback condition can be found
in the Final Plat Approval in the first place. We therefore deny Appellants’ request to revise our
holding.

    4. Approval of Stormwater Discharge System Under Commerce Street
         Prior to trial, Appellants argued that the Town of Hinesburg was a necessary co-
applicant because Applicant proposed to run 300 feet of stormwater piping under Commerce


         3
            We note that after trial, Applicant sought to offer evidence that there had been revisions to the Plat and
Final Plat Approval. Appellants opposed the motion, claiming that the evidence should have been offered at trial.
We agreed with Appellants when they opposed Applicant’s offer, and applying their own arguments to their offer
here, we find that reopening the evidence is not warranted.
          4
            Appellants also argue that the setback condition was offered by the owner of Lot 15 during the
subdivision approval process, and thus, because the landowner is a now a co-applicant with Martin’s Foods of
South Burlington, it cannot challenge the enforceability of a condition it proposed. We have no evidence of the
origin of the conditions of the Giroux 15-Lot Commercial Subdivision, thus we do not consider this claim in our
analysis. It appears that Appellants seek to offer additional evidence to support their argument; however,
Appellants have failed to establish that this evidence was not available at trial, and we therefore deny any request
to re-open the evidence on this matter.
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Street, a Town-owned road, and Applicant would need a zoning permit from the Town to do so.
In pre-trial decisions, we explained that the Town need not be a co-applicant for site plan
approval, but that Applicant may need a permit from the Town pursuant to 19 V.S.A. § 1111
before it could install the stormwater pipe under Commerce Street. See In re Hinesburg
Hannaford CU, No. 129-9-12 Vtec, slip op. at 12 (Vt. Super. Ct. Envtl. Div. Sept. 16, 2015); In re
Hinesburg Hannaford CU, No. 129-9-12 Vtec, slip op. at 3 (Vt. Super. Ct. Envtl. Div. Oct. 27,
2015). Applicant now argues that our merits decision appears to grant Applicant “complete
approval to proceed forward with the project” even though Applicant has not received a Town
permit for the piping, and asks us to explicitly hold that Applicant cannot proceed forward until
it receives a permit from the Town for the 300 feet of stormwater piping under Commerce
Street. Appellants’ Rule 59 and 60 Mot. at 7, filed May 2, 2016.
       This claim is a rendition of a familiar argument that we have repeatedly rejected. In
approving Applicant’s site plan application, we found that Applicant’s stormwater plans, which
include a 300-foot pipe under Commerce Street, met applicable regulations. We did not
address whether Applicant may need subsequent approvals for various aspects of the Project,
including a Section 1111 permit from the Town for the stormwater piping. At the time of our
decision, a zoning permit for the piping had not been sought, and the issue was not before us.
To reach the issue would have been improper. See In re Intervale Center, Inc., No. 89-5-08
Vtec, slip op. at (Vt. Envtl. Ct. Feb. 24, 2009) (holding that court can only rule on issue if it
presents a live case or controversy). We therefore deny Appellants’ request to opine on
subsequent approvals that Applicant may require before all aspects of the Project may be
constructed.

   5. Factual Findings about Stormwater Lacked Footing in the Record
       Appellants argue that their expert’s testimony about the Project’s stormwater impacts
during the 50- and 100-year storm events went uncontradicted and that our holding approving
the Project’s stormwater system lacked adequate footing in the record. Appellants have made
clear that they disagree with the Court’s holding regarding the Project’s stormwater impacts.
Such a disagreement is not, however, sufficient grounds for a motion to reconsider. The
evidence Appellants now cite was properly before us and considered when we issued our

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decision, and Appellants’ contention that their evidence went unrefuted is not correct.
Ultimately, Appellants’ arguments are an effort to reargue issues that were previously
presented and considered, and fail to identify any manifest errors of law or fact. We therefore
deny Appellants’ request to reconsider and alter our decision.

   6. East-West Grass Swale
       Appellants claim that it was an error of law to approve Applicant’s stormwater system
because the proposed 200-foot long grass swale that runs east to west along the northern
border of Lot 15 (the East-West swale) will not function properly. Appellants argue that their
witnesses’ unrebutted testimony established that the swale will be inundated with standing
water, will be clogged with excess vegetation, and will provide a breeding ground for
mosquitoes. We do not agree with Appellants’ rendition of the facts. At trial, Applicant offered
testimony and detailed plans for the East-West swale.            This evidence included design
specifications and performance criteria. In approving Applicant’s stormwater measures, which
relied on the East-West swale to meet applicable regulatory standards, we did not rely on
future permitting or an improper condition subsequent; rather, we held that the grass swale
Applicant proposes—one that will perform to the standards Applicant represents—meets
applicable stormwater regulations. Appellants’ hypothetical scenarios of dysfunction are not
the conditions we approved. If Applicant installs a grass swale that performs differently than
offered, or that does not conform to the evidence presented, then Applicant will be in violation
of its site plan approval.      We therefore DENY Appellants’ request to alter our decision
concerning the East-West swale.

   7. Traffic Mitigation Measures
       Lastly, Appellants challenge two of the traffic mitigation conditions we imposed in our
Act 250 approval. First, they argue that it was improper for this Court to only require Applicant
to pay its proportional share of the traffic signal at the Mechanicsville Road and Route 116
intersection. Second, Appellants assert that our condition requiring the Town and Applicant to
conduct a post-development traffic study of the Route 116 and Commerce Street intersection
deprives Appellants of their statutory role in the proceedings because Appellants were not
afforded a role in the study.

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       Traffic is relevant to our site plan approval through the 2009 Hinesburg Zoning
Regulations (Regulations) § 4.3.4(1), which provides that the Court “shall take into
consideration” the “[s]afety of vehicular and pedestrian circulation on site and on the adjacent
street network.” In our site plan decision, we explained that the Project met this provision in
part because of the traffic conditions we imposed in our Act 250 approval. We did not,
however, impose either of the two challenged conditions as part of our site plan approval. We
thus question whether these concerns are appropriate for Appellants’ Rule 59 motion in the
Hannaford site plan matter, Docket No. 163-11-12 Vtec. Furthermore, Appellants have raised
nearly identical challenges in their Rule 59 motion in the related Act 250 matter, Docket No.
113-8-14 Vtec, and we fully address Appellants’ concerns there. Nevertheless, we will briefly
address the issues here.
       Turning fist to the traffic signal, the uncontradicted evidence was that the
Mechanicsville Road and Route 116 intersection currently experiences significant delays and
congestion and is at an unacceptable level of service (LOS). We cannot deny a project that
contributes to or exacerbates unreasonable congestion or unsafe conditions, but we can and
must impose mitigation to alleviate the unacceptable condition. See In re Agency of Transp.,
157. Vt. 203, 207 (1991). A traffic signal was the only mitigation offered for the existing and
projected traffic conditions at the Mechanicsville Road and Route 116 intersection, and no
party that participated at trial, including the Town of Hinesburg and the Natural Resources
Board (NRB), challenged the need for a signal or its appropriateness in addressing the traffic
conditions at the intersection. It was also undisputed that Applicant was not the sole cause of
the traffic problem—by Applicant’s calculations, the Project will contribute 9% of the traffic at
the intersection. We therefore concluded that a traffic signal was necessary mitigation, but
that Applicant need only pay its proportional share. We were clear, however, that the traffic
signal must be installed before the Project could move forward.
       Appellants now claim that we erred by not ordering Applicant to pay the full cost for the
traffic signal because the Regulations require full payment of necessary mitigation by a project
applicant, and we have no authority to require other parties to contribute to necessary
mitigation. Meanwhile, Applicant suggests that it should only be required to escrow $25,000—
about 9% of the total cost of the signal. Appellants fail to cite any provision of the Regulations
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for their assertion that an applicant must pay for all mitigation, and we find no support for this
in the language of Section 4.3.4(1). Based upon the evidence before the Court, we must impose
necessary mitigation in order to alleviate traffic impacts at the Mechanicsville Road and Route
116 intersection. We have no evidence as a basis to establish and delineate the details of the
financing or implementation of such mitigation. We acknowledge that Applicant is not the sole
cause of traffic concerns at the light, but only escrowing a proportion of the cost will not ensure
the mitigation is implemented. We therefore require that a traffic signal is installed before the
Project is completed. To clarify, while we only require Applicant to pay its proportional share,
Applicant may have to front the entire cost of the signal if it wants to proceed with the Project,
because without the signal the Project lacks our approval. Applicant is free to enter into
financing arrangements with other parties, and we make no attempt to offer details of such an
arrangement. We therefore deny Appellants’ request to alter our decision concerning the
traffic signal.
        As to the follow-up traffic study, upon further review of the evidence and in light of the
participation concerns raised by Appellants, we conclude that the traffic mitigation measures
are sufficient without a post-development study. The removal of this condition in no way
changes our conclusion concerning Section 4.3.4(1) of the Regulations. As we did not impose
the traffic study as part of our site plan approval, we need not alter our decision and therefore
deny Appellants’ request.
                                           Conclusion
        Our decision here clarifies our April 12, 2016 Decision on the Merits in Docket No. 163-
11-12 Vtec. Appellants fail to identify any manifest errors of law or fact or establish that our
decision will result in manifest injustice, and we therefore DENY Appellants’ motion to alter or
amend our final decision on the merits. As a result, no amended decision is necessary.


Electronically signed on July 07, 2016 at 09:32 AM pursuant to V.R.E.F. 7(d).




_________________________________________
Thomas G. Walsh, Judge

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Superior Court, Environmental Division




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