                                    Environmental Court of Vermont
                                           State of Vermont

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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 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, Attorneys for Appellants
          Daniel Desch, Christopher Hancock, & Christopher Rohan
Response filed on 01/12/10 by Appellee/Applicants Ralph & 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 for Partial Summary Judgment
(“Decision”).   Appellants claim that the Court erred in its determination
that two specific issues raised by the Appellants should not be summarily
dismissed.1 Appellants claim that the Decision should reflect, as a matter of
law, that the Appellees’ permit application does not comply with the
screening   requirements   or   the  pedestrian    facility   and circulation
requirements   of   the   Montpelier  Zoning   and    Subdivision Regulations
(“Regulations”). We begin our analysis with a review 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 relieve a party against the
unjust operation of a record resulting from the mistake 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 Estate, 118 Vt. 499, 502
(1955)). In order to establish the necessity of revision, 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) (quoting 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 prior 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 Procedure: Civil § 2810.1, at
127–28 (2d ed. 1995)).
      A motion to alter should also not be used to “relitigate 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.).    Additionally, 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. May 18,
2007) (Wright, J.).   In practice, “because of the narrow 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 matter of law, that the
Appellees’   proposed  vegetation   screening is   insufficient   to  satisfy
Regulations § 707.C.   In support, Appellants claim that the Court erred in
its analysis of the sufficiency of the vegetation screening by failing to
address Regulations §§ 708.E and 708.F.
      Regulations §§ 708.E and 708.F provide suggested methods for screening
and buffering “parking areas.” Id. These methods for implementing screening
and buffering are not mandatory; they are prospective 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 provide sufficient
screening under Regulations §707.C is a question that 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 motion for summary
judgment, we viewed the material facts in a light most favorable to the non-
moving party, who in this instance are Appellee/Applicants.    See Madkour v.
Zoltak, 181 Vt. 347, 351, 924 A.2d 11, 14 (2007). We also note that, at this
time, this Court has a limited perspective in comparison to that of the
parties, since the Court is not yet familiar with the neighborhood and
property at issue. With this limited perspective, and in an effort to view
the facts in the proper light, we again conclude that it is improper to
render a summary conclusion that Applicants’ proposed site plan provides
inadequate screening for this five-space parking area.           Our current
conclusion does not mean that at trial, judgment for Appellee/Applicants is a
foregone conclusion. Rather, we are simply concluding at this time that the
regulatory language does not support a summary dismissal 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 insufficient as a matter of
law. We continue to disagree. More important to our analysis here, a motion
to alter is not an avenue to relitigate the previously-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 failing to address
Regulations §§ 708.E and 708.F, when viewed more closely, the Appellants’
claim is more accurately characterized as a disagreement with the Court’s
analysis that the Regulations do not contain the mandatory 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’ motion
to alter fails in this regard. Only after the benefit of receiving evidence
at trial, including that which will be put into context by a site visit, can
the Court make a determination of what amount of additional screening for
these five parking spaces “may” be appropriate under the Regulations.
      Second, Appellants claim that the Court relied on mistaken, or
“mischaracterized,” factual information when making its decision regarding
pedestrian facilities and pedestrian circulation under 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 mischaracterized as relating to
“an increase in pedestrian traffic” rather than the pedestrian traffic that
will specifically result from the Appellees’ proposed parking lot.        The
individual pedestrian traffic and the overall increase in pedestrian traffic
are inter-related issues under Regulations § 703.C(2), which provides that
“pedestrian facilities shall be required whenever necessary 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 errors of fact or law
upon which the prior Decision was based.     In the absence 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 prior analysis by
viewing this issue in a light most favorable to Appellees. In so doing, and
solely for purposes of considering Appellants’ pre-trial motion, the Court
determined that a genuine dispute remained on the material fact of whether
the additional five-parking spaces would generate or increase pedestrian
traffic and whether additional pedestrian facilities would be necessary. We
concluded then, and now, that this is a disputed factual issue that may only
be resolved through trial.
      Prior to granting Appellants’ summary judgment request, 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 applicable law as requiring an
entry of judgment at this time.      Thus, an evidentiary 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 agree 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
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Date copies sent to: ____________              Clerk's Initials _______
Copies sent to:
Attorneys Stephen A. Reynes and Jesse L. Moorman for Appellants Daniel Desch,
   Christopher Hancock, and Christopher Rohan
Attorney James A. Caffry for Appellee/Applicants Ralph and Sharon Gerlach
Attorney Amanda Lafferty for the City of Montpelier
Kenneth Randall, Interested Person
