                                 STATE OF VERMONT
SUPERIOR COURT                                           ENVIRONMENTAL DIVISION
Vermont Unit

Hinesburg Hannaford CU Approval;                        Docket No. 129-9-12 Vtec


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


Hinesburg Hannaford Subdivision Revision                Docket No. 68-5-14 Vtec


Aubuchon (FH Plaza) SP Revision
                                                        Docket No. 69-5-14 Vtec
Application


Automotion SP Revision Application                      Docket No. 70-5-14 Vtec


Hinesburg Hannaford Wetland
                                                        Docket No. 73-5-14 Vtec
Determination


Hinesburg Hannaford Act 250 Permit                      Docket No. 113-8-14 Vtec


Hinesburg Hannaford Water Quality
                                                        Docket No. 114-8-14 Vtec
Certification


      Decision on Motions to Strike and Motions for Entry of Judgment and/or Remand
       The matter before the Court relates to a proposed 36,000 square foot Hannaford
grocery store and pharmacy with associated parking on Lot 15 of the Commerce Park
subdivision (the Project) in the Town of Hinesburg, Vermont (the Town). Martin’s Foods of
South Burlington, LLC (Applicant) is the project developer. This development proposal requires
multiple state and local use permits and decisions. There are eight coordinated appeals
pending before the Court involving five municipal decisions, two decisions of the Agency of
Natural Resources related to wetlands and water quality, and a State Act 250 Land Use Permit.
The Court has already decided more than a half dozen motions related to these coordinated
appeals, the matter is set for trial, and the parties have begun to submit pre-filed testimony.
This decision addresses four new motions filed by a group of interested persons: Catherine
Goldsmith; James Goldsmith; Jean Kiedaisch; John Kiedaisch; Chuck Reiss; Sally Reiss; Lindsay
Hay; Brian Bock; Natacha Liuzzi; Mary Beth Bowman; Wendelin Patterson; Bethany Ladimer;
Kate Schubart; Michael Sorce; Dark Star Properties, LLC; and Responsible Growth Hinesburg, an
association of Hinesburg residents (collectively, Appellants). Two of the motions seek to strike
portions of the pre-filed testimony of a number of Applicant’s witnesses as well as portions of
some of Applicant’s exhibits. The other two motions, relying in part upon the motions to strike,
ask for judgment in Appellants favor or, in the alternative, for remand to the bodies appealed
from.
        Applicant is represented by Christopher D. Roy, Esq.; Appellants are represented by
James A. Dumont, Esq.; the Vermont Agency of Natural Resources is represented by Leslie A.
Welts, Esq. and Elizabeth Lord, Esq.; the Vermont Natural Resources Board is represented by
Peter J. Gill, Esq.; and the Town is represented by Ernest M. Allen, III, Esq.
I.      Motions to Strike
        Appellants have filed two motions seeking to strike certain portions of the pre-filed
testimony of Applicant’s witnesses Robert Bast, Michael Willard, Paul O’Leary, David White,
Adam Crary, and Jeffrey Nelson. The objections fall into two general categories. First, for each
witness, Appellants object to any testimony regarding the content, meaning, interpretation, or
application of the legal standards governing the various appeals before the Court. Second,
Appellants object on hearsay grounds to reference to or discussion of the decisions appealed
from in these de novo appeals. We address these general categories first and then specifically
consider each witness’s testimony.
        i.     Testimony as to legal standards and ultimate issues to be decided by the Court
        Many of Appellants’ objections to Applicant’s pre-filed testimony relate to Applicant’s
expert witnesses’ testimony regarding the local and state regulatory standards applicable in
reviewing the Project and the opinions of the experts explaining why, in their opinion, the
project satisfies the requirements. Appellants argue that Applicant’s witnesses may not testify
as to the requirements or interpretation of a statute or ordinance. Appellants also assert that


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testimony as to whether a project satisfies a legal standard should be treated the same as
testimony describing the legal standard itself. Applicant responds that all of its pre-filed
testimony is relevant in these proceedings and is not otherwise inadmissible, and that
Appellants’ objections go to the weight of the evidence and not its admissibility.
       Vermont Rule of Evidence 704 states that “[t]estimony in the form of an opinion or
inference otherwise admissible is not objectionable because it embraces an ultimate issue to be
decided by the trier of fact.” The Reporter’s Notes to Rule 704 state that “[t]he purpose of the
rule is to avoid arbitrary line drawing between ‘ultimate’ and lesser issues that would inhibit the
natural presentation of testimony which Rules 701 and 702 are intended to secure.” Thus,
testimony that is “otherwise [a] helpful expression of opinion” should not be excluded simply
because it coincides with an issue to be decided by the Court. Reporter’s Notes, V.R.E. 704
(citing Cadel v. Sherburne Corp., 139 Vt. 134, 137 (1980); State v. Norton, 134 Vt. 100, 102–04
(1976)). Notwithstanding this inclusionary rule, testimony that gives nothing more than a bare
assertion of an ultimate legal conclusion is inadmissible as it provides no helpful information to
the fact finder. See V.R.E. 701, 702; see also Riess v. A.O. Smith Corp., 150 Vt. 527, 530–31
(1988). “On the other hand, where the question involves an ultimate issue, but is not phrased
in terminology carrying a precise legal definition that may be at variance with the common
meaning of the terms, the decisions allow it.” Riess, 150 Vt. at 532.
       Related to the prohibition of opinions on the “ultimate issue” is the prohibition on
witnesses testifying as to what the law is. “As a general rule, a witness may not give his opinion
on questions of law for the determination of such questions is exclusively within the province of
the court.” Town of Brighton v. Griffin, 148 Vt. 264, 271 (1987) (internal citation omitted)
(citing Holton Estate v. Ellis, 114 Vt. 471, 476 (1946)). In Brighton, the Vermont Supreme Court
upheld the trial court’s exclusion of testimony of a State employee as to the meaning of
provisions of Title 24 of the Vermont Statutes and the Brighton zoning ordinance.
       Both of these classes of testimony—opinions on the ultimate issue and on questions of
law—are not relevant or helpful to the Court as they provide no information to assist the
decision maker, but rather infringe on the Court’s obligation to determine what the law is, both




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generally and with regard to specific questions before the Court. The complained-of testimony
here, however, does not fall into either category.
       For example, the testimony of Robert Bast, a registered architect who designed the
Project building, discusses the provisions of the Hinesburg Zoning Regulations (Zoning
Regulations or Regulations) that he considered in designing the Project and explains why, in his
opinion, the Project complies with the Regulations he considered. His testimony relative to
compliance with Act 250 Criterion 8 is also structured around the analysis known as the
“Quechee test.” Mr. Bast testifies as to his understanding of the elements of the Quechee test
in order to testify as to his opinions on whether the Project will have an undue adverse effect
on the character of the area. Mr. Bast’s testimony does not present to the Court what he
believes the Quechee test or the Regulations to mean, but rather states the regulatory
provisions he considered in designing the Project and in rendering his opinion on the Project
design. Thus, while it is not helpful to hear an expert witness offered for his architectural
expertise recite the meaning of Act 250 Criterion 8, it is equally unhelpful to draw an arbitrary
line that says the witness can make no mention of the regulations he considered in designing
the project, especially since the regulations provide context and structure for his testimony.
Mr. Bast’s testimony relates to the aesthetic character of the Project and the surrounding areas
and what he took into consideration in designing the Project. The references in his testimony to
the regulations do not change this. If Appellants believe Applicant’s witness designed or
reviewed the Project based on the wrong standards and therefore the Project does not
conform to the governing regulations, Appellants will have ample opportunity to explore those
topics through cross-examination.
       ii.     Testimony regarding the decisions appealed from.
       Appellants also object to Applicant’s witnesses’ testimony regarding the proceedings
below on grounds that such testimony is inadmissible hearsay and is irrelevant in these de novo
proceedings. Appellants’ objection is unavailing. The decisions of the municipal panel, Act 250
District Commission, or of the Agency of Natural Resources are not being offered for the truth
of what is asserted in the decisions. Rather, they provide background information on the
history of the processes appealed from. The Court gives no deference to and is not bound by


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the decisions appealed from, but rather considers the appeals anew. This review process does
not make the entirety of the decisions below irrelevant. Nor does it prohibit a witness who was
involved in proceedings below from testifying as to the application presented below, changes
from that application to what is now presented in these de novo proceedings, or even the
substance of the decisions themselves.
       Furthermore, even where a decision is hearsay, this Court is permitted to exercise
discretion and admit evidence otherwise inadmissible where “it is of a type commonly relied
upon by reasonably prudent persons in the conduct of their affairs.” V.R.E.C.P. 2(e)(1). The
documents submitted as part of the proceedings below, testimony relative to what happened
at those proceedings, and stray references to the decision appealed from in the testimony of
Applicant’s expert witnesses will not be excluded. The decisions provide helpful background
and context for the proceedings and tend to show how the Project design has been altered in
response to criticisms. The prior decisions and testimony about them are admissible for this
purpose.
       iii.   Specific objections to the testimony of certain witnesses
              a. Robert Bast
       Appellants’ motion to strike the testimony of Applicant’s architect, Robert Bast, is
generally resolved by the discussion above. The Court has reviewed his testimony and finds
that his references to the zoning regulations and to Act 250 Criterion 8 are not offered to tell
the Court what those standards mean or even that they apply to the Project, but only that they
are what Mr. Bast considered in designing the project. References to those standards are
necessary context for his opinions. Appellants argue that Mr. Bast may have an incorrect
assessment of what the standards mean, and therefore, he should not be allowed to testify that
the Project complies. Such concerns are more appropriate for cross-examination and are not
grounds to strike testimony. Additionally, Appellants argue that Mr. Bast is not qualified to
testify as to the content or meaning of the “Quechee test,” as he has not read the Quechee
Lakes decision and has no specialized knowledge on applying the test. This argument
fundamentally misses the point of Mr. Bast’s testimony. Mr. Bast does not testify as to what
the test is, where it came from, or even how the Court should apply it. He only uses its very


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common framework to structure his otherwise helpful and admissible opinions. The motion to
strike the testimony of Robert Bast is therefore DENIED.
        Appellants also object to Exhibit 26, a memorandum prepared by Mr. Bast summarizing
the ideas generated during a public meeting on the Project design, on hearsay grounds. The
memorandum, however, is not being offered for the truth of the matter but for its effect on Mr.
Bast as he worked on the Project design. The motion to strike Exhibit 26 is DENIED.
               b. Michael Willard
        Michael Willard is Applicant’s landscape architect who prepared or provided oversight
for the landscaping and lighting plan, sheet L1 of Hannaford Exhibit 4. Appellants again object
to Mr. Willard testifying that the Project landscaping complies with the Landscaping Plan &
Standards provision in the Hinesburg Zoning Regulations. See Hinesburg, Vt., Zoning
Regulations § 4.3.8 (2014). It is helpful to the Court to have Mr. Willard testify as to what
landscaping elements are proposed for the Project and how, in his opinion, those elements
satisfy the requirements of the Regulations. While the ultimate issue of compliance must be
determined by the Court, Mr. Willard’s testimony does not provide grounds for objection
simply because it embraces this ultimate issue. V.R.E. 704. Testimony as to compliance, with
nothing more, would be unhelpful. But, where the witness fully describes how and why he
formed his opinion that the Project complies with the regulations, the testimony provides the
Court with useful information and will not be excluded.
        Appellants also move to strike Mr. Willard’s testimony related to Act 250 Criterion 8 for
the same reasons they object to Mr. Bast’s testimony, and the Court denies the motion for the
same reasons. The motion to strike the testimony of Mr. Willard is DENIED. If Appellants
disagree with the opinions of Mr. Willard or the methodology he used in forming those
opinions, they will have an opportunity to challenge the opinions through cross-examination.
               c.   Paul O’Leary
        Appellants’ first objection to the testimony of Mr. O’Leary relates to the use of a
neighboring property as part of the Project’s stormwater management system. This issue has
been withdrawn by the Appellants as Applicant has altered the stormwater plan to eliminate
this issue.


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       Appellants also move to strike essentially all of Mr. O’Leary’s testimony on the grounds
that his “opinions and conclusions are irrelevant and lack necessary foundation because his
Hydrocad modeling relies upon use of Town of Hinesburg property for placement of 300 feet of
drainage pipe – but Hannaford possesses no agreement with or deed from the Town allowing
this use of its land, and no such agreement or deed can be provided in the future.” (Mot. to
Strike at 16, filed Jun. 11, 2015). The fact that Applicant may need future authorization for
construction of part of the stormwater management system does not mean the Court cannot
review, consider, deny, or grant approval conditioned on that future authorization. The Court
addressed a similar argument made by Appellants in its March 4, 2015 decision. Appellants
contend that, based on their interpretation of the governing statute, 19 V.S.A. § 1111, Applicant
cannot obtain approval for the use of the Town highway to install the drainage pipe. First, as
discussed below in Section IV, the Court disagrees with Appellants’ reading of section 1111. But
more importantly, even if it were impossible for Applicant to obtain permission for its necessary
stormwater pipe under section 1111, that does not in any way prevent this Court from making
the legal determination that the Project as proposed either does or does not comply with State
and municipal regulations, and it certainly does not make the otherwise admissible testimony
of Applicant’s engineer inadmissible.
       The remaining objections to Mr. O’Leary’s testimony fall into the general categories
discussed above. Mr. O’Leary’s testimony as to what regulations he believes govern review of
the Project are not admitted for the truth of the matter, but rather to establish what he
considered in designing and reviewing the project and to structure his testimony.            His
references to the proceedings below are likewise provided to add context, describe the effect
of those proceedings on the project design, and to structure his testimony. The motion to
strike the testimony of Mr. O’Leary is DENIED.
              d. David White
       Appellants first move to strike the entirety of Mr. White’s testimony because he will be
paid a contingency fee for his testimony based on the outcome of the case. This argument is
unsupported by the facts offered by Appellants. In his deposition, which was provided in
support of this motion to strike, Mr. White testified that he has been and will continue to be


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paid hourly for his work. His associate, Mr. Burke, who assisted with locating and purchasing
the subject property, will be paid a brokerage when all permits are received and the appeal
time concluded, and another when the store opens. This is not, as Appellants argue, Mr. White
being paid to testify in court on a contingency basis. Furthermore, Mr. White’s opinions are
based on plans and reports he created over his many years working on this project, and the
Court sees no risk that his testimony will in any way be influenced by the brokerage fee to be
paid to his partner, and therefore, no reason to exclude his testimony on this basis. If
Appellants wish to cross-examine Mr. White regarding his compensation and any changes to his
opinions relative to the Project, they are free to do so at trial.
       The majority of Appellants’ remaining objections to Mr. White’s testimony fall into the
categories already discussed. Mr. White’s opinions provide context, background, and structure
to his otherwise admissible testimony regarding the Project design.
       Appellants also argue that Mr. White is not qualified to testify regarding the adequacy of
the stormwater system, traffic safety issues, or visual aesthetic impacts of the project, as
insufficient foundation has been laid for his qualifications as an expert regarding these issues.
Mr. White has over thirty years of experience in real estate development in Vermont, including
experience as a city planner and as a project manager. His work includes overseeing architects,
engineers, landscape architects, traffic experts and the like. He has played a significant role in
the design of this Project as it relates to the very issues Appellants argue he is unqualified to
testify about. Appellants’ arguments go to the weight and not the admissibility of Mr. White’s
testimony. Applicant has met the burden of establishing sufficient experience, education, and
personal knowledge of the Project plans to qualify Mr. White to testify regarding all elements of
the Project design.
       Appellants further object to Mr. White’s testimony regarding visual simulations created
using a program called “PepperChrome.” They argue that Applicant has not laid sufficient
foundation because Mr. White does not know if the person who created the simulations is a
landscape architect, is unaware of the person’s credentials, and has only spoken with the
person over the telephone. Mr. White’s testimony does establish that the PepperChrome
simulations are based on actual photographs of the site (which he took) and computer-aided


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drafting (CAD) plans of the proposed development (with which he is familiar). The result, he
testifies, is a highly accurate representation of what the developed lot will look like. Sufficient
foundation has been laid for admission of the PepperChrome simulations and Mr. White’s
testimony regarding them. The motion to strike Mr. White’s testimony is DENIED in full.
                 e. Adam Crary
       Appellants object to certain testimony of Adam Crary, a senior wetland scientist,
regarding the Project’s impacts on wetlands. Appellants again object that Mr. Crary cannot
testify as to the State and federal legal standards that govern classification and protection of or
development within a wetland. Here again, his testimony as to what regulatory provisions he
considered is helpful to structure his otherwise admissible testimony, and is therefore not
objectionable.     See V.R.E. 704.     Appellants also object to his testimony about the
hydrogeological function of wetlands as he is a wetlands biologist. Mr. Crary has, however,
established sufficient experience and education to qualify him to testify regarding the functions
of wetlands, including hydrogeological functions. Appellants will have an opportunity to cross-
examine Mr. Crary regarding his conclusions as to those functions and the basis for those
conclusions.
       Appellants also object to testimony regarding permits issued by and correspondence
from the Vermont Agency of Natural Resources and the United States Army Corps of Engineers.
These documents and Mr. Crary’s testimony are admissible to establish the history of the
regulatory proceedings and how Applicant responded to the correspondence. Such permits
and related agency correspondence are commonly relied upon by developers and interested
parties and they are therefore admitted.       The motion to strike Mr. Crary’s testimony is
therefore DENIED.
                 f. Jeffrey Nelson
       Appellants object to the testimony of Mr. Jeffrey Nelson, a hydrologist and
hydrogeologist who testified regarding the stormwater treatment and management system and
other water-related impacts of the Project. Appellants move to strike all of Mr. Nelson’s pre-
filed testimony on the same grounds on which they objected to Mr. O’Leary’s testimony:
because the stormwater management system relies on the use of an as yet unapproved pipe


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along the Town highway, the Project cannot be approved. For the reasons describe above, the
motion to strike is DENIED. The remaining motions to strike Mr. Nelson’s testimony also
overlap with the objections discussed above and are also DENIED for the same reasons.
II.    Motion for Judgment Regarding Parking
       Appellants have moved for judgment in their favor based on the facts presented in
Applicant’s pre-filed testimony pursuant to Vermont Rules of Civil Procedure 52 and/or 56.
Appellants argue that because the Project proposes parking in the front yard in violation of the
Regulations, the application should be denied. Applicant asserts that there is no parking
proposed in the front yard, and therefore, Appellants are not entitled to judgment.
       The applicable provision of the Regulations states:
       “Parking and loading areas for any new structures shall be located in the side or rear
       yards of the structure. Where sufficient screening is provided, and with Development
       Review Board approval, up to 20% of the total number of parking spaces may be located
       in the front yard of the structure.”

Hinesburg, Vt., Zoning Regulations § 5.6.3 (2014). The Regulations define “Yard, Front” as “[a]
yard on the same lot with a principal building, extending the full width of the lot and situated
between the centerline of the street or right-of-way and the front line of the building extending
to the side lines of the lot.” Id. § 10.1. Here, the lot is bordered to the southeast and east by
Mechanicville Road. Northerly access is provided by way of a right-of-way to Commerce Street.
Apart from the access road, the lot does not border on Commerce Street; rather, there are
several properties and existing structures that separate the lot from Commerce Street. The
northern side of the lot nearest to Commerce Street is not the front yard. Thus, based on the
evidence thus far presented, the area between the building and the lot line bordering
Mechanicsville Road would be the “front yard.”
       While some confusion is created by the reference to the “front line of the building” in
the definition of “Yard, Front,” the Court understands section 5.6.3 to be intended to prohibit
large parking areas between a building and a travelled roadway. Thus, whichever side of the
building faces the roadway is considered the “front line of the building” for the purposes of
defining the front yard. To hold otherwise would lead to an absurd result. Appellants argue the
common understanding of the “front” of a building would be the side providing access to the

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building and having signage. Where, as here, the regulations prohibit locating parking in the
“front yard,” it makes little sense to locate the building entrance on a different side of the
building than the parking. Where the parking is located on the opposite side of the building
from the travelled road way, the entrance can be located on the same side without converting
that side into the “front yard.” Thus, based on the plain language of the Regulations and the
evidence before the Court, Appellants are not entitled to judgment regarding compliance with
the parking regulations. The motion is DENIED.
III.   Motion for Judgment on Act 250 Criteria 8 and 9(K) and Act 250 Rule 34(E)
       Appellants have also moved for judgment in their favor on Act 250 Criteria 8 and 9(K),
arguing that if their motions to strike are granted, Applicant would fail to meet its burden of
production as to those criteria. As the motions to strike are denied, and as Applicant has
submitted significant testimonial and documentary evidence to the Court thus far, the motion
for judgment is DENIED.
       Appellants also argue that Applicant has failed to provide any testimony relative to Act
250 Rule 34(E), also known as the Stowe Club Highlands test, and they are entitled to judgment
as a matter of law on that issue. Rule 34(E) prohibits the amendment of an Act 250 permit
condition that was critical to the issuance of the initial permit where the Court determines that
finality of that condition outweighs any flexibility in the permitting process. Applicant argues
that, based on the language of the prior Act 250 permit and the Project description, the Court
could conclude that the Project does not seek to amend any permit condition that was critical
to issuance of the permit and therefore Rule 34(E) does not apply. Based on Applicant’s
assertions, the Court cannot conclude at this time that Appellants are entitled to judgment on
the Rule 34(E) issue. The motion is DENIED.
IV.    Motion to Dismiss the Application for Failure to have the Town as a Co-Applicant
       Appellants move to dismiss the appeal because the Town did not sign the Act 250 or
municipal applications and has not appeared as a co-applicant.
       The Court’s understanding at this preliminary stage is that the Town is not the owner of
involved land; it rather owns a right-of-way. Furthermore, Applicant does not need an
easement or property interest for the proposed stormwater pipe, but rather a permit to use the


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highway pursuant to 19 V.S.A. § 1111(c). Subsection 1111(c) authorizes town selectboards to
issue permits for the installation of “pipes and wires” under town highways. Subsection
1111(d) authorizes the State Agency of Transportation to issue permits for private “sewer or
water lines” in public highways. Appellants’ primary contention is that the stormwater pipe is a
“sewer line,” see 24 V.S.A. § 3501 (defining “sewage”), and that, because subsection (d) gives
the State Agency of Transportation the right to issue a permit for sewer lines but makes no
reference to municipal approval for sewer lines, a municipality cannot grant approval for a
stormwater pipe.     This interpretation ignores the plain “pipes and wires” language of
subsection (c)—language that is broad enough to encompass sewer lines—and would lead to
irrational results. If the Court were to accept Appellants’ interpretation of the statute, no
private party in the State of Vermont could obtain permission to place a culvert or other
stormwater conveyance within a municipality-owned right-of-way.           This runs contrary to
common sense and longstanding practice, and we therefore reject this interpretation.
       Thus, Applicant does not need any property interest in the Town-owned right-of-way,
but rather only a permit to place a drainage pipe. Further, as the Town is not the owner of
involved land, it need not have signed the application or be a co-applicant. For all the reasons
discussed above, the Court retains jurisdiction to hear the Act 250, municipal, and State permit
appeals now before the Court. If Applicant needs additional permits or approvals, those
proceedings are beyond the scope of the Court’s current reviews. The motion to dismiss is
therefore DENIED.
V.     Motion for Judgment Regarding Conditional Use Review
       The proposed grocery store is a permitted use within the commercial district where it is
located. It does not, therefore, need to go through conditional use review. The grocery store
must, however, comply with the prescribed hours of operation for commercial or industrial
uses within the commercial district. Section 4.3.6 of the Zoning Regulations states that “[n]o
commercial or industrial use shall operate outside the hours of 6:00 a.m. to 10:00 p.m. without
the conditional use approval of the Development Review Board.” Applicant seeks approval for
interior cleaning and re-stocking work outside of the hours of 6:00 a.m. to 10:00 p.m.
Appellants argue that the entire project must meet all conditional use criteria, and review is not


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limited to the issue of whether the additional hours of operation alone are allowed. The Court
disagrees.
       Section 4.3.6 allows the Development Review Board to allow a commercial use to
operate outside the stated hours, provided the applicant can satisfy the Board that certain
adverse impacts will not result from the extended hours. Nowhere does section 4.3.6 indicate
that the otherwise permitted use shall be treated as a conditional use because the use will
operate until 10:30 p.m. instead of 10:00 p.m. To the extent this section can be read to mean
what Appellants’ suggest, the regulation is ambiguous and we are directed by law to resolve all
ambiguities in favor of the landowner. In re Weeks, 167 Vt. 551, 555 (1998) (citations omitted).
As Applicant has provided testimony relative to approval for the extended hours, Appellants’
motion for judgment on that issue is DENIED.
                                          Conclusion
       Appellants’ two motions to strike are DENIED.           Based on the testimony and
documentary evidence presented to the Court thus far, the Court cannot say that Appellants
are entitled to judgment as a matter of law on any issue raised in this appeal. The two motions
for judgment and/or remand are DENIED.
       ON SEPTEMBER 9 PARTIES FILED A LETTER EXPRESSING THE INTENT TO FILE
ADDITIONAL MOTIONS TO STRIKE CERTAIN PRE-FILED TESTIMONY AND RESPONSES THERETO.
THE COURT ENCOURAGES THE PARTIES TO CONSIDER THE ABOVE DECISION AND EXCERSIZE
RESTRAINT WITH RESPECT TO THE FILING OF ADDITIONAL PRE-TRIAL MOTIONS.




Electronically signed on September 16, 2015 at 12:09 PM pursuant to V.R.E.F. 7(d).




_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division




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