                                   STATE OF VERMONT
SUPERIOR COURT                                                     ENVIRONMENTAL DIVISION
Vermont Unit                                                          Docket No. 68-5-12 Vtec

                            Champlain Parkway A250 Permit

                             ENTRY REGARDING MOTIONS


Title:         Motion to Admit Prefiled Rebuttal Testimony (Motion 24)
Filer:         City of Burlington
Attorney:      Brian S. Dunkiel
Filed Date:    March 14, 2014

Response in opposition filed on 03/24/2014 by Attorney Carl H. Lisman for Appellant Fortieth
Burlington, LLC
Response filed on 03/24/2014 by Attorney Brian S. Dunkiel for Interested Person City of
Burlington

The motion is DENIED.

Title:         Motion to Delay Post-Hearing Filings (Motion 25)
Filer:         Fortieth Burlington, LLC
Attorney:      Carl H. Lisman
Filed Date:    March 24, 2014

Response in opposition filed on 03/24/2014 by Attorney Brian S. Dunkiel for Interested Person
City of Burlington

The motion is GRANTED.

       Fortieth Burlington, LLC (Fortieth), the remaining appellant in this action, appeals the
April 2012 District # 4 Environmental Commission decision approving the Champlain Parkway
project proposed by the City of Burlington (the City) and the Vermont Agency of Transportation
(VTrans) (together, Applicants). The issues remaining for trial related to traffic impacts. A two-
day merits hearing was conducted on February 11 and 13, 2014 at the Costello Courthouse in
Burlington, Vermont. Post-hearing filings were due March 14, 2014, with supplemental
responsive memoranda due March 28, 2014.
Champlain Parkway Act 250 Permit, 68-5-12 Vtec (EO on Post-Hearing Motions)(3-26-14) (p. 2 of 3)


                         Motion to Admit Prefiled Rebuttal Testimony

        In April and June 2013, the parties submitted prefiled witness testimony to the Court. In
August 2013, the City prefiled the rebuttal testimony of one of its witnesses, David Kahlbaugh.
At the start of the first day of trial, Mr. Kahlbaugh’s prefiled direct testimony was admitted by
stipulation. (Transcript of Feb. 11, 2014 at 6:22–7:6.) Also at this time, the City moved for the
admission of Mr. Kahlbaugh’s rebuttal testimony. Id. at 7:9–7:11. Fortieth objected, arguing
that the offer was premature since the parties had not presented their cases in chief. Id. at
7:14–7:21. The Court declined to admit the rebuttal testimony at that time and suggested that
the City could re-offer the rebuttal testimony following Fortieth’s case in chief, perhaps
requiring Mr. Kahlbaugh to return to the stand. Id. at 7:22–8:11. Although the City recalled Mr.
Kahlbaugh following Fortieth’s presentation of witnesses and elicited Mr. Kahlbaugh’s oral
testimony, it did not re-offer his prefiled rebuttal testimony. (Transcript of Feb. 13, 2014 at
179:4.)
         Now, following the close of evidence, the City files its post-hearing motion for the
admission of this prefiled rebuttal testimony, and Fortieth opposes the motion. Fortieth argues
that Mr. Kahlbaugh’s prefiled rebuttal testimony was never properly offered into evidence
because Applicants did not re-offer the testimony following the direct and cross-examination of
all of Applicants’ and Fortieth’s witnesses. (Fortieth Burlington, LLC’s Opposition to Admitting
Testimony at 2.) Fortieth further argues that the City’s failure to properly introduce the
testimony was a tactical decision and that the City has not offered a persuasive justification for
relief. Id. at 3. Finally, Fortieth argues that admitting the testimony post-hearing would deprive
them of the opportunity to cross-examine Mr. Kahlbaugh on his rebuttal testimony consistent
with Vermont Rule for Environmental Court Proceedings 2(e)(2) and due process principles. Id.
at 4.
       The City states that its failure to request a ruling on the testimony at the time of
rebuttal was not a strategic decision. (Applicants’ Memorandum in Opposition to Appellant
Fortieth Burlington, LLC’s Motion to Delay Post-Hearing Filings and Opposition to Admitting
Testimony at 1, filed Mar. 24, 2014.) Rather, the City argues, its omission but was, “at worst,”
an oversight due to the trial ending “at the very end of the day on which a large snowstorm was
entering the area.” Id. The City also alleges that Fortieth fully cross-examined Mr. Kahlbaugh
on the subject matter contained in his prefiled rebuttal testimony. Id.
        Rebuttal evidence is “offered by a party after he has rested his case and after the
opponent has rested in order to contradict the opponent’s evidence.” Black’s Law Dictionary
876 (6th ed. 1991). Moreover, prefiled testimony may be “admitted only if the witness is
present and available for cross-examination, unless the court and the parties otherwise agree
or the witness is unavailable . . . .” Vermont Rule for Environmental Court Proceedings
2(e)(2)(B). Although the parties knew the scope of Fortieth’s witness testimony in advance of
the hearing, a ruling on the admission of the City’s rebuttal was appropriately deferred until
after Fortieth rested its case. Because the City did not offer Mr. Kahlbaugh’s prefiled rebuttal
testimony when it recalled him, the Court made no such ruling and the prefiled rebuttal
testimony was therefore not admitted. Within the second day of the hearing, the City had the
opportunity to complete its live direct questioning of Mr. Kahlbaugh in its rebuttal, Fortieth
Champlain Parkway Act 250 Permit, 68-5-12 Vtec (EO on Post-Hearing Motions)(3-26-14) (p. 3 of 3)


cross-examined Mr. Kahlbaugh on this rebuttal, the City re-directed, and Fortieth re-crossed.
Fortieth’s cross-examination of Mr. Kahlbaugh’s rebuttal testimony was limited by the scope of
the City’s line of questioning upon recalling him. V.R.E. 611(b). Fortieth has had no opportunity
or reason to cross-examine Mr. Kahlbaugh on the prefiled rebuttal testimony that was not
admitted. Admitting this testimony post-hearing would deny Fortieth the opportunity to
conduct such cross-examination.
         Furthermore, the City’s motion essentially asks the Court to reopen the evidence, which
the V.R.C.P. treats as a motion for a partial new trial. In re Petition of Twenty-Four Vt. Utils.,
159 Vt. 339, 356–357 (1992); see V.R.C.P. 59(a). This Court has discretion as to whether or not
further evidence may be offered after the close of testimony. In re Bjerke, 2014 VT 13, ¶ 16
(citing Singh v. City of Hartford, 116 Conn. App. Ct. 50, 54 (2009)).
        Considering the totality of the situation, we find that Applicants set forth no compelling
reason why they failed to properly introduce the prefiled evidence at issue or why it should
now be admitted. We decline to reopen the evidence and conduct a new partial trial. The
City’s motion is therefore DENIED.

                             Motion to Delay Post-Hearing Filings
        Fortieth moves to extend the deadline for responsive memoranda due to the City’s post-
hearing motion to admit the prefiled rebuttal testimony. Because the exclusion of this
testimony may be relevant to any proposed findings and conclusions, the Court gives the
parties until April 7, 2014, to file any responsive memoranda.


So ordered.


____________________________                                ___________________
Thomas G. Walsh                                             Date
Superior Court Judge, Environmental Division


Notifications:
Carl H. Lisman (ERN 3882), Attorney for Appellant Fortieth Burlington, LLC
Brian S. Dunkiel (ERN 4594), Attorney for Interested Person City of Burlington
Elizabeth H. Catlin, Co-Counsel for Interested Person City of Burlington
Daniel D. Dutcher (ERN 1412), Attorney for Interested Person Agency of Trans. State of
Vermont

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