                                  STATE OF VERMONT

                               ENVIRONMENTAL COURT

                                                         }
In re: Deer View LLC PUD Subdivision Application         } Docket No. 182-8-07 Vtec
        (Appeal of Madden)                               }
                                                         }

           Decision and Order on Appellant’s Motions to Amend and to Compel

       Appellant John Madden appealed from a decision of the Planning Commission of

the Town of New Haven approving a six-lot commercial PUD subdivision. Appellant has

appeared and represents himself; Appellee-Applicant Deer View, LLC is represented by

Evan Punderson, Esq.; and the Town is represented by James Ouimette, Esq.

       The Court issued one Decision and Order on February 5, 2008, resolving Appellee-

Applicant’s motions to dismiss Questions 2 and 3 of the Statement of Questions, Appellee-

Applicant’s motion to dismiss the appeal for lack of standing, and Appellant’s motion for

summary judgment.

       The February 5, 2008 decision left open Appellee-Applicant’s motion for summary

judgment, as the scheduling order allowed Appellant more time to respond to it. The

February 5, 2008 decision noted that Appellant had not then filed any affidavits or other

material to counter the affidavit of Appellee-Applicant’s project engineer1, and clearly laid

out the standard that Vermont courts are required to apply in analyzing a motion for

summary judgment. Specifically, the February 5, 2008 decision explained that:



       1
          Anthony Stout, the author of the affidavit, is the senior land use planner at the
engineering firm retained by Appellee-Applicant; he did not hold himself out as an
engineer in his affidavit. Appellant’s motion to amend is GRANTED in that the Court will
correct references in the February 20, 2008 decision to him as the “project engineer” to more
accurately reflect his position in the engineering firm.

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              [i]n responding to a motion for summary judgment supported by
       affidavits and other evidentiary material, the nonmoving party “may not rest
       upon the mere allegations or denials in its pleadings.” White v. Quechee
       Lakes Landowners’ Ass’n, 170 Vt. 25, 28 (1999). Rather, V.R.C.P. 56(e)
       requires that the opposing party must set forth specific facts showing a
       genuine issue for trial. Dillon v. Champion Jogbra, Inc., 175 Vt. 1, 2–3 (2002).
       Those facts must be supported by affidavits or other evidentiary material.
       Morway v. Trombly, 173 Vt. 266, 270 (2001). It is not sufficient for the
       opposing party to rely on “conclusory allegations or mere conjecture.” Mello
       v. Cohen, 168 Vt. 639, 641 (1998). “[M]ere allegations of counsel unsupported
       by documented evidence are not enough to create a genuine issue of material
       fact” sufficient to preclude summary judgment. Progressive Ins. Co. v.
       Wasoka, 178 Vt. 337, 349, 2005 VT 76, ¶25.

The February 5, 2008 decision specifically gave Appellant more time and opportunity to

file any such responsive affidavits or otherwise to set forth specific facts showing a genuine

issue for trial, and specifically reiterated the deadline of February 15 for those filings.

       On January 27, 2008 (received January 28, 2008) Appellant had apparently sent

requests to answer what he had characterized as “depositions on written questions”( citing

V.R.C.P. 31), to Mr. Stout, as well as to two members of the State Police who had

investigated accidents in the area of Route 7 at issue in this appeal. The request to Mr.

Stout, attached to the present motion to compel, reflects that it was not accompanied by a

subpoena to attend a deposition before an officer, in the manner provided by V.R.C.P.

30(c), (e) and (f), as provided in V.R.C.P. 31(b), and did not provide for the production of

a record of the deposition as provided under those rules. Rather, the questions are

requested to be answered under oath before a notary public, and resemble the procedure

under V.R.C.P. 33 for written interrogatories.

       During the period between the filing of the “depositions on written questions” on

January 28, 2008, and the February 15, 2008 deadline for the filing of his response to

Appellee-Applicant’s motion for summary judgment, Appellant did not request a

reduction of the time for the answers to the written questions, or a reduction of the time

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provided in V.R.C.P. 31 for the filing of the questions and scheduling of the deposition.

V.R.E.C.P. 2(c); V.R.C.P. 33(a). Nor did Appellant request more time to respond to

Appellee-Applicant’s motion for summary judgment due to the time required for responses

to the “depositions on written questions.”

       Appellant did not file any further factual material or affidavits by the deadline of

Friday, February 15. Due to the postal holiday on Monday, February 18, the Court waited

until the mail had been received at the Court on Tuesday February 19 and Wednesday,

February 20, before ruling on Appellee-Applicant’s Motion for Summary Judgment.

       The February 5, 2008 decision had explained that, as discussed in In re Morris 7-Lot

Subdivision, 71-4-07 Vtec (Vt. Envtl. Ct. Nov. 26, 2007), each party’s motion for summary

judgment is analyzed giving the nonmoving party the benefit of all reasonable doubts and

inferences. Alpine Haven Property Owners Ass'n, Inc. v. Deptula, 175 Vt. 559, 561, 2003

VT 51, ¶8. The February 20, 2008 decision granting Appellee-Applicant’s Motion for

Summary Judgment discussed that Appellant had presented some accident data but had

“not filed any affidavits of any expert or other witnesses linking this accident data to the

location, topography or sight distances that could be affected by the proposed intersection

of the project driveway with Route 7,” to counter the affidavit filed by Appellee-Applicant.

       Even giving Appellant, as the nonmoving party, the benefit of all reasonable doubts

and inferences in analyzing Appellee-Applicant’s motion for summary judgment, the

February 20, 2008 decision concluded that:

       Appellant’s accident report information, taken alone without any expert
       opinion linking that information to the proposed project driveway, does not
       raise a reasonable inference regarding the potential effect of the project
       driveway on public safety on Route 7. Appellant has not come forward with
       any disputed material facts for trial regarding the topography of Route 7 and
       other roadways in the project’s vicinity, or regarding the long unobstructed
       sight distances north and south of the project driveway. Appellant has not
       shown that material facts are in dispute to raise a genuine issue for trial


                                             3
       regarding the opinion expressed in the project engineer’s2 affidavit that the
       layout and design of the proposed PUD subdivision access driveway will not
       cause any danger to public safety as to the traffic using Route 7.

       Appellant moved under V.R.C.P. 59 to correct or amend the decision and order on

March 5, 2008; the filing was timely within the 10 day time period allowed under V.R.C.P.

59, as time is to be computed under V.R.C.P. 6(a). The motion requests that the February

20, 2008 decision and order be vacated until Appellant can include in his memorandum the

responses to the outstanding “depositions on written questions.” In the same filing,

Appellant also moved to compel answers to those questions. The State of Vermont is not

a party to this appeal, and Appellant does not appear to have sent a copy of his motion to

any representative of the State or of the State Police. Appellee-Applicant’s response to the

motion to compel is simply that it is moot as the February 20, 2008 decision and order

disposed of the case.

       The timely filing of the V.R.C.P. 59 motion allows the Court to consider these issues;

they are not moot.

       As to the members of the State Police, the Motion to Compel is DENIED. Neither

the specific officers, the State Police, nor the State of Vermont are parties to the action. The

procedures of V.R.C.P. 31 and 30 have not been followed, but in any event, on the present

record, the officers would be entitled to the protection of V.R.C.P. 45(c)(3)(B)(ii) regarding

the opinion of unretained experts.

       As to the questions posed to Mr. Stout, because the February 20, 2008 decision was

granted in Appellee-Applicant’s favor due to Appellant’s failure to provide countering

evidence and affidavits, and because Appellant had sought such information prior to the

closure of the time for such responses, Appellant’s motion to compel is hereby GRANTED

in PART as follows. The questions will be treated as written interrogatories and shall be

       2
           See footnote 1, above.

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answered on a schedule as provided in the final paragraph of this decision. If, on the basis

of the answers, Appellant then moves under V.R.C.P. 60(b) for relief from the February 20,

2008 decision, order, and judgment, the Court will address such motion at that time. Please

note that V.R.C.P. 60(b) provides that the filing of a V.R.C.P. 60(b) motion “does not affect

the finality of a judgment or suspend its operation.”



        Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that

Appellant’s motion to amend under V.R.C.P. 59 is GRANTED in PART, as stated in

footnote 1, above. A copy of the corrected decision is attached with the corrections in bold

type; the corrected version will also be posted on the Court’s website.

        Appellant’s motion to compel answers to the “deposition upon written questions”

posed to the members of the State Police is DENIED, as discussed above. As the motion

to compel itself does not appear to have been served upon any representative of the State

or the State Police, a courtesy copy of this ruling will be sent to the Office of the Attorney

General.

        Appellant’s motion to compel answers to the “deposition upon written questions”

posed to Mr. Stout will be treated as if the questions were posed as written interrogatories,

and is GRANTED in PART as discussed above. On or before April 10, 2008, Appellee-

Applicant shall file a proposed schedule with the Court stating when the answers from Mr.

Stout will be provided, in the form of sworn answers to interrogatories. Appellee-

Applicant shall also file a certificate of service with the Court when those answers have in

fact been mailed to Appellant. If Appellant believes that the answers provide a basis for

asking the Court for relief from the February 20, 2008 decision and order on summary

judgment, and files such a motion under V.R.C.P. 60(b), the Court will consider it at that

time.



                                              5
      The February 20, 2008 decision and order, as amended, and the accompanying

judgment order, remain in effect and this appeal remains concluded.



      Done at Berlin, Vermont, this 3rd day of April, 2008.




                           _________________________________________________
                                 Merideth Wright
                                 Environmental Judge




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