STATE OF VERMONT
ENVIRONMENTAL COURT
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Appeals of Valsangiacomo, et al. } Docket Nos. 130‐8‐03 Vtec and 64‐4‐04 Vtec
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Decision and Order on Post‐Judgment Motions
In Docket No. 130‐8‐03 Vtec, Appellants Oreste and Helen Valsangiacomo, Donald
and Valencia Giroux, Karen Lane, Joelen Mulvaney, Richard and Joan Parnigoni, Yvette
Roy, Madeleine Simonetta, Edward Stanak, Mary Welch and Richard Wobby, Sr., appealed
from the July 21, 2003 decision of the Development Review Board (DRB) of the City of
Barre, approving an application to demolish a former convent building at 79 Summer
Street. That appeal was effectively superseded by or merged into Docket No. 64‐4‐04 Vtec,
in which the same appellants except for Richard Wobby, Sr., appealed from the March 9,
2004 decision of the DRB to approve the demolition of the convent in connection with its
approval of a site plan for construction of an addition to the school and a two‐car garage
to serve the rectory, with associated redesign of the on‐site vehicular and pedestrian
circulation and parking, access to the street, paving, and landscaping, including relocation
of an existing statue and memorial garden. Appellants are represented by Stephanie J.
Kaplan, Esq.; Appellee‐Applicants Roman Catholic Diocese of Burlington and its Parish of
St. Monica are represented by William M. O’Brien, Esq.; the City of Barre is represented by
Oliver L. Twombly, Esq.
In the decision on the merits of the appeals, this Court denied the site plan proposal
for failing to provide adequate vehicular access, circulation and parking, and for failing
adequately to separate vehicles and pedestrians. In that decision, the Court determined
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that
improvements to the on‐site circulation and parking on the St. Monica
campus associated with the dropping off and picking up of the school
children would provide a significant benefit to the city if the improvements
were to reduce the potential for vehicle‐to‐vehicle conflict and vehicle‐
pedestrian conflict on the nearby streets and sidewalks during the drop‐off
and pick‐up periods for the school. That is, it would benefit the
municipality, as well as the users of the St. Monica campus, to move this
currently chaotic and unsafe student drop‐off and pick‐up function onto the
St. Monica campus. There is no question that the current situation is chaotic
and dangerous, and that a well‐designed one‐way loop system would be an
improvement in safety, especially for the children.
However, the Court determined that the proposed site plan would not adequately perform
that function. The site plan application was therefore denied without prejudice to
Appellant‐Applicants’ redesign of and application for a future parking and on‐site
circulation proposal to provide safe play areas for the children; adequate and orderly on‐
site parking; and a circulation scheme that would facilitate the drop‐off and pick‐up
functions discussed in this decision, as well as the other uses on the St. Monica campus.
Because the ordinance allowed consideration of approval of the proposed
demolition of the convent only in conjunction with the approval of a specific site plan, and
because the proposed site plan was denied, the demolition of the convent was also denied.
The denial of demolition was made specifically without prejudice to the future
consideration of the convent’s demolition in connection with some future‐proposed site
plan. Because the possibility of the future demolition of the convent was not ruled out by
this decision, the decision suggested that the parties might wish to undertake (or to allow
an historic preservation or history institution to undertake) to photograph or otherwise
document the convent building’s exterior and/or interior architecture, in case of any further
deterioration of the building during any further application process, regardless of when
or whether such a future application may be filed, or its ultimate outcome.
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Appellants’ Motion to Alter
Appellants have moved to alter the Court’s decision and order, in part seeking
clarification of certain aspects of the decision, and in part seeking reconsideration of or
alterations to the Court’s factual findings on the historical significance of the convent and
on an issue of the number of parking spaces.
A motion to alter or amend under Vermont Rule of Civil Procedure 59(e) is a vehicle
that “allows the trial court to revise its initial judgment if necessary to relieve a party
against the unjust operation of the record resulting from the 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). However, Rule 59(e) is considered an extraordinary remedy that should
be used sparingly; the decision whether to grant such relief lies within the discretion of the
trial court. 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2810.1; see
Rubin, 164 Vt. at 588 (citing In re Kostenblatt, 161 Vt. 292, 302 (1994)).
Appellants first argue that the Court made incomplete findings under §10.2.07 of the
Zoning Regulations. Appellants are correct that approval of a demolition requires the
Court to find that “[t]he structure is determined to be a deterrent to a major improvement
that will be a clear and substantial benefit to the community.” However, before
determining whether the structure sought to be demolished is a deterrent to a major
improvement, and whether that specific proposed improvement will be a clear and
substantial benefit to the community, the Court must determine what that specific
proposed major improvement would be, and whether it, itself, qualifies for site plan
approval. That is, approval of a proposed demolition cannot be considered in a vacuum;
rather, as we ruled in the October 5, 2004 decision on Motions for Summary Judgment, at
pp. 3–4, the Court first has to determine what the major improvement is, against which the
proposed demolition is to be balanced, and to determine whether that particular major
improvement will be a clear and substantial benefit to the community. In the present case,
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while the Court did determine that it would benefit the municipality, as well as the users
of the St. Monica campus, to move the currently chaotic and unsafe student drop‐off and
pick‐up function onto the St. Monica campus, the Court did not approve a site plan that
would accomplish that result. There is therefore nothing against which the proposal to
demolish the convent can be balanced, and any further findings or conclusions under
§10.2.07 would be premature and inappropriately advisory.
Appellants’ second and third arguments relate to the Court’s factual findings
regarding the historical significance of the convent and the parking reconfiguration. The
Court has fully reviewed the evidence and its findings regarding the historical significance
of the convent building in the context of the other St. Monica campus buildings, and
declines to alter those findings. However, we note that any future application for
demolition of the convent will have to be reviewed in light of the particular on‐site parking
and circulation plan that is then proposed, if any.
The Court has also fully reviewed the evidence and its findings regarding the total
number of parking spaces, and declines to alter those findings. However, we will publish
today’s order so that it is available to anyone reading the original decision. Appellants are
correct that at least five parking spaces on Summer Street would be lost if the then‐
proposed site plan were implemented; however, the challenged finding is correct in that
it refers to the total number of parking spaces associated with the property, considering
together the sum of the available on‐street and off‐street (on‐site) parking spaces. The issue
of whether the City would find any number or configuration of new on‐site spaces to be
as good as or better than the lost off‐site spaces will have to await a new proposal, if any.
In fact, a redesigned proposal may involve an altogether different configuration of on‐street
and off street (on‐site) spaces.
Appellants also request clarification of the Court’s statement on page twenty‐two
of its decision related to documentation of the convent as it currently exists. As described
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above, by that statement the Court was simply encouraging the parties to collaborate with
respect to documentation of the architecture of the convent as it currently exists, regardless
of any future redesigned site plans, or whether such plans may or may not call for the
demolition of the convent building.
Appellants’ Motion for Sanctions
Appellants’ Supplemental Motion for Sanctions represents the culmination of a long
history of discovery‐related disputes in this case. On October 22, 2004, the Court issued
a Discovery Order, stipulated by the parties, setting forth a pre‐trial discovery schedule.
Pursuant to the Order, the parties’ first sets of written discovery requests were to be served
by October 26, 2004 and responses were to be served by November 9, 2004. Any
subsequent written discovery requests were to be served by November 16, 2004, with
responses due by December 3, 2004. Any depositions were to take place between
November 9 and 23, if possible, but in any event no later than December 3, 2004. All
discovery was to be completed by December 8, 2004. Four days of trial were scheduled for
mid‐December 2004 based upon this schedule.
Appellee‐Applicants’ responses to Appellants’ first set of discovery requests were
served late and the responses did not contain the required level of detail regarding certain
of Appellee‐Applicants’ designated witnesses’ future testimony. This made it necessary
for Appellants’ counsel to engage in extensive written correspondence with counsel for
Appellee‐Applicants to attempt to obtain complete responses.
On November 30, 2004, this Court held a telephone conference to discuss the scope
of the upcoming evidentiary hearings scheduled for mid‐December of 2004, during which
Appellee‐Applicants also agreed to provide Appellants with complete responses to the
outstanding discovery requests by December 3. As the information had not been provided
by December 6, 2004, a week before the scheduled hearing on the merits was to begin,
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Appellants moved to compel and for sanctions, seeking exclusion of certain witnesses from
trial, or in the alternative, an order compelling Appellee‐Applicants to provide the
requested information, together with sanctions in the form of attorney fees. The Court held
a telephone conference on December 7, at which the parties agreed to work together on the
discovery issues, and to report back to the Court at yet another telephone conference held
on December 9, and an additional telephone conference held with an audio tape record on
December 10, at which the trial was rescheduled for four days in January, as the issues
relating to discovery and the scope of the issues on appeal made it impractical to use the
mid‐December dates. Also at the December 10, 2004 telephone conference, the parties
agreed regarding the scope and applicability of ten of the twelve review criteria potentially
applicable to the proposed project, and the Court set a very short schedule for the filing of
the parties’ memoranda on the remaining disputed criteria, so as to meet the rescheduled
trial dates. The Court ordered Appellee‐Applicants to provide the requested information,
and did not exclude any of Appellee‐Applicants’ witnesses, but postponed ruling on the
request for monetary sanctions pending the hearing on the merits of the appeal.
The Court issued a written decision on the applicable review criteria on December
21, 2004. As Appellee‐Applicants had not provided the requested information by
December 22, 2004, Appellants filed a second motion to compel and for sanctions on that
date, requesting an order awarding sanctions in the form of attorney fees, again without
requesting a specific monetary amount. By December 22, 2004, Appellee‐Applicants had
provided responses to interrogatories for their experts Roger Dickinson and Greg Gossens,
and for some of their fact witnesses. However, their responses regarding expert witnesses
were incomplete, and they failed to respond with respect to experts Peter John, Edward
Pearson,1 and Dennis Webster. Appellee‐Applicants also did not provide responses to
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Appellee‐Applicants later withdrew this witness.
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Appellants’ interrogatories regarding fact witnesses Perry Browning, William Bond, Paul
Hennessey, Fr. Peter Routhier, and Alfred Flory. Due to the renewed motion to compel
and for sanctions, and the fact that the first date of the continued trial was scheduled for
January 4, 2005, the Court held another telephone conference on December 27, 2004 to
address the outstanding discovery issues and again ordered Appellee‐Applicants’
witnesses to provide complete responses to Appellants’ discovery requests by December
30, 2004, so that the trial could commence as scheduled on January 4, 2005. The Court
declined to exclude any witnesses, but advised the parties that the Court would impose
monetary sanctions for the late disclosures in light of the trial date. The Court suggested
that Appellants should wait until the close of trial to renew the motion for sanctions and
to file a final accounting, once all the consequences of the discovery violations were known.
The hearing on the merits was held on four days in January of 2005, during which
Appellee‐Applicants’ witnesses testified as to some evidence and expert opinions that had
not previously been disclosed to Appellants. For example, on January 12, 2005, Appellee‐
Applicants’ expert architect, Mr. Gossens, testified that he had site plans and sketches in
his office files that had not been provided to Appellants. While Appellee‐Applicants’
traffic expert, Mr. Dickinson, also testified on that date as to errors in his calculations that
had not been disclosed to Appellants prior to the hearing, he stated that he had only come
to realize the error on the morning of that trial date. Nevertheless, those errors and the
change in his testimony required Appellants’ traffic expert to review the changed
information at trial in order to be able to respond to it during the scheduled trial dates.
Incorporating the discovery issues that arose at trial, as well as this history of
discovery disputes, Appellants filed the renewed motion for sanctions anticipated by the
December 27, 2004 conference after the conclusion of the trial and the filing of the post‐trial
memoranda, seeking an award of attorney fees in the amount of $3,705.00 for attorney time
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in preparation of the several discovery requests and motions for sanctions, and seeking an
award of costs in the amount of $300.00 for the additional time of Appellants’ expert
necessitated by Appellee‐Applicants’ failure to supplement its expert reports in a timely
fashion. After the decision on the merits of the matter, Appellee‐Applicants were given an
opportunity to file any response to the issues raised by the three motions for sanctions, or
to the accounting filed with the second and third motions, but declined to do so.
The primary purpose of the civil discovery rules is to prevent surprises to one party
by requiring both parties to disclose witnesses, prospective testimony and other evidence
well in advance of trial. White Current Corp. v. Vermont Elec. Co‐op., Inc., 158 Vt. 216, 223
(1992). In keeping with this principle, Vermont Rule of Civil Procedure 26(f) allows for the
parties to frame a discovery plan, which the Court may then approve and enter as an order,
as was done in the present case in the October 2004 order. Should a party fail to comply
with the discovery order, V.R.C.P. 37 allows the opposing party to seek sanctions. V.R.C.P.
37(b)(2).
The rule allows a court great latitude in the form sanctions may take. The least
onerous form of sanction provides for the offending party to reimburse the opposing
party’s expenses caused by the offending party’s failure to cooperate, while more stringent
orders could include prohibiting the introduction of evidence, or even ordering dismissal
or a judgment by default in an appropriate case. Cine Forty‐Second St. Theatre Corp. v.
Allied Artists’ Pictures Corp., 602 F.2d 1062, 1066 (2nd Cir. 1979) (interpreting identical
federal rule); see V.R.C.P. 37(b)(2). Courts also possess broad powers to impose sanctions
for litigation practices that “disrupt the administration of justice.” Martinelli v. Bridgeport
Roman Catholic Diocesan Corp., 179 F.R.D. 77, 80 (D. Conn. 1998). Thus, where even a
negligent failure to produce discovery hinders a party’s pursuit of the case, sanctions may
be appropriate. Id. at 81 (noting that “[t]he timing of discovery is as important as its
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content.”). Further, if the offending party withholds key information that requires the
opposing party to engage in discovery over and above that which would be required
absent the delay, it is appropriate for the offending party to shoulder the expenses incurred
in attempts by the opposing party to gain the requested information. Id. at 82.
In the present case, the Court gave Appellee‐Applicants repeated opportunities to
come into compliance, first with the parties’ own stipulated discovery schedule, and then
with several subsequent deadlines set by the Court. Appellee‐Applicants’ repeated failure
to disclose witnesses, to provide responses to written discovery requests, and to produce
documents to Appellants pursuant to the discovery scheduling order and the Court’s
subsequent discovery rulings caused Appellants to have to engage in discovery over and
above what they would otherwise have had to seek had Appellee‐Applicants followed the
rules or sought extensions of the deadlines from the Court.
This behavior caused Appellants’ counsel to have to repeatedly request information
via telephone, electronic mail, and written letters, and to request the assistance of the Court
through three written motions to compel or for sanctions and several oral arguments in the
various pretrial conferences, to produce information which should have been timely
provided in response to Appellants’ original discovery requests and the various scheduling
conferences. In addition to the pretrial work, at trial, Appellee‐Applicants’ last‐minute
production of documents relied upon by Appellee‐Applicants’ experts required Appellants
to incur additional attorney fees to completely prepare their case, in addition to incurring
modest additional expert witness costs for Appellants’ expert to review some of the newly‐
produced information.
Appellee‐Applicants have not disputed Appellants’ factual allegations regarding the
discovery violations and have not argued that the amount of fees or costs sought by
Appellants is unreasonable. Appellee‐Applicants have offered as a defense only the
argument that Appellants were not prejudiced by Appellee‐Applicants’ delayed
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production due to the lengthy history of the dispute, arguing that Appellants were
therefore generally familiar with Appellee‐Applicants’ evidence and legal theories.
No matter how familiar Appellants and their counsel had become with the case, the
prejudice Appellants suffered here was in the form of monetary loss due to the time
expended by their attorney in repeatedly having to engage Appellee‐Applicants’ counsel
and seek the assistance of the Court in an effort to extract information that Appellee‐
Applicants should have provided in response to written discovery requests, including the
time required to prepare various motions to compel production of that information.
Regardless of whether Appellants were generally familiar with Appellee‐Applicants’
arguments and evidence, Appellee‐Applicants nevertheless were required by the rules to
comply with the rules of discovery to avoid surprise or unnecessary delay. They did not
do so in a timely fashion even after the trial was postponed to allow them to do so.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
Appellants’ Motion to Alter is DENIED and Appellants’ motion for sanctions is
GRANTED. Judgment is hereby entered against Appellee‐Applicants in the amount of
$3,705.00 in attorney fees and $300.00 in costs.
Dated at Berlin, Vermont, this 10th day of October, 2006.
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Merideth Wright
Environmental Judge
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