State of Vermont
Superior Court—Environmental Division
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ENTRY REGARDING MOTION
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In re Bjerke Zoning Permit Denial Docket No. 72 -5-11 Vtec
(Municipal Appeal)
Title: Motion to Strike (Filing No. 4)
Filed: September 20, 2012
Filed By: Applicant Alan Bjerke
Response Filed: October 2, 2012 by Appellee City of Burlington
X Granted Denied ___ Other
This case comes before us on appeal from the City of Burlington Development Review
Board’s (the DRB) decision to deny Mr. Bjerke (Applicant) a permit to renovate his property.
During the hearing before this Court, Applicant objected to the admission of a certified copy of
the Town of Burlington Zoning Ordinance. Because the City submitted a certified copy in
accordance with Vermont Rules of Evidence (V.R.E.) 902 and 1002, the Court admitted the
ordinance. Applicant maintained a standing objection, however, to the admission of the
ordinance. After the close of evidence, the City submitted a letter to the Court informing us that
four pages had been inadvertently omitted from the certified copy admitted into evidence at
trial, and asked to supplement the record. Applicant then filed a Motion to Strike, which is
currently pending before this court.
Although the document submitted was “self-authenticating,” the Reporter’s Notes to
V.R.E. 902 make it clear that self-authentication is only a presumption of accuracy that shifts the
burden onto the opponent to prove that the document is not what it purports to be. In this case,
the document purported to be a true, accurate, and complete copy of the City of Burlington
Zoning Ordinance. Because some pages were omitted, the document was incomplete.
Accordingly, we GRANT Applicant’s objection and Motion to Strike from the record the
certified copy of the ordinance submitted during the trial.
There is, however, sufficient evidence in the form of both trial testimony and references
in the parties’ filings to support a conclusion that the City of Burlington Zoning Ordinance
exists and that it contains the provisions referenced by Applicant in his Statement of Questions.
Based on this evidence, the Court may, on its own motion, seek to hold a partial new trial in
accordance with V.R.C.P. 59(a) and (d) to consider whether a complete, certified copy of the
ordinance may be submitted into evidence. See In re Pet. Of Twenty-Four Vt. Utils., 159 Vt. 339,
356–357 (1992) (under the V.R.C.P., a motion to reopen the evidence is considered a motion for a
partial new trial).
Accordingly, the Court will hold a hearing on whether to reopen the evidence of this
case. If, at the hearing, the Court concludes that it should reopen the evidence, the Court will
also conduct a partial new trial on the limited issue of whether the City of Burlington Zoning
Ordinance, referenced by both parties in their filings and in trial testimony, may be admitted
In re Bjerke Zoning Permit Denial, No. 72-5-11 Vtec (E.O. on Mot. To Strike) (10-23-12) Pg. 2 of 2
into evidence. Because this will be a partial new trial, evidence will only be accepted on that
limited issue. The contents of the ordinance will be determined as a matter of fact, and the legal
significance of the contents will be determined as a matter of law. V.R.C.P. 44.1(b). The
enclosed Notice of Hearing provides further details about the hearing on whether to reopen the
evidence and the potential partial new trial.
_________________________________________ October 23, 2012
Thomas G. Walsh, Judge Date
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Date copies sent: ____________ Clerk's Initials: _______
Copies sent to:
Appellant Alan Bjerke Esq.
Attorney Kimberlee J. Sturtevant for Appellee City of Burlington
Interested Person L. Diana Carlisle