Lathrop Limited Partnership I ( 2014 )

State of Vermont
Superior Court - Environmental Division
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ENTRY REGARDING MOTION
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In re Lathrop Limited Partnership I Docket No. 122-7-04 Vtec
(Appeal of Rueger et al of Bristol DRB Approval)
In re Lathrop Limited Partnership II Docket No. 210-9-08 Vtec
(Appeal of Lathrop Limited Partnership of DRB Denial)
In re Lathrop Limited Partnership Act 250 Permit Docket No. 136-8-10 Vtec
(Appeal of Lathrop Limited Partnership of Act 250 Denial)
Title: Applicant’s Bill of Costs (Filing No. 20)
Filed: November 1, 2013
Filed By: Lathrop Limited Partnership
Response in Opposition filed on 11/5/13 by Russell Rueger et al.
Response in Opposition filed on 11/6/13 by Donald and May Morris
Reply to Rueger et al.’s Opposition filed on 11/25/13 by Lathrop Limited Partnership
___ Granted X Denied ___ Other
Lathrop Limited Partnership (“Lathrop”) submitted a Bill of Costs following our
October 18, 2013 Decision and Judgment Order approving Lathrop’s application for municipal
and state land use approval for a sand and gravel extraction project in the Town of Bristol,
Vermont. Lathrop submits the Bill of Costs for $6,463.12 pursuant to the Court’s Judgment
Order, V.R.C.P. 54(d), and 32 V.S.A. § 1471. The Bill of Costs consists of deposition expenses,
witness fees, filing fees, and costs for producing photocopies of requested documents. Donald
and May Morris and Russell Rueger et al. each filed timely objections to the Bill of Costs.
V.R.C.P. 54(d)(1) authorizes this Court to impose the costs of the prevailing party, other
than attorney’s fees, on the opposing party or parties. Awarding costs to the prevailing party in
a civil action pursuant to V.R.C.P. 54(d)(1) is a discretionary matter for the trial court. See, e.g.,
Jordan v. Nissan N. Am., Inc., 2004 VT 27, ¶16, 176 Vt. 465 (citing Peterson v. Chichester, 157 Vt.
548, 553 (1991)). Likewise, imposing the costs of depositions is subject to the court’s discretion
and requires the court to find that the taking of the deposition was reasonably necessary,
whether or not the deposition was actually used at trial. V.R.C.P. 54(g).
First, we decline to award $2,862.01 in costs for “copying documents for production”
because Lathrop has failed to demonstrate how this item fits within the provisions of Rule
54(d)(1) and § 1471. Section 1471 limits costs to “entry fees, the cost of service fees incurred, and
the total amount of the certificate of witness fees paid.” Because Lathrop has not provided an
Lathrop Limited Partnership Cases, Nos. 122-7-04 Vtec, 210-9-08 Vtec, and 136-8-10 Vtec (02-11-14) Pg. 2 of 2.
(Entry Order on Lathrop’s Bill of Costs)
explanation for the copying expenses, much less a compelling reason for why this Court should
reimburse them, we will not impose these costs on the opposing parties.
Furthermore, we deny the remainder of Lathrop’s Bill of Costs in order to avoid placing
any chilling effect on public participation in state and municipal land use proceedings. Public
participation is woven into both Act 250 and the Vermont Planning and Development Act.
Lathrop proposed a substantial project with the potential for significant local impacts over the
course of several decades. Following over 10 years of proceedings in the various municipal
review panels, the Act 250 District Environmental Commission, and this Court, the Court found
numerous conditions necessary to ensure that the project complied with all municipal and state
regulations. We recognize that all parties have expended significant time and resources on
these proceedings and we decline to impose costs on the participating neighbors solely because
this Court ultimately decided to conditionally approve Lathrop’s Act 250 and municipal permit
applications.
For these reasons, we DENY Lathrop’s Bill of Costs.
_________________________________________ February 11, 2014
Thomas S. Durkin, Judge Date
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Date copies sent: ____________ Clerk's Initials: _______
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