Smith Building Permit ( 2012 )

State of Vermont
Superior Court—Environmental Division
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ENTRY REGARDING MOTION
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In re Smith Building Permit Docket No. 208-12-10 Vtec
(Zoning Board of Adjustment Decision)
Title: Motion for Subpoena Duces Tecum (Filing No. 13)
Filed: September 12, 2012
Filed By: Applicant/Appellants William and Rosemary Smith
No Response filed
X Granted ___ Denied ___ Other
William and Rosemary Smith (“Applicants”) have appealed the Town of Concord
Zoning Board of Adjustment’s (“the ZBA”) decision denying them a second permit to complete
their building of a 30-foot by 50-foot garage on property they own in the Town of Concord,
Vermont. Their original building permit expired. In preparation for the merits hearing,
Applicants filed a request that the Court issue a subpoena duces tecum that Appellants will
thereafter need to make the necessary arrangements to have served on the FEMA Map
Assistance Management Agency in Elkridge, MD.
Rule 26(b)(1) of the Vermont Rules of Civil Procedure dictates that parties may obtain all
evidence that is reasonably calculated to lead to the discovery of admissible evidence. The
documents Applicants request are admissible under Rules 803(8) and 1005 of the Vermont Rules
of Evidence, which, taken together, deem copies of records and reports kept by a public agency
in its ordinary course of business admissible at trial. Accordingly, we GRANT Applicants’
request for a subpoena duces tecum.
Although we have granted Applicants’ request, because the FEMA office from which
Applicants request documents is in Maryland, there are procedural hurdles that they must
overcome in order to serve their request and obtain the documents. Under V.R.C.P. 45(a)(3), the
party requesting the subpoena is responsible for serving the subpoena and, under V.R.C.P.
45(b)(2), subpoenas issued by this Court must be served in Vermont. Both Vermont and
Maryland, however, have adopted a version of the Uniform Interstate Depositions and
Discovery Act, which allows a local court to reissue a subpoena if an out-of-state subpoena is
filed with the local court clerk. See V.R.C.P. 45(f); Md. Code Ann., Cts. & Jud. Proc. §9-402. We
GRANT Applicant’s request, but we strongly encourage Applicants to retain counsel to assist
them in in serving the subpoena and procuring the requested documents from FEMA.
_________________________________________ September 18, 2012
Thomas S. Durkin, Judge Date
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Date copies sent: ____________ Clerk's Initials: _______
Copies sent to:
William and Rosemary Smith, Applicants/Appellants, pro se
Thomas R. Paul, Attorney for Appellee Town of Concord