Fowler NOV ( 2012 )

State of Vermont
Superior Court—Environmental Division
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ENTRY REGARDING MOTION
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In re Fowler NOV Docket No. 159-10-11 Vtec
(Appeal of DRB decision upholding a NOV)
Title: Motion to Strike (Filing No. 2)
Filed: March 19, 2012
Filed by: Appellant James Fowler
Response filed on 4/5/12 by 18 Interested Persons
Granted X Denied Other
Pending before the Court is James Fowler’s (“Appellant”) motion to strike all or part of
an affidavit submitted by Richard Ross, an interested person in this matter. The affidavit was
submitted by Mr. Ross in conjunction with a collective response submitted by eighteen
interested persons who oppose a separate motion for partial summary judgment filed by
Appellant. Appellant’s motion for partial summary judgment, which seeks dismissal of twelve
interested persons from this appeal, is addressed in a separate Decision also issued today.
In his motion to strike, Appellant asks the Court to strike all or part of Mr. Ross’s
affidavit, arguing that it includes inadmissible expert testimony because it reports a noise level
that Mr. Ross claims to have measured on his property using a sound meter that he purchased
at an electronics store.
Our procedural rules allow for a liberalization of the evidentiary rules. See V.R.E.C.P.
2(e) (“[E]vidence, not privileged, that is not admissible under the Rules of Evidence may be
admitted in the discretion of the court, if it is of a type commonly relied upon by reasonably
prudent persons in the conduct of their affairs.”). We do not believe it improper for a property
owner to offer her own observations, including those from a retail consumer sound meter,
when attempting to show her concerns about a proposed development. We believe that a
“reasonably prudent person” would rely upon the readings from a retail consumer sound meter
to determine whether her concerns about nearby motocross riding are reasonable. Id. We do
not understand Mr. Ross’s inclusion of the noise level that the sound meter registered to be
expert testimony that makes his affidavit inadmissible.
For the purposes of ruling on Appellant’s pending partial summary judgment motion to
dismiss Mr. Ross and other interested persons from this appeal, we have read the assertions in
Mr. Ross’s affidavit in their totality and treated them as sworn statements of a non-expert.
Consequently, we DENY Appellant’s motion to strike.
With this Entry Order we also request that the Town submit to the Court a certified copy
of the Town of Richford Zoning Bylaws applicable to the NOV at issue in this appeal.
In re Fowler NOV, No. 159-10-11 Vtec (EO on Mot. to Strike) (08-08-12) Pg. 2 of 2.
_________________________________________ August 8, 2012
Thomas S. Durkin, Judge Date
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Date copies sent to: ____________ Clerk's Initials _______
Copies sent to:
Annie Dwight, Attorney for Appellant James Fowler
Gerald R. Tarrant, Attorney for Interested Persons Kathleen Ross, Richard Ross, John Bridgman, Norris Kyle,
Helen Kyle, Sally Bochner, Lilias-Mary Paddon, Brian Bonk, Jeffrey Goyne, Charlotte Rosshandler, Kitten
Ellison, Luke Parsons, Jay Bochner, Pen Bridgman, Brian Farrar, Alison Osborne, John Osborne, and Robert Fretz
Michael S. Gawne, Attorney for Town of Richford
Interested Person Charles Hotchkin, pro se