Zaremba Group Act 250 Permit Chester

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket No. 36-3-13 Vtec
Zaremba Group Act 250 Permit
ENTRY REGARDING MOTION
Title: Motion to Alter (Motion 2)
Filer: Natural Resources Board
Attorney: Peter Gill
Filed Date: February 24, 2014
Response in opposition filed on 03/03/2014 by Attorney David R. Cooper for Appellee Zaremba
Group, LLC
The motion is DENIED.
The Vermont Natural Resources Board (the NRB) is an interested party in this appeal
and has been present throughout the consideration of all issues including the three day merits
hearing. The NRB did not play an active role in the trial but had the right and opportunity to
contribute its legal arguments in response to any and all issues raised, including Zaremba
Group, LLC’s post-trial motion to dismiss Mr. Cunningham for lack of standing. The Court
addressed this motion in its February 14, 2014 merits decision. In re Zaremba Group Act 250
Permit Appeal, No. 36-3-13 Vtec, slip op. at 24–27 (Vt. Super. Ct. Envtl. Div. Feb. 14, 2014)
(Walsh, J.). The Court held that Mr. Cunningham failed to establish a particularized interest
protected by Act 250 Criterion 8 and that he therefore lacked standing under that Criterion in
the appeal. Id. at 26–27. The NRB did not file any legal memoranda related to that motion.
The NRB now asks the Court to alter or amend that determination under Vermont Rule of Civil
Procedure 59(e).
It is within the Court’s discretion to grant a Rule 59 motion, and such a motion “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 Enters., Inc., 164 Vt. 582, 588 (1996) (citing In re
Kostenblatt, 161 Vt. 292, 302 (1994)). We have identified four principal reasons for granting a
Rule 59(e) motion: (1) “to correct manifest errors of law or fact”; (2) to allow a moving party to
“present newly discovered or previously unavailable evidence”; (3) to “prevent manifest
injustice”; and (4) to respond to an “intervening change in the controlling law.” In re Lathrop
Ltd. P’ship I, Nos. 122-7-04 Vtec, 210-9-08 Vtec, and 136-8-10 Vtec, slip op. at 10–11 (Vt. Super.
Ct. Envtl. Div. Apr. 12, 2011) (Durkin, J.) (quoting 11 Wright, Miller & Kane, Federal Practice and
In re Zaremba Group Act 250 Permit, No. 36-3-13 Vtec (EO on Mot. to Alter) (4-10-14) (p. 2 of 2)
Procedure: Civil 2d § 2810.1); Drumheller v. Drumheller, 2009 VT 23, ¶ 29, 185 Vt. 417(“Vermont Rule 59(e) is substantially identical to Federal Rule of Civil Procedure 59(e), and we
have looked to federal decisions interpreting the federal rule for guidance in applying the
Vermont rule.”). The grant of a motion to alter or amend “a judgment after its entry is an
extraordinary remedy which should be used sparingly.” 11 Wright, Miller, & Kane, Federal
Practice and Procedure: Civil 2d § 2810.1.
The NRB points to no newly discovered or previously unavailable evidence nor to any
change in the law. Thus, we only consider whether there was some manifest error of the Court
or whether the decision creates a manifest injustice. Finding no such error or injustice, the
NRB’s motion must be denied. As this Court has noted before, a Rule 59(e) motion to alter or
amend is not an opportunity to present arguments or evidence that could have been raised
prior to entry of the judgment. In re Moore Accessory Structure Permit, No. 161-6-09 Vtec, slip
op. at 3 (Vt. Super. Ct. Envtl. Div. Feb. 17, 2011) (Wright, J.). Despite disagreeing with the
Court’s legal analysis, the NRB points to no justification for disturbing our judgment. The Court
values the NRB’s expertise with Act 250 and appreciates its input. We note, however, that if
the NRB wishes the Court to consider its position in rendering legal determinations on issues
before the Court, the most efficient, economical, and effective way to present such a position is
to file a memorandum with the Court on a pending motion before that motion is decided.
For the reasons stated above, the NRB’s motion to alter or amend our February 14, 2014
final merits decision is DENIED.
So ordered.
Electronically signed on April 10, 2014 at 10:37 AM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
Notifications:
James Allan Dumont (ERN 1948), Attorney for Appellants
Jon Groveman (ERN 5336), Attorney for Interested Person Agency of Natural Resources
Peter Gill (ERN 4158), Attorney for Interested Person Natural Resources Board
David R. Cooper (ERN 4756), Attorney for Appellee Zaremba Group, LLC
Co-Counsel for Appellee James P. W. Goss
Co-Counsel for Appellee Alan P. Biederman
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