Hale Mountain Fish & Game Club

Environmental Court of Vermont
State of Vermont
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E N T R Y R E G A R D I N G M O T I O N
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Hale Mountain Fish & Game Club, Docket Nos 149-8-04 Vtec and 259 12-05 Vtec
(Appeals from Shaftsbury ZBA determination on need for permit)
Title: Motion to Alter, No. 21
Filed: January 11, 2010
Filed By: Gillies, Paul S., Attorney for Appellants Owen & Katherine Beauchesne
Response filed on 01/26/10 by Cross Appellant Hale Mountain Fish & Game Club
_X_ Granted (in part) and _X_ Denied (in part) ___ Other
Appellants seek by their current motion to have the Court alter its
December 15, 2009 Third Interim Decision (“Decision”) to reflect specific
changes Appellants suggest in their Motion to Alter. We begin our analysis with
a review of the standards under V.R.C.P. 59(e) regarding motions to alter.
We first note that a Rule 59(e) motion should not be used to “relitigate
old matters” or “raise arguments or present evidence that could have been raised
prior to entry of the judgment.” Appeal of Van Nostrand, Nos. 209-11-04 & 101-
5-05 Vtec, slip op. at 4 (Vt. Envtl. Ct. Dec. 11, 2006) (Durkin, J.) (quoting 11
Wright, Miller & Kane, Federal Practice and Procedure Civil 2d: § 2810.1 (2d ed.
1995)). Also, the motion should be denied if it serves “no useful purpose.”
Appeal of Van Nostrand, Nos. 209-11-04 & 101-5-05 Vtec, slip op. at 4.
Appellants’ Motion to Alter focuses on three issues. First, Appellants
claim that the Court “relied on mistaken information” when deciding whether the
clearing of vegetation required a permit.1 Appellants correctly note that in
two of three instances, the Court mistakenly referenced “feet” instead of
“yards” when addressing the measurement of vegetation clearing in its Decision
at pp. 8 and 12; the correct measurement is in fact 437 yards. The Court regrets
its mistake. However, due to the fact that the mistaken reference to “feet”
rather than “yards” was not relied upon by the Court when rendering its
decision, an alteration to the Decision is without purpose, unnecessary and
therefore not warranting an amendment to our prior Decision. See Van Nostrand
at 4. By this Entry Order, we note that all references in our Decision to the
distance of vegetation clearing should be to “437 yards” and not to feet.
Although Appellants’ introduction in their Motion to Amend indicates that
they seek to address the improper measurement reference, further reading reveals
that Appellants also seek to inform the Court of additional vegetation clearing
allegations and request a hearing to allow Appellants to introduce this further
evidence. We decline to do so here, since Appellants make no claim that such
evidence was unavailable for introduction during the first adjudication of this
issue. A Motion to Alter is not an appropriate avenue to present new evidence.
1
This issue was raised in Question 18 of Appellants’ Statement of Questions in Docket No. 149-8-04 Vtec.
We therefore decline to grant Appellants’ Motion to Alter for this purpose. See
Id.
Appellants’ second claim for alteration pertains to the Court’s reference
in its Decision to Applicant Hale Mountain Fish and Game Club (“Club”) as a
“non-profit” entity. The evidence previously presented was undisputed in its
reference to the Club as a non-profit entity. In fact, our prior Interim
Decision dated March 25, 2008 referenced the Club in such a manner, and that
reference has not been disputed, until now.
It appears that Appellants’ concern regarding the Court’s reference to the
Club as a “non-profit” may be misplaced, for two reasons, both of which relate
to the possible future application by the Club for a zoning permit, as directed
by this Court. See Dec. 15, 2009 Decision at 13. First, the applicable zoning
regulations classify specific permitted uses, some with a limiting condition
that they be “operated by a governmental unit or non-profit organization.” Town
of Shaftsbury Zoning Bylaws at § 4.1.1.4.3. Second, while the evidence
previously presented and ruled upon supported our determination that the Club
was a non-profit entity, our ruling does not foreclose the appropriate municipal
panel from considering whether the Club is a non-profit entity at the time of
its future application, particularly within the context of the applicable
bylaws. We cannot conclude in these proceedings that the Club will be a non-
profit entity at the time it submits a future zoning application, whenever that
may be.
Under Appellants’ third and final claim as to why our prior Decision
should be altered, Appellants ask the Court to elaborate on “how the Club will
get around the enlargement and commercial problem.” Appellants’ expectations in
this instance appear to go beyond the jurisdiction of this Court. In essence,
Appellants are requesting that this Court determine how the Club’s possible
future zoning permit application should be viewed and addressed. We cannot
answer such questions in this appeal, since to do so before the appropriate
municipal panel considers the Club’s future application would be improper and
constitute an advisory opinion. See In re 232511 Investments, Ltd., 179 Vt.
409, 417, 898 A.2d 109, 116 (2006). We therefore decline to render such an
advisory opinion and will not alter our prior Decision in such a manner.
For all these reasons, we conclude that Appellants’ Motion to Alter should
be DENIED, other than to acknowledge and correct our mistake in the measurement
of the affected vegetation (i.e.: 437 yards, not feet).
___________________________________________ __February 3, 2010__
Thomas S. Durkin, Judge Date
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Date copies sent to: ____________ Clerk's Initials _______
Copies sent to:
Attorney Paul S. Gillies for Appellants Owen & Katherine Beauchesne
Attorney Rodney E. McPhee for Cross Appellant Hale Mountain Fish & Game Club
Attorney Robert E. Woolmington for Town of Shaftsbury (FYI purposes only)