Spaulding NOV Appeal - Decision on Motion

VERMONT SUPERIOR COURT
Environmental Division Docket No. 23-ENV-00057
32 Cherry St, 2nd Floor, Suite 303,
Burlington, VT 05401
802-951-1740
www.vermontjudiciary.org

Spaulding NOV Appeal

ENTRY REGARDING MOTION

Motion: Motion to Compel
Filer: Courtney and Edward Spaulding, Appellants
Filed Date: August 27, 2024
Memorandum in Opposition, filed on October 9, 2024 by Beriah Smith, Attorney for Town of
Waitsfield.
Reply to Memo in Opposition, filed on October 23, 2024 by Appellants.
The motion is DENIED.
This is an appeal of a Town of Waitsfield (Town) Development Review Board (DRB) decision
denying Edward and Courtney Spaulding’s (together, Appellants) appeal of a February 13, 2023 Notice
of Violation issued to them by the Town of Waitsfield Planning and Zoning Administrator regarding
the placement of a storage container on their property at 31 Center Fayston Road, Waitsfield, Vermont
(the Property) without a zoning permit and within the front setback of the Property on Center Fayston
Road (the NOV).
Presently before the Court is Appellants’ motion to compel the Town to respond to
Appellants’ discovery requests, which include 25 requests to produce and eight interrogatories. The
motion also asks the Court to impose sanctions for the Town’s alleged noncompliance.
Discussion
As we consider the pending motion to compel, we first note that the allowable scope of
discovery in litigation is generally very broad. Parties are permitted to make inquiries “regarding any
nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of
the case.” V.R.C.P 26(b)(1). Even if a discovery request targets information that would be
inadmissible at trial, the information may be discoverable “if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.” Id. Lastly, this Court has

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authority to limit discovery to “that which is necessary for a full and fair determination of the
proceeding.” V.R.E.C.P. 2(c).
The legal issues presented by the NOV on appeal and in Appellants’ Statement of Questions
frame what facts may be relevant to this litigation. See Vermont Turquoise Hospitality, LLC, No.
131-8-14 Vtec, slip op. at 3 (Vt. Super. Envtl. Div. Jun. 24, 2015) (Durkin, J.) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
On April 22, 2024, the parties filed a stipulated Statement of Questions which contained the
following six Questions:
(1) Whether there was approval from the Town DRB in 2018 that
authorizes the Storage Container/Storage trailer and its location at the
Appellants’ property?
(2) How does the Town’s definition of a “structure” conform to
other legal definitions of a “structure” and do these definitions apply
to the Storage Container on the Appellants’ property?
(3) Whether the Town Zoning Bylaws’ setback requirements are
unreasonable as applied to the Appellants and therefore violate the
Appellants’ constitutional property rights?
(4) Whether the Town’s enforcement of its Bylaws against
Appellants constitutes selective enforcement in a way that violates
Appellants’ right to equal protection of the law?
(5) Whether a road that is not laid out or surveyed can be used to
measure a zoning setback?
(6) Should Center Fayston Road be used to determine the setback
on the Appellant’s property?
Stipulated Statement of Questions (filed April 22, 2024).
These Questions set the basis for what facts may be relevant before this Court in this appeal
and, therefore, what would be discoverable under V.R.C.P. 26. In reviewing the pending motion to
compel, for efficiency purposes, we group the discovery requests into several categories, and address
their relevancy in turn.
Requests to Produce 1 through 4 generally seek historical documents, survey documents, and
records relating to Jones Farm Access Road and Center Fayston Road, dating back to as early as 1825.
The Town objects that these records are not relevant to any issue before the Court, and specifically
are not necessary to determine setback distances central to the underlying NOV. We agree.
The Waitsfield Zoning Bylaws (the Bylaws), filed as Town Ex. A, do not distinguish between
public and private roads for purposes of establishing setback distances. Bylaws § 7.02 (“Setback”).
Thus, Appellants’ requests relating to the public/private nature of Center Fayston Road and its
ownership/history are not relevant to a determination of whether the at-issue storage container is

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within the setback at the Property. Furthermore, it would be unduly burdensome, and
disproportionate to the needs of this case, to require the Town to produce historical records dating
back two hundred years. This is particularly true when the history of Center Fayston Road and Jones
Farm Access Road, and its current ownership status, is not relevant under the underlying Bylaws.
Accordingly, we DENY Appellants’ motion to compel with respect to Requests to Produce 1 through
4.
Next, Requests to Produce 5 and 6 seek records relating to a settlement agreement allegedly
between the Town and Appellants related to flood damages at the Property, including an investigation
by the Town’s attorney. The Town argues that the documents are not relevant, and they are subject
to attorney-client privilege. In response, Appellants argue that these records are relevant to their
recovery of damages. Furthermore, Appellants contend that the present action contravenes a previous
settlement agreement between the parties. Neither of Appellants’ arguments are relevant to the
present action and, therefore, the sought documents are not discoverable.
First, this Court does not have the authority to award damages in this appeal of a notice of
violation. The relief that this Court would be authorized to grant in this de novo appeal of the NOV
would be limited to concluding that the NOV was issued improperly. In re Malav Inc. NOV Appeal,
No. 22-ENV-00101 slip op. at 9 (Vt. Super. Ct. Envtl. Div. April 28, 2023) (Walsh, J.) (citation
omitted). Second, to the extent that there is a settlement agreement which would or should have
precluded the NOV, Appellants may present that agreement as an exhibit at trial, subject to any
objections by the Town. However, we fail to see how the requested records are relevant to the
Questions before the Court. Accordingly, we DENY Appellants’ motion with respect to Requests to
Produce 5 and 6.
Requests to Produce 7 and 8 seek documents and communications between the Town and
Hardy Structural Engineering and Waite-Heindel Environmental Management, respectively.
Appellants argue that these documents are relevant to this litigation pursuant to 4 V.S.A. § 1004, which
generally addresses access to information before this Court in environmental enforcement actions
brought pursuant to 10 V.S.A. Chapter 201. Appellants suggest that these requests are relevant to
their health, safety, and welfare.
The pending action is not brought under 10 V.S.A. chapter 201. This NOV appeal is instead
brought pursuant to 24 V.S.A. § 4451. Thus, § 1004 has no bearing on this action. Furthermore,
Appellants’ fail to explain to how these requests are related to their health, safety, and welfare, or to

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the NOV before the Court. Accordingly, we DENY Appellants motion with respect to Requests to
Produce 7 and 8.
Request to Produce 9 seeks complaints received by the Town regarding the storage unit which
led the Town to issue the NOV. The Town responded to this Request to Produce stating that no
such responsive records exist. In the pending motion, Appellants argue that the contents of any
complaints were false and intended to cover up alleged fraud by the Town Zoning Administrator.
Again, the Town has responded to this Request stating that they lack responsive documents.
Accordingly, in answering this Request, we conclude that the Town complied with its discovery
obligations. There is nothing for the Court to compel. We DENY Appellants’ motion with respect
to Request to Produce 9.
Requests to Produce 11 and 12 seek all federal and state policies on which the Town bases the
Bylaws, as well as all selectboard meeting minutes and records relating to approval of the Bylaws. In
justifying these requests, Appellants argue that the Bylaws are invalid if they are not based in federal
and state policies. Appellants specifically cite to alleged U.S. Department of Transportation
regulations related to ISO containers. This information is not relevant in this appeal.
The Town has responded to Request to Produce 11 stating that the Bylaws were adopted
pursuant to Chapter 117 of Title 24. This Chapter is the authorizing statute by which municipalities
in Vermont may adopt zoning regulations pursuant to the statutes and guidance therein. Appellants
assert that this response is somehow insufficient because it allegedly ignores federal regulations related
to ISO Containers, as regulated by the U.S. Department of Transportation. This Court has addressed
the relevancy of these regulations and dismissed Appellants’ Questions related thereto. Spaulding
NOV Appeal, No. 23-ENV-00057 slip op. at 6 (Vt. Super. Ct. Envtl. Div. Jan. 18, 2024) (Walsh, J.)
(citations omitted).
To the extent that Appellants seek to make a facial challenge to the constitutionality of the
Bylaws, as we have explained, we lack jurisdiction over that issue. Id. at 9 n.4. No other types of
challenges to the Bylaws’ validity are raised in the Statement of Questions, either explicitly or implicitly.
In re Atwood Planned Unit Dev., 2017 VT 16, ¶ 12, 204 Vt. 301. Even if such an issue were
jurisdictional, however, these requests are highly disproportionate to the needs of this case, which
involves an allegedly unpermitted structure in a front yard setback pursuant to local zoning. The
Town has provided its authorization under Vermont law to enact zoning regulations.
Lastly, in response to Request to Produce 12, the Town provided the relevant meeting minutes
of the Selectboard’s hearing and vote to adopt the Bylaws. The Town further argues that under 24

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V.S.A. § 4483(b), the two-year statute of limitations precludes any procedural challenges to the Bylaws’
adoption. Accordingly, what the Town has provided in response to this Request is sufficient, and any
additional discovery on this issue is not relevant to the NOV.
For all these reasons, we DENY Appellants’ motion with respect to Requests to Produce 11
and 12.
Requests to Produce 13 through 15 seek documents, including communications, between the
Town and Shea Property Services, its agents, Aaron Shea, and the Shea’s attorney, Brice Simon
(together, the Sheas). These requests are related to Appellants’ allegations of fraud, harassment, and
other criminal activities between the Town and the Sheas. Again, this is a de novo appeal of the NOV.
This Court is not concerned with the proceedings below, or the involvement of any parties not
presently before the Court. In re Malav, Inc. NOV Appeal, No. 22-ENV-00101 slip op. at 9 (Vt.
Super. Ct. Envtl. Div. April 28, 2023) (Walsh, J.) (citations omitted). In this appeal, this Court will
determine anew whether the NOV was properly issued under the Bylaws. Id. (citations omitted). The
Shea’s alleged involvement before the DRB is not relevant to our narrow de novo review and any
alleged impropriety is cured on appeal. Accordingly, we DENY Appellants’ motion with respect to
Requests to Produce 13 through 15.
Request to Produce 16 seeks details regarding an investigation of the Town Zoning
Administrator following an unidentified complaint. In its initial response, the Town asked for
clarification regarding “our complaint.” Appellants did not provide any further detail in their response
which would provide the Town with the requisite information to respond to this Request.
Accordingly, DENY Appellants’ motion with respect to Request to Produce 16.
Requests to Produce 17 and 18 seek emails that were reviewed by the DRB regarding the
storage container and communications with the Vermont Agency of Agriculture Food and Markets,
also related to the storage container. In response, the Town provided responsive documents and, in
response to the pending motion, it argues that it has provided all responsive records. Appellants,
however, maintain that the Town is hiding relevant facts and has not fully complied with their request.
Appellants point to no information that the Town is withholding that would be responsive. With the
Town having answered Appellants’ Requests, there is nothing for the Court to compel and Appellants
motion with respect to these Requests to Produce is DENIED. To the extent that the Town has not
disclosed any additional records responsive to these requests, they will be precluded from offering
such records at trial.

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Request to Produce 19 seeks records of an investigation into damage at Appellants’ Property.
This request is related to Appellants’ argument that the Town has deliberately maintained the roads
to encroach on the Property, thus altering the setback distances. The Town initially objected to this
Request but has since supplemented its response with available records. Accordingly, there is nothing
for the Court to compel and Appellants motion with respect to this Request to Produce is DENIED.
To the extent that the Town is withholding any additional documents responsive to this request, which
are relevant to this appeal, it will be precluded from offering such documents at trial.
Requests to Produce 20 and 21 generally seek information and/or documents about road
impacts on health, safety, and welfare to properties located near town highways. In responding to the
Town’s relevancy objections, Appellants suggest that the Town has been deliberately placing
Appellants in jeopardy by blowing lead dust onto the Property. This allegation and information sought
in these Requests are unrelated to the present appeal in which Appellants are challenging the NOV,
which relates to the placement of a storage container allegedly within a setback in violation of the
Bylaws. Thus, we DENY Appellants’ motion with respect to Requests to Produce 20 and 21.
Request to Produce 22 seeks all documents and evidence related to the 75-foot setback
requirement which support safety, health, and welfare. The Town has provided Appellants with its
legal justification for the setbacks by citing to In re Letourneau, 168 Vt. 539 (1998). Appellants argue
in response that the Town cannot justify its setback. This exchange is not a discovery request but gets
to the legal arguments in this case. Accordingly, there is nothing for the Court to compel and
Appellants motion with respect to this Request to Produce is DENIED.
Finally, Requests to Produce 23 through 25 seek information about the Town’s drug testing
policy, as well as a list of all businesses owned by Town employees and agents. These Requests are
clearly outside the scope of this appeal and would not lead to the discovery of any admissible evidence
within the confines of this limited appeal of the NOV. Appellants’ motion to compel with respect to
these Requests to Produce is DENIED.
We now turn to Appellants’ interrogatories.
Interrogatories 4 and 5 ask the Town to explain why it engaged in illegal activities, including
encroachment and fraud related to the Town’s maintenance of area roads. The information sought
in these interrogatories is irrelevant to the limited scope of this zoning appeal. Appellants, in their
motion, argue that the allegations in these Interrogatories are true and that they have evidence thereof.
Even assuming, arguendo, that this assertion is true, Appellants present no basis to conclude that this
information is at all likely to lead to the discovery of admissible evidence within the context of this

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Court’s limited jurisdiction and review in this appeal. Accordingly, we DENY Appellants motion
with respect to Interrogatories 4 and 5.
Interrogatory 6 seeks information as to why the Town did not conduct a site visit at the
Property. The Town responded to Interrogatory 6, and therefore there is nothing to compel.
Accordingly, Appellants’ motion with respect to Interrogatory 6 is DENIED.
Interrogatory 7 asks the Town to explain why it is refusing to honor a 2016 settlement
agreement allegedly between the parties related to flood damage at the Property. The Town argues
that this question assumes disputed facts as true and is not relevant to any issue before the Court. In
response, Appellants make no showing that the requested information is likely to lead to the discovery
of admissible evidence. Any dispute regarding the relevancy of this purported 2016 Settlement
Agreement shall be taken up at trial. At this time, however, Appellants have not shown how this
agreement is remotely relevant to the issues before the Court. Accordingly, Appellants’ motion with
respect to Interrogatory 7 is DENIED.
Interrogatory 8 asks the Town to explain why it has repeatedly harmed the Property. The
Town objected to the Interrogatory as impermissibly vague because it fails to refer to any specific
harms. Furthermore, it is argumentative and assumes disputed facts, such that the Town would
otherwise be unable to respond, even if relevant to this appeal. In response to this objection,
Appellants have provided no clarity as to the information sought through this Interrogatory and how
it would be connected to the pending appeal of the underlying NOV. Accordingly, Appellants’ motion
with respect to Interrogatory 7 is DENIED.
Interrogatories 9 through 11 are also clearly outside the scope of these proceedings.
Interrogatory 9 asks why the Town failed to recognize and enforce Appellants’ property rights by
disrupting their water access. Next, Interrogatory 10 asks why the Town supports the use, cultivation,
and distribution of Schedule 1 substances. Finally, Question 11 asks why the Town has allowed
fraudulent deeds to be approved to deprive neighbors of their property rights. Appellants do not
show how any of these questions are relevant to these proceedings. Accordingly, we DENY
Appellants’ motion with respect to Interrogatories 9 through 11.
Lastly, with respect to sanctions, there has been no showing that the Town failed to comply
with its discovery obligations. Accordingly, we DENY Appellants’ Rule 37 request for sanctions
against the Town.

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Conclusion

For the forgoing reasons, we conclude that the Town has either responded, or properly
objected to the scope, form, or relevancy of the disputed requests. Accordingly, Appellants’ motion
to compel is DENIED. Similarly, there is no basis to award sanctions and Appellants’ request is
DENIED.
On or before Friday December 13, 2024, the parties shall file their dates of unavailability for
a merits hearing in February and March 2025. The Court will set this matter for a final pre-trial
conference and merits hearing.
Electronically signed November 25, 2024 pursuant to V.R.E.F. 9(D).

Thomas G. Walsh, Judge
Superior Court, Environmental Division

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