Full Opinion (html_with_citations)

                                   STATE OF VERMONT
SUPERIOR COURT                                                  ENVIRONMENTAL DIVISION
Vermont Unit                                                     Docket No. 164-12-13 Vtec
                                        Laberge NOV

                             ENTRY REGARDING MOTION

Title:        Motion to Compel (Motion #2)
Filer:        Gary Fenwick
Attorney:     Claudine C. Safar
Filed Date:   October 21, 2014

Response in Opposition filed on 11/19/2014 by Brian P. Hehir, Attorney for Appellees
  Matthew A. Laberge and Judith Laberge

The motion is GRANTED.
        The Town of Hinesburg (“Town”) Zoning Administrator issued landowners Matt and Judy
Laberge (“Laberges”) a Notice of Violation (“NOV”) on July 31, 2013 for unreasonable noise on
their property, located at 852 Hayden Hill Road West in Hinesburg, Vermont,. The NOV was
prompted by noise complaints from neighboring landowners, Gary and Fiona Fenwick
(“Appellants”), and referenced three specific dates in the summer of 2013 on which noise was
reported at an intensity exceeding 80 decibels (“dBA”) at the property line every five-minutes
for a duration of 10 to 15 seconds over the course of 1 to 2 hours.
        The Laberges appealed the NOV to the Town of Hinesburg Development Review Board
(“DRB”), which found that the Laberges’ motorcycle use during the summer of 2013 constituted
a “usual and customary residential activity” and was not in violation of § 5.12.1 of the Town of
Hinesburg Zoning Regulations (“Regulations”) regarding noise restrictions. Appellants timely
appealed that decision to this Court. Now pending is Appellants’ October 20, 2014 motion
requesting that the Court compel the Laberges to respond to discovery requests regarding
noise testing and studies conducted relative to their property.
       We will grant a motion to compel discovery if the moving party (here, Appellants)
demonstrates that they have served a specific discovery request upon another party (here, the
Laberges), that the other party has refused to satisfy the specific discovery request, and that
they have conferred with or attempted to confer with opposing counsel “about the discovery
issues between them in detail in a good faith effort to eliminate or reduce the area of
controversy, and to arrive at a mutually satisfactory resolution.” V.R.C.P. 26(h), 37(a)(2). The
moving party must file an affidavit certifying these efforts, including the “date or dates of the
consultation with opposing counsel, and the names of the participants.” V.R.C.P. 26(h). Where
a party fails to comply with a discovery request, it is within the Court’s discretion whether to
“make such orders in regard to the failure as are just.” V.R.C.P. 37(d).
In re Laberge NOV, No. 164-12-13 Vtec (EO on Motion to Compel Discovery)(Dec. 19, 12014)       P. 2.


        In support if their motion, Appellants certify service of the interrogatories on the
Laberges on May 6, 2014. Paragraph 7 of the request asked the Laberges to “identify each and
every time [the Laberges], [the Laberges’] representative(s), and/or the Town of Hinesburg
[has] performed noise testing, noise studies, or similar tests on or related to [the Laberge]
property . . . .” On July 1, 2014 the Laberges filed a response to Appellant’s interrogatories. In
their response, the Laberges state that they have not conducted any noise testing.
        On July 18, 2014, Appellants served the Laberges with a Request to Admit, paragraph 2
of which asks the Laberges to admit that neither they nor anyone on their behalf has ever
tested the decibel levels associated with motorcycle use on the Laberge property. The Laberges
denied this request in their August 8, 2014 response, prompting Appellants to send a letter
seeking clarification of the discrepancy between the July 1 and August 8 responses.
        On October 6, 2014, the Laberges responded to Appellant’s letter by e-mail, explaining
that “the Laberges own a radio shack sound meter, and used it before,” but “have no records of
the dates of use or of any recordings they may have obtained from it . . . .” Appellants then
requested information about the meter, its calibration, the Laberges’ best recollection of when
they used the meter, and whether the Laberges intend to testify at trial about any readings.
The Laberges declined to provide any of the requested information “unless [the Laberges] took
readings on the dates complained of during the summer of 2013.” On October 7, 2014, after
Appellants’ requested an explanation why the Laberges would not provide the requested
information, the Laberges asserted that they did not use a sound meter on either of the three
days in 2013 which are the subject of the appeal. On October 7, 2014 Appellants again
requested the information as corroborating evidence, and the Laberges again declined.
        Appellants’ motion and exhibits satisfy the requirements under Rules 26(h) and 37(a)(2),
in that they demonstrate service of a specific discovery request, the Laberges’ refusal to satisfy
the specific discovery request, and good faith efforts between the parties to resolve the
dispute. As such, it is within the Court’s discretion to issue an order compelling the requested
discovery; in exercising that discretion, we are directed to determine what would be just.
        Generally, parties may seek discovery of any non-privileged information that is “relevant
to the subject matter involved in the pending action, whether it relates to the claim or defense
of the party seeking discovery or to the claim or defense of any other party,” regardless of
whether the information will be admissible at trial, as long as it is “reasonably calculated to lead
to the discovery of admissible evidence.” V.R.C.P. 26(b)(1). Appellants’ initial request asked for
information about “each and every time” anyone performed “noise testing, noise studies, or
similar tests.” The request seeks discoverable information, and was not limited to certain dates
or time periods. Finding that Appellants have satisfied the standard under Rules 26(h) and
37(a)(2), we GRANT their motion and issue this ORDER to the Laberges, compelling their
complete response to Appellants’ October 7, 2014 discovery requests no later than 4:00 PM on
Monday, January 5, 2015. Failure to abide by this Order compelling complete responses could
lead to one or more sanctions being imposed against Mr. and Mrs. Laberge.
       This matter remains scheduled for trial in the Environmental Division courtroom at the
Costello Courthouse (2nd floor) in Burlington, beginning at 9:00 AM on Thursday, January 15,
2015.
In re Laberge NOV, No. 164-12-13 Vtec (EO on Motion to Compel Discovery)(Dec. 19, 12014)   P. 3.




Electronically signed on December 19, 2014 at Newfane, Vermont, pursuant to V.R.E.F. 7(d).




________________________________
Thomas S. Durkin, Judge
Environmental Division

Notifications:
Claudine C. Safar (ERN 3985), Attorney for Appellant Gary Fenwick
Claudine C. Safar (ERN 3985), Attorney for Appellant Fiona Fenwick
Ernest M. Allen (ERN 3968), Attorney for Interested Person Town of Hinesburg
Brian P. Hehir (ERN 4252), Attorney for Appellee Matthew A. Laberge
Brian P. Hehir (ERN 4252), Attorney for Appellee Judith Laberge
cstanton