Costco Wholesale Corp.
| Docket Number | 20-3-20 Vtec,48-6-20 Vtec,22-ENV-0084,23-ENV-00004 |
| Decision Date | 27 October 2023 |
| Citation | 2023 Vt Super 102701 |
| Parties | Costco Wholesale Corp. LU Permit Amendment and JO Appeal |
| Court | Superior Court of Vermont |
Motion A: Motion in Limine
Filer Alexander J. LaRosa, Attorney for R.L. Vallee, Inc.
Opposition to R.L. Vallee's Motion in Limine, filed by Mark G. Hall Attorney for Costco on October 23, 2023
Filer Alexander J. LaRosa, Attorney for R.L. Vallee, Inc.
Opposition to R.L. Vallee's Motion in Limine, filed by Mark G. Hall Attorney for Costco on October 26, 2023
Motion A is DENIED; we DECLINE TO CONSIDER Motion B prior to trial.
R.L Vallee, Inc. ("Vallee") and Timberlake Associates, LLP ("Timberlake") seek to preclude Costco Wholesale Corporation ("Costco") from introducing certain testimony and evidence during next week's merits hearing. The first motion ("Motion A") includes three requests: (1) that the Court exclude evidence of traffic modeling prepared by Chris Tiesler because it is outdated and irrelevant; (2) that the Court bar Costco from introducing evidence of its compliance with any permit conditions; and (3) that the Court preclude Costco from introducing evidence in dockets 22-ENV-00084 and 23-ENV-00004 that is unrelated to the Act 250 material change test. The second motion ("Motion B") seeks to preclude Costco from calling any undisclosed or newly disclosed witnesses that Vallee and Timberlake have not had an opportunity to depose. For the reasons stated below, we deny Motion A and decline to consider Motion B prior to trial.
Because this Court conducts bench trials, we liberally admit relevant evidence. Diverging Diamond Interchange A250 and SW Permits, Nos. 169-12-16, 50-6-16 Vtec, slip op. at 1-2 (Vt. Super. Ct. Envtl. Div. Feb. 8, 2018) (Walsh, J.) (citing The Van Sicklen Ltd. P'ship, No. 4C1013R-EB, slip op. at 1 (Vt. Env. Bd. Sep. 28, 2001)). Unlike a jury, we are unlikely to be "unduly swayed by a questionable evidentiary offering." Id. Once relevant evidence is admitted, we afford it the weight it deserves, if any. Id.; In re Application of Lathrop Ltd. P'ship I, 2015 VT 49, ¶ 90, 199 Vt. 19.
The Court is wary of prospectively barring potentially relevant evidence-especially in a matter as complex as this one. Vallee and Timberlake argue that Chris Tiesler's traffic models are outdated and irrelevant because they predate VTrans' construction of the Diverging Diamond Intersection at Interstate I-89 Exit 16 ("DDI"). This argument lacks a factual foundation. Evidence of the various traffic impacts caused by limited and full-time operation of the gas station may be relevant to whether Costco's operations are consistent with Act 250's requirements. Accordingly, we will consider the weight of this evidence in context at trial. We also decline to prospectively limit evidence of Costco's compliance with its permit conditions. According to Costco, it plans to introduce such evidence to argue that these appeals are now moot. It would be premature to exclude evidence which may be relevant to the issues presented at trial. Similarly, we decline to prospectively limit the admissibility of evidence in Dockets No. 22-ENV-00084 and 23-ENV-00004. The Court will consider these issues at trial.
Turning to Motion B, Vallee and Timberlake seek to preclude Costco from calling undisclosed or newly disclosed witnesses. According to Vallee, Costco disclosed two new witnesses on October 4, 2023. Vallee asserts that Costco never responded to its subsequent request to depose one of the new witnesses. In response,...
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