In re Appeal of Jam Golf, LLC

• Decision Date: 22 August 2008
• Docket Number: No. 06-307.,06-307.
• Citation: 2008 VT 110,969 A.2d 47
• Court: Vermont Supreme Court
• Parties: In re Appeal of JAM GOLF, LLC.

969 A.2d 47

2008 VT 110

In re Appeal of JAM GOLF, LLC.

No. 06-307.

Supreme Court of Vermont.

August 22, 2008.

Motion for Reargument Denied December 8, 2008.

William Alexander Fead of Fead Construction Law, PLC, Burlington, for Appellant.

Amanda S.E. Lafferty of Stitzel, Page & Fletcher P.C., Burlington, for Appellee.

Present: REIBER, C.J., JOHNSON, SKOGLUND and BURGESS, JJ., and REISS, D.J., Specially Assigned.

¶ 1. BURGESS, J.

Property owner JAM Golf, LLC (applicant) appeals the Environmental Court's denial of a permit for a proposed ten-lot subdivision in South Burlington. Applicant raises four issues on appeal, claiming the court erred by: (1) admitting expert testimony concerning wildlife corridors; (2) concluding that the project did not protect wildlife habitat or scenic views; (3) finding that the project did not conform to the city plan; and (4) denying the project a permit, rather than remanding the case to the development review board. We reverse the court's conclusion and remand for further findings under § 26.151 of the South Burlington Zoning Ordinance.

¶ 2. Applicant owns part of a 450-acre planned residential development (PRD) known as the Vermont National Country Club. The property is located in the Southeast Quadrant Zone ("Quadrant") of South Burlington. The parcel is permitted for 296 residential units, as well as for an eighteen-hole golf course. Applicant sought to obtain permits for ten additional lots on an approximately seven-acre portion of the development known as "the woodland."

¶ 3. The woodland sits on a ridge in the golf course and is bounded by three fairways and by another residential development. Several species of hard-mast-producing trees,¹ including hickory, butternut, beach, and tall pines, populate the woodland. The grounds contain shrubs, saplings, and berry patches. Wildlife experts directly observed or noted evidence of deer, fox, turkey, raccoon, squirrel, rabbit, other rodents, and birds in the woodland. The woodland is also adjacent to wetlands and an open space located on the golf course.

¶ 4. Applicant applied to the board to amend the current PRD to accommodate ten additional lots in the woodland. The board denied the application, and applicant appealed this denial to the Environmental Court. Four years later, in a six-page decision, the court denied the application without prejudice.² The court held that the project did not satisfy the mandate of § 26.151(g) requiring that PRDs "protect important natural resources including ... scenic views" and "wildlife habitats." In addition, the court concluded that the project violated § 26.151(1), which requires that the amended PRD conform to the city plan. The city plan for the Quadrant requires residential developments to protect wildlife habitat, and the court concluded that the applicant failed to do so here. This appeal followed.

¶ 5. On appeal, applicant claims that: (1) expert testimony concerning wildlife corridors was inadmissible, because the testimony was unreliable; (2) the record does not support the court's conclusion that the project does not protect wildlife habitats; (3) the record does not support the court's conclusion that the project does not protect scenic views; (4) the city plan is not sufficiently specific to be enforceable; and (5) the court should have remanded the application to the board for guidance instead of denying the application.

I.

¶ 6. Applicant contends that the Environmental Court erred in admitting testimony from South Burlington's wildlife expert concerning wildlife corridors. Specifically, applicant faults the court for not making specific findings of reliability necessary under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Had the court conducted the inquiry, applicant maintains, the court would have found the testimony unreliable and thus inadmissible.

¶ 7. Under Vermont Rule of Evidence 702, expert testimony will only be admitted if it "`assist[s] the trier of fact to understand the evidence or to determine a fact in issue,'" and if: "`(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.'" 985 Assocs. v. Daewoo Elec. Am., Inc., 2008 VT 14, ¶ 6, 183 Vt. 208, 945 A.2d 381 (quoting V.R.E. 702). Accordingly, trial courts act as "gatekeepers who screen expert testimony ensuring that it is reliable." USGen New England, Inc. v. Town of Rockingham, 2004 VT 90, ¶ 19, 177 Vt. 193, 862 A.2d 269.

¶ 8. To be reliable, expert testimony must be supported by "scientific knowledge." Daubert, 509 U.S. at 589, 113 S.Ct. 2786. The Court in Daubert defined the adjective "scientific" as "ground[ed] in the methods and procedures of science," and stated that "knowledge" must be more than a subjective belief or speculation. Daubert, 509 U.S. at 590, 113 S.Ct. 2786. In determining whether expert testimony is "reliable," trial courts may consider such factors as: (1) whether the scientific technique can be tested; (2) whether the technique was peer reviewed; (3) any potential error associated with the technique; and (4) whether the technique was generally accepted in the scientific community. USGen New England, 2004 VT 90, ¶ 16, 177 Vt. 193, 862 A.2d 269. This list is not exhaustive, however, and the Rule 702 admissibility standard is flexible. Id. In addition, in the context of bench trials, the trial court's gatekeeper function is not as crucial because it "`requires a binary choice—admit or exclude[;]... a judge in a bench trial should have discretion to admit questionable technical evidence, though of course he must not give it more weight than it deserves.'" Id. ¶ 26 (quoting SmithKline Beecham Corp. v. Apotex Corp., 247 F.Supp.2d 1011, 1042 (N.D.Ill. 2003)). We review Rule 702 determinations for abuse of discretion. Id. ¶ 21.

¶ 9. Applicant claims that the testimony of the City's expert, Mr. Parsons, is unreliable, because it rested on his speculative and subjective beliefs rather than on "scientific knowledge." Applicant cites Mr. Parsons' qualification of his testimony concerning wildlife corridors as "preliminary," "potential," and "hypothetical." Applicant essentially asserts that all such testimony is per se unreliable. Applicant misconstrues the standard. Expert testimony "does not alone have to meet the proponent's burden of proof" to be admissible. USGen New England, 2004 VT 90, ¶ 19, 177 Vt. 193, 862 A.2d 269. In order to tease out deficiencies of expert testimony, opponents should attack testimony of this nature through the adversarial process. Daewoo, 2008 VT 14, ¶ 16, 183 Vt. 208, 945 A.2d 381.

¶ 10. Despite the "hypothetical" nature of some of Mr. Parsons' testimony, we conclude that the testimony was reliable for the purposes of Daubert, because the testimony was based on the type of facts and data with which wildlife experts are familiar—topographic features and wildlife movement patterns. As a wildlife expert, Mr. Parsons is accorded the authority to interpret and rely on such technical information, even if he has not observed it firsthand. V.R.E. 703; Daubert, 509 U.S. at 594, 113 S.Ct. 2786. Mr. Parsons' conclusions were not speculative but instead were "based on what is known." Daubert, 509 U.S. at 590, 113 S.Ct. 2786. In this case, Mr. Parsons relied on the topography of the woodland, the close proximity of major roads, the presence of cover, his observation of wildlife and their nests, dens and scat on the parcel, and the typical movement patterns of common wildlife on the land to offer an opinion that the woodland sat in a "potential" wildlife corridor. According to Mr. Parsons, these methods are used by other scientists, including those employed by governmental entities that map and protect wildlife corridors based on aerial photographs and topographic maps. The general use of Mr. Parsons' methods suggests they are a reliable technique to identify "potential" wildlife corridors. See USGen New England, 2004 VT 90, ¶ 16, 177 Vt. 193, 862 A.2d 269.

¶ 11. While we agree with applicant that this testimony is not dispositive as to whether wildlife actually use the woodland as a corridor, we cannot conclude that Mr. Parsons' testimony is the kind of "junk science" that Daubert meant to exclude. Daewoo, 2008 VT 14, ¶ 8, 183 Vt. 208, 945 A.2d 381. In finding evidence to be reliable, the trial court is not expected to make a substantive decision on the merits of the proponent's argument but is instead required to make an "inquiry into the factual basis and methodology" used by the expert witness. Id. ¶ 11. Because Mr. Parsons offered a sufficient basis for his testimony, we cannot conclude that the court abused its discretion by admitting it as evidence.

II.

¶ 12. Applicant next claims that the Environmental Court erred in concluding that the project does not satisfy § 26.151(g) of the Zoning Ordinance, which requires PRD designs to "protect important natural resources including streams, wetlands, scenic views, wildlife habitats and special features such as mature maple groves or unique geologic features." Applicant challenges both the court's interpretation of the ordinance and its underlying findings of fact. Specifically, applicant asserts that § 26.151(g): (1) requires that PRD designs "protect" only important wildlife habitat and scenic views; and (2) allows developers to offer mitigation in order to meet this requirement. Applicant complains that the habitat and view at issue here are not, and cannot be, considered "important" from the court's findings.

¶ 13. Unfortunately, the ordinance as written is essentially standardless. Although applicant challenges the court's interpretation of the ordinance, rather than attacking the ordinance itself, § 26.151 is flawed, since it provides no standards for the court to apply in determining what...