In re Fish

• Decision Date: 06 June 2014
• Docket Number: No. 12–412.,12–412.
• Citation: 2014 VT 54,103 A.3d 890
• Court: Vermont Supreme Court
• Parties: In re HALE MOUNTAIN FISH AND GAME CLUB, INC.

103 A.3d 890

2014 VT 54

In re HALE MOUNTAIN FISH AND GAME CLUB, INC.

No. 12–412.

Supreme Court of Vermont.

Motion for Reargument Denied July 29, 2014.

June 6, 2014.

Herbert G. Ogden of Ogden Law Offices, P.C., Danby, for Appellants.

Rodney E. McPhee of Kenlan, Schwiebert, Facey & Goss, P.C., Rutland, for Appellee.

Present: DOOLEY, SKOGLUND, ROBINSON and CRAWFORD, JJ., and EATON, Supr. J., Specially Assigned.

Opinion

DOOLEY, J.

¶ 1. Neighboring landowners Owen and Katherine Beauchesne bring their fourth appeal to this Court from various proceedings involving their complaints challenging the operation of Hale Mountain Fish and Game Club. Here, neighbors appeal the judgment of the Environmental Division of the superior court that Hale Mountain is entitled to reissuance of a zoning permit for certain enumerated improvements on its property once it received site plan approval from the Town of Shaftsbury Development

Review Board. Based primarily on principles of preservation and res judicata, we affirm the court's judgment.

¶ 2. Hale Mountain's 215–acre site in the Town of Shaftsbury has been used continuously since 1949 as a shooting range. In the late 1980s, neighbors purchased adjoining property on which they run a riding center. Over the years, Hale Mountain made numerous improvements to the property without obtaining either zoning permits or permits under Act 250, which became law in 1970. In the 1990s, Hale Mountain and neighboring landowners attempted to resolve issues concerning the timing and frequency of shooting at the club, but disagreements persisted, resulting in litigation that continues today.

¶ 3. Neighbors have challenged Hale Mountain's operation in several forums based on multiple legal theories,¹ but the primary battlegrounds have been proceedings before the former Environmental Board addressing Act 250 jurisdiction and before the Town of Shaftsbury administrative bodies and the Environmental Division addressing zoning permit requests and enforcement actions. In our summation of the procedural history of this case, we detail these proceedings separately, although they proceeded simultaneously at times.

¶ 4. We first summarize the Environmental Board proceedings, which supplied the findings that are the subject of the Environmental Division's decision on appeal. In June 2004, in response to neighbors' complaint, the District 8 Environmental Commission Coordinator concluded that both material and substantial changes at the club necessitated Act 250 review. Hale Mountain appealed to the Environmental Board, which rendered a plurality decision in August 2005 following a site visit and two-day public hearing. That decision limited Act 250 review to three specific improvements, which the Board found to substantially change a preexisting development such that they had the potential to have a significant impact with regard to the Act 250 criteria: (1) installation of a new well and wastewater disposal system in 1983; (2) installation of a replacement garage and new clay-target storage

trailer; and (3) improvements in connection with the commencement and operation of a beagle club in 1979.²

¶ 5. Neighbors appealed to this Court, arguing that the Board erred by not requiring comprehensive Act 250 review and by not making adequate findings to support its decision. In a September 2007 decision, we agreed with neighbors' second point and remanded the matter for the Board to make additional findings, specifically on any change in the intensity of use and level of noise at the club since the 1970s and on the impact of any improvements on streams and wetlands. In re Hale Mountain Fish & Game Club, Inc., 2007 VT 102, ¶¶ 10–11, 182 Vt. 606, 939 A.2d 498 (mem.).

¶ 6. In February 2008, without taking additional evidence, the Board on remand issued seventeen supplemental findings of fact, including that: (1) although the level of shooting activity and noise at the club “had fluctuated slightly over the years,” there had “not been an increase in intensity of shooting and noise after 1970 as compared to pre–1970 levels”; (2) the post–1970 improvements to the shooting facilities had “not caused an increase in use, shooting, or capacity at [the club] sufficient to cause any potential for significant impact under any Act 250 criterion”; and (3) the deposition of clay pigeons and spent ammunition near streams and wet areas had occurred before 1970 “without an increase in deposition or accumulation rates since that time.” Hence, the Board reiterated its conclusions that there had been no significant increase in shooting or noise at the club over pre–1970 levels and that “the only substantial changes to this grandfathered shooting range that require an Act 250 permit are the discrete changes” found in the original Board decision.

¶ 7. Neighbors again appealed to this Court, arguing that the Board's findings were not supported by sufficient evidence and that its decision was precluded by its own precedent. In a February 2009 decision, we affirmed the Board's decision, stating that neighbors had “not demonstrated a basis on which to overturn either the Board's factual findings or the Board's legal conclusion that the Club has not made a substantial change to a

pre-existing project that would subject the entire project to an Act 250 permitting process.” In re Hale Mountain Fish & Game Club, Inc., 2009 VT 10, ¶ 8, 185 Vt. 613, 969 A.2d 691 (mem.).

¶ 8. Meanwhile, in April 2004, neighbors' attorney sent the Town of Shaftsbury zoning administrator a letter asking him to enforce the town's zoning regulations by requiring Hale Mountain to obtain permits for nearly twenty listed activities. In May 2004, the zoning administrator responded in writing that he saw no violation of the town's zoning bylaws. In his response, the zoning administrator briefly addressed the alleged violations and nine additional questions, indicating either that the use or structure preexisted the 1980 bylaws, that no permit was required, that a permit had been issued, or that no evidence indicated any violation. The town zoning board of adjustment (ZBA) declined to direct enforcement actions against Hale Mountain, and neighbors sought relief in the superior court's Environmental Division.³ That appeal, docket number 149–8–04 Vtec, was eventually consolidated with another case, docket number 259–12–05 Vtec, in which the neighbors appealed from the town's refusal to act on their May 2005 demand for enforcement of the zoning bylaws.

¶ 9. After denying neighbors' motion for summary judgment in a March 2008 decision, the Environmental Division issued a supplemental interim decision in November 2008 denying the parties' cross-motions for summary judgment on the ultimate question of whether Hale Mountain had violated the town's zoning bylaws, but ruling that: (1) the fifteen-year statute of limitations in 24 V.S.A. § 4454(a) did not preclude allegations of zoning violations that occurred after May 24, 1989; and (2) “the determinations of the former Environmental Board have a preclusive effect on the same legal and factual issues material to this appeal.” In making the latter ruling, the court thoroughly examined each of the issue preclusion criteria set forth in Trepanier v. Getting Organized, Inc., 155 Vt. 259, 265, 583 A.2d 583, 587 (1990). That decision was not appealed.

¶ 10. On December 15, 2009, nearly a year after we upheld the Environmental Board's factual findings in support of its conclusion that Hale Mountain had not made substantial changes to its preexisting operation so as to require Act 250 review of the entire project, the Environmental Division issued a third interim decision

. In that decision, the court listed the nineteen improvements at the club alleged by neighbors to have occurred between the early 1990s and 2004. The neighbors never contested that the Hale Mountain activities were permitted uses in the zoning district but argued that Hale Mountain needed permits for its land developments. Hale Mountain argued that its club activities were permitted uses in the rural residential district and that no change-of-use permits were required based on the EnvironmentalBoard's findings concerning the absence of increased activities at the club. The court agreed that the Board's previous findings entitled Hale Mountain to summary judgment on all of the use violations alleged by neighbors, but rejected the notion that zoning permits were required only when a landowner changed a property's use. The court ruled that the town's zoning bylaws required Hale Mountain to obtain permits for any new land development on the property, explaining that whether permits were required for land development was a separate question from whether there had been a “substantial change” to a preexisting development.

¶ 11. After examining the alleged improvements, the court ruled that: (1) the applicable statute of limitations barred the enforcement of alleged zoning violations that occurred before May 24, 1989; (2) the Environmental Board's previous findings precluded neighbors from alleging zoning violations predicated on an alleged change of use; (3) Hale Mountain was entitled to summary judgment regarding the improvements numbered fourteen through eighteen; and (4) neighbors were entitled to summary judgment regarding the improvements numbered one through thirteen and nineteen because those activities constituted land development requiring a zoning permit. The court also: (1) dismissed docket number 259–12–05 Vtec as duplicative of the zoning enforcement allegations contained in docket number 149–8–04 Vtec; (2) affirmed the December 2, 2005 decision of the town ZBA dismissing neighbors' second demand that the zoning administrator commence enforcement proceedings; and (3) rejected neighbors' request that it determine whether lead shot or shells constitute a public health hazard, since the zoning bylaws provided no jurisdictional authority for the court to consider such claims. The court...