In re Sportsmen, Inc. Permit 2W1334, 22-ENV-00051

Citation22-ENV-00051
Case DateOctober 25, 2022
CourtSuperior Court of Vermont

Sportsmen, Inc. Permit 2W1334

No. 22-ENV-00051

Superior Court of Vermont

October 25, 2022


ENTRY REGARDING MOTION

THOMAS G. WALSH, JUDGE

Title: Motion to Stay (Motion: 1); Neighbor's Proposed Discovery Stipulation and Order

Filer: Hans G. Hussey (Motion 1); Ronald A. Shems (Neighbor's Discovery Stipulation and Order)

Filed Date: September 8, 2022 (Motion 1); September 19, 2022 (Neighbor's Discovery Stipulation and Order)

The Motion for Stay is DENIED; this Court's review will be by TRIAL DE NOVO.

DECISION ON MOTION FOR STAY AND SCOPE OF REVIEW

Sportsmen, Inc. (Appellant or Sportsmen Inc.) appeals the District Environmental Commission's (District Commission) May 2, 2022 Memorandum of Decision and Order re Motion to Alter Appellant's Act 250 Permit Conditions. Currently pending before the Court is Appellant's Motion for Stay, as well as an intrinsic issue regarding the scope of this Court's review, arising from disagreements contained in the Parties' Proposed Discovery Schedules. Interested Parties, Kathy Cooke (Neighbor) and the Vermont Natural Resources Board (NRB), both opposed Appellant's Motion for Stay, arguing the Appellant applied the wrong standard and failed to meet their burden. Regarding the intrinsic issue arising from the Parties' Proposed Discovery Schedules, Neighbor argues that the scope of this Court's review is limited to an on-the-record review of the evidence that was before the District Commission, while the Appellant and the NRB both agree that the scope of review is de novo.

In this proceeding, Appellant is represented by Attorney Hans G. Huessy. Attorneys Stephen A. Reynes and Ronald A. Shems represent Neighbor, and Attorney Allison Milbury Stone represents the NRB.

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Procedural History

Sportsmen Inc. has been in operation since 1940. Sportsmen Inc. is a nonprofit organization promoting fishing, hunting, trapping, archery, and shooting sports on their 47-acre parcel in Guilford, VT. In 1971, the District Commission reviewed the applicability of Act 250 to construction of an archery course, road alteration, and construction of a backstop, rifle range, and trap house. The District Commission did not find an Act 250 permit was required but notified the Sportsmen Inc. that future construction would require approval from the District Commission. Throughout the years, there have been a number of improvements made to the facility, including in 2013 when the Sportsmen Inc. was awarded a $34,000 grant to build several safety berms on the property. After the installation of the berms, Neighbor contacted the District Commission asserting that the construction of the berms had created "a dramatic change in the sound level." Neighbor had lived next to the range for 35 years prior to reaching out to the District Commission for a Jurisdictional Opinion. Sportsmen Inc. provided no documentation as to the noise levels before and after the improvements.

The District Commission concluded that, while there is no doubt that Sportsmen Inc. qualifies as a preexisting development, a substantial change had occurred triggering Act 250 Jurisdiction. The District Commission found that there were numerous physical improvements to the facility, including increasing the size of the clubhouse, adding wastewater systems and restrooms, altering a pond, and the construction of the backstops and berms. The District Commission also found those changes had the potential to create significant impacts under several Act 250 criteria, specifically Criterion 1(B) Waste Disposal, 1(G) Wetlands, and 8 Aesthetics. The District Commission issued its Jurisdictional Opinion on June 15, 2015.

Sportsmen Inc. filed a complete application for an Act 250 permit on March 4, 2021.[1]The application sought approval of the previously completed construction at the facility, including the berms, pond, wastewater, and other additions to the facilities. The application was approved with several conditions for new staffing and construction responding to the Act 250 criteria, as well as requirements that Sportsmen retrofit some of its earlier construction so that meets the specifications that would have been required had it applied for permits before construction commenced. Specifically, the permit conditions include a sound mitigation plan, a Sunday operations limitation, increased staffing requirements, and plumbing and lighting retrofitting to comply with Act 250 requirements. Act 250 Permit No. 2W1334 (Jan. 12, 2022) (Permit) (Neighbor's Opp. to Mot. for Stay, Ex. (filed Sept. 22, 2022).

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Sportsmen Inc. then filed with the District Commission a motion to alter the Permit. Relevant to the present Motion for Stay, Sportsmen Inc. requested the requirement that a 65-foot sound mitigation berm be completed by October 1, 2022, be altered to be left open as to the height and only required if other noise mitigation measures were insufficient. The District Commission denied the requested modification, but ultimately modified the condition to require construction be completed on May 30, 2023. Other alteration requests were outright denied. Sportsmen Inc. then appealed the District Commissions denial of its Motion to Alter.

Scope of Court's Review

The parties agree that the scope of this appeal is limited to the issues raised in the Statement of Questions as related to the District Commission's Memorandum of Decision and Order on Appellant's Motion to Alter, dated May 2, 2022. The parties, however, disagree on the standard of review. Neighbor suggests that because this is an appeal of a decision on a Motion to Alter-in which the District Commission's consideration was limited to the record before the District Commission pursuant Act 250 Rule 31(A)-this Court's review standard is similarly limited to an on-the-record review of the District Commission's record. See Neighbor's Proposed Schedule at 1 (Sept. 19, 2022) (citing 10 V.S.A. § 8504(h)). Appellant and the NRB disagree, pointing to the Vermont Rules for Environmental Court Proceedings Rule 5(g), which generally provide that all appeals to the Environmental Court shall be by trial de novo, subject to enumerated exceptions which do not apply here. V.R.E.C.P. 5(g)-(h).

Vermont Rules for Environmental Court Proceedings Rule 5 applies to appeals to the Environmental Court from a district commission determination made pursuant chapter 151 of Title 10. V.R.E.C.P. 5(a). "All appeals under this rule shall be by trial de novo," except for appeals from appropriate municipal panels or appeals from the Commissioner of Forest, Parks, and Recreation pursuant 10 V.S.A. § 2625. V.R.E.C.P. 5(g), (h)(1)-(2) (emphasis added). "In an appeal by trial de novo, all questions of law or fact as to which review is available shall be tried to the court, which shall apply the substantive standards that were applicable before the tribunal appealed from." V.R.E.C.P. 5(g); 10 V.S.A. § 8504(h). The scope of questions of law or fact before the court is limited by the Statement of Questions. V.R.E.C.P. 5(f) ("The appellant may not raise any question on the appeal not presented in the statement as filed ....").

Neighbor argues that "de novo review has many flavors, most of which do not involve new evidence." Neighbor's Reply Mem. Re Scope of Appeal at 2 (filed Oct. 12, 2022) (emphasis added). In support of their argument, Neighbor offers the analogy of the Supreme Court's review of an appeal from a Civil Division's decision on a Motion for Summary Judgment. Neighbor's argument, however, fails to recognize the distinction between de novo trial and de novo review. The Environmental Court's procedural rules do not describe a "de novo review" but rather a "de novo trial" or "de novo hearing." V.R.E.C.P. 5(g) ("In an appeal by trial de novo,

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all questions of law or fact as to which review is available shall be tried to the court, which shall apply the substantive standards that were applicable before the tribunal appealed from."); 10 V.S.A. § 8504(h). The Vermont Supreme Court has "distinguished between the terms 'hearing de novo' or 'trial de novo' and the term 'review de novo.'" State v. Madison, 163 Vt. 360, 36870 (1995). By requiring a "de novo trial," the Rules for Environmental Court Proceedings are contemplating a trial "where the case is heard as though no action whatever had been held prior thereto." Madison, 163 Vt. at 369. The Vermont Supreme Court explicitly noted that "'de novo review,' a procedure that might not require a retrial or extensive judicial record making, is not the standard required" in the environmental appeal statutes, which require a de novo trial or de novo hearing. Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 11 n. 2 (1989). As such,...

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