Wild v. Brooks, 2004 VT 74 (VT 8/13/2004), 2003-077.

• Decision Date: 13 August 2004
• Docket Number: No. 2003-077.,2003-077.
• Citation: 2004 VT 74
• Court: Vermont Supreme Court
• Parties: George Wild, Jr. v. David Brooks, et al.

Page 1

2004 VT 74

George Wild, Jr. v. David Brooks, et al.

No. 2003-077.

Supreme Court of Vermont

August 13, 2004

On Appeal from Orange Superior Court, Amy M. Davenport, J.

David L. Grayck of Cheney, Brock & Saudek, P.C., Montpelier, for Plaintiff-Appellant.

Stephen J. Craddock, Berlin, for Defendants-Appellees.

PRESENT: Amestoy, C.J., Dooley, Johnson, Skoglund and Reiber, JJ.

JOHNSON, J.

¶ 1. Plaintiff George Wild initiated this action to permanently enjoin the operation of a commercial shooting range that borders his property. The superior court dismissed Wild's suit after trial, concluding that, at the time of the trial, the terms of the range's Act 250 permit prohibited operations for a period of up to ten years, therefore an injunction could not issue because there was no activity to enjoin and would not likely be any in the foreseeable future. Alternatively, it ruled that 10 V.S.A. § 5227(b) immunized defendants from suits seeking injunctions related to nuisance noise. On appeal, Wild claims that (1) recent revisions to the range's Act 250 permit, which allowed the range to re-open as of this spring, rendered the superior court's opinion advisory; and (2) the grant of statutory immunity under 10 V.S.A. § 5227, if valid, effects an unconstitutional taking by depriving Wild of a remedy for the claimed nuisance. We affirm the trial court's decision in so far as it was based on the equitable principles governing injunctions and justiciability in nuisance suits, and therefore do not reach Wild's statutory and constitutional arguments.

¶ 2. The Bull's Eye Sporting Center abuts the land where Wild lives and works. The Bull's Eye is a commercial shooting range permitted under Act 250, Vermont's land use law. The range is approximately one half mile from Wild's home. During its previous seasons of operation which ran from April 15 to November 15, Wild could hear shooting from the range at various points on his property including his home.

¶ 3. For several years, Wild and his neighbors objected to the shooting range and have appealed Bull's Eye's Act 250 land use permits before the District Environmental Commission (DEC) and Environmental Board. The neighbors' efforts succeeded when, on June 23, 2000, the Environmental Board found that Bull's Eye's operators, the Brookses, violated their permit by logging trees that formed part of the vegetative sound buffer between the range and Wild's property. The Environmental Board revoked Bull's Eye's permit, but stated that the Brookses should be given an opportunity to cure the violation. The decision allowed the range to operate on an interim basis until the DEC issued a new permit that contained conditions addressing the Brookses' violation and effectuating a proposed cure.

¶ 4. On May 29, 2001, Wild and some of his neighbors filed a complaint in Orange County Superior Court alleging, among other things, that the noise from the shooting range created a private nuisance.¹ Plaintiffs sought to permanently enjoin the range's operation.

¶ 5. Meanwhile, the Brookses applied to the DEC for an amended permit. Wild opposed the application before the DEC. On July 5, 2001, the DEC issued an amended permit. Condition 6 of the permit stated that "[t]he `no shooting zone' for firearms at this range shall include the entire tract until such time as either sufficient tree growth has occurred to restore basal areas in existence prior to the logging performed in 1996-1998 or a ten year period has elapsed." This condition effectively halted all firearm shooting at the range for an indefinite period of time not to exceed ten years. In August 2001, the Brookses appealed the DEC's decision, and Wild cross-appealed.

¶ 6. While the appeal to the Environmental Board was pending, the superior court held a trial in Wild's nuisance suit on July 17, 2002. At the close of Wild's case, defendants moved for a judgment as a matter of law. The court granted defendants' motion and dismissed Wild's case, ruling that the extraordinary remedy of injunction was inappropriate because, under general equitable principles, Wild's right to relief was not clear. By stipulation of the parties, the court had taken judicial notice of the ongoing Act 250 proceedings that affected range operations. In the court's view, the fact that the Act 250 process had already suspended range operations for an indefinite period that could last as long as ten years precluded the need for an injunction. The Court also ruled that Wild's nuisance suit was barred by 10 V.S.A. § 5227(b). The statute, which was amended in June 2001 after Wild filed his complaint in the trial court, provides that

The owner or operator of a sport shooting range . . . who is in substantial compliance with any noise use condition of any issued municipal or state land use permit otherwise required by law shall not be subject to any civil liability for damages or any injunctive relief resulting from noise or noise pollution, notwithstanding any provision of law to the contrary.

10 V.S.A. § 5227(b). The court also dismissed Wild's claim for money damages because it found that the evidence did not support Wild's damages claim.

¶ 7. Pursuant to V.R.C.P. 52(a), plaintiffs filed a request for findings of fact, and on August 5, 2002, Wild filed a motion to reconsider the ruling on damages, or in the alternative, to reopen the evidence. In its findings of fact and conclusions of law, filed on January 22, 2003, the court noted the undisputed fact that the range was not in operation at that time and that the range's land use permit prohibited commercial shooting for "a period of ten years or such time as is necessary for sufficient tree growth to occur `to restore order basal areas in existence prior to the logging performed in 1996-1998.'" Based on this finding, the court concluded that, although both Wild and the Brookses had appealed the permit decision, injunctive relief was not available for the same reasons it cited in its earlier ruling: the Act 250 ten-year ban and statutory immunity. Despite its reliance on the statute as an independent ground for dismissal, the court declined to address Wild's argument that, by denying Wild access to injunctive relief and monetary damages, the statute effected an unconstitutional taking. The court reasoned that "Plaintiffs' claims fail for reasons separate and apart from the immunity provided under the statute," because, at the time, the Act 250 process had abated the nuisance for the foreseeable future.

¶ 8. Wild appealed the court's ruling. While the case was on appeal, subsequent developments in the Act 250 appeals process resulted in a ruling that allowed defendants to reopen the shooting range by April 2004,² subject to revised hours of operation and several other noise mitigation conditions. Wild argues that this change in the pre-decision status quo subsequently rendered the trial court's opinion advisory. Wild also renews his claim that, in the context of this case, 10 V.S.A. § 5227(b) effected an unconstitutional taking of his property.

¶ 9. We affirm the trial court's decision to the extent that it relied on equitable principles militating against the issuance of an injunction to prohibit alleged nuisance activity that was already halted indefinitely by a collateral legal process. In essence, the trial court determined that the case was mooted by the involuntary and indefinite cessation of range activities. The fact that the range was permitted to reopen after the court had entered final judgment does not invalidate a decision that was correct when it was entered. To the contrary, the court avoided issuing an advisory opinion because the trial court could not have predicted the results of the Act 250 process and the noise-related changes in range operations that it would effect. Under such circumstances, a determination in the fact-sensitive nuisance context would have been inappropriate. Our holding with respect to mootness and justiciability precludes our application of the statute. We reserve judgment on its constitutionality until such time as the issue is squarely presented in the context of a live controversy.

¶ 10. An injunction is an extraordinary remedy that will not be routinely granted unless the right to relief is clear. Comm. to Save Bishop's House v. Med. Ctr. Hosp. of Vt., 136 Vt. 213, 218, 388 A.2d 827, 830 (1978). Injunctions are designed to deter injurious conduct; thus relief will not be granted if the conduct has been discontinued, i.e., if the case is moot. 11A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil § 2942, at 47-48 (2d ed. 1995) (citing cases). Because the court's inquiry in the nuisance context is heavily fact-bound, courts must be cautious about issuing injunctions where changes in the circumstances giving rise to the alleged nuisance are likely to occur. See Trickett v. Ochs, 2003 VT 91 ¶ 37, 838 A.2d 66 ("In determining whether a land use of a lawful business constitutes a nuisance, courts must consider both the extent of the interference and the reasonableness of the challenged activities in light of the particular circumstances of the case.") (internal quotation marks and citations omitted); Winget v. Winn?Dixie Stores, Inc., 130 S.E.2d 363, 367 (S.C. 1963) ("Whether a particular use of property is reasonable and whether such use constitutes a nuisance depends largely upon the facts and no definite rule can be laid down for the determination of the question.").

¶ 11. The court properly exercised equitable restraint by refusing to enjoin the alleged nuisance at a time when the source of the nuisance had been abated by the Act 250 process for the foreseeable future. Though the range was operating as an alleged nuisance when Wild filed his complaint in May 2001, under the terms of Bull's Eye's Act 250 amended permit issued in July 2001, commercial shooting was prohibited on the Brookses' entire tract. Accordingly, no shooting was...