Motion for Reargument Denied July 29, 2014
This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Environmental Division. Thomas S. Durkin, J.
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
[¶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, 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.
[¶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 ...