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In re Laberge Shooting Range

Supreme Court of Vermont

August 17, 2018

In re Laberge Shooting Range (Firing Range Neighborhood Group, LLC, Appellant)

          On Appeal from Superior Court, Environmental Division Thomas G. Walsh, J.

          Justin B. Barnard and Austin D. Hart of Dinse, Knapp & McAndrew, P.C., Burlington, for Appellant.

          Hans G. Huessy of MSK Attorneys, Burlington, for Appellee.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          SKOGLUND, J.

         ¶ 1. The Firing Range Neighborhood Group, LLC (Neighborhood Group) appeals an environmental court decision declining to find Act 250 jurisdiction over a firing range operated by the Laberge family (Laberge). Neighborhood Group argues that the environmental court erred by: (1) allowing Laberge's untimely appeal; (2) concluding that because Laberge did not rely on donations, it was not operating for a commercial purpose; and (3) granting preclusive effect to a 1995 jurisdictional opinion. We affirm.

         ¶ 2. The Laberge family owns and operates a 287-acre farm, of which ten acres have been used as a shooting range since the 1950s by Laberge and the public. Elder members of the Laberge family have used the range since childhood, when they competed in marksmanship at a national level, though they currently shoot at the range as little as two-to-three times per year. The family often frequents the range to oversee its use. Over the years, Laberge has accepted occasional donations of scrap lumber and some users have voluntarily provided services such as construction or repair of shooting benches.

         ¶ 3. In 1994, a group of neighbors requested an advisory opinion from the District Environmental Coordinator (Coordinator) regarding the range's potential status under Act 250. The requestors claimed the range had been converted "from a family focus, to commercial activity," evidenced by the presence of a donation box, as well as an increase in noise and use by law enforcement agencies. Laberge responded with a letter to the Coordinator, noting that Laberge had never charged anyone for use of the range, and that the donation box was a "temporary measure" started in 1992 to defray legal fees associated with the range. On April 14, 1995, the State of Vermont District Environmental Commission (Commission) issued a "Jurisdictional Opinion" (1995 JO) and served it to various interested parties. The 1995 JO found preexisting improvements but "no evidence that the use of the shooting range was or has ever been associated with the payment of a purchase price, fee, contribution, donation, or other object having value." Because the use of the range was always by permission only and no fees were ever charged for personal use, for training purposes, or for competitions, the Commission found no basis for concluding the "the use of the range meets the definition of commercial purpose." Thus, the 1995 JO concluded that range did not require an Act 250 permit.

         ¶ 4. In 2012, at the recommendation of the Vermont Fish and Wildlife Department, Laberge installed several small earthen berms behind the target frames to reduce the risk of ricochets. A range user also made unsolicited repairs to several deteriorating shooting benches to improve their safety and functionality.

         ¶ 5. By 2015, the University of Vermont Shooting Team, the Chittenden County Sheriff's Department, the Williston Police Department, and other law enforcement departments in the area used the range for training purposes. There is a box with a hand-painted "DONATE HERE" sign at the entrance to the range. Some of these organizations have donated to the range, which took in over $47, 000 in contributions from May 2014 through November 2016. Laberge has used these funds to pay legal fees and occasional maintenance for the range. On occasion, some funds were used to pay taxes and insurance on the farm, but the environmental court below found it was unclear what portion of the farm's property taxes and insurance were paid with donation money or how frequently this had been done.

         ¶ 6. In November 2015, the recently formed Neighborhood Group requested a new jurisdictional opinion from the Commission. Neighborhood Group argued that since 1995, the range had begun operating with a "commercial purpose," citing the continued acceptance of donations and the 2012 berm placements and bench repairs. Members complained of a sharp increase in the volume, intensity, and hours of shooting noise over recent years. In February 2016, the Commission issued a jurisdictional opinion (2016 JO), finding that, due to regular donations from municipalities, the range was now operating for a commercial purpose such that the construction of berms and shooting benches subjected the range to Act 250 jurisdiction.

         ¶ 7. At Laberge's request, the Natural Resources Board (NRB) reconsidered the 2016 JO, which it upheld in a decision issued on July 19, 2016. On August 2, 2016, the NRB issued an "altered" decision, correcting only a typographical error in the title: from "In Re: Jurisdictional Opinion 2-247 Laberge Shooting Range" to "In re: Jurisdictional Opinion 4-247-Altered Laberge Shooting Range." Both decisions contained the same language stating that "[a]ny appeal of this decision must be filed within 30 days of the date the decision was issued."

         ¶ 8. Laberge's then-counsel advised Laberge that the deadline to appeal was September 2, 2016, thirty days from the issuance of the altered reconsideration decision. Representatives for Laberge met with the District Coordinator who informed them that the deadline to appeal was September 2, 2016. On August 22, counsel for Neighborhood Group contacted Laberge's former counsel and informed it that the appeal deadline had passed. On August 26, Laberge, represented by new counsel, appealed the altered decision to the Environmental Division of the Superior Court. Neighborhood Group moved to strike the notice of appeal as untimely on September 2. On September 19, Laberge submitted both a memorandum in opposition to the motion to strike, and a motion to allow an untimely appeal on the basis of excusable neglect, good cause, or the prevention of manifest injustice.

         ¶ 9. The environmental court granted Laberge's motion to allow an untimely appeal, concluding that the erroneous advice of Laberge's former counsel and the representation of the District Coordinator that the appeal period ran from the date of the altered decision, together with the plain language in the altered decision stating that the appeal period ran for thirty days from the date it was issued, supported a finding of excusable neglect.

         ¶ 10. Both parties filed motions for summary judgment. Neighborhood Group argued that since the 1990s, Laberge had begun operating the range for a commercial purpose, due to the solicitation of donations and the high proportion of use by third parties. Neighborhood Group also argued that the construction of berms and shooting benches in 2012 constituted improvements that triggered Act 250 jurisdiction. Laberge argued that the range was a preexisting development and that the improvements were exempted as routine repair, de minimus, or for safety and environmental risk mitigation purposes.

         ¶ 11. The environmental court denied both summary judgment motions, citing material disputes as to whether there had been sufficient changes in operation of the range since the 1995 JO to constitute a commercial purpose. The parties stipulated to an abbreviated trial to determine whether Laberge's acceptance of donations constituted a change in use and whether nonexempt improvements had been made to the range in 2012. At trial, the environmental court found that Laberge had never required payment for use of the range, and that Laberge would continue to make the range available for use even without donations. Thus, the environmental court declined to impose Act 250 jurisdiction, finding that Neighborhood Group had "fail[ed] to meet its burden of proof showing that cash donations are necessary for the [r]ange to operate" or that "there has been a change in donations to the [r]ange since the 1995 JO was issued that would create a commercial purpose where none existed before."

         ¶ 12. On appeal, Neighborhood Group argues that the environmental court erred by: (1) allowing Laberge's untimely appeal; (2) concluding that because Laberge did not rely on donations, it was not operating for a commercial purpose; and (3) granting preclusive effect to the 1995 JO.

         ¶ 13. Neighborhood Group first argues that the environmental court erred in allowing Laberge's untimely appeal. We review decisions to allow untimely appeals based on excusable neglect for an abuse of discretion. State v. Felix, 153 Vt. 170, 171, 569 A.2d 493, 494 (1989). "An abuse of discretion will be found only when the trial court has entirely withheld its discretion or where the exercise of its discretion was for clearly untenable reasons or to an extent that is clearly untenable." Vt. Nat'l Bank v. Clark, 156 Vt. 143, 147, 588 A.2d 621, 623 (1991) (quotation omitted). The Vermont Rules for Environmental Court Proceedings state that a notice of appeal must be filed "within 30 days of the date of the act, decision, or jurisdictional opinion appealed from, unless the court extends the time as provided in Rule 4 of the Vermont Rules of Appellate Procedure." V.R.E.C.P. 5(b)(1). Rule 4 of the Vermont Rules of Appellate Procedure, in turn, allows a court to "extend the time for filing the notice of appeal if: (A) the relief is requested by motion filed no later than 30 days after the expiration of the time prescribed by Rule 4(a); and (B) the party shows excusable neglect or good cause." V.R.A.P. 4(d)(1).

         ¶ 14. In determining whether excusable neglect exists, we consider" 'the danger of prejudice to the [nonmovant], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.'" In re Town of Killington, 2003 VT 87A, ¶ 16, 176 Vt. 60, 838 A.2d 98 (alteration in original) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)). Furthermore, "the appropriate focus is on the third factor: the reason for delay, including whether it was within the reasonable control of the movant." Id.

         ¶ 15. Neighborhood Group's argument only addresses the third element, claiming that Laberge has not provided a sufficient reason for the delay, which was within its control. We have held the "excusable neglect standard [to be] a strict one." Felix, 153 Vt. at 171, 569 A.2d at 494. Though erroneous advice from counsel alone does not usually satisfy the excusable neglect standard, the environmental court was within its discretion to find that the consistent advice given by the Coordinator who authored the 2016 JO, combined with the ambiguous language printed on the altered reconsideration decision stating that ...


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