Saturday, June 7, 2014

Permits and Preclusion

In re Hale Mountain Fish & Game Club, 2014 VT 54

By Andrew Delaney

A shooting range (Hale Mountain) and a riding center (neighbors) might not be the most synergistic enterprises to have right next to each other. This case’s subtext kind of hammers home that point, even if the opinion is primarily about a zoning permit’s issuance.

So—the SCOV first notes that this is neighbors’ “fourth appeal to this Court from various proceedings involving their complaints challenging the operation of Hale Mountain Fish and Game Club.” When the SCOV notes that it’s the fourth appeal on the same general issues in the first sentence of its opinion, you can read the writing on the wall. Neighbors will not be winning this round.

Hale Mountain has been a shooting range for 65 years. “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.” Neighbors bought adjoining property in the late ‘80s. In the ‘90s, Hale Mountain and the neighbors talked about working out things like shootin’ times and frequencies, but they weren’t able to. So they started litigating and they’ve never stopped. 

The SCOV explains that there have been issues raised “in several forums based on multiple legal theories, but the primary battlegrounds” have been in the permitting arenas before the former Environmental Board, town administrative bodies, and the Environmental Division.

There’s a lot of history, but we’ll break it down to the bare necessities. The Environmental Board first decided that only three things Hale Mountain had done required Act 250 review. Neighbors wanted a comprehensive review and appealed. The SCOV remanded for further findings. Without a hearing, the Board issued additional findings. The primary issue appears to have been whether there was a significant increase in shooting and noise at the club since 1970. The Board said no. Neighbors again appealed, but this time the SCOV affirmed.

In the meantime, neighbors tried to get the town zoning officials to enforce alleged zoning violations against Hale Mountain. The town officials didn’t see a problem. Neighbors appealed that inaction to the Environmental Division, and that was eventually consolidated with another case, in which the neighbors appealed “the town’s refusal to act on their May 2005 demand for enforcement of the zoning bylaws.”

The Environmental Division denied some motions and cross-motions for summary judgment and in doing so, issued a “supplemental interim decision” that noted that the former Environmental Board’s determinations on the same legal and factual issues would have a preclusive effect. That decision was not appealed, notes the SCOV.

The Environmental Division issued another decision, this time granting summary judgment to Hale Mountain on some points and neighbors on a number of other points. There’s quite a bit going on, but neighbors alleged 19 land-development activities required permits. The Environmental Division sided with neighbors on 14 of the 19 activities. The court also affirmed the town’s officials’ decision not to enforce the alleged zoning violations; tossed one of the pending cases as purely duplicative; and rejected neighbors’’ request for a whether-lead-shells-or-shot-constitute-a-public-health-hazard study because “the zoning bylaws provided no jurisdictional authority for the court to consider such claims.” Neighbors appealed, but then withdrew that appeal.

So then, Hale Mountain filed an application for the necessary zoning permits (according to the Environmental Division’s order), which the town zoning administrator approved. Neighbors were none too happy with that, and they appealed to the development review board (DRB). The DRB held a public hearing over two days, eventually issuing a decision that sided with neighbors and required Hale Mountain to get site-plan approval from the DRB. Hale Mountain appealed to the Environmental Division. Neighbors filed a cross-appeal that the court later dismissed.

So then the Environmental Division held a merits hearing. Hale Mountain brought in three experts. Neighbors testified but didn’t bring in their own experts to contradict Hale Mountain. The Environmental Division denied Hale Mountain’s application “without prejudice to allow the club to submit a site plan application and supporting documents for review and approval by the DRB.” Once that approval was in place, the court opined that Hale Mountain would qualify for a permit and the zoning administrator could issue one. Neighbors appealed.

Neighbors make three arguments on appeal: (1) the trial court didn’t get deep enough into the bylaws; (2) the trial court shouldn’t have applied issue preclusion; and (3) the trial court screwed up in concluding that Hale Mountain could get a zoning permit without all the necessary state permits. Hale Mountain counters with you-already-tried-that-one and it-doesn’t-matter-anyway arguments—or, as the SCOV puts it in “legal” terminology, “issue and claim preclusion and mootness.”

Neighbors’ first argument is basically that just because Hale Mountain calls itself a “club” doesn’t make a shooting range a permitted nor conditional use. There are some constitutional claims even. I don’t follow it myself, but that doesn’t matter because the SCOV isn’t playing the it-wasn’t-raised-below-but-we’ll-still-take-a-look-see game. Because neighbors didn’t raise this issue below, the argument is waived. Neighbors claim that they didn’t have a chance to raise the issue below, but the SCOV disagrees.

Neighbors also “argue that because the shooting range is a preexisting nonconforming use, Hale Mountain must demonstrate that the additional structures it built on its property were not expansions of a nonconforming use.” This argument also is waived because it wasn’t raised below. But here, the SCOV gets into the “even if” arena, noting that the Environmental Board dealt with this years ago, and found that there wasn’t an increased use. So it’s precluded, like Hale Mountain says.

Neighbors’ next argument is that the trial court messed up in applying issue preclusion to events that occurred after the last hearing before the Environmental Board. This argument, the SCOV holds, is precluded by neighbors’ failure to appeal the Environmental Division’s earlier decision (which made the permits necessary). Here, the SCOV reasons, the “Environmental Division explicitly ruled that neighbors are ‘precluded from bringing violations predicated on an alleged change in use of Hale Mountain’s property prior to February 26, 2008.’” Because neighbors didn’t appeal that ruling—well, follow through with appealing it anyway—they don’t get to do it now.

And even if they had preserved the issue, the SCOV notes, “we find nothing in the record in this proceeding where neighbors have made a specific allegation of new improvements or new violations occurring after February 2008.”

The SCOV also rejects the neighbors’ groundwater-pollution-from-spent-ammunition allegations. Again, in the previous order, the trial found it lacked jurisdiction. “No appeal, no claim preservation,” says the SCOV.

Neighbors’ last argument is that the Environmental Division messed up by not requiring Hale Mountain to obtain all necessary state permits before it got a zoning permit. This argument is premised on the three Act-250-permit-required improvements found by the Environmental Board way back when, one of which was a beagle club.

Hale Mountain actually got a permit for the other two improvements. The beagle club stopped using the land before 2005. The SCOV looks at the Environmental Board’s language and the evidence presented at hearing, and concludes that Hale Mountain got the “necessary” permits. It’s not complicated—the beagle-club thing is a bit of a non sequitur as it doesn’t exist anymore. Hale Mountain introduced evidence that it had gotten all the necessary permits and neighbors didn’t really contradict that in any way.

So the SCOV affirms the Environmental Division's (latest) opinion, but there's more litigation waiting there now that this decision is out.    
Is this the last we’ll see of these parties at the SCOV?

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