Vt. high court rules for fourth time on Hale Mountain dispute
SHAFTSBURY -- The ongoing legal dispute between a local shooting range and adjoining neighbors has been before the Vermont Supreme Court at total of four times, with the court siding with the gun range in this latest round.
The problem has between Owen and Katherine Beauchesne and the Hale Mountain Fish and Game Club, located on Rod and Gun Club Road. According to a decision issued last week by the Vermont Supreme Court, the club has been in operation since 1949, while the Beauchesnes bought their property in the 1980s and have run a horse riding business there.
The court has found that the shooting range has expanded its operations without seeking Act 250 permits, which became required by law in 1970. In the 1990s, the Beauchesnes raised issues with the club about noise, and litigation has persisted at various levels to this day.
This time the Vermont Supreme Court upheld a decision made in Environmental Court saying that the club was entitled to being reissued zoning permits for certain improvements it had made once it submitted site plans to the Shaftsbury Development Review Board.
In 2004, the District 8 Environmental Commission decided some of the club's improvements needed an Act 250 review. The club appealed and a year later the Environmental Court ruled only three improvements needed a review, those being a well and wastewater system installed in 1983, a replacement garage and clay target storage trailer, and work related to a beagle club in 1979.
That decision was appealed to the Vermont Supreme Court by the Beauchesnes, who said the court should have ordered a comprehensive review and did not make adequate findings to support the decision.
The Vermont Supreme Court agreed with the Beauchesnes on their second point, and remanded it to the Environmental Court which came back with 17 "findings of fact," that supported its first decision. That decision was appealed by the Beauchesnes back to the Vermont Supreme Court in 2009, which sided with the club and the lower court's decision.
Meanwhile, the Beauchesnes had sent a letter to the town zoning administrator in 2004 asking it enforce the town's zoning bylaws which they claimed the club had violated on 19 different items. The zoning administrator responded saying the improvements either predated the law, did not require a permit, or there was no violation. Both the club and the Beauchesnes brought the matter to the Environmental Court, which consolidated the dockets.
On Dec. 15, 2009, the Environmental court determined a number of things regarding the matter, one being that no alleged violations that occurred before May 24, 1989 could be enforced, that previous decisions made by the court prevented the Beauchesnes from arguing the club's use had changed, and that the club was in the right on 14 of the 19 issues raised, while ruling in favor of the Beauchesnes on the others. It also dismissed a claim by the Beauchesnes that lead shot was a public health hazard, since the town bylaws could not address that issue.
It did not rule on the Beauchesnes claims about the club being permitted in the zoning district it's in. The Beauchesnes appealed this decision, but it was withdrawn.
They did, however, appeal the zoning administrator's permits issued for the items required by the Dec. 15 ruling. The appeal went to the DRB, which said the club needed site plans. Both the club and the Beauchesnes appealed the decision, but the Beauchesnes' appeal was dismissed in court.
In August 2012 the Environmental Court held a hearing and ruled that the club needed the site plans. It went through the DRB again, this time with the plans, and got approval, which was again appealed by the Beauchesnes.
An element of the Beauchesnes' appeal, which is the matter most recently before the Vermont Supreme Court, is the club's status as a "club." The Vermont Supreme Court said that because the Beauchesnes had not raised this issue before, it could not be raised now.
They also took issue with not being able to raise events that happened after 2005, but the Vermont Supreme Court said because the Beauchesnes did not appeal the Dec. 15, 2009 decision, they were again precluded from making this argument.
The third argument for their appeal was that the club did not have the required state permits for its latest round of the town permits. The court said records disagree with this assertion.
Contact Keith Whitcomb Jr. at email@example.com or follow him on Twitter @KWhitcombjr.
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