                                STATE OF VERMONT
                SUPERIOR COURT — ENVIRONMENTAL DIVISION

                                           }
In re Hale Mountain Fish & Game Club       }   Docket No. 190-11-10 Vtec
                                           }   (appeal from Town of Shaftsbury
                                           }   Development Review Board
                                           }   determination)
                                           }

                Decision on Cross-Motions for Summary Judgment

      Hale Mountain Fish & Game Club (“Hale Mountain”) has appealed a decision by
the Town of Shaftsbury (“Town”) Development Review Board (“DRB”) denying an
application for thirteen permits concerning improvements on its property at 684 Rod
and Gun Club Road. The DRB’s denial followed an appeal, by Owen and Katherine
Beauchesne, of a determination by the Town’s Zoning Administrator (“ZA”) approving
the application for the thirteen individual zoning permits. The Beauchesnes appear as
interested persons in the present appeal, as does the Town.
      Currently pending before the Court are cross-motions for summary judgment
filed by both Hale Mountain and the Beauchesnes concerning the Beauchesnes’ ability
to appeal the ZA’s determination. Both Hale Mountain and the Beauchesnes have also
filed responsive memoranda which we have taken into consideration. The Town has
filed a memorandum indicating that it takes no position on the issue. In the pending
action, Hale Mountain is represented by James P.W. Goss, Esq., the Beauchesnes are
represented by Jon S. Readnour, Esq., and the Town is represented by Robert E.
Woolmington, Esq.

                                Factual Background
      For the sole purpose of putting the pending motions into context, we recite the
following facts, which we understand to be undisputed unless otherwise noted:
1.    On December 15, 2009, the Court issued a decision in a separate proceeding
concluding that Hale Mountain needed zoning permits from the Town for select
improvements that it had made to its property at 684 Rod and Gun Club Road from
May, 1989 onward.       See In re Hale Mountain Fish & Game Club (Appeal of
Beauchesne), Nos. 149-8-04 Vtec and 259-12-05 Vtec (Vt. Envtl. Ct. Dec. 15, 2009)
(Durkin, J). In an earlier decision in the same consolidated proceeding, the Court also
determined that the parties were collaterally estopped from raising anew certain


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factual and legal issues that had been resolved by final determinations made in prior
proceedings. See In re Hale Mountain Fish & Game Club (Appeal of Beauchesne), Nos.
149-8-04 Vtec and 259-12-05 Vtec, slip op. at 9–16 (Vt. Envtl. Ct. Nov. 21, 2008)
(Durkin, J).
2.      On or about July 9, 2010, Hale Mountain submitted an application to the ZA
for thirteen permits to authorize improvements to its property that it had already
completed. These improvements include the removal of red pine trees in and around
the shooting ranges, as well as the installation or construction of roofs over the
existing rifle- and pistol-range shooting stations; a storage shed; walls around the
rifle-range shooting station; a well cover; a trailer for the caretaker; a storage trailer for
clay targets; a trap house pad; a trap field pavilion; rabbit pens; a culvert extension;
and berms around three sides of the pistol range.
3.      The ZA approved the application in full on July 29, 2010 and issued the
requested zoning permits to Hale Mountain on August 2, 2010.              The Beauchesnes
subsequently filed an appeal of that decision to the DRB.
4.      On October 20, 2010, the DRB issued a decision granting the Beauchesnes’
appeal without prejudice to Hale Mountain’s future submission of applications for
each of the thirteen permits requested. Appeal of Issuance of Hale Mountain Permits,
Finding of Facts, Conclusion of Law, Decision, at 2 (Town of Shaftsbury Dev. Review
Bd. Oct. 20, 2010). The DRB also directed that the Club, when it submitted renewed
applications concerning the specified improvements, “shall comply with all elements of
the Shaftsbury Zoning Bylaws, in particular Section 4.1.1.4, and provide site plans for
the Development Review Board to review as part of their reapplication for permits.” Id.
at 1.   Hale Mountain appealed that determination to this Court, resulting in this
proceeding.
5.      The Beauchesnes entered their appearance in this appeal and subsequently
asked the Court to afford them additional time to cross-appeal.            We denied their
request to cross-appeal in our previous Entry Order of February 17, 2011, for reasons
unrelated to whether they had standing to appeal, and explained that they could still
participate in the appeal as interested persons.

                                        Discussion
        Currently before us are cross-motions for summary judgment concerning
whether Owen and Katherine Beauchesne had standing to appeal the ZA’s decision



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approving an application for thirteen permits sought by Hale Mountain.                                        Hale
Mountain is seeking the permits to retrospectively authorize a number of site
improvements that it has already made, since 1989, to its property at 684 Rod and
Gun Club Road.1 Hale Mountain argues in its motion that the Beauchesnes did not
meet the statutory qualifications for standing to appeal the ZA’s decision in the first
place and that, therefore, the ZA’s original permit decision should stand.2                                     The
Beauchesnes argue, in their cross-motion, that they do have standing to appeal
because they can show they qualify as “interested persons.”

I.      Summary judgment standard
        We will grant summary judgment to one of the moving parties only if there are
no material facts in dispute and that party is entitled to judgment as a matter of law.
See V.R.C.P. 56(c)(3). In considering cross-motions for summary judgment, we give
each party the “benefit of all reasonable doubts and inferences when the opposing
party’s motion is being judged.” City of Burlington v. Fairpoint Commc’ns, 2009 VT
59, ¶ 5, 186 Vt. 332 (citing Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44, 48 (1990)).
We “accept as true the [factual] allegations made in opposition to [each] motion for
summary judgment, so long as they are supported by affidavits or other evidentiary
material.” Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356 (citations
omitted). We proceed with a review of the pending motions with these directives in
mind.

II.      Did the Beauchesnes have standing to appeal the ZA’s determination?
        We begin our analysis of whether the Beauchesnes had standing by clarifying
that the Court uses the term “interested person” in two principal ways: in an informal
sense to refer to any party who meets the requirements to participate in appeals
brought by other parties, see 10 V.S.A. § 8504(n), and as a statutory term of art that
refers to a party falling within one of the categories listed in 24 V.S.A. § 4465(b) who
can appeal the decision of a zoning administrator or municipal panel, see 24 V.S.A.
§§ 4465(a), 4471(a). In its motion, Hale Mountain argues that the Beauchesnes do not

1
  The Court determined that Hale Mountain needed these permits in an earlier proceeding, In re Hale Mountain Fish
& Game Club (Appeal of Beauchesne), Nos. 149-8-04 Vtec and 259-12-05 Vtec (Vt. Envtl. Ct. Dec. 15, 2009)
(Durkin, J).
2
  Although the case before us is an appeal of the DRB’s decision by Hale Mountain, because standing goes to the
Court’s subject-matter jurisdiction over a dispute, it can be challenged at any stage in a proceeding and, thus, Hale
Mountain’s argument is properly raised in this Court. See Bischoff v. Bletz, 2008 VT 16, ¶ 15, 183 Vt. 235.


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fall into any of the categories of “interested person[s]” listed in § 4465(b) and,
therefore, did not have standing to appeal the ZA’s decision.3                         If Hale Mountain’s
assessment is accurate, the Beauchesnes’ appeal of the ZA determination should not
have been entertained by the DRB, and should not be entertained by this Court on
appeal.
        Section 4465(b) lists five categories of “interested person[s].” The Beauchesnes
assert that they fall within the third category, which has three requirements: that a
party “own[] or occupy[] property in the immediate neighborhood of a property” subject
to the municipal decision, “demonstrate a physical or environmental impact on [his or
her] interest under the criteria reviewed,” and “allege[] that the decision . . . if
confirmed, will not be in accord with the policies, purposes, or terms of the” applicable
municipal plan or regulations. § 4465(b)(3). Hale Mountain does not refute that the
Beauchesnes’ meet the third requirement—in other words, it does not refute that the
Beauchesnes allege that the ZA’s decision does not comply with the Town’s zoning
ordinance—but it does refute that the Beauchesnes can meet the first two
requirements necessary for them to be categorized as interested persons under
§ 4465(b)(3).
        The parties dispute whether the Beauchesnes meet the first requirement, that
they own or occupy property in the immediate neighborhood of the property subject to
the ZA’s decision. Hale Mountain argues that most of the improvements for which it
seeks retrospective approval are located 1,400–2,100 feet from the Beauchesnes’
house, are hundreds of feet from their common property line, and are obscured from
the Beauchesnes’ view by dense woods. The Beauchesnes argue that their property
shares a common boundary with Hale Mountain’s property for more than a quarter of
a mile, placing them in the immediate neighborhood as abutting neighbors.
        Even when viewing the facts in a light most favorable to Hale Mountain, we
conclude that the Beauchesnes own property that is squarely in the immediate
neighborhood of property subject to the ZA’s decision. Hale Mountain correctly points
out that distance is not the only relevant factor in our determination, but here the
Beauchesnes’ property abuts Hale Mountain’s and is less than a half of a mile,
according to Hale Mountain’s own measurements, from the improvements themselves.

3
  Hale Mountain’s motion does not challenge the Beauchesnes’ ability to meet the requirements to be able to
participate in Hale Mountain’s appeal to this Court of the DRB’s determination; rather, the motion challenges the
Beauchesnes’ ability to meet the requirements for acting as appellants in their appeal of the ZA’s determination.


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Further, Hale Mountain has provided no evidence showing that the Beauchesnes’
property is so distinct in character from that of Hale Mountain’s as to create separate
neighborhoods despite the close proximity of the properties. Cf. Bostwick Road Two-
Lot Subdivision, No. 211-10-05 Vtec, slip op. at 4–5 (Vt. Envtl. Ct. Feb. 24, 2006)
(Durkin, J.), aff’d, No. 2006-128 (Vt. Jan. 2007) (unpublished mem.) (concluding that
the appellant did not have standing under § 4465(b)(3) partially because the
appellant’s residential property had a significantly different physical and social
character from that of the tourist-oriented area along Vermont Route 7 where the
proposed development, a vineyard, was to be located).
      Turning to the remaining requirement for being classified as an “interested
person” under § 4465(b)(3), we ask whether the Beauchesnes have shown that they
can demonstrate a physical or environmental impact on their interests related to the
pending application and the applicable criteria from the Town’s zoning ordinance, the
Town of Shaftsbury Zoning Bylaw (“Bylaw”), under which Hale Mountain’s application
must be reviewed. Hale Mountain argues that the Beauchesnes have not made any
allegations of specific impacts from the individual improvements; it argues that the
Beauchesnes cannot “hear, see, feel, smell or perceive the structures” that constitute
the improvements and that the Beauchesnes’ complaints go to the club’s operation
generally.   (Mot. for Summ. J. to Deny “Interested Person” Status 12, filed Feb. 5,
2011; see Appellant’s Reply to Appellee’s Opp’n to Summ. J. 3, filed Apr. 11, 2011.)
The Beauchesnes argue that they have experienced physical and environmental
impacts from the improvements in the form of the following: reduced recreational
enjoyment because they can see the improvements when walking or driving on the
nearby public road; exposure to increased noise resulting from alterations to the
shooting areas; safety risks from errant bullets as they ride horses by Hale Mountain’s
property; and pollution of nearby wetlands and a pond where they recreate.
      Some of the impacts alleged by the Beauchesnes are too speculative to warrant
standing.    The Beauchesnes indicate they will experience a reduction in their
recreational enjoyment because they can see the improvements on Hale Mountain’s
property, but they do not provide an explanation of why being able to see the
improvements will lead to less recreational enjoyment.    They also allege that water
pollution has and will occur, but such an impact is technical in nature and the




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Beauchesnes’ submissions fail to reference evidentiary material that supports such an
allegation.
        While considering Hale Mountain’s summary judgment motion we accept as
true the facts alleged by the Beauchesnes that are supported by reference to evidence.
That procedural directive requires that the allegations asserted have factual
foundation in the record; we are not permitted to assume facts not alleged nor
evidence not referenced. See Gore v. Green Mountain Lakes, Inc., 140 Vt. 262, 266
(1981) (holding that where the plaintiff failed to provide evidence to support her
conclusions, summary judgment is appropriate; “allegations alone cannot create
triable issues of fact”).        Thus, we conclude that the Beauchesnes’ representations
regarding recreational impacts and water pollution cannot provide a foundation for
their standing to have appealed the ZA’s decision.
        Turning to the other impacts alleged by the Beauchesnes, they have submitted
lengthy descriptions of how Hale Mountain’s actions have impacted them generally in
terms of noise and safety, but their assertions are not accompanied by factual
representations that allow us to join their assertions concerning the individual
improvements at issue in the application before us. Reading the Beauchesnes’ filings
generously, we understand them to be alleging that the establishment of berms
around the pistol range, walls around the rifle-range shooting station, and roofs over
the pistol- and rifle-range shooting stations has lead to the production of louder noise
when guns are shot and that this louder noise disrupts their use of their property and
a public road near their and Hale Mountain’s property.4                  (See Appellees’ Cross-Motion
for Summ. J. 15–17, filed Mar. 29, 2011.) It also appears they allege that the berm
improvement in particular has lead to safety risks for them as they ride horses by Hale
Mountain’s property. (Id. 15–16.)
        It is unclear to the Court, however, if this is, in fact, what the Beauchesnes are
alleging and, if so, what is the evidentiary basis of their allegations. It is also unclear
how these alleged noise and safety impacts relate to the criteria in the Bylaw under
which we have the authority to review Hale Mountain’s current application.
        Bylaw § 4.1.1.4.3 appears to require clubs, such as Hale Mountain, to obtain
site plan approval prior to receiving a zoning permit. Site plan review is governed by


4
  The Beauchesnes’ other allegations regarding noise do not explain how such noise results from the individual
improvements for which Hale Mountain seeks permits.


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Bylaw § 3.6.1.1, which provides that “the DRB may impose appropriate conditions and
safeguards with respect to the adequacy of traffic access, of circulation and parking, of
landscaping and screening, to protecting utilization of renewable energy resources . . .
.” Bylaw § 3.6.2 identifies what a site plan application must contain. However, no
section of the Bylaw governing site plan applications references the impacts of which
the Beauchesnes complain. Thus, it appears that the Beauchesnes seek to have this
Court judge the current Hale Mountain application on standards not contained in the
Bylaw. If this assessment is correct, the Beauchesnes’ allegations about noise and
safety impacts do not provide a foundation for their standing to appeal the ZA’s
determination. See In re Hitchcock 2-Lot Subdivision, No. 218-11-09 Vtec, slip op. at
3–5 (June 18, 2010) (Wright, J.).
      Further, we are cognizant that, under the doctrine of issue preclusion, the
universe of allegations that the Beauchesnes can make regarding impacts from
changes in the intensity of use of Hale Mountain’s property is constrained by
previously concluded factual and legal determinations from this and other judicial
bodies.
      In a prior consolidated proceeding before this Court that involved the same
parties and property as this proceeding, we addressed whether Hale Mountain needed
zoning permits for any of the improvements it had made to its property. We ultimately
concluded that permits were needed for select improvements made since May, 1989.
See In re Hale Mountain Fish & Game Club (Appeal of Beauchesne), Nos. 149-8-04
Vtec and 259-12-05 Vtec, slip op. at 1, 13 (Vt. Envtl. Ct. Dec. 15, 2009) (Durkin, J).
These improvements are the subject of the current appeal. Importantly, in that prior
proceeding, the Court rendered three decisions that discussed how issue preclusion
impacted the factual and legal arguments that could be made in that proceeding. See
In re Hale Mountain Fish & Game Club (Appeal of Beauchesne), Nos. 149-8-04 Vtec
and 259-12-05 Vtec, slip op. at 7–8 (Vt. Envtl. Ct. March 25, 2008) (Durkin, J); In re
Hale Mountain Fish & Game Club (Appeal of Beauchesne), Nos. 149-8-04 Vtec and
259-12-05 Vtec, slip op. at 9–15 (Vt. Envtl. Ct. Nov. 21, 2008) (Durkin, J); Hale
Mountain Fish & Game Club, Nos. 149-8-04 Vtec and 259-12-05 Vtec, slip op. at 2, 4,
7, 11 (Dec. 15, 2009). Similar discussions would be appropriate here.
      We note that in our prior proceeding we concluded that some of the material
facts were controlled by the factual determinations resolved by the former Vermont



                                           7
Environmental Board in a determination addressing the same improvements to Hale
Mountain’s property as are at issue here. See Hale Mountain Fish & Game Club, Nos.
149-8-04 Vtec and 259-12-05 Vtec, slip op. at 3, 7 (Dec. 15, 2009). In particular, the
Environmental Board concluded, as summarized and affirmed by our Supreme Court,
that “[Hale Mountain’s] activities had broadened [in a period dating from 1970] but
that the intensity of use has remained about the same over the years,” and that “the
level of intensity of the members’ use and the concomitant noise . . . could not be said
to have increased over pre-1970 levels.” In re Hale Mountain Fish & Game Club, Inc.,
2009 VT 10 ¶¶ 2, 5, 185 Vt. 613 (mem.).
      In our prior proceeding we found that the Beauchesnes and other parties were
barred from asserting that the level of shooting activity or the capacity of the shooting
ranges on Hale Mountain’s property and trap area increased as a result of the
improvements that Hale Mountain made to its property. See Hale Mountain Fish &
Game Club, Nos. 149-8-04 Vtec and 259-12-05 Vtec, slip op. at 3, 4, 6, 7 (Dec. 15,
2009). Because these are the same improvements at issue in this proceeding, we wish
to remind the parties that issue preclusion may bar them from re-litigating these same
factual issues.
      In summary, the Beauchesnes’ representations to the Court thus far have been
less than clear, and are insufficient, as is, to provide a foundation for us to conclude
they had standing to appeal the ZA’s decision. However, in an effort to assure that all
parties in this extended litigation have a full and fair opportunity to make the
evidentiary presentations to which they are entitled, we will afford the Beauchesnes an
additional opportunity to outline both the evidence that specifically supports their
assertions that they are impacted by the individual itemized improvements that were
permitted by the ZA and how these impacts relate to the criteria in the Bylaw under
which Hale Mountain’s application must be reviewed.
      To the extent that the Beauchesnes allege that the itemized improvements have
caused noise impacts, they bear the additional burden of showing that these
allegations are not barred by issue preclusion based on the prior determinations of the
Environmental Board relating to the intensity of use, and concomitant noise generated
from the improvements at issue in this appeal. Once we receive this written offer of
proof from the Beauchesnes, we will render a final determination on whether the
Beauchesnes had standing to appeal the ZA’s determination to the DRB.



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                                     Conclusion
      For all of the reasons more fully discussed above, we DENY Owen and
Katherine Beauchesnes’ motion for summary judgment on the issue of whether they
had standing to appeal the ZA’s decision and DEFER our decision on Hale Mountain’s
motion addressing the same issue. The Beauchesnes are hereby directed to file within
thirty (30) days (i.e., no later than Monday, September 23, 2011) a written offer of
proof specifying the evidentiary support for their assertions that they have experienced
impacts as a consequence of the individual itemized improvements for which the ZA
issued permits to Hale Mountain.          The Court will thereafter render a final
determination on whether the Beauchesnes had standing to appeal the ZA’s decision
to issue the requested permits.


      Done at Rutland, Vermont, this 23rd day of August 2011.


                                        ___________________________________
                                               Thomas S. Durkin, Judge




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