                                  STATE OF VERMONT
                                ENVIRONMENTAL COURT

                                             }
In re Hale Mountain Fish & Game Club         }               Docket Nos. 149-8-04 Vtec
    (Appeal of Beauchesne)                   }                       & 259-12-05 Vtec
                                             }

                                Supplemental Interim Decision
       These consolidated appeals arise out of decisions by the Zoning Board of Adjustment
(“ZBA”) of the Town of Shaftsbury (“Town”), declining to direct that zoning enforcement
actions be initiated against Appellee Hale Mountain Fish & Game Club, Inc. (“Hale Mountain”
or “the Club”). Appellants Owen and Kathy Beauchesne (“Neighbors”) are the principal parties
encouraging the Town to pursue zoning enforcement against the Club. The Neighbors are
represented by Paul S. Gillies, Esq. Appellee Hale Mountain is represented by Rodney E.
McPhee, Esq.
       Neighbors and Hale Mountain have filed cross-motions for summary judgment.

                                     Factual Background
       The Court first addressed the general question of whether it was appropriate to enter
summary judgment in either of the two pending dockets when we issued our Interim Decision of
March 25, 2008.     The parties subsequently filed supplemental cross-motions for summary
judgment, all of which are the subject of this Supplemental Interim Decision.
       Most of the factual background for this case has already been described in this Court’s
Interim Decision of March 25, 2008, from which we incorporate undisputed material facts by
this reference. To that description, we need only add the following facts, all of which we
understand to be undisputed, unless noted otherwise below:

Facts Related to the Statute of Limitations:
1.     On January 22, 2004, Neighbors sent a letter to the Town’s Zoning Administrator
expressing their wish “to file a formal complaint” against Hale Mountain.
2.     On January 27, 2004, Owen Beauchesne (with his then attorney) attended a Shaftsbury
Planning Commission Regular Meeting and “outlined his complaints” regarding what he asserted
to be instances of Hale Mountain violating various provisions of the Town Zoning Bylaws. The
Planning Commission agreed to investigate the matter.



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3.     On April 27, 2004, Neighbors sent a letter to the Town Zoning Administrator. This letter
contained specific allegations of ways in which Neighbors believed that Hale Mountain had
violated the Zoning Bylaws.       The letter requested that the Zoning Administrator make a
determination on each alleged violation.
4.     On May 11, 2004, the Zoning Administrator sent a letter to Neighbors. This letter
constituted the Administrator’s ruling (or in some cases a finding that there was insufficient
information for a ruling) on each of the alleged violations. The letter concluded that “[a]t this
time I see no clear occurrence of any violation of the Town of Shaftsbury Zoning Bylaws.”
5.     On May 24, 2004, Neighbors appealed the Zoning Administrator’s May 11, 2004
decision to the ZBA.
6.     On July 28, 2004, the ZBA issued a decision upholding the Zoning Administrator’s
rulings (and thereby denying Neighbors’ appeal) on all but one issue. On the one issue where the
ZBA overruled the Zoning Administrator, the ZBA noted that “after an extensive on-site visit
[the ZBA] finds that permits were not obtained for a shooter’s shelter and a rifle shooting area.”
7.     On August 26, 2004, Neighbors filed a Notice of Appeal with this Court to contest the
ZBA’s decision insofar as it upheld the Zoning Administrator’s rulings.
8.     On May 3, 2005, Neighbors sent a letter titled “Request for Enforcement” to the Zoning
Administrator.   This letter contained specific allegations of the ways in which Neighbors
believed that Hale Mountain had violated the Town’s Zoning Bylaws.
9.     On September 13, 2005, Neighbors sent a letter to the ZBA requesting a decision on
whether the Zoning Administrator must serve notices of violation upon Hale Mountain. The
ZBA held a hearing on October 19, 2005, and issued a decision on December 2, 2005, holding
that the ZBA would not take any further action on this matter because all relevant issues were
already being litigated before this Court.

Facts Related to Issue Preclusion:
10.    In addition to the appeals that are currently before this Court, Neighbors submitted an
earlier declaratory request to the Coordinator for the District 8 Environmental Commission
(“District Commission”), seeking an opinion that some of the alleged improvements and
expansions at Hale Mountain’s facilities have been so material as to require a state land use
permit. In June 2004, the District Commission Coordinator concluded that expansions and
improvements at the pre-existing Hale Mountain facilities needed an Act 250 permit.


                                                 2
11.       Hale Mountain appealed the District Coordinator’s determination and sought de novo
review before the former Vermont Environmental Board.1 After conducting its own site visit
and taking evidence at a contested hearing in which the parties here participated, the Board
issued an August 2005 plurality opinion, concluding that some improvements and expansions at
the facility required an Act 250 permit, but rejecting the neighbors’ further argument that the
expansions were so pervasive as to require that the entire Hale Mountain facility be subjected to
Act 250 review. See In re Hale Mountain Fish & Game Club, Inc., Decl. Ruling # 435, Findings
of Fact, Conclusions of Law, & Order (Vt. Envtl. Bd. Aug. 4, 2005).
12.       Five of the nine members of the Environmental Board reached plurality that the
following Hale Mountain improvements and expansions were so material as to require Act 250
review:
          (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 of the Beagle Club in 1979.

See id. at 24.

13.       The Environmental Board did not determine that any other changes occurred on the Hale
Mountain site that were significant enough to trigger Act 250 jurisdiction. The Board further
concluded that the significant changes that did occur at the Hale Mountain facility were
distinguishable from the operation of the facility that pre-dated Act 250 jurisdiction (i.e., June 1,
1970) and therefore did not require Act 250 review of the entire Hale Mountain facility.
14.       Neighbors disputed the Environmental Board findings as to the number of material
changes requiring Act 250 review and whether Hale Mountain’s entire operation should be
subjected to Act 250 review.           Neighbors therefore appealed those rulings to the Vermont
Supreme Court. On September 13, 2007, the Supreme Court announced its conclusion that the
Board’s factual findings were insufficient, and the Court remanded the declaratory proceedings
back to the Environmental Board. See In re Hale Mountain Fish & Game Club, Inc., 2007 VT
102 (mem.). It appears from the Supreme Court decision that it allowed to stand the Board
findings on the three material changes, cited above in ¶ 12, that required Act 250 review, but
remanded for the Board to make additional specific findings on two general areas of the Board

1
 Appeals from determinations made by Act 250 district commissions and their coordinators are now filed with this
Court, pursuant to the Permit Reform Act of 2004. See 10 V.S.A. § 8504(a). Before January 31, 2005, such appeals
were filed with and decided upon by the former Environmental Board.


                                                       3
decision that the Supreme Court deemed deficient: whether other changes and impacts upon
which there was considerable testimony constituted significant changes that necessitated Act 250
review, and whether all changes were so indistinguishable from the pre-existing operation as to
require Act 250 review of the entire Hale Mountain operation.
15.    On remand, the Environmental Board made additional findings and issued its
determinations on the remanded questions of fact and law. See In re Hale Mountain Fish &
Game Club, Inc., Decl. Ruling # 435, Supplemental Findings of Fact & Conclusions of Law (Vt.
Envtl. Bd. Feb. 26, 2008). While the Board’s Supplemental Findings of Fact and Conclusions of
Law made a number of additional factual findings, the Board’s final legal conclusion remained
the same: it recited the three material changes since 1970 that it had previously held required Act
250 review and decided that since those material changes were distinguishable from the pre-
existing operation, it would not require the entire Hale Mountain operation to be subjected to Act
250 review.
16.    Neighbors have appealed the new Environmental Board ruling to the Vermont Supreme
Court. That appeal remains pending before our Supreme Court.

                                            Discussion
       As we mentioned in our March 25, 2008 Interim Decision, the general question in this
dispute is whether Hale Mountain has violated the Town’s Zoning Bylaws—by not seeking the
appropriate zoning permits for material changes to its property or by making changes that violate
the Zoning Bylaws’ substantive standards. In reviewing this question de novo under 10 V.S.A.
§ 8504(h) and 24 V.S.A. § 4472(a), we cannot defer to the ZBA’s prior determinations on these
matters. Rather, we are specifically directed to make an independent evaluation by considering
the matter “‘as though no action whatever had been [previously] held.’” Chioffi v. Winooski
Zoning Bd., 151 Vt. 9, 11 (1989) (quoting In re Poole, 136 Vt. 242, 245 (1978)).
       Each party has asked this Court to grant summary judgment in its favor. We may grant
summary judgment only when “the pleadings, depositions, [and] answers to interrogatories, . . .
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that any party is entitled to judgment as a matter of law.” V.R.C.P. 56(c)(3). Generally, the
burden of proof is on the party requesting summary judgment. Chapman v. Sparta, 167 Vt. 157,
159 (1997). When presented with cross-motions for summary judgment, we must consider each
motion in turn and afford all reasonable doubts and inferences to the party opposing the


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particular motion under consideration. DeBartolo v. Underwriters at Lloyd’s of London, 2007
VT 31, ¶ 8, 181 Vt. 609 (citing Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44, 48 (1990)).
        As an initial matter, we note that (as we held in our March 25, 2008 Interim Decision)
material facts remain in dispute as to whether Hale Mountain made material changes to its
facility, without first obtaining the necessary zoning permits. While the additional record and
respective statements of material facts are voluminous, what changes were made, when they
were made, whether they were material, and whether they were authorized by a zoning permit all
appear to be in dispute. Thus, we are unable to conclude that either side is “so clearly correct as
to be entitled to a judgment ‘as a matter of law.’” Berlin Dev. Assocs. v. Dep’t of Soc. Welfare,
142 Vt. 107, 110 (1982) (quoting V.R.C.P. 56(c)). It appears that only a trial can resolve the
difficult factual issues involved in whether Hale Mountain’s actions required additional or
different municipal permits from those which Hale Mountain already obtained. Thus, summary
judgment on this matter is inappropriate at this time. We therefore DENY both motions insofar
as they ask this Court to decide the ultimate issue of whether Hale Mountain has violated the
Zoning Bylaws.
        Although this Decision will not resolve the entirety of this case, we can address two
purely legal questions that the parties raise in their supplemental summary judgment motions.
First, we can determine to what extent the statutory limitations on municipal enforcement actions
limit the Neighbors’ claims against Hale Mountain. See 24 V.S.A. § 4454.2 Second, we can
address whether the parties are collaterally estopped from litigating factual issues already
decided by the Environmental Board. Both of these questions are purely legal, and the material
facts relevant to these questions are not in dispute. Thus, summary judgment is appropriate on
these two legal issues. See V.R.C.P. 56(c)(3).

        A.       Statute of Limitations
        We first address the legal question of what improvements or expansions at the Hale
Mountain site (if any) fall outside the fifteen-year statute of limitations for zoning enforcement
actions. See 24 V.S.A. § 4454. As a general rule, improvements or expansions beyond the
applicable limitations period, even if conceded by Hale Mountain to be zoning violations, could
not be the subject of a municipal enforcement action. Id.

2
  We note that no comparable limitations exist in Act 250 jurisprudence. Thus, the Environmental Board was able
to review changes to the Hale Mountain facility that date back to the inception of Act 250 on June 1, 1970.


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       In our Interim Decision of March 25, 2008, we explained that the Town’s Zoning
Administrator has a nondiscretionary duty to enforce the Town’s Zoning Bylaws: “A zoning
administrator’s obligation to initiate an enforcement action in the face of a zoning violation is
unequivocal; the Zoning Bylaws do not confer any discretion upon the [Zoning Administrator] to
decide whether to permit land development not in conformance with the Bylaws.” Interim
Decision, slip op. at 7 (citing 24 V.S.A. § 4452; Zoning Bylaws § 8.2.1). We also noted that
“[t]he administrative officer has no discretion as to whether to enforce the bylaws in this case;
the officer must do so.” Id. (citing In re Petition of Fairchild, 159 Vt. 125, 130 (1992)).
       For these reasons, mandamus is available to ensure that a zoning administrator enforces
zoning violations. Id. That said, a court could only grant mandamus for actions upon which a
zoning administrator could bring enforcement. Thus, it is crucial to determine what actions are
time barred by 24 V.S.A. § 4454 and therefore unenforceable.
       We first note that some actions are not time barred at all. In particular, any zoning
violations that involve “public health risks or hazards” can be enforced at any time, regardless of
when these violations commenced. 24 V.S.A. § 4454(c). Thus, if Neighbors could prove that
the Club has created dangerously high lead levels in the area, to the point where the Town could
bring an enforcement action to abate this danger, there would be no limit to how far back the
Town could look in this type of enforcement action. See id. Similarly, the fifteen-year statute of
limitations does not apply to use violations, which are seen as continuous violations. City of
Burlington v. Richardson, No. 188-10-03 Vtec, slip op. at 12 (Vt. Envtl. Ct. June 27, 2006)
(Wright, J.) (distinguishing between ongoing use violations and one-time construction
violations); accord Appeal of Gauthier, No. 172-9-04 Vtec, slip op. at 7–8 (Vt. Envtl. Ct. Jan. 24,
2006) (Durkin, J.) (noting that when “the underlying enforcement efforts refer to a changed use,”
they are not time barred).      Yet another major exemption from the fifteen-year statute of
limitations is for cases brought under 24 V.S.A. § 4470(b). City of Burlington, No. 188-10-03
Vtec, slip op. at 12. (“[T]his statute of limitations . . . is specifically not applicable to
enforcement actions brought under 24 V.S.A. § 4470(b) to enforce decisions of the former ZBA
or Planning Commission, or of the Court sitting in place of those tribunals in a de novo appeal.”).
       The parties have not fully addressed which of the alleged violations (if any) fall under
these three exceptions to the fifteen-year time limit in 24 V.S.A. § 4454 (the three exceptions
being public health risks, use violations, and 24 V.S.A. § 4470(b) actions). Such violations



                                                  6
would have no time limit applicable to them. We are therefore not yet able to rule on this issue,
and we ask that the parties be prepared to specifically address these factual issues in their
presentation of evidence at trial.
       To the extent that the alleged violations in this case do not fall into one of the exceptions
to 24 V.S.A. § 4454, we must next determine what period of time the fifteen-year statute of
limitations encompasses.      We are thus presented with the central question of when an
enforcement action is “instituted” for purposes of 24 V.S.A. § 4454. The statute specifically
notes that an “action, injunction, or other enforcement proceeding . . . [must be] instituted within
15 years from the date the alleged violation first occurred.” The “burden of proving the date the
alleged violation first occurred” falls upon the party defending against the eventual enforcement
action. Id.
       The difficulty in this case is that Neighbors are appealing the inaction of the Zoning
Administrator; it is undisputed that the Town has not yet, even as of this writing, instituted an
action or sought an injunction. That said, we find guidance here in the fact that the main goal of
a statute of limitations is “to assure fairness to defendants” by putting them on notice before
claims become stale. Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 428 (1965). In this regard,
we first note that Hale Mountain goes too far when it asks this Court to hold that no action has
yet occurred to toll the limitations period in § 4454. According to Hale Mountain, the clock is
still ticking—an interpretation that ignores the principle behind 12 V.S.A. § 466, which states
that in general a statute of limitations is satisfied upon the filing of a complaint. Although 12
V.S.A. § 466 only applies to statutes of limitations that are listed in that chapter, it stands for the
more general principle that once the complaining party files a complaint within the requisite time
period, it has put the defendant on notice of its claims, and it then becomes irrelevant how long
the decision-making body takes to decide the issue. Similarly, 24 V.S.A. § 4454 does not require
municipalities to complete all of their enforcement actions within the fifteen-year time period;
rather, the statute only requires that such enforcement be “instituted” within this time period. In
other words, as soon as a municipality begins an enforcement action, it can look back 15 years
from the date of beginning that action, no matter how drawn out the subsequent proceedings are.
       In this case, Neighbors at numerous times have put Hale Mountain on actual notice of
their claims.   For instance, on January 22, 2004, Neighbors sent a letter to the Zoning
Administrator to express their wish “to file a formal complaint” against Hale Mountain. Then on



                                                  7
April 27, 2004, Neighbors sent a longer, more formal letter delineating all of the specific
violations they believed that Hale Mountain had caused. The April 27, 2004 letter requested that
the Zoning Administrator make a determination on each alleged violation. We note that both of
these letters were copied to Hale Mountain and placed the Club on notice of the allegations
against its operation. Neighbors’ letters appear to be much like demand letters, sent to potential
defendants by potential plaintiffs, in anticipation of filing and serving a formal civil complaint.
Cf. 12 V.S.A. § 466 (stating that an “action” is “deemed commenced” and therefore tolls an
applicable limitations period when it is either filed with the court or served upon the defendant).
       Regardless of the legal effect of the January 22, 2004 or the April 27, 2004 letters, we can
point to an even more obvious date for when the statute of limitations was tolled. When the
Zoning Administrator refused Neighbors’ request for a zoning violation determination,
Neighbors filed a timely appeal with the ZBA on May 24, 2004. Their appeal to the ZBA served
the same function as filing a formal civil complaint in that it again put Hale Mountain on notice
of Neighbors’ specific claims as to how Hale Mountain was in violation of the Zoning Bylaws.
       The ZBA hearing was held after giving public notice, and Hale Mountain representatives
were in attendance and actively contested the Neighbors’ assertions. Given that Hale Mountain
was appraised of Neighbors’ legal claims no later than when Neighbors appealed to the ZBA on
May 24, 2004, we conclude that the limitations on enforcement against Hale Mountain were
tolled no later than that date. Thus, we GRANT partial summary judgment to note that to the
extent that 24 V.S.A. § 4454 applies, it does not bar enforcement as to any alleged violation that
occurred in the 15 years before the Neighbors’ ZBA appeal—that is, up to and including alleged
violations that occurred on or after May 24, 1989.
       Although Hale Mountain might argue that it was not until August 26, 2004, that
Neighbors actually filed a Notice of Appeal with this Court, it would make little sense to punish
Neighbors for going through the procedural steps that are required before they can file an appeal
with this Court. Indeed, Vermont effectively allows the tolling of a statute of limitations even
for cases that are filed in the wrong forum. See Lodge at Bolton Valley Condo. Ass’n v.
Hamilton, 2006 VT 41, ¶ 8, 180 Vt. 497 (citing Beecher v. Stratton Corp., 170 Vt. 137, 143
(1999)); see also 12 V.S.A. § 558 (allowing improperly filed cases to be re-filed within one
year). But cf. Lyman v. Holmes, 88 Vt. 431 (1915) (noting that filing an action against the
wrong party does not toll the statute of limitations). If tolling is allowed even for cases that are



                                                 8
filed in the wrong forum, then it surely applies to cases that are filed in the correct forum: the
various municipal bodies that must first make determinations on these issues before a case can be
appealed to this Court.
       Some courts refer to this as “equitable tolling,” which “is most appropriate when the
plaintiff is required to avail himself of an alternative course of action as a precondition of filing
suit.” Conley v. Int’l Bhd. Elec. Workers, Local 639, 910 F.2d 913, 915 (9th Cir. 1997); accord,
e.g., Higgins v. N.Y. Stock Exch., Inc., 942 F.2d 829, 833 (2d Cir. 1991) (noting that equitable
tolling applies “when resort to an agency is a jurisdictional prerequisite to seeking review in . . .
court”).    In general, a litigant’s claims are tolled by good-faith attempts to exhaust other
procedures before bringing a lawsuit. See, e.g., Lucas v. Mountain State Tel. & Tel., 909 F.2d
419, 421–22 (10th Cir. 1990) (citing Galindo v. Stoody Co., 793 F.2d 1502, 1509–10 (9th Cir.
1986)). Tolling is necessary in these types of situations because to hold otherwise would result
in penalizing those who follow the procedures that should be followed before filing a lawsuit.
Id. at 422 (citing Galindo, 793 F.2d at 1510).
       We therefore conclude that Neighbors tolled the statute of limitations on May 24, 2004,
when they filed an appeal with the ZBA. Allegations of one or more zoning violations against
Hale Mountain that arose after May 24, 1989, therefore cannot be time barred by § 4454.

       B.       Issue Preclusion
       We now turn to the next issue we can resolve on summary judgment: whether the parties
are collaterally estopped from litigating issues that Hale Mountain argues have already been
decided by the Environmental Board. See In re Hale Mountain Fish & Game Club, Inc., Decl.
Ruling # 435, Findings of Fact, Conclusions of Law, & Order (Vt. Envtl. Bd. Aug. 4, 2005),
rev’d on other grounds, 2007 VT 102 (mem.), remanded, In re Hale Mountain Fish & Game
Club, Inc., Decl. Ruling # 435, Supplemental Findings of Fact & Conclusions of Law (Vt. Envtl.
Bd. Feb. 26, 2008) (appeal pending).
       The doctrine of collateral estoppel (now referred to as issue preclusion) prevents re-
litigation of a factual or legal issue that was decided in an earlier case, was necessary to the
disposition of that case, and included the party against whom preclusion is sought. See, e.g., In
re T.C., 2007 VT 115, ¶ 20 (citing Scott v. City of Newport, 2004 VT 64, ¶ 8, 177 Vt. 491
(2004)). The doctrine applies when all five of the following criteria are met:




                                                 9
         (1) preclusion is asserted against one who was a party . . . in the earlier action; (2)
         the issue was resolved by a final judgment on the merits; (3) the issue is the same
         [in both actions]; (4) there was a full and fair opportunity to litigate the issue in
         the earlier action; and (5) applying preclusion . . . is fair.
Trepanier v. Getting Organized, Inc., 155 Vt. 259, 265 (1990).
         All of these criteria must be present before we can find that issue preclusion applies. See
id. (using the conjunctive “and” when listing the five criteria).

                  1.        Asserted Against One Who Was a Party in the Earlier Action
         The first criterion is not in dispute, since it is clear that the parties to this proceeding are
the same as the parties that appeared before the Environmental Board.

                  2.        Issue Was Resolved by a Final Judgment on the Merits
         The Environmental Board addressed and decided a number of issues on the merits.
Nevertheless, the Environmental Board’s most recent ruling has been appealed to the Vermont
Supreme Court, and that appeal is still pending.                       This raises the issue of whether the
Environmental Board’s ruling is a “final judgment.” Trepanier, 155 Vt. at 265.                              This is an
unsettled question, and states are split as to whether the pendency of an appeal affects the finality
of a judgment for purposes of issue preclusion or claim preclusion. See generally E.H. Schopler,
Annotation, Judgment as Res Judicata Pending Appeal or Motion for a New Trial, or During the
Time Allowed Therefor, 9 A.L.R.2d 984, § 2 (2008) (1950). At the latest count, seven states
have held that an appeal prevents finality, see id. at § 5(b), while sixteen states and the federal
judiciary have held that judgments are final regardless of whether an appeal is pending, see id.
at § 5(c).3 Thus, as one court recently noted, “the majority of jurisdictions” that have addressed
this issue have held “that an appeal has no effect on a judgment’s finality for purposes of claim
preclusion.” Edwards v. Ghandour, 159 P.3d 1086, 1090 (Nev. 2007). That said, Vermont is
among those states that are yet to decide on one approach or the other.
         In one of the first—and only—cases where our Supreme Court wrestled with the question
of whether a judgment is final for purposes of issue preclusion, the Court defined finality as a
judgment that “still remains in full force, unvacated and unreversed.” Small v. Haskins, 26 Vt.
209 (1854). In Small, a justice of the peace rendered the initial decision, and the applicable


3
  These numbers exclude Georgia, Pennsylvania, and the District of Columbia, which actually appear on both of
these lists. See id. at §§ 5(b)–5(c). This apparent conflict is explained by the fact that different courts in these three
states have decided this issue in different ways—further evidence of how unsettled this area of the law remains.


                                                           10
statute allowed the Supreme Court to review that decision de novo “as if the suit had been
originally commenced there.” Id. The Court noted that in these types of de novo review
situations, issue preclusion is not available because the appeal automatically places the parties
“in the same situation as if no judgment had been rendered.” Id.
       Thus, Small currently stands for the proposition that an otherwise final judgment loses its
finality when a party exercises its appellate rights to a de novo hearing. Unfortunately, Small
does not address whether any other types of appeals can operate to strip judgments of their
finality. Nevertheless, given that Small based much of its argument on the de novo aspect of the
appeal, we conclude that Vermont judgments are final unless appellate review of that judgment
involves a trial de novo. This approach is in accord with the federal approach to finality. See,
e.g., Nixon v. Richey, 513 F.2d 430, 438 n.75 (D.C. Cir. 1975) (“The federal rule is that
pendency of an appeal does not suspend the operation of a final judgment for purposes of
collateral estoppel, except where appellate review constitutes a trial de novo.” (citing Huron
Holding Corp. v. Lincoln Mine Operating Co., 312 U.S. 183, 188–89 (1941))).
       Under the laws applicable at the time that these proceedings commenced, an appeal from
the Environmental Board went to the Vermont Supreme Court as an appeal on the record and not
de novo. “The findings of the board with respect to questions of fact, if supported by substantial
evidence on the record as a whole, shall be conclusive.” 10 V.S.A. § 6089(c) (1997) (applicable
to these proceedings though repealed by amendments that became effective January 31, 2005).
Thus, the Supreme Court has described its role as limited: “In interpreting Act 250, we are
mindful of our limited role in reviewing an agency's interpretation of a statute it is charged with
administering. We give ‘great deference to the Board's interpretation of Act 250, even in appeals
raising jurisdictional issues.’” In re Green Crow Corp., 2007 VT 137, ¶ 12 (quoting In re Taft
Corners Assocs., 160 Vt. 583, 590 (1993)). The Supreme Court, in fact, did not disturb the
Environmental Board’s three specific factual determinations, but rather remanded the declaratory
action back to the Board for more detailed factual findings on other issues. In re Hale Mountain
Fish & Game Club, Inc., 2007 VT 102, ¶¶ 8–12 (mem.).
       We share Hale Mountain’s concerns, however, that proceeding now to make factual
determinations in this appeal may result in incongruous decisions. According to one scholar, the
only “safe way of avoiding conflicting judgments” is for the second court to defer its actions
“until the decision on appeal has been rendered.” Schopler, supra, at § 2; accord Willard v.



                                                11
Ostrander, 32 P. 1092, 1094 (Kan. 1893) (holding that the filing of an appeal does not affect the
finality of a judgment, but also recommending that trial courts issue a continuance in any
pending trials until the appeal is settled because “[o]nly in this way can full justice be done”).
Our concerns here are amplified by the tremendous expenditure of time and resources in
litigation before this Court, the District 8 Environmental Commission Coordinator, the former
Environmental Board, the Supreme Court, and a related nuisance action pending before the
Bennington Superior Court. We do not wish to add further to the parties’ expenditures by
completing a proceeding here that may be in conflict with a subsequent determination by the
Supreme Court.      We therefore conclude that, while the prior Environmental Board factual
determinations should be regarded as final, even though an appeal is now pending, the more
proper exercise of our discretion is to postpone our merits hearing until the Supreme Court rules
on the current appeal from the Environmental Board.
       The need to postpone the current proceedings of course assumes that all of the other
requirements for issue preclusion apply. (If issue preclusion were not applicable, the appeal that
is before the Supreme Court would be irrelevant to these proceedings.) Thus, even in light of our
exercise of discretion here, we must continue our analysis of the remaining legal criteria for issue
preclusion to apply.

               3.      Same Issue Was Raised in the Earlier Action
       The third criterion for issue preclusion requires that an issue be the same as one raised in
the previous action. Trepanier, 155 Vt. at 265. Hale Mountain argues that this criterion is met
because the Environmental Board addressed many of the same issues that are before this Court.
Neighbors argue that this criterion is not met because the present case “raise[s] different issues,
because the standards are not the same.” (Neighbors’ Resp. to Cross-Mot. Summ. J. at 2.)
       Although Neighbors are correct that Act 250 proceedings differ in many ways from
municipal permit proceedings (see footnote 2, above), our Supreme Court has noted that similar
issues can arise in entirely different contexts and still lead to issue preclusion. See Scott v. City
of Newport, 2004 VT 64, ¶ 13, 177 Vt. 491. In Scott, a question of road ownership was decided
in an administrative permit proceeding, and the Court applied issue preclusion to prevent re-
litigation of this question in a later action to quiet title. Id. The Court noted that issue preclusion
is readily available in these circumstances: “For issue preclusion, identity of subject matter or
causes of action is not required. Thus, the fact that these cases arose in different contexts . . . is


                                                  12
of no matter.”      Id. (internal citations omitted); accord Berlin Convalescent Center, Inc. v.
Stoneman, 159 Vt. 53, 59 (1992) (applying issue preclusion in a later proceeding that arose in a
different context). Indeed, issue preclusion even applies to purely factual findings. See Mellin
v. Flood Brook Union Sch. Dist., 173 Vt. 202, 209 (2001) (“Issue preclusion applies to issues of
fact as well as law.” (citing Restatement (Second) of Judgments § 27 (1982))). While it is
apparent that different legal standards apply in state and municipal land use proceedings, the
actual factual determinations, such as when a garage was built and how large is it, must be
applied to the separate standards in each proceeding.
       Given the large amount of overlap in the legal and factual issues involved, we conclude
that the third criterion for issue preclusion is met. Thus, because we also find that all other
criteria for issue preclusion are met, we conclude that final factual determinations made by the
Environmental Board and not vacated by the Supreme Court will preclude the relitigation of
those factual issues when we conduct our merits hearing. See Mellin, 173 Vt. at 209.

               4.       Full and Fair Opportunity to Litigate the Issue in the Earlier Action
       The fourth criterion for issue preclusion requires that the parties had a full and fair
opportunity to litigate the issue in the previous action. Trepanier, 155 Vt. at 265. Our Supreme
Court has noted that there is “[n]o one simple test” to determine whether this criterion (or the
fifth criterion of fairness) is met. Id. Rather, courts should analyze these issues as follows:
       Among the appropriate factors for courts to consider are the type of issue
       preclusion, the choice of forum, the incentive to litigate, the foreseeability of
       future litigation, the legal standards and burdens employed in each action, the
       procedural opportunities available in each forum, and the existence of inconsistent
       determinations of the same issue in separate prior cases.
Id. (internal footnotes and citations omitted). More recently, the Supreme Court has noted that
the following factors are relevant: “whether there is a substantial overlap in the evidence and
argument between the two proceedings; whether the same rule of law is involved; whether
pretrial preparation and discovery in the first case covered the issues in the second proceeding;
and how closely the claims in the two proceedings are related.” Alpine Haven Prop. Owners
Ass’n v. Deptula, 2003 VT 51, ¶ 15, 175 Vt. 559. These factors focus on whether the earlier
proceeding included enough procedural safeguards to make its outcome fair and reliable.
       On balance, the factors cited in Trepanier and in Alpine Haven weigh in favor of
allowing issue preclusion in this case. Neighbors’ main argument here is that they did not have a



                                                 13
full and fair opportunity before the Environmental Board because they were not allowed to
engage in discovery. This argument has a fair amount of indirect support, and our Supreme
Court has noted that a full and fair opportunity exists when both proceedings involve “the same
rules of procedure, discovery, and evidence.” Scott, 2004 VT 64, ¶ 16 (emphasis added).
Similarly, the Federal District Court of Vermont has noted that claim preclusion is inappropriate
“where a plaintiff was unaware of the facts giving rise to a potential claim, a defendant took
steps to maintain that ignorance, and no discovery was permitted in the earlier case.”
Montgomery v. NRL Co., 2007 WL 3243838, at *3 (D. Vt. Nov. 2, 2007) (Sessions, J.)
(emphasis added). Although these cases suggest that courts should be more hesitant to allow
issue preclusion when discovery was not allowed in the earlier proceeding, this does not mean
that formal discovery is a prerequisite to having a full and fair opportunity to litigate. For
instance, in Montgomery, the lack of discovery was combined with intentional steps by a
defendant to prevent a litigant from learning important information. See id. Without such
intentional malfeasance, the Montgomery court might have found preclusion appropriate despite
the lack of discovery in the earlier proceeding.
        We believe it inaccurate to characterize proceedings before the former Environmental
Board as lacking in a full and fair opportunity for a party to litigate.4 Proceedings before the
former Environmental Board contained a number of procedural safeguards—including extensive
pre-filed evidence (such as direct testimony and rebuttal), direct and cross examination, and the
ability to request further means of discovery—that helped ensure that a full and fair hearing
occurred.
        Because of these procedural safeguards, the Environmental Board hearings were a far cry
from small claims litigation, where we have a legislative indication that judgments should not
have a preclusive effect. Cold Springs Farm Dev. v. Ball, 163 Vt. 466, 471–72 (1995) (citing 12
V.S.A. § 5533(c)). Indeed, our state legislature expressed confidence in Environmental Board
proceedings by its directive that this Court treat such proceedings on par with the proceedings of
this Court: “Prior decisions of the environmental board . . . shall be given the same weight and
consideration as prior decisions of the environmental court.” 10 V.S.A. § 8504(m).



4
 We assume that the critics who once chastised the Environmental Board for the completeness of its proceedings
would join us in taking issue with this characterization.


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       Neighbors made use of the procedural safeguards that made the Environmental Board
proceedings fair.    Thus, even if Neighbors chose not to request permission for additional
discovery, they had other means available to ensure that the proceedings were fair.
       Most important to our analysis here is that, as in Scott, Neighbors here “fully and actively
participated in every aspect and proceeding” before the Environmental Board and “had every
incentive to contest the determination” made in those proceedings. Scott, 2004 VT 64, ¶ 16.
       We do not find it significant that Environmental Board rulings were not the product of a
court proceeding, since issue preclusion has previously been applied to decisions that were made
by other quasi-judicial entities, including the Vermont Public Service Board.              See In re
Investigation of Nov. 15, 1990 Rate Design Filing of Vt. Power Exch., 159 Vt. 168, 181 (1992)
(“[The Plaintiff] had a full and fair opportunity to litigate these issues in the revenue case [before
the Public Service Board], and applying issue preclusion in this case is appropriate.”).

               5.      Application of Issue Preclusion Is Fair
       The final criterion is that it must be “fair” to apply issue preclusion to the pending
proceeding. Trepanier, 155 Vt. at 265. For all of the reasons discussed above, where we noted
that Neighbors had a full and fair opportunity to litigate these issues before the Environmental
Board, we hold that the fairness requirement is met in this case. Our Supreme Court has noted
that “[i]n short, . . . the party opposing collateral estoppel must show the existence of
circumstances that make it appropriate for an issue to be relitigated.” Trepanier, 155 Vt. at 265–
66. Neighbors have not made that showing here, and we find that all five of the criteria for issue
preclusion have been met. We therefore conclude that issue preclusion is appropriate here.
       We note that Neighbors’ worries about issue preclusion may be somewhat mollified by
the knowledge that the prior rulings of the Environmental Board only have preclusive effect to
the extent that an issue was actually decided by the Board. Thus, Neighbors are still free to
argue that certain aspects of that decision are not preclusive in this matter because they involve
different issues. Nevertheless, our Decision today precludes Neighbors from contesting the
factual findings of the Environmental Board that are applicable in this municipal appeal, since
those facts, if upheld in the pending appeal, have a preclusive effect. See Mellin, 173 Vt. at 209.




                                                 15
                                        CONCLUSION
       For all of the reasons stated above, we DENY both parties’ summary judgment motions
insofar as they ask this Court to decide the ultimate issue of whether Hale Mountain has violated
the Town’s Zoning Bylaws. We GRANT partial summary judgment to note that the fifteen-year
statute of limitations contained in 24 V.S.A. § 4454 does not apply to zoning violation
allegations that occurred on or after May 24, 1989. We also GRANT partial summary judgment
on the question of issue preclusion by holding that the determinations of the former
Environmental Board have a preclusive effect on the same legal and factual issues material to
this appeal.
       To ensure that the scarce resources of the judiciary and the parties to these appeals are
used most efficiently, we will postpone this trial until the Supreme Court issues a decision on the
latest appeal from the Environmental Board.

       Done at Newfane, Vermont this 21st day of November 2008.



                                              ___________________________________
                                               Thomas S. Durkin, Environmental Judge




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