                                        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)

                                            Judgment Order

          Hale Mountain Fish & Game Club (“Hale Mountain”) is a pre-existing not-for-profit
Club that operates rifle, pistol, and clay pigeon-shooting ranges in the Town of Shaftsbury,
Vermont (“Town”). Hale Mountain’s property at 684 Rod and Gun Club Road has been the
subject of multiple litigations before the former Vermont Environmental Board, the Vermont
Supreme Court, the Environmental Division, and the Civil Division of the Vermont Superior
Court.1 In this Division, in the proceedings just prior to the above-referenced Docket, this Court
concluded that Hale Mountain needed to obtain municipal land use approval for fourteen
specific pre-existing improvements which the Court identified as follows:
    (1)    installing a cover over the rifle-range shooting station between 1989 and 1991;
    (2)    installing a cover over the pistol-range shooting station in 1995;
    (3)    erecting a storage unit into the rifle-range shooting station in 1992;
    (4)    installing wooden walls around the rifle-range shooting station in 1999;
    (5)    improving the well serving the clubhouse and caretaker’s trailer by removing
            tile and installing a steel cover and culvert in 2002;
    (6) installing a caretaker’s trailer in 1994;
    (7) installing a clay-target storage trailer in 1997;
    (8) replacing the trap-house pad in 1991;
    (9) replacing the trap-field pavilion in 1991;
    (10) . . . removing of red pines on the property in 1992 [by the Pittstown Beagle Club];
    (11) constructing rabbit pens in 1992;
    (12) extending a culvert for the Beagles in 1992;
    (13) installing a portable toilet on the Beagles’ property;
    . . . and
    (19) erecting a berm around three sides of the pistol range in the mid-1990s.

          In re Hale Mountain Fish & Game Club, Nos. 149-8-04 Vtec and 259-12-05 Vtec, slip op.
at 8 (Vt. Envtl. Ct. Dec. 15, 2009) (Durkin, J).2

1 We included a summary of the Factual and Procedural Background for these multiple litigations in our
2009 decision on the parties’ cross-motions for summary judgment. See In re Hale Mountain Fish &
Game Club, Nos. 149-8-04 Vtec and 259-12-05 Vtec, slip op. at 2–6 (Vt. Envtl. Ct. Dec. 15, 2009) (Durkin, J).
2 Items No. 14-18 are omitted from the above list because this Court concluded that those enumerated
improve-ments did not require additional municipal land use approval. Id. at 11–12.


                                                     1
          In an earlier decision in the same consolidated proceeding, the Court also determined
that the parties were collaterally estopped from raising anew certain factual and legal issues
that had been resolved by final determinations made in prior proceedings. See In re Hale
Mountain Fish & Game Club, Nos. 149-8-04 Vtec and 259-12-05 Vtec, slip op. at 9–16 (Vt. Envtl.
Ct. Nov. 21, 2008) (Durkin, J).
          Hale Mountain thereafter submitted an application for a zoning permit for the
enumerated improvements; that application was granted by the Town of Shaftsbury Zoning
Administrator (“ZA”), but the ZA’s approval was timely appealed to the Town of Shaftsbury
Development Review Board (“DRB”) by Owen and Kathy Beauchesne (“Neighbors”). When
the DRB vacated the ZA’s approval, Hale Mountain appealed to this Court. The Neighbors
appear as interested persons in the present appeal, as does the Town.
          When the parties were unable to resolve their disputes, the appealed application was set
for trial, which was completed in one day of testimony on August 28, 2012 at the Civil Division
of the Bennington Superior Court. At the conclusion of the evidentiary proceeding, the Court
recessed to complete its deliberations, including legal research, and then reconvened the
hearing to render its Findings of Fact and Conclusions of Law on the record of the August 28,
2012 merits hearing. This Judgment Order is issued to memorialize the Court’s order and
decree.
          The Court first noted in its rulings from the bench that this litigation, the most recent in
a long line of litigation in multiple forums between Hale Mountain and Neighbors, is
unfortunate on two levels: first, that a palatable level of acrimony continues to exist between the
parties, even after nearly two decades of litigation and, second, that the improvements being
reviewed for permit approval were constructed before a permit for the work was sought.
          There is one reality that appears clear to this Court: that Hale Mountain will continue to
operate its facilities on Rod and Gun Club Road and that the Beauchesnes will continue to be its
neighbors. Only the parties here have the ability to completely resolve their disputes; not this
Court, not the former Environmental Board (n/k/a the Vermont Natural Resources Board), not
the Supreme Court, and not the Town, through either its ZA or DRB. But, in the absence of the
parties’ voluntary resolution, this Court must fulfill its obligation to decide the specific factual
and legal issues presented in this appeal. The Court did so by rendering its Findings of Fact
and Conclusions of Law on the record of the August 28, 2012 merits hearing, which the Court
summarizes as follows:


                                                   2
1. Each of the improvements, enumerated above, conform to the height, setback and other
   dimensional requirements for the applicable zoning district.
2. The enumerated improvements constitute uses that are included within the definition of
   permitted “group service uses” pursuant to Town of Shaftsbury Zoning Bylaw
   (“Bylaw”) § 4.1.1.4.3.
3. Group service uses are permitted in all Rural Residence Zoning Districts (“RR
   Districts”), provided they first receive site plan approval by the DRB. Bylaw § 4.1.1.4.
   The Hale Mountain enumerated improvements are located in one of the RR Districts.
4. Hale Mountain did not apply for and the DRB did not review the enumerated
   improvements for site plan approval. No notice was provided for site plan approval
   before the DRB, since no such application was submitted.
5. There were no facts presented that would trigger conditional use review under the
   applicable provisions of Bylaw.
6. Hale Mountain is a not-for-profit corporation, licensed with the Vermont Secretary of
   State and registered to do business in the State of Vermont. I.R.C. § 501(c)(7) (2010).
7. Bylaw § 3.6 governs site plan review; subsection 3.6.2 defines the application
   requirements, which include submitting “[c]opies of all state permits and licenses
   required of the proposed project.” Bylaws § 3.6.2.4. Neighbors asserted at trial that the
   Court should interpret this Bylaw provision to require that Hale Mountain’s pending
   application be denied. Neighbors’ assertion is premised upon their allegation that the
   Hale Mountain improvements require a further review under Act 250, the state land use
   law. 10 V.S.A., Chapter 151. No credible facts were presented to support Neighbors’
   assertions.   We specifically reject, based upon the evidence presented, that Hale
   Mountain’s enumerated improvements require further state land use review and reject
   that Bylaws § 3.6.2.4 acts as a bar to review and approval, conditional or not, of Hale
   Mountain’s permit application.
8. No credible evidence was presented to show that the enumerated site improvements
   require conditions or safeguards, pursuant to Bylaw § 3.6.1.1, with respect to traffic
   access, circulation, parking, landscaping, screening, or the protection or utilization of
   renewable energy resources.
9. Hale Mountain presented credible facts to show that the enumerated improvements are
   permitted, conditioned upon site plan approval being issued.


                                            3
                                         Conclusion
       Hale Mountain’s application for a zoning permit for the enumerated improvements is
hereby DENIED WITHOUT PREJUDICE to Hale Mountain submitting a site plan application
and supporting documents for review and approval by the Town of Shaftsbury Development
Review Board. Once such approval is received and becomes final, Hale Mountain will be
entitled to request that the Town of Shaftsbury Zoning Administrator complete the ministerial
act of re-issuing a zoning permit for the enumerated improvements that were the subject of
Hale Mountain’s original application.
       This completes the proceedings before this Court on the pending application.


       Done at Newfane, Vermont, this 4th day of October 2012.



                                           ___________________________________
                                                  Thomas S. Durkin, Judge




                                              4
