                               STATE OF VERMONT

SUPERIOR COURT                                  ENVIRONMENTAL DIVISION

                                                       }
In re Chittenden County Fish & Game Club, Inc.         }
       (Appeal of Lowe & Smith)                        } Docket No. 47-3-11 Vtec
       (Cross-Appeal of Chittenden County              }
              Fish & Game Club, Inc.)                  }
                                                       }

                                 Decision and Order

      Appellants Robert and Elizabeth Lowe and William Smith were either

appellants or interested parties in In re Appeal of Smith, No. 263-12-02 Vtec (Vt.

Envtl. Ct. Dec. 20, 2004) (Wright, J.), aff’d, 2006 VT 33, 179 Vt. 636.1 Appellants are

represented by Daniel P. O’Rourke, Esq.        Appellee-Cross-Appellant Chittenden

County Fish & Game Club, Inc. (the Club) is represented by Michael J. Harris, Esq.

The Town of Richmond, represented by Mark L. Sperry, Esq. in the previous appeal,

has not entered an appearance in the present proceedings.             In the present

proceedings, Appellants have moved for summary judgment on Questions 1, 2, and

8 of the Statement of Questions, relating to whether the Development Review Board

(DRB) of the Town of Richmond had authority to undertake the proceedings and

make the decision from which this appeal is taken.

      In Appeal of Smith, this Court determined that the use to which the Club was

putting its land was either a “private club,” a prohibited use in the relevant zoning


1 In late 2004 in that appeal, this Court issued a decision overturning a 2002 decision
of the Richmond DRB and the underlying Zoning Administrator’s decision. The
Zoning Administrator had denied Appellants’ request to take enforcement action
against the Chittenden County Fish & Game Club (the Club) for having expanded
the scope and intensity of a nonconforming use, and the DRB had upheld that
decision.

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district, or an “outdoor recreation facility,” a conditional use in the zoning district.

This Court recognized that, if the Club were to be considered under the “private

club” use category, the Club was a nonconforming use in the zoning district,

regulated under § 4.7 (now § 4.9) of the Richmond Zoning Regulations, which then

provided that a nonconforming use may not be increased or expanded beyond a

25% increase in physical characteristics. Section 4.7 allowed an increase of up to

25%, but only if both the nonconforming use itself and the site plan of the facility

were approved by the DRB.

       As stated in Appeal of Smith, non-conforming uses can continue to exist and

be maintained, but the Club does not have an unlimited right to expand the

elements of its operation that are prohibited from the zoning district or are restricted

to conditional use approval. No. 263-12-02 Vtec, slip op. at 13. The Court explained

that “[a] non-conforming use has the right to continue to exist and be maintained as

it was when it became non-conforming; it does not hold an unlimited right to

expand those elements of its operation (such as noise, lighting, or traffic) that caused

the use category to be excluded from the [zoning] district in the first place.”

       This Court also noted that, if the Club were instead to be considered under

the “outdoor recreation facility” use category, a conditional use in the relevant

zoning district, any changes to the Club or its use since the adoption of the Zoning

Regulations in 1969 should have obtained conditional use approval under § 5.5.

Additionally, the Court ruled that, regardless of which of these uses the Club was

undertaking on its property, its improvement of the parking area should have

obtained site plan review from the DRB, and that the uses needed to conform to the

noise performance standards in § 4.8 (now § 4.10).

       Also in its 2004 Decision and Order, based on the evidence presented in trial,

this Court concluded that the Club had increased the scope and intensity of use of its



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shooting range to such a degree that review by the DRB was triggered2 under either

§ 4.7 or § 5.5. This Court therefore reversed both the Zoning Administrator’s letter

and the DRB’s approval of it, and remanded the matter to the municipal level to

enable the parties to initiate any new proceedings they may have wished to take,

consistent with the Court’s decision.



       This reversal and remand allowed Appellants to renew their request for the

Zoning Administrator to initiate enforcement action, if they wished to do so. This

reversal and remand also allowed the Club, if it wished to do so, to apply to the DRB

for approval of the increased scope and intensity of the use, as well as for any

necessary site plan approval. That is, the Court’s order left it up to the Club to

choose whether to apply as an increase to a nonconforming use, or for conditional

use approval, or both, or simply to reduce the scope and intensity of use of the

shooting range to its 1969 level as described in the Court’s decision.

       This Court’s decision did not require any of the parties to take any action; its

remand simply returned jurisdiction of the matter to the municipal level to allow the

parties to file further applications or requests if they wished to do so, consistent with

the principles of issue preclusion and the Vermont Supreme Court’s various rulings

as to successive appeals or applications. See, e.g., In re Armitage, 2006 VT 113, ¶¶ 4,

7–10, 181 Vt. 241.



2The 2004 Decision and Order, affirmed by the Supreme Court, made a finding that,
up to at least 2003, the uses of the Club’s shooting range had “at least doubled, and
may have increased by as much as four or five times, as compared with the amount
of shooting that had existed in 1971 and through the 1980s.” Appeal of Smith, No.
263-12-02 Vtec, slip op. at 6; see also Appeal of Smith, 2006 VT 33, ¶ 4. The Court
did not, of course, determine the use levels at the time of an application to the DRB,
because no such application then existed.


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       On April 24, 2006, the Vermont Supreme Court affirmed this Court’s decision.

In re Appeal of Smith, 2006 VT 33, 179 Vt. 636. The Supreme Court discussed the

law and “the public policy underlying the statutory and regulatory schemes

carefully designed to maximize compliance with zoning regulations and to

minimize noncompliance and nonconforming uses.” Id., ¶ 10. The Supreme Court

noted that, on appeal, the Club had not challenged the Environmental Court’s

findings as to the increase in use of the shooting range over time. Id., ¶ 5. The

Supreme Court clearly stated that the Club is “limited to using the structures at their

historic levels without a conditional use permit [or other approval from the DRB]

authorizing the expansion in use.” Id., ¶ 11.

       The parties have not suggested that, at any time since 2006, the Club has

applied to the DRB for nonconforming use expansion approval, conditional use

approval, and/or site plan approval, as allowed by this Court’s 2002 decision. Nor

do they suggest that the DRB had before it any appeal from a decision of the Zoning

Administrator. Rather, on December 8, 2010 and January 12, 2011, which was more

than four years after the Supreme Court’s final decision in Appeal of Smith, the DRB

unilaterally scheduled and held what it termed a public “remand hearing.” The

Town Planner, in a letter dated November 15, 2010, described the remand hearing as

having been “ordered by the Environmental Court’s 2004 decision” and stated that

the hearing would provide an opportunity for parties to present evidence

“consistent with the Court’s remand order.” See Appellants’ Mot. for Summ. J (filed

July 18, 2010), Exhibit K, letter from Cathleen Gent, Town Planner, to John Collins,

Club’s attorney, Nov. 15, 2010; see also In re Remand Order Regarding Appeal of

William Smith, #02-168, at 1 (Town of Richmond Dev. Review Bd. Feb. 25, 2011)

(“The Town of Richmond [DRB] held a public hearing . . . pursuant to the Remand

Order of the Vermont Environmental Court dated December 20, 2004, Docket No.

263-12-02”).

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       According to both the Club and Appellants, and as represented in the

decision ultimately issued by the DRB on February 25, 2011, the purpose of the

remand hearing was primarily to determine whether the “current usage levels and

uses at the [Club’s] approximately 45-acre facility . . . [have or] have not materially

expanded or increased, as compared to such uses on or before March 1969 when the

Town of Richmond adopted its zoning regulations.” In re Remand Order Regarding

Appeal of William Smith, #02-168, at 1. The DRB concluded that the use of the

Club’s property as a private club had not changed since 1969, but that it could not

reach a determination as to whether “the current usage levels and uses at the Fish &

Game Club facility, including its shooting range, have materially expanded or

increased.” Id. at 3.

       In their motion pending before this Court, Appellants argue that the DRB’s

actions were ultra vires because the DRB did not have an application before it

allowing it to undertake such review and because this Court’s 2004 Decision and

Order, which was affirmed by the Vermont Supreme Court, also did not provide

such authority. Rather, Appellants argue that the 2004 Decision and Order had

conclusively answered the question addressed in the remand hearing, as it found

that the Club’s use had at least doubled. The Club argues that the 2004 Decision and

Order left unresolved the question of whether the Club had increased its use level

since 1969. The Club argues that the question was a necessary part of the review

required under the former version of § 4.7 of the Zoning Regulations; that § 4.7, as it

previously existed, did not require a party to submit an application in order for the

DRB to review the questio; and that the Club’s original 2002 zoning application was

sufficient to allow the DRB to conduct its review.



       In Vermont, municipalities and their development review boards have “only

those powers and functions specifically authorized by the legislature, and such

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additional functions as may be incident, subordinate or necessary to the exercise

thereof.” In re Petition of Ball Mountain Dam Hydroelectric Project, 154 Vt. 189, 192

(1990) (quoting Hinesburg Sand & Gravel Co. v. Town of Hinesburg, 135 Vt. 484, 486

(1977)). Additionally, a development review board can only provide the type of

permit or relief that an applicant requests in an application, and cannot convert the

proceeding to address another type of approval. See In re Torres, 154 Vt. 233, 236

(1990) (concluding that a municipal panel did not have the authority to issue a

conditional use permit in proceeding on an application for a permitted use); see also

3 E. Ziegler, Rathkopf’s Law of Zoning and Planning § 57:46 (4th ed. 2011) (“The

[municipal] board of appeals has no power to grant relief of an entirely different

kind from that applied for . . . .”).

       Most important for the resolution of the pending motion is the DRB’s

characterization of its proceedings. In its February 25, 2011 decision, the DRB did

not identify any application from the Club (or appeal of a Zoning Administrator’s

decision) that it was considering. Rather, the DRB stated that it was holding a public

hearing “pursuant to the Remand Order of the Vermont Environmental Court dated

December 20, 2004, Docket No. 263-12-02.” In re Remand Order Regarding Appeal

of William Smith, #02-168, at 1 (Town of Richmond Dev. Review Bd. Feb. 25, 2011).

Thus, the DRB appears to have viewed the Court’s 2004 Decision and Order, rather

than a pending application,3 as authorizing it to engage in the hearing and review it

undertook on its own, six years later.

       The zoning enabling statute, 24 V.S.A. § 4460(e)(12), allows the DRB to engage


3To the extent that the DRB considered the Club’s 2002 zoning permit application to
be the subject of the DRB’s 2011 proceedings, it was then no longer a pending
application. As stated in this Court’s 2004 Decision and Order, the Zoning
Administrator approved the 2002 application and it became final when it was not
appealed. Appeal of Smith, No. 263-12-02 Vtec, slip op. at 7. Thus, it is no longer
pending nor can it be the subject of the current proceedings.

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in a number of functions, including conducting any review “required by the

[municipality’s] bylaws.” However, in the present case the DRB did not conduct its

proceedings based on authority in its Zoning Regulations and the Court is unable to

identify any section of the Regulations that could authorize the review the DRB

undertook here, without receipt of a formal application. In fact, without receipt of

an application from the Club, neither the DRB, the parties, nor the Court can

determine what version of the Regulations is applicable.4 This apparent lack of

clarity as to the applicable version and section of the Regulations underscores the

need for an application to be filed with the DRB in order for it to undertake review

proceedings and issue a decision in the first place, as well as for the Court to

undertake a de novo review of that DRB decision. The Court’s review authority is

limited to “whatever the [DRB] might have done with an application properly

before it.” Torres, 154 Vt. at 236.

       Because the 2004 Decision and Order did not provide authority for the DRB

to undertake a “remand hearing” without a pending application (or an appeal to it

of a decision of the Zoning Administrator), the DRB’s decision was ultra vires and

must be vacated. The decision issued by the DRB was, at best, an advisory opinion

possibly related to a potential future application from the Club, but the parties have

not shown any provision of the Regulations authorizing the Richmond DRB to issue

advisory opinions. See 3 E. Ziegler, Rathkopf’s Law of Zoning and Planning § 57:9


4As a general rule, the version of the zoning regulations applicable to a municipal
panel’s review is that which is in effect on the date a proper application is submitted
to the panel. See, e.g., In re Jolley, 2006 VT 132, ¶ 11, 181 Vt. 190 (citing Smith v.
Winhall Planning Comm’n, 140 Vt. 178, 181–82 (1981)). Submission of an application
gives an applicant vested rights to the zoning regulations present at that time. Id.
The parties appear to disagree about what version of the Regulations applies.
Appellants focus on a more recent version of the Regulations and the Club focuses
on a version of the Regulations in existence during the adjudication of the previous
appeal, Appeal of Smith.

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(4th ed. 2011) (“Unless empowered to do so by the provisions of the zoning

ordinance, the board of appeals may not render advisory opinions.”).



       Further, the hearings considered evidence on the scope and intensity of use of

the shooting range as of and after the adoption of zoning in Richmond in 1969, even

though this Court had issued findings and conclusions on those facts in its 2002

decision, which the Club had not contested at the Supreme Court, and even though

the Supreme Court had upheld this Court’s reversal of the contrary DRB decision in

the first place.

       Although the parties dispute whether the DRB had authority to examine the

question of how the Club’s property usage changed over time, that question is one

of issue preclusion based on the 2004 Decision and Order. Although a court can

raise the topic of issue preclusion sua sponte because the ability to do so avoids

judicial waste and encourages reliance on previous decisions, see Wetherby v.

Vincent, 2005-417 (Vt. Sept. term, 2006) (unpublished mem.); cf. Merrilees v. State,

159 Vt. 623, 623–24 (1992), in the present case it is unnecessary for determination of

the present motion for summary judgment.          In any event, it is impossible to

determine from the DRB’s decision for which time span it was examining the Club’s

property usage, compared to the dates examined by the Court in the previous

appeal (1969 to 2003).




       Accordingly, based on the foregoing, Appellants’ motion for partial summary

judgment is GRANTED and it is hereby ORDERED and ADJUDGED that the DRB’s




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2011 decision is VACATED, concluding this appeal.5

      This decision does not order the Club to file an application and does not

order Appellants to request any action from the Zoning Administrator; it remains

up to the parties whether they wish to file anything at the municipal level. This

decision does not in any way limit the DRB’s authority to consider a duly filed

application, or to consider an appropriate appeal from a decision of the Zoning

Administrator.




      Done at Berlin, Vermont, this 24th day of October, 2011.




                          _________________________________________________
                                Merideth Wright
                                Environmental Judge




5
   On October 17, 2011, the Club also moved for a “stay of enforcement” of a
provision of the DRB decision that required the discharge of firearms on the Club
property to comply with the noise standards of the Zoning Regulations. Due to the
Court’s decision in this matter, that request is now MOOT.

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