                                  STATE OF VERMONT
SUPERIOR COURT                                                 ENVIRONMENTAL DIVISION
Vermont Unit                                                    Docket No. 190-11-10 Vtec

                   Hale Mountain F & G Club Improvement Applic.

                             ENTRY REGARDING MOTION

Title:        Motion for Relief from Judgment (Motion 20)
Filer:        Owen and Katherine Beauchesne
Attorney:     Herbert G. Ogden
Filed Date:   December 1, 2014
Response filed on 12/24/2014 by Attorney Rodney E. McPhee for Appellant Hale Mountain Fish
& Game Club
Response filed on 01/02/2015 by Attorney Herbert G. Ogden for Owen & Katherine Beauchesne
The motion is DENIED.
        Pending before the Court is Owen and Katherine Beauchesne’s (“the Beauchesnes”)
motion for relief from part of this Court’s October 4, 2012 Merits Decision (“Decision”). That
Decision resolved Hale Mountain Fish & Game Club’s (“the Club”) appeal from the Town of
Shaftsbury Development Review Board’s (“DRB”) denial of their application for a zoning permit
for thirteen improvements to their property, as enumerated by this Court in a prior proceeding.
See In re Hale Mountain Fish & Game Club, No. 190-11-10 Vtec, slip op. at 3–4 (Vt. Super. Ct.
Envtl. Div. Oct. 4, 2012) (Durkin, J).
       The Decision denied the application without prejudice, ruling that the Club presented
credible facts to show that the improvements were permitted as group service uses under
section 4.1.1.4.3 of the Town of Shaftsbury Zoning Bylaws (“Bylaws”) but, as determined by the
DRB, conditioned upon site plan approval. Id. The Decision specifically states that “[o]nce site
plan 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.” Id. at 4.
         When the Beauchesnes appealed that Decision to the Vermont Supreme Court, it was
fully affirmed in a decision dated June 6, 2014. See In re Hale Mountain, 2014 VT 54, available
at http://info.libraries.vermont.gov/supct/current/op2012-412.html. The Beauchesnes now
request relief from part of the trial court Decision, to the extent it prevents them from
challenging the characterization and review of the structural improvements.
      Rule 60(b) of the Vermont Rules of Civil Procedure (“V.R.C.P.”) provides that, “[o]n
motion and upon such terms as are just, the court may relieve a party . . . from a final
In re Hale Mountain F & G Club Improvement Applic., No. 190-11-10 Vtec (EO on motion for Relief)(04-17-2015) p. 2


judgment, order, or proceeding” for a number of specified reasons. V.R.C.P. 60(b). The
Beauchesnes argue that two subsections of Rule 60(b) apply to their request for relief, (6) and
alternatively, (5). Rule 60(b)(5), like the analogous federal rule, provides that the Court may
relieve a party from a final judgment or order if the judgment has been satisfied, or a prior
judgment on which it is based has been reversed or otherwise vacated, or “it is no longer
equitable that the judgment should have prospective application.”
        It is not clear that Rule 60(b)(5) applies in this case. The applicable provision relates to
judgments that have prospective effect and refers to some change in conditions that makes
enforcement inequitable. In re Cumberland Farms, Docket No. 196-9-02 Vtec, slip op. at 5–6
(Vt. Envtl. Ct. Apr. 18, 2008) (Wright, J) (citing 11 Wright, Miller & Kane, Federal Practice and
Procedure: Civil2d § 2863 n.19). The Beauchesnes have offered no change in factual conditions
or in law to support a finding that enforcement of the Decision has become inequitable. To the
extent that the Beauchesnes’ motion is premised upon V.R.C.P. 60(b)(5), we DENY their motion.
       Rule 60(b)(6) allows the trial court to relieve a party from a final judgment for any
reason other than those set forth in the other sections of the Rule, upon such terms as are just
and as long as the request for relief is made within a reasonable time. V.R.C.P. 60(b). Although
the grounds for relief are broadly stated and the Rule must be interpreted liberally to prevent
hardship or injustice, “interests of finality necessarily limit when relief is available.” Sandgate
School Dist. v. Cate, 2005 VT 88, ¶ 7, 178 Vt. 625 (mem.) (citing Estate of Emilo v. St. Pierre, 146
Vt. 421, 423–24 (1985)); Riehle v. Tudhope, 171 Vt. 626, 627 (2000) (citations omitted). It is the
moving party’s burden to make a showing of “extraordinary circumstances” that countervail the
interests of finality. See McCleery v. Wally’s World, Inc., 2007 VT 140, ¶¶ 10–13, 183 Vt. 549.
        The Beauchesnes argue for the liberal application of Rule 60(b)(6) to grant relief from a
Decision they say causes them unjust hardship. (Mot. for Relief from Judgment at 2, filed Dec.
1, 2014). They identify “the way in which the Vermont Supreme Court brushed aside the
difference between this Court’s oral findings . . . [and] language in the judgment” as
“extraordinary circumstances” sufficient to trigger Rule 60(b)(6). Id.
        In their appeal to the Supreme Court, the Beauchesnes argued that this Court erred in
relying on the group service uses provision in the bylaws, ignoring the Club’s actual use of its
property. In support of their argument that the improvements should be reviewed under the
provisions for non-conforming uses, the Beauchesnes relied on this Court’s comments from the
bench at the August 28, 2012 merits hearing, at the conclusion of which we stated that:
        There has not been a determination by this Court that the specific improvements
        that have been proposed by the Club evidence an expansion of a non-
        conformity. Whether they do or whether it is mere maintenance of the facility
        as it has existed for years is something that will be left to another proceeding
        perhaps.
       The Beauchesnes asserted that this statement was an “oral reservation” of the claim
that the Club’s improvements were an expansion of a nonconforming use rather than
maintenance of that use. They also argued that this statement conflicts with our October 4,
2012 Decision, in which we ruled that the Club is entitled to zoning permits once it obtains site
In re Hale Mountain F & G Club Improvement Applic., No. 190-11-10 Vtec (EO on motion for Relief)(04-17-2015) p. 3


plan approval and that the Beauchesnes are precluded from alleging violations predicated on
increased use. The Supreme Court disagreed with this characterization of our “comments from
the bench,” which, they concluded, “were plainly not intended as findings.” In re Hale
Mountain, 2014 VT at ¶ 22.
       The Beauchesnes now allege that the Supreme Court’s characterization of this Court’s
comments creates a hardship because they “will continue to be subjected to the gunfire noise
that construction of these ‘improvements’ has facilitated in all seasons and all sorts of weather”
and that the value of their 155± acre property has been “seriously reduced,” as supported by a
broker’s preliminary estimate. (Mot. for Relief from Judgment at 4). We decline to adopt the
Beauchesnes’ reasoning. The Supreme Court’s characterization of our comments at the merits
hearing is not the type of “extraordinary circumstance” that warrants relief under Rule 60(b)(6).
        Rule 60(b)(6) “may not be used to relieve a party from free, calculated, and deliberate
choices” and does not give the Beauchesnes an avenue to relitigate issues fully decided in prior
proceedings. Sandgate School Dist., 2005 VT 88, ¶ 7 (quotation omitted). It was the
Beauchesnes prerogative to rely on this argument despite precedent establishing that “where
there are inconsistencies between oral and written findings, the written findings must prevail.”
Hanson-Metayer V. Hanson-Metayer, 2013 VT 29, ¶ 46, 193 Vt. 490, 507. Furthermore, the
decisions of the former Environmental Board, this Court, and the Vermont Supreme Court
establish that the Club’s operations are lawful. The fact that the Club will continue to operate is
therefore not grounds for relief from judgment under Rule 60(b).
      For this reason, we DENY their Rule 60(b)(6) and 60(b)(5) motions for relief from the
October 4, 2012 judgment.

Electronically signed on April 17, 2015 at Newfane, Vermont, pursuant to V.R.E.F. 7(d).



________________________________
Thomas S. Durkin, Judge
Environmental Division

Notifications:
Rodney E. McPhee (ERN 3612), Attorney for Appellant Hale Mountain Fish & Game Club
Robert E. Woolmington (ERN 3047), Attorney for Appellee Town of Shaftsbury
Herbert G. Ogden (ERN 1827), Attorney for Interested Persons Owen and Katherine Beauchesne
James P.W. Goss, as Co-counsel for Appellant Hale Mountain Fish & Game Club
cstanton
