Posted by: Patricia Salkin | February 2, 2015

VT Supreme Court Holds Principles of Res Judicata Barred Landowners from Litigating Issues that were Decided in Prior Decision of Environmental Division Over Shooting Range

Neighboring landowners Owen and Katherine Beauchesne brought this appeal from a decision by town development review board approving shooting club’s application for zoning permits for improvements. The Superior Court, Environmental Division denied Hale Mountain Fish and Game Club ‘s application without prejudice to allow the club to submit a site plan application and supporting documents for review and approval by the board. Neighbors argued that the Board erred by: (1) determining that the only relevant zoning bylaw at issue is the group service uses bylaw; (2) applying issue preclusion to events occurring after the Environmental Board last took evidence in 2005 and to issues not previously decided; and (3) concluding that Hale Mountain could obtain a zoning permit without having all the necessary state permits. In its responsive brief, Hale Mountain primarily raises principles of issue and claim preclusion and mootness.

Despite these contentions, the court found that the neighbors have waived these arguments by failing to raise them before the Environmental Division in the instant proceeding and the principles of res judicata precluded them from raising the issues in light of the Environmental Division’s final judgment. Moreover, the court stated that even if neighbors had preserved their nonconforming use argument, we would agree with Hale Mountain that the argument is precluded by the Environmental Board’s findings and determination that activities have not increased at that shooting range since the 1970s. Finally, landowners did not sufficiently demonstrate that shooting club failed to comply with town bylaw requiring applicants to submit copies of all necessary state land use permits. As such, the court did not reject Hale Mountain’s application based on its alleged failure to abide by the town bylaw requiring applicants to submit copies of all necessary state permits.

In re Hale Mountain Fish and Game Club, Inc., 103 A.3d 890 (VT 6/6/2014)

The opinion can be accessed at:

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