Posted by: Patricia Salkin | February 28, 2021

A Second Amendment Showdown in Vermont Centers around Land Use and Zoning

This post was authored by Georgia Reid of Touro Law Center

Town residents and gun rights advocates are battling in court over the use of 30 acres of land in the town of Pawlet, Vermont.  The land was being used as a tactical shooting training facility called Slate Ridge.  According to Slate Ridge’s Facebook page, it is  an “Educational Consultant” that provides “solutions for a dynamic threat environment.”  What started as a zoning dispute over the area between Slate Ridge’s owner, Daniel Banyai (“Banyai”), and surrounding neighbors escalated into the town filing for an injunction on January 4, 2021.

The Town of Pawlet (“Town”) asked the Vermont Superior Court (the “Court”) to issue a preliminary injunction, barring Banyai from using his property as a school or firearms training facility until he applies for and receives the necessary municipal land use permits for such purposes. (source: Entry regarding Motion for Preliminary Injunction).  Banyai did not file a specific objection to the motion, but he made claims that could be read as challenges. 

Previously, Banyai received a notice of alleged zoning violation (“NOV”) which he did not timely appeal.  Since he did not file, the Court found that Banyai relinquished his right to challenge factual and legal representations in the NOV.  The Court assessed the NOV to determine whether the conceded facts warranted the granting of the requested preliminary injunction filed by the Town.

The primary allegations of the Town’s complaint in the NOV were that Banyai and his agents had erected buildings on the property without receiving the necessary zoning permits.  The buildings were being used as a “school or other uses.”  Banyai had not received prior approval for the buildings or their uses. 

At a merits hearing conducted on December 16, 2020, Banyai and his Attorney offered testimony and other evidence.  The merits decision is forthcoming and will come under advisement once the parties file reply briefs.  The deadline to do so was February 1, 2021. 

At the merits hearing, Banyai challenged the Town and its agents’ actions but did not contest the primary allegations in the Town’s complaint.  The Court found that Banyai also did not present credible evidence to contest the Town’s presentations that his operation of a tactical shooting facility, with one or more shooting ranges, had been the source of abutting neighbors’ concerns. Further, Banyai did not specifically contest the Town’s assertion that his use of the unpermitted buildings continued unabated through the date of the trial. Finally, Banyai made no effort to apply for or obtain the municipal land use permits necessary to authorize his buildings, other than the garage/apartment building previously approved.  In a New York Times article, Banyai said he prefers to ask for forgiveness rather than permission.  (https://www.nytimes.com/2021/02/23/us/vermont-gun-range-pawlet-zoning.html?smid=url-share).

As for the injunction, The Court wrote that an injunction “is generally regarded as an extraordinary remedy and [should] not be granted routinely unless the right to relief is clear.” Committee to Save the Bishop’s House v. Medical Center Hospital of Vermont, Inc., 136 Vt. 213, 218 (1978), (citing 11 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2942, at 368 (1973)). The Court had a 4-factor test on whether to grant an injunction: (1) the threat of irreparable harm to the movant; (2) the potential harm to the other parties; (3) the likelihood of success on the merits; and (4) the public interest.

Since Banyai did not get the applicable permits for his shooting range and developed the land before any necessary review under land-use regulations, the Court found that this left town officials and citizens with a complete lack of notice.  For this reason, the Court found that factor (4)  – public interest – was satisfied.  Since the activities on the shooting range affected neighbors, factor (2)  – the potential to harm other parties – was also satisfied.  As for factor (3),  the Court noted that it was currently undergoing deliberation of a merits decision, and therefore the Court gave that neutral weight in the analysis.  And for factor (1), the Court wrote, “It is difficult . . . to imagine an alleged zoning violation that could be the source of more significant irreparable harm than an unpermitted shooting range.”  For these reasons, the Court granted the Town’s request for the preliminary injunction.

Pawlet v Banyai, Docket No. 105-9-19 Vtec (VT Sup. Court 1/21/2021)

UPDATE: In a final ruling on March 5, 2021, Judge Durkin ruled that the notice of violation is still valid, and Banyai owes the town $100 for each of the 466 days since he was served. He must also hire a Vermont-licensed surveyor or engineer to complete a detailed site plan of his property, then deconstruct the buildings there. The court also continued the conditions of the injunction that was issued in January.

See, https://www.vermontjudiciary.org/sites/default/files/documents/Town%20of%20Pawlet%20v%20Daniel%20Banyai%20105-9-19%20Vtec%20M%20Prelim%20Injunction.pdf


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