STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
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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.) }
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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.
1
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
2
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.
3
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”).
4
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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Chittenden County Fish & Game Club, Inc.
Combined Opinion