Wild v. Brooks

Wild v. Brooks (2003-077); 177 Vt. 171; 862 A.2d 225

2004 VT 74

[Filed 13-Aug-2004]
[Motion for Reargument Denied 07-Sep-2004]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2004 VT 74

                                No. 2003-077


  George Wild, Jr.	                         Supreme Court

                                                 On Appeal from
       v.	                                 Orange Superior Court


  David Brooks, et al.	                         March Term, 2004


  Amy M. Davenport, J.

  David L. Grayck of Cheney, Brock & Saudek, P.C., Montpelier, for
    Plaintiff-Appellant.

  Stephen J. Craddock, Berlin, for Defendants-Appellees.


  PRESENT:  Amestoy, C.J., Dooley, Johnson, Skoglund and Reiber, JJ.

        
       ¶  1.  JOHNSON, J.   Plaintiff George Wild initiated this action to
  permanently enjoin the operation of a commercial shooting range that
  borders his property.  The superior court dismissed Wild's suit after
  trial, concluding that, at the time of the trial, the terms of the range's
  Act 250 permit prohibited operations for a period of up to ten years,
  therefore an injunction could not issue because there was no activity to
  enjoin and would not likely be any in the foreseeable future. 
  Alternatively, it ruled that 10 V.S.A. § 5227(b) immunized defendants from
  suits seeking injunctions related to nuisance noise.  On appeal, Wild
  claims that (1) recent revisions to the range's Act 250 permit, which
  allowed the range to re-open as of this spring, rendered the superior
  court's opinion advisory; and (2) the grant of statutory immunity under 10
  V.S.A. § 5227, if valid, effects an unconstitutional taking by depriving
  Wild of a remedy for the claimed nuisance.  We affirm the trial court's
  decision in so far as it was based on the equitable principles governing
  injunctions and justiciability in nuisance suits, and therefore do not
  reach Wild's statutory and constitutional arguments.  


       ¶  2.  The Bull's Eye Sporting Center abuts the land where Wild lives
  and works.  The Bull's Eye is a commercial shooting range permitted under
  Act 250, Vermont's land use law.  The range is approximately one half mile
  from Wild's home.  During its previous seasons of operation which ran from
  April 15 to November 15, Wild could hear shooting from the range at various
  points on his property including his home.    

       ¶  3.  For several years, Wild and his neighbors objected to the
  shooting range  and have appealed Bull's Eye's Act 250 land use permits
  before the District Environmental Commission (DEC) and Environmental Board. 
  The neighbors' efforts succeeded when, on June 23, 2000, the Environmental
  Board found that Bull's Eye's operators, the Brookses, violated their
  permit by logging trees that formed part of the vegetative sound buffer
  between the range and Wild's property.  The Environmental Board revoked
  Bull's Eye's permit, but stated that the Brookses should be given an
  opportunity to cure the violation.  The decision allowed the range to
  operate on an interim basis until the DEC issued a new permit that
  contained conditions addressing the Brookses' violation and effectuating a
  proposed cure.   

       ¶  4.  On May 29, 2001, Wild and some of his neighbors filed a
  complaint in Orange County Superior Court alleging, among other things,
  that the noise from the shooting range created a private nuisance. (FN1)  
  Plaintiffs sought to permanently enjoin the range's operation.          
   
       ¶  5.  Meanwhile, the Brookses applied to the DEC for an amended
  permit.  Wild opposed the application before the DEC.  On July 5, 2001, the
  DEC issued an amended permit.  Condition 6 of the permit stated that "[t]he
  'no shooting zone' for firearms at this range shall include the entire
  tract until such time as either sufficient tree growth has occurred to
  restore basal areas in existence prior to the logging performed in
  1996-1998 or a ten year period has elapsed."  This condition effectively
  halted all firearm shooting at the range for an indefinite period of time
  not to exceed ten years.  In August 2001, the Brookses appealed the DEC's
  decision, and Wild cross-appealed.   


       ¶  6.  While the appeal to the Environmental Board was pending, the
  superior court held a trial in Wild's nuisance suit on July 17, 2002.  At
  the close of Wild's case, defendants moved for a judgment as a matter of
  law.  The court granted defendants' motion and dismissed Wild's case,
  ruling that the extraordinary remedy of injunction was inappropriate
  because, under general equitable principles, Wild's right to relief was not
  clear.  By stipulation of the parties, the court had taken judicial notice
  of the ongoing Act 250 proceedings that affected range operations.  In the
  court's view, the fact that the Act 250 process had already suspended range
  operations for an indefinite period that could last as long as ten years
  precluded the need for an injunction.  The Court also ruled that Wild's
  nuisance suit was barred by 10 V.S.A. § 5227(b).  The statute, which was
  amended in June 2001 after Wild filed his complaint in the trial court,
  provides that 

    The owner or operator of a sport shooting range . . . who is in
    substantial compliance with any noise use condition of any issued
    municipal or state land use permit otherwise required by law shall
    not be subject to any civil liability for damages or any
    injunctive relief resulting from noise or noise pollution,
    notwithstanding any provision of law to the contrary.

  10 V.S.A. § 5227(b).  The court also dismissed Wild's claim for money
  damages because it found that the evidence did not support Wild's damages
  claim. 

       ¶  7.  Pursuant to V.R.C.P. 52(a), plaintiffs filed a request for
  findings of fact, and on August 5, 2002, Wild filed a motion to reconsider
  the ruling on damages, or in the alternative, to reopen the evidence.  In
  its findings of fact and conclusions of law, filed on January 22, 2003, the
  court noted the undisputed fact that the range was not in operation at that
  time and that the range's land use permit prohibited commercial shooting
  for "a period of ten years or such time as is necessary for sufficient tree
  growth to occur 'to restore order basal areas in existence prior to the
  logging performed in 1996-1998.' "  Based on this finding, the court
  concluded that, although both Wild and the Brookses had appealed the permit
  decision, injunctive relief was not available for the same reasons it cited
  in its earlier ruling: the Act 250 ten-year ban and statutory immunity.
  Despite its reliance on the statute as an independent ground for dismissal,
  the court declined to address Wild's argument that, by denying Wild access
  to injunctive relief and monetary damages, the statute effected an
  unconstitutional taking.  The court reasoned that "Plaintiffs' claims fail
  for reasons separate and apart from the immunity provided under the
  statute," because, at the time, the Act 250 process had abated the nuisance
  for the foreseeable future.

       ¶  8.  Wild appealed the court's ruling.  While the case was on
  appeal, subsequent developments in the Act 250 appeals process resulted in
  a ruling that allowed defendants to reopen the shooting range by April
  2004, (FN2) subject to revised hours of operation and several other noise
  mitigation conditions.  Wild argues that this change in the pre-decision
  status quo subsequently rendered the trial court's opinion advisory.  Wild
  also renews his claim that, in the context of this case, 10 V.S.A. §
  5227(b) effected an unconstitutional taking of his property.
          
       ¶  9.  We affirm the trial court's decision to the extent that it
  relied on equitable principles militating against the issuance of an
  injunction to prohibit alleged nuisance activity that was already halted
  indefinitely by a collateral legal process.  In essence, the trial court
  determined that the case was mooted by the involuntary and indefinite
  cessation of range activities.  The fact that the range was permitted to
  reopen after the court had entered final judgment does not invalidate a
  decision that was correct when it was entered.  To the contrary, the court
  avoided issuing an advisory opinion because the trial court could not have
  predicted the results of the Act 250 process and the noise-related changes
  in range operations that it would effect.  Under such circumstances, a
  determination in the fact-sensitive nuisance context would have been
  inappropriate.  Our holding with respect to mootness and justiciability
  precludes our application of the statute. We reserve judgment on its
  constitutionality until such time as the issue is squarely presented in the
  context of a live controversy.
       
       ¶  10.  An injunction is an extraordinary remedy that will not be
  routinely granted unless the right to relief is clear.  Comm. to Save
  Bishop's House v. Med. Ctr. Hosp. of Vt., 136 Vt. 213, 218, 388 A.2d 827,
  830 (1978).  Injunctions are designed to deter injurious conduct; thus
  relief will not be granted if the conduct has been discontinued, i.e., if
  the case is moot.  11A C. Wright, A. Miller & M. Kane, Federal Practice and
  Procedure: Civil § 2942, at 47-48 (2d ed. 1995) (citing cases).  Because
  the court's inquiry in the nuisance context is heavily fact-bound, courts
  must be cautious about issuing injunctions where changes in the
  circumstances giving rise to the alleged nuisance are likely to occur.  See
  Trickett v. Ochs, 2003 VT 91 ¶ 37, 838 A.2d 66 ("In determining whether a
  land use of a lawful business constitutes a nuisance, courts must consider
  both the extent of the interference and the reasonableness of the
  challenged activities in light of the particular circumstances of the
  case.") (internal quotation marks and citations omitted); Winget v.
  Winn?Dixie Stores, Inc., 130 S.E.2d 363, 367 (S.C. 1963) ("Whether a
  particular use of property is reasonable and whether such use constitutes a
  nuisance depends largely upon the facts and no definite rule can be laid
  down for the determination of the question.").  

       ¶  11.  The court properly exercised equitable restraint by refusing
  to enjoin the alleged nuisance at a time when the source of the nuisance
  had been abated by the Act 250 process for the foreseeable future.  Though
  the range was operating as an alleged nuisance when Wild filed his
  complaint in May 2001, under the terms of Bull's Eye's Act 250 amended
  permit issued in July 2001, commercial shooting was prohibited on the
  Brookses' entire tract.  Accordingly, no shooting was occurring in July
  2002 when the court heard Wild's case and decided the Brookses' motion. 
  The permit still prohibited shooting for an indefinite period of up to ten
  years at the time the trial court issued its conclusions of law and
  findings of fact in January 2003.  From the trial court's perspective, Wild
  had an adequate remedy at law that had mooted his equitable cause of
  action.  We agree with its conclusion because Wild's case no longer
  presented a live controversy at the time of trial and decision; he had no
  clear need for the relief he sought.  See In re S.H., 141 Vt. 278, 280, 448 A.2d 148, 149 (1982) (case becomes moot when issues presented are no longer
  live); see also Winton v. Johnson & Dix Fuel Corp., 147 Vt. 236, 239, 515 A.2d 371, 373 (1986) (parties' must have a stake in the litigation at all
  phases, not merely at time when complaint is filed).
   
       ¶  12.  After the trial court rendered its decision, the facts
  changed significantly.  As it turned out, the Environmental Board rejected
  the tract-wide ten year ban, but did impose additional conditions aimed at
  mitigating the noise.  Approximately eleven months after the trial court's
  decision, Bull's Eye had a new permit authorizing shooting as early as
  April 2004.  These subsequent developments did not undermine the trial
  court's decision to dismiss the case as moot.  If we were to assume,
  without deciding, that the shooting range's previous operated operation
  created a nuisance, that would not necessarily lead to the conclusion that
  the operation would still create a nuisance after it reopened under the new
  conditions required to cure the noise-related permit violation that
  initially precipitated the shut-down.  See Schlotfelt v. Vinton Farmers'
  Supply Co.,109 N.W.2d 695, 698 (Iowa 1961) (fair test as to whether
  operation of lawful business constitutes nuisance is reasonableness of
  conducting business in manner, at place, and under circumstances in
  question).  The new noise-related conditions imposed by the Environmental
  Board in April 2003 include: reduced hours of operation, no-shooting days,
  the elimination of two shooting stations, the requirement that range
  shooters use different type of ammunition that should decrease the noise,
  and the imposition of a perpetual no-shooting buffer zone abutting Wild's
  property.  PC 252 These are all important factors that could affect the
  nuisance determination.  

       ¶  13.  The imposition of these changed conditions, after the trial
  court had rendered its decision, prevents Wild's case from falling within
  the mootness exception for cases that are capable of repetition but evade
  review.  See In re P.S., 167 Vt. 63, 67, 702 A.2d 98, 101 (1997).  We will
  apply this exception " only if '(1) the challenged action was in its
  duration too short to be fully litigated prior to its cessation or
  expiration, and (2) there was a reasonable expectation that the same
  complaining party would be subjected to the same action again.' "  Id. at
  67-68, 702 A.2d  at 101 (quoting Weinstein v. Bradford, 423 U.S. 147, 149
  (1975)).  Wild did not present evidence that the final resolution of the
  Act 250 process would have timely restored Bull's Eye's operations under
  the same or substantially similar conditions that Wild's suit complained
  against. (FN3)  Moreover, the new noise mitigation conditions Bull's Eye
  must satisfy prior to resuming operations are sufficiently different from
  those prevailing prior to the shutdown such that we will not consider the
  resumed operations to be the "same action" for purposes of this exception.   
   
       ¶  14.  At the time the trial court ruled, the imposition of these
  conditions was almost four months away, and the implementation of these
  conditions was more than a year away - although neither party knew this at
  the time.  Moreover, Wild's evidence at trial pertained to the conditions
  prevailing at the range prior to the shutdown.  For example, Wild relied on
  acoustical testing of the range noise audible on his property.  This
  testing occurred after the Brookses had logged the vegetative sound buffer,
  but before the Act 250 process had imposed the conditions designed to
  mitigate the effects of this noise-amplifying permit violation.  The trial
  court was in no position to judge whether the resumed operation of the
  range under new conditions would create a nuisance when it had neither
  evidence of what those new conditions would be, nor evidence of how those
  new conditions affected sound frequency and levels on Wild's property.  The
  court's opinion would have been advisory if under these circumstances it
  had applied the nuisance criteria and issued an injunction based on range
  operations that were no longer extant.  See  In re Bennington School, Inc.,
  2004 VT 6 ¶ 19, 845 A.2d 332 (judicial power, as conferred by Vermont
  Constitution, is limited to the determination of "actual controversies
  arising between adverse litigants"); see also Parker v. Town of Milton, 169
  Vt. 74, 77, 726 A.2d 477, 480 (1998) ("The existence of an actual
  controversy turns on whether the plaintiff is suffering the threat of
  actual injury to a protected legal interest, or is merely speculating about
  the impact of some generalized grievance.") (internal citations omitted). 
  Contrary to Wild's suggestion, an opinion that was based on the facts as
  they existed at the time of decision does not become advisory merely
  because those facts changed after the opinion is issued.
   
       ¶  15.  Wild seeks to rebut the mootness conclusion by arguing that
  he retained a cognizable interest in the outcome of the litigation
  throughout its entirety because the court knew or should have known that
  the cessation in range activities was temporary, and that once activities
  resumed he would still be subjected to the alleged nuisance .  Wild relies
  on State v. Preseault, 163 Vt. 38, 42?43, 652 A.2d 1001, 1003-04 (1994). 
  In Preseault, the State filed a trespass action against abutters who
  claimed interest in a railroad right-of-way owned by the State, and who had
  excavated soil from the right-of-way without the State's permission.  The
  State sought and won a permanent injunction against the abutters'
  continuing trespass.  On appeal, the abutters argued that the trial court's
  opinion with respect to the trespass injunction was advisory because the
  trespass issue was moot when decided.  Abutters argued that an injunction
  was not necessary because the trespass occurred only once and there was no
  indication that abutters had engaged in further conduct.  In deciding that
  the case still presented a live and justiciable controversy, we concluded
  that abutters "continue[d] to vigorously defend their asserted right to
  engage in excavation or other similar activities in the future," and thus
  had a real stake in the litigation.  Id. at 42, 652 A.2d  at 1004.  We also
  rested our affirmance of the injunction on the fact that abutters' refusal
  to give up their claim to the property created the threat of a continuing
  trespass sufficient to entitle the State to a permanent injunction.  Id. at
  42-43, 652 A.2d  at 1004.  By analogy, Wild asserts that defendants'
  unrelenting pursuit of an Act 250 appeal created a continuing threat that
  the nuisance would return, and that this threat was of a definite character
  sufficient to assure the court that, under Preseault, injunctive relief was
  appropriate and necessary.  We disagree.  The threat that the nuisance
  would return was too remote at the time of trial to warrant the imposition
  of a permanent injunction.

       ¶  16.  Here, the prohibitions in defendants' Act 250 permit presented
  a formidable barrier to the re-opening of the shooting range.  Unless and
  until the Brookses secured a reversal of the DEC's permit condition banning
  shooting on the entire tract for a period up to ten years, the range could
  not operate.  By contrast nothing other than the injunction sought would
  have prevented the abutters in Preseault from resuming the threatened
  trespass at any time.  The United States Supreme Court has warned against a
  party's "efforts to defeat injunctive relief by protestations of repentance
  and reform, especially when abandonment seems timed to anticipate suit, and
  there is probability of resumption."  United States v. Oregon State Medical
  Society, 343 U.S. 326, 333 (1952).  In contrast to Preseault, defendants
  here did not maintain any pretext of abandonment.  Instead, they conceded
  their intention to re-open the range if and when they could secure
  appropriate revisions to their Act 250 permit.  The court knew of their
  intentions because it had taken judicial notice of the Act 250 proceedings
  that had occurred to date and of the fact that both parties were appealing
  to the Environmental Board.  But while defendants' intentions may have been
  clear, the ultimate result of the Act 250 process, and thus the need for an
  injunction, was not.   
   
       ¶  17.  As we stated supra at ¶ 12, the considerations that inform
  the nuisance determination here are distinct from those involved in
  enjoining a continuing trespass such as occurred in Preseault.  Trespass
  involves the unprivileged entry on to the land in possession of another. 
  Harris v. Carbonneau, 165 Vt. 433, 437, 685 A.2d 296, 299 (1996).  By
  definition, trespass involves conduct that the trespasser has no right to
  engage in; thus when courts enjoin a continuing trespass no infringement of
  legal rights occurs.  Here, the alleged nuisance arises from the Brookses'
  lawful operation of a permitted shooting range that is the source of their
  livelihood.  Putting aside the question of statutory immunity, a court may
  properly enjoin a legally operated business if it finds that its operation
  creates a substantial and unreasonable interference with another's lawful
  use and enjoyment of her property, i.e., a nuisance.  But as we have
  explained, this is a multi-factored analysis that should not be conducted
  when the facts bearing on the analysis are not known.  In light of the fact
  that nuisance cases implicate rights of the defendant as well as those of
  the plaintiff we will not extend the reasoning contained in Preseault, a
  continuing trespass case, to the mootness determination in the instant
  nuisance case.  

       ¶  18.  If anything, instead of rendering the court's ruling advisory,
  the subsequent Act 250 proceedings that restored Bull's Eye to operation
  gave rise to a new cause of action based on the noise that would be
  generated by the range as it is required to operate under the terms of its
  new land use permit.  This cause of action had not yet ripened when the
  trial court made its final dispositive ruling in the case.   
   
       ¶  19.  In an attempt to avoid this ripeness problem, Wild suggests
  that he could file a motion in the trial court under V.R.C.P. 60(b)(2) and
  petition this Court for remand.  See Kotz v. Kotz, 134 Vt. 36, 39, 349
  A.2d. 882, 884-85 (1975) (Court may retain jurisdiction over an appeal, but
  still remand when a party seeks relief under V.R.C.P. 60(b)).  Rule 60(b)
  provides that "[o]n motion and upon such terms as are just, the court may
  relieve a party . . . from a final judgment, order, or proceedings [because
  of] . . . (2) newly discovered evidence which by due diligence could not
  have been discovered in time to move for a new trial."  Wild suggests that
  the the subsequent Environmental Board decision and Act 250 permit issued
  in December 2003 qualify as new evidence under the rule.  Wild has not,
  however, made such a motion, and the time for such a motion  passed before
  this case was scheduled for argument.  See V.R.C.P. 60(b) (the motion for
  relief because of newly discovered evidence shall be made within a
  reasonable time not to exceed a year from entry of judgment).  Wild's
  consideration of a motion on these grounds is, however, a concession that
  the results of the subsequent Act 250 proceedings significantly change the
  landscape against which the court's judgment was rendered, thus reinforcing
  the court's view that a ruling on the nuisance claim was not appropriate at
  a time when the range was legally barred from operation.

       ¶  20.  Furthermore, Wild chose to continue to trial one year after
  the range was temporarily shut down by the Act 250 process instead of
  waiting until the process played out to determine if the range's operation
  under the newly imposed conditions created a nuisance, or if the range
  would be allowed to operate at all.  As we have often stated, V.R.C.P.
  60(b) does not operate to protect a party from freely made tactical
  decisions which in retrospect may seem ill advised.  Okemo Mountain, Inc.
  v. Okemo Trailside Condos., Inc., 139 Vt. 433, 436, 431 A.2d 457, 459
  (1981).
   
       ¶  21.  In affirming the court's resolution, we recognize that the
  court applied 10 V.S.A. § 5227(b) to Wild's case, even though its own order
  recognized that the Wild's claims "fail for reasons separate and apart from
  the immunity provided under the statute."  We decline to address those
  parts of the court's decision that interpret and apply the statute to the
  instant case as such discussion was extraneous to its decision, and, in
  light of the foregoing analysis, it is to ours as well.  We will reserve
  judgment on the constitutional challenge to 10 V.S.A. § 5227(b) until such
  time as it is applied to a live and justiciable case.
  Affirmed. 




                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice



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                                  Footnotes


FN1.  The neighbors did not join in this appeal.

FN2.  The Court is unaware of the current status of the range.  The parties
  agreed at oral argument that the range could, and likely would, be reopened
  by April 2004.

FN3.  Wild also argues that his case is not moot because negative collateral
  consequences are likely to result from the action being reviewed.  See In
  re P.S., 167 Vt. 63, 67, 702 A.2d 98, 101 (1997).  We have applied this
  exception in involuntary commitment cases that were technically moot
  because the person challenging the commitment had been released by the time
  the appeal was heard.  See, e.g., State v. O'Connell  136 Vt. 43, 45, 383 A.2d 624, 625 (1978).  We review these cases because an incorrect judgment
  left unreviewed can result in social stigmatization associated with being
  labeled mentally incompetent and can create undue legal liabilities long
  after the individual is released from the state facility.  See id. at 45,
  383 A.2d  at 625; P.S., 167 Vt. at 67, 702 A.2d  at 101.  Against this
  background, it is difficult to discern how this exception could be applied
  here, and Wild's brief is of little assistance.  Accordingly, we decline to
  extend this exception to mootness issues arising from nuisance cases.