198 A.3d 541
Vt.2018Background
- The Laberge family has operated a shooting range on ten acres of their 287-acre farm since the 1950s; they never charged mandatory fees, but accepted occasional voluntary donations and in-kind repairs.
- A 1995 jurisdictional opinion (1995 JO) concluded the range was not a commercial-purpose development under Act 250 because use was by permission and no payment was charged.
- By 2012–2016 the range had added small berms and repaired benches; various law‑enforcement and university teams trained there and donations increased (over $47,000 from May 2014–Nov 2016).
- In 2016 the District Commission and NRB issued a jurisdictional opinion (2016 JO) finding the range now operated for a "commercial purpose" because of regular donations, potentially triggering Act 250 jurisdiction.
- Laberge filed a late appeal to the Environmental Division; the court allowed the untimely appeal for excusable neglect and, after an abbreviated trial, held the range was not operating for a commercial purpose because Laberge did not rely on donations to provide access.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of Laberge's appeal / excusable neglect | Neighborhood Group: appeal was untimely; court should strike it. | Laberge: erroneous advice from prior counsel and District Coordinator created excusable neglect; late motion timely filed. | Court: affirmed exercise of discretion; excusable neglect found based on counsel and Coordinator guidance and ambiguous language in altered decision. |
| Whether the range operates for a "commercial purpose" under Act 250 Rule 2(C)(4) | Neighborhood Group: acceptance of donations and multi‑party/public use establishes a de facto exchange and thus a commercial purpose. | Laberge: never charged fees and does not rely on donations to provide access; no de facto exchange because donations are not necessary to operate. | Court: no commercial purpose — donations were not essential; de facto exchange requires reliance on contributions for provision of services. |
| Preclusive effect of the 1995 Jurisdictional Opinion | Neighborhood Group: 1995 JO is outdated and should not control; current facts show change in use. | Laberge: 1995 JO supports nonjurisdictional status and was relied upon historically. | Court: did not reach preclusion question because it concluded no commercial purpose presently; 1995 JO unnecessary to decide. |
Key Cases Cited
- In re Baptist Fellowship of Randolph, Inc., 144 Vt. 636 (Vt. 1984) (voluntary contributions can constitute a de facto exchange for services under Act 250)
- In re Spring Brook Farm Found., Inc., 164 Vt. 282 (Vt. 1995) (third‑party donations may satisfy the commercial‑purpose exchange element; focus on provision of facilities in exchange for something of value)
- Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380 (U.S. 1993) (factors for excusable neglect)
- State v. Felix, 153 Vt. 170 (Vt. 1989) (standard that excusable neglect is strict; appellate discretion review)