Attorneys for Daniel Banyai and the town of Pawlet offered oral arguments Wednesday before the Vermont Supreme Court in an appeal of an Environmental Court decision against his unpermitted gun range.
Each attorney was allowed 15 minutes to make their case, much of which was taken up responding to questions posed by the Supreme Court justices, who peppered both attorneys with numerous questions.
The justices poked and prodded the attorneys during the online hearing, about missing documents and questions about seemingly conflicting arguments, but did not tip their hand toward either side.
After hearing from both parties, the justices concluded the hearing and will issue their decision at some point in the future.
The appeal is the latest volley in a lengthy battle between Banyai, the owner of the 30-acre Slate Ridge shooting facility located at 541 Briar Hill Road, and the town of Pawlet, which has spilled over into a neighborhood dispute.
But Wednesday’s oral arguments had nothing to do with the problems between neighbors and dealt strictly with Banyai’s problems with the town’s zoning.
In March, Environmental Court Judge Thomas Durkin issued a decision that Banyai must cease any shooting, classes or other activities on his Slate Ridge property, that he must remove all unpermitted improvements on the land and also pay $46,600 in fines.
Banyai appealed that decision and hired Middlebury attorney Cindy Ellen Hill to represent him. The town of Pawlet is represented by Manchester attorney Merrill Bent.
During Hill’s oral argument, she said Banyai was granted a permit only to have it rescinded later and then denied when he tried to again obtain it.
Justice John Dooley questioned Hill as to whether the appeal would cover whether any of the many structures on the property were legal.
Hill said there is no evidence on the record of what structures were present beyond those for which permits were sought.
“There is no evidence in this record of what structures were referenced, there was no evidence presented by the town that there were structures beyond those considered in the permits,” Hill said. “There is no evidence in the record that there are any structures, beyond that.”
Associate Justice Harold E. Eaton Jr. asked about the definition of “school” as it pertains to allowable activities under a town of Pawlet zoning permit.
“Is this a school in general, is it a school that the Department of Education has approved of?" Eaton asked. “Can we switch from a shooting school to one for practice landing of aircraft, and just by calling it a school, does that mean it's within the permit?”
Hill told the justices that Pawlet zoning allows outdoor recreation as a permitted activity and noncommercial shooting ranges and gun clubs are considered outdoor recreational uses, requiring only a zoning administrator-issued permit.
Hill did not address whether Banyai was running a commercial enterprise, despite advertising classes and training activities; he maintained that it was not a business.
Eaton asked Hill if the mere designation of the activity as “educational” qualified it as a school.
“Does that mean that so long as there's an educational purpose to what's going on on the land, ... there's no need to get an additional permit?” Eaton asked. “There's nothing in the bylaws that I can see that defines what a school is, and you only need to get a permit for a permitted use. Doesn’t that mean virtually anything, as long as there's an educational component, could be considered a school?”
Bent told the justices that Banyai had every chance to follow the law and zoning ordinances to permit his development legally.
“The law of this state, and therefore the path, the proceedings have followed in these various proceedings afford Mr. Banyai, every opportunity to present his case, to raise defenses and to show that his project is consistent with Pawlet’s zoning bylaws and state law,” Bent said.
But Dooley stopped her and asked if it wasn’t true that the town had originally supported the permit and then reversed itself 180 degrees.
Bent said, no, the town declared Banyai’s appeal of a permit denial in 2018 as untimely.
But then the town responded to an Environmental Court ruling that ordered the town to consider it as a request for a variance, and the town then held a hearing on that request.
“So the town didn't change its position, the town merely follow the mandate of the environmental division,” Bent said.
Much of Bent’s testimony centered on clarifying the confusion that has reigned over the past two-plus years in the case.
Justice Eaton asked Bent what Banyai was to do if he had been told to take a certain course of action by a town official.
“The zoning administrator invites Mr. Banyai to submit a zoning permit application within the timeframe specified in the notice of violation, and Mr. Banyai did that,” Eaton said. “And in response to doing that. He received a permit from the zoning administrator. What is Mr. Banyai supposed to do if following the instructions of the zoning administrator is insufficient?”
Bent said that the zoning administrator of the time, Eric Mach, didn’t have the right to issue the permit, and Banyai should have known that.
“The zoning administrator at that time either did not understand the process, or that the pending appeal that was pending at the time deprived him of the jurisdiction of taking that action,” Bent said. “Mr. Banyai was aware that the DRB decision was vacated, and there were several instances in which the court advised Mr. Banyai that the zoning administrator did not have jurisdiction, and the town issued a letter rescinding that earlier permit.”