A spat between the Town of Colchester and the owner of a now-shuttered fireworks store went before the Vt. Supreme Court last week, with justices listening to arguments over whether the town legally barred the store from selling within its boundaries.
Matthew Lavigne, owner of Green Mountain Fireworks (GMF), sued the town in June 2018 after Colchester police cited his wife, the store’s operator, for illegally selling fireworks—forcing the store to temporarily close. Lavigne said at the time he believed his initial zoning permit secured upon moving his storefront from Milton to Colchester had covered his ability to sell the fireworks, but town officials have said that Lavigne needed an additional municipal permit, one that the selectboard denied him last year.
“It is a privilege, not a right,” town attorney Brian Monaghan argued last week.
Lavigne had filed a civil case requesting a preliminary injunction for the July 4 holiday in 2018, but a superior court judge rejected the request, saying that allowing the store to continue operating would put members of the public “at an unreasonable risk of injury and harm.” And this March, the superior court granted the town’s motions to dismiss both cases.
Lavigne told the Independent at the time that if he wasn’t granted relief, GMF would go bankrupt. He followed up the dismissal with two appeals, which were consolidated into the appeal now before the Supreme Court.
Lawyers for Lavigne and the town detailed their arguments in court filings, and each was given 15 minutes to lay out their case again during the Oct. 25 hearing at Milton High School.
Lavigne’s lawyer, John L. Franco, argued that the initial zoning permit his client secured prior to to Colchester — in addition to his license from the Bureau of Alcohol, Tobacco, Firearms, and Explosives — should have covered his ability to sell fireworks.
He went on to argue that the state’s fireworks statute does not provide a standard under which a municipal permit to sell would be granted and held, and so the selectboard did not have the power to reject his municipal permit, which he applied for following a dispute with the police at the selectboard’s suggestion.
According to the state statute, jurisdiction falls to the selectboard only in the case of a municipality with no fire department—Colchester currently has two.
“There wasn’t any agreement at all about a standard going in,” said Franco. He called the selectboard’s decision prejudiced against his client, describing it as improvised and borrowed from other statutes due to the unclear language in state law.
The Town, meanwhile, argued that Lavigne required a municipal permit in addition to his zoning permit in order to sell fireworks, and that the permit for occupancy that he secured does not cover retail.
Monaghan, representing the town, said there is “no fundamental right to sell fireworks,” under the Fourteenth Amendment, and wrote in court filings that the sale of fireworks is prohibited in Vermont “without an express authorization from the subject municipality.”
The selectboard denied Lavigne’s municipal permit in the interest of public safety, Monaghan said. He described GMF’s location as a heavily-residential, wooded area, adjacent to schools and public infrastructure.
When asked if that was the sole basis of the town’s denial, Monaghan said the statute should be reviewed on a “broad public safety basis,” and fashioned to “fit a particular situation.”
“The selectboard did the very best it could. Unfortunately, that’s all this board can do at this point,” he said. “I don’t think the statute is so unclear that we have to throw up our hands and not do anything.”
“It would’ve been nice if they had modernized the statute for our purposes,” he added. “But we’re only in a position to quarrel with the issues in its jurisdiction and authority.”
Monaghan called upon the Justices to affirm the trial court’s decision, claiming that the “default rule” in Vermont is that “fireworks are not legal.” Franco, the store owner’s attorney, said such a decision would throw the entire retail fireworks industry “into disarray.”
The court did not say when it expects to issue its written ruling.