SCOVT reverses order dismissing zoning appeal as untimely, and remands to decide whether the exception under V.R.A.P. 4(c) applies because party did not receive notice of judgment.

In re Mahar, 2018 VT 20 [filed 2/15/2018]

EATON, J. Neighbors appeal the Environmental Division’s order dismissing as untimely their appeal to that court from a decision of the Town of Jericho Development Review Board (DRB) granting a conditional use permit.  Neighbors argue that the appeal was timely because they did not receive proper notice of either the hearing before the DRB or the resulting DRB decision. We conclude that at least some neighbors adequately raised a sufficient basis to reopen the appeal period and timely filed an appeal. Therefore, we reverse the dismissal and remand to the Environmental Division for resolution of the motion to reopen the appeal period and, if grounds are found, an adjudication on the merits of neighbors’ appeal.

Appeals to the Environmental Division from an act or decision of “an appropriate municipal panel pursuant to 24 V.S.A. §§ 4471, 4472” must be filed “within 30 days of the date of the act, decision, or jurisdictional opinion appealed from, unless the court extends the time.” V.R.E.C.P. 5(a)(1), (b)(1). The Environmental Division held that the appeal period does not begin to run until the individual seeking to appeal had constructive or actual notice of the municipal panel’s decision. This is not the correct legal standard. The appeal period is a single time period; it does not differ for each prospective appellant. The statute states that the appeal period is triggered by the date of the decision, not the date of notice. See V.R.C.P. 77(d) (explaining that lack of notice by clerk “does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal”)

To ensure fairness, the procedural rules provide avenues to extend or reopen the appeal period for various reasons, including when individuals do not receive proper notice of the judgment they seek to appeal. Relevant to this case, under Vermont Rule of Appellate Procedure 4(c), the time for filing a notice of appeal can be reopened if:

            (1) the motion is filed within ninety days of entry of judgment or seven days of receipt of notice of judgment, whichever is earlier;

           (2) the court finds that a party entitled to notice did not receive it; and

           (3) no party would be prejudiced.

See V.R.E.C.P. 5(a)(2) (stating that appellate rules apply in appeals to Environmental Division). To reopen an appeal period under Appellate Rule 4(c), a litigant should make a motion with notice to all parties so that the court and the parties are aware of the basis on which the litigant seeks to appeal.

The undisputed facts establish that Harritt and Butler met the first two requirements of  Rule (c). The undisputed facts are insufficient to determine the final requirement—a demonstration that there is no prejudice to another party.

Prejudice to another party “‘means some adverse consequence other than the cost of having to oppose the appeal and encounter the risk of reversal, consequences that are present in every appeal.’”. On remand, the Environmental Division must evaluate whether Rule 4(c)(3) was met.

We note that the trial court has discretion to deny a motion to reopen even where all of the requisite criteria are met. See V.R.A.P. 4(c) (stating that “court may, upon motion, reopen the time to file an appeal”)