In
Re Burchard Road Petition To Abandon Land Use Permit Denial, 2024 VT 51 (Neighbor,
a party to the original act 250 proceeding who lives in New Jersey, did not
receive notice of a request to abandon the Act 250 permit because the post
office did not deliver a “notice to interested persons” mailed by the district
commission to Neighbor’s Vermont street address. The Environmental Court issued a final judgment and later denied Neighbor relief from
judgment under Rule 60 -- as applied to Environmental Court and as affirmed by
the Supreme Court-- because relief under
Rule 60 is available only to a “party”.)
REIBER, J. . Neighbor Myrna
Nathin appeals the denial of her motion for relief from a judgment of the
Environmental Division declaring an Act 250 land-use permit for an adjoining
property to be abandoned. Neighbor argues that the Environmental Division
should have vacated the order and reopened the abandonment proceeding because
she was not provided with adequate notice of the petition to abandon the
permit. We conclude that the Environmental Division properly denied neighbor's
motion under Vermont Rule of Civil Procedure 60(b) and therefore affirm the
decision below.
Neighbor, whose property
abuts a portion of the subject property, was granted party status in the 1990
permit proceeding filed a petition with the district commission to abandon the
permit pursuant to 10 V.S.A. § 6091(b) and provided the district commission
with a list of interested persons, including neighbor. In August 2022, the
district commission declined to review the petition, reasoning the superior
court had jurisdiction over the permit. The district commission sent copies of
its decision to all interested persons and entities, including neighbor at the
address that landowners provided. Landowners appealed to the Environmental
Division and in September 2022 published public notice of the appeal in a local
newspaper. Following proceedings in which neighbor did not appear, the
Environmental Division entered a stipulated judgment and order on January 9,
2023, ruling that the permit was abandoned. No appeal was taken from that
order.
Nine months later, in October 2023, neighbor
filed a motion for relief from judgment pursuant to Vermont Rule of Civil
Procedure 60(b), asking the Environmental Division to "void" the
January 2023 order and reopen the abandonment proceeding. Neighbor, who lives
in New Jersey, asserted that she did not receive the notice mailed by the
district commission to her Vermont street address because the post office does
not deliver mail there. In January 2024, the court denied neighbor's
motion, concluding that she lacked standing to file a Rule 60(b) motion because
she was not a party. See V.R.C.P. 60(b) (stating that upon motion, "the
court may relieve a party or a party's legal representative from a final
judgment, order, or proceeding" (emphasis added)).
As a party to the original
permit proceeding, neighbor was entitled to receive notice of the abandonment
petition. Act 250
Rule 38(D Neighbor's primary argument on appeal is that because the district
commission's notice to her was ineffective, the Environmental Division was
required by this Court's decision in In
re Conway, 152 Vt. 526, 567 A.2d 1145 (1989), to vacate the January
2023 abandonment order and reopen the proceeding so that she could participate.
However, we rejected this
interpretation of Conway in In
re White, 172 Vt. 335, 339, 779 A.2d 1264, 1268 (2001). There we emphasized
that "Conway does not require the Board to void or revoke permits merely
based on the inadvertent omission of an adjoining landowner from the list
required on permit applications no matter when this oversight is
discovered." Id. at 341, 779 A.2d at 1269 Here, as in White, the
permit abandonment process had already become final when neighbor filed her
Rule 60(b) motion seeking to reopen the abandonment order. Unlike in Conway,
there is no suggestion that the lack of notice to neighbor was intentional.
Instead, the record shows that landowners provided neighbor's name and Vermont
address to the district commission, and the district commission sent notice of
its decision declining jurisdiction to that address. There is no evidence that
landowners knew the address would be ineffective. Most importantly, the
district commission did not fail to adhere to its own rules or improperly
delegate its discretion over who should receive notice. Just as Conway does not
automatically require a permit to be voided or revoked when an adjoining
landowner is inadvertently omitted from a permit application, nothing in Conway
required the Environmental Division to vacate the abandonment order here.
On its face, Rule 60(b)
allows relief from judgment only to "a party or a party's legal
representative." Consistent with this plain language, federal courts have
recognized that "the general rule is that one must either be a party or a
party's legal representative in order to have standing to bring any Rule 60(b)
motion." Kem
Mfg. Corp. v. Wilder, 817 F.2d 1517, 1520 (11th Cir. 1987) (collecting
cases). Neighbor never appeared in the Environmental Division when it
considered landowners' petition to abandon the permit. Neighbor was not a party
or the legal representative of a party to the Environmental Division
proceeding, and therefore is not entitled to seek relief under the plain
language of the rule.
Neighbor claims that the
January 2024 denial of her Rule 60(b) motion for lack of standing was contrary
to the Rules of Environmental Court Proceedings and was inappropriate given the
lack of formal notice in environmental appeals. Neighbor points to Environmental
Rule 5(a)(2), which makes the Rules of Civil Procedure apply only "so far
as applicable," and to Environmental Rule 1, which requires that the rules
"be construed and administered to ensure summary and expedited proceedings
consistent with a full and fair determination in every matter coming before the
court." V.R.E.C.P. 1, 5(a)(2). Neighbor argues that unlike other civil
cases, putative parties in Environmental Division proceedings do not receive a
summons pursuant to Vermont Rule of Civil Procedure 4. Absent
such an assurance of notice, neighbor argues, restricting Rule 60(b) to parties
undermines the requirement of providing a "full and fair determination in
every matter." V.R.E.C.P. 1. She asserts that "party status must be
broadly interpreted in cases reaching a court without a Rule 4 summons."
In short, Neighbor claims that party status for purposes of Rule 60(b) should
be broadly interpreted in environmental appeals because putative parties do not
receive notice consistent with Rule 4 in such proceedings.
Party status in Act 250
proceedings is governed by statute and is limited to a list of specific
individuals and entities. Neighbor's sweeping contention that nonparties should
be allowed to file Rule 60(b) motions in any case where putative parties are
not entitled to a Rule 4 summons would effectively allow anyone to intervene
after judgment in any environmental appeal. This would ignore important
principles of finality; create significant uncertainty over permitting
decisions, leaving them open to attack for up to a year and possibly longer
under Rule 60(b); and conflict with Act 250 and our precedent governing party
status in such cases. For these reasons, we decline to adopt neighbor's
proposed interpretation of who is a "party" for purposes of Rule
60(b) in an environmental case.
Nothing in Environmental Rule
2 or 5 modifies Civil Rule 60 in environmental proceedings or renders the rule
inapplicable to this case. The general statement in Environmental Rule 1
that "[t]he rules shall be construed and administered to ensure summary
and expedited proceedings consistent with a full and fair determination in
every matter coming before the court" does not eliminate the procedural
requirements of the Civil Rules. A denial of relief for failure to comply with
the plain terms of Rule 60(b) amounts to a "full and fair
determination" of the matter because the party has received everything
that they are entitled to under the rules. We therefore see no basis to disturb
the decision below.
Affirmed.
