SCOVT affirms summary judgment to applicant though neighbor did not receive notice of the permit. Limits on existing remedies for lack of notice cannot be evaded by issuing a second notice.

In re Mathez Act 250 LU Permit, 2018 VT 55 [5/25/2018]

 REIBER, C.J. Sung-Hee Chung (neighbor) appeals the Environmental Division’s grant of summary judgment to Lori and Richard Mathez (applicants). The appeal concerns whether the District Commission exceeded its authority by issuing a second notice for a final Act 250 permit when, due to applicants’ failure, neighbor did not receive notice of the permit before it became final, and neighbor failed to timely appeal.  Tthe court granted summary judgment in favor of applicants and ordered the District Commission to vacate its decision to issue a second notice of the permit. . We affirm.

The issue is whether the Commission has the authority to issue a second notice of a permit after it has become final and which no one challenged or appealed. Without deciding whether a District Commission ever at any time has authority to issue a second notice of a permit, we conclude that the Commission did not have that authority here.

The Commission  does no have open-ended authority to change a permit or an aggrieved party unlimited opportunity to appeal.

Rule 31, which grants the Commission authority to alter a permit, authorizes the Commission to act on its own motion only within thirty days of when the permit issued, and only with respect to “manifest error, mistakes, and typographical errors and omissions.” Act 250 Rules, Rule 31(A)(4).

As for an appeal, an aggrieved person must file a notice of appeal within thirty days of when the permit issued. V.R.A.P. 4(a)(1). Otherwise, the person cannot appeal unless the court grants an extension of time to appeal, V.R.A.P. 4(d), or the court reopens the time to appeal, V.R.A.P. 4(c).

 An extension of time must be requested within thirty days of the initial period of appeal,  and the appellant must show “excusable neglect or good cause.” V.R.A.P. 4(d)(1). To reopen an appeal, the appellant must file within ninety days of the decision appealed or within fourteen days of receiving notice, whichever is earlier, and she or he must show lack of required notice and no prejudice to any party. V.R.A.P. 4(c); see, e.g., In re 7 Mahar Conditional Use Permit, 2018 VT 20, ¶¶ 19-22.,

No one employed any of these opportunities here. Having failed to appeal through an authorized procedure, neighbor cannot now appeal the permit through this alternative second-notice process.

As we explained in Mahar, to protect and balance competing interests, procedural rules set deadlines and specific exemptions to those deadlines. See V.R.A.P § 4(c) and (d). “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.” Mahar, 2018 VT 20, ¶ 16. In this case the existing procedural rules already set the balance between finality and fairness.

The District Commission is limited by the applicable statutes and rules and cannot create an alternative mechanism for review. The compelling fact of neighbor’s lack of notice is not in itself enough to allow a final permit to be reopened.