Relief from judgment under Rule 60 is available only to parties -- even though movant did not have notice and opportunity to become a party.

 

 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.

How Cited

  

Act 250: City entitled under Rule 34 to amend conditions restricting use of Waterffont Park

In re Waterfront Park Act 250 Amendment, 2016 VT 39 (filed 4/15/2016)

ROBINSON, J. This case requires us to apply Act 250 Rule 34(E), which establishes a framework for determining whether a party may seek to amend an Act 250 permit. Neighbor appeals from the Environmental Division's award of summary judgment to the City of Burlington. The Environmental Division ruled that the City is entitled to seek an amendment to its Act 250 permit covering the Waterfront Park located on the shores of Lake Champlain. We affirm.

The sole issue on appeal is whether the amendment violated Act 250 Rule 34(E). Neighbor makes two arguments First, neighbor challenges the trial court's conclusion that the City was not merely trying to relitigate a prior condition. Second, neighbor contends the trial court did not properly balance finality with flexibility.

The City sought to amend a number of conditions in the 1994 permit, which set rules that apply to events held in the Waterfront Park. The district commission granted the City's request and deleted certain conditions restricting dates, total days, and weekend days of events in the Park; extended the cutoff time for music; and substituted new noise regulations. On appeal, the trial court on summary judgment ruled that the application did not violate Rule 34.

We review the trial court’s summary judgment ruling anew and without deference, applying the same standard as the Environmental Division We note however that the proper standard of review is not entirely clear. Because we reach the same conclusion as the trial court even affording its ruling no deference, the resolution of this case does not turn on the applicable standard of review.

I

Rule 34 (E) (2) states “the district commission shall consider whether the permittee is merely seeking to relitigate the permit condition or to undermine its purpose and intent.” In Stowe Club Highlands, we stated: "Permit applicants should consider foreseeable changes in the project during the permitting process, and not suggest conditions that they would consider unacceptable should the project change slightly."  166 Vt. 33, 39. The trial court correctly observed, however, that "[f]oresight alone does not overcome the conclusion" that circumstances might change to such a degree that an amendment is warranted. Here, the City hoped for a robust waterfront that would serve as a focal point for the community and the region. The extent of its success in achieving these hopes was not so foreseeable at the time of the 1994 Permit that the City was forever precluded from seeking amendments to the permit if its hopes were realized. We conclude that the changes in and around the Park since 1994 have been so extensive that it would be improper to characterize the City's application as a mere effort to relitigate the 1994 permit, or to undermine the purposes of the conditions in that permit.

II

Rule 34 calls for the district commission to consider a nonexclusive list of factors in balancing the need for finality against the need for flexibility.

On balance, we agree with the Environmental Division's conclusion that the factors supporting flexibility in this case outweigh those calling for finality. The Park has been a dynamic resource to the City, and its increased use has been and will continue to be important to the City's cultural, recreational and social life, and its prosperity. While neighbor's reliance on the prior permit limitations carries some weight, in this case it is outweighed by other factors so that it is not unreasonable to consider proposed amendments to the permit.

Affirmed.

Land use permit upheld. Findings as to as to Criteria 1(D), “Floodways” and 8, “Aesthetics” were not clearly erroneous.

In re Zaremba Group Act 250 Permit, 2015 VT 88 (26-Jun-2015)

SKOGLUND, J.   Neighbors of a plot of land in Chester appeal the environmental division’s decision to grant an Act 250 permit amendment to build a Dollar General store (“the Project”) on that plot.  We affirm.

Neighbors challenge the “Aesthetics”conclusion, based on claimed violation of  “a clear, written community standard intended to preserve the aesthetics” of the area.  A criterion of the Chester Zoning Regulations states that. that all construction of new buildings should adhere harmoniously to the “over-all New England architectural appearance which gives the center of Chester its distinct regional character and appeal.”

The criterion refers to the “center of Chester”—a vague description that we will assume means the historic village center—but the Project is not located in the pedestrian-oriented village center; it is more than a half-mile away in a vehicle-oriented part of the town.  We need not decide whether the reference to “over-all New England architectural appearance” in this provision would provide clear guidance if this project were in the historic village center.  The Project’s immediate surroundings—including a flat-roofed structure containing a gas station, mini market, and liquor store—and the entirety of diverse architecture in the area cannot be said to conform to a discernible “New England architectural appearance.”  These conflicting architectural styles are evidence that the zoning criterion is not a clear community standard intended to preserve aesthetics, at least as applied to the area surrounding the Project.

Act 250. Administrative amendments do not apply where full review required.

In re SP Land Co., LLC,  2011 VT 104 (Johnson, J.) (Reiber, C.J., dissenting.)

 This appeal arises out of a dispute over an administrative amendment to the master development plan for Killington Resort Village.  The Environmental Commission originally granted this administrative amendment pursuant to Act 250 Rule 34(D).  Mountainside Properties, LLC, an adjoining property owner, appeals the Environmental Court’s denial of its motion to alter and amend a grant of summary judgment in favor of co-applicants.  Mountainside argues that the Environmental Court erred because: (1) administrative amendments under Rule 34(D) require an underlying Act 250 land use permit, and (2) co-applicants’ fifteen-lot subdivision cannot be approved without demonstrating compliance with all Act 250 criteria under 10 V.S.A. § 6086(a), as required by 10 V.S.A. § 6081(a).  We agree and therefore reverse.

The  issue of whether a Rule 34(D) administrative amendment may be used to authorize a fifteen-lot subdivision absent positive findings on all Act 250 criteria is at the core of this case.  Rule 34(D) states:

  A district commission may authorize a district coordinator to amend a permit without notice or hearing when an amendment is necessary for record-keeping purposes or to provide authorization for minor revisions to permitted projects raising no likelihood of impacts under the criteria of the Act. 

We hold that Rule 34(D) applies solely to the Act 250 land use permit issued after full substantive review of all ten statutory criteria under 10 V.S.A. § 6086(a) and cannot apply to findings of fact and conclusions of law on fewer than all of the Act 250 criteria for a master plan. The statute makes clear that the Legislature intended full review under all Act 250 criteria and subcriteria for just this kind of substantial subdivision.

Reiber, C.J., dissents on procedural grounds without necessarily disagreeing with the majority’s holding that an administrative amendment under Act 250 Rule 34 may be inappropriate where, as here, a master plan application does not result in affirmative findings on all of the Act 250 criteria and a master plan permit.  The Chief Justice emphasizes, however, that under the Master Permit Policy and Procedure a fully approved master plan application may well support a later administrative amendment where it would not materially affect any Act 250 criteria le=} � o : @| X�t :p>

Reiber, C.J., dissents because the issue the majority decides was not raised below in a timely and proper manner and therefore should not be reviewable on appeal. The question it addresses—whether an administrative amendment under Rule 34 requires an underlying Act 250 permit—was not raised with the trial court before the entry of judgment but only later in a Rule 59(e) motion to alter or amend.  

Act 250: Newly amended law does not apply on reconsideration of permit denial.

In re Times and Seasons, LLC, 2011 VT 76 (Johnson, J.)

     Applicant Times and Seasons, LLC, appeals from the Environmental Court’s grant of summary judgment to the Natural Resources Board and corresponding denial of applicant’s Act 250 permit application to construct and operate a gift shop and deli with related improvements on Dairy Hill Road in the Town of Royalton.  Applicant argues that it may avail itself of the definition of “primary agricultural soils” in 10 V.S.A. § 6001(15) amended during the course of its litigation to secure compliance with criterion 9(B), 10 V.S.A. § 6086(a)(9)(B), the only Act 250 criterion for which it has not received approval.  We disagree and therefore affirm.

     An application for reconsideration cannot rely on a favorable change in law.  See 10 V.S.A. § 6087(c).  On reconsideration, applicants must demonstrate through changes to the project itself that the deficiencies identified in the permit application’s denial have been corrected.  To take advantage of the change in law, applicant must begin the Act 250 permit process anew.

Act 250 jurisdiction: parents are as a matter of law affiliated with minor children because of their obligation of support.

  In re Shenandoah LLC, 2011 VT 68 (Burgess, J.) (Skoglund, J., joined by Justice Dooley dissenting.)
          Shenandoah, LLC, David Shlansky, Ting Chang, and other entities and individuals, appeal from the Environmental Court’s summary judgment decision upholding an Act 250 jurisdictional opinion.  The Environmental Court found that all prior subdivisions attributable to a Trust were also attributable to Shenandoah because they were “individuals and entities affiliated with each other for profit.”  10 V.S.A. § 6001(14)(A)(iii).The Environmental Court also found these units attributable to Shlansky and Chang as parents of the minor beneficiaries of the Trust, because profits of the trust would “diminish the parents’ burden to provide for their minor children.” We affirm the court’s jurisdictional opinion.
          The parents are financially responsible for their minor children so that, absent any evidence or argument to the contrary, any financial benefit to the children inures to the benefit of the parents.
          That benefit to the parents renders them “persons” as defined by Act 250.  10 V.S.A. § 6001(14)(A)(iii) (pertaining to subdivisions); Act 250 Rule 2(C)(1)(a) (pertaining to development).   Under the first definition of “person,” it is explicitly up to the parents to prove otherwise.  See 10 V.S.A. § 6001(14)(A)(iv) (presuming to include the parents as “persons,” “unless the individual establishes that he or she will derive no profit or . . . acquire any other beneficial interest from the partition or division of land by the . . . child”). Because any financial benefit to the minor children constitutes a financial advantage to the parents ordinarily responsible for their support the parents are affiliated “persons.”
          Justice Skoglund,  joined by Justice Dooley dissenting. would remand for further factual development, otherwise they argue, the result in this case is so far beyond the broad definition of the term “person” that any parent is swept into the Act 250 process if their child, dependent or not, benefits from a proposed land development.  This is far beyond the broad definition of that term recognized under the Act.



Note that Chief Justice Reiber was present for oral argument, but did not participate in this decision. Judge Eaton was not present for oral argument, but reviewed the briefs, listened to oral argument, and participated in the decision, with Justice Johnson making a majority.