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 (Sung-Hee Chung, Appellant) 2018 VT 55 [filed 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. 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 not have open-ended authority to change a permit or grant 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.

SCOVT affirms denial of motion to enlarge the time to file a notice of appeal; Board did not abuse its discretion in holding that attorney’s failure to notify the Board of his new address was not excusable neglect.

In re Grievance of Edward Von Turkovich, 2018 VT 57 [filed 5/25/2018]

REIBER, C.J. Grievant Edward von Turkovich appeals the decision of the Vermont Labor Relations Board denying his motion to enlarge the time for him to file a notice of appeal. We affirm.

After filing a grievance with the Board on behalf of employee and opposing the employer’s motion to dismiss, employee’s attorney moved his office, notifying the Post Office of his new address —but not the Board, required by Board rules. The Board sent its decision dismissing the grievance to the attorney, return-receipt-requested. The Post Office sent it back to the Board with the attorney’s new address. By the time the attorney got the decision, more than 30 days had passed since the dismissal.

Because the attorney failed to update his mailing address with the Board in a timely manner, grievant did not receive notice of the Board’s order within the thirty-day appeals window. Applying the Pioneer test articulated by the United States Supreme Court, we agree with the Board that the factors of delay, prejudice, and good faith weigh in favor of grievant. But our primary focus must be the reason for the delay. The delayed notice was within attorney’s control and is analogous to a breakdown in internal office procedures, which we repeatedly have found is not excusable neglect.

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”)