In re Mahar Conditional Use Permit (Mary Lahiff, Carolyn Hallock, Susan Harritt and William Butler, Appellants)

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2018 VT 20
No. 2016-299
In re Mahar Conditional Use Permit Supreme Court
(Mary Lahiff, Carolyn Hallock, Susan Harritt and
William Butler, Appellants) On Appeal from
Superior Court,
Environmental Division
January Term, 2017
Thomas S. Durkin, J.
Mary Lahiff and Carolyn Hallock, Pro Ses, Jericho, Appellants.
Susan Harritt and William Butler, Pro Ses, Jericho, and Bridget Asay, Montpelier, for
Appellants.
David M. Sunshine of Law Office of David M. Sunshine PC, Richmond, for Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. 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 to applicant Kevin Mahar. On appeal, 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.
¶ 2. The following facts were undisputed for purposes of summary judgment. In late
April 2015, applicant sought a conditional use permit for a detached accessory structure and
apartment at his single-family home in Jericho. The DRB scheduled a hearing for May 28, 2015.
Notice of the hearing was published in a local newspaper on May 7, and fliers with notice of the
hearing were posted fifteen days before the hearing at six public buildings in Jericho and on Front
Porch Forum, an electronic community newsletter. Additional notice was sent by first-class mail
to nine of appellee’s neighbors whose property abuts the site of the proposed apartment. The
hearing notice was not sent to neighbors Susan Harritt and William Butler, who own property that
has frontage on Nashville Road across the road from applicant’s property.1
¶ 3. The DRB held the conditional use hearing as scheduled on May 28, 2015. Among
other individuals, applicant and neighbors Mary Lahiff and Carolyn Hallock were present. After
the hearing, the DRB voted to approve the application with conditions. On June 23, 2015, it issued
a two-page written decision formalizing the approval, which the Town mailed to various Jericho
residents on June 25, 2015.2
¶ 4. On September 23, 2015, a group of applicant’s neighbors, including Lahiff, Harritt,
and Butler, appealed the DRB’s conditional use decision to the Environmental Division. The
notice of appeal stated that at least some neighbors had not received notice of the underlying DRB
hearing and some neighbors were not sent or did not receive a copy of the DRB’s decision. On
1
The Environmental Division concluded that they were adjoining property owners entitled
to notice and that conclusion is not challenged on appeal.
2
While applicant was seeking conditional use approval, he also was applying for zoning
permits. On July 7, 2015, applicant sought and received zoning permits for the accessory
apartment and structure. On July 20, 2015, neighbor Mary Lahiff appealed the grant of applicant’s
zoning permits to the DRB.
2
October 14, 2015, neighbors filed a statement of questions, which raised thirteen questions,
including whether neighbors’ appeal was timely given the lack of notice of the DRB hearing and
the DRB’s failure to send a copy of the decision to some neighbors. Neighbors raised other issues
concerning the merits of the conditional use permit.
¶ 5. Applicant filed a motion for summary judgment, arguing that (1) the appeal was
not timely because it was filed outside the thirty-day window prescribed by Vermont Rule of
Environmental Court Procedure 5(b)(1), and (2) neighbors were not interested persons because
they had not demonstrated a physical or environmental impact from the construction. See 24
V.S.A. § 4465(b)(3) (defining interested person, in part, as “person owning or occupying property
in the immediate neighborhood of a property . . . , who can demonstrate a physical or
environmental impact on the person’s interest”). Neighbors argued that the lack of notice of the
hearing and decision required that the Environmental Division remand the case to the DRB for a
new hearing.
¶ 6. On July 13, 2016, the Environmental Division issued an order granting applicant’s
motion for summary judgment and dismissing the neighbors’ conditional use appeal. The court
divided neighbors into three groups depending on the factual assertions being made. As to each
group, the court considered whether the individuals were interested persons and whether the appeal
was timely filed. In sum, the court concluded that all neighbors either had actual or constructive
notice of the DRB decision more than thirty days before they filed their appeal, that this actual or
constructive notice triggered the appeal period to start, and that all groups had failed to timely
appeal. The court also concluded that some neighbors did not demonstrate they were interested
persons. The more particular facts related to the neighbors who appealed to this Court are as
follows. 3
3
Although there were other members of the groups, we specifically reference only those
who have appealed to this Court.
3
¶ 7. First, the court considered Mary Lahiff. It was undisputed that she was present at
the DRB hearing, but it was disputed whether she was sent or received notice of the resulting DRB
decision. Due to her participation in the hearing below, the court concluded that she was an
interested person, 24 V.S.A. § 4471, but that the appeal was untimely filed. The court recognized
that there was a disputed fact about whether she received actual notice of the DRB decision. The
court explained that the thirty-day appeal period began to run when she had notice of the DRB
decision, either actual or constructive. The court surmised that because Lahiff had appealed the
grant of applicant’s zoning permits to the DRB in July 2015, she must have known about the DRB
decision on the conditional use approval more than thirty days before September 23, 2015, and
therefore the appeal was untimely. The court also explained that although she alleged she did not
receive notice of the DRB decision, she had failed to seek permission to reopen the appeal period
under Vermont Rule of Appellant Procedure 4, and in any event, such motion would have been
more than seven days after she had constructive notice of the decision.
¶ 8. Next, the court considered Harritt and Butler, who it was undisputed did not attend
the DRB hearing and did not receive notice of the DRB hearing. The court concluded as a matter
of law that Harritt and Butler were adjoining landowners under 24 V.S.A. § 4464(a)(1)(C), which
entitled them to mailed notice of the DRB hearing. The court concluded that the lack of notice did
not warrant a remand because reasonable efforts were made to provide notice. See 24 V.S.A.
§ 4464(a)(5) (“No defect in the form or substance of any requirements in subdivision (1) or (2) of
this subsection shall invalidate the action of the appropriate municipal panel where reasonable
efforts are made to provide adequate posting and notice.”). Additionally, the court concluded that
Harritt and Butler were not interested persons because they did not participate in the DRB hearing
and did not request interested-person status under 10 V.S.A. § 8504(b)(2). And, even if such
permission had been sought, they “failed to demonstrate a physical or environmental impact on
[their] interest.”
4
¶ 9. Finally, the court considered Carolyn Hallock, who received notice of the DRB
hearing and a copy of the DRB decision. The court concluded that her appeal was untimely
because it was filed more than thirty days after the decision issued. Neighbors filed this appeal.
¶ 10. “We review motions for summary judgment de novo, applying the same standard
of review as the trial court.” In re All Metals Recycling, Inc., 2014 VT 101, ¶ 6, 197 Vt. 481, 107
A.3d 895; see also In re Atwood Planned Unit Dev., 2017 VT 16, ¶ 15, __ Vt. __, 167 A.3d 312
(reviewing Environmental Division’s jurisdictional analysis de novo). Summary judgment will be
granted if there are no genuine issues of material fact and the moving party is entitled to judgment
as a matter of law. V.R.C.P. 56(a). “The nonmoving party will receive the benefit of all reasonable
doubts and inferences.” All Metals Recyling, 2014 VT 101, ¶ 6.4
¶ 11. The threshold question is whether the Environmental Division had jurisdiction over
neighbors’ appeal. To properly invoke this jurisdiction, neighbors had to have standing as
interested persons and had to timely file a notice of appeal.
I. Timeliness of Appeal
¶ 12. 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). A party’s failure to timely appeal deprives the Environmental Division
of subject-matter jurisdiction over the appeal. See In re Gulli, 174 Vt. 580, 583, 816 A.2d 485,
489 (2002) (“Failure to file timely notice of an appeal brought under § 4471 deprives the
environmental court of jurisdiction over that appeal.”).
4
The Environmental Division concluded that the appeals were untimely filed and therefore
it lacked jurisdiction but went on to enter judgment for applicant. Having concluded that there
was no jurisdiction over the appeal, the court’s only recourse was to dismiss the appeals. See In
re McMahon, 115 Vt. 415, 417, 63 A.2d 198, 199 (1949) (explaining that when court discovers it
has no jurisdiction, it must dismiss cause).
5
¶ 13. To decide whether an appeal was timely filed, it is critical to determine when the
thirty-day appeal period begins to run. 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, citing Town of Hinesburg v. Dunkling, 167 Vt. 514, 521-22, 711 A.2d
1163, 1167 (1998). 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. 10 V.S.A. § 8504(b)(1) (“Within 30
days of the date of the act or decision, an interested person, as defined in 24 V.S.A. § 4465, who
has participated as defined in 24 V.S.A. § 4471 in the municipal regulatory proceeding under that
chapter may appeal to the Environmental Division . . . .”). Therefore, the period begins to run
when judgment is entered. See V.R.C.P. 77(d)(1) (“Lack of notice of the entry by the clerk does
not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal
within the time allowed, except as permitted in Rule 4 of the Rules of Appellate Procedure.”);
V.R.E.C.P. 5(a)(2) (incorporating rules of civil procedure); see also Gulli, 174 Vt. at 583, 816 A.2d
at 489 (explaining that perfecting an appeal requires appellant to file notice “within 30 days of the
relevant DRB decision”). The Environmental Division’s reliance on Town of Hinesburg, 167 Vt.
at 521-22, 711 A.2d at 1167, is misplaced; the holding of that case is not that the appeal period
begins when a party receives actual notice, but that oral notice does not start the appeal period. In
a later case, this Court described the holding as follows: “In Town of Hinesburg v. Dunkling, we
concluded that the 30-day appeal period began to run when the municipality mailed the applicant
a copy of the applicable minutes, thus placing the party on formal notice of the determination it
might wish to challenge.” George v. Timberlake Assocs., 169 Vt. 641, 642 739 A.2d 1207, 1209
(1999) (mem.).
6
¶ 14. In this case, the undisputed facts indicate that the DRB issued its decision on June
23, 2015. Therefore, the notice of appeal, filed on September 23, 2015, was beyond the thirty-day
filing period.
¶ 15. Neighbors assert that the notice of appeal should be accepted as timely filed because
Harritt and Butler were adjoining property owners and were not sent the required statutory notice
of the DRB hearing or the resulting DRB decision. Neighbors’ arguments about the deficiencies
in the proceedings before the DRB could be addressed by the Environmental Division only after
the jurisdiction of the Environmental Division was established. Neighbors’ lack of notice of the
DRB hearing and decision does not automatically provide neighbors with a right to appeal. As set
forth above, to invoke the jurisdiction of the Environmental Division, there must be a timely filed
notice of appeal by interested persons. There is no automatic exception to this statutory
requirement based on a lack of notice of the underlying proceeding or decision. 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”).
¶ 16. The applicable procedural rules have deadlines and specific exceptions that attempt
to balance the tension between fairness and the finality of judgments that exists in all types of
cases. See Hinsdale v. Vill. of Essex Junction, 153 Vt. 618, 625, 572 A.2d 925, 929 (1990) (“While
it is true that a board could render a written decision, enter it by filing it with the clerk, and cut off
appeal rights by failing to notify the landowner, that risk exists in a trial court.”). To protect
finality, the appeal period is triggered by the entry of judgment and does not indefinitely stay open,
even if a party did not get notice of the underlying judgment. “The [appeal] period runs whether
or not the losing party has notice of the entry.” 16A C. Wright et al., Federal Practice & Procedure
§ 3950.6 (4th ed.). 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
7
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.
¶ 17. Having set forth the applicable law, we turn to the facts of this case. We begin with
the undisputed facts related to the second set of neighbors, Harritt and Butler, who did not receive
notice of the DRB decision. In their notice of appeal, Harritt and Butler asserted this fact, but they
did not make a formal motion to the Environmental Division seeking to reopen the appeal period
under Appellate Rule 4(c). Nonetheless, we conclude that the notice of appeal filed by Harritt and
Butler was sufficient to be construed as a motion to reopen the appeal period. The notice of appeal
put the court and other parties on notice that they were asserting a right to appeal based on lack of
notice. See 16A Wright, supra, § 3950.6 (urging courts to “be willing to construe liberally a would-
be appellant’s request to reopen appeal time” and that “a lack of formality in the request should
not prove fatal so long as the request makes clear that the would-be appellant failed to receive
notice of entry of judgment and seeks to reopen the appeal time”); see also United States v.
Akinkoye, 16 F. App’x 179, 180 (4th Cir. 2001) (“Where, as here, a pro se appellant files an
untimely notice of appeal offering some excuse for its untimeliness, that notice is properly
construed as a motion to reopen the time to note an appeal under [equivalent federal rule].”);
Sanders v. United States, 113 F.3d 184, 187 (11th Cir. 1997) (per curiam) (holding that “when a
pro se appellant alleges that he did not receive notice of the entry of the judgment or order from
which he seeks to appeal within twenty-one days of its entry, we must treat his notice as a Rule
4(a)(6) motion and remand to the district court for a determination of whether the appellant merits
8
an extension under that rule”). This conforms to the “the general concept that appeal rights must
be liberally construed in favor of persons exercising those rights.” Atwood Planned Unit Dev.,
2017 VT 16, ¶ 19 (quotation omitted).
¶ 18. Ordinarily, we would remand to the Environmental Division to make factual
findings pertaining to the requirements of the rule. In this case, however, because the facts were
undisputed, we examine the requirements directly to determine if the undisputed facts resolve the
issues. See Towns v. N. Sec’y Ins., 2008 VT 98, ¶ 16 n.4, 184 Vt. 322, 964 A.2d 1150 (explaining
that where facts are uncontested, judicial economy allows appellate court to address issues in first
instance without remand). Thus, we consider whether the undisputed facts show that Harritt and
Butler met the requirements of Appellate Rule 4(c) to reopen the appeal period. These
requirements are: (1) filing a motion within ninety days of entry of judgment or seven days of
receipt of notice; (2) being entitled to, but not receiving, notice from a clerk or party within twenty-
one days of entry; and (3) demonstrating no prejudice to the other parties. We conclude that the
undisputed facts establish that Harritt and Butler met the first two requirements.
¶ 19. The first requirement is that Harritt and Butler filed the motion within ninety days
of entry of judgment or within seven days of receiving notice, whichever is earlier. The seven-
day time period is triggered by notice provided under Vermont Rule of Civil Procedure 77(d). 5
5
Federal Rule of Appellant Procedure 4 specifies that the trigger is “notice under Federal
Rule of Civil Procedure 77(d).” F.R.A.P. 4(a)(6)(B). The Vermont rule has not incorporated this
language, but it is evident from the Reporter’s Notes written at the time the provision was added
that Rule 77 notice starts the time period. Reporter’s Notes—1996 Amendment, V.R.A.P. 4
(explaining that Rule 4 was amended concurrently with Vermont Rule of Civil Procedure 77(d)
and applies when party does not timely receive Rule 77(d) notice). This is further confirmed by
the fact that Rule 77 references Appellate Rule 4. V.R.C.P. 77(d)(1) (“Lack of notice of the entry
by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party
for failure to appeal within the time allowed, except as permitted in Rule 4 of the Rules of
Appellate Procedure.”). Therefore, the seven-day window “is opened only if and when a party
receives notice of the entry of the judgment or order” from the clerk or from a party; it is not
triggered by inquiry notice. Benavides v. Bureau of Prisons, 79 F.3d 1211, 1214 (D.C. Cir. 1996)
(construing prior version of Federal Rule 4 and concluding that actual notice by clerk or party
required to start seven-day window).
9
Under Rule 77, this can include service by another party provided in a manner consistent with the
service requirements. V.R.C.P. 77(d). The undisputed facts are that Harritt and Butler did not
receive notice of the order, either from the court or from another party. Therefore, the seven-day
time period did not begin to run. In addition, the undisputed facts indicate that they filed the
motion—here, the notice of appeal asserting the necessary facts—within ninety days of the order
on appeal. Therefore, the first requirement was met.
¶ 20. The second requirement is more complicated than the first. It is undisputed that
Harritt and Butler did not receive notice of the decision, but the difficulty for them is showing that
they were entitled to receive that notice. Pursuant to statute, the DRB was required to send copies
of the decision to applicant and “every person or body appearing and having been heard at the
hearing.” 24 V.S.A. § 4464(b)(3). Having failed to receive notice of the hearing, Harritt and
Butler did not appear, and therefore were not entitled to notice of the decision under this statutory
section.
¶ 21. We conclude that in this case this shortcoming is not fatal. The rule’s limitation to
those who are “entitled” to notice is essentially a standing requirement. It limits application of the
rule allowing reopening of the appeal period to those individuals who would have been entitled to
appeal the decision, if they had had notice. As explained more fully below, the Legislature
provided an expanded basis to obtain standing to appeal decisions of municipal boards, particularly
where, as here, a defect prevented participation in the hearing. To preclude these individuals from
being able to reopen the appeal period because they did not attend the hearing would create an
impossible situation—they could not attend the hearing because a procedural defect prevented
their attendance and although they could obtain standing to appeal on this basis, they could not
seek to reopen the appeal period without participation in the hearing. Thus, if Harritt and Butler
had standing to appeal to the Environmental Division, they also have satisfied the standing
requirement of Appellate Rule 4(c)(2).
10
¶ 22. 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.’ ” 16A Wright, supra, § 3950.6 (quoting
Federal Advisory Committee Note from Federal Rule of Civil Procedure 4). The undisputed facts
did not address whether any prejudice existed in this case. On remand, the Environmental Division
must evaluate whether Rule 4(c)(3) was met.
II. Standing
¶ 23. “The statute qualifies which individuals may appeal, and dismissal is appropriate
when the statutory requirements are not met.” In re Verizon Wireless Barton Permit, 2010 VT 62,
¶ 15, 188 Vt. 262, 6 A.3d 713. An individual has standing to appeal if the individual participated
in the regulatory proceeding. 10 V.S.A. § 8504(b)(2). In addition, the Legislature recognized the
possibility of a scenario like that which befell Harritt and Butler, providing standing to appeal
where “there was a procedural defect which prevented the person from obtaining interested person
status or participating in the proceeding” or “some other condition exists which would result in
manifest injustice if the person’s right to appeal was disallowed.” Id. § 8504(b)(2)(A), (C). To
request party status based on lack of notice of the underlying hearing or manifest injustice requires
filing a motion in the Environmental Division within the time to file a statement of questions. 10
V.S.A. § 8504(b)(2); V.R.E.C.P. 5(d)(2); Verizon Wireless, 2010 VT 62, ¶ 20. The Environmental
Court concluded that because Harritt and Butler did not file such a motion with their notice of
appeal, they did not affirmatively claim interested-person status and therefore were not subject to
§ 8504(b)(2)’s exception. We disagree.
¶ 24. In Verizon Wireless, 2010 VT 62, the Environmental Division dismissed the appeal
because the appellants had not moved for party status as required by Environmental Rule 5 and
had in their notice of appeal merely asserted that they were property owners but “did not otherwise
11
state a basis for party status” or “mention of any lack of required notice below” as the basis for
their claim for party status. Id. ¶ 20. This Court affirmed, concluding that the Environmental
Division did not abuse its discretion. Id. ¶ 19. We explained that the party seeking party status
had the burden to assert this claim and that the purpose of placing the burden on the appellant was
to preserve judicial resources and avoid situations in which the Environmental Division “ ‘begin[s]
to engage its resources in evaluating the substance of a claim, only to discover many months into
the process that the appellant lacks party status.’ ” Id. ¶ 18 (quoting Environmental Division
decision).
¶ 25. In this case, the issue of party status was sufficiently raised and there was no danger
that the resources would be wasted. Harritt and Butler in their notice of appeal to the
Environmental Division expressly claimed party status on the basis that they “did not receive the
required pre-hearing notice of the proceeding.” They further reiterated in their statement of
questions that they were asserting a right to appeal based on lack of notice. Although Harritt and
Butler did not file a formal motion under 10 V.S.A. § 8504(b)(2), these filings put the court and
other parties on notice that they were affirmatively claiming a right to appeal based on lack of
notice. We decline to extend Verizon Wireless to instances where an appellant’s failure to use
specific language would result in dismissal of a potentially meritorious appeal. Such a rigid
interpretation of our precedent places the form of the appeal over its substance. We therefore hold
that Harritt and Butler have carried their burden in this instance of affirmatively claiming party
status under § 8504(b)(2). Further, the undisputed facts demonstrate that Harritt and Butler meet
the requirements of § 8504(b)(2)(A) because a procedural defect—the Town’s failure to provide
them with notice of the DRB hearing—prevented them from participating in the proceeding and
obtaining interested-person status.
¶ 26. To establish interested-person status—and therefore standing—under § 8504(b)(2),
a party must make two additional showings: (1) that the person owns or occupies property “in the
12
immediate neighborhood of [the] property that is the subject of any decision or act taken” by a
municipal regulatory panel; and (2) that the person “can demonstrate a physical or environmental
impact on the person’s interest.” 24 V.S.A. § 4465(b)(3). The first requirement is met because as
discussed, on appeal, applicant does not challenge the Environmental Division’s conclusion that
Harritt and Butler are adjacent property owners.
¶ 27. As to the second requirement, the Environmental Division concluded that Harritt
and Butler had not alleged “a physical or environmental impact” on their interest. Citing this
Court’s nonprecedential decision in In re Two Bad Cats LLC Conditional Use Permit, No. 2015-
238, slip op. at 2 (Vt. Nov. 19, 2015) (unpub. mem.), https://www.vermontjudiciary.org/sites/
default/files/documents/eo15-238.pdf [https://perma.cc/P2YV-8K2X], the court concluded that
Harritt and Butler’s “only assertion” of a physical or environmental impact—“the generalized
statement that ‘Appellants have property interests to protect from Appellee’s proposed project’ ”—
was insufficient to establish a physical or environmental impact.
¶ 28. The Environmental Division abused its discretion in determining that neighbors’
“only assertion” of an environmental or property impact was a “generalized statement.” In their
statement of questions, Harritt and Butler alleged that the project would have an adverse impact,
citing the effect on the surrounding neighborhood, the location and layout of the structure, the
existence of a second curb cut, and the size of the structure, among other things. This was
sufficient to satisfy the statutory requirement that a person seeking party status must be able to
“demonstrate a physical or environmental impact on the person’s interest.” 24 V.S.A.
§ 4465(b)(3). This is especially the case where the lack of notice of the initial hearing may have
deprived Harritt and Butler of the opportunity to include in their notice of appeal additional
information concerning the proposal. Therefore, Harritt and Butler had standing. This means they
also met the requirements to reopen the appeal period under Appellate Rule 4(c)(2).
13
¶ 29. In sum, we conclude that the undisputed facts demonstrate Harritt and Butler met
the requirements of Appellate Rule 4(c)(1) and (2) and that on remand the Environmental Division
must evaluate whether there is prejudice to another party under Appellate Rule 4(c)(3). In addition,
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” (emphasis added)); Benavides, 79 F.3d at 1214 (“The rule by its terms authorizes the
district court to grant relief; it does not direct the court to do so.”). In exercising its discretion, the
trial court should consider that “the purpose of the rule was to ease strict sanctions on litigants who
had failed to receive notice of the entry of judgment in order to file a timely notice of appeal,
whether the fault lay with the clerk or other factors beyond the litigants’ control, such as the Postal
Service,” not to give relief when “the fault lies with the litigants themselves.” In re WorldCom,
Inc., 708 F.3d 327, 336 (2d Cir. 2013). Therefore, the exercise of discretion lies in considering
the extent to which “the litigant’s own negligence caused the very problem that [the reopen rule]
was meant to ameliorate.” Id. at 337-38 (recognizing that although rule does not require showing
of excusable neglect, in exercising its discretion district court should “give substantial weight to
indications that the failure of receipt was the litigant’s fault”).
¶ 30. On remand, the Environmental Division should exercise its discretion and weigh
any relevant factors. If the Environmental Division grants the motion by neighbors Harritt and
Butler to reopen the appeal period, then it need not evaluate the facts relative to the other groups
of neighbors. Because Harritt and Butler filed a notice of appeal along with their motion, the other
neighbors could also appeal once Harritt and Butler timely filed a notice of appeal.
V.R.A.P. 4(a)(6) (“If one party timely files a notice of appeal, any other party may file a notice of
appeal within 14 days after the date when the first notice was filed, or within the time otherwise
prescribed by this rule, whichever period ends later.”).
14
¶ 31. Because the question may arise again on remand, we briefly address the
Environmental Division’s holding that the lack of notice to Harritt and Butler of the DRB hearing
was not error because reasonable efforts were made to provide notice. The relevant statutory
section provides that “[n]o defect in the form or substance” of notice required under § 4464(a)(1)
and (a)(2) “shall invalidate the action of the [DRB] where reasonable efforts are made to provide
adequate posting and notice” unless “the defective posting or notice was materially misleading in
content.” 24 V.S.A. § 4464(a)(5). The court concluded that because “reasonable efforts were
made to provide adequate notice and posting,” the failure to send written notice to Harritt and
Butler was a defect in form or substance that was not materially misleading in content and the
DRB’s decision was therefore valid. In interpreting the phrase “defect in the form or substance”
in § 4464(a)(5), we employ the familiar tools of statutory interpretation. “We will enforce the
plain meaning of the statutory language where the Legislature’s intent is evident from it, but, if
doubts exist, the real meaning and purpose of the Legislature is to be sought after and, if disclosed
by a fair and reasonable construction, it is to be given effect.” In re Carroll, 2007 VT 19, ¶ 9, 181
Vt. 383, 925 A.2d 990 (citation and quotation omitted). Here, the plain language of the statute
indicates it does not apply to situations where no notice at all is provided. The phrase “defect in
the form or substance” assumes that notice has been given because there can be no defect in
something that does not exist. Thus, whatever the scope of the phrase “defect in the form or
substance,” the word “defect” contemplates that some notice has been given. Where, as here, no
notice is given, § 4464(a)(5) is inapplicable.
Reversed and remanded.
FOR THE COURT:
Associate Justice
15