In re Appeal of MDY Taxes, Inc. and Village Car Wash, Inc.
On Appeal from Superior Court, Environmental Division Thomas G. Walsh, J.
Karl C. Anderson of Anderson & Eaton, P.C., Rutland, for Appellants.
R. Jeffrey Behm and Diane M. McCarthy of Sheehey Furlong & Behm P.C., Burlington, for Appellee Jolley Associates, LLC.
Benjamin W. Putnam of Neuse, Duprey & Putnam, P.C., Middlebury, for Appellee Town of Middlebury.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. This appeal stems from a decision by the Town of Middlebury Development Review Board (DRB) approving appellee Jolley Associates, LLC’s (Jolley) application for a Planned Unit Development (PUD) to add a car wash to an existing gas station and convenience store within the Town of Middlebury. Appellant MDY Taxes, Inc. (MDY) operates an H&R Block tax franchise in property rented in a shopping center adjacent to the Jolley lot. Appellant Village Car Wash, Inc. (Village) operates a car wash located approximately one-quarter of a mile from the Jolley lot.  Appellants did not participate in the DRB proceeding, but sought to challenge the approval of the PUD through an appeal to the Environmental Division of the Superior Court. The environmental court dismissed the appeal for lack of jurisdiction. The court concluded that appellants did not have party status, i.e., standing, to appeal the DRB decision because they had not participated in the proceedings before the DRB as required by 10 V.S.A. § 8504(b)(1) and because they did not meet any of the exceptions to that requirement under § 8504(b)(2). On appeal, appellants contend, as they did below, that a procedural defect prevented them from appearing before the DRB and further that it would be manifestly unjust if they are not afforded party status to appeal. We affirm.
¶ 2. The basic facts are as follows. Jolley owns and operates a convenience store with fuel pumps located within the Town of Middlebury Village Residential Commercial (VRC) District. Jolley currently operates a diesel refueling station for tractor trailers underneath a canopy behind the store. In September 2013, Jolley filed a zoning permit application with the Town of Middlebury to remove the diesel refueling station and its canopy and instead erect a two-bay drive-through car wash. On September 26, 2014, the DRB published a notice of public-hearing in the Addison Independent newspaper as follows:
TOWN OF MIDDLEBURY PUBLIC HEARING NOTICE
The Middlebury Development Review Board will hold a public hearing on Monday, October 14, 2013 beginning at 7:00 p.m. in the Town Offices Main Conference Room to consider:
2. The application by Jolley Associates, Inc. to construct a car wash at 220 Court Street.
Plans and additional information regarding these applications may be viewed at the Planning and Zoning Office in the Town Offices or by [phone]. Participation in this public hearing is a prerequisite to the right to take any subsequent appeal.
The DRB also posted a notice of the hearing on a stake on Jolley’s property within view of Court Street; mailed written notification of the hearing to Jolley and all adjoining property owners; and posted copies of the notice on a bulletin board in the Middlebury Town Offices and on the Middlebury Town website.
¶ 3. On October 14, 2013, the DRB held a public hearing during which it heard Jolley’s application. The minutes from that meeting reflect that Jolley provided an overview of the proposed project, explaining that the diesel pumps and canopy at the back of the store would be removed to make way for the car wash; diesel fuel would still be available at other pump sites for vehicles other than tractor trailers; no parking spaces would be eliminated; garbage and storage facilities would be relocated within the property; and the car wash would operate the same hours as the convenience store. Thereafter, the zoning administrative officer for the Town of Middlebury explained that, although car washes are not allowable uses in the VRC district, a PUD may be allowable in the VRC district under Middlebury Zoning and Subdivision Regulation § 550  if certain criteria are met. The DRB voted unanimously to proceed with the Jolley zoning permit application as a PUD application and, upon reviewing the requisite criteria, unanimously approved the PUD application to remove the canopy and diesel pumps and ...