In re Mahar Conditional Use Permit (Mary Lahiff, Carolyn Hallock, Susan Harritt and William Butler, Appellants
On
Appeal from Superior Court, Environmental Division 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.
EATON,
J.
¶
1. 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 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]
¶
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 ...