In re Mahar Conditional Use Permit

         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 ...