In re Mathez Act 250 LU Permit (Sung-Hee Chung, Appellant)
Appeal from Superior Court, Environmental Division
G. Walsh, J. Ronald A. Shems and Abaigeal O'Brien, Law
Clerk (On the Brief), of Diamond & Robinson, P.C.,
Montpelier, for Appellant.
L. Grayck of Law Office of David L. Grayck, Montpelier, for
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. 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
2. On May 9, 2016, applicants applied for an Act 250 permit
to build a 75' by 100' steel building for a
commercial vehicle repair and body shop, a "minor
application" under Act 250. See 10 V.S.A. § 6084
(describing different application processes for
"major" and "minor" applications). The
minor application form includes one section for applicants to
list adjoining landowners and another section to list those
with a significant interest in the affected property. The
District Commission relies on the section listing adjoining
landowners to provide notice of the permit application, which
is required by law. See Id. § 6084(b)(2)
(requiring District Commission to provide notice of minor
application to adjoining landowners pursuant to rules of
Natural Resources Board). Applicants share a driveway with
neighbor and her spouse, Wyle Solomon. Applicants listed
Solomon in the section for those with a significant interest
in the property but omitted to name either Solomon or
neighbor in the section listing adjoining landowners.
Neighbor did not receive notice of the permit application and
did not request a hearing before the permit issued, without a
hearing, on June 15, 2016. Id. § 6084(b), (c)
(stating hearing not required for minor permit application
but allowing persons who receive notice pursuant to §
6084(b)(2) to request hearing).
3. On July 21, 2016, neighbor noticed large trucks on the
shared driveway. Learning about the permit from the drivers,
she wrote to the District Coordinator and said she thought
she should have been notified. The District Coordinator
replied to the email the next day, confirming she should have
been notified. Neighbor did not seek to challenge or appeal
the permit. On August 25, 2016, the District
Commission sent out a second Act 250 notice for the permit,
stating it was "again reviewing this application under
Act 250 Rule 51" and would decide "the status of
[the] permit . . . as a component of its current application
review." The second notice also reopened the window to
request a hearing until September 14, 2016. The Commission
sent this second notice of the application to neighbor and
her husband, as well as the other landowners listed in the
original application. It did not explain the status of the
permit, direct applicants to resubmit an application, or
issue a stay.
4. On September 2, 2016, applicants appealed the second
notice to the Environmental Division under 10 V.S.A. §
8504(a), which authorizes direct appeals of District
Commission decisions to the Environmental Division. Neighbor
filed a motion to intervene on September 13, 2016, and a
cross-appeal on November 2, 2016. Applicants filed a motion
for summary judgment in the Environmental Division. After a
hearing, the court decided that although the decision
applicants sought to appeal was not a final judgment, it was
reviewable because it alleged that the Commission had acted
outside its authority, its decision would require a second
application process, and a delayed review would cause harm.
On the merits, the court held that in issuing a second
notice, the District Commission "attempted to void or
revoke" the permit, which was analogous to a collateral
attack on a final decision, and the Commission lacked the
authority to do so. The second notice was therefore beyond
the Commission's authority. Accordingly, the court
granted summary judgment in favor of applicants and ordered
the District Commission to vacate its decision to issue a
second notice of the permit. Neighbor appeals.
5. "Our review of the Environmental Division's
decision on a motion for summary judgment is de novo."
In re Burns Two-Unit Residential Bldg., 2016 VT 63,
¶ 8, 202 Vt. 234, 148 A.3d 568 (quotation omitted)).
This Court applies the same standard as the trial court.
Id. Summary judgment may be granted when there is no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Id.;
Environmental Division's Jurisdiction over Appeal
6. Our threshold question is whether the Environmental
Division had jurisdiction over the appeal even though the
decision appealed was not a final order. This is a legal
question that we review de novo. See State v.
Sommer, 2011 VT 59, ¶ 5, 190 Vt. 236, 27 A.3d 1059
("Whether a court has subject matter jurisdiction is a
question of law, and we review questions of law de
7. In general, our courts do not "review a decision that
is not a final disposition of the matter, " In re
Taft Corners Assocs., 160 Vt. 583, 588, 632 A.2d 649,
652 (1993), and no one contends the District Commission's
second notice was a final order. See also In re Pelham
N., Inc., 154 Vt. 651, 652, 578 A.2d 124, 124 (1990)
(mem.) (noting that executive agencies are vested with
authority to exercise discretion and expertise, and therefore
"the agency should be given the first chance to exercise
[its] discretion or apply [its] expertise, " making it
inappropriate to "judge a case piecemeal" except in
"limited exceptions" (quotation omitted)). Nor did
applicants seek or receive permission from the District
Commission to bring an interlocutory appeal under Vermont
Rules of Appellate Procedure 5 or 5.1. Thus, we must
determine whether the appeal is nonetheless reviewable.
8. The Environmental Division has no court procedural rules
addressing interlocutory review, so the court correctly
relied on Vermont Rule of Appellate Procedure 13, which
instructs interlocutory review of agency decisions to be
considered pursuant to 3 V.S.A. § 815(a). See V.R.E.C.P.
5(a)(2) (stating that Environmental Division follows V.R.A.P.
unless V.R.E.C.P. apply); Reporter's Notes, V.R.A.P. 13
(stating that "by virtue of 3 V.S.A. § 815(a),
appeals of interlocutory rulings of administrative agencies
should be treated as appeals from final decisions"). We
have explained that 3 V.S.A. § 815(a) permits
interlocutory review of an agency action "if review of
the final decision would not provide an adequate remedy . . .
or . . . the nature of the claimed defect in the order is
such that the harm is greatly aggravated by delay."
Taft Corners Assocs., 160 Vt. at 589, A.2d at 652
(quotation omitted). Under this rule, review of an
interlocutory order is appropriate "where an agency has
clearly exceeded its jurisdiction." Id. at 588,
632 A.2d at 652; see also Pelham N., Inc., 154 Vt.
at 652, 578 A.2d at 125 ("The courts ordinarily should
not interfere with an agency until it has completed its
action, or else has clearly exceeded its
jurisdiction."). In other words, if an agency has
exceeded its jurisdiction, review of the final decision would