STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
} In re Cummings Subdivision 1 } Docket No. 156-9-10 Vtec (Appeal of Gamache) } }
Decision and Order on Pending Motions
Appellant Richard Gamache initially filed a notice of appeal on September 22,
2010, seeking to appeal the Town of Swanton Planning Commission’s grant of approval
to Appellee-Applicant Richard Cummings2 for what the notice of appeal characterized
as a “seven (7) lot” subdivision on the south side of Bushey Road. Appellant is
represented by Joseph P. Bauer, Esq. and Renee L. Mobbs, Esq.; Appellee-Applicant is
represented by Joseph F. Cahill, Jr., Esq. The Town of Swanton has not entered an
appearance in this matter.3
Together with the initial notice of appeal, Appellant moved to stay the
development of Appellee-Applicant’s property and moved to remand Appellee-
Applicant’s 2007 subdivision application to the Planning Commission for it to hold new
hearings, after proper notice to Appellant, and to issue a reconsidered decision. These
1 Please note that the correct form of the caption is “In re Cummings Subdivision” rather than a “plaintiff v. defendant” form. In addition, the term “7-lot” has been removed from the caption, as the Planning Commission only acted upon a five-lot subdivision in the 2007 decision that Appellant seeks to appeal in this case. See note 6, below. 2 Appellee-Applicant entered an appearance both individually and as trustee of the Richard Cummings Revocable Trust. 3 A courtesy copy of this decision is being sent to the Town even though it has not
appeared in this matter, as additional information from the Planning Commission files or testimony from town officials may be required by the parties to this appeal. 1 motions were later suspended until the issue of Appellant’s party status was resolved.
Appellee-Applicant moved to dismiss the appeal as untimely filed, with respect
to any attempt to appeal a 2007 subdivision approval, and moved to dismiss for lack of
party status with respect to the timely appeal of a 2010 lot line adjustment approval.
The motion to dismiss argued that Appellant had not participated in either the 2007 or
the 2010 Planning Commission hearings, as required by 24 V.S.A. § 4471(a) and 10
V.S.A. § 8504(b)(1), and that Appellant had not moved for party status despite his lack
of participation by filing a motion under 10 V.S.A. § 8504(b)(2) with his notice of appeal,
as required by V.R.E.C.P. 5(d)(2). Because affidavits and exhibits have been presented
in support of and in opposition to the motion to dismiss, V.R.C.P. 12(b) requires that it
be treated as a motion for summary judgment. A grant of “[s]ummary judgment is
appropriate when, giving the benefit of all reasonable doubts and inferences to the
nonmoving party, there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law.” Gade v. Chittenden Solid Waste Dist., 2009 VT
107, ¶ 7 (citing Mooney v. Town of Stowe, 2008 VT 19, ¶ 5, 183 Vt. 600 (mem.); V.R.C.P.
56(c)).
After the motion to dismiss was filed, Appellant moved, pursuant to V.R.E.C.P.
5(d)(2) and 10 V.S.A. § 8504(b)(2), for party status notwithstanding his lack of
participation at the Planning Commission hearings, and moved for an extension of time
to file that V.R.E.C.P. 5(d)(2) motion, arguing excusable neglect. After the initial
telephone conference, Appellant filed a new motion for leave to file a late appeal,
continuing to cite 10 V.S.A. § 8504(b)(2).4 The Court’s work on the motion to dismiss
was suspended to consider the motion to dismiss together with the motions for party
4 A motion for late appeal under V.R.A.P. 4(d) is not available in the present case as it must be filed within 30 days after expiration of the appeal period; it requires a showing of good cause or excusable neglect on the part of the moving party); In re Sheldon Excavating, Inc., No. 54-4-09 Vtec, slip op. at 3-4 (Vt. Envtl. Ct. June 8, 2009) (Wright, J.). 2 status and late appeal.
The facts stated in this decision are undisputed unless otherwise noted.
Scope of Appeal
”Seven[-]Lot” Subdivision
Some confusion has resulted from Appellant’s characterization of Appellee-
Applicant’s subdivision as a seven-lot subdivision in the original notice of appeal. That
notice did not refer to a Planning Commission decision made on any application for a
seven-lot subdivision. The following undisputed sequence of Planning Commission
action on Appellee-Applicant’s subdivision applications establishes the procedural
context of the present appeal and the present motions.
Appellant owns property on the northerly side of Bushey Road; Appellee-
Applicant’s property is located directly across Bushey Road, on the southerly side of the
road. Appellee-Applicant has subdivided several lots from a large parcel of land on the
south side of Bushey Road over time; these subdivisions were addressed by the
Planning Commission in separate proceedings in 2006, 2007, and 2010.
As described in Appellee-Applicant’s October 7, 2010 memorandum, in 2006,
Appellee-Applicant received approval to subdivide the larger property, creating two
development lots, and leaving a large parcel of retained land.5 The 2006 subdivision
decision was not appealed and is not at issue in the present case.
On May 31, 2007, Appellee-Applicant applied for major subdivision approval to
subdivide an additional four residential lots, presumably from the retained land left
after the 2006 subdivision. The four proposed development lots ranged from an acre to
5 One of the two development lots created in the 2006 subdivision was developed for a church use, to which Appellant refers in his filings. The church’s site plan application for its building and parking spaces on that lot was also heard at the December 2007 Planning Commission hearing. 3 an acre-and-a-half in size, leaving a fifth retained lot of 72.5 acres (the 2007 Cummings
Subdivision).6 After granting sketch plan approval in August 2007, the Planning
Commission granted preliminary and final plat approval to the subdivision on
December 19, 2007.
As reflected in the language of the notice of appeal, the Statement of Questions,
and Appellant’s affidavit filed October 25, 2010 (the October Gamache Affidavit), and
as further discussed in the initial pretrial telephone conference, by filing this appeal
Appellant seeks primarily to challenge the 2007 Planning Commission decision granting
preliminary and final plat approval to the 2007 Cummings Subdivision, arguing a lack
of the notice and posting required by 24 V.S.A. § 4464(a). Appellant’s amended notice
of appeal filed October 6, 2010, clarified that the appeal was also intended “to include”
an appeal of the September 15, 2010 decision of the Planning Commission “for a
boundary adjustment to the subdivision that is the subject of this appeal.” Nine of the
ten questions in the Statement of Questions relate to the 2007 Cummings Subdivision;
the tenth relates to whether the 2010 boundary adjustment is null and void due to the
asserted issues with the 2007 Cummings Subdivision.
Question 8 of the Statement of Questions
It is important to note that, if an action of the Planning Commission is ruled to be
invalid due to its failure to comply with the requirements of 24 V.S.A. § 4464(a), the
statute does not then allow the Court to proceed to consider the merits of the appeal.
6 The two development lots created in the 2006 subdivision, plus the four additional residential lots created in the 2007 subdivision from the retained land of the 2006 subdivision, plus the retained land left after the 2007 subdivision, equal a total of seven lots. Nevertheless, Appellant does not seek to appeal the 2006 subdivision, and in the 2007 subdivision decision the Planning Commission only approved a five-lot subdivision. Accordingly, the caption has been corrected to remove the reference to a “7-lot” subdivision. 4 Rather, any action ruled to be invalid under § 4464(a)(5) must “be remanded to the
[Planning Commission] to provide new posting and notice, hold a new hearing, and
take a new action.” 24 V.S.A. § 4464(a)(5).7
Question 8 of the Statement of Questions, seeking to raise the merits of the 2007
Cummings Subdivision decision, must therefore be DISMISSED as beyond the scope of
this appeal. That is, regardless of which party prevails on the pending motions, the
Court does not have jurisdiction of the merits of the 2007 subdivision application.
Statutory Notice and Posting Requirements
The required prior notice and posting of Planning Commission hearings is
governed by 24 V.S.A. § 4464(a).8 With regard to subdivision applications, the statute
imposes more stringent notice and posting requirements on municipalities for hearings
on the final plat review of subdivisions, 24 V.S.A. § 4464(a)(1), than it does for the
sketch plan and preliminary plat stages of subdivision review, 24 V.S.A. § 4464(a)(2).
Cf. In re Appeal of Carroll, 2007 VT 19, ¶ 11, 181 Vt. 383 (describing the various stages
of subdivision approval); 24 V.S.A. § 4418(2)(B) (authorizing municipal ordinances to
provide for preliminary stages of subdivision review).
7 This practice, which requires municipal panels to warn and hold a new public hearing in cases in which interested persons have not been provided with sufficient notice, encourages municipalities to be more careful in exercising their statutory duties to ensure that all interested persons are given the required notice and opportunity to be heard in the local proceeding. See In re Maple Tree Place, 156 Vt. 494, 500 (1991) (approving remand when interested persons have not had the opportunity to be heard on an issue during the local proceeding). This required remand serves an analogous purpose to the exclusionary rule in criminal cases. State v. Goldberg, 2005 VT 41, ¶ 19, 178 Vt. 96 (holding that exclusionary rule is intended to safeguard the Fourth Amendment through its deterrent effect, encouraging police diligence and ultimately resulting in more thorough and careful police work). 8 This statutory notice is distinct from the posting required after a zoning permit has
been issued by the zoning administrator, which is governed by 24 V.S.A. § 4449(b). 5 Both subsections require “written notification” of the hearing to be provided “to
the applicant and to owners of all properties adjoining” the subject property, including
properties across a public right-of-way from the subject property.9 This notification is
required to include a description of the proposed project and clearly to inform the
recipient where additional information may be obtained. Importantly, the notification
is required clearly to inform the recipient “that participation in the local proceeding is a
prerequisite to the right to take any subsequent appeal.” 24 V.S.A. § 4464(a)(1)(C),
(a)(2)(B).
Subsection 4464(a)(3) allows the municipality to require applicants to bear the
cost and/or the responsibility of notifying adjoining landowners. If a municipality shifts
responsibility for notifying adjoiners to the applicant, the statute also allows the
municipality to require the applicant to demonstrate proof of delivery of the notice by
certified mail, or by hand delivery or delivery by mail, “supported by a sworn
certificate of service.” 24 V.S.A. § 4464(a)(3). In the present case, neither party has
provided the Swanton ordinance from which the Court could determine whether the
responsibility for providing adjoiners with the required written notification has been
shifted to applicants in the Town of Swanton.
In addition to the notice requirements common to all types of hearings, the
public notice for a warned public hearing for final plat subdivision review must also be
given by publication of the date, place, and purpose of the hearing in a newspaper of
general circulation, 24 V.S.A. § 4464(a)(1)(A), and must be posted “within view from the
public right-of-way most nearly adjacent to the property for which an application is
made, 24 V.S.A. § 4464(a)(1)(B).
Subsection 4464(a)(3) allows the municipality to require the applicant to bear the
9 Both § 4464(a)(1) and (a)(2) also require posting of the date, place, and purpose of the hearing in three or more public places within the municipality. § 4464(a)(1)(B), (a)(2)(A). This requirement has not been raised as an issue in the present appeal. 6 cost of the public warning. However, in contrast to its provisions regarding notice
mailed or hand-delivered to adjoiners, 24 V.S.A. § 4464(a)(3) does not by its terms
authorize the municipality to shift responsibility to the applicant either for the
newspaper publication or for the posting within view from the nearest public right-of-
way.10
2007 Planning Commission Proceedings
In 2007, both Appellant Gamache and Appellee-Applicant Cummings were
involved in obtaining subdivision approval for their respective properties on Bushey
Road. In mid-2007, Appellee-Applicant applied for approval of the 2007 Cummings
Subdivision, described in the application as the creation of four lots ranging in size from
one to one-and-a-half acres, leaving a fifth “remaining (retained) lot of 72.5 acres.”
Gamache Ex. D. The application was assigned #388 on June 1, 2007. During the same
period in 2007, Appellant was also in the process of seeking Planning Commission
approval of a 22-lot residential subdivision on his own Bushey Road property (the
Gamache Subdivision).
The Planning Commission considered sketch plan review of the 2007 Cummings
Subdivision during hearings held on July 18, 2007 and August 15, 2007, and considered
preliminary and possible final plat review of the 2007 Cummings Subdivision during a
hearing held on December 19, 2007. The Planning Commission considered preliminary
plat review of the Gamache Subdivision during the July 18, 2007 hearing, and final plat
review during the August 15, 2007 hearing.
10 Compare 24 V.S.A. § 4449(b), which specifies that zoning permits must be posted in at least one public place in the municipality by the administrative officer, and which provides that the issued permit must require the permittee to post notice of the permit “on a form prescribed by the municipality” within view from the nearest public right- of-way. 7 Notice of July 18, 2007 Planning Commission Hearing – Sketch Plan Review
The Cummings property appears on the tax map dated June 28, 2007, provided
in Gamache Ex. D, as parcel # BR0062. Parcel # BR0171 across the road, which shows as
Gamache property on the 2010 tax map, appears on the list of abutters as owned by one
Gary Underwood. Appellant has not provided the Court with any information about
when he acquired Parcel # BR0171 or when his ownership was registered with the
municipal tax office or otherwise registered with any municipal office.
It is unclear from Gamache Ex. D whether this tax map and identification of
abutting property owners was provided to Appellee-Applicant by a town official. It is
also unclear from Gamache Ex. D whether the notice of the July 18, 2007 Planning
Commission hearing mailed on June 28, 2007 was sent out by Planning Commission
staff or by Appellee-Applicant Cummings.11
Based on the content of that document and the October Gamache Affidavit, it
appears that Mr. Gamache was sent specific written notification of the July 18, 2007
hearing as an applicant, related to his own subdivision, but was not sent a duplicate
notice in his capacity as an adjoining landowner regarding sketch plan review of the
2007 Cummings Subdivision. 24 V.S.A. § 4464(a)(2)(B). Material facts remain in dispute,
or at least have not been provided to the Court, as to the content of any written
notification sent to Mr. Gamache of the July 18, 2007 hearing, including whether the
entire hearing agenda, incorporating the 2007 Cummings Subdivision agenda item, was
sent to him at that time.
The public notice as published in the June 29, 2007 St. Albans Messenger,
Cummings Ex. 3, as well as the public notice incorporating the hearing agenda,
Cummings Ex. 4, described the 2007 Cummings Subdivision as:
11The fact that copies of it were sent using the generic language of “All Commission Members” and “All Applicants and Landowners” suggests that it may in fact have been mailed by the Planning Commission staff rather than by the applicant. 8 4. #388 Sketch Plan Request of Richard Cummings to create a Major Subdivision of four (4) residential lots from 1 acre to 1.5 acres in size, with the remaining (retained) lot of 72.5 acres, all to be accessed by private right-of[-]way with cul-de-sac leading from the South side of Bushey Road. R1 Agricultural/Residential District. (Emphasis in original hearing notice). Appellant states in the October Gamache Affidavit, ¶ 3, that he was aware that
Appellee-Applicant’s subdivision application appeared on the July hearing agenda, but
that he thought at the time that the agenda item related to the 2006 subdivision, rather
than to a new 2007 application, despite the fact that the application number was later in
sequence than his own application number. To the extent that the reasonableness of his
assumption is even material to this appeal, Appellant’s state of mind is not suitable for
summary judgment. Courts are advised to:
be cautious in granting motions for summary judgment in any cases in which the resolution of the dispositive issue requires determination of state of mind, as the fact finder normally should be given the opportunity to make a determination of the credibility of witnesses, and the demeanor of the witness whose state of mind is at issue. Barbagallo v. Gregory, 150 Vt. 653 (1988) (mem.) (citations omitted).
Further, only a portion of the public hearing notice for the July 18, 2007 hearing
published in the St. Albans Messenger has been provided to the Court, as Cummings
Ex. 3, and only a portion of the public hearing agenda has been provided, as Cummings
Ex. 4. These excerpts are sufficient to determine that preliminary plat approval of the
Gamache Subdivision was the second item on the agenda, and that sketch plan review
of the 2007 Cummings Subdivision was the fourth item on the agenda. However, these
excerpts are not sufficient to determine whether, after the listing of the agenda items,
the public hearing notice may have contained any notice about where additional
information may be obtained or may have contained information that participation in
the local proceeding is a prerequisite to the right to take any subsequent appeal.
Material facts also remain in dispute, or at least have not been provided to the
9 Court, as to the complete content of any specific written notification sent to any
adjoining landowners on the 2007 Cummings Subdivision before the July 2007 Planning
Commission hearing. That is, the Court cannot determine from the materials provided
as Gamache Ex. D whether the notice sent to adjoining landowners contained
“information that clearly informs the recipient where additional information may be
obtained” or whether it contained information “that participation in the local
proceeding is a prerequisite to the right to take any subsequent appeal.” 24 V.S.A.
§ 4464(a)(2)(B).
Appellant and Appellee-Applicant both attended the July 18, 2007 Planning
Commission hearing. At the beginning of the hearing, the Planning Commission
Chairman swore in all individuals who intended to testify on any of the agenda items.
Appellant participated in the hearing on his own subdivision, but states in the October
Gamache Affidavit, ¶ 5, that he left at the conclusion of the hearing on his own
subdivision, the second item on the agenda. Material facts are disputed as to whether
Appellant left the hearing before the Planning Commission reached the fourth agenda
item—the 2007 Cummings Subdivision. See Cummings Affidavit, ¶ 8. Unlike the other
agenda items, for the Cummings sketch plan review the minutes do not state either that
“no interested parties were in attendance” or whether a neighboring landowner was
present but did not comment.
At least by the end of the Cummings sketch plan agenda item at the July 18, 2007
Planning Commission hearing, the Planning Commission and its staff were aware that
Mr. Gamache was an adjoining landowner across Bushey Road from the 2007
Cummings Subdivision. That is, during the hearing, the Planning Commission
chairman specifically requested Appellee-Applicant to align his planned access with the
access planned for the Gamache Subdivision, in the event of the future need for a stop
light at that intersection. The Planning Commission actually gave Appellee-Applicant a
copy of the plan for the Gamache Subdivision “so that he could plan the driveway for 10 his project.” July 18, 2007 Planning Commission Minutes, § IV, Cummings Ex. 5.
In a deliberative session held on August 6, 2007, the Planning Commission voted
to grant preliminary plat approval to the Gamache Subdivision, and to continue the
sketch plan request for the 2007 Cummings Subdivision to the next public hearing,
already scheduled and noticed for August 15, 2007.
Notice of August 15, 2007 Planning Commission Hearing – Sketch Plan Review
On July 26, 2007, the Assistant to the Zoning Administrator mailed “the ‘Red P’
notice signs as well as attendant statute references” to both Mr. Gamache and Mr.
Cummings, as applicants, with reference to the August 15, 2007 Planning Commission
hearing.12 Cummings Ex. 6. Material facts remain in dispute, or at least have not been
provided to the Court, as to the content of any written notification sent to Mr. Gamache
of the August 15, 2007 hearing, including whether the agenda of the entire hearing, with
the 2007 Cummings Subdivision agenda item, was sent to him at that time.
Like the public hearing notice incorporating the agenda for the July hearing, the
public hearing notice incorporating the August hearing agenda, as well as the public
hearing notice published in the July 27, 2007 St. Albans Messenger, described the
12 It may be important to note that 24 V.S.A. § 4464(a)(2) does not require posting within view of a public right-of-way for sketch plan or preliminary plat review hearings. Moreover, unlike the permittee’s duty to post notice of an issued zoning permit adjacent to the nearest public road, see note 10, above, even the § 4464(a)(1)(B) duty to post notice that a Planning Commission hearing has been scheduled on a final plat subdivision review is not assigned by statute to the applicant. Rather, the statute provides that the applicant may be required to bear the cost of the public warning, but not necessarily its responsibility; the statute also does not provide for any proof of posting or sworn certificate by an applicant that the notice was in fact posted. 24 V.S.A. § 4464(a)(3). Nevertheless, in the present case the so-called “Red P” notice was provided to applicants even for sketch plan or preliminary plat review, and contained a section requiring them to post notice of the Planning Commission hearing, even though the accompanying cover notice only referenced the need to post a zoning permit or Planning Commission “approval.” See Gamache Exs. A, B, C. 11 proposed 2007 Cummings Subdivision as:
4. #388 Continued Sketch Plan Request of Richard Cummings to create a Major Subdivision of four (4) residential lots from 1 acre to 1.5 acres in size, with the remaining (retained) lot of 72.5 acres, all to be accessed by private right-of[-]way with cul-de-sac leading from the South side of Bushey Road. R1 Agricultural/Residential District. (Emphasis in original agenda). Also like the public hearing notice for the July hearing, only a portion of the
agenda has been provided, as Cummings Ex. 7; however, nearly all of the public
hearing notice for the August 15, 2007 hearing published in the St. Albans Messenger
has been provided to the Court, on two pages, as Cummings Ex. 8. Continued
preliminary and possible final plat approval of the Gamache Subdivision was the
second item on the agenda, and continued sketch plan review of the 2007 Cummings
Subdivision was the fourth item on the agenda. Although the published public hearing
notice is incomplete between the two pages of Ex. 8, it appears to have contained
information that that participation in the local proceeding is a prerequisite to the right
to take any subsequent appeal. The complete public hearing notice incorporating the
agenda has not been provided to the Court; the Court cannot determine whether that
information also appeared below the signature on the individual notice.
Appellant states in the October Gamache Affidavit, ¶ 6, that he received notice of
the August 15, 2007 Planning Commission hearing at which preliminary and possibly
also final plat approval for his subdivision would be addressed. Appellant also states
that he was aware that Appellee-Applicant had a subdivision application on the August
hearing agenda, but again assumed that it related to the 2006 subdivision.
Appellant and Appellee-Applicant both attended the August 15, 2007 Planning
Commission hearing. At the beginning of the hearing, the Planning Commission
Chairman swore in all individuals who intended to testify on any of the agenda items.
Appellant participated in the hearing on his own subdivision, but states in the October
12 Gamache Affidavit, ¶ 8, that he left at the conclusion of the hearing on his own
subdivision, the second item on the agenda. Material facts are disputed as to whether
Appellant left the hearing before the Planning Commission reached the fourth agenda
item—the 2007 Cummings Subdivision. See Cummings Affidavit, ¶ 14. For the
continued Cummings sketch plan review, the August 15, 2007 minutes do not state
whether or not any interested parties were in attendance or were present but did not
comment. The minutes note that Mr. Cummings had “located the access in line with
the access for Gamache’s project on the opposite side of the road as requested by the
Planning Commission.” August 15, 2007 Planning Commission Minutes, § V,
Cummings Ex. 9. However, there is no indication that the Planning Commission or its
staff used this information to amend its service list for the 2007 Cummings Subdivision
to add Mr. Gamache as an adjoiner who would require individual notification of any
future hearings.
At the conclusion of the hearing, the Planning Commission went into
deliberative session, and continued the deliberative session to August 20, 2007, at which
it granted final plat approval for the Gamache subdivision and granted sketch plan
approval for the 2007 Cummings Subdivision.
December 19, 2007 Planning Commission Hearing – Preliminary and Possible Final Plat Approval13 On November 29, 2007, a “Red P” notice was delivered or mailed to Mr.
Cummings, regarding the December 19, 2007 Planning Commission hearing. Gamache
Ex. C. Material facts remain in dispute, or at least have not been addressed in the
parties’ filings, as to whether that or any other notice of the December 19, 2007 Planning
13 The hearing on preliminary and final plat approval for the 2007 Cummings Subdivision was originally warned for an October 17, 2007 Planning Commission hearing. However, Appellee-Applicant did not attend that hearing, and the matter was rescheduled for the December 19, 2007 hearing date. 13 Commission hearing was posted within view of the nearest public right-of-way,
whether by Appellee-Applicant or by the staff of the Swanton Planning Commission.
A portion of the individual public notice incorporating the agenda of the entire
hearing, including the 2007 Cummings Subdivision agenda item, has been provided as
Cummings Ex. 10 down to the signature line of the Zoning Administrator. However, it
does not show whether or not information that participation in the local proceeding is a
prerequisite to the right to take any subsequent appeal was provided below the
signature line. Appellee-Applicant does not dispute that Appellant did not receive a
copy of the individual public notice of the December 19, 2007 hearing on the 2007
Cummings Subdivision. Neither party has provided the service list for the December
2007 individual public hearing notice, nor a copy of the related public hearing notice as
published in the St. Albans Messenger.
The public hearing notice incorporating the December 19 hearing agenda
described the proposed 2007 Cummings Subdivision as:
1. #388 Preliminary and Possible Final Plat Approval Request of Richard Cummings to create a Major Subdivision of four (4) residential building lots from 1 acre to 1.5 acres in size, with the remaining (retained) lot of 72.5 acres, all to be accessed by private right-of-way with cul-de-sac leading from the South side of Bushey Road. R1 Agricultural/Residential District. (Emphasis in original).
Appellant did not attend or participate in any portion of the December 19, 2007
Planning Commission hearing. After conducting a deliberative session at the end of the
hearing, the Planning Commission voted to grant preliminary and final plat approval of
the 2007 Cummings Subdivision. No appeal of the final plat approval of the 2007
Cummings Subdivision was filed within thirty days after the issuance of the Planning
14 Commission decision.14
2010 Planning Commission Hearing – Lot Line and Right-of-Way Adjustment
On August 30, 2010, Appellant received an individual copy of a notice of public
hearing for the September 15, 2010 Planning Commission hearing, incorporating the
proposed agenda, including an agenda item regarding the Cummings Subdivision.
Gamache Ex. 2, attached to the Gamache Affidavit filed September 22, 2010. The notice
of public hearing described the proposal as:
#438 Lot Line Adjustment Request of Richard Cummings to adjust the lot line between Lot #1 & lot #2 (Map Slide #180) and to revise Jerrymill Lane R.O.W. leading from Bushey Rd. and Lots 4-7 thereon. R1 Agricultural/Residential District and SG Southern Growth Core Overlay District. (Emphasis in original.) The notice stated that “[a]ttendance at and participation in this public hearing is
required in order to appeal any decision related to this hearing.”
Appellant contacted his attorney’s office regarding the Cummings Subdivision,
based on the hearing notice’s reference to there being seven lots in the subdivision.
Appellant’s attorney directed an administrative assistant to go to the Swanton Town
Offices to copy the Cummings Subdivision file. On Friday, September 10, 2010, the
administrative assistant called and left messages at the Swanton Town Clerk’s
telephone number and at the Zoning Administrator’s telephone number, after being
told that the Zoning Administrator was unavailable. On Tuesday, September 14, she
again called the Zoning Administrator’s office and reached him. Her affidavit reflects
that he told her that it would not be convenient for her to copy the file at that time, and
14 If a separate written decision was issued, it has not been provided to the Court, nor have the parties provided the date of adoption or issuance of the December 19, 2007 minutes; if the minutes constitute the written decision they are required to contain the factual bases and conclusions relating to the review standards for the 2007 Cummings Subdivision. 24 V.S.A. § 4464(b)(1). 15 that he would contact her when it was convenient.
Appellant attended the September 15, 2010 hearing, but declined to comment on
the Cummings Subdivision lot line and right-of-way adjustment when offered the
opportunity to do so by the Planning Commission. Appellant remained at the hearing
through all the agenda items to the “other business” portion of the agenda, at which
time he discussed with the Planning Commission a request to modify a driveway
location within the Gamache Subdivision.
After conducting a deliberative session at the end of the September 15, 2010
hearing, the Planning Commission approved Appellee-Applicant’s proposed lot line
and right-of-way adjustment.
Appellant’s attorney obtained a copy of the Cummings Subdivision file from the
office of the Zoning Administrator on September 21, 2010, and promptly filed the
present appeal the following day, on September 22, 2010.
Motions as to the 2010 Planning Commission Decision
Appellant’s original notice of appeal, and his amended notice of appeal filed
October 6, 2010, were both timely, even if dated from the September 15, 2010 vote of the
Planning Commission. Appellant has moved under V.R.E.C.P. 5(d)(2) and 10 V.S.A.
§ 8504(b)(2) for party status despite not having participated in the 2010 Planning
Commission hearing, and has moved for an extension of time to file that motion as it
was not filed with the notice of appeal. Appellee-Applicant has moved to dismiss the
appeal as it relates to the 2010 Planning Commission decision, for Appellant’s failure to
have participated in the hearing, and because Appellant’s motion was not filed with his
notice of appeal.
First, neither a separate written decision nor a signed copy of the minutes
constituting the written decision has been provided to the Court, see note 14, above.
For the purposes of this motion it is reasonable to conclude that the written decision, 16 whether it was contained in the adopted written minutes or in a separate written
decision, was not written up and issued later on the night of the hearing, as the hearing
did not conclude until 9:24 p.m. Even if the written decision was issued as soon as the
following day, a notice of appeal filed on October 18, 2010 would have been timely, and
therefore Appellant’s October 18, 2010 motion for party status under 10 V.S.A.
§ 8504(b)(2) should also be treated as timely filed. That is, the motion was filed within
the time for filing a notice of appeal, even though it was not filed with the original
notice of appeal. Because Appellant’s motion for party status under 10 V.S.A.
§ 8504(b)(2) was filed within the time allowed for filing a notice of appeal, it would not
be an appropriate exercise of the Court’s discretion to decline to consider it merely
because it was not filed with the notice of appeal. See Verizon Wireless Barton Permit,
2010 VT 62, ¶¶ 19–21 (holding that determination of party status under 10 V.S.A.
§ 8504(b)(2) and consideration of late-filed motions related to that determination is left
to the Court’s discretion).15
Even though Appellee-Applicant does not dispute that Appellant, as the owner
of adjoining property, qualifies as an “interested person” with respect to the Cummings
subdivision, 24 V.S.A. § 4465(b)(3), party status as an appellant also requires
participation in the underlying proceeding. 24 V.S.A. § 4471(a). Appellant has not
shown that his failure to participate in the 2010 public hearing should be excused.
Appellant received adequate individual notice of the September 15, 2010 public
hearing on the lot line adjustment and right-of-way revision to the Cummings
subdivision. Appellant has not shown that any procedural defect prevented him from
participating in the 2010 proceeding, nor has he shown that manifest injustice would
15 An amendment to V.R.E.C.P. 5(d)(2), effective May 27, 2011 and therefore not applicable to the present appeal, recently increased the time for filing a 10 V.S.A. § 8504(b)(2) motion for party status to “not later than the deadline for filing a statement of questions on appeal.” 2011, No. 53, § 14c. 17 result if his right to appeal the 2010 Planning Commission decision were disallowed. 10
V.S.A. § 8504(b)(2). Rather, Appellant was present at the 2010 hearing and made the
choice to decline to comment at that time, even though the warning notice had advised
that participation in the hearing was required in order to be able to appeal. The fact
that he had not been able to obtain the complete subdivision file between receiving
notice of the hearing and the hearing date does not excuse that lack of participation,
although it may explain the timing of his notice of appeal.
Accordingly, to the extent that Appellant’s appeal is taken from the Planning
Commission’s 2010 decision, it is DISMISSED because Appellant failed to participate in
the hearing as required by 10 V.S.A. § 8504(b)(1) and 24 V.S.A. § 4471(a), and has not
shown under 10 V.S.A. § 8504(b)(2) that any procedural defect prevented him from
participating in the 2010 proceeding, or that manifest injustice would result if his right
to appeal the 2010 Planning Commission decision were disallowed. As a practical
matter in the present appeal, this ruling results in the DISMISSAL of only Question 10
of the Statement of Questions.
Motions as to the 2007 Subdivision Plat Approval
Appellant has moved under V.R.E.C.P. 5(d)(2) and 10 V.S.A. § 8504(b)(2) to file a
late appeal of the December 19, 2007 Planning Commission decision granting final plat
approval for the 2007 Cummings Subdivision, despite not having participated in that
hearing, arguing that he did not have actual or record notice either that the application
was pending or that it would be considered at the December 2007 hearing. Appellee-
Applicant has moved to dismiss the appeal as untimely filed, as it relates to the 2007
Planning Commission decision, and for Appellant’s failure to have participated in the
hearing.
As is apparent from the amended notice of appeal and the Statement of
Questions, Appellant seeks to appeal only the final plat approval of the 2007 Cummings 18 Subdivision granted at the December 19, 2007 Planning Commission hearing, not the
earlier stage of sketch plan approval considered and ruled on in the July and August
2007 Planning Commission hearings. The Court will consider any actual notice
Appellant may have received of the existence of the 2007 Cummings Subdivision
application, due to the sketch plan proceedings held at the July and August 2007
Planning Commission hearings, only in relation to whether Appellant had adequate
notice of the December 19, 2007 Planning Commission hearing at which final plat
approval of the 2007 Cummings Subdivision was considered.
A person who qualifies as an interested person under 24 V.S.A. § 4465(b) may be
allowed to appeal a decision, notwithstanding having failed to participate in the
hearing, either under 10 V.S.A. § 8504(b)(2)(A), if “there was a procedural defect which
prevented the person from . . . participating in the proceeding” or under 10 V.S.A.
§ 8504(b)(2)(C), if “some other condition exists which would result in manifest injustice
if the person’s right to appeal was disallowed.”16 With regard to the 2007 proceedings,
assuming that Appellant is an “interested person” under 24 V.S.A. § 4465(b)(3) with
respect to the Cummings subdivision, as the owner of adjoining property, he must
qualify under 10 V.S.A. § 8504(b)(2)(A) or (C) to be allowed to bring this appeal.
Moreover, to argue for the right to bring a late appeal under the “manifest
injustice” standard of 24 V.S.A. § 4465(b)(2)(C), an interested party must demonstrate
that the appeal and the motion for late appeal were filed without additional delay after
the existence of the appealable decision and the grounds for appeal become known to
the interested party. Compare In re Main St. Place LLC Demolition Permit,
No. 163-8-09 Vtec (Vt. Envtl. Ct. Feb. 12, 2010) (Durkin, J.) (entry order) (allowing late
appeal when interested party made “effort to appeal upon learning of the ZBA’s
16As the decision being appealed is not the grant or denial of interested person status, and Appellant makes no argument under 10 V.S.A. § 8504(b)(2)(B), that subsection is not addressed in this decision. 19 unnoticed decision”); In re Feeley Construction Permits, Nos. 4-1-10, 5-1-10 Vtec., slip
op. at 7-9 (Vt. Super. Ct. Envtl. Div. July 5, 2011) (Wright, J.) (disallowing late appeal
when interested party failed to appeal during the seven months after he had first
observed the contested construction).
Of course, the time within which the fact of an unnoticed proceeding may
become apparent to an adjoiner may depend on the type of proceeding. For example, a
subdivision permit may not result in any observable changes to a subject property for a
number of years, while site plan approval or conditional use approval may result in the
commencement of construction as soon as possible after approval.
In the present case, material facts are disputed as to when Appellant was on
notice of or actually found out about the 2007 Cummings Subdivision. If he first
learned of it at the September 15, 2010 Planning Commission hearing, then his appeal a
week later, the day following his obtaining the Cummings Subdivision file, should be
considered by the Court under the reasoning of Main St. Place.
As described more fully above, 24 V.S.A. § 4464(a)(1) requires “public notice for a
warned public hearing” on final plat subdivision review to be given by all of the
following three methods: newspaper publication; posting in at least three public places,
including posting “within view from the public right-of-way most nearly adjacent to the
property;” and written notification to the applicant and to the owners of all adjoining
properties (including those across a public right-of-way). 24 V.S.A. § 4464(a)(1).
The statute also provides that “[n]o defect in the form or substance of any
requirements in [§ 4464(a)(1) or (2)] shall invalidate the action of the [Planning
Commission] where reasonable efforts are made to provide adequate posting and
notice.” 24 V.S.A. § 4464(a)(5). Nevertheless, even if reasonable efforts are made to
provide adequate posting and notice, the statute provides that “[h]owever, the action
shall be invalid when the defective posting or notice was materially misleading in
content.” Id. 20 Thus the Court must first determine if reasonable efforts were made to provide
the statutorily required notice and posting of the December 2007 Planning Commission
hearing. If reasonable efforts were made to provide the necessary posting and notice,
the Court must then determine whether the posting or notice was nevertheless
materially misleading in content. In addition, in the present case the Court must
determine whether the notice that did go to Appellant regarding his own agenda item
for the July and August 2007 Planning Commission hearings affects the reasonableness
of the notice for the December 2007 hearing, and must determine whether the cover
letter to the “Red P” notice, or the content of that notice, affects the reasonableness of
the efforts at posting for the December 2007 hearing. As discussed above, material facts
are in dispute, or at least have not been provided in the motion documents, as to these
determinations.
If there were procedural defects in notice or posting for the December 2007
Planning Commission hearing, material facts also remain in dispute as to whether such
defects prevented Appellant from participating in the December 2007 hearing, and
whether, if Appellant were not allowed to proceed with this appeal, it would result in
manifest injustice. 10 V.S.A. § 8504(b)(2)(A), (C).
The general rule is well settled in Vermont that a municipal zoning or
subdivision decision, even if made in error, that is not timely appealed becomes final
and cannot later be challenged in any proceeding. 24 V.S.A. § 4472(d); City of S.
Burlington v. Dep’t of Corrs., 171 Vt. 587, 588-89 (2000) (mem.) (ruling that 24 V.S.A.
§ 4472(d) prevents any sort of collateral attack on a zoning decision that is not timely
appealed); Levy, 152 Vt. at 142 (ruling that 24 V.S.A. § 4472(d) prevents a collateral
attack on a final zoning decision even if that “decision was void ab initio”). Providing
finality to applicants is important in that it prevents the legal system from grinding to a
halt under the uncertainty of development in a regime in which time limitations are not
enforced. In re Town of Killington, 2003 VT 87A, ¶ 17, 176 Vt. 60 (citing Silivanch v. 21 Celebrity Cruises, Inc., 333 F.3d 355, 368 (2d Cir. 2003). The policy of finality also
promotes the orderly governance of development by allowing for reasonable reliance
on the municipal zoning process and its decisions. See Levy, 152 Vt. at 143.
However, both the “manifest injustice” standard of the statute, 10 V.S.A.
§ 8504(b)(2)(C), and principles of due process or fundamental administrative fairness
require that an appellant must have had actual notice or the required statutory notice of
a proceeding to be held to the finality requirement. Main St. Place, No. 163-8-09 Vtec,
slip op. at 2; In re Hignite, 2003 VT 111, ¶ 8, 176 Vt. 562.
Because, as discussed above, material facts are in dispute or have not been
provided to the Court as to when and to what degree Appellant had actual notice or
statutory notice of the 2007 Cummings Subdivision, neither the motion to dismiss nor
the motion to take a late appeal can be decided on summary judgment. In particular,
facts are in dispute as to the content of the notice provided for or at the earlier hearings
on Appellant’s own subdivision, whether that notice apprised Appellant of the
requirement that he participate in the hearing in order to preserve his right to appeal,
and whether any notice of the December 2007 hearing was posted. A telephone
conference has therefore been scheduled to discuss whether an evidentiary hearing
should be scheduled on the motion to dismiss and the motion to take a late appeal
under 10 V.S.A. § 8504(b)(2).17
17 As the remedy statutorily prescribed by 24 V.S.A. § 4464(a)(5) is that an action deemed to be invalid either by this Court or by the municipal panel itself “be remanded to the municipal panel for it to provide new posting and notice, hold a new hearing, and take a new action,” the Town may apply to intervene under 10 V.S.A. § 8504(n)(6) to present its own evidence and argument if its interests differ from those of the principal parties. It is unfortunate that the issues of the notice and posting required under 24 V.S.A. § 4464(a)(1) are first being addressed more than three years after the relevant hearing. 22 Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED as
follows:
As discussed above, Question 8 of the Statement of Questions is
hereby DISMISSED as beyond the scope of this appeal.
With regard to the 2010 lot line adjustment decision, Appellant
received notice of the hearing, was present but did not participate as
defined in 24 V.S.A. § 4471, has not shown grounds for being allowed to
appeal despite his failure to participate, and therefore lacks standing to
appeal the 2010 lot line adjustment decision. To the extent that this appeal
is of the 2010 boundary adjustment decision, it is hereby DISMISSED; that
is, Question 10 of the Statement of Questions is hereby DISMISSED.
With regard to the 2007 Cummings Subdivision final plat approval
decision, the 10 V.S.A. § 8504(b)(2) motion to take a late appeal will be
considered to be timely, as it was filed within the time to appeal the 2010
subdivision decision, if and only if Appellant did not become aware of the
existence of the 2007 subdivision until or because of the hearing on the
2010 subdivision. That motion, and the motion to dismiss, depend on
disputed material facts and cannot be decided on summary judgment on
the present record.
Accordingly, a telephone conference has been scheduled at which the parties
should be prepared to discuss whether an evidentiary hearing should be scheduled, or
whether they wish to supplement their motion materials. The parties should also be
prepared to discuss whether mediation is now appropriate if they wish to discuss
resolving the merits of the as-subdivided final subdivision plat, which is beyond the
scope of this appeal. If the Town wishes intervene or to participate in the telephone
conference it shall advise the parties as soon as possible and shall file a motion or the 23 parties’ stipulation prior to the telephone conference.
Done at Berlin, Vermont, this 13th day of July, 2011.
_________________________________________________ Merideth Wright Environmental Judge