In Re Burchard Road Petition to Abandon Land Use Permit Denial (Myrna Nathin, Appellant)

2024 VT 51, 325 A.3d 127
CourtSupreme Court of Vermont
DecidedAugust 9, 2024
Docket24-AP-039
StatusPublished
Cited by2 cases

This text of 2024 VT 51 (In Re Burchard Road Petition to Abandon Land Use Permit Denial (Myrna Nathin, Appellant)) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Burchard Road Petition to Abandon Land Use Permit Denial (Myrna Nathin, Appellant), 2024 VT 51, 325 A.3d 127 (Vt. 2024).

Opinion

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vtcourts.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

2024 VT 51

No. 24-AP-039

In re Burchard Road Petition to Abandon Land Use Permit Supreme Court Denial (Myrna Nathin, Appellant) On Appeal from Superior Court, Environmental Division

May Term, 2024

Thomas S. Durkin, J.

Jon T. Anderson of Primmer Piper Eggleston & Cramer, PC, Burlington, for Appellant.

Adam, Kathleen, and Michael Beasley, Pro Se, Putney, Appellees.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

¶ 1. REIBER, J. Neighbor Myrna Nathin appeals the denial of her motion for relief

from a judgment of the Environmental Division declaring an Act 250 land-use permit for an

adjoining property to be abandoned. Neighbor argues that the Environmental Division should

have vacated the order and reopened the abandonment proceeding because she was not provided

with adequate notice of the petition to abandon the permit. We conclude that the Environmental

Division properly denied neighbor’s motion under Vermont Rule of Civil Procedure 60(b) and

therefore affirm the decision below.

¶ 2. This appeal concerns a multi-acre tract of land on Burchard Road in Dover,

Vermont. In 1990, previous owners of the subject property sought an Act 250 permit to develop

it as part of a planned subdivision. Neighbor, whose property abuts a portion of the subject property, was granted party status in the 1990 permit proceeding as it related to waste disposal and

soil erosion. The district commission granted a permit in May 1993 allowing the applicants to

subdivide the property into twenty lots and “to construct 2,335 linear feet of roadway, 3,042 feet

of eight-inch sewer main, 3,000 feet of sewer line, a fire protection pond, approximately 985 feet

of eight[-]inch fire protection water main and hydrants[,] and pave the roads in the development.”

The permit required construction of infrastructure to be completed by October 1998 and house

construction to be completed by October 2005. The district commission subsequently extended

these deadlines to require infrastructure to be completed by 2005 and homes to be completed by

2020. However, construction apparently never began.1

¶ 3. Landowners Adam, Kathleen, and Michael Beasley acquired a portion of the

property from the heirs of the original permit applicants in April 2022. Because landowners did

not intend to develop the permitted subdivision project, they filed a petition with the district

commission to abandon the permit pursuant to 10 V.S.A. § 6091(b) and Act 250 Rule 38(D). See

Act 250 Rules, Rule 38(D), Code of Vt. Rules 12 004 060, https://nrb.vermont.gov/sites/nrb/

files/documents/2015%20Adopted%20Rules.pdf [https://perma.cc/3Z76-67EA]. Landowners

provided the district commission with a list of interested persons, including neighbor. In August

2022, the district commission declined to review the petition, reasoning that by prior order the

“Environmental Law Division of the Superior Court of Washington County established Act 250

jurisdiction over the lots that the Petition seeks to abandon” and therefore the superior court had

jurisdiction over the permit. The district commission sent copies of its decision to all interested

persons and entities, including neighbor at the address that landowners provided. Landowners

1 Neighbor asserted below and in her reply brief that a fire-protection pond was constructed. Landowners assert that improvements were made to a pond on other property that is not subject to Act 250 jurisdiction. We need not resolve whether this constituted use sufficient to prevent abandonment of the permit because as discussed below, we conclude that neighbor lacked standing to seek relief from the abandonment order. 2 appealed to the Environmental Division and in September 2022 published public notice of the

appeal in a local newspaper. Following proceedings in which neighbor did not appear and only

landowners and the Natural Resources Board participated, the Environmental Division entered a

stipulated judgment and order on January 9, 2023, ruling that the permit was abandoned. No

appeal was taken from that order.

¶ 4. Nine months later, in October 2023, neighbor filed a motion for relief from

judgment pursuant to Vermont Rule of Civil Procedure 60(b), asking the Environmental Division

to “void” the January 2023 order and reopen the abandonment proceeding. Neighbor, who lives

in New Jersey, asserted that she did not receive the notice mailed by the district commission to her

Vermont street address because the post office does not deliver mail there. She alleged that she

first became aware of the permit abandonment when her son visited her property in August 2023

and observed new construction on landowners’ property. Neighbor argued that the order should

be vacated due to mistake or misrepresentation because landowners failed to mention in their

petition for abandonment that a fire-retention pond had been constructed.

¶ 5. In January 2024, the court denied neighbor’s motion, concluding that she lacked

standing to file a Rule 60(b) motion because she was not a party. See V.R.C.P. 60(b) (stating that

upon motion, “the court may relieve a party or a party’s legal representative from a final judgment,

order, or proceeding” (emphasis added)). The court also reasoned that Vermont Rule of Appellate

Procedure 4(c) could not provide neighbor with relief because it permits reopening the time for

appeal only when the motion is filed within “90 days of entry of the judgment or order or within

14 days of receipt of notice of the judgment or order, whichever is earlier.” Neighbor filed her

motion more than a year after the district commission’s order and more than eighty days after

receiving actual notice of the judgment, which precluded relief under Rule 4(c). The court

therefore denied neighbor’s motion. Neighbor appealed to this Court.

3 ¶ 6. Before reaching neighbor’s arguments, we must first address landowners’ claim

that this Court lacks jurisdiction over neighbor’s appeal because it was not timely filed. See

Casella Const., Inc. v. Dep’t of Taxes, 2005 VT 18, ¶ 11, 178 Vt. 61, 869 A.2d 157 (“The timely

filing of a notice of appeal is a jurisdictional requirement.”). Landowners argue that neighbor

failed to appeal the January 2023 abandonment order within thirty days and the appeal period was

not tolled by neighbor’s Rule 60(b) motion because it was filed more than twenty-eight days after

the judgment. See V.R.A.P. 4(a) (requiring notice of appeal to be filed within thirty days after

entry of judgment), 4(b) (tolling appeal period if party timely files certain motions). Landowners

contend that we lack jurisdiction to review an order denying a Rule 60(b) motion if the appeal is

filed more than twenty-eight days after the order and is not seeking relief from a default judgment.

¶ 7. The tolling provisions cited by landowners would be relevant if neighbor was

seeking to appeal the January 2023 order. However, neighbor is not appealing that order—she is

appealing the denial of her Rule 60(b) motion. An order denying a Rule 60(b) motion is a final

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Bluebook (online)
2024 VT 51, 325 A.3d 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-burchard-road-petition-to-abandon-land-use-permit-denial-myrna-vt-2024.