In Re Guillemette ZA Determination Appeal (Anne Guillemette & Mark Guillemette, Appellants)

2025 VT 25

• Court: Supreme Court of Vermont
• Decided: May 16, 2025
• Docket: 24-AP-141
• Status: Published

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: 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.

2025 VT 25

No. 24-AP-141

In re Guillemette ZA Determination Appeal Supreme Court (Anne Guillemette & Mark Guillemette, Appellants) On Appeal from Superior Court, Environmental Division

December Term, 2024

Thomas G. Walsh, J.

David R. Cooper and Rodney E. McPhee of Facey Goss & McPhee P.C., Rutland, for Appellants.

Megan E. Grove and Geoffrey H. Hand of SRH Law PLLC, Burlington, for Appellee Michael Casey.

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

¶ 1. REIBER, C.J. Landowners Anne and Mark Guillemette appeal an Environmental

Division order denying their motion to dismiss neighbor Michael Casey’s appeal and remanding

the matter to the Monkton Development Review Board (DRB) for consideration on the merits.

Below, landowners argued that the finality provision at 24 V.S.A. § 4472 barred neighbor’s

untimely challenge to a decision of the Monkton zoning administrator. On appeal, landowners

contend that the environmental court erred in concluding that 10 V.S.A. § 8504(b)(2)(C) creates

an exception to § 4472 under which it could permit neighbor’s appeal to proceed upon determining

that a “condition exists that would result in manifest injustice if the person’s right to appeal was

disallowed.” We agree that § 8504(b)(2)(C) does not apply to appeals from the decision of a

municipal administrative officer and therefore reverse. ¶ 2. The record reflects the following. The parties own neighboring properties in the

town of Monkton. In April 2023, neighbor sent an email to the Monkton zoning administrator

alleging that landowners were using their property in a manner that violated the town’s zoning

regulations. On June 6, 2023, the zoning administrator issued a decision finding that although

landowners had not obtained a permit to operate a wood-processing facility on their property, they

had been doing so for a period of at least nineteen years. The administrator concluded that this

use therefore fell outside the fifteen-year limitations period at 24 V.S.A. § 4454(a) and declined to

initiate an enforcement action.1

¶ 3. The following language was included at the conclusion of the zoning

administrator’s decision:

Please note: An appeal of this decision may be taken by filing, within 30 days of the date of this decision, a notice of appeal and the required fee by certified mail to the Superior Court, Environmental Division. See V.R.E.C.P. 5(b). A copy of the notice of appeal must also be mailed to the Town of Monkton Zoning Administrator or Town Clerk, P.O. Box 12, Monkton, VT 05469. See V.R.E.C.P. 5(b)(4)(A). Please contact the Environmental Division at 802-828- 1660 or http://vermontjudiciary.org/GTC/environmental/default .aspx for more information on filing requirements, deadlines, fees and mailing address.

At the time, neighbor, identified as an “interested person” under 24 V.S.A. § 4465(b)(3), was self-

represented. He filed a notice of appeal in the Environmental Division on July 5, 2023—twenty-

nine days after the zoning administrator’s decision issued.

¶ 4. The thirty-day deadline recited in the notice, however, was misleading. Had

neighbor sought more information about deadlines as the notice also advised, he would have

learned that he had fifteen days to appeal the zoning administrator’s decision to the Monkton DRB

and thirty days to appeal any subsequent DRB decision to the Environmental Division. Under 24

1 Neighbor asserts that the zoning administrator’s decision failed to address concerns he raised in his email regarding landowners’ automotive-repair shop and salvage yard. Landowners disagree. The scope of the zoning administrator’s decision is not relevant to the question before us on appeal and we therefore express no opinion on this point. 2 V.S.A. § 4465(a), an “interested person may appeal any decision or act taken by the administrative

officer in any municipality” by filing a notice of appeal to the municipality’s board of adjustment

or development-review board “within 15 days following the date of that decision or act.” 2 The

decision of that municipal board may, in turn, be appealed in the manner described in the zoning

administrator’s instructions: by filing a notice of appeal in the Environmental Division of the

superior court within thirty days. See 24 V.S.A. § 4471(a) (indicating that “[a]n interested person

who has participated in a municipal regulatory proceeding authorized under this title may appeal

a decision rendered in that proceeding by an appropriate municipal panel to the Environmental

Division . . . in such manner as the Supreme Court may by rule provide”); V.R.E.C.P. 5(b)(1)

(providing that appeal to Environmental Division must be filed “within 30 days of the date of” the

act, decision, or jurisdictional opinion appealed from unless court extends time under Rule 4 of

Vermont Rules of Appellate Procedure).

¶ 5. Landowners moved to dismiss, arguing that due to the finality provision in 24

V.S.A. § 4472, neighbor’s appeal was late and the Environmental Division lacked subject-matter

jurisdiction. Section 4472 provides that “the exclusive remedy of an interested person with respect

to any decision or act taken, or any failure to act, under this chapter or with respect to any one or

more of the provisions of any plan or bylaw shall be the appeal to the appropriate panel under

section 4465,” and that, “[u]pon the failure of any interested person to appeal to an appropriate

municipal panel under section 4465 . . . all interested persons affected shall be bound by that

2 As noted above, it is undisputed that neighbor falls within the statutory definition of “interested person,” which includes any individual

owning or occupying property in the immediate neighborhood of a property that is the subject of any decision or act taken under this chapter, who can demonstrate a physical or environmental impact on the person’s interest under the criteria reviewed, and who alleges that the decision or act, if confirmed, will not be in accord with the policies, purposes, or terms of the plan or bylaw of that municipality.

24 V.S.A. § 4465(b)(3). 3 decision or act of that officer.” 24 V.S.A. § 4472(a), (d). Because neighbor did not file a notice

of appeal within fifteen days of the zoning administrator’s decision as required under § 4465(a),

landowners contended that dismissal was mandatory under § 4472.3

¶ 6. Neighbor—now represented by counsel—opposed landowners’ motion and

requested that the Environmental Division either remand the matter to the Monkton DRB for

consideration on the merits or, in the alternative, retain jurisdiction and allow his appeal to proceed.

As pertinent here, he argued that 10 V.S.A. § 8504(b)(2)(C) carves out an exception to 24 V.S.A.

§ 4472 by giving the environmental court discretion to permit an untimely appeal from a municipal

administrative officer’s decision where a “condition exists that would result in manifest injustice

if the person’s right to appeal was disallowed.” Neighbor contended that to dismiss an appeal as

untimely where notice was filed by an unrepresented party in accordance with the incorrect

instructions of a zoning administrator would be “manifest injustice” within the meaning of

§ 8502(b)(2)(C). Landowners responded in opposition, arguing that § 8504(b)(2)(C) applies only

to appeals from municipal panel decisions and therefore could not save neighbor’s appeal from the

decision of a municipal administrative officer.

¶ 7. The Environmental Division subsequently issued a decision summarily accepting

neighbor’s assertion that § 8504(b)(2)(C) applies to appeals from the decision of a zoning

administrator. It explained that the undisputed facts demonstrated that neighbor reasonably and

detrimentally relied on the zoning administrator’s incorrect appeal instructions, citing In re

Langlois/Novicki Variance Denial for the proposition that where “a government official charged

with administering zoning regulations provides inaccurate advice,” a court “will not assume that

the citizen was nevertheless aware of the actual legal requirements.” 2017 VT 76, ¶ 23, 205 Vt.

3 24 V.S.A. § 4465(a) also directs that a notice of appeal from a zoning administrator’s determination be filed “with the secretary of the board of adjustment or development review board of that municipality or with the clerk of that municipality if no such secretary has been elected.” Landowners expressly declined to seek relief on the ground that neighbor’s notice of appeal was filed in the Environmental Division rather than with the Monkton DRB, arguing for dismissal solely on the basis that the notice was untimely. 4 340, 175 A.3d 1222. To disallow neighbor’s appeal under this circumstance, the court reasoned,

would result in “manifest injustice” under § 8504(b)(2)(C). On this basis, it denied landowners’

motion to dismiss and granted neighbor’s request for a remand to the Monkton DRB with

instructions to consider his appeal on its merits.

¶ 8. On appeal to this Court, landowners again argue that § 8504(b)(2)(C) does not

apply to appeals from the decision of a municipal administrative officer. In addition, they contend

that even with respect to appeals from municipal regulatory proceedings, § 8504(b)(2)(C) does not

allow the environmental court to excuse the requirement of a timely notice of appeal—instead, it

provides a narrower mechanism through which the court may allow an appeal from a person who

does not strictly satisfy the statutory standing requirements. Because we agree with the former

argument, we do not reach the latter.

¶ 9. On appeal from the Environmental Division’s denial of a motion to dismiss for lack

of subject-matter jurisdiction, we accept all uncontroverted factual allegations as true and construe

them in the light most favorable to the nonmoving party. In re 2078 Jersey St. CU Reconsideration

Denial, 2024 VT 20, ¶ 9, __ Vt. __, 316 A.3d 248. We review the court’s underlying legal analysis,

including its interpretation of statutory language, without deference. Id.; Vt. Hum. Rts. Comm’n

v. Town of St. Johnsbury, 2024 VT 71, ¶ 6, _ Vt. __, 329 A.3d 190.

¶ 10. Our objective in interpreting a statute is to ascertain and give effect to the

underlying legislative intent. In re Windham Windsor Hous. Trust JO Appeal, 2024 VT 73, ¶ 5,

__ Vt. __, 328 A.3d. 1225. Because we presume that the Legislature intended the plain, ordinary

meaning of the language it chose, we begin by examining the statutory text. Id. Where the

legislative intent is evident on the face of the statute, we enforce it according to its terms. In re

Carroll, 2007 VT 19, ¶ 9, 181 Vt. 383, 925 A.2d 990. Only if doubts survive this initial inquiry

will we resort to canons of statutory construction to uncover the Legislature’s intent. In re Hinsdale

Farm, 2004 VT 72, ¶ 5, 177 Vt. 115, 858 A.2d 249.

5 ¶ 11. The question presented here is whether the trial court erred in concluding that 10

V.S.A. § 8504(b)(2)(C) creates an exception to the finality provision in 24 V.S.A. § 4472. We

therefore begin by discussing § 4472, mindful that we must interpret § 8504(b)(2)(C) in the context

of this larger statutory scheme. See Town of Sandgate v. Colehamer, 156 Vt. 77, 82, 589 A.2d

1205, 1208 (1990) (“[W]e must interpret a zoning statute in light of the whole statutory scheme.”).

¶ 12. Under 24 V.S.A. § 4472(a), with two exceptions not relevant here, “the exclusive

remedy of an interested person with respect to any decision or act taken, or any failure to act, under

this chapter or with respect to any one or more of the provisions of any plan or bylaw” is “appeal

to the appropriate panel under section 4465 of this title, and the appeal to the Environmental

Division from an adverse decision upon such appeal under section 4471 of this title.” Section

§ 4472(d) goes on to provide that, upon the failure of any interested person to appeal to the

appropriate municipal panel under § 4465(a), or to appeal to the environmental court under § 4471,

“all interested persons affected shall be bound by that decision or act of that officer, the provisions,

or the decisions of the panel, as the case may be,” and are barred from subsequently contesting it

“either directly or indirectly . . . in any proceeding, including any proceeding brought to enforce

this chapter.”

¶ 13. We have interpreted these provisions many times, repeatedly affirming that

“§ 4472(a) and (d) are ‘two sides of the same coin,’ embodying through ‘broad and unmistakable

language’ a legislative intent ‘to prevent any kind of collateral attack on a zoning decision that has

not been properly appealed through the mechanisms provided by the municipal planning and

development statutes.’ ” In re Hopkins Certificate of Compliance, 2020 VT 47, ¶ 8, 212 Vt. 368,

237 A.3d 661 (quoting City of S. Burlington v. Dep’t of Corr., 171 Vt. 587, 588-89, 762 A.2d

1229, 1230 (2000) (mem.)). As a result, “[w]e strictly enforce” this jurisdictional bar “to require

that all zoning contests go through the administrative and appellate review process in a timely

fashion.” In re Ashline, 2003 VT 30, ¶¶ 10, 18, 175 Vt. 203, 824 A.2d 579 (emphasis added); see

In re Musto Wastewater Sys., 2014 VT 103, ¶ 6, 197 Vt. 514, 106 A.3d 929 (“The period to file 6 an appeal is a jurisdictional requirement defined by statute, and failure to file within the stated

timeframe results in the court’s loss of jurisdiction over the matter.”). Indeed, “[o]ur precedent is

clear that § 4472 applies even when the unappealed decision or act is incorrect or made without

proper authority.” Town of Pawlet v. Banyai, 2022 VT 4, ¶ 18, 216 Vt. 189, 274 A.3d 23.

¶ 14. With this understanding, we turn to 10 V.S.A. § 8504(b)(2)(C). In interpreting the

statute’s plain language, we are “guided . . . by the Legislature’s express statement of . . . policy.”

Hum. Rts. Def. Ctr. v. Correct Care Sols., LLC, 2021 VT 63, ¶ 11, 215 Vt. 362, 263 A.3d 1260.

Section 8504 is part of Title 10, chapter 220, which the Legislature enacted to “consolidate existing

appeal routes for municipal zoning and subdivision decisions and acts or decisions of the Secretary

of Natural Resources, district environmental coordinators, and District Commissions,” and

“standardize the appeal periods, the parties who may appeal these acts or decisions, and the ability

to stay any act or decision upon appeal, taking into account the nature of the different programs

affected.” 10 V.S.A. §8501(1), (2). The subsection of § 8504 at issue in this case provides in full:

(b) Planning and zoning chapter appeals.

(1) Within 30 days of the date of the act or decision, an interested person, as defined in 24 V.S.A. § 4465, who has participated as defined in 24 V.S.A. § 4471 in the municipal regulatory proceeding under that chapter may appeal to the Environmental Division an act or decision made under that chapter by a board of adjustment, a planning commission, or a development review board; provided, however, that decisions of a development review board under 24 V.S.A. § 4420 with respect to local Act 250 review of municipal impacts are not subject to appeal but shall serve as presumptions under chapter 151 of this title.

(2) Notwithstanding subdivision (1) of this subsection, an interested person may appeal an act or decision under 24 V.S.A. chapter 117 if the Environmental judge determines that:

(A) there was a procedural defect that prevented the person from obtaining interested person status or participating in the proceeding;

(B) the decision being appealed is the grant or denial of interested person status; or

(C) some other condition exists that would result in manifest injustice if the person’s right to appeal was disallowed. 7 10 V.S.A. § 8504(b).

¶ 15. The parties agree that subdivision (1) applies exclusively to appeals to the

Environmental Division following a municipal regulatory proceeding. This conclusion is

compelled by its plain language, which reiterates three requirements unique to such appeals: the

appellant must be an “interested person” who “participated” in the municipal regulatory

proceeding and then appealed the resulting decision to the Environmental Division within thirty

days. See 10 V.S.A. § 8504(b)(1). In other words, consistent with the Legislature’s express

statement of policy, subdivision (1) describes the “existing appeal route[]” for appeals to the

environmental court under the planning-and-zoning chapter of Title 24 and the Vermont Rules for

Environmental Court Proceedings, including the “appeal period[]” and “parties who may appeal.”

10 V.S.A. § 8501(1), (2); see 10 V.S.A. § 8504(b)(1); 24 V.S.A. §§ 4465(b), 4471(a); V.R.E.C.P.

5(b)(1).

¶ 16. Subdivision (2) then lays out three circumstances under which “the Environmental

judge” may permit an interested person to “appeal an act or decision under 24 V.S.A. chapter 117”

“[n]otwithstanding subdivision (1).” 10 V.S.A. § 8504(b)(2). Neighbor argues that the use of a

“notwithstanding” clause, coupled with the unqualified reference to an “act or decision under 24

V.S.A. chapter 117,” signals that the Legislature intended that subdivision (2) also encompass

appeals from the decisions of municipal administrative officers. We conclude that the

Legislature’s intent is unambiguous: both subdivisions of § 8504(b) apply exclusively to appeals

to the Environmental Division following a municipal regulatory proceeding.

¶ 17. Neighbor points to Cisneros v. Alpine Ridge Group, in which the U.S. Supreme

Court explained that use of a “notwithstanding” clause denotes an “intention that the provisions of

the ‘notwithstanding’ section override conflicting provisions” of another section. 508 U.S. 10, 18

(1993). It does not follow, however, that the Legislature included such a clause here to override

any implication that subdivision (2)—like subdivision (1)—applies only to appeals from a

8 municipal regulatory proceeding to the Environmental Division. Instead, the clause plainly

demonstrates that the Legislature anticipated conflicts could arise between the requirements to

appeal a municipal panel decision listed in subdivision (1) and the three exceptions enumerated in

subdivision (2). For example, subdivision (1) states that only a person who “participated” in the

municipal regulatory proceeding within the meaning of 24 V.S.A. § 4471 may appeal, but

subdivision (2)(A) allows an appeal where a procedural defect prevented an interested person from

“participating in the proceeding”—“[n]otwithstanding subdivision (1).” 10 V.S.A. § 8504(b).

¶ 18. Reading the clause as acknowledging these conflicts and providing for their

resolution is entirely consistent with the Legislature’s stated purpose to consolidate existing appeal

routes and to standardize attendant appeal requirements. See 10 V.S.A. §8501(1), (2). Contrary

to neighbor’s argument, the “notwithstanding” clause is not an oblique suggestion that subdivision

(2) differs in scope as compared with subdivision (1). Instead, it recognizes and provides for

resolution of the facial conflicts between these two provisions arising from their shared scope.

¶ 19. It is true that the phrase “an act or decision under 24 V.S.A. chapter 117,” standing

alone, could be interpreted to encompass the decision of a municipal zoning administrator. “The

words of a statute are not to be read in isolation, however,” and “[t]his Court will not excerpt a

phrase and follow what purports to be its literal reading without considering the provision as a

whole.” Windham Windsor Hous. Trust, 2024 VT 73, ¶ 5 (quotations omitted). When considered

within the context of the entire provision, it is apparent that the Legislature did not intend this

language to include the acts or decisions of administrative officers.

¶ 20. First, subdivision (2) expressly calls for “the Environmental judge” to determine

whether the appeal of “an act or decision under 24 V.S.A. chapter 117” may proceed. Under

chapter 117, the Environmental Division hears appeals from municipal regulatory proceedings,

but there is no direct appeal to the Environmental Court from the decision of an administrative

officer. 24 V.S.A. §§ 4465(a), 4471(a); see Grout v. Gates, 97 Vt. 434, 448, 124 A. 76, 80 (1924)

(“[W]hen a statute limits a thing to be done in a particular manner, or by a prescribed person or 9 tribunal, there is an implication that it shall be done in no other manner, nor by a different person

or tribunal.”). We must presume that the Legislature inserted the reference to an “Environmental

judge” advisedly and did not intend to create surplusage. See In re S. Burlington-Shelburne

Highway Project, 174 Vt. 604, 606, 817 A.2d 49, 52 (mem.). Because the decision of an

administrative officer cannot be appealed directly to an Environmental judge, the reference to “an

act or decision under 24 V.S.A. chapter 117” cannot be read to suggest that the Legislature

intended the exceptions at § 8504(b)(2) to apply to such decisions.

¶ 21. Second, § 8504(c), which governs “[n]otice of the filing of an appeal,” expressly

provides that “[i]n the case of appeals under 24 V.S.A. chapter 117, notice shall be as required

under 24 V.S.A. § 4471.” 10 V.S.A. § 8504(c)(3). As noted above, 24 V.S.A. § 4471 applies to

appeals from a municipal panel to the Environmental Division, while appeals from the decision of

an administrative officer to the municipal panel are separately regulated by 24 V.S.A. § 4465. If

the phrase “an act or decision under 24 V.S.A. chapter 117” in 10 V.S.A. § 8504(b)(2) were

intended to encompass appeals from administrative officers to municipal panels as well as appeals

from municipal panels to the Environmental Division, it would be entirely incongruous for

§ 8504(c)(3) to then provide that “[i]n the case of appeals under 24 V.S.A. chapter 117,” any notice

of appeal “shall be as required under 24 V.S.A. § 4471.” Thus, § 8504(c)(3) further reinforces our

conclusion that the plain language of § 8504(b)(2) refers only to appeals from municipal panels to

the Environmental Division.

¶ 22. The dissent points to 10 V.S.A. § 8503(c), which indicates that chapter 220 “shall

govern all appeals arising under 24 V.S.A. chapter 117, the planning and zoning chapter,” and

contends that this indicates an intent that § 8504(b)(2) apply to all planning-and-zoning appeals,

including appeals from an administrative officer to a municipal panel. Post, ¶¶ 39-40. As

discussed above, however, the plain language of § 8504 does not support this conclusion.

Moreover, § 8503 generally describes the subject matter of decisions that may be appealed under

Chapter 220. See, e.g., 10 V.S.A. § 8503(a) (providing that chapter 220 shall govern all appeals 10 from act or decision of Secretary of Natural Resources, “excluding enforcement actions under

chapters 201 and 211 of this title”); id. § 8503(b)(1) (providing that Chapter 220 shall govern all

appeals from acts or decisions of District Commissions “under chapter 151 of this title, excluding

appeals of application fee refund requests”). In this context, the reference to “all appeals arising

under 24 V.S.A. chapter 117” expresses the Legislature’s intent that each of the various types of

appeals that may arise under that chapter be governed by chapter 220 of Title 10. Id. § 8503(c);

see 24 V.S.A. § 4473 (explaining that purpose of appeals subchapter within chapter 117 is to

provide review “of all questions arising out of or with respect to the implementation by a

municipality of this chapter” (emphasis added)); see also, e.g., id. § 4449(a) (governing issuance

of permits for development); id. § 4451 (governing bylaw enforcement and penalties); id. § 4464

(governing development-review applications).

¶ 23. Nor can we agree that we must adopt neighbor’s reading of subdivision

§ 8504(b)(2) to harmonize it with 24 V.S.A. § 4472. As neighbor points out, “[l]ongstanding rules

of statutory construction counsel that a specific statute dealing with the same subject matter

governs over a more general one and that the two provisions must be read together and harmonized

if possible.” Billewicz v. Town of Fair Haven, 2021 VT 20, ¶ 22, 214 Vt. 511, 254 A.3d 194

(quotation omitted). But we resort to canons of construction only where the Legislature’s intent

is ambiguous, and the rule neighbor cites is employed only where that ambiguity arises from a

facial conflict between two statutes governing the same subject matter. See Billewicz, 2021 VT

20, ¶ 22 (applying canon “to resolve the ambiguity created by the fact that, read individually, the

plain language of both the one- and three-year statutes of limitations appear to apply to this

action”). For the reasons set forth above, § 8504(b)(2) simply does not apply to appeals from the

decision of an administrative officer. As a result, it creates no conflict with the finality provisions

for such decisions laid out in § 4472 and there is neither an ambiguity nor any reason to apply this

canon of construction.

11 ¶ 24. Neighbor also cites our decisions in In re Burns Two-Unit Residential Building,

2016 VT 63, 202 Vt. 234, 148 A.3d 568, and In re Fairchild, 159 Vt. 125, 616 A.2d 228 (1992),

to argue that this Court has “expressed skepticism that 24 V.S.A. §§ 4465 and 4472 should apply

to a decision of an administrative officer finding no violation.” We find no support for this

contention in the plain language of the statute or our precedent.

¶ 25. In Burns, a neighbor submitted a zoning-enforcement complaint to the Burlington

Code Enforcement Office alleging that the owners of a nearby residence were converting it from

a single-family home to two apartments without a permit. A city “zoning specialist” responded by

letter stating that the Office investigated the complaint and determined that the use was

permissible. No notice was given to other neighboring landowners, and the decision was not

appealed. Later, the owners filed a certificate with the city indicating their intent to modify the

configuration of the apartments within the building, and other neighbors sought to challenge the

action before the Burlington DRB and, on appeal, the Environmental Division. The environmental

court granted summary judgment to the owners, concluding that § 4472 barred any challenge to

the use of the property as a duplex because no interested person timely appealed the zoning

specialist’s decision to the DRB under § 4465. We reversed, concluding that the zoning specialist

was not an “administrative officer” of the municipality and, as a result, §§ 4465 and 4472 did not

apply. Burns, 2016 VT 63 ¶¶ 12-16. In so holding, we did not address the neighbor’s argument

that preventing an appeal in the absence of actual or constructive notice of the zoning specialist’s

determination would violate their due-process rights. Id. ¶ 10. While we did not reach the question

of whether such deficiency would equate to a due-process violation, we noted that it was “a strong

reason not to adopt a broad reading of § 4472(d) in this case.” Id. ¶ 14.

¶ 26. Here, however, neighbor had actual notice of the zoning administrator’s decision.

More to the point, he has identified no ambiguity in § 4472 which would call for us to weigh

related due-process principles in determining its scope as we did in Burns. 2016 VT 63 ¶¶ 12-16.

To the contrary, the language of § 4472 unambiguously encompasses nonenforcement decisions 12 by specifying that appeal pursuant to § 4465 is “the exclusive remedy of an interested person with

respect to any decision or act taken, or any failure to act, under this chapter or with respect to any

one or more of the provisions of any plan or bylaw.” 24 V.S.A. § 4472(a) (emphasis added).

¶ 27. “The policy underlying [§ 4472] is evident: ‘that there should, in fairness, come a

time when the decisions of an administrative officer become final so that a person may proceed

with assurance instead of peril.’ ” Levy v. Town of St. Albans Zoning Bd. of Adjustment, 152 Vt.

139, 142, 564 A.2d 1361, 1363 (1989) (quoting Graves v. Town of Waitsfield, 130 Vt. 292, 295,

292 A.2d 247, 249 (1972)). If nonenforcement decisions were not entitled to this same finality, a

landowner who persisted in the challenged activity would be forever in peril of penalty under 24

V.S.A. § 4451, which “authorizes a maximum fine of $200 per violation with each day the

violation continues counting as a new violation.” Town of Pawlet, 2022 VT 4, ¶ 30. Burns offers

no support for the conclusion that the Legislature intended such an anomalous result.

¶ 28. Fairchild also does not suggest that concerns for finality in municipal zoning are

any less salient as applied to nonenforcement decisions. In that case, a town board of adjustment

granted the property owners a conditional-use permit but, on appeal, the trial court reversed that

decision because the proposed use did not conform to the town zoning regulations. The owners

nonetheless went forward with the project and the town’s zoning administrator disregarded the

neighbors’ subsequent requests to enforce the zoning regulations. The neighbors obtained relief

in the form of mandamus requiring the town to enjoin the owners from using the property in

violation of the town’s regulations. We affirmed, concluding that mandamus was warranted since

the property was developed in violation of a court order, the writ sought enforcement of ministerial

duties, and there was no other adequate remedy at law. Fairchild, 159 Vt. at 130-31, 616 A.2d at

231 (explaining that mandamus is available only where petitioner has clear and certain right to

action sought, which must be enforcement of ministerial duties, and no other adequate remedy at

law). We rejected the town’s argument that the neighbors were not entitled to the writ because

they did not appeal the zoning administrator’s refusal to act to the board under 24 V.S.A. §§ 4472 13 and 4464. Id. at 131-32, 616 A.2d at 231-32. We explained the neighbors had already “avail[ed]

themselves of § 4472 remedies only to find that the Town refused to enforce their court order” and

held that although the neighbors “must exhaust their administrative remedies, they do not have to

do so twice.” Id. at 132, 616 A.2d at 232.

¶ 29. Unlike the neighbors in Fairchild, neighbor here did not pursue a timely appeal

through the process set forth in the statute only to face a municipality’s refusal to enforce the order

thus obtained. As we stated in Burns, “Fairchild is not a definitive ruling that §§ 4465(a) and

4472(d) do not apply to a decision of a zoning administrator finding no zoning violation.” Burns,

2016 VT 63, ¶ 14. Rather, it illustrates reluctance to apply a broad preclusion rule in a manner

that would “require the exercise of a fruitless and duplicate appeal to require the zoning

administrator to perform his ministerial duty.” Fairchild, 159 Vt. at 132, 616 A.2d at 232; see

Burns, 2016 VT 63, ¶ 14. That is simply not the situation confronting us today.

¶ 30. Section 4472 is “a procedural mandate passed by the Legislature requiring all

interested parties to bring any appeal through the proper administrative mechanisms” by barring

“interested parties from collaterally challenging a zoning administrator’s decision once the appeal

period has passed.” Town of Pawlet, 2022 VT 4, ¶ 20. Here, § 4472 left the court without

jurisdiction to allow neighbor’s untimely challenge to the zoning administrator’s decision. See

Town of Charlotte v. Richmond, 158 Vt. 354, 357-58, 609 A.2d 638, 640 (1992) (“24 V.S.A.

§ 4472 expressly deprives the superior court of subject matter jurisdiction when a timely appeal is

not taken to the board of adjustment.”). As we recently explained, in the absence of an applicable

exception, the jurisdictional limitations set forth in § 4472 are determinative. See 2078 Jersey St.,

2024 VT 20, ¶ 22. For the reasons discussed above, the exception set forth at 10 V.S.A.

§ 8504(b)(2)(C) does not apply to neighbor’s appeal.

¶ 31. Neighbor argues that if this is so, and no “other implied equitable tolling” is

available, then he is left without redress. To the extent he thus suggests that we should alternatively

consider whether any equitable remedy saves his appeal, he failed to preserve this argument for 14 our review because he did not raise it below. See Doe v. Camacho, 2024 VT 72, ¶ 40, __ Vt. __,

329 A.3d 156 (declining to reach equitable-tolling argument as not preserved for review where not

presented below “ ‘with specificity and clarity in a manner which gives the trial court a fair

opportunity to rule on it.’ ” (quoting State v. Ben-Mont Corp., 163 Vt. 53, 61, 652 A.2d 1004,

1009 (1994)).

¶ 32. This brings us, however, to a final point. In reaching this conclusion, we by no

means recede from the principle expressed in In re Langlois/Novicki Variance Denial and relied

on by the Environmental Division in its decision. We explained in that case that “citizens should

not be charged with knowing local regulations better than government officials charged with

administering them,” and where “a government official charged with administering zoning

regulations provides inaccurate advice, we will not assume that the citizen was nevertheless aware

of the actual legal requirements.” 2017 VT 76, ¶ 23. As neighbor observes, we similarly stated in

In re McDonalds Corporation that just as citizens “must turn square corners when they deal with

the Government,” the government “should be held to a similar standard when dealing with its

citizens.” 146 Vt. 380, 386, 505 A.2d 1202, 1205 (1985) (quotation omitted). But in both cases,

we made these statements in evaluating a litigant’s effort to equitably estop the state. See

Langlois/Novicki Variance, 2017 VT 76, ¶ 12; McDonalds Corp., 146 Vt. at 383, 505 A.2d at

1203-04. Under that analysis, a court must consider whether the government knew the relevant

facts and intended that its conduct be acted upon, whether the party asserting estoppel was ignorant

of the true facts and relied to their detriment on the government’s representations, and whether

“the injustice that would result from denying the estoppel outweighs the negative impact on public

policy that would result from applying estoppel.” Langlois/Novicki Variance, 2017 VT 76, ¶ 13

(quotation omitted). Here, however, neighbor argued only that § 8504(b)(2)(C) saved his appeal.

That statute plainly does not apply, and neighbor offered no alternative argument under which the

court could bring these equitable considerations to bear. As a result, we do not, as the dissent

15 suggests, hold that neighbor is without other remedy. Post, ¶ 47. We conclude only that the sole

remedy he sought to invoke here is not available to him.

Reversed.

FOR THE COURT:

Chief Justice

¶ 33. CARROLL, J., dissenting. In my view, subdivision (2) of 10 V.S.A. § 8504(b)

is not limited to appeals from municipal regulatory proceedings. The plain language of

§ 8504(b)(2) makes subdivision (2) applicable to all appeals within 24 V.S.A. chapter 117,

including appeals from acts or decisions of administrative officers. To hold otherwise would result

in manifest injustice. Accordingly, I would affirm the Environmental Division’s decision and

permit neighbor’s appeal to proceed before the development review board. I therefore respectfully

dissent.

¶ 34. In construing a statute, our ultimate goal “is to effectuate the Legislature’s intent.”

T.C. v. L.D., 2020 VT 19, ¶ 4, 211 Vt. 582, 229 A.3d 77 (quotation omitted). To do so, we start

by examining the plain language of the statute because “[w]e presume that this language was

drafted advisedly, and that the plain, ordinary meaning of the language used was intended.” Id.

(alteration and quotation omitted).

¶ 35. As the majority acknowledges, there is no dispute that § 8504(b)(1) only applies to

appeals from municipal panel proceedings. Ante, ¶ 15. I agree the plain language of

subdivision (1) allows “an interested person, as defined in 24 V.S.A. § 4465” to appeal an act or

decision from a municipal regulatory proceeding to the Environmental Division within thirty days

of that decision. See 10 V.S.A. § 8504(b)(1).

¶ 36. Subdivision (2) then states, “notwithstanding subdivision (1),” “an interested

person may appeal an act or decision under 24 V.S.A. chapter 117” if there was a procedural defect, 16 the decision being appealed is the grant or denial of interested person status, or manifest injustice

would result if the appeal was not allowed. 10 V.S.A. § 8504(b)(2). The use of a

“notwithstanding” clause dictates a clear intention “that the provisions of the ‘notwithstanding’

section override conflicting provisions of [another] section.” Cisneros v. Alpine Ridge Grp., 508

U.S. 10, 18 (1993). By using the phrase “notwithstanding subdivision (1),” the Legislature could

not have been more explicit in its intent to override any conflicts between subdivision (1) and

subdivision (2). See State v. Lynch, 137 Vt. 607, 611, 409 A.2d 1001, 1004 (1979) (“The phrase

‘notwithstanding any other provision of law’ clearly indicates the legislative intent that [the statute]

take precedence over any other enactment dealing with the same subject matter. It is difficult to

perceive how the [L]egislature could have more clearly expressed its intention to supersede prior

enactments except by the use of express words of repeal.” (alteration omitted) (citation omitted)).

Accordingly, regardless of the scope of subdivision (1), subdivision (2) applies to all appeals under

24 V.S.A. chapter 117, not just appeals from decisions made by boards of adjustment, planning

commissions, or development review boards.

¶ 37. Chapter 117 of title 24, titled “Municipal and Regional Planning and

Development,” encompasses different types of appeals: under § 4465, “[a]n interested person may

appeal any decision or act taken by the administrative officer” to “the board of adjustment or

development review board”; and under § 4471, “[a]n interested person who has participated in a

municipal regulatory proceeding . . . may appeal a decision rendered in that proceeding . . . to the

Environmental Division.” Here, § 8504(b)(2) expressly provides that if the Environmental

Division determines that certain conditions exist, an interested person may still appeal “an act or

decision under 24 V.S.A. chapter 117.” In my view, the Legislature’s choice to directly reference

the entirety of chapter 117, rather than limiting the applicability of subdivision (2) to appeal under

§ 4471, strongly indicates the Legislature’s intent that subdivision (2) apply more broadly,

“notwithstanding” anything in subdivision (1). Had the Legislature intended § 8504(b)(2) apply

only to appeals from municipal regulatory proceedings, it could have done so. See Vt. State Colls. 17 Fac. Fed’n v. Vt. State Colls., 138 Vt. 451, 455, 418 A.2d 34, 37 (1980) (“Presumably, th[e]

language was inserted advisedly, and with intent that it should be given meaning and force.”).

¶ 38. The use of the term “[E]nvironmental judge” in subdivision (2) does not limit the

applicability of the subdivision to an act or decision under 24 V.S.A. § 4471. Even though § 4471

designates appeals from municipal regulatory proceedings to the Environmental Division,

§ 8504(b)(2) permits the Environmental Division to address certain appealability issues of all

appeals under chapter 117. Section 8504(b)(2) directs the Environmental Division to determine if

such appealability issues exist, and, if so, the Environmental Division may allow an appeal to

proceed in the appropriate process as otherwise dictated by the planning and zoning chapter. And

that is exactly what occurred here. When the Environmental Division determined manifest

injustice would result if neighbor’s right to appeal would be disallowed, the case was remanded to

the developmental review board.

¶ 39. Accordingly, the plain language does not conflict with the statement of policy set

forth in 10 V.S.A. § 8501, which states that the purpose of the chapter is to “consolidate existing

appeal routes for municipal zoning and subdivision decisions.” While I agree with the majority

that an express statement of policy is strong evidence of Legislative intent, Hum. Rts. Def. Ctr. v.

Correct Care Sols., LLC, 2021 VT 63, ¶ 11, 215 Vt. 362, 263 A.3d 1260, nothing in the statement

of policy here conflicts with the plain meaning of subdivision (2). An appeal of an act or decision

of an administrative officer to a municipal panel is an existing appeal route under chapter 117. 24

V.S.A. § 4465. Further, chapter 220 “govern[s] all appeals arising under 24 V.S.A. chapter 117,

the planning and zoning chapter.” 10 V.S.A. § 8503(c) (emphasis added); see also id. § 8504(b)

(titled “Planning and zoning chapter appeals”).

¶ 40. The majority’s construction is both at odds with the words chosen by the

Legislature and renders the language “an act or decision under 24 V.S.A. chapter 117” in

subdivision (2) superfluous. See In re Mountain Top Inn & Resort, 2020 VT 57, ¶ 37, 212 Vt.

554, 238 A.3d 637 (“We consider the whole and every party of the statute and avoid a construction 18 that would render part of the statutory language superfluous.” (citation omitted) (quotations

omitted)). We must give effect to the Legislature’s intent that § 8504(b)(2) apply to all appeals in

chapter 117.

¶ 41. I recognize that applying § 8504(b)(2)(C) in this case would allow an otherwise

untimely appeal to proceed. As consistently acknowledged by this Court, 24 V.S.A. § 4472

represents the Legislature’s policy choice in favor of finality in zoning decisions. See In re

Hopkins Certificate of Compliance, 2020 VT 47, ¶ 8, 212 Vt. 368, 237 A.3d 661; City of S.

Burlington v. Dep’t of Corrs., 171 Vt. 587, 588-89, 762 A.2d 1229, 1230 (2000) (mem.). However,

in enacting § 8504(b)(2)(C) the Legislature has chosen to make a limited exception to that

requirement when fairness demands it. See In re 2078 Jersey St. CU Reconsideration Denial, 2024

VT 20, ¶ 22, __ Vt. __, 316 A.3d 248 (holding because of Legislature’s unambiguous “policy

choice in favor of finality, § 4472 is determinative absent “specific rules adopted by . . . the

Legislature”)

¶ 42. Landowners argue that adopting such an interpretation “leads to a slippery slope

that would eviscerate the goal of finality.” As the majority acknowledges, ante ¶ 27, “[t]he policy

underlying [finality] is evident: that there should, in fairness, come a time when the decisions of

an administrative officer become final so that a person may proceed with assurance instead of

peril.” Levy v. Town of St. Albans Zoning Bd. Of Adjustment, 152 Vt. 139, 142, 564 A.2d 1361,

1363 (1972) (quotation omitted). Regardless, § 8504(b)(2) is an express exception to the finality

provision that I would conclude is applicable to appeals from administrative officers. 2078 Jersey

Street, 2024 VT 20, ¶ 22. The Legislature has clearly contemplated that circumstances could arise,

such as the one we are confronted with here, in which it would be appropriate to allow an untimely

appeal to proceed in the interest of fairness. Given the plain language of the statute at issue, we

must effectuate that intent. See Sirloin Saloon of Shelburne, Rutland, & Manchester, Inc. v. Dep’t

19 of Empl. & Training, 151 Vt. 123, 129, 558 A.2d 226, 229 (1989) (“[T]he policy issue is for the

legislature, not this Court, where as here the statute is plain on its face.”).4

¶ 43. Thus, I would hold that § 8504(b)(2)(C) applies to neighbor’s appeal from an

administrative officer’s nonenforcement decision and reach the issue of whether the

Environmental Division erred in determining that manifest injustice would result if neighbor’s

appeal was not allowed to proceed. In my view, the Environmental Division correctly held that it

would be fundamentally unfair to dismiss neighbor’s appeal as untimely when he received and

relied on incorrect advice from the administrative officer about his right to appeal.

¶ 44. We review the Environmental Division’s determination for abuse of discretion. In

re MDY Taxes, Inc., 2015 VT 65, ¶¶ 7, 14, 199 Vt. 248, 123 A.3d 1184. “To support a claim of

error there must be a showing that the court failed to exercise its discretion, or exercised it for

reasons clearly untenable or to an extent clearly unreasonable.” State v. Savo, 141 Vt. 203, 208,

446 A.2d 786, 789 (1982).

¶ 45. We have yet to precisely define the bounds of “manifest injustice” under 10 V.S.A.

§ 8504(b)(2)(c). MDY Taxes, Inc., 2015 VT 65, ¶ 15 (recognizing manifest injustice is considered

an “exacting and strict standard” in other contexts); see also In re Hignite, 2003 VT 111, ¶ 8, 176

Vt. 562, 844 A.2d 735 (mem.) (“[T]he question remains whether due process or fundamental

administrative fairness requires that a party deprived of notice of a zoning permit be allowed to

contest the permit, notwithstanding the strong policy interests in finality.”). However, I think the

circumstances presented here would surely fit within any bounds the Court could possibly define.

See, e.g., Vahlteich v. Knott, 139 Vt. 588, 590-91, 433 A.2d 287, 288-89 (1981) (remanding “to

4 If I were to conclude that the language is ambiguous, then I would apply the canon of construction that “counsel[s] that a specific statute dealing with the same subject matter governs over a more general one and that the two provisions must be read together and harmonized if possible.” Billewicz v. Town of Fair Haven, 2021 VT 20, ¶ 22, 214 Vt. 511, 254 A.3d 194 (quotation omitted); see also In re Snyder Group, Inc., 2020 VT 15, ¶ 14, 212 Vt. 168, 233 A.3d 1077. As such, § 8504(b)(2) would govern as the more specific provision.

20 prevent a failure of justice” when self-represented co-defendant mistakenly believed answer filed

by other defendant, his daughter, was sufficient); cf. MDY Taxes, Inc., 2015 VT 65, ¶ 15

(concluding appellants “failed to demonstrate . . . any injustice, let alone manifest injustice” when

development review board provided statutorily required notice and appellants failed to participate

in proceeding (emphasis omitted)).

¶ 46. The undisputed facts show that neighbor was provided inaccurate information

about his right to appeal by the administrative officer and acted and relied upon such

misinformation. He followed the instructions provided to him: he filed his notice of appeal in the

Environmental Division twenty-nine days after the administrative officer issued its

nonenforcement decision and mailed a copy of the notice to the Town of Monkton. While

landowners argue, and the majority agrees, ante, ¶ 4, that had neighbor sought more information

he would have learned about the fifteen-day deadline, “[w]e have recognized that citizens should

not be charged with knowing local regulations better than government officials charged with

administering them” and when “a government official charged with administering zoning

regulations provides inaccurate advice, we will not assume that the citizen was nevertheless aware

of the actual legal requirements.” In re Langlois/Novicki Variance Denial, 2017 VT 76, ¶¶ 21-23,

205 Vt. 340, 175 A.3d 1222 (addressing elements of equitable estoppel doctrine against the

government” and whether landowner had knowledge of the true facts “despite [zoning

administrators” multiple assurances to the contrary).

¶ 47. It would be fundamentally unfair for us to expect neighbor, who was self-

represented at the time, to have sought more information about the correct deadline when the

government official who presumably understood the requirements provided him the advice. See

In re Lyon, 2005 VT 63, ¶ 21,178 Vt. 232, 882 A.2d 1143 (addressing equitable estoppel against

government agency and recognizing that generally “ignorance of the law would not excuse failure

to comply with its requirements . . . it would be manifestly unfair to charge permit applicants with

the responsibility of correctly interpreting and enforcing the applicable legal provisions in the face 21 of advice to the contrary from the responsible government agency”); Vahlteich, 139 Vt. at 590-91,

433 A.2d at 288-89 (recognizing that while pro se litigants “are bound by the ordinary rules of

civil procedure” we “will not permit unfair imposition or unconscionable advantage to be taken of

one who acts as his own attorney” (quotation omitted)). There is nothing in the notice that would

prompt neighbor to question the advice about his right to appeal the decision when that advice is

printed on the decision itself. To hold otherwise would mean that neighbor would have no other

remedy in relying on such misleading information. Accordingly, I see no abuse of discretion here

and would thus affirm the Environmental Division’s decision and allow neighbor’s appeal to

proceed before the development review board.

¶ 48. I therefore respectfully dissent.

Associate Justice