Mohr v. Village of Manchester

ENTRY_ORDER.92-546; 161 Vt. 563; 641 A.2d 89

[Filed 17-Sep-1993]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 92-546

                               MAY TERM, 1993


 Raymond M. and Ann L. Mohr        }          APPEALED FROM:
                                   }
      v.                           }          Bennington Superior Court
                                   }
 Village of Manchester             }
 Frank Harrigan, James D.          }          DOCKET NO. S0279-90BcCa
 & Carolyn Stewart, Intervenors    }

              In the above entitled cause the Clerk will enter:

      This appeal concerns appellants' right to contest the Manchester
 Village Planning Commission's approval of the Mohrs' application to erect a
 structure on their property.  Appellants Frank Harrigan and the Stewarts,
 adjoining landowners, claim that the trial court erred by failing to grant
 them their statutory right to intervene as interested persons, pursuant to
 24 V.S.A. { 4471.  Section 4471 provides that "[a]n interested person may
 appeal a decision of a board of adjustment to the superior court" and
 mandates that notice be sent "to every interested person appearing and
 having been heard at the hearing before the board" who then, upon motion,
 "shall be granted leave by the court to intervene."

      It is undisputed that appellants were interested persons as defined in
 24 V.S.A. { 4464(b)(3), and thus had a statutory right to intervene.  It is
 also undisputed that appellants were not served with notice of appeal as
 mandated by { 4471.  The issue then is whether the trial court was required
 to allow appellants to exercise their statutory right by granting their
 motion to intervene.  While appellants had a right to intervene, the trial
 court has discretion to deny intervention where the motion is untimely.
 See Ernst v. Rocky Road, Inc. 141 Vt. 637, 639-640 (1982) (timeliness of
 application to intervene under V.R.C.P. 24(a) is matter within discretion of
 the trial court).  Here, however, the trial court denied appellants' motion
 without explaining why it was denied.  We cannot review the trial court's
 exercise of discretion where there is no record of how that decision was
 reached.  We therefore remand the matter to the trial court for
 reconsideration of appellants' motion to intervene.

      Appellant Village of Manchester claims that the Mohrs failed to invoke
 the jurisdiction of the superior court because they did not timely file
 their notice of appeal with the Planning Commission, as required under
 V.R.C.P. 74(b).  This Court has previously held that the failure to file a
 notice of appeal, brought under 24 V.S.A. { 4471, with the clerk or other
 officer of the tribunal appealed from, here the Planning Commission, within
 the required time deprives the court of jurisdiction over the appeal.  See
 Harvey v. Town of Waitsfield, 137 Vt. 80, 82, 401 A.2d 900, 901 (1979).
 There is no indication in the record that the Mohrs ever filed their notice
 of appeal with the Planning Commission or its clerk.  The Mohrs instead
 filed a notice of appeal with the superior court within the required time.

 

     V.C.R.P. 74(b) requires that appeals from decisions of government
 agencies shall be made "in the manner and within the time provided in Rules
 3 and 4 of the Rules of Appellate Procedure."  V.R.C.P. 74(b).  In 1985 this
 Court amended V.R.A.P. 4 by adding the following sentence:

      If a notice of appeal is mistakenly filed in the Supreme
      Court, the clerk of the Supreme Court shall note thereon the
      date on which it was received and transmit it to the clerk of
      the superior court or district court, and it shall be deemed
      filed in the superior or district court on the date so noted.

 V.R.A.P. 4.  The added language "responds to the common error of a notice of
 appeal filed in the Supreme Court rather than in the trial court."
 Reporter's Notes, V.R.A.P. 4.

      We find no discernible difference, insofar as notice of appeal is
 concerned, between an appeal mistakenly filed in the Supreme Court and an
 appeal mistakenly filed in the superior court.  We find, therefore, that
 V.R.C.P. 74(b), in requiring a notice of appeal "in the manner ... provided
 in [V.R.A.P.] Rules 3 and 4," contemplates the "common error" that occurred
 in the instant case.  Harvey is overruled to the extent that it conflicts
 with the amended V.R.A.P. 4.  The notice of appeal filed by the Mohrs in the
 superior court is deemed filed with the Planning Commission on the date on
 which it was received in the superior court.

      Finally, the Village argues that the trial court erred by failing to
 require that the Mohrs' two lots be combined in a common deed as a condition
 for approval of their application.  The application as made by the Mohrs is
 based upon the combination of the two lots and approval is dependent upon
 the combination.  If the application is eventually granted on remand, it
 will necessarily include the combination of the lots into a single lot, and
 any further applications by the Mohrs would require consideration of the
 lots as combined.  We find, therefore, that there is no need to require the
 trial court to condition approval upon a common deed.

      Reversed and remanded for reconsideration of appellants' motion to
 intervene.

                                    BY THE COURT:


                                    Frederic W. Allen, Chief Justice


                                    Ernest W. Gibson III, Associate Justice


 [ ]  Publish                       John A. Dooley, Associate Justice

 [ ]  Do Not Publish
                                    James L. Morse, Associate Justice


                                    Denise R. Johnson, Associate Justice