George v. Timberlake Associates

George v. Timberlake Associates  (98-170); 169 Vt. 641; 739 A.2d 1207

[Opinion filed 2-Aug-1999]
[Motion for Reargument denied 2-Sep-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-170

                             JANUARY TERM, 1999


Margaret George and John Russell	}	APPEALED FROM:	
	                                }
	                                }
     v.	                                }	Washington Superior Court
	                                }	
Timberlake Associates	                }
                                        }	DOCKET NO. 645-11-97Wncv


       In the above-entitled cause, the Clerk will enter:


       Petitioners Margaret George and John Russell appeal from a judgment
  entered in the  environmental court dismissing as untimely their appeal of
  a decision of the Montpelier Planning  Commission.  At issue is site plan
  approval granted by the commission to Timberlake Associates in  connection
  with a convenience store at 108 State Street in Montpelier.  The
  environmental court  determined that petitioners, who are neighbors of the
  Timberlake project, failed to file their notice  of appeal from the
  commission's approval within the requisite thirty-day period.  We disagree
  and,  accordingly, reverse.

       The relevant facts are not in dispute.  Because they owned property in
  the "immediate  neighborhood" of the project under site plan review,
  petitioners were "interested person[s]" with  standing to challenge the
  planning commission's decision.  See 24 V.S.A. § 4464(b)(3) (defining 
  "interested person").  On May 19, 1997 the planning commission approved
  Timberlake's revised  design and site plan in connection with the 108 State
  Street property, but no document purporting to  be a written decision on
  the application was issued.  The minutes of the May 19 meeting were filed 
  with the city clerk on May 30, 1997.  Less than an hour before midnight on
  June 18, 1997, exactly  thirty days after the meeting at which the planning
  commission approved the site plan, petitioners  handed a notice of appeal
  to the dispatcher at Montpelier police headquarters.  This document 
  reached the planning board the following day -- thirty-one days after the
  planning board voted to  approve the site plan.

       V.R.C.P. 74(b) requires that a notice of appeal from a decision of a
  governmental agency be  filed "with the clerk of the administrative body .
  . . or other appropriate officer."  The  environmental court concluded that
  in these circumstances a police dispatcher is not an appropriate  officer
  within the meaning of the rule and, therefore, that Timberlake was entitled
  to dismissal of  the action because the notice had not been appropriately
  filed within thirty days of May 19, 1997.   We need not reach the problem
  of whether serving the police dispatcher was legally sufficient,  however,
  because we conclude that petitioners were still within the thirty-day
  appeal period when  the notice reached the planning commission on the
  following day.

       To make that determination, we must first address Timberlake's
  contention that petitioners  waived the issue by failing to raise it before
  the environmental court.  See Spencer v. Killington,  Ltd., 167 Vt. 137,
  140, 702 A.2d 35, 36 (1997) (we will not reverse lower court when party's 
  failure to raise matter below denied trial court opportunity to consider
  it).  The environmental




  court appears not to have considered the possibility that the appeal period
  did not expire on June  18, 1997, and such a possibility was not the main
  thrust of petitioners' argument there.  However,  petitioners unambiguously
  - if only briefly - raised this aspect of the case by arguing in their
  written  opposition to the dismissal motion that the June 18 deadline was
  "infirm" given the lack of notice.   Thus, the environmental court had an
  opportunity to consider when the appeal period should be  deemed to have
  commenced and we may consider it on appeal.

       Site plan approvals are governed by 24 V.S.A. § 4407(5), which
  empowers municipal  planning commissions to require such authorizations
  "[a]s a prerequisite to the approval of any use  other than one- and
  two-family dwellings."  In conducting site plan reviews, planning
  commissions  may impose "appropriate conditions and safeguards" with
  respect to traffic access, circulation and  parking, landscaping and
  screening, protection and utilization of renewable energy resources and 
  any other matters specified in the commission bylaws.  Id.  A planning
  commission conducting a  site plan review must "act to approve or
  disapprove any such site plan within sixty days after the  date upon which
  it receives the proposed plan, and failure to so act within such period
  shall be  deemed approval."  Id.  Section 4407(5) is silent, however, on
  what triggers the running of the  applicable thirty-day appeal period.

       We recently had occasion to consider the manner of perfecting an
  appeal from a decision of a  board of adjustment.  In Town of Hinesburg v.
  Dunkling, we concluded that the 30-day appeal  period began to run when the
  municipality mailed the applicant a copy of the applicable minutes,  thus
  placing the party on formal notice of the determination it might wish to
  challenge.  See 167  Vt. 514, 522, 711 A.2d 1163, 1167-68 (1998).  In so
  holding, we again stated our concern that  organs of municipal government
  not take actions that tend to "bury" decisions so that interested  parties
  lose their appeal rights.  Id. at 521, 711 A.2d  at 1167.  Accordingly, as
  we noted in an  earlier case, "[a]lthough a zoning applicant can appeal
  from an oral decision, that decision does not  become final and the appeal
  period does not begin to run until either the board files its written 
  decision or the period for doing so . . . has expired."  In re White, 155
  Vt. 612, 615, 587 A.2d 928, 930 (1990).
 
       Timberlake Associates and the City of Montpelier would have us ignore
  the requirement of a  written decision to commence the appeals period, as
  applied in Dunkling and White, because those  cases involved appeals from
  zoning boards of adjustment rather than from a planning commission 
  conducting a site plan review.  Boards of adjustment must issue written
  findings of fact and mail  copies of the decision to the applicant and to
  every other person or body who appeared at the  hearing.  See 24 V.S.A. §
  4470(a).  Although there is no such requirement for planning  commissions,
  the Legislature has provided that, notwithstanding any other provision in
  the chapter  governing municipal and regional planning and development,
  "appeals from the decision of a  planning commission shall be in the same
  manner as provided for appeals from a decision of a  board of adjustment." 
  24 V.S.A. § 4475.  We are therefore disinclined to be cavalier with the 
  appeal rights of parties who have an interest in site plan approvals. 
  Although a site plan review  does not require a fully realized written
  explanation of the decision, some ministerial act we can  regard as a
  written decision must take place in order to trigger the running of the
  appeal period.

       We need not, and do not, decide exactly what event triggers the
  appeals period when, as  here, an interested party seeks to challenge a
  site plan approval.  It suffices to conclude that  petitioners' thirty-day
  appeal period could not have run by June 19, 1997 - when the planning 
  commission received petitioners' notice of appeal - because the only
  operative event that had  occurred more than thirty days prior to that date
  was the planning commission's oral vote.  The  appeal was therefore timely.



	Reversed.	



	BY THE COURT:


	_______________________________________
	Jeffrey L. Amestoy, Chief Justice

	_______________________________________
	James L. Morse, Associate Justice

	_______________________________________
	Denise R. Johnson, Associate Justice

	_______________________________________
	Marilyn S. Skoglund, Associate Justice