In re Garen

Annotate this Case
In re Garen (2001-490); 174 Vt. 151; 807 A.2d 448

[Filed 09-Aug-2002]

       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,
  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.

                                No. 2001-490

  In re Appeals of Garen	                      Supreme Court 
  (Katherine Gluck and John Desautels, Appellants)
                                                      On Appeal from
                                                      Environmental Court

                                                      June Term, 2002 

  Merideth Wright, J.

  Michael J. Straub, Bethel, for Appellants.

  Neil H. Mickenberg of Mickenberg, Dunn, Kochman, Lachs & Smith, PLC,
    Burlington, for Appellees Green Mountain Habitat for Humanity, Inc. 
    and Burlington House Authority.

  Kimberlee Sturtevant of McNeil, Leddy & Sheahan, PC, Burlington, for
    Appellee City of Burlington.

  PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

       MORSE, J.   Intervenors Katherine Gluck and John Desautels appeal from
  an order of the environmental court dismissing the appeal of the final plat
  approval granted applicants Green Mountain Habitat for Humanity and the
  Burlington Housing Authority after the original appellants, David and June
  Garen, voluntarily withdrew.  Intervenors argue that the trial court
  erroneously determined that they could not independently maintain the
  appeal once the original appellants withdrew and that any independent
  issues that intervenors wished to raise were barred because they had not
  filed their own separate timely notice of appeal.  We reverse and remand.


       On February 20, 2001, the Burlington Development Review Board granted
  final plat approval to a project proposed by Green Mountain Habitat for
  Humanity for a parcel of land located at 140 Venus Avenue owned by the
  Burlington Housing Authority.  Neighbors David and June Garen filed a
  timely appeal of the approval to the environmental court.  After the time
  for appeal had tolled, Katherine Gluck and John Desautels sought permission
  to intervene in the appeal pursuant to 24 V.S.A. § 4471(a), V.R.C.P.
  24(a)(1) and 76(a).  The court granted their motion to intervene, but
  stated that they could not add new and independent issues to the appeal as
  the time for initiating appeals had lapsed. 

       Thereafter, the Garens voluntarily withdrew their appeal for reasons
  unrelated to the appeal.  The court dismissed the case.  Intervenors sought
  unsuccessfully to have the appeal reinstated, arguing that they could
  independently maintain the appeal.  They now appeal to this Court.

       Under the statutory scheme governing appeals to the environmental
  court from bodies such as a development review board, "interested
  person[s]" - which include property owners in the immediate neighborhood of
  a subject property such as Gluck and Desautels, 24 V.S.A. § 4464(b)(3) -
  who have participated in the proceedings before the board may intervene in
  appeals before the environmental court as of right.  24 V.S.A. § 4471(a);
  see also V.R.C.P. 76(a)(2) (providing that the Rules of Civil Procedure
  shall apply to proceedings before the environmental court unless otherwise
  provided); V.R.C.P. 24(a)(1) (providing for intervention when statute
  confers an unconditional right to intervene).  The question presented in
  this case concerns their ability to continue with an appeal once the
  original party appealing withdraws from the appeal.
       The few courts that have confronted this issue in analogous
  circumstances have consistently concluded that intervenors should be
  allowed to proceed.  In United States Steel Corp. v. EPA, the 


  Court of Appeals for the Third Circuit held that the presence of the party
  filing the original petition for review of an EPA action was not necessary
  for continuation of an appeal and that the intervenor could proceed
  following the original petitioner's voluntary dismissal from the suit.  614 F.2d 843, 844-46 (3d Cir. 1979).  The court noted that the petition for
  review had been timely filed and that  the intervenor's motion was likewise
  timely, although outside the time to file a separate petition for review. 
  Id. at 845.  It concluded that, despite the motion to intervene coming
  after the time to file a petition for review, the intervenor should not be
  dismissed from the appeal solely because the original petitioner no longer
  wished to proceed.  Id.  The Court of Appeals for the District of Columbia
  has reached similar conclusions in two cases involving zoning appeals. 
  Bates v. D.C. Bd. of Zoning Adjustment, 639 A.2d 607, 611 (D.C. 1994)
  (where intervenor participated before zoning board of adjustment and filed
  a timely motion to intervene in appeal from zoning board, he may continue
  appeal following original petitioner's request to dismiss their petition
  for review); Goto v. D.C. Bd. of Zoning Adjustment, 423 A.2d 917, 922-23
  (D.C. 1980) (zoning board properly adjudicated appeal from decision of
  zoning administrator where intervenor could have maintained appeal despite
  the fact that original appellant should have been dismissed from the
  appeal); see also City of New Haven v. Chem. Waste Mgmt. of Ind., 685 N.E.2d 97, 102 (Ind. Ct. App. 1997) (intervening party may appeal from
  decision of trial court in zoning case despite the fact that original
  parties had reached settlement and had sought dismissal of case); Rafferty
  v. Sancta Maria Hospital, 367 N.E.2d 856, 859 (Mass. App. Ct. 1977)
  (regardless of whether parties treated as intervenors or parties added by
  amendment, fact that original parties were dismissed from appeal before
  zoning board did not preclude new parties from pursuing appeal before the
  board).  The court's rationale can be distilled from both cases as: where
  intervention is timely; is not sought for an improper 


  purpose, such as curing a jurisdictional defect; and is done simply to
  protect the interests of the intervening party, a court should not dismiss
  an appeal simply because the original party appealing is unable or
  unwilling to proceed with the case.  

       Because we discern nothing in the statutory scheme governing appeals
  to the environmental court that appears to foreclose intervenors from
  carrying on with the suit, we see no reason to diverge from the cases cited
  above.  Applicants Green Mountain Habitat for Humanity and the Burlington
  Housing Authority argue, however, that allowing intervenors to carry on
  with an appeal once the original appellants have withdrawn is at odds with
  the goal of resolving appeals to the environmental court expeditiously.  We
  note, however, that several measures address this concern, while stopping
  short of denying parties their day in court.  Although intervention under
  the statute is a matter of right, the environmental court still may deny a
  motion to intervene if it is not made within a reasonable time period.  See
  Ernst v. Rocky Rd., Inc., 141 Vt. 637, 639-40, 450 A.2d 1159, 1160 (1982)
  (holding even in cases of intervention as of right under V.R.C.P. 24(a),
  trial court has discretion to deny motions to intervene that are not made
  within a reasonable time); accord Mohr v. Vill. of Manchester, 161 Vt. 562,
  562, 641 A.2d 89, 90 (1993) (mem.).  Thus, the court in its discretion may
  deny intervention when it is sought late in the game and would delay the
  proceedings.  Given that proceedings before the environmental court are
  appellate in nature, the Rules of Appellate Procedure may provide guidance
  in determining what would constitute a reasonable time in which to seek
  intervention. (FN1)  See, e.g., V.R.A.P. 4 (providing that any other party
  may file a notice of appeal 


  within fourteen days of the original notice of appeal); see also V.R.A.P.
  29 (providing generally that amici curiae should be bound by same filing
  deadlines with regard to briefing as the party with whom they are siding);
  V.R.C.P. 76(e)(4)(B) (requiring appellant before environmental court to
  file a statement of the issues within thirty days of notice of appeal).  In
  this case, the motion to intervene came twenty-two days after the original
  notice of appeal and prior to the filing of the statement of issues on
  appeal.  Applicants make no argument to this Court that the motion was
  untimely or otherwise improperly granted.

       Another control on the scope of proceedings before the environmental
  court relates to who may intervene.  The right of intervention is confined
  to parties that participated in the proceeding appealed from.  24 V.S.A. §
  4471(a).  Therefore, the pool of potential intervenors is necessarily
  limited.  Lastly, as discussed in more detail below, the rules governing
  appeals in the environmental court do not provide for an intervening party
  to augment the issues on appeal; thus, the owners of a subject property
  will not be caught unawares late in the appeal process by a host of new
       As one commentator noted, "[t]hat some applicants may be seeking only
  to delay and obstruct suggests not that the courts should consistently deny
  intervention [or dismiss an intervenor for that matter] but rather that
  they be vested with discretion to decide both whether intervention should
  be allowed and, if it should, the extent of the intervener's [sic]
  participation."  D. Shapiro, Some Thoughts on Intervention Before Courts,
  Agencies and Arbitrators, 81 Harv. L. Rev. 721, 746 (1968).   In sum, we
  cannot agree with applicants' contention that, in the name of efficiency,
  the statutory scheme contemplates denying a proper party to the proceeding
  a hearing on the merits based solely on the chance withdrawal of an
  original appellant.  Therefore, the court erroneously dismissed the suit
  and denied intervenors' motion to reinstate the appeal.

       Because we are reversing and remanding, we must address intervenors'
  second argument on appeal that the environmental court erroneously denied
  their request to file their own separate statement of issues on appeal and
  erroneously ruled that the appeal would be confined to those issues raised
  by the original appellants.  We discern no error.
       Rule 76 specifically provides "[w]ithin 30 days after the filing of
  the notice of appeal . . . the appellant shall file a statement of the
  questions that the appellant desires to have determined . . . . No other
  paper or pleading shall be transmitted or filed."  V.R.C.P. 76(e)(4)(B)
  (emphasis added).  In other words, an appeal to the environmental court is
  confined to the issues raised in the statement of questions filed pursuant
  to an original notice of appeal.  See Village of Woodstock v. Bahramian,
  160 Vt. 417, 424, 631 A.2d 1129, 1133 (1993) (holding that, where Town did
  not file its own notice of appeal, it could not raise issues beyond those
  delineated in the permit applicant's notice of appeal and trial court
  improperly concluded entire application was before it on appeal; appeal was
  confined to four items listed in notice of appeal).  The rules governing
  pleading in traditional civil cases simply have no applicability to such
  appeals, including the rule allowing for liberal amendment of pleadings,
  see V.R.C.P. 15(a) (noting leave to amend should be freely given);
  Lillicrap v. Martin, 156 Vt. 165, 170, 591 A.2d 41, 44 (1991) ("trial
  courts are to be liberal in permitting amendments to the pleadings"). 
  V.R.C.P. 76(e)(4)(B) explicitly forecloses that possibility.  "When one is
  granted intervention, either as of right or in the exercise of discretion,
  it does not necessarily follow that he must be granted all the rights of a
  party at the trial and appellate levels . . . ."  D. Shapiro, supra, at
  727.  This is not unusual in appeals of this nature.  See, e.g., Nat'l
  Ass'n of Regulatory Util. Comm'rs v. ICC, 41 F.3d 721, 729 (D.C. Cir. 1994)
  (in appeal from administrative rule-making proceeding, court noted
  "[i]intervenors may only argue issues that have been raised by the


  parties" and were confined to matters raised by the petition for review). 
  If a party wishes to determine the issues before the environmental court on
  appeal, the party must file a separate notice of appeal.  

       Reversed and remanded. 

                                       FOR THE COURT:

                                       Associate Justice


FN1.  Currently, neither the Rules of Civil Procedure, nor the statute
  allowing for intervention put a time limit on the right.  Because we think
  it an appropriate matter for consideration given the concern over delay in
  the resolution of land use issues, we refer the question of whether a
  specific time limit should be imposed to the Advisory Committee on the
  Rules of Civil Procedure.  See A.O. 17 (establishing Committee).