In re Garen (2001-490); 174 Vt. 151; 807 A.2d 448
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In re Appeals of Garen Supreme Court
(Katherine Gluck and John Desautels, Appellants)
On Appeal from
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:
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).