In re Gulli

In re Gulli (2002-037); 174 Vt. 580; 816 A.2d 485

[File 04-Nov-2002]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2002-037

                             OCTOBER TERM, 2002

  In re Appeal of Nicholas &           }        APPEALED FROM:
  Barbara Gulli, et al.	               }	
                                       }
      	                               }	Environmental Court
                                       }	
                                       }
                                       }	DOCKET NO. 4-1-01 Vtec

                                                Trial Judge: Merideth Wright

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

       In this zoning dispute, Nicholas A. Gulli and a group of Ludlow
  landowners ("Gulli group") appeal from the environmental court's grant of a
  motion to dismiss in favor of Okemo Mountain, Inc. ("Okemo").  The Gulli
  group argues that the court improperly granted Okemo's motion to dismiss
  the Gulli group's statement of questions, and therefore the appeal, by
  holding that the issues pertaining to the Town of Ludlow Development Review
  Board's August 8, 2000 decision approving Okemo's planned unit development
  and subdivision plat were not timely filed and thus beyond the scope of the
  appeal, and by incorrectly treating the Development Review Board's November
  27, 2000 evaluation of Okemo's submitted "Final Parcel Map" as distinct
  from a "Final Subdivision Plat" requiring a public hearing pursuant to 24
  V.S.A. § 4407(12) or § 4414.  We affirm.

       In November 1999, Okemo submitted a consolidated application to the
  Ludlow Development Review Board ("DRB") requesting site plan approval,
  subdivision approval, conditional use approval, and planned unit
  development ("PUD") approval of its Phase I Jackson Gore Project
  ("Project").  The Project is a mixed use recreational development involving
  expansion of Okemo's skiing and snowboarding facilities, and a PUD of 120
  acres, including 117 condominium/hotel units, associated commercial
  facilities, parking and infrastructure.  Following public hearings, the DRB
  issued a Notice of Decision on April 21, 2000, approving Okemo's
  application subject to certain  conditions.  On May 16, 2000, Okemo moved
  the DRB for reconsideration and alteration of its  April 21 decision.  A
  hearing was held before the DRB in July 2000 to consider Okemo's motion and
  the DRB issued an amended decision on August 8, 2000.  The DRB incorporated
  the amendments of the August 8 decision into the April 21 decision on
  October 5, 2000.  The amended decision required Okemo to submit to the DRB
  a "Final Parcel Map" ("Map") displaying the Project with the DRB's imposed
  conditions incorporated therein.  Okemo submitted the Map in October 2000
  and the Map received DRB approval on November 27, 2000.  
   
       Throughout the application process, several Ludlow residents exercised
  their statutory right to appeal from the decisions of the DRB to the
  environmental court.  See 24 V.S.A. § 4471 (allowing 

 

  appeals from development review board to environmental court).  On May 19,
  2000, Nicholas A. Gulli appealed from the April 21, 2000 DRB decision.  On
  August 14, 2000, George Dunnett appealed from the August 8, 2000 DRB
  decision. On December 12, 2000, Gulli and a group of fifteen other Ludlow
  residents appealed from what they characterized as a decision of the DRB
  "rendered on or about November 27, 2000, granting Subdivision Plan Approval
  and modification of the zoning regulations" to Okemo.  On December 22,
  2000, Dunnett and a group of ten other Ludlow residents ("Dunnett group")
  appealed from what they characterized as "the November 27, 2000 decision"
  of the DRB granting approval of Okemo's application.  These appeals were
  consolidated by the environmental court.  In January 2001, the Gulli and
  Dunnett groups each submitted a statement of questions in connection with
  its appeal.  

       On March 22, 2001 the environmental court dismissed the individual
  appeals of Gulli and Dunnett  for lack of standing pursuant to 24 V.S.A. §
  4464(b)(3).  However, the court found that the Gulli group and the Dunnett
  group had standing to appeal action taken by the DRB in November 2000
  pursuant to 24 V.S.A. § 4464(b)(4), which allows "[a]ny ten persons owning
  real property within a municipality . . . [to] allege that any relief
  requested by a person under this title, if granted, will not be in accord
  with the policies, purposes or terms of the plan or bylaw of that
  municipality." Id.  The court excluded from the scope of these group
  appeals any challenges to the August 8, 2000  DRB decision because neither
  group filed an appeal within 30-days of the issued decision as mandated by
  24 V.S.A. § 4471.  On April 30, 2001, the court  reaffirmed its decision to
  dismiss the individual appeals of Gulli and Dunnett and to limit the scope
  of the group appeals to the action taken by the DRB in November 2000.  

       On December 12, 2001, the environmental court granted Okemo's motion
  to dismiss all questions submitted in the Gulli group and Dunnett group
  appeals.  The court found that the proposed questions for both appeals were
  beyond the scope of the November 2000 DRB decision.  The court rejected the
  argument posited by the Gulli and Dunnett groups that the DRB could not
  approve Okemo's submitted Map without a public hearing.  The court noted
  that the DRB had taken all required approval action in the August 2000
  proceedings, but since it had imposed conditions on Okemo's Project, the
  DRB took the reasonable step to require Okemo to submit a "Final Parcel
  Map" containing the incorporated conditions.  The court concluded that the
  DRB required Okemo to submit the Map only so that it could determine
  whether Okemo accurately rendered the DRB's decision, including the imposed
  conditions, into map display form.  This submission, the court found, "did
  not reopen the already approved elements of [Okemo's] application on which
  the DRB had made elaborate and careful findings and for which it had
  imposed detailed requirements and conditions."
   
       On December 18, 2001, the environmental court entered a final judgment
  order dismissing the Gulli group and Dunnett group appeals.  On January 4,
  2002, Nicholas Gulli, ostensibly acting as spokesperson for the
  sixteen-member Gulli Group, filed a notice of appeal with the environmental
  court indicating a desire to appeal to this Court from the environmental
  court's dismissal of the Gulli group's appeal.  The Dunnett group did not
  appeal to this Court.  In response to the notice of appeal, seven members
  of the Gulli group submitted written notification to the Clerks of this
  Court and the 

 

  environmental court indicating that they did not want to participate in the
  appeal to this Court.  On January 28, 2002, Okemo filed a motion to dismiss
  the Gulli group appeal for lack of standing pursuant to 24 V.S.A. §
  4464(b)(4).  On February 11, 2002, this Court issued an entry order stating
  our intent to consider Okemo's motion with the merits of this appeal. 
  While Okemo's motion to dismiss raises interesting questions of standing
  pursuant to § 4464(b)(4), we need not enter that procedural quagmire in the
  present case, but instead affirm this appeal on its merits. (FN1)  

       Okemo moved for and the environmental court granted dismissal of the
  Gulli group's statement of questions as beyond the scope of its appeal, and
  accordingly, dismissed the appeal itself.  The court's decision exhibits
  legal and factual determinations, as well as determinations of mixed
  questions of law and fact.  We will not set aside the court's factual
  findings unless they are clearly erroneous.  Luneau v. Peerless Ins. Co.,
  170 Vt. 442, 444, 750 A.2d 1031, 1033 (2000).  We view factual findings in
  a light most favorable to the prevailing party.  Mullin  v. Phelps, 162 Vt.
  250, 260, 647 A.2d 714, 720 (1994).  These findings stand if there is any
  reasonable and credible evidence to support them.  N.A.S. Holdings, Inc. v.
  Pafundi, 169 Vt. 437, 438, 736 A.2d 780, 783 (1999).  Questions of law are
  reviewed de novo, allowing us to proceed with a non-deferential,
  on-the-record review.  State v. Pollander, 167 Vt. 301, 304, 706 A.2d 1359,
  1360 (1997).  
   
       The Gulli group asserts two arguments on appeal.  First, the group
  contends that the environmental court improperly excluded from the scope of
  the appeal questions relating to the August 8, 2000 DRB decision.  The
  Gulli group is incorrect.  To perfect an appeal from the DRB, 

 

  an appellant must file a notice of appeal with the clerk of the board or
  commission from which they have taken the appeal - here the DRB - within
  30-days of the relevant DRB decision.  See V.R.C.P. 76(e) (governing
  appeals from development review boards to environmental court); George v.
  Timberlake Assocs., 169 Vt. 641, 739 A.2d 1207 (1999) (mem.) (finding that
  petitioners were within required thirty-day appeal period).  Failure to
  file timely notice of an appeal brought under § 4471 deprives the
  environmental court of jurisdiction over that appeal.  Mohr v. Village of
  Manchester, 161 Vt. 562, 641 A.2d 89, 90 (1993) (mem.) (citing Harvey v.
  Town of Waitsfield, 137 Vt. 80, 82, 401 A.2d 900, 901 (1979)).  

       The facts on the record establish that the Gulli group did not appeal
  from any decision of the DRB until December 13, 2000, a date well beyond
  the statutory deadline for appeal from the DRB's August 8 decision.  In the
  absence of an appeal, all parties are bound by the DRB's decisions and
  "shall not thereafter contest, either directly or indirectly, such decision
  or act . . . in any proceeding . . . ."  24 V.S.A. § 4472(d); Town of
  Charlotte v. Richmond, 158 Vt. 354, 357, 609 A.2d 638, 639-40 (1992). 
  Accordingly, we find that, pursuant to § 4471 and V.R.C.P. 76(e), the Gulli
  group was entitled to appeal only from the DRB's November 2000 approval of
  Okemo's "Final Parcel Map."  The environmental court did not have
  jurisdiction to consider previous determinations made by the DRB and
  appropriately limited the scope of the Gulli group appeal. 

       Having concluded that the Gulli group was entitled to appeal only from
  the November 2000 action of the DRB, we must determine whether the
  statement of questions submitted by the Gulli group and dismissed by the
  environmental court exceeded the limited scope of the group's appeal. See
  V.R.C.P. 76(e)(3)-(4)(B) (requiring appellant to file a statement of
  questions that appellant desires to have determined on either an appeal on
  the record or at a trial de novo).  The DRB's November 27, 2000 action was
  limited to approval of Okemo's "Final Parcel Map."  As the environmental
  court correctly held, the statement of questions submitted by the Gulli
  group on appeal must be limited to whether Okemo had accurately rendered
  the DRB's prior decisions into map form.  Based on our review of the eleven
  questions submitted by the Gulli group on January 29, 2001, we find that
  these questions exceed the narrow scope of the group's limited appeal. 
  Therefore, the environmental court did not have jurisdiction to consider
  the questions submitted by the Gulli group and properly granted Okemo's
  motion to dismiss.  See Vt. Div. of State Bldgs. v. Town of Castleton Bd.
  of Adjustment, 138 Vt. 250, 255, 415 A.2d 188, 192 (1980) (observing that
  the superior court is without jurisdiction to hear an appeal when notice of
  that appeal is not timely filed with the clerk).
        
       The second and final argument raised on appeal by the Gulli group is
  that the environmental court incorrectly interpreted the DRB's approval of
  Okemo's "Final Parcel Map" as something different from a "Final Subdivision
  Plat" requiring a public hearing pursuant to 24 V.S.A. § 4407(12) or §
  4414.  We find that the Gulli group's second issue on appeal is effectively
  an attack on the prior decisions of the DRB excluded from the scope of this
  appeal.  The Gulli group has not challenged Okemo's incorporation of the
  imposed conditions, but instead challenges the DRB's decision to approve
  many facets of the Project.  Again, the Gulli group failed to file a timely
  appeal from any DRB decision rendered before November 2000, and the
  environmental court, while taking 

 

  the unnecessary step of examining the DRB's April and August 2000
  decisions, appropriately dismissed the appeal.

       Specifically addressing the Gulli group's contention that Okemo's
  "Final Subdivision Map" is analogous to a "Final Subdivision Plat"
  requiring a public hearing before DRB approval, we find that the
  environmental court correctly interpreted the Map and its required
  submission as distinct from a final subdivision plat.  The record on appeal
  establishes that the DRB made all required findings and took all necessary
  approval action relative to Okemo's application by August 8, 2000.  In
  conjunction with this approval, the DRB imposed detailed requirements and
  conditions on Okemo's application.  We agree with the environmental court's
  assessment that the Map Okemo submitted in October 2000 did not alter the
  scope of the Project already known to the public, but instead finalized
  Okemo's previously approved Project.  Accordingly, submission of the Map
  did not reopen any of the already approved elements of the Project or the
  previous conduct of the DRB.  Thus, the Gulli group's second argument
  fails.

       Affirmed.



                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice



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                                  Footnotes

FN1.  Appeals from the decisions of zoning boards to the environmental court
  are governed by statute.  See 24 V.S.A. § 4471 (allowing an "interested
  person" to appeal to the environmental court).  Standing for the review of
  all questions arising from the administration of zoning laws is governed by
  § 4464(b).  Garzo v. Stowe Bd. of Adjustment, 144 Vt. 298, 302, 476 A.2d 125, 127 (1984).  In this statutory section, the Legislature has restricted
  the legal relief available in zoning appeals by specifically defining who
  has standing to appeal.  Id.  Accordingly, we strictly adhere to these
  standing requirements.  See id. (Court may not judicially expand class of
  persons entitled to review in zoning cases governed by § 4464(b)).  If
  appellants do not fit within an enumerated provision of § 4464(b), they
  lack standing to contest a decision made by a zoning board.  Town of
  Sandgate v. Colehamer, 156 Vt. 77, 82, 589 A.2d 1205, 1208 (1991); 24
  V.S.A. § 4472(c).  Moreover, we have recognized that the standing
  requirements of § 4464(b) are designed to limit the number of appeals. 
  Kalakowski v. John A. Russell Corp., 137 Vt. 219, 222, 401 A.2d 906, 909
  (1979).  Therefore, an appellant must fall squarely within the statutory
  requirements; closely related interests falling outside the definitive
  statutory language are insufficient to create standing.  See Mad River
  Valley Enters., Inc. v. Town of Warren Bd. of Adjustment, 146 Vt. 126, 129,
  499 A.2d 759, 761 (1985) (developer's shared interest with title-holder in
  the goal of development of land was insufficient to confer standing in
  superior court pursuant to § 4464(b)(1)); Colehamer, 156 Vt. at 82, 589 A.2d  at 1208 (appellant did not have standing in superior court pursuant to
  4464(b)(1) despite making mortgage payments on land and holding title to
  personalty on affected land).