Posted by: Patricia Salkin | May 8, 2015

VT Supreme Court Finds Appellants Did Not Have Standing to Challenge Development Review Board Decision Because They Had Not Participated in the Proceedings Before the DRB as Required by Statute

This appeal arose from a decision by the Town of Middlebury Development Review Board (DRB) approving appellee Jolley Associates, LLC’s application for a Planned Unit Development to add a car wash to an existing gas station and convenience store within the Town of Middlebury. Appellant MDY Taxes, Inc. operated an H & R Block tax franchise in property rented in a shopping center adjacent to the Jolley lot. Appellant Village Car Wash, Inc. operates a car wash located approximately one-quarter of a mile from the Jolley lot. Appellants did not participate in the DRB proceeding, but sought to challenge the approval of the PUD through an appeal to the Environmental Division of the Superior Court. The environmental court dismissed the appeal for lack of jurisdiction, concluding that appellants did not have standing to appeal the DRB decision because they had not participated in the proceedings before the DRB. On appeal, appellants contended that a procedural defect prevented them from appearing before the DRB and further that it would be manifestly unjust if they were not afforded party status to appeal.

Under Vermont law, an “interested person … who has participated … in the municipal regulatory proceeding … may appeal to the Environmental Division an act or decision made … by a development review board.” The environmental court concluded that the DRB had complied with the stringent content requirements provided by statute by: publishing a notice in the Addison Independent newspaper on September 26, 2013; posting a notice on Jolley’s property within view of Court Street; mailing written notifications to Jolley and all adjoining property owners; and posting notice at the town offices and on the town website. The court found that decision not to attend this meeting, did not amount to a procedural defect.

Furthermore, the court found the fact that neither appellant viewed or scrutinized the notices provided pursuant to those statutory requirements did not make it manifestly unjust to deny them the ability to appeal where the notice apprised them of their rights. Moreover, there was no evidence that the appellants were in a dissimilar situation from any other citizen who either did not read the provided notices, or read them and elected not to attend. Accordingly, the court found the environmental court did not abuse its discretion in denying appellant’s motion for party status. 

In Re Appeal of MDY Taxes Inc and Village Car Wash, Inc., 2015 WL 1780196 (VT 4/17/2015)

The opinion can be accessed at:

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