Monday, October 25, 2010

No Participation, No Appeal

By Gavin Boyles

In re Verizon Wireless Barton Permit, 2010 VT 62

Verizon applied for conditional use approval to install two telecommunications facilities in the town of Barton. A hearing on the applications was held on April 27, 2008, and no party other than Verizon appeared. The Barton Zoning Board of Adjustment (ZBA) unanimously approved the applications on May 29, and the zoning administrator issued the permit on June 5, 2008. That same day, neighbors opposed to the project, asserting that they had received no notice of the applications, sent a letter to the ZBA expressing opposition to it. On June 30, 2008, the neighbors attempted to appeal to the Environmental Court.

They were rebuffed. Verizon moved to dismiss the appeal on several grounds, including that the neighbors had not “participated” before the municipal panel. See 24 V.S.A. § 4471(a). The Environmental Court granted Verizon’s motion. Neighbors appealed, asserting first that their letter to the ZBA and a phone call to the zoning administrator satisfied § 4471(a), and second, that they had standing under the “procedural defect” and “manifest injustice” provisions of §8504(b) even if they failed to participate before the ZBA. Three Justices sided with Verizon. Judges Davenport and Crawford (sitting by designation) dissented.

The majority concluded, as to the first question, that § 4471(a) allows appeals only by those who “participate” while the town’s deliberative process is still ongoing. Because the neighbors “did not appear at the ZBA hearing and did not submit any information at that time,” they had not participated and could not appeal under that section. As to the second question, the majority affirmed—as a matter of discretion—the Environmental Court’s decision that the neighbors had failed to “affirmatively claim and satisfy the burden of establishing party status with a motion filed with the notice of appeal.”

The Superior Court Judges sitting by designation disagreed forcefully, averring that the court’s ruling was “plainly” not “reasonable from the perspective of fairness and consistent with our policy of protecting the rights of those who represent themselves in court.” The dissent was premised in large part on the undisputed fact that neighbors had not received written notice of the applications. “The trial court’s ruling here was the functional equivalent of a default judgment for applicant based upon what amounted to a harmless procedural omission,” Judge Davenport wrote.

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