Thursday, July 16, 2015

Workin’ At The Carwash

In re Appeal of MDY Taxes, Inc. and Village Car Wash, Inc., 2015 VT 65

By Elizabeth Kruska

We’ve got a gas station (Jolley) and we’ve got some neighbors—MDY and Village Car Wash. Jolley owns a gas station, and not far from the gas station, in an adjacent parking lot is MDY’s H & R Block Tax Office and Village’s car wash.

Jolley filed a permit application so it could change its then-existing setup to remove some diesel pumps and to add a drive-through car wash. The town’s review board (DRB) published a notice in the local paper saying this would be up for review at a public meeting. It was also posted on a bulletin board and on the town’s website. The meeting was held and there was discussion about the plan. Neither MDY nor Village attended or participated in the meeting. At the meeting it was determined that although car washes generally aren’t allowed in that particular district, it might be okay if they did a planned-unit development (PUD). The board considered the application as a PUD and approved it.

About a month and a half later, MDY and Village appealed the town’s decision to the Environmental Court. They asked for party status. Jolley objected to their appeal and their request to become parties. The Environmental Court determined that MDY and Village couldn’t be parties, and because they couldn’t be parties, they didn’t have standing to object, so the matter was dismissed.

MDY and Village appeal to SCOV. The central argument is whether or not they have standing.

The rule is that an interested party can have standing to appeal if they participated in the initial hearing before the review board. There can be an exception to this if they didn’t participate before the review board for some good reason, like there was an issue with notice or procedure or something like that.

MDY and Village first say that they didn’t have notice that the town review board was going to consider a planned unit development. They argued that they knew there was a hearing on the permit application, but didn’t know it had to do with a PUD because that didn’t transpire until during the meeting. If I’m thinking about this correctly, MDY and Village were unhappy that one thing got noticed—the permit application—but then it ended up being turned into something about which they didn’t have notice, which was the PUD. After the fact they want to jump in and argue that it wasn’t permissible to do this.

SCOV isn’t convinced that MDY and Village have standing to try to intervene when they did for the reason they give. SCOV takes the position that any time there’s a permit hearing it might have something to do with a proposed land use that might otherwise be prohibited in that particular place. The Environmental Court said that there was plenty of notice in plenty of ways to the neighboring properties, and that MDY and Village decided not to go. SCOV agrees with the Environmental Court.

MDY and Village also said that even if they had seen the notices, the notices didn’t predict whether the application would be approved. SCOV is puzzled—the statute doesn’t seem to require that notice also include a weather report on whether or not it’d be granted.

MDY and Village also argue that it would be manifestly unjust to prevent their appeal from being heard. The Environmental Court wasn’t persuaded that it would be manifestly unjust, and SCOV is also not convinced. There isn’t really a definition of “manifest injustice” but it seems more serious than ordinary injustice. MDY and Village couldn’t really put together a good argument about why it was even ordinarily unjust that they weren’t allowed to be heard on Jolley’s application.

SCOV also points out that neither MDY nor Village were statutorily entitled to actual notice. They were entitled to constructive notice, which SCOV finds happened here.

SCOV closes by reminding everybody that if you want to be heard, you’ve got to show up. If you don’t show up and don’t have a very good reason for it, you don’t get to be heard.

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