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| Won't you be my neighbor? |
By Elizabeth Kruska
Notice is important. With the possible exception of FISA court, parties to legal proceedings are supposed to have notice when a court is asked to make an order or determination affecting the parties’ rights. So, how does a party get notice?
Lucky thing—we’ve got rules for that.
Here’s what happened here. Mr. Mahar owns some property with his own house on it in Jericho. He wanted to add an additional structure and apartment on his land. The opinion isn’t totally clear about exactly what he was building, but I’m envisioning maybe a garage with an in-law apartment above, or something like that. Anyway, he had to apply for a permit with the Jericho Development Review Board (DRB), which he did.
Here’s where the rules about notice come in to play. The DRB is supposed to provide notice to certain people who would be affected by a project. A hearing gets scheduled and everyone who has an interest in a particular permit project can come in and participate. It appears the DRB did send out notice of the hearing to some neighbors. It was also posted on some public buildings and published in Front Porch Forum. Unfortunately, Neighbors Butler and Harritt didn’t receive notice of the hearing. This becomes important in a minute.
The hearing was held on May 28, 2015. Some neighbors went to the hearing. In late June, the DRB granted the permit and some days after the granting, sent it out to certain neighbors. When a decision comes out, a party may appeal that decision to the Environmental Division. There’s a time limit on this, though, because the thing the law likes almost as much as it likes rules, is finality. Ever have it when you get absolutely trapped in a conversation where someone goes on and on and you think to yourself “is this ever going to end?” Sometimes legal cases are like that. In an effort to curb that, there are time frames set forth by rule so the parties can reach finality.
You can really only appeal a decision or participate in a hearing if you know about it. It turns out that Neighbors Butler and Harritt didn’t know. They found out late in the summer and, along with some other neighbors, filed a notice of appeal to the Environmental Division in September. Mr. Mahar filed a motion for summary judgment arguing their appeal was outside the time limit, and also that they were not interested persons to the case.
The Environmental Division analyzed whether each appealing neighbor was an interested person and filed in time, and in doing so, granted the motion for summary judgment. One neighbor was present at the hearing, so she had at least constructive notice of the decision even if she didn’t receive a copy. Harritt and Butler didn’t get notice of the hearing and then found out about the decision much later, so clearly they didn’t have notice. But they didn’t show that the project would have an impact on their property. Another neighbor appealed but did so too late.
They appeal to The Supremes. Oops, not those Supremes.
Anyway, SCOV reverses the Environmental Court’s granting of summary judgment and sends the case back for further review.
First of all, there’s a 30-day timeline to file an appeal of a DRB decision to the Environmental Division. The timeline starts from the day the decision issued. But, as noted above, at least some of the neighbors didn’t know about the action at all. So, they could file a motion to reopen the appeal period, which they’re supposed to do within 90 days, and they did. Even though procedurally they called their filing an appeal, SCOV treats it as if it’s a motion to reopen the appeal period.
Second, they’d have to show that they were entitled to receive a copy of the decision by showing they were interested persons. This feels a little chicken-and-egg to me in this particular situation. They didn’t attend the hearing because they didn’t know about it, and had they attended they could have shown if they were interested persons and thus entitled to receive a copy of the decision. It’s hard for them to show they’re entitled to receive something if it wasn’t known they were entitled to receive it because they didn’t know to go ask. At least, that’s how I read this.
Last, there’d have to be a showing that reopening the appeal period wouldn’t cause prejudice to the other parties. SCOV wants the Environmental Division to review this part.
The other thing is that people can’t just appeal rulings just because. They have to have standing to get a foot in the door. Standing is a little like a ticket: it gets you in the door.
In order for the neighbors in this situation to show they have standing, they have to show they fit the definition of “interested person” (which is very different than an “interesting person”). To show that, they have to show that they own neighboring property, and that the project in question would have a physical or environmental impact on their own properties.
They raised that there would be some differences to the neighborhood—curb cuts, layout, impact on the neighborhood, and that they’d want the opportunity to raise these issues.
SCOV says this is enough for them to have standing. SCOV says that with respect to Harritt and Butler, it really isn’t their fault they didn’t know about the case. Although courts have discretion to reopen an appeal period, if a litigant presents with a situation beyond his or her control—problems with the postal service not delivering their mail so they don’t get notice (for example), that’s something the court can take into account. A litigant not filing a timely appeal because he or she just didn’t get to it—that’s very different.
So, SCOV reverses and remands to the Environmental Division for further proceedings.
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