 |
| Digging in the Archives |
By Elizabeth Kruska
This is an appeal of a motion for summary judgment granting a permit to build a body shop. Wow. I got that in one sentence. You could stop reading here.
There’s a little more to it. Applicant (Mathez) shares a driveway with Neighbor (Chung). Applicant filed a permit application to build a building to be used as a body shop. On the application form there’s a section for the applicant to list adjoining landowners and also people with a significant interest in the property in question. The applicant has the burden of providing notice to all these people so they can request a hearing on the matter if they’d like.
Here, Applicant didn’t include Neighbor. They listed Neighbor’s Spouse as someone with someone with a significant interest in the land, but didn’t list either Neighbor or Spouse in the Adjacent Landowner section. Applicant filed for the permit, nobody asked for a hearing, the permit was granted.
After the time for affected landowners to request a hearing came and went, Neighbor discovered some big trucks in the shared driveway and reasonably said, “Hey, what’s all this, then?” Maybe she didn’t say that, but something like it. Someone associated with a big truck showed her a permit; this is apparently the first she learned about the building project. She emailed the head of the District Commission and said she thought she should have been notified. The next day he wrote back and said, “Yep, you should have been notified.” Neighbor didn’t really do anything with this, though, and didn’t try to appeal the permit. Now, there’s some information in a footnote that there was discussion about trying to work out an agreement with Applicant, and if that didn’t happen then the permit could be revoked. But on appeal she didn’t argue that she relied on this exchange to her detriment, so this doesn’t really have any traction.
About a month after this email exchange the District Commission sent out a new notice about the permit, essentially re-opening the window of time for affected adjacent landowners to request a hearing. No other action was taken with respect to the previously-granted permit, though. It’s not clear, but it’s entirely possible Applicant kept going with their construction, since they had a permit.
However, the fact of reopening this comment window seemed incorrect to Applicant, who appealed to the Environmental Court. Neighbor sought to intervene, and cross-appealed. This prompted Applicant to move for summary judgment. The Environmental Court granted the summary judgment motion, reasoning that even though the reopened permit wasn’t a final judgment, the Commission didn’t have any authority to reopen the permit comment/hearing process at that point.
Neighbor appealed the grant of summary judgment, which SCOV affirmed.
First of all, it wasn’t clear that the Environmental Division even had jurisdiction over the permit appeal in the first place. There was a final permit, but that got reopened. That made it look like the permit wasn’t a final order anymore. Generally, a party can only appeal a final order unless there’s permission to do an interlocutory appeal.
There isn’t a procedural rule for the Environmental Division to hear interlocutory appeals, and generally interlocutory appeals are sort of extraordinary. If there could be interlocutory appeals of everything, people would be ping-ponging back and forth from trial courts to appeals courts and literally nothing would ever get done. Well, wait. Lawyers would have plenty to do. But other than that, nothing would ever get done.
But! There’s a statute that actually provides for limited interlocutory review of an agency action if a review of the final order wouldn’t provide an adequate remedy. Seems tailor-made for this situation because the District Commission exceeded its jurisdiction when it reopened the permit that was previously made final. SCOV decides that it was ok for the Environmental Division to take up this matter.
Second, SCOV looks at the District Commission’s action in reopening the matter and issuing a second notice. Neighbor’s argument is that the Commissioner has the authority to correct errors, and also that although there’s a statutorily-created revocation process, it doesn’t work here to correct the mistake.
SCOV thinks this argument is off the point. The issue here isn’t whether the Commissioner can correct a mistake. The issue is whether the Commissioner can reopen a permit that was already made final and which wasn’t challenged or appealed.
This agency can only do what the Legislature decided it can do. There’s a set of rules and procedures, and the agency has to stick to those rules and procedures. If they don’t, it has the potential to create an open-ended appeals period. Although aggrieved parties ought to have the right to be heard, there’s a limit on how long they can take to do it. Otherwise there’s no closure to any action sought.
SCOV readily admits that many of the time frames set forth in the rules had come and gone by the time Neighbor learned about the permit. From what I can gather, Neighbor’s relief would have been to petition the court (the Environmental Division, probably) to reopen the time to appeal the final permit. Had she done that, the court would have decided if it had the ability to review the permit, and if appropriate, send it back to the District Commission for whatever action was needed. Although it seems more efficient to sidestep the process of going to the court first and having the District Commission reopen the matter, there wasn’t any authority to do that.
So, SCOV finds that (a) the Environmental Division had jurisdiction to hear this appeal, and (b) that the District Commission didn’t have the authority to issue the second notice. Therefore, the Environmental Division’s grant of summary judgment was appropriate.
Comments
Post a Comment