Dybvig Wastewater & Water Supply Permit Amend. Application Appeal 

(Permit No. WW-3-9978-1) 

ENTRY REGARDING MOTION

 

Title: Motion to Dismiss (Motion 2) 

Filer: Richard Dybvig 

Attorney: (self-represented litigant) 

Filed Date: December 28, 2017 

Response in Opposition filed on 01/11/2018 by Attorney Marc D. Nemeth 

 for Appellant 14 Russell Road, LLC 

The motion is DENIED. 

Appellee/Applicant Richard Dybvig asserts that the Court should dismiss the present 

appeal from his amended wastewater and water supply permit, received from the Vermont 

Agency of Natural Resources (“ANR”) on August 24, 2017, due to several procedural failings that 

his neighboring property owner—14 Russell Road, LLC (“Appellant”)—committed in the filing of 

its Notice of Appeal. For the reasons stated below, we decline to impose the ultimate sanction 

of dismissal. 

As ANR correctly notes, the record before us reflects that Appellant timely filed its appeal 

of ANR’s August 24, 2017 issuance of an amended permit. An appeal from that permit 

determination would have had to have been filed by September 23, 2017 (the thirtieth day after 

the permit determination). 10 V.S.A. § 8504(a); V.R.E.C.P. 5(b)(1). However, since September 23, 

2017 was a Saturday, Appellant here had until Monday, September 25, 2017, to file a timely 

appeal. V.R.C.P. 6(a)(1)(C). Appellant filed its appeal electronically in the early morning of 

Sunday, September 24, 2017. We therefore conclude that Appellant timely filed its Notice of 

Appeal. 

However, Appellant ran into some difficulties when its attorney also attempted to submit 

an electronic payment of the appeal filing fee. Appellant’s attorney represents that he had 

difficulty with the electronic transmission of his payment for the filing fee, and held off on making 

the payment by check, so that he could be assured that his account had not been charged for an 

electronic payment. The Court received Appellant’s payment of the filing fee on October 10, 

2017. 

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Docket No. 120-9-17 Vtec
In re Dybvig WW &WS Amend. Permit, No. 120-9-15 Vtec (EO on motion to dismiss) (03-16-2018) Page 2 of 3.

ANR also notes that Appellant failed to serve ANR or the other parties to this litigation 

with copies of Appellant’s Notice of Appeal and other filings. ANR and the other parties to this 

action received copies of those filings from Court staff. To this date, Appellant has failed to 

explain this omission, even though the service requirement is explicitly stated in V.R.C.P. 

5(b)(4)(B). 

The Court conducted the initial conference, via telephone, on November 20, 2017; the 

Court sent out notice of this initial conference on November 8, 2017. When the Court attempted 

to reach Appellant’s attorney via telephone for that conference, he was unavailable. When the 

other parties advised the Court at the November 20th conference that they still had not received 

copies of Appellant’s September 24, 2017, Notice of Appeal and other filings, the Court advised 

that the Court Clerk would provide the other parties with copies. Copies of those initial filings 

were forwarded to the other parties by Court staff on November 21, 2017.

Lastly, Appellant was required to publish a copy of its Notice of Appeal in a local 

newspaper “within 10 days after serving” the other parties with a copy of its Notice of Appeal. 

Id. The Rule requires that service on the other parties must occur “[u]pon the filing of a notice 

of appeal . . ..” Id. As noted above, Appellant’s Notice of Appeal was filed on September 24, 

2017; Appellant did not arrange for the newspaper publication of its Notice of Appeal until 

October 26, 2017. Appellant also provides little explanation for its delay in publication. 

Our procedural rules provide that “[f]ailure of an appellant to take any step other than 

the timely filing of the notice of appeal does not affect the validity of the appeal.” V.R.E.C.P. 

5(b)(1). When an appellant does not complete some steps that are required after filing an 

appeal, this Court has the discretion to “take some action as the court deems appropriate, which 

may include dismissal of the appeal.” Id. However, dismissal is inappropriate when there is a 

procedural defect in the notice of appeal that has been subsequently cured or opposing parties 

had actual notice of the appeal. See In re 114 College St. Permit Amendment, No. 227-09-06 Vtec 

(Vt. Envtl. Ct. Apr. 20, 2007) (Wright, J) (finding dismissal of a timely filed notice of appeal that 

did not include a statutorily required statement inappropriate because notice was sufficient, and 

the deficiency was subsequently cured); In re Hovey Act 250 Permit, No. 130-9-13 Vtec (Vt. Super. 

Envtl. Ct. Mar. 6, 2014) (Walsh, J) (finding dismissal of a timely filed notice of appeal that selfrepresented appellants failed to serve on interested parties inappropriate and affording 

appellants the opportunity to cure defects because appellant was confused regarding the rules 

of service and the interested parties had actual notice of the appeal) aff’d No. 2015-205, 2015 

WL 7628685 (Vt. Supreme Ct. Nov. 1, 2015). 

We remain concerned about Appellant’s lack of explanation for why it did not timely serve 

the other parties, publish its Notice of Appeal, or pay the filing fee. The fact that Appellant’s 

attorney felt it appropriate to file its extension of time request on an ex parte basis adds to our 

concern because there was no justification offered as to why the other parties should not have 

been provided with notice of this filing. 

Nonetheless, we note that Appellant, or the Court, has cured all of the deficiencies 

concerning service, publication, and payment. We therefore decline to dismiss the pending 

appeal. For all these reasons, ANR’s motion to dismiss is DENIED. 
In re Dybvig WW &WS Amend. Permit, No. 120-9-15 Vtec (EO on motion to dismiss) (03-16-2018) Page 3 of 3.

So Ordered. 

Electronically signed on March 16, 2018 at Newfane, Vermont, pursuant to V.R.E.F. 7(d). 

________________________________ 

Thomas S. Durkin, Superior Judge 

Environmental Division 

Notifications: 

Marc D. Nemeth (ERN 3675), Attorney for Appellant 14 Russell Road, LLC 

Diane M. Sherman (ERN 4340), Attorney for the Vermont Agency of Natural Resources 

Appellee/Applicant Richard Dybvig (self-represented) 

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