### Snyder NOV

ENTRY REGARDING MOTION

Title: Motion for Summary Judgment (Motion 1)
Filer: Town of Orwell Attorney: Amanda S.E. Lafferty Filed Date: Feb. 24, 2016

Response in Opposition filed on 03/28/2016 by Attor ney Carl H. Lisman for Appellant Andrew Snyder. Reply filed on 04/08/2016 by Attorney Amanda Laffer ty for Town of Orwell.

The motion is DENIED.

Andrew Snyder (Appellant) has appealed the Town of Orwell Development Review Board’s (DRB) decision affirming a Notice of Violat ion (NOV) issued by Town Administrative Officer for the Town of Orwell for Mr. Snyder’s all eged unpermitted land development. Pending before the Court is the Town of Orwell’s mo tion for summary judgment requesting that this Court dismiss Mr. Snyder’s appeal as unti mely. The Town argues that Mr. Snyder’s appeal should be dismissed because it was filed out side the 30-day window allowed by the Rules of Environmental Court Procedure (V.R.E.C.P.) 5(b)(1). In opposition, Mr. Snyder claims that the 30-day window had not run by the time he f iled his notice of appeal, and even if it had,
he had no notice of the DRB’s decision and thus the 30-day appeal period should be extended to prevent manifest injustice. Factual Background

For the purpose of putting the pending motion into context, the Court recites the following facts, which it understands to be undispu ted unless otherwise noted:

1. Mr. Snyder owns or occupies property at 682 Sunset Lake Road in Orwell, Vermont.

2. On or about June 5, 2015, Mr. Snyder was served wit h the NOV by the Town
Administrative Officer for the Town of Orwell.

3. Mr. Snyder timely appealed the NOV to the DRB, and a hearing was held on his appeal on or about July 15, 2015. Mr. Snyder was p resent at the July 15, 2015 hearing.

4. On October 21, 2015, the DRB closed the hearing on Mr. Snyder’s appeal.

5. In a written letter composed on October 21, 2015, t he DRB stated that it had decided to uphold the NOV.

6. The letter was mailed to Mr. Snyder on October 29, 2015.

7. Mr. Snyder claims to have received the letter on No vember 10, 2015.



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## V ERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION Environmental Division Unit Docket No. 141-11-15 Vt ecIn re Snyder NOV, No. 141-11-15 Vtec (EO on Town’s SJ Motion)(April 28, 2016) Page 2 of 3.

8. On November 25, 2015, Mr. Snyder appealed the DRB’s decision to this Court.

9. On February 24, 2016, the Town moved for summary ju dgment claiming the appeal was untimely as it was filed more than 30 days from the date of the decision.

Discussion

The Court will grant summary judgment to a moving party only if that party demonstrates that “there is no genuine dispute as t o any material fact and the movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a); V.R.E.C.P. 5(a)(2). We will “accept as true the [factual] allegations made in opposition t o the motion for summary judgment, so long as they are supported by affidavits or other eviden tiary material,” and we will give the nonmoving party the benefit of all reasonable doubts a nd inferences. Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356.
10 V.S.A. § 8504(b)(1) and V.R.E.C.P. 5(b)(1) requ ire that an appeal of a DRB’s decision
be filed with the Environmental Division within 30 days of the decision. The failure to timely file a notice of appeal deprives this Court of jurisdict ion to hear the matter. In re Gulli, 174 Vt. 580, 583 (2002). Relief from the 30-day appeal period m ay be granted in limited circumstances if “manifest injustice” will result if the late appeal is not allowed. 10 V.S.A § 8504(b)(2)(C). 1

The DRB’s decision, in the form of a letter, is da ted October 21, 2015, and Mr. Snyder’s notice of appeal was received on November 25, 2015. 2 Thus the Town argues, Mr. Snyder’s appeal is untimely and the decision of the DRB shou ld be upheld. In response, Mr. Snyder argues that he had no way of knowing of the decisio n on the 21st because it was not mailed until the 29th and his appeal was timely filed with in 30 days of receiving the decision.

It is not entirely clear what is considered the “d ate of the act or decision” for purposes of 10 V.S.A. 8504(b)(1); the date the DRB reached t he decision or the date the decision was received by those entitled to notice. If October 2 1, 2015 is considered the date of the DRB’s decision, Mr. Snyder’s notice of appeal is beyond t he 30-day window allowed by Section 8504(b)(1). The decision was not mailed to Mr. Sny der, however, until October 29, 2015, and
there is no indication that he had notice of the de cision prior that date. Some of our case law does indicate that the 30-day window does not begin to run until a party entitled to notice
could have become aware of the decision. See Town of Hinesburg v. Dunkling, 167 Vt. 514, 522 (1998) (appeal period began when appellant received mailed copy of the decision); Atwood PUD – Jericho, No. 170-12-14 Vtec, slip op. at 2 (V t. Super. Ct. Envtl. Div. Feb. 18, 2015) (Walsh, J.) (holding that appeal period began at time appel lants were put on notice of the DRB’s decision). We need not resolve this question here, however, for even if October 21 is considered the date of the decision, we find an ext ension is required to prevent manifest injustice.

1 Additionally, under Vermont Rules of Appellate Proc edure (V.R.A.P.) 4, made applicable here by V.R.E.C.P. 5(b)(1), this Court may extend the deadli ne to file an appeal if the moving party requests a n extension by motion within 30 days after the initial appeal peri od has run, and the movant shows excusable neglect or good cause for the extension. Here, however, Mr. Snyder did not request an extension of the 30 day appeal period until he responded to the Town’s motion for summary judgm ent in March of 2016, well beyond 30 days after the initial appeal period. Therefore, the good cause and excus able neglect provisions of V.R.A.P. 4 do not apply.

2 Mr. Snyder also challenges whether the letter cons titutes a decision and the adequacy of notice provided by the letter. Because we find that the d elay in mailing the letter to Mr. Snyder warrants e xtending the time to file an appeal, we need not reach this issu e.In re Snyder NOV, No. 141-11-15 Vtec (EO on Town’s SJ Motion)(April 28, 2016) Page 3 of 3.

An appeal will be allowed under the manifest injus tice clause of 10 V.S.A. § 8504 where due process or fundamental fairness outweighs the s trong policy in favor of finality and demands that the appellant be allowed to contest th e municipal decision. See Atwood PUD, No. 170-12-14 Vtec, slip op. at 2. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co.

, 339 U.S. 306, 314 (1950). “The right to be heard is worth l ittle unless one is informed that the matter is pending and can choose ‘whether to appear or defaul t, acquiesce or contest.’” Town of Randolph v. Estate of White, 166 Vt. 280, 283 (1997 ) (quoting Mullane, 339 U.S. at 314).

Here, we find that principles of due process and f airness require us to extend the 30-day appeal window in order to prevent manifest injustic e. Although the DRB may have reached a decision on October 21, 2015, there was no evidence presented that Mr. Snyder had notice of this decision, constructive or actual, until, at th e earliest, the 29th of the month. It would be antithetical to the requirements of due process to allow a municipal panel to summarily shorten the 30-day appeal window by withholding not ice of its decision. See Glabach v. Sardelli, 132 Vt. 490, 495 (1992) (discussing conce rn that without publication requirement, a municipal panel could bury its decision until appea l period has run). Therefore, we conclude that Mr. Snyder’s notice of appeal filed on Novembe r 25, 2015 was timely, and we therefore

DENY the Town’s motion for summary judgment.

So ordered.

Electronically signed on April 28, 2016 at Burlingt on, Vermont, pursuant to V.R.E.F. 7(d).

________________________________ Thomas S. Durkin, Judge
Environmental Division

Notifications: Carl H. Lisman (ERN 3882), Attorney for Appellant A ndrew Snyder Judith L. Dillon (ERN 5040), Co-counsel for Appella nt Andrew Snyder Amanda Lafferty (ERN 5113), Attorney for Interested Person Town of Orwell
Interested Person Carla A. Ochs
Interested Person Frank Mobilio
Interested Person Dolores Mobilio For Informational Purposes Only Jamie Longtin