1 STATE OF VERMONT ENVIRONMENTAL COURT

} In re: Stagecoach Road Overhead } Docket N o. 235-10-07 Vtec Power Line Extension } }
Decision on Pending Motions
Appellant William F. Heanue sought a determination that changes to the manner in which electricity would be delivered to a previously appr oved six lot subdivision on Stagecoach Road
constituted a violation of the Town of Morristown/M orrisville Subdivision Bylaws (“Bylaws”). When the Town of Morristown/Morrisville Zoning Admi nistrator (“ZA”) concluded that the electricity supply changes did not constitute a vio lation, Appellant Heanue filed a timely appeal with the Town of Morristown/Morrisville Development Review Board (“DRB”). When the
DRB declined to overturn the ZA’s determination of no violation, Appellant filed an appeal with
this Court. The Town of Morristown (“Town”) has filed a motion for summary judgment, seeking dismissal of the pending appeal. At the initial st atus conference, held on December 17, 2007, Appellant conceded that his appeal to this Court wa s untimely filed. Appellant offered two responses to the Town’s motion: first, that he shou ld be granted an extension of time in which to make his appeal timely; 1 second, that since he was employed as a merchant m arine, he was entitled to protection from adverse civil court det erminations by what has been known as the
Soldiers’ and Sailors’ Relief Act. We first addres s these responses to the Town’s motion requesting that we summarily dismiss Appellant’s ap peal. Factual Background 2
1. The Kenfield Brook subdivision secured final DRB ap proval on September 14, 2006. 3 This six-lot subdivision is located on Stagecoach R oad, about one-quarter mile north of

1 On January 4, 2008, Appellant filed his written r equest for an extension of time, together with his reply to the Town’s summary judgment motion.
2 The facts are stated here solely for context purp oses. This Court will not be rendering its own fac tual findings, either in response to the pending motion or in a me rits hearing, since the Town has elected to have ap peals of its land use determinations to be on-the-record, pursua nt to 24 V.S.A. § 4471(b) and V.R.E.C.P. 5(h).
3 The DRB’s prior approval in October, 2005 of the Kenfield Brook subdivision was appealed to this Cou rt, resulting in the 2005 approval being vacated. See In re Stagecoach Road 6-Lot Subdivision (appeal of Wickart)
, Docket No. 238-11-05 Vtec (Vt. Envtl. Ct. May 15, 2 006) (Wright, J.). We have not been made aware of any party appealing the DRB’s 2006 approval of the revised Ke nfield Brook subdivision; the 2006 approval is ther efore final. 24 V.S.A. § 4472(d).2

Appellant’s property at 582 Stagecoach Road. The 2 006 DRB decision noted that the Kenfield Brook subdivision “applicant proposes to extend pow er and utility lines along Stagecoach Road within the edge of the existing highway right-of-wa y so as to minimize the creation of additional easements or restrictions. Power and utility lines will be buried from the highway right-of-way
to individual lots.” Id . at ¶ 9.
2. The Kenfield Brook subdivision developers thereafte r contacted the Morrisville Water & Light Department (“MWLD”), which is the municipal p ower utility that supplies electricity to Stagecoach Road homes through its electric transmis sion lines within easements along Stagecoach Road. MWLD thereafter assessed how best to supply electricity to the homes within the Kenfield Brook subdivision, reaching the conclu sion that it would upgrade its transmission lines south of Appellant’s property by extending it s overhead transmission lines by four poles, to which underground transmission lines would then car ry electricity to the individual homes in the
Kenfield subdivision.
3. Appellant believed that the MWLD overhead transmiss ion line extension, particularly across from his home along a road designated as sce nic by the Town Plan, was a violation of the
terms and conditions of the Kenfield Brook subdivis ion approval. He therefore sought a determination by the ZA that the extension of overh ead transmission lines was a zoning
violation. The ZA concluded that no violation occu rred.
4. On September 26, 2007, the DRB issued its denial of Appellant’s appeal of the ZA’s
determination that no violation had occurred. On O ctober 29, 2007, Appellant filed his appeal with this Court of the September 26, 2007 DRB decis ion.
5. On January 4, 2008, in recognition of his untimely filing of his original notice of appeal, Appellant filed a request that he be granted an ext ension of time, so as to make his original appeal filing timely.
6. In partial explanation for his untimely appeal, App ellant noted that he is a merchant marine, regularly employed by private entities to w ork at sea, sometimes for as long as six
months at a time.
7. Appellant is not a member of the armed forces or ot her military services of the United States, as defined in the Servicemembers Civil Reli ef Act of 2003 (50 U.S.C. §§ 501 et. seq.).
Discussion We first turn our focus to the import of the undisp uted fact that Appellant is a merchant marine and is at times required to work at sea for up to six months at a time. The Soldiers’ and3

Sailors’ Relief Act of 1940 was an expansion of a C ivil War era law designed to protect soldiers from civil liabilities and penalties during their t ime of active service; the Act was codified in 50 U.S.C. §§ 501 et. seq. The law was most recently a mended in 2003 and re-titled the Servicemembers Civil Relief Act (“SCRA”). SCRA provides protection or stays from civil action s while a service member is on active duty. 50 U.S.C. §§ 511 and 522. The 2003 amendmen ts to the Act included a broadening of the protections for active duty servicemembers: the Act now effectuates a stay in “any civil action or proceeding in which the plaintiff or defendant at t he time of filing” is an active duty servicemember. 50 U.S.C. § 522(a). The act now re quires that a civil court impose a stay of its proceedings “of no less than 90 days” when a qualif ied application is made by an active duty
servicemember. Id

. Our review of the Act finds no reference to merchan t marines, particularly those employed by private entities and not called up for active duty in our armed services. In fact, our research revealed uncontroverted precedent from the United States Circuit Court for the Second Circuit that the term “persons in military service” who are afforded protection under the Act does

not include merchant marines. Osbourne v. United Stat es , 164 F.2 767, 769 (1947). We therefore conclude that Appellant here is not affor ded protection under the Act by virtue of his
status as a merchant marine. We next turn to Appellants’ request for an extensio n of time in which to file a timely appeal of the September 26, 2007 DRB denial of his appeal. In considering this request, we note that no party has disputed Appellant’s claims that his work as a merchant marine requires him to be at sea for periods as long as six months at a ti me and that during these periods, it is sometimes impossible for Appellant to remain in contact with Vermonters and Vermont officials. We also note, however, that Appellant concedes that his appeal was not filed on a timely basis and that his request for an extension of time was filed on January 4, 2008, which was more than sixty days after the expiration of the applica ble appeal period. Extension requests to this Court are governed by V.R.A.P. 4(d), which allows f or extension requests that are filed during the period of appeal or thirty days thereafter. Th ere is no provision in the Rule for the granting of extension requests that are filed more than thir ty days thereafter, whether or not the extension is necessitated by “excusable neglect or good cause .” Id . We are left without foundation in our procedural rules for the granting of the filing ext ension that Appellant now seeks.4

In so ruling, we in no way diminish the scenic beau ty Appellant sought to protect in these proceedings, nor the hardships Appellant’s work as a merchant marine requires him to face. We must, however, respect that this is a court of limi ted subject matter jurisdiction. That precedent and the rule of law require this Court to respect i ts jurisdictional limitations. This Court only has the authority to entertain appeals that are timely filed. In re Gulli , 174 Vt. 580, 583 (2002). When an appellant fails to timely file an appeal of a municipal land use determination, such failure to timely file the appeal “deprives the env ironmental court of jurisdiction over that appeal.” Id

. We regret that this Court will not be able to hear Mr. Heanue’s appeal on its merits, but
must conclude that we are unable to do so because h is failure to assure that his notice of appeal was timely filed deprived this Court of jurisdictio n to hear his appeal.
Conclusion Accordingly, based on the foregoing, it is hereby O RDERED and ADJUDGED that the Town’s motion for summary judgment must be GRANTED . Appellant William F. Heanue’s appeal his hereby DISMISSED, WITH PREJUDICE . This concludes the proceedings before this Court. The next status conference, previously scheduled for Monday, March 10, 2008 at 2:00 PM, is hereby CANCELLED

. Done at Newfane, Vermont, this 29 th day of February, 2008.

__________________________________________ Thomas S. Durkin, Environmental Judge