### Jericho Market Act 250

ENTRY REGARDING MOTION

Count 1, Act 250 District Commission Decision (1-1- 16 Vtec)

Title: Motion to Dismiss (Motion 3)

Filer: 364 VT Route 15 LLC Attorney: Katelyn E. Ellermann Filed Date: February 18, 2016

Response filed February 26, 2016 by Peter K. Duval

The motion is GRANTED.

On December 1, 2015, the District #4 Environmental Commission (Commission) issued its Findings of Fact, Conclusions of Law, and Order (Decision) and corresponding Land Use Permit #4C0427-6 (LUP) to David Villeneuve, Villejo Ventures, LLC and 364 Vt. Route 15, LLC (collectively Applicants) for the redevelopment of an existing building by removing 4,630 square feet, adding an addition of 5,200 square feet, and renovating the remaining 12,800 square feet of building along with associated utilities, landsc aping, and parking on Lot #3 of the Sawmill Planned Unit Development (PUD) located in Jericho, Vermont (the Project). The tract of land at

issue in this matter is 19.46 acres.

Peter K. Duval appeals the Decision and LUP raisin g 20 questions within his Statement of

Questions.

Before the Court is Applicants’ motion to dismiss t he appeal pursuant to V.R.C.P. 12(b)(1) for lack of subject matter jurisdiction. Applicants offer that the appeal was filed more than 30 days after issuance and service of the Comm ission’s Decision and LUP.

The failure to timely file an appeal “extinguishes subject matter jurisdiction.” Boutwell v. Town of Fair Haven, 148 Vt. 8, 10 (1987). An ap peal of a Commission’s decision is commenced by filing a notice of appeal with the Env ironmental Division within 30 days of issuance and service of the decision. 10 V.S.A. § 8504(a); V.R.E.C.P. 5(b)(1). Furthermore, a notice of appeal is considered filed on the date it is received and not the date it is mailed. See Appeal of Wood, Nos. 185-10-04 Vtec and 174-8-05 Vt ec, slip op. at 3 (Vt. Envtl. Ct. Apr. 13, 2006) (Durkin, J.); Reporter’s Notes, V.R.E.C.P. 5( b)(1) (“[T]he date of receipt by the court... determines whether the 30-day filing deadline has b een met.”). 

## S TATE OF 

## V ERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Environmental Division Unit Docket No. 1-1-16 VtecThe Commission’s Decision and LUP were issued and e lectronically served on Mr. Duval

on December 1, 2015. Any appeal of the Decision an d LUP was required to be filed with the Environmental Division within 30 days of December 1 , thus by December 31, 2015. V.R.E.C.P. 5(b)(1).

On December 30, 2015, Mr. Duval telephoned the Envi ronmental Division’s clerk’s office and discussed the filing of his appeal. Mr. Duval was told that the Environmental Division could not accept e-filed appeals until January 4, 2016, a nd that if his deadline to file his appeal was prior to January 4, then he needed to be sure that any appeal was received at the Environmental Division by the deadline. Ignoring t his information, Mr. Duval e-filed his notice of appeal on December 30, 2015. At the same time, Mr. Duval sent a copy of his appeal to the Environmental Division by US Mail.

On December 30, 2015, the judiciary’s e-filing syst em sent Mr. Duval and automatic email confirming receipt of his notice of appeal. Th is e-mail message expressly stated that an additional notice would be sent to Mr. Duval when p rocessing of his filing was complete. On December 31, 2016, the Docket Clerk of the Environm ental Division e-mailed Mr. Duval at 10:22 and 10:24 A.M., explaining in both emails that the e-filed notice of appeal could not be accepted until Monday, January 4, 2016, and that if his appeal needed to be filed prior to January 4, then he MUST ensure that the notice is R ECEIVED by the Environmental Division by other means (mail, hand delivered, or currier).

On December 31, 2015, at 10:38 A.M., the judiciary’ s e-filing system sent Mr. Duval an automatic e-mail rejecting his electronic filing of his appeal. The Vermont Rules for Electronic Filing, which for the first time provide for an ele ctronic filing system in the Environmental Division, apply to cases commenced in the Environme ntal Division on and after January 4, 2006.

V.R.E.F. 1. 1

Mr. Duval’s paper copy of his appeal was received by the Environmental Division on January 4, 2016. On January 20, 2016, Mr. Duval fi led a Motion for Extension of Time seeking additional time to file “party status requests and statement of questions.” As a basis for this motion, Mr. Duval states that on December 30, 2015, he electronically filed his notice of appeal and sent a paper notice to the Environmental Divisi on. He also acknowledges that the electronic filing was rejected and that the paper n otice was processed on January 4, 2016.

While we are sensitive to the difficulty that a cha nge in court process can cause for selfrepresented litigants, we conclude that the facts i n this matter do not warrant extending the 30 day appeal period. Mr. Duval was verbally warned b y the docket clerk of the Environmental Division during a telephone call, and then by more than one e-mail, that his electronically filed notice of appeal could not be accepted and was in f act rejected. These warning and notices took place in time for Mr. Duval to perfect the fil ing of his notice of appeal by other means, yet

he chose not to do so.

1 The Vermont Rules for Electronic Filing, Rule 4(d) clearly states that the electronic filing system wi ll automatically acknowledge receipt of any filing, but that a filin g may be rejected if it does not comply with the e- filing requirements. This rule further clarifies that a f iler may resubmit a rejected filing, however, the d ate and time for filing are the date and time that the filing is res ubmitted. V.R.E.F. 4(e) further states that Court staff will electronically notify the file either that the fili ng has been accepted or that it cannot be accepted until specified action required under the rules has been taken.As Mr. Duval’s notice of appeal was first received by the Court more than 30 days after

the issuance and service of the Decision and LUP, t his Court has no subject matter jurisdiction. This Court must therefore DISMISS this appeal with prejudice.

This concludes this matter.

So ordered.

Electronically signed on March 02, 2016 at 11:08 AM pursuant to V.R.E.F. 7(d).

_________________________________________ Thomas G. Walsh, Judge Superior Court, Environmental Division

Notifications: Appellant Peter K. Duval Claudine C. Safar (ERN 3985), Attorney for Interest ed Person Town of Jericho Anthea Dexter-Cooper (ERN 7254), Attorney for party 3 Co-counsel Peter J. Gill (ERN 4158), Attorney for Interested P erson Natural Resources Board Katelyn E. Ellermann (ERN 6654), Attorney for Appel lee 364 VT Route 15 LLC

twalsh