Opinion
Docket No. 98-170.
Filed February 3, 1999.
Appealed from: Washington Superior Court Docket No. 645-11-97Wncv.
ORDER
In the above-entitled cause, the Clerk will enter:
Petitioners Margaret George and John Russell appeal from a judgment entered in the environmental court dismissing as untimely their appeal of a decision of the Montpelier Planning Commission. At issue is site plan approval granted by the commission to Timberlake Associates in connection with a convenience store at 108 State Street in Montpelier. The environmental court determined that petitioners, neighbors of the Timberlake project, failed to file their notice of appeal from the Commission approval within the requisite thirty-day period. We disagree and, accordingly, reverse.
The relevant facts are not in dispute. Because they owned property in the "immediate neighborhood" of the project under site plan review, petitioners were "interested person[s]" with standing to challenge the planning commission's decision. See 24 V.S.A. §§ 4464(b)(3) (defining "interested person") and 4471 (vesting "interested person" with right of appeal from municipal development review board). On May 19, 1997 the planning commission approved Timberlake's revised design and site plan in connection with the 108 State Street property. No document purporting to be a written decision on the application was issued. The minutes of the May 19 meeting were filed with the city clerk on May 30, 1997. The city's zoning administrator issued a development permit on May 28, 1998. Less than an hour before midnight on June 18, 1997, exactly thirty days after the meeting at which the planning commission approved the site plan, petitioners handed a notice of appeal to the dispatcher at Montpelier police headquarters. This document reached the planning board the following day — thirty-one days after the planning board voted to approve the site plan.
V.R.C.P. 74(b) requires that a notice of appeal from a decision of a governmental agency be filed "with the clerk of the administrative body . . . or other appropriate officer." The environmental court concluded that in these circumstances a police dispatcher is not an appropriate officer within the meaning of the rule and, therefore, that Timberlake was entitled to dismissal of the action because the notice had not been appropriately filed within thirty days of May 19, 1997. We need not reach the problem of whether serving the police dispatcher was legally sufficient, however, because we conclude that petitioners were still within the thirty-day appeal period when the notice reached the planning commission on the following day.
In order to make that determination, we must first address Timberlake's contention that petitioners waived the relevant question by failing to raise it before the environmental court. See Spencer v. Killington, Ltd., ___ Vt. ___, ___, 702 A.2d 35, 36 (1997) ("We will not reverse a lower court when a party's failure to raise some matter below denied the court an opportunity to consider it."). We agree that the environmental court appears not to have considered the possibility that the appeal period did not expire on June 18, 1997, and that such a possibility was not the main thrust of petitioners' argument there. However, petitioners unambiguously if only briefly raised this aspect of the case by arguing in their written opposition to the dismissal motion that the June 18 deadline was "infirm" given lack of notice to them. The environmental court had an opportunity to consider when the appeal period should be deemed to have commenced and, thus, petitioners did not waive the issue.
The applicable statute provides explicit guidance to the planning commission as to the manner in which it was to render its determination:
The [commission] shall render its decision, which shall include findings of fact, within forty-five days after completing the hearing, and shall within that period send to the [party seeking review of the initial determination of the municipality's administrative officer], by certified mail, a copy of the decision. . . . If the [commission] does not render its decision within the period prescribed by this chapter, the [commission] shall be deemed to have rendered a decision in favor of the appellant and granted the relief requested by the applicant on the last day of such period.
24 V.S.A. § 4470(a). This language is "clear and unambiguous about what a [municipality] is required to do to put an appellant on notice and start the thirty-day [appeal] clock running." Town of Hinesburg v. Dunkling, ___ Vt. ___, ___, 711 A.2d 1163, 1167 (1998) (minutes mailed to landowner cited for zoning violation sufficient notice). Thus, the appeal period does not commence until "the requirements of § 4470(a) [are] satisfied," id. at 1168, and the decision has been rendered, In re Newton Enters., ___ Vt. ___, ___, 708 A.2d 914, 918 (1998) (zoning board decision under § 4470(a) "rendered" when board "issues a written decision and the votes are sufficient that the outcome could not change by the involvement of other members of the board"); In re White, 155 Vt. 612, 616, 587 A.2d 928, 930 (1990) (zoning board decision "rendered" when "the board has made its decision and communicated it to the applicant").
We need not decide precisely when the thirty-day appeal period commenced as to petitioners. Relevant to that issue is the planning commission's obligation to mail a copy of its decision "to every person or body appearing and having been heard at the hearing." 24 V.S.A. § 4470(a). The present record sheds no light on whether petitioners appeared in opposition before the planning commission, or whether the commission ever provided them with written notice of its decision in turn. It suffices to conclude that petitioners' thirty-day appeal period could not have run by June 19, 1997 — when the planning commission received petitioners' notice of appeal — because the earliest date on which the commission could have rendered a decision and triggered any party's appeal period was May 28, 1997, when the city issued a permit pursuant to the vote taken on May 19. Petitioners' appeal was therefore timely and the environmental court erroneously dismissed the action. In light of the foregoing, we do not reach petitioners' related contentions regarding their right to due process.
Reversed.
BY THE COURT: _______________________________________ Jeffrey L. Amestoy, Chief Justice _______________________________________ James L. Morse, Associate Justice _______________________________________ Denise R. Johnson, Associate Justice _______________________________________ Marilyn S. Skoglund, Associate Justice