In re Appeal of Carroll (2005-421)

2007 VT 19

[Filed 09-Mar-2007]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
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                                 2007 VT 19

                                No. 2005-421


  In re Appeal of Patricia Carroll, et al.       Supreme Court

                                                 On Appeal from
                                                 Environmental Court

                                                 May Term, 2006

  Thomas S. Durkin, J.

  Norman C. Smith, Essex Junction, for Appellant Carroll.

  Dennis R. Pearson, Pro Se, Jericho, Appellant.

  Daniel P. O'Rourke and Vincent A. Paradis of Bergeron, Paradis &
    Fitzpatrick, LLP, Essex Junction, for Appellees.


  PRESENT:  Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and 
            Toor, Supr. J.,  Specially Assigned

        
       ¶  1.  DOOLEY, J.  Appellant Patricia Carroll appealed to the
  Environmental Court from a decision by the Town of Jericho Development
  Review Board (DRB) approving the plan of Mary Alice Rivers and CRC Sand &
  Gravel (collectively, "developers"), for a five-lot subdivision. (FN1)  The
  Environmental Court concluded that because Ms. Carroll did not participate
  in the hearing for final subdivision approval, she did not qualify as an
  interested party under 24 V.S.A. § 4465(b), and dismissed Ms. Carroll's
  appeal.  We conclude that Ms. Carroll's participation in the previous
  hearings regarding the subdivision constituted adequate participation under
  the statute and reverse the Environmental Court's dismissal of her appeal.   
        
       ¶  2.  "In reviewing the trial court's disposition of a motion to
  dismiss, we assume that all pleaded factual allegations in the complaint
  are true, as well as all reasonable inferences that may be derived
  therefrom."  Winfield v. State, 172 Vt. 591, 593, 779 A.2d 649, 651-52
  (2001) (mem.).  Developers' request for the five-lot subdivision began with
  an application in June 2003 (FN2) seeking  "sketch-plan" review of the
  subdivision. (FN3)  The DRB held a hearing on July 31, 2003.  Ms. Carroll's
  husband, James Carroll, was present at the July 2003 hearing and spoke
  regarding his concerns.  The Carrolls jointly submitted written documents
  expressing their concerns in the form of a written response under the name
  "The Carroll Family and Friends."  While some members of the DRB provided
  reactions to the proposal, no formal vote was taken on the proposal.
   
       ¶  3.  As the next step, developers sought Preliminary Plat Review for
  the five-lot subdivision.  The DRB held a hearing on October 23, 2003.  Ms.
  Carroll did not attend this hearing, but her husband was present and spoke
  regarding his concerns.  Both Carrolls again submitted written documents
  expressing their concerns regarding the proposed subdivision under the name
  "The Carroll Family."  At the close of the hearing, the DRB approved the
  proposed project as complying "with all pertinent sections of the Jericho
  Subdivision Regulations for preliminary plat review," subject to certain
  listed conditions.  A written decision to the same effect was issued the
  next day.

       ¶  4.  As the third step in the development-approval process,
  developers sought Final Plat Review for the proposed subdivision on
  September 15, 2004.  The DRB held a hearing on December 2, 2004.  Both Ms.
  and Mr. Carroll attended.  Although Mr. Carroll spoke extensively, the
  minutes do not reflect that Ms. Carroll spoke.  

       ¶  5.  In response to the motion to dismiss, Ms. Carroll submitted an
  affidavit.  It indicated that Mr. Carroll "spoke from some notes we had
  prepared, and submitted to the Board, in my presence a copy of the notes he
  read from."  She added that she "assisted in preparing those notes" and
  attached them to the affidavit.  Finally, she stated:
   
     My husband spoke at the meeting with my permission and authority,
    and submitted written comments on his and my behalf.  Because he
    presented my concerns, I did not see a reason to speak on my own
    and simply repeat what he had to say.  This was particularly true
    because the Chair of the December 2, 2004 meeting specifically
    asked participants not to repeat areas already spoken of by
    others.  Discussion as to content and time allocation was strictly
    controlled by the Chair, Phyl Newbeck.  I felt very limited and
    wanted to respect her request.

  The DRB sent the written decision approving the final plat application on
  December 3, 2004.

       ¶  6.  Ms. Carroll subsequently filed a timely notice of appeal to the
  Environmental Court.  Other parties also appealed the decision, including
  appellant Pearson; these additional appeals were filed after the thirty-day
  appeal period had expired, but within the extra time allowed for additional
  appeals by V.R.A.P. 4. (FN4)  Thus, it is undisputed that these appeals are
  valid only if the Carroll appeal is valid.  Developers moved to dismiss the
  appeal in the Environmental Court, relying on a recent addition to the
  appeal statute in 24 V.S.A. § 4471(a):

     An interested person who has participated in a municipal
    regulatory proceeding authorized under this title may appeal a
    decision rendered in that proceeding by an appropriate municipal
    panel to the environmental court.  Participation in a local
    regulatory proceeding shall consist of offering, through oral or
    written testimony, evidence or a statement of concern related to
    the subject of the proceeding.

  Developers argued that Ms. Carroll had not participated in the municipal
  regulatory proceeding because (1) the relevant proceeding was the December
  2, 2004 hearing on the final plat application, and (2) Ms. Carroll did not
  offer evidence through testimony or a statement of concern at that hearing.

       ¶  7.  The Environmental Court agreed with developers' position and
  found that Ms. Carroll had not participated in the December 2004 hearing
  although she did participate in the hearing on the application for
  preliminary plat approval.  In response to Ms. Carroll's argument that the
  preliminary plat and final plat reviews were part of one proceeding, the
  court held:
   
      Many Vermont municipalities require separate applications for
    preliminary and final site plan approval for what is essentially a
    single request from a property developer: may I be permitted to
    subdivide this property.  These separate applications can often
    cause multiple filings in this Court, since appellants often file
    appeals from preliminary determinations, fearful that they would
    lose their appeal rights by waiting until the final determination
    is made.  It would be procedurally more efficient, for the parties
    and this Court, if preliminary and final determinations could be
    considered as one.  Unfortunately, we find no statutory authority
    to do so.  Therefore, we cannot look to Ms. Carroll's
    participation in the preliminary proceeding to satisfy her
    statutory requirement of participation in the final subdivision
    approval here.

  For this reason, the court dismissed the appeal.

       ¶  8.  In the present appeal, Ms. Carroll argues that (1) the
  participation requirement of 24 V.S.A. § 4471(a) does not apply because it
  did not come into effect until July 2004 and cannot apply to a subdivision
  request filed in 2003; (2) she met the participation requirement at the
  December 2004 final plat hearing; and (3) she met the participation
  requirement at the October 2003 preliminary plat hearing and that hearing
  was part of the "municipal regulatory proceeding" as described in §
  4471(a).  We directly address only the third argument and agree with her
  position.  For this purpose alone, we assume that the new law applies to
  this case.  
   
       ¶  9.  Our primary task is to construe the applicable statute and
  the phrase "participated in a municipal regulatory proceeding."  The proper
  construction of 24 V.S.A. § 4471 is a question of law subject to
  nondeferential and plenary review.  See In re Dep't of Bldgs. & Gen.
  Servs., 2003 VT 92, ¶ 8, 176 Vt. 41, 838 A.2d 78.  Our objective in
  construing a statute is to effectuate the Legislature's intent, and we look
  first to the statute's language.  Springfield Terminal Ry. Co. v. Agency of
  Transp., 174 Vt. 341, 346, 816 A.2d 448, 453 (2002).  We will enforce the
  plain meaning of the statutory language where the Legislature's intent is
  evident from it, Wesco, Inc. v. Sorrell, 2004 VT 102, ¶ 14, 177 Vt. 287,
  865 A.2d 350, but, if doubts exist, "the real meaning and purpose of the
  Legislature is to be sought after and, if disclosed by a fair and
  reasonable construction, it is to be given effect."  Langrock v. Dep't of
  Taxes, 139 Vt. 108, 110, 423 A.2d 838, 839 (1980).  The intent should be
  gathered from a consideration of "the whole statute, the subject matter,
  the effects and consequences, and the reason and spirit of the law."  In re
  Wal*Mart Stores, Inc., 167 Vt. 75, 84, 702 A.2d 397, 403 (1997) (internal
  quotations and citations omitted).

       ¶  10.  In this case, the meaning of the phrase "municipal regulatory
  proceeding" is not sufficiently clear for us to decide the question based
  on the wording alone.  Nor does the statute contain a definition of the key
  term, "proceeding."  We are aided, however, by the nature of the
  subdivision review in the relevant statutes and ordinance provisions of the
  Town of Jericho. 

       ¶  11.  The required procedure for subdivision review, as set forth in
  24 V.S.A. § 4463, is very limited:

                             Subdivision review.

    (a)  Approval of plats.  Before any plat is approved, a public
    hearing on the plat shall be held by the appropriate municipal
    panel after public notice. . . . 
   
  A municipality can, however, require a more extensive process.  Thus, 24
  V.S.A. § 4418 provides:

                             Subdivision bylaws.

     In order to guide community settlement patterns and to ensure the
    efficient extension of services, utilities, and facilities as land
    is developed, a municipality may regulate the division of a lot or
    parcel of land into two or more lots or other division of land for
    sale, development, or lease.  Subdivision bylaws shall establish
    standards and procedures for approval, modification, or
    disapproval of plats of land and approval or modification of plats
    previously filed in the office of the municipal clerk or land
    records.

    . . . .     
   
    (2) Subdivision bylaws may include:

    . . . .  
    
     (B) Procedures for conceptual, preliminary, partial, and other
    reviews preceding submission of a subdivision plat, including any
    administrative reviews. (FN5)   

  The Town of Jericho has adopted a more extensive procedure than provided
  for in § 4418(2)(B).  Thus, the Town of Jericho Subdivision Regulations
  require that developers first submit a preliminary plat application for a
  major subdivision.  See JSR, supra note 3, art. II, § 2 ("A major
  subdivision . . . shall undergo both preliminary Plat and Final Plat review
  and approval.").  The application at issue in this case is for a major
  subdivision because it contains five or more lots.  Id. art. I, § 3.  The
  procedural rules specify:

    Before holding the public hearing on the final plat of a major
    subdivision, the Commission (FN6) shall hold one or more hearings
    on a preliminary plat. . . . Approval of a preliminary plat shall
    not constitute approval of the subdivision.  The decision on a
    preliminary plat may state specific requirements to be fulfilled
    prior to gaining approval of the final plat.  Prior to approval of
    the final plat, the Commission may require additional changes or
    information as a result of further study.

  Id. art. II, § 3.  The regulations define the preliminary plat in terms of
  its purpose: "to enable the subdivider to save time and expense in reaching
  general agreement with the Planning Commission as to the form of the
  subdivision and the objectives and requirements of these regulations."  Id.
  art. I, § 2(17)(1b).

       ¶  12.  Our only relevant precedent is In re Miller, 170 Vt. 64,
  75-76, 742 A.2d 1219, 1227 (1999), where we concluded that site-plan review
  before the planning commission involved a separate proceeding from zoning
  review in the zoning board of adjustment although the developer needed both
  permits to proceed with the development project.  In that case, the two
  proceedings were in separate adjudicatory bodies, and the developer had to
  present separate evidence to each.  If the developer succeeded, each
  proceeding resulted in a separate permit. (FN7)
     
       ¶  13.  We think that in contrast to the site-plan and zoning review
  in Miller, subdivision review is one proceeding from application to
  preliminary plat review to final plat review.  See Blacks's Law Dictionary
  1241 (8th ed. 2004) (defining "proceeding" as "[t]he regular and orderly
  progression of a lawsuit, including all acts and events between the time of
  commencement and the entry of judgment").  Preliminary plat review is an
  intermediate step, adopted in some municipalities, that may move the
  developer along to a subdivision permit, but does not by itself give the
  developer any approval, other than the ability to request final plat
  review.  As the Jericho Subdivision Regulation makes clear, preliminary
  plat review means only that the developer and the DRB have come to a
  "general agreement" on the form of the subdivision and the effect of the
  subdivision regulation.  It is fully expected that evidence provided in
  preliminary plat review will be used in determining whether to issue a
  subdivision permit and whether to impose conditions on that permit.
   
       ¶  14.  Viewing preliminary plat review and final plat review as part
  of one municipal regulatory proceeding is consistent with the apparent
  intent of the Legislature in requiring participation as a condition of the
  right to appeal.  In 2004, the Legislature substantially amended  the
  Municipal and Regional Planning and Development Act, Chapter 117 of Title
  24, and, in the process, made local participation a prerequisite for
  interested parties to appeal to the Environmental Court.  2003, No. 115
  (Adj. Sess.), § 107.  Previously, interested party status alone was
  sufficient.  See 24 V.S.A. § 4464(b)(3).  Thus, under the old law,
  interested parties could appeal even though the DRB had no opportunity to
  deal with the issue causing the appeal and the developer had no opportunity
  to address the issue.  By enacting the amendment, the Legislature intended
  that the interested party state his or her opposition in the local
  proceeding.  

       ¶  15.  The statutory language does not specify when the interested
  party must participate as long as it is within the proceeding.  For
  subdivision proceedings, participation at preliminary plat review
  implements the intent of the Legislature, as does participation at final
  plat review.  Indeed, in Jericho where preliminary plat review can lead to
  a "general agreement" between the DRB and the developer on the nature of
  the project, participation at that stage may be more critical for adjoining
  landowners who are opposed generally to the development plans, as the
  Carrolls were here.  Once the proposal moves to final plat review, the
  interested parties' opposition may be too late to have any effect.  Also,
  by that time, the DRB and developer are fully aware of the nature of the
  opposition of the interested party.
   
       ¶  16.  The Environmental Court appeared to recognize that
  subdivision review is essentially one proceeding, but held that it must
  find that preliminary plat and final plat review are separate proceedings
  because the interested party has a right of appeal from preliminary plat
  review.  We doubt that the interested party can appeal from a decision that
  reflects only a "general agreement" between the developer and the DRB and
  that can be changed "as a result of further study," but we need not ground
  our decision on this point.  The relevant statute, 24 V.S.A. § 4471(a),
  allows an interested party to "appeal a decision rendered in that
  proceeding."  As we noted in In re Miller, "[c]ourt appeal is authorized
  for any 'decision of a board of adjustment,' [24 V.S.A.] § 4471(a), not
  only for decisions granting or denying permits."  170 Vt. at 76 n.5, 742
  A.2d at 1227 n.5.  Nothing in the statutory language suggests that one
  proceeding ends, and another begins, solely because the DRB renders an
  appealable decision.  In fact, the statutory language giving the right to
  appeal "a decision rendered in that proceeding" suggests that there can be
  more than one appealable decision within a proceeding.  We do not believe
  that the appealability of preliminary plat approval, if such a right of
  appeal exists, affects whether preliminary plat and final plat approval are
  part of the same proceeding.

       ¶  17.  Developers have conceded that Ms. Carroll participated in the
  preliminary plat review hearing before the DRB, thus we need not review
  this aspect of the participation requirement.  That participation gave her
  standing to appeal from the approval of the subdivision permit.  The
  Environmental Court erred in dismissing the appeal.   

       Reversed.  

                                       FOR THE COURT:
    
         

                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  Appellant Dennis Pearson also filed a brief in this Court in support of
  the arguments made by Ms. Carroll.

FN2.  The record indicates that developer Mary Alice Rivers submitted a
  request for approval of a six-lot subdivision earlier in 2003 and this
  proposal went through sketch-plan review in the DRB. Ms. Rivers apparently
  dropped that proposal.

FN3.  The purpose of sketch-plan review is not indicated by the record, nor
  is it provided for in the Jericho Subdivision Regulations in effect at the
  time of the subdivision review in this case.  See  Jericho, Vt.,
  Subdivision Regulations (July 8, 1985) [hereinafter JSR],
  http://www.jerichovt.gov/ (follow "Ordinances/Local Regulations" hyperlink;
  then follow "Zoning/Subdivision Regulations" hyperlink; then follow
  "Subdivision Regulations Adopted 7/8/85" hyperlink).  It is defined in the
  zoning regulations as "an informal public hearing with the Development
  Review Board to explore options in a preliminary manner with little expense
  involved," and the regulations specify that "[n]o formal decision is taken"
  and "no specific data is required."  Jericho, Vt., Zoning Regulations  art.
  VI, § 601.2.0, http://www.jerichovt.gov/ (follow "Ordinances/Local
  Regulations" hyperlink; then follow "Zoning/Subdivision Regulations"
  hyperlink; then follow "Jericho Zoning Regulations Adopted 12/29/03"
  hyperlink).  We assume that the purpose is similar for subdivision review
  and similar to what we described in In re Champlain Oil Co. with respect to
  a sketch-plan application: that it "be submitted by a subdivider of land to
  the town planner prior to submitting an application for subdivision
  approval, for the purpose of classifications and preliminary discussion of
  the subdivision with the Planning Commission."  2004 VT 44, ¶ 12, 176 Vt.
  458, 852 A.2d 622 (internal quotations omitted).

FN4.  V.R.A.P. 4 provides, in pertinent part, that "[i]f a timely notice of
  appeal is filed by a party, any other party may file and serve a notice of
  appeal within 14 days of the date on which the first notice of appeal was
  filed."

FN5.  This version of the statute was added effective July 1, 2004.  Prior to
  that effective date, 24 V.S.A. § 4414 provided: "Before holding such public
  hearing on a plat, the planning commission or the development review board
  may hold one or more preliminary hearings and grant preliminary approval to
  authorize the preparation of the plat for such public hearing."  1967, No.
  334 (Adj. Sess.), § 1, as amended by 1993, No. 232 (Adj. Sess.), § 6.  The
  provisions are similar in substance; we do not believe that the exact
  wording affects our conclusion in this decision.

FN6.  The Jericho Subdivision Regulations refer to the planning commission
  throughout.  See, e.g., JSR, supra note 3, art. I, §§ 2, 3(3).  Since their
  adoption, the Town has substituted the DRB to fulfill the functions of the
  planning commission and the zoning board of adjustment.

FN7.  For similar reasons, the case relied upon by appellee, In re Champlain
  Oil Co., 2004 VT 44, is distinguishable from the situation before us. 
  There, the developer was pursuing a subdivision permit and a site-plan
  permit through two separate adjudicatory proceedings leading to two
  separate permits.  Id. ¶ 17.  


