                                   STATE OF VERMONT

                                 ENVIRONMENTAL COURT

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In re: Appeal of                     }
  J.D. Associates                    }      Docket No. 36-2-00 Vtec
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                    Decision and Order on Motion to Dismiss as Untimely

       Appellant appealed from a December 1999 decision of the Development Review
Board (DRB) of the Town of Morristown granting conditional use approval to Appellee-
Applicant North Country Animal League. Appellant is represented by Harold Stevens,
Esq.; Appellee-Applicant is represented by Jeff W. Lively, Esq.; the Town is represented by
Amanda Lafferty, Esq. Appellee-Applicant has moved to dismiss the appeal as untimely.
       Apparently a written notice of decision was prepared and signed by the DRB on
December 21, 1999. Appellant=s objection states that the decision Ahad no filing or entry
date stamped on it@ (emphasis added). Neither party has provided a copy of the decision
nor indicated whether it is internally dated, except that the notice of appeal filed by
Appellant itself refers to the decision as being dated December 21, 1999. Neither party
has provided any indication of whether a copy of the decision was sent by certified mail to
the applicant The Notice of Appeal is internally dated January 26, 2000, but was sent with
an unsigned check for the fee. A signed check for the fee was not provided to the Town
until February 8, 2000.
       To be timely, the notice of appeal had to be filed with the clerk or Aother appropriate
officer@ of the DRB Ain the manner and within the time provided in Rules 3 and 4 of the
Rules of Appellate Procedure.@ Rule 3(b)(1) requires the appeal to be filed and the entry
fee to be paid Awithin the time allowed by Rule 4.@ Rule 4 requires the notice of appeal to
be filed within 30 days Aof the date of the entry of judgment or order appealed from. . . .@
However, it is only the timely filing of the notice of appeal which is jurisdictional. Rule 3(b).
Failure to pay the fee at all or in a timely fashion may be grounds for dismissal or other
orders of the reviewing court, but it is not jurisdictional. Thus, if the decision was issued on

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December 21, 1999, the notice of appeal was untimely. If the decision was issued when it
was sent under cover of Mr. Sweetser=s December 27, 1999 letter, the notice of appeal
was timely.
       Title 24 V.S.A. '4470(a) provides that the DRB must Arender its decision@ within 45
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days after completing the hearing and that the DRB must Asend to the appellant , by
certified mail, a copy of the decision@ within the same 45-day period. In Town of Hinesburg
v. Dunkling, 167 Vt. 514, 522 (1998), the Vermont Supreme Court referred to these two
events as the Aclear and unambiguous@ statutory language Aabout what a town is required
to do to put an appellant on notice and start the thirty-day clock running.@ In any event, the
appeal period is not counted from receipt of the decision by any party.
       The Motion to Dismiss does not establish whether the DRB=s decision was rendered
orally or in writing on or before December 21, 1999, whether it was sent by certified mail to
the applicant, and whether that occurred any earlier than the December 27, 1999 cover
letter from Mr. Sweetser. Without that information, it is not possible to determine whether
or when the town succeeded in Astart[ing] the thirty-day clock ticking.@
       Accordingly, based on the foregoing, Appellee-Applicant=s Motion to Dismiss as
untimely is DENIED, without prejudice to its renewal as a motion for partial summary
judgment with accompanying affidavits sufficient to establish the necessary facts.

       Done at Barre, Vermont, this 20th day of April, 2000.




                             _________________________________________________
                                  Merideth Wright
                                  Environmental Judge




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           That is, the appellant or applicant in the proceedings before the DRB.


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