                                            State of Vermont
                                 Superior Court—Environmental Division

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                     ENTRY REGARDING MOTION
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In re Barrup Auto Sales Relocation                                                Docket No. 216-12-10 Vtec
(Appeal from Town of Derby
Planning Commission decision)

Title: Motion to Dismiss (Filing No. 1)
Filed: January 14, 2011
Filed By: Joseph S. McLean, Attorney for Appellee Town of Derby
Response in Opposition filed on 3/2/11 by Clarke D. Atwell, Attorney for Appellant Kevin Barrup
Reply filed on 3/4/11 by Joseph S. McLean, Attorney for Appellee Town of Derby

  X Granted                       ___ Denied                        ___ Other

         Before the Court is a motion filed by the Town of Derby (“Town”) to dismiss as untimely an appeal
by Kevin Barrup from the Town of Derby Planning Commission’s (“Planning Commission”) denial of site
plan approval for the relocation of a car dealership on Mr. Barrup’s property. The Planning Commission
issued its decision denying site plan approval on November 22, 2010, and notice of the decision was received
by Mr. Barrup on November 24, 2010. Mr. Barrup’s notice of appeal was received by the Court on
December 27, 2010.
         In order for this Court to have jurisdiction over a dispute involving a decision of a municipal panel, a
prospective appellant must file a notice of appeal “with the clerk of the Environmental Court . . . within 30
days of the date of the . . . decision . . . appealed from.” V.R.E.C.P. 5(b)(1). A prospective appellant can
also ask the Court for permission to have more time to file a notice of appeal. See V.R.E.C.P. 5(b)(1);
V.R.A.P. 4(d). However, without receipt of a timely-filed notice of appeal, this Court does not have
jurisdiction to hear the prospective appellant’s arguments. See, e.g., In re Gulli, 174 Vt. 580, 583 (2002).
         Here it is unrefuted that the Planning Commission issued its decision on November 22, 2010.
Within a 30-day period ending on December 22, 2010 Mr. Barrup had the option of filing a notice of appeal
or requesting extra time in which to do so. Mr. Barrup failed to avail himself of either option, instead filing a
late notice of appeal on December 27, 2010.
         We cannot accept Mr. Barrup’s argument that the date of the mailing of his notice of appeal, which
he indicates was December 22, should operate as the date of its filing. Our Supreme Court considered and
rejected this same argument as put forth by a self-represented litigant in In re Appeal of LeBlanc. No. 2005-
179, slip op. at 1 (Vt. Nov. 2005) (unpublished mem.). In that decision the Supreme Court explained that “a
notice of appeal is filed on the date that it is received rather than mailed.” Id.; see also Reporter’s Notes,
V.R.E.C.P. 5(b)(1).
        Because we lack jurisdiction to hear Mr. Barrup’s late-filed appeal, we GRANT the Town’s motion
to dismiss.
_________________________________________              March 9, 2011_____
       Thomas S. Durkin, Judge                            Date
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Date copies sent to: ____________                                           Clerk's Initials _______
Copies sent to:
  Clarke D. Atwell, Attorney for Appellant Kevin Barrup
  Joseph S. McLean, Attorney for Appellee Town of Derby
