In re Appeal of Carroll

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
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

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.