Lead Opinion
¶ 1. This appeal arises from a conditional use permit issued by the Town of Barton Zoning Board of Adjustment (ZBA) to applicant Verizon Wireless
¶ 2. The basic facts are as follows. In January 2008, Verizon Wireless filed two applications for conditional use approval to install wireless communications antennas at two sites in the Town of Barton. In one application, known as the tree site, applicant sought to build an antenna in the form of an artificial tree on Ingersoll Lane in Barton. This location is adjacent to land owned by neighbors. On April 17, 2008, the ZBA held a public hearing on the requests. The parties dispute whether applicant or the Town adequately provided notice of this hearing as required by 24 V.S.A. § 4464(a)(1) and the Town’s bylaws. Neighbors contend that they were not provided notice of this hearing. No party other than applicant appeared at the hearing. On May 29, 2008, the ZBA unanimously voted in favor of granting approval for both applications. At a later unspecified date, the Town issued written findings memorializing the decision.
¶ 3. Neighbors allege that at some point following the ZBA hearing they became aware of Verizon’s pending permit application. On June 5, 2008, neighbors contacted the Town zoning administrator to express opposition to the tree site. The administrator told neighbors that the Town had not yet issued a permit to applicant and apparently gave neighbors the impression that there was still time to give input regarding the decision. That day, neighbors wrote a letter to the ZBA expressing opposition to the tree site. They asserted that under statutory and municipal bylaw requirements the new antenna had to be co-located on an existing tower rather than developed on a new site. Later in the day on June 5, the administrator completed the ministerial act of granting the two permits. On June 30, 2008, neighbors filed a pro se notice of appeal in the Environmental Court, followed by a pro se statement of questions in August 2008, asserting two main issues for appeal: (1) whether the tree site would adversely impact the
¶ 4. In October, applicant filed a motion to dismiss. Applicant raised several grounds for dismissal, including that neighbors did not participate in the proceedings below and therefore lacked standing to appeal. See 24 V.S.A. § 4471(a) (limiting right to appeal to those who participated in proceeding before municipal panel). Neighbors responded to the motion to dismiss by claiming that they did not receive notice of the ZBA’s public hearing. Neighbors also filed a motion to amend their statement of questions to include a claim that applicant failed to provide neighbors with adequate notice of the public hearing. Applicant answered that neighbors were barred from filing any amendments to the initial statement of questions, including any defenses to a challenge on subject matter jurisdiction. See V.R.E.C.P. 5(f) (requiring appellant to file statement of questions within twenty days of filing a notice of appeal in Environmental Court and stating that appellant “may not raise any question on the appeal not presented in the statement as filed”); see also In re Garen,
¶ 5. The Environmental Court considered all of the parties’ pleadings and dismissed the case, concluding that neighbors lacked standing to appeal. The court explained that neighbors could not claim party status under 10 V.S.A. § 8504(b)(1) because they did not participate in the proceedings before the municipal panel within the relevant time frame. The court further held that neighbors could not claim party status under § 8504(b)(2) because they did not file a request for party status in a separate motion with their notice of appeal, as required by the court’s procedural rules. V.R.E.C.R 5(d)(2) (“An appellant who claims party status under 10 V.S.A. § 8504(b)(2) . . . must assert that claim by motion filed with the notice of appeal.”); V.R.E.C.R 5(b)(3) (specifying that notice of appeal should contain “statutory provisions under which each party claims party status”). The Environmental Court reasoned that it was without power to consider the issue absent a motion for party status. Therefore, the court dismissed the case. Having dismissed the appeal, the court did not reach the other claims raised, including neighbors’ allegations of improper notice.
¶ 7. The issue at the core of this case is whether neighbors had standing to appeal the ZBA decision to the Environmental Court. The question of standing is a legal one. “Standing embodies a core constitutional component and a prudential component of self-imposed judicial limits.” Hinesburg Sand & Gravel Co. v. State,
I.
¶ 8. Neighbors first argue that by calling the zoning administrator and submitting a letter to the ZBA they satisfied the participation requirement of 24 V.S.A. § 4471(a). Accordingly, neighbors contend the Environmental Court committed reversible error in holding they had not participated in the hearing before the ZBA.
¶ 9. The statutes pertaining to municipal planning and development limit the filing of appeals to the Environmental Court from municipal proceedings to interested persons
¶ 10. In addressing this question, we look to the language of the statute to discern the Legislature’s intent. In re Carroll,
¶ 11. We conclude that the Legislature’s use of the words “participate” and “proceeding” indicate that the activity must take place while the municipal decision-making process is still ongoing. Participation necessarily assumes that there is a proceeding or activity in which an interested person can join. Participation would be meaningless if commenced after the municipal body resolved the issue. Furthermore, the use of the word proceeding demonstrates the Legislature’s intent that participation occur before a decision is made since the proceeding would be concluded once a final decision is rendered.
¶ 12. This holding is in accord with our decision in Albert,
¶ 13. As indicated above, the language of the statute at issue here compels a similar result. In this case, neighbors did not appear at the ZBA hearing and did not submit any information at that time. By the time they called and sent the letter on June 5, the ZBA had already considered “the subject of the proceeding” and reached a decision on whether to grant applicant a conditional use permit. Automatic right to appeal depended upon participation in the actual decision-making process. Allowing participation past the point of when a decision is reached would only frustrate the need for finality in municipal decisions. At the same time, we need not be concerned about excluding would-be participants on technical grounds because the statutory scheme provides an alternate basis for jurisdiction where a party was unduly prevented from participating in the process. 10 V.S.A. § 8504(b)(2)(A), (C) (providing that interested person may appeal municipal regulatory proceeding without having participated if a procedural defect prevented participation or manifest injustice would result); see, infra, ¶ 18. Offering input after the municipal panel had already arrived at a final decision was too late to satisfy the participation requirement. See Albert,
¶ 14. Contrary to neighbors’ assertion, this result is supported by our decision in Carroll,
¶ 15. Neighbors contend that their lack of participation should be excused because they are interested persons who were not provided proper notification of the hearing before the ZBA. Neighbors appear to argue that the participation requirement should be waived because of the alleged lack of notice. We have no discretion, however, to waive statutory requirements and allow standing for persons outside of the categories created and authorized by statute. Garzo,
II.
¶ 16. Neighbors next argue that they have standing to appeal pursuant to 10 V.S.A. § 8504(b)(2), which provides that an interested person may appeal, even without participating in the municipal proceedings, “if the environmental judge determines that: (A) there was a procedural defect which prevented the person from obtaining interested person status or participating in the proceeding; ... or (C) some other condition exists which would result in manifest injustice if the person’s right to appeal was disallowed.” Neighbors contend that the alleged lack of notice was a procedural defect which prevented their participation in the ZBA proceeding. They alternatively argue that denying them party status would result in manifest injustice. Neighbors argue that the Environmental Court erred in failing to evaluate these substantive claims and dismissing their argument simply for lack of a specific motion asserting party status under § 8504(b). We find no error in the court’s decision.
Written notification to . . . owners of all properties adjoining the property subject to development .... The notification shall include a description of the proposed project and shall be accompanied by information that clearly informs the recipient where additional information may be obtained, and that participation in the local proceeding is a prerequisite to the right to take any subsequent appeal.
24 V.S.A. § 4464(a)(1)(C). Neighbors allege that they were not provided notice of the hearing, even though their property adjoins the location of the proposed tower.
¶ 18. The Environmental Court did not reach the notice question because it concluded that neighbors had not properly raised the issue. The court held that under its procedural rules neighbors were obligated to assert their claim of party status “by motion filed with the notice of appeal.” V.R.E.C.P. 5(d)(2). The court explained that where, as here, party status is based on extraordinary circumstances under 10 V.S.A. § 8504(b)(2), the burden is on neighbors to raise the issue and demonstrate the basis of their standing to appeal. The court further reasoned:
If an appellant fails to raise that issue alongside the filing of a Notice of Appeal, it creates a real possibility that the Court will begin to engage its resources in evaluating the substance of a claim, only to discover many months into the process that the appellant lacks party status or standing to file the pending appeal, resulting in the appeal being dismissed after the parties*272 and the Court have invested much time and energy in the case. We regard this as one foundation for why Rule 5(d)(2) requires that an appellant inform other parties and the Court at the first instance if an appellant wishes to claim party status despite failing to participate in the municipal proceedings below.
Because neighbors filed no such motion, either with their appeal or later, the court concluded they had not invoked the provisions of § 8504(b)(2) and dismissed the case. On appeal, neighbors argue that the Environmental Court’s decision was unduly harsh and exalted form over substance in requiring them to file a Rule 5 motion for party status along with their notice of appeal, especially where neighbors appealed pro se.
¶ 19. Before analyzing the parties’ claims, we make two general observations about claims for party status under § 8504(b)(2). First, determination of party status under this statute is discretionary, not automatic, and this discretion is vested in the trial court. Second, the burden of claiming party status under this section falls on the appellant who “must affirmatively claim and satisfy the burden of establishing party status with a motion filed with the notice of appeal.” Reporter’s Notes, V.R.E.C.R 5. Thus; the question in this case is whether the trial court abused its discretion in concluding that neighbors did not sufficiently claim and satisfy their burden of establishing party status.
¶ 20. We conclude that there was no abuse of discretion. It is undisputed that neighbors did not move for party status as required by Rule 5. Neighbors contend that there was no need for them to file a specific motion because their intent was demonstrated by either their notice of appeal or their amended statement of questions. The trial court did not abuse its discretion in declining to construe either of these filings as a request for party status. See In re L.R.R.,
¶21. Furthermore, the court did not err in failing to invite neighbors to file a motion for party status, as neighbors appear to allege. It was neighbors’ burden to raise the issue. The court could have entertained a motion to enlarge time to file a request for party status, V.R.C.P. 6(b), but neighbors presented no such motion. See V.R.E.C.P. 5(b)(1) (explaining that failure to take action other than timely filing of appeal “does not affect the validity of the appeal but is ground only for such action as the court deems appropriate, which may include dismissal of the appeal”). “[Procedural rules are devices to insure fairness, uniformity and regularity of treatment to all litigants appearing before the courts, and to be meaningful, they must be enforced.” Krulee v. F.C. Huyck & Sons,
¶ 22. Similarly, neighbors’ initial pro se status alone is not sufficient for us to conclude that the court erred in denying their request for party status. When a party appears pro se, the trial court should be cautious that the pro se litigant is not “taken advantage of by strict application of rules of procedure.” Town of Washington v. Emmons,
¶ 23. Moreover, the trial court’s expressed concern for process is not unreasonable. That Rule 5 requires standing claims be filed with the notice of appeal is hardly illogical or unfair. The rule directs parties to clearly present basic jurisdictional claims so that the court can recognize the assertions and set hearings accordingly. For example, a simple notice of appeal is typically scheduled in the ordinary course of docketing with no attention paid to an unknown need to first determine standing. In contrast, an accompanying motion raising standing as an issue would be expected to be set accordingly and resolved before proceeding further. This gives the parties and the court fair notice of the issue and an opportunity to resolve it without expending undue resources on an improperly brought case. Failure to abide by the rule imports uncertainty into a relatively straightforward procedural predicate, resulting in the need for rescheduling and delay, not just in this case but in others as well. To expect and to observe compliance with Rule 5 is not beyond the court’s discretion.
¶ 24. Neighbors claim that if they are not permitted to bring their appeal, applicant will not be held accountable for its failure to provide proper notice and instead will be rewarded for the shortcoming. Whatever the merits of the notice issue, ultimately, it is not applicant’s fault that neighbors failed to establish party status. The statute provided an avenue for them to assert then-claim, and they failed to follow the proper procedure provided. Thus, we conclude that the court did not err in dismissing neighbors’ appeal for lack of party status.
Affirmed.
Notes
Applicant refers to Vermont RSA Limited Partnership and Célico Partnership both doing business as Verizon Wireless.
An interested person is defined in part as someone “owning or occupying property in the immediate neighborhood of a property that is the subject of any decision.” 24 V.S.A. § 4465(b)(3). Applicant does not dispute that neighbors are interested persons.
Although applicant conceded on appeal that the Town did not provide actual notice to adjoining landowners, applicant argues that notice by publication was sufficient. Applicant also contends that neighbors had constructive notice of the hearing because they were notified and participated in the concurrent Act 250 proceeding in the District Environmental Commission. To the extent that any disputed facts are relevant to our decision, we must resolve them in favor of neighbors. Carroll,
Neighbors did not appear pro se during this entire proceeding, but even if counsel had filed a Rule 5(d)(2) motion for party status following his appearance some two months after neighbors’ initial notice of appeal, this request would have been untimely under the Environmental Court rules. The motion was due with the pro se notice of appeal, and no grounds were claimed, or appear, for an enlargement of time for cause or excusable neglect as required under Rule of Civil Procedure 6(b). See V.R.E.C.P. 4(a)(2) (importing V.R.C.P. 6 governing practice in the Environmental Court).
Dissenting Opinion
¶25. Specially Assigned, dissenting. The line between fundamental fairness and unfair indulgence in the
¶26. The material facts are largely undisputed. Neighbors Michael and Jeannette Auger did not receive written notice of applicant Verizon Wireless’s application for a conditional use permit to install a communications tower adjacent to their land in the Town of Barton, as they were entitled by statute, 24 V.S.A. § 4464(a)(1)(C), nor did neighbors appear at the public hearing that resulted in the ZBA’s decision to grant the application on June 5, 2008. Upon learning of the decision, however, neighbors — acting pro se — filed a timely notice of appeal with the Environmental Court on June 30, 2008, and submitted a written statement of questions in late August 2008 listing two main issues: (1) whether the proposed tower would adversely affect their property, and (2) whether the Town adequately considered an existing tower site. About six weeks later, applicant moved to dismiss the appeal, asserting, among other grounds, that neighbors lacked standing to appeal because they were not interested parties who had participated in the municipal proceedings. In anticipation of neighbors’ response that “they did not receive notice” of the hearing, applicant asserted that neighbors failed to preserve the claim by raising it in their statement of questions.
¶27. The following month, neighbors — now represented by counsel — filed an opposition to the motion and an amended statement of questions, asserting, as applicant had anticipated, that they were denied proper notice and opportunity to participate in the ZBA proceeding. Several months later, the trial court issued its ruling, finding that that neighbors were “interested parties” (i.e., they own property adjacent to the affected site) and
¶28. I agree that sound principles of efficient court management — some of which were noted by the trial court here — undoubtedly inform the Environmental Court rule requiring prompt notice of a claim to party status under 10 V.S.A. § 8504(b)(2). Certainly there is a “possibility,” as the trial court observed, that absent such notice the court might “begin to engage its resources in evaluating the substance of a claim” only to discover later that the appellant lacks standing. I would add to the court’s concern the potentially unnecessary expenditure of time and resources by the party opponent and the potential for abuse of the appellate process as a delaying tactic.
¶ 29. Nevertheless, in most cases where a procedural rule requires some action within a specified timeframe, it is within the trial court’s discretion to order the period enlarged. Rule 5(d)(2) of the Environmental Court Rules is no exception. See V.R.C.P. 6(b) (when “an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed ... or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect”); V.R.E.C.P.
¶30. The trial court explained that it did not consider this option, however, because neighbors had not formally “requested such permission.” This is the point where, in my view, the court’s reasoning falters, betraying a formalism wholly inappropriate to the circumstances. Neighbors were pro se when they filed their appeal. As adjoining landowners and nonattorneys there is very little likelihood that they were even aware that their standing to appeal was at risk by virtue of their failure to participate in the ZBA proceedings. There is even less chance that they were aware of the Environmental Court rule requiring the filing of a motion for party status simultaneously with the notice of appeal. Indeed, this is a requirement that even seasoned attorneys might miss, as evidenced by the fact that it was not raised in applicant’s otherwise quite thorough motion to dismiss. It is hardly surprising, therefore, that even with the benefit of counsel neighbors had still not moved to enlarge time when the court issued its ruling.
¶ 31. On the other hand, the trial court here was clearly alerted to the issue of neighbors’ party status at least as early as applicant’s motion to dismiss, and was equally aware, from neighbors’ opposition, of their claim that a defective notice had prevented their participation in the municipal hearing — precisely the ground for party status enumerated in 10 V.S.A. § 8504(b)(2). Under the circumstances, it is fair to ask whether the trial court acted reasonably in dismissing neighbors’ appeal because they had not officially noticed their intent to seek party status under § 8504(b)(2) rather than simply informing them of the need for a formal motion or even treating their pleadings as the functional equivalent.
¶ 32. Viewed in light of the purposes underlying the Environmental Court rule and our duty to treat self-represented litigants fairly, I suggest that it was not. The trial court here was certainly right to consider the interests served by the rule, but it was wrong not to assess those interests in light of the circumstances. Applicant moved promptly to dismiss the appeal for lack of standing or subject matter jurisdiction, and the court considered only those issues. Thus, neither the court nor applicant was
¶ 33. The “duty of the court to treat pro se litigants fairly” is another pertinent consideration. Bingham v. Tenney,
¶ 34. The trial court’s ruling here was the functional equivalent of a default judgment for applicant based upon what amounted to a harmless procedural omission. Like the rules governing such judgments, the procedural rules at issue here “should be liberally construed in favor ... of resolving litigation on the merits, to the end that fairness and justice are served.” Desjarlais v. Gilman,
¶ 35. I am authorized to state that Judge Crawford joins in this dissent.