Badger v. Rice
| Decision Date | 03 December 1963 |
| Docket Number | No. 1961,1961 |
| Citation | 124 Vt. 82,196 A.2d 503 |
| Court | Vermont Supreme Court |
| Parties | Henry D. BADGER et al. v. Norman C. RICE. |
Daniels & Burgess, Montpelier, for appellant.
Downs & Rachlin, St. Johnsbury, for appellee.
Before HULBURD, C.J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.
This appeal involves municipal zoning procedure. The question is whether the authority of the board of adjustment of the City of Montpelier was properly invoked to review and overrule a permit issued by the zoning administrator for the construction of a horse barn in that city.
The defendant Norman C. Rice was granted a license for the building by the zoning administrator. The plaintiff resides in the neighborhood of the proposed construction.
It appears in the record that no publicity was given to the issuance of the permit by the administrative officer, Mr. Gallup. Consequently, interested persons had no knowledge that the license had been granted until the licensee started excavation for the construction. On observing this activity, the plaintiff made inquiry. Within three days thereafter, he promptly registered protest by a letter dated December 17, 1962, addressed to the 'Board of Adjustment, Lister's Office, Montpelier, Vermont.' Its salutation is--'Dear Mr. Gallup:', and the communication goes on to express the writer's specific objections to the issuance of the permit and his reasons. A public hearing was requested in order that all interested persons might express an opinion and be heard on the issues involved. The letter was received by the zoning administrator, Mr. Gallup, who immediately transmitted it to the chairman of the board of adjustment.
The board of adjustment treated the letter as an appeal from the decision of the zoning administrator as provided in 24 V.S.A. § 3017. Accordingly, a public hearing was convened at the Montpelier city hall on January 3, 1963. Notice of the time and place of hearing was published in the TIMES ARGUS, a newspaper having general circulation in Montpelier, on December 27, 1962 and on January 3, 1963. The notice specified that the purpose of the hearing was to 'review an appeal by Harry D. Badger from the granting of a permit under the zoning ordinance to Norman C. Rice to erect a horse barn at 242 Main Street.'
At the opening of the public hearing, the licensee, Rice, challenged the authority of the board of adjustment to entertain the appeal. He moved to dismiss on the jurisdictional ground that the proceedings were not in accord with the provisions of 24 V.S.A. § 3017. The motion was denied and the board went on to hear witnesses offered by both sides of the controversy, reversed the action of the zoning administrator and denied the permit.
Rice petitioned the Washington County Court, again questioning the legality of the board's decision for the reason that Badger, in obtaining review of the building permit, had failed to comply with the directive of the statute. Holding there was substantial compliance with the statute, the Washington County Court denied Rice's petition and he brings the case here to review that single question.
24 V.S.A. § 3017 provides: Appeals to the board of adjustment may be taken by any person aggrieved or by any officer, department, board or bureau of the municipality affected by any decision of the administrative officer. Such appeal shall be taken within a reasonable time, as provided by the rules of the board, by filing with the officer from whom the appeal is taken and with the board a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.
The Rules of the Board of Adjustment of the City of Montpelier contain this provision:
In attacking the board's authority to review his permit, Rice does not question that Gallup, as the officer from whom the appeal was taken, received actual notice of the appeal. Indeed, the unchallenged findings of the county court report that the letter was received by Mr. Gallup who in turn forwarded it to the board of adjustment. Rice's objection centers on Badger's failure to file a...
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Moran v. Vt. State Ret. Bd.
...that mistake of law is not excusable neglect for purposes of motion to extend time for filing notice of appeal); Badger v. Rice, 124 Vt. 82, 85, 196 A.2d 503, 505 (1963) ( "[J]urisdictional demands must be met within the time prescribed, otherwise, the case is closed.").¶ 24. This conclusio......
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Vermont Division of State Bldgs. v. Town of Castleton Bd. of Adjustment
...may respond accordingly. Elliott v. Department of Employment Security, 137 Vt. 536, 538, 409 A.2d 563, 565 (1979); Badger v. Rice, 124 Vt. 82, 84, 196 A.2d 503, 505 (1963). This minimum requirement was not addressed in Harvey. In the case at bar, however, the issue was raised, and the minim......
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CASELLA CONST. v. Department of Taxes, 03-269.
...transfer of the cause to the reviewing authority while the question sought to be reviewed remains open to appeal." Badger v. Rice, 124 Vt. 82, 84-85, 196 A.2d 503, 505 (1963). We require strict adherence to deadlines for filing notices of appeal primarily to serve the goal of finality. In r......
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State v. Alcide
...the transfer of the cause to the reviewing authority while the question sought to be reviewed remains open to appeal.” Badger v. Rice, 124 Vt. 82, 84–85, 196 A.2d 503, 505 (1963) ; see also Peabody v. Home Ins. Co., 170 Vt. 635, 638, 751 A.2d 783, 786 (2000) (mem.) (noting that appeal right......