In re Albert

• Decision Date: 14 March 2008
• Docket Number: No. 06-195.,06-195.
• Citation: 954 A.2d 1281,2008 VT 30
• Parties: In re Appeal of Gail ALBERT, et al.
• Court: Vermont Supreme Court

954 A.2d 1281

2008 VT 30

In re Appeal of Gail ALBERT, et al.

No. 06-195.

Supreme Court of Vermont.

March 14, 2008.

Motion for Reargument Denied April 24, 2008.

Present: REIBER, C.J., SKOGLUND, BURGESS, DOOLEY and JOHNSON, JJ.

ENTRY ORDER

¶ 1. This appeal and cross-appeal involve developer's proposed development of approximately thirty-three acres in Shelburne. Developer received approval from the Town of Shelburne Planning Commission for the development of single-family lots and multi-family units. Thereafter, landowners appealed the planning commission's decision to the Environmental Court. The Environmental Court granted approval for the development of the multi-family units but denied approval for development of the single-family lots. Developer appeals the Environmental Court's denial of approval for development of the single-family lots arguing, inter alia, that landowners lacked standing to appeal the planning commission's decision to the Environmental Court. Landowners cross-appeal, challenging the Environmental Court's approval of the multi-family-unit development. Because we agree that landowners lacked standing to appeal the planning commission's decision to the Environmental Court, we vacate the court's decision.

¶ 2. The following facts are not contested. Developer seeks to build twenty-five single-family lots and thirty-seven multi-family lots on a 33.71 acre parcel of land in Shelburne. Developer received preliminary approval of its plan to do so from the planning commission on October 10, 2002. Developer submitted an application for final approval on March 31, 2003, and the planning commission unanimously approved it on May 8, 2003. One month later, on June 9, 2003, a group of fifteen persons owning land in Shelburne filed a notice with the planning commission stating that they were appealing the planning commission's decision to the Environmental Court. Attached to the notice of appeal was a petition signed by the landowners stating "that the relief requested by [developer] for approval of a planned residential development ... if granted, will not be in accord with the policies, purposes, or terms of the plan or bylaws of the Town of Shelburne." The planning commission took no action with regards to the merits of the dispute between landowners and developer upon receipt of landowners' petition and notice. Indeed, landowners appealed the planning commission's decision to the Environmental Court that very same day.

¶ 3. Developer moved to dismiss landowners' appeal for their failure to comply with the requirements of 24 V.S.A. § 4464, a statute governing appeals from municipal decisions. At that time, § 4464 required that litigants be "interested persons" in order to have standing to appeal the decisions of administrative officers to municipal boards like planning commissions. At that time, § 4464 provided, in relevant part:

(a) An interested person may appeal any decision or act taken ... in any municipality ...

(b) For the purposes of this chapter, an interested person means any one of the following:

....

(4) Any ten persons owning real property within a municipality ... who, by signed petition to the board of adjustment or the development review board of a municipality, the plan or a bylaw of which is at issue in any appeal brought under this title, allege that any relief requested by a person under this title, if granted, will not be in accord with the policies, purposes or terms of the plan or bylaw of that municipality.¹

¶ 4. The standing requirement contained in pre-amendment § 4464(b) also applied to appeals to the Environmental Court from planning commissions through preamendment § 4471(a). See 24 V.S.A. § 4471(a) ("An interested person may appeal a decision of a board of adjustment, a planning commission, or a development review board to the environmental court.").² Developer argued that landowners were not interested persons within the meaning of pre-amendment § 4464(b)(4), and therefore lacked standing to appeal to the Environmental Court, because they submitted a petition to the planning commission after the planning commission granted final plan approval for the proposal. In addition, developer argued, as it does here, that the statute required landowners to have submitted a petition to the planning commission for consideration before it granted final plan approval. The Environmental Court denied developer's motion to dismiss, reasoning that "the statute does not ... require that the parties have participated at the municipal board level."³ In an order dated August 8, 2005, the Environmental Court granted approval for the development of the thirty-seven multi-family units and denied approval for development of the twenty-five single-family lots. This appeal and cross-appeal followed.

¶ 5. According to landowners, we should defer to what they characterize as the Environmental Court's long-standing interpretation of pre-amendment § 4464's "interested person" to include persons, like landowners, who file petitions with municipal boards after that body has issued a final decision in a matter. Landowners cite our practice of deferring to agency interpretations of statutes within the area of agency expertise. It is true that "where a statute is silent or ambiguous regarding a particular matter this Court will defer to agency interpretation of a statute within its area of expertise as long as it represents a permissible construction of the statute." In re Smith, 169 Vt. 162, 169, 730 A.2d 605, 611 (1999). Landowners ask us to extend that principle of deference to the Environmental Court's construction of pre-amendment § 4464 due to the court's expertise in environmental matters.

¶ 6. We decline to do so. We defer to agency interpretations of statutes that the Legislature has entrusted them to administer as much out of a concern for the proper separation of powers as in consideration of agency expertise. See Town of Victory v. State, 2004 VT 110, ¶ 16, 177 Vt. 383, 865 A.2d 373 (explaining that "[t]o preserve the appropriate separation of judicial and executive powers, we presume that judicial review of administrative decisions is deferential"). Because the Environmental Court is a part of the judicial branch, there is no separation-of-powers imperative for deferential review here. Moreover, whatever deference the Environmental Court is owed in the area of substantive environmental law does not apply to its construction of statutes governing general principles of law such as party standing. Cf. Devers-Scott v. Office of Prof'l Regulation, 2007 VT 4, ¶ 9, 181 Vt. 248, 918 A.2d 230 ("Questions of law that can be answered with traditional tools of statutory construction are within the special expertise of courts, not agencies, and are therefore answered by the court de novo." (citation omitted)).

¶ 7. We have recently ruled that the proper construction of a statute governing appeals of municipal decisions to the Environmental Court is a question of law subject to nondeferential and plenary review on appeal. See In re Carroll, 2007 VT 19, ¶ 9, 181 Vt. 383, 925 A.2d 990 (applying de novo review and reversing the Environmental Court's dismissal of the landowner's appeal for lack of standing where standing hinged on the proper construction of the words "municipal regulatory proceeding" in post-amendment § 4471(a)). We apply the same standard of review here.

¶ 8. We begin by noting that although the general rule is that statutes regulating appeal rights are remedial in nature and therefore liberally construed in favor of persons exercising those rights, Casella Constr. Inc., v. Dep't of Taxes, 2005 VT 18, ¶ 5, 178 Vt. 61, 869 A.2d 157, "our ultimate goal is to give effect to the intent of the Legislature." In re Milton Arrowhead Mountain, 169 Vt. 531, 533, 726 A.2d 54, 56 (1999) (mem.). We have recently explained that we "strictly adhere" to the standing requirements that the Legislature set forth in pre-amendment § 4464(b). In re Gulli, 174 Vt. 580, 582 n*, 816 A.2d 485, 488 n* (2002) (mem.); see also Garzo v. Stowe Bd. of Adjustment, 144 Vt. 298, 302, 476 A.2d 125, 127 (1984) (Court may not judicially expand class of persons entitled to review in zoning cases governed by pre-amendment § 4464(b)).

¶ 9. Our decisions in Kalakowski v. John A. Russell Corp., 137 Vt. 219, 401 A.2d 906 (1979), and In re Garen, 174 Vt. 151, 807 A.2d 448 (2002), do not stand for a contrary proposition. In neither case did we apply the general rule that appeal rights are liberally construed, let alone apply that rule in such a way as to override our primary goal of effectuating the intent of the Legislature. In Kalakowski, we interpreted the standing requirement of pre-amendment § 4464(b)(3). 137 Vt. at 222-23, 401 A.2d at 908-09. Pre-amendment § 4464(b)(3) provided certain persons with standing in zoning appeals as long as they "allege[d] that the decision or act, if confirmed, [would] not be in accord with the policies, purposes or terms of the plan or bylaw of that municipality." (Emphasis added.) We held that a group of persons had standing to appeal a zoning board decision under pre-amendment § 4464(b)(3) where their allegation was that "the decision would not be in accord with the [zoning] regulations." Kalakowski, 137 Vt. at 222, 401 A.2d at 909. We reasoned that the Legislature did not design pre-amendment § 4464(b) to "establish a formula for pleading." Id. In Garen, we held that intervenors in an appeal before the Environmental Court were entitled to maintain the appeal after the original appellants withdrew their appeal in part because we could "discern nothing in the statutory scheme ... that appear[ed] to foreclose intervenors" from doing so. 174 Vt. at 154, 807 A.2d at 450. By contrast, it is precisely because we do discern something in the statutory scheme that forecloses landowners from maintaining their suit that we hold today that they lack standing to do so.

¶ 10. As noted, it is...