In re Mathez Act 250 Lu Permit (Sung-Hee Chung, 2017-225

• Decision Date: 25 May 2018
• Docket Number: No. 2017-225,2017-225
• Citation: 2018 VT 55
• Court: Vermont Supreme Court
• Parties: In re Mathez Act 250 LU Permit (Sung-Hee Chung, Appellant)

2018 VT 55

In re Mathez Act 250 LU Permit (Sung-Hee Chung, Appellant)

No. 2017-225

Supreme Court of Vermont

February Term, 2018

May 25, 2018

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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.

On Appeal from Superior Court, Environmental Division

Thomas G. Walsh, J.

Ronald A. Shems and Abaigeal O'Brien, Law Clerk (On the Brief), of Diamond & Robinson, P.C., Montpelier, for Appellant.

David L. Grayck of Law Office of David L. Grayck, Montpelier, for Appellee.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. REIBER, C.J. Sung-Hee Chung (neighbor) appeals the Environmental Division's grant of summary judgment to Lori and Richard Mathez (applicants). The appeal concerns whether the District Commission exceeded its authority by issuing a second notice for a final Act 250 permit when, due to applicants' failure, neighbor did not receive notice of the permit before it became final, and neighbor failed to timely appeal. We affirm.

¶ 2. On May 9, 2016, applicants applied for an Act 250 permit to build a 75' by 100' steel building for a commercial vehicle repair and body shop, a "minor application" under Act 250. See 10 V.S.A. § 6084 (describing different application processes for "major" and "minor" applications). The minor application form includes one section for applicants to list adjoining landowners and another section to list those with a significant interest in the affected property. The District Commission relies on the section listing adjoining landowners to provide notice of the permit application, which is required by law.¹ See Id. § 6084(b)(2) (requiring District Commission to provide notice of minor application to adjoining landowners pursuant to rules of Natural Resources Board). Applicants share a driveway with neighbor and her spouse, Wyle Solomon. Applicants listed Solomon in the section for those with a significant interest in the property but omitted to name either Solomon or neighbor in the section listing adjoining landowners. Neighbor did not receive notice of the permit application and did not request a hearing before the permit issued, without a hearing, on June 15, 2016. Id. § 6084(b), (c) (stating hearing not required for minor permit application but allowing persons who receive notice pursuant to § 6084(b)(2) to request hearing).

¶ 3. On July 21, 2016, neighbor noticed large trucks on the shared driveway. Learning about the permit from the drivers, she wrote to the District Coordinator and said she thought she should have been notified. The District Coordinator replied to the email the next day, confirming she should have been notified. Neighbor did not seek to challenge or appeal the permit.² On August 25, 2016, the District Commission sent out a second Act 250 notice for the permit, stating it was "again reviewing this application under Act 250 Rule 51" and would decide "the status of [the] permit . . . as a component of its current application review." The second notice also reopened the window to request a hearing until September 14, 2016. The Commission sent this second notice of the application to neighbor and her husband, as well as the other landowners listed in the originalapplication. It did not explain the status of the permit, direct applicants to resubmit an application, or issue a stay.

¶ 4. On September 2, 2016, applicants appealed the second notice to the Environmental Division under 10 V.S.A. § 8504(a), which authorizes direct appeals of District Commission decisions to the Environmental Division. Neighbor filed a motion to intervene on September 13, 2016, and a cross-appeal on November 2, 2016. Applicants filed a motion for summary judgment in the Environmental Division. After a hearing, the court decided that although the decision applicants sought to appeal was not a final judgment, it was reviewable because it alleged that the Commission had acted outside its authority, its decision would require a second application process, and a delayed review would cause harm. On the merits, the court held that in issuing a second notice, the District Commission "attempted to void or revoke" the permit, which was analogous to a collateral attack on a final decision, and the Commission lacked the authority to do so. The second notice was therefore beyond the Commission's authority. Accordingly, the court granted summary judgment in favor of applicants and ordered the District Commission to vacate its decision to issue a second notice of the permit. Neighbor appeals.

¶ 5. "Our review of the Environmental Division's decision on a motion for summary judgment is de novo." In re Burns Two-Unit Residential Bldg., 2016 VT 63, ¶ 8, 202 Vt. 234, 148 A.3d 568 (quotation omitted)). This Court applies the same standard as the trial court. Id. Summary judgment may be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.; V.R.C.P. 56(a).

I. Environmental Division's Jurisdiction over Appeal

¶ 6. Our threshold question is whether the Environmental Division had jurisdiction over the appeal even though the decision appealed was not a final order.³ This is a legal question that wereview de novo. See State v. Sommer, 2011 VT 59, ¶ 5, 190 Vt. 236, 27 A.3d 1059 ("Whether a court has subject matter jurisdiction is a question of law, and we review questions of law de novo.").

¶ 7. In general, our courts do not "review a decision that is not a final disposition of the matter," In re Taft Corners Assocs., 160 Vt. 583, 588, 632 A.2d 649, 652 (1993), and no one contends the District Commission's second notice was a final order. See also In re Pelham N., Inc., 154 Vt. 651, 652, 578 A.2d 124, 124 (1990) (mem.) (noting that executive agencies are vested with authority to exercise discretion and expertise, and therefore "the agency should be given the first chance to exercise [its] discretion or apply [its] expertise," making it inappropriate to "judge a case piecemeal" except in "limited exceptions" (quotation omitted)). Nor did applicants seek or receive permission from the District Commission to bring an interlocutory appeal under Vermont Rules of Appellate Procedure 5 or 5.1. Thus, we must determine whether the appeal is nonetheless reviewable.

¶ 8. The Environmental Division has no court procedural rules addressing interlocutory review, so the court correctly relied on Vermont Rule of Appellate Procedure 13, which instructs interlocutory review of agency decisions to be considered pursuant to 3 V.S.A. § 815(a). See V.R.E.C.P. 5(a)(2) (stating that Environmental Division follows V.R.A.P. unless V.R.E.C.P. apply); Reporter's Notes, V.R.A.P. 13 (stating that "by virtue of 3 V.S.A. § 815(a), appeals of interlocutory rulings of administrative agencies should be treated as appeals from final decisions"). We have explained that 3 V.S.A. § 815(a) permits interlocutory review of an agency action "if review of the final decision would not provide an adequate remedy . . . or . . . the nature of the claimed defect in the order is such that the harm is greatly aggravated by delay." Taft Corners Assocs., 160 Vt. at 589, A.2d at 652 (quotation omitted). Under this rule, review of an interlocutory order is appropriate "where an agency has clearly exceeded its jurisdiction." Id. at 588, 632 A.2d at 652; see also Pelham N., Inc., 154 Vt. at 652, 578 A.2d at 125 ("The courts ordinarily should not interfere with an agency until it has completed its action, or else has clearly exceeded its jurisdiction."). In other words, if an agency has exceeded its jurisdiction, review of the final decision would not create an adequate remedy. In that situation, the decision may "require[] the applicant virtually to commence theapplication process again" and create "delay and expense" that "justify our consideration of the interlocutory decision." Taft Corners Assocs., 160 Vt. at 589, A.2d at 652.

¶ 9. In this case, applicants contest whether the District Commission had authority to issue a second notice of a final permit. Because the matter challenged is whether the Commission "clearly exceeded its jurisdiction," and delaying review until the final decision would harm the parties, we conclude that interlocutory review was appropriate.⁴

II. District Commission's Jurisdiction to Issue Second Notice

¶ 10. Next we address whether the District Commission had jurisdiction to issue a second notice for a final permit. This is also a question of law that we review de novo. See State v. Sommer, 2011 VT 59, ¶ 5.

¶ 11. Neighbor contends that in issuing a second notice, the District Commission was correcting an error, not adjudicating the final permit a second time, and the Commission has express, inherent, and implied authority to correct errors. Neighbor also observes that the revocation process under 10 V.S.A. § 6027(g) does not adequately provide for correcting a mistake.

¶ 12. Neighbor's arguments miss the mark. The question here is not whether the Commission has authority to correct a mistake. The issue is whether the Commission has the authority to issue a second notice of a permit after it has become final and which no one challenged or appealed. Without deciding whether a District Commission ever at any time has authority to issue a second notice of a permit, we conclude that the Commission did not have that authority here.

¶ 13. As an executive agency, the Commission possesses only that authority which the Legislature has granted. See, e.g., In re Boocock, 150 Vt. 422, 424, 553 A.2d 572, 574 (1988) ("Asa public administrative body, the [Labor Relations] Board has only that adjudicatory authority...