In re Town of Killington

• Decision Date: 19 September 2003
• Docket Number: No. 2002-365.,2002-365.
• Parties: In re Town of Killington.
• Court: Vermont Supreme Court

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In re Town of Killington.

No. 2002-365.

Supreme Court of Vermont.

Filed September 19, 2003.

On Appeal from Rutland Superior Court, William D. Cohen, J., April Term, 2003.

Ellen Mercer Fallon and Abby C. Moskovitz of Langrock Sperry & Wool, LLP, Middlebury, for Appellant.

William H. Sorrell, Attorney General, and Charles L. Merriman, Special Assistant Attorney General, Montpelier, for Appellee.

PRESENT: Amestoy, C.J., Johnson and Skoglund, JJ., and Allen, C.J. (Ret) and Gibson, J. (Ret.), Specially Assigned

JOHNSON, J.

¶ 1. This appeal arises because the Town of Killington failed to meet a filing deadline to the Valuation Appeal Board when it appealed its property valuation for Act 60 purposes. After its appeal was dismissed, Killington appealed to the Rutland Superior Court, arguing that the Board should have considered, pursuant to V.R.A.P. 4, its eligibility for a filing extension for excusable neglect before dismissing its claim. The Superior Court agreed with the State that the filing deadline could not be extended and dismissed the claim. Although Killington is correct that V.R.A.P. 4 applies to its administrative appeal, we affirm the decision below because Killington failed to show excusable neglect as a matter of law.

¶ 2. Act 60 equalizes education expenditures per student across Vermont through a state?wide fund comprised of a general state support grant and local property tax revenue. To begin calculating each municipality's required contribution, the Director of Property Valuation in the Department of Taxes assesses the aggregate and fair market value of a municipality's real property. The Director then calculates each municipality's equalized education property tax grand list and coefficient of dispersion from this data, notifying the municipalities of these values each year by January 1.(¹) 32 V.S.A. § 5406.

¶ 3. Upon receipt, a municipality has thirty days to file a petition with the Director of the Division of Property Valuation and Review for a redetermination of its property tax grand list and coefficient of dispersion. 32 V.S.A. § 5408(a). Within thirty days of receiving the Director's redetermination, a municipality may again appeal to either the Valuation Appeal Board or to the superior court of the county in which the municipality is located. 32 V.S.A. § 5408(c) & (d). The statute at issue in this case, 32 V.S.A. § 5408(c), provides the procedure for appeals to the Valuation Appeal Board.

¶ 4. On December 27, 2000, the Director of Property Valuation and Review determined Killington's 2001 equalized education property value and coefficient of dispersion. Killington timely petitioned the Director of the Division of Property Valuation for a redetermination of these figures, which the Director issued on June 4, 2001. Although Killington intended to appeal the Director's redetermination to the Valuation Appeal Board pursuant to § 5408(c), an "office procedure breakdown" within its law firm prevented it from filing this appeal within the statutory thirty-day limit. On July 16, 2001, twelve days after the thirty-day limit, Killington filed its notice of appeal to the Valuation Appeal Board accompanied by a motion for an extension of time to file the appeal.

¶ 5. The Valuation Appeal Board dismissed Killington's motion on the ground that § 5408(c) does not authorize it to grant extensions of time to file appeals. Killington appealed to the Rutland Superior Court, arguing that § 5408(c) authorizes extensions for excusable neglect by first noting that § 5408(c) proceedings derive their procedure from the Vermont Administrative Procedure Act (APA). Any proceeding subject to the APA is also subject to the provisions in V.R.C.P. 74, which makes appeals under its jurisdiction also subject to V.R.A.P. 4. Based on this analysis, Killington contends that courts may consider V.R.A.P. 4 requests for filing extensions for excusable neglect on appeals brought pursuant to 32 V.S.A. § 5408(c).

¶ 6. Both the State and Killington filed motions for summary judgment in Rutland Superior Court on the issue of whether a municipality can receive a V.R.A.P. 4 extension for excusable neglect under 32 V.S.A. § 5408(c). The court granted the State's motion for summary judgment, finding that V.R.C.P. 74, the necessary link to V.R.A.P. 4, is "clearly applicable only to appeals to the superior court from a decision of a governmental agency and not to appeals within or to a governmental agency." This appeal followed.

¶ 7. Whether a municipality can obtain an extension for excusable neglect on appeals pursuant to 32 V.S.A. § 5408(c) is a question of law subject to de novo review. See Jordan v. State, 166 Vt. 509, 511, 702 A.2d 58, 60 (1997). The authority to issue such an extension derives from V.R.A.P. 4, under which a court may extend the time for filing the notice of appeal "for excusable neglect, upon motion and notice, if request therefore is made within 30 days after the expiration of the [30-day appeal period]." The text of V.R.C.P. 74(b) indicates that these provisions apply to any proceeding within its jurisdiction:

(b) Notice of Appeal; Appellee's Appearance. An appeal or review under this rule shall be taken by filing with the clerk of the administrative body . . . a notice of appeal in the manner and within the time provided in Rules 3 and 4 of the Rules of Appellate Procedure.

V.R.C.P. 74(b). The superior court ruled that municipalities cannot obtain V.R.A.P. 4 extensions for excusable neglect in 32 V.S.A. § 5408(c) appeals because V.R.C.P. 74 is applicable only to appeals to superior courts, not to appeals to administrative agencies. We agree with Killington that V.R.C.P. 74 and V.R.A.P. 4 can govern appeals to administrative agencies as well as appeals to a superior court.

¶ 8. Appeals governed by the APA must follow the procedure delineated in V.R.C.P. 74(a):

(a) Applicability. . . . this rule shall also apply when any party is entitled by statute to seek review of, or appeal from, a decision in a proceeding determined by any other administrative officer or tribunal and the appeal or review is subject to procedure provided for state agencies covered by the Administrative Procedure Act (chapter 25 of Title 3 V.S.A.) or to procedure provided in this rule.

Appeals brought under 32 V.S.A. § 5408(c) meet Rule 74's applicability standards because they are subject to the procedure delineated in the APA:

(c) A municipality, within 30 days of the director's redetermination, may appeal the redetermination to the valuation appeal board . . . . The appeal shall be heard de novo in the manner provided by chapter 25 of Title 3 for the hearing of contested cases.

32 V.S.A. § 5408(c). Because we apply the plain meaning of a statute where the language is clear and unambiguous, we conclude that V.R.C.P. 74 applies not only to appeals to the superior court, but also to appeals to the Valuation Board under § 5408(c). In re Verizon New England Inc., 173 Vt. 327, 335, 795 A.2d 1196, 1202 (2002) (holding that the Court applies the plain language of a statute where its meaning is unambiguous).

¶ 9. The Superior Court based its decision on a misinterpretation of Rule 74's title, "Appeals From Decisions of Governmental Agencies," and accompanying Reporter's Notes. The title does not limit V.R.C.P. 74's applicability based on the destination of the appeal. Additionally, although the 1981 Reporter's Notes do state that "[t]he rule now applies . . . [where] the review or appeal is to be decided in the superior court," they continue in a subsequent paragraph to maintain, "[t]he rule also specifically applies where legislation brings review of a proceeding under the APA." Reporter's Notes-1981 Amendment, V.R.C.P. 74. These notes thus support our conclusion that the procedural provisions of V.R.C.P. 74 and V.R.A.P. 4 apply to appellate proceedings under 32 V.S.A. § 5408(c)

¶ 10. The State makes a number of arguments in support of a contrary interpretation of the statute that we do not find persuasive. First, the State argues that the Legislature must have meant to exclude V.R.C.P. 74, and therefore V.R.A.P. 4, from subsection (c) of § 5408 because no mention is made of those rules, while V.R.C.P. 74 is explicitly mentioned in subsection (d). It is true that in contrast to subsection (d), subsection (c) invokes the APA rather than directly referring to V.R.C.P. 74:

(c) A municipality, within 30 days of the director's redetermination, may appeal the redetermination to the valuation appeal board . . . The appeal shall be heard de novo in the manner provided by chapter 25 of Title 3 for the hearing of contested cases.

(d) A municipality or the division of property valuation and review may appeal from a decision of the valuation appeal board to the superior court of the county in which the municipality is located. The superior court shall hear the matter de novo in the manner provided by Rule 74 of the Vermont Rules of Civil Procedure.

32 V.S.A. § 5408(c)-(d). Subsection (d) relates exclusively to courts, and therefore V.R.A.P. 74 alone provides its appellate procedure. Subsection (c), by contrast, controls appeals to an administrative body, and thus derives its procedure from the less formal provisions of the APA in addition to V.R.C.P. 74. See Town of Bridgewater v. Department of Taxes, 173 Vt. 509, 511, 787 A.2d 1234, 1237?1238 (2001) (mem.) (noting that the APA develops the record of administrative hearings in a more informal manner); see also 3 V.S.A. § 807; 3 V.S.A. § 809; 3 V.S.A. § 812. Because V.R.C.P. 74 applies to all appeals subject to the APA, the Legislature had no reason to refer explicitly to Rule 74 in subsection (c) once it had already invoked the APA as the governing procedure for subsection (c) hearings. The different language in (c) and (d) thus reflects the fact that administrative bodies require different, administrative-specific procedure beyond the provisions of V.R.C.P. 74; it does...