In re Verizon Wireless Barton Permit

• Decision Date: 09 July 2010
• Docket Number: No. 09-201.,09-201.
• Citation: 6 A.3d 713,2010 VT 62
• Parties: In re VERIZON WIRELESS BARTON PERMIT (Michael Auger and Jeannette Auger, Appellants).
• Court: Vermont Supreme Court

6 A.3d 713

2010 VT 62

In re VERIZON WIRELESS BARTON PERMIT (Michael Auger and Jeannette Auger, Appellants).

No. 09-201.

Supreme Court of Vermont.

July 9, 2010.

Vincent Illuzzi, Orleans, for Appellants.

Brian J. Sullivan and Pamela Moreau of Murphy Sullivan Kronk, Burlington, for Appellee.

Present: JOHNSON, SKOGLUND and BURGESS, JJ., and DAVENPORT, Supr. J., and CRAWFORD, Supr. J., Specially Assigned.

BURGESS, J.

¶ 1. This appeal arises from a conditional use permit issued by the Town of Barton Zoning Board of Adjustment (ZBA) to applicant Verizon Wireless ¹ approving the installation of wireless communication antennas at two sites in the Town of Barton. Neighbors Michael and Jeannette Auger, who own land adjoining one of the proposed sites, sought to challenge this permit through an appeal to the Environmental Court. The Environmental Court dismissed neighbors' appeal, concluding that neighbors lacked party status to appeal the ZBA decision because they neither participated below nor filed a proper motion to claim party status for extraordinary circumstances. Neighbors appeal this dismissal, claiming that they did participate below, or, in the alternative, any participation requirement should be waived because they were not properly noticed regarding the ZBA hearing. We affirm.

¶ 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 aesthetics of neighbors' property and obstruct their view, and (2) whether an existing site was available for co-locating the tower as required by the Town's bylaws. In September 2008, neighbors' counsel entered his appearance.

¶ 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, 174 Vt. 151, 156, 807 A.2d 448, 451 (2002) (appeal to Environmental Court confined to issues raised in statement of questions).

¶ 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 courtfurther 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.P. 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.P. 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.

¶ 6. Neighbors filed a notice of appeal to this Court, along with a motion seeking permission to appeal on additional grounds. The motion claimed that neighbors were denied a meaningful opportunity to participate in the proceedings below and therefore should be granted party status. They also asserted that although they failed to file a motion for party status, their amended statement of questions was adequate to raise the issue. We elected to consider this motion with the merits of the appeal.

¶ 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, 166 Vt. 337, 341, 693 A.2d 1045, 1048 (1997). Standing to appeal decisions related to municipal zoning is regulated by statute; we are thus obligated to abide by the Legislature's restrictions "and may not judicially expand the class of persons entitled to such review." Garzo v. Stowe Bd. of Adjustment, 144 Vt. 298, 302, 476 A.2d 125, 128 (1984). "[T]he 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." In re Albert, 2008 VT 30, ¶ 7, 183 Vt. 637, 954 A.2d 1281 (mem.). Neighbors' appeal asserts standing on two bases, and we consider them in turn.

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 ² "who [have] participated as defined in 24 V.S.A. § 4471 in the municipal regulatory proceeding." 10 V.S.A. § 8504(b)(1). Participation "consist[s] of offering, through oral or written testimony, evidence or a statement of concern related to the subject of the proceeding." 24 V.S.A. § 4471(a). The issue therefore is whether neighbors' acts on June 5 of calling the zoning administrator and submitting a letter satisfy the participation requirement of § 4471.

¶ 10. In addressing this question, we look to the language of the statute to discern the Legislature's intent. In re Carroll, 2007 VT 19, ¶ 9, 181 Vt. 383, 925 A.2d 990. "We will enforce the plain meaning of the statutory language where the Legislature's intent is evident from it, but, if doubts exist, the real meaning and purpose of the Legislature is to be sought after and, if disclosed by a fair and reasonable construction, it is to be given effect." Id. (citation and quotation omitted). The Environmental Court held that neighbors' acts were insufficient because they came after the ZBA made its decision. The court explained that the plain meaning of participation in the statute requires "that an appellant bring information before the municipal panel as a way of helping that panel reach its decision in the first instance." The Environmental Court concluded that to satisfy the statutory requirements neighbors were required to participate before a final decision was reached, and they failed to do so in this case. We agree.

¶ 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...