Severson v. City of Burlington

• Citation: 2019 VT 41
• Decision Date: 07 June 2019
• Docket Number: No. 2018-247,2018-247
• Court: Vermont Supreme Court
• Parties: Jeffrey Severson v. City of Burlington & Burlington Conservation Board

2019 VT 41

Jeffrey Severson v. City of Burlington & Burlington Conservation Board

No. 2018-247

Supreme Court of Vermont

February Term, 2019

June 7, 2019

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, Chittenden Unit, Civil Division

Robert A. Mello, J.

Kevin E. Brown of Langrock Sperry & Wool, LLP, Middlebury, for Plaintiff-Appellant.

Kimberlee J. Sturtevant and Nicholas J. Lopez, Assistant City Attorneys, Burlington, for Defendant-Appellee City of Burlington.

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

¶ 1. SKOGLUND, J. Appellant Jeffrey Severson appeals the trial court's decision to grant appellees'—the City of Burlington (the City) and the Burlington Conservation Board (the Board)—motion to dismiss pursuant to Vermont Rule of Civil Procedure 12(b)(1) and (6). Severson argues that the trial court erred when it determined he, as a member of the Board, did not have standing because he did not allege an injury that is actionable under Vermont's Open Meeting Law. 1 V.S.A. § 314(b). We find that dismissal of Severson's claim was proper, and thus affirm.

¶ 2. The Board was established in 1989 to advise the City on matters regarding natural resource conservation and environmental protection. It is an advisory committee to the Burlington Planning Commission for certain planning matters and to the Burlington Development Review Board for certain project applications—the Board does not have final-approval authority for any of the plans or applications it reviews. The Burlington City Counsel appoints the nine members of the Board, and Severson has served as a member of the Board for several years. It is undisputed that the Board is a "public body" and is thus subject to the requirements of the Open Meeting Law. See 1 V.S.A. § 310(3) (" 'Public body' means any board, council, or commission of the State or one or more of its political subdivisions . . . .").

¶ 3. The Burlington Town Center Project (the Project) is a large real estate project that proposed to redevelop the downtown district of the City. The Board, as the body responsible for advising the City on matters regarding resource conservation and environmental protection, met several times to review various aspects of the Project's permit application. A final review hearing for the Project was scheduled and held on January 9, 2017 from 5:30 p.m. until 8:00 p.m. Prior to the meeting, the Board issued a public notice of its agenda. The notice informed the public that the meeting would be held at the Fletcher Free Library, instead of city hall. It also noted that "[t]he library closes at 6:00 P.M. The doors will be locked at that time. Arrive before 6:00 P.M." At the bottom of the notice, there was a phone number to call the City's human resources department "[f]or accessibility information or alternative formats." No members of the public, other than one reporter, attended the Board's meeting on January 9. At the conclusion of the Board's final review of the Project, Severson cast the only vote against the Project. The City ultimately granted zoning approval to the Project. Several residents of the City appealed the City's approval to the Environmental Division of the Superior Court, but settled said appeal with the Project's developer.

¶ 4. In early October 2017, nearly ten months after the meeting, Severson emailed the Board's chair and raised concerns over the January 9 meeting. He asserted that the meeting had violated the Open Meeting Law because it had occurred behind locked doors. Severson requested that the Board cure the violation by holding a meeting in compliance with the Open Meeting Law to conduct a review of the most current version of the Project's plan and to ratify the other, non-Project related Board actions taken at the January 9 meeting. The Board met on November 13, 2017, during which it reviewed a memorandum prepared by the City's legal counsel and the relevant facts of Severson's allegations, including information on the staffing procedure of the library on nights when public meetings were scheduled there. The Board determined that no Open Meeting Law violation had occurred.

¶ 5. After the Board's determination, Severson filed suit against the Board and the City, seeking declaratory and injunctive relief on the ground that the Board violated § 314(c) of the Open Meeting Law by conducting its final review of the Project behind locked doors and by notifying the public in advance of the meeting that, in order to attend, any member of the public needed to arrive prior to 6 p.m. The City and the Board moved to dismiss the complaint pursuant to Vermont Rule of Civil Procedure 12(b)(1) and (6), arguing that Severson did not have standing and failed to state a claim upon which relief could be granted, and noting that Severson had failed to produce any evidence that a member of the public attempted to gain access to the meeting but was locked out.

¶ 6. In a written decision, the trial court granted the City and the Board's motion to dismiss, finding that Severson did not allege an injury that was actionable under the Open Meeting Law. The trial court determined that Severson had "no standing under the Open Meeting Law to bring an action for the speculative injuries of unknown members of the public." Severson filed a timely appeal of the trial court's order to this Court.

¶ 7. The central question before us on appeal is whether Severson, as a member of the public body that allegedly violated § 312(a) and (h) of the Open Meeting Law, qualifies as "any person aggrieved" entitled to seek enforcement of the Open Meeting Law in the wake of the public body's refusal to recognize, and correct, the alleged violation. And, if we find that members of public bodies do have a legally cognizable interest under the Open Meeting Law, we must then determine if Severson has standing in this particular instance.

¶ 8. Severson argues that: (1) the trial court improperly failed to acknowledge that a member of a public body has a cognizable interest under 1 V.S.A. §§ 312 and 314 to have the public body's meeting kept open to the public at all times and to hear the comments and questions that the public might offer on the matter under consideration by the public body; (2) nothing in the statutory language of the penalty and enforcement provisions, or the public policy that infuses the Open Meeting Law, supports the restrictive application of aggrieved status advanced by the City, the Board, and the court below; and (3) whether the January 9 meeting violated the Open Meeting Law does not depend upon proof that the public notice, which advised the public to arrive before the locking of the library doors, dissuaded any particular person from attending the meeting, or that the locking of the library doors prevented any particular person from gaining access to the meeting.¹ In response, the City and the Board maintain that the trial court properly dismissed Severson's complaint for lack of standing and failure to state a claim because he has failed to demonstrate that he suffered a legally cognizable injury-in-fact or to produce evidence that any person, including he himself, was aggrieved when they attempted to attend the meeting but could not because of the locked doors. We agree that the trial court erred when it failed to acknowledge that a member of a public body has a cognizable interest under the Open Meeting Law. But nevertheless, we affirm because Severson's pleadings fall short of standing requirements here.

¶ 9. Standing is a jurisdictional requirement, and therefore "[w]ithout standing, the court has no jurisdiction over a petition for declaratory relief." Bischoff v. Bletz, 2008 VT 16,¶ 15, 183 Vt. 235, 949 A.2d 420. Because standing is a jurisdictional requirement, "our review of dismissal for lack of standing is the same as that for lack of subject matter jurisdiction"—de novo. U.S. Bank Nat'l Ass'n v. Kimball, 2011 VT 81, ¶ 12, 190 Vt. 210, 27 A.3d 1087. A de novo review requires that we accept "all uncontroverted factual allegations . . . as true" and construe those facts "in the light most favorable to the nonmoving party." In re Guardianship of C.H., 2018 VT 76, ¶ 6, ___ Vt. ___, 194 A.3d 1174 (quotation omitted). In addition, we "will assume the truth of . . . all reasonable inferences that may be derived from the pleadings." Elkins v. Microsoft Corp., 174 Vt. 328, 330, 817 A.2d 9, 12 (2002). "A motion to dismiss should be granted only when it is beyond doubt that there exist no facts or circumstances that would entitle the nonmoving party to relief." Samis v. Samis, 2011 VT 21, ¶ 9, 189 Vt. 434, 22 A.3d 444. "A plaintiff must allege facts sufficient to confer standing on the face of the complaint." Parker v. Town of Milton, 169 Vt. 74, 76, 726 A.2d 477, 479 (1998) (quotation omitted). Failure to do so must therefore result in dismissal for lack of jurisdiction.

¶ 10. "For standing, plaintiffs must present a real—not merely theoretical—controversy involving the threat of actual injury to a protected legal interest rather than merely speculating about the impact of some generalized grievance." Brod v. Agency of Nat. Res., 2007 VT 87, ¶ 9, 182 Vt. 234, 936 A.2d 1286 (quotations omitted). In order to meet this burden, a plaintiff "must show (1) injury in fact, (2) causation, and (3) redressability." Id. (quotation omitted). "The injury must be an 'invasion of a legally protected interest,' not a generalized harm to the public." Parker, 169 Vt. at 78, 726 A.2d at 480 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)); see also Schievella...