Vincent Permit 23-071

• Citation: 2023 Vt Super 111601
• Docket Number: 23-ENV-00072
• Decision Date: 16 November 2023
• Parties: Vincent Permit 23-071
• Court: Superior Court of Vermont

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2023 Vt Super 111601

Vincent Permit 23-071

No. 23-ENV-00072

Superior Court of Vermont, Environmental Division

November 16, 2023

ENTRY REGARDING MOTION

Thomas G. Walsh, Judge Superior Court, Environmental Division

Title: Motion to Dismiss (Motion: 3)

Filer: Kevin L. Kite, Esq.

Filed Date: October 3, 2023

No response filed.

The motion is GRANTED.

This is an appeal by Christopher Thompson of a Town of Ferrisburgh (Town) zoning permit issued by the Town Zoning Administrator on June 12, 2023 to Mr. Thompson's neighbor, Jon-Taylor Vincent, allowing Mr. Vincent to add fill to his property (the Permit). Mr. Thompson did not appeal the Permit to the Town of Ferrisburgh Zoning Board of Adjustment (ZBA) within 15 days of the date of issuance, as required by the Town of Ferrisburgh Zoning Regulations (Regulations) and 24 V.S.A. § 4465(a). Instead, on July 10, 2023, Mr. Thompson filed his appeal of the Permit in this Court. Presently before the Court is the Town's V.R.C.P. 12(b)(1) motion to dismiss this appeal for lack of jurisdiction.

When reviewing a motion to dismiss for lack of subject matter jurisdiction, this Court follows the standards established in V.R.C.P. 12(b)(1), because the Vermont Rules of Civil Procedure govern proceedings in this Division. See V.R.E.C.P. 5(a)(2). When considering V.R.C.P. 12(b)(1) motions to dismiss, this Court accepts all controverted factual allegations as true and construes them in the light most favorable to the nonmoving party, here Mr. Thompson. Rheaume v. Pallito, 2011 VT 72, ¶ 2, 190 Vt. 245.

The exclusive remedy of an interested person seeking to appeal a decision of a town's administrative officer, here the Zoning Administrator, is to file a notice of appeal with the

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secretary of the appropriate municipal panel, or the clerk of the municipality, within 15 days of the date of the administrative officer's decision or act. 24 V.S.A. §4465(a); see also Regulations § 11.5 (setting for the Town's process for filing such appeals, which mirrors § 4465(a)). "Failure to appeal the [administrative officer's] decision or act renders it final and precludes all interested persons from 'contesting], either directly or indirectly, the decision or act.'" Town of Pawlet v. Banyai, 2022 VT 4, ¶ 14, 216 Vt. 189 (quoting 24 V.S.A. § 4472(b)).

Mr. Thompson failed to file a timely appeal of the Permit with the Town Clerk as required by 24 V.S.A. § 4465(a) and the Regulations.^[1] The Permit has...