Does a permittee’s failure to post notice within view of the road justify an untimely appeal?
Interested persons have a limited amount of time to challenge a permitting decision issued by their town’s Zoning Administrator, which timeframe is generally tied to the posting of notice of the decision. When a Zoning Administrator issues a permit, notice must be provided to the public in two ways. For 15 days, a permittee must post notice of the permit within view of the public right-of-way most nearly adjacent to the property. 24 V.S.A. § 4449(b). For an equal amount of time, the Zoning Administrator must post a copy of the permit in at least one public place in the municipality. 24 V.S.A. § 4449(b)(2).
An interested party has 15 days to appeal a decision by the Zoning Administrator. 24 V.S.A. § 4465(a). If an appeal is untimely, a court has no jurisdiction to hear the appeal; it must dismiss the case. 24 V.S.A. § 4472(d). This is strictly enforced. The Supreme Court has “consistently held that the failure to appeal a zoning decision . . . bars a subsequent challenge ‘even when the decision is alleged to have been void [from the beginning].’” In re Hignite, 2003 VT 111, ¶ 8.
But the question remains: does a permittee’s failure to post notice within view of the road justify an untimely appeal?
In 2003, the Environmental Court ruled that a Zoning Administrator’s posting of the required statutory notice was sufficient to bar an untimely appeal. In re Smith, No. 263-12-02 Vtec, slip op. at 3 (Vt. Envtl. Ct. Apr. 14, 2003) (explaining that personal (or “actual”) notice was not required because “constructive” notice was sufficient). At the time Smith was decided, however, posting in the Town Clerk’s Office the only public notice required by law; a permittee did not have to post notice of the permit within view of the right-of-way. Id. This requirement was added when the statue was amended in 2004.
Although the Environmental Court has not yet determined whether a permittee’s failure to post notice within view of the right-of-way justifies an untimely appeal, the question presented itself in a case entitled, In re Benning, No. 184-9-09 Vtec. There, the parties disputed whether the permittee had posted proper notice within view of the road. Rather than deciding before trial that the permittee’s failure to post notice was inconsequential (because the Zoning Administrator had in fact posted the notice in town), the Court decided to resolve the parties’ dispute at trial. Id. at 10 (June 16, 2010). This suggests that a failure to post within view of the road would justify an untimely appeal. That said, the appeal in In re Benning, was only 8 days late. Id. at 12 (Mar. 25, 2010). It is another question whether the failure to post within view of the road justifies an appeal years later. One would like to believe that any interested party had some kind of notice before then, including the Zoning Administrator’s original posting in the municipality. The factors weighing in favor of finality get heavier as time goes on. Unfortunately, the case was settled before trial, so the question remains unanswered.