Agenda - Planning Commission - 09/06/2018

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Zoning Bulletin July 25, 2018 I Volume 12 I Issue 14 Citation: In re Mathez Act 250 LU Permit, 2018 VT 55, 2018 WL 2382006 (Vt. 2018) VERMONT (05/25/18)—This case addressed the issue of whether a district commission had the authority to issue a second notice for a final Act 250 permit when a neighbor did not receive notice of the permit before it became final, and the neighbor failed to timely appeal. The Background/Facts: Act 250 is Vermont's land use and development law under which statutes dictate procedures related to permit applications. (See, e.g. 10 V.S.A. § 6084). Nine district commissions review Act 250 ap- plications and issue decisions and land use permits. Under Act 250's statutory application process, applicants are required to list on their application, adjoin- ing landowners and those with a "significant interest in the affected property" so that those with an interest have notice of the permit application and can request a hearing on the permit if desired. On May 9, 2016, Lori and Richard Mathez (the "Applicants") applied for an Act 250 permit to build a steel building for commercial vehicle repair and body shop. Applicants listed their neighbor, Wyle Solomon, but not his spouse, Sung-Hee Chung ("Neighbor"). Neighbor therefore did not receive an Act 250 notice of Applicants' permit application, and thus did not request a hearing before the permit issued, without a hearing, on June 15, 2016. On July 21, 2016, Neighbor learned about the permit, yet she did not seek to challenge or appeal the permit. Still, having been advised that Neighbor had not received notice about the permit, the District Commission, on August 25, 2016, sent out a second Act 250 notice for the permit. That second notice stated that the District Commission was "again reviewing [Applicants'] ap- plication under Act 250 Rule 51" and would decide "the status of [the] permit . . . as a component of its current application review." The Applicants appealed the second notice to the Superior Court, Environ- mental Division. The court held that in issuing a second notice, the District Commission "attempted to void or revoke" the permit, which was analogous to a collateral attack on a final decision, and the Commission lacked the author- ity to do so. Having determined that the second notice was therefore beyond the Commission's authority, the court granted summary judgment in favor of the Applicants, and ordered the District Commission to vacate its decision to issue a second notice of the permit. Neighbor appealed. Neighbor argued that the District Commission had authority to issue the second notice of the permit because "the District Com- mission was correcting an error, not adjudicating the final permit a second time, and the Commission has express, inherent, and implied authority to cor- rect errors." DECISION: Judgment of Superior Court, Environmental Division, affirmed. The Supreme Court of Vermont concluded that Neighbor's arguments "miss[ed] the mark," and held that, "[w]ithout deciding whether a District Commission ever at any time has authority to issue a second notice of a permit . . . the Commission did not have that authority here." In so holding, the court acknowledged that "Act 250 and its rules authorize © 2018 Thomson Reuters 3