In re Milton Arrowhead Mountain

In re Milton Arrowhead Mountain  (98-337); 169 Vt. 531; 726 A.2d 54

[Filed 8-Jan-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-337

                             JANUARY TERM, 1999


In re Milton Arrowhead Mountain	}	APPEALED FROM:
                                }
                                }
                                }	Chittenden Superior Court
                                }	
                                }
                                }	DOCKET NO. S1136-97 CnC


       In the above-entitled cause, the Clerk will enter:

       Appellants, the Iron Workers District Council of New England and
  Wilbur Parker, seek  review of the Department of Environmental
  Conservation's issuance of an encroachment permit  to construct a bridge
  across Arrowhead Mountain Lake in the Town of Milton.  They argue that  the
  Water Resources Board and the superior court erred in ruling that their
  appeal of the  Department's decision to the Board was untimely filed.  We
  affirm.

       On Friday, June 6, 1997, the Department mailed appellants notice of
  its decision granting  the Town an encroachment permit that same day. 
  Appellants received the notice on Monday,  June 9, 1997.  On Wednesday,
  June 18, 1997, the Board received appellants' notice of appeal of  the
  decision.  The Board dismissed the appeal as untimely filed, and the
  superior court later  upheld the Board's ruling.

       Under the relevant statute, the Department "shall give written notice"
  to specified persons  or entities of its approval or denial of a permit
  application.  29 V.S.A. § 405(c).  "Notice shall  be given within five days
  of taking action."  Id.  Approval or denial of the permit "shall not be 
  effective until 10 days after the department's notice."  Id.  A person may
  appeal the  Department's decision to the Board "within 10 days from the
  date of notice of action."  29  V.S.A. § 406(a).  A timely filing of an
  appeal stays the decision.  See id.

       Appellants argue that the superior court erred in holding that the
  period for taking an  appeal under § 406(a) expires ten days after notice
  of the Department's decision is sent.   According to appellants, the plain
  meaning of the statute is that the appeal period runs from the  date that
  the notice is received.  We disagree.  An appeal may be taken within ten
  days of "notice  of action," which must be "given" within five days of
  taking the action.  29 V.S.A. §§ 405(c),  406(a).  Ordinarily, notice of a
  decision is "given" at the time it is mailed, not received.  See  Brinson
  v. Bethesda Hosp., Inc., 504 N.E.2d 496, 499 (Ohio C.P. 1985) (term "notice
  is given"  refers to date on which notice is mailed); Mullen v. Braatz, 508 N.W.2d 446, 448 (Wis. Ct.  App. 1993) (to "give" notice of appeal is
  synonymous with "service" of notice, which is  complete upon mailing). 
  This makes sense in the instant context.  If the Department cannot give 
  notice of its decision until the notice is actually received, litigants
  could effectively stay a  decision indefinitely simply by avoiding receipt
  of the notice.  See 29 V.S.A. § 405(c) (decision  approving or denying
  permit application shall not be effective until ten days after "notice of 
  action").  As the Board pointed out, when the Legislature has intended an
  actual receipt standard  to trigger an appeal period, it has explicitly
  stated so.  E.g., 10 V.S.A. § 6610a(b) (emergency  order concerning
  disposal of hazardous materials "shall be effective upon actual notice" to
  person  against whom order is issued; such persons shall have opportunity
  for hearing within five  business days of date order is issued).


 

       We are not implying that a person who never actually received written
  or oral notice of an  action by the Department within the ten-day appeal
  period would necessarily be barred from  appeal.  See Leo's Motors, Inc. v.
  Town of Manchester, 158 Vt. 561, 566, 613 A.2d 196, 200  (1992).  In the
  event a dispute arises as to whether notice was properly mailed, that
  factual  dispute may be resolved by the Board or on appeal by the superior
  court.  See Mullen, 508 N.W.2d  at 448-49 (proof that notice of decision
  was properly mailed raises rebuttable  presumption that notice was
  "given").  Such an inquiry is not needed here, however, as  appellants
  concede that they received notice of the Department's decision on June 9, a
  week  before the appeal period expired.

       Appellants rely heavily on Glabach v. Sardelli, 132 Vt. 490, 321 A.2d 1 (1974) to support  their argument that their appeal of the Department's
  decision was timely filed.  In Glabach, the  issue was whether under 24
  V.S.A. § 4470(a) a zoning board should be deemed to have rendered  a
  decision in favor of the appellant when the board made a written decision
  but failed to notify  the appellant of the decision within the statutory
  period.  Construing the statutory language, this  Court concluded that a
  decision is "rendered" only after notice is "given."  Id. at 495, 321 A.2d  
  at 5.  We overruled this holding in Leo's Motors, 158 Vt. at 565, 613 A.2d 
  at 199, but  appellants contend that Glabach is still good law as to when
  the period for taking an appeal  commences to run.  Even assuming that this
  is true, Glabach is unavailing to appellants here.   Although the opinion
  uses the word "receives" at one point in describing when notice is sent and 
  thus judgment rendered, it stands for the proposition, when read in its
  entirety, that "a variance  decision is not rendered until it is mailed to
  the applicant."  Leo's Motors, 158 Vt. at 563, 613 A.2d  at 198 (stating
  Glabach holding).  As we noted in Leo's Motors, the Glabach court was 
  concerned that appeal rights could be lost if a zoning board buried its
  decision in the minutes of a  meeting and then neglected to comply with
  statutory notification requirements.  See id.  In this  case, notice was
  sent to appellants the same day that the decision was made, and thus there
  was  no violation of the statutory requirement that notice be given within
  five days of the decision.   See 29 V.S.A. § 405(c).

       While we recognize the general rule that statutes regulating appeal
  rights are remedial in  nature and must be liberally construed in favor of
  persons exercising those rights, our ultimate  goal is to give effect to
  the intent of the Legislature.  See In re Walker Estate, 112 Vt. 148, 151, 
  22 A.2d 183, 185 (1941).  Here, the statutory language does not suggest
  that the Legislature  intended the appeal period to commence on the date
  the Department's "notice of action" was  received.  See Santi v. Roxbury
  Sch. Dist., 165 Vt. 476, 481, 685 A.2d 301, 304 (1996)  (statutes must be
  construed consistently with their purpose, subject matter, effects and 
  consequences so as to avoid irrational results).  With this in mind, we
  hold that the ten-day time  period for filing a notice of appeal under §
  406(a) commences at the time the "notice of action"  is sent.

       Affirmed.	

	BY THE COURT:

	_______________________________________
	Jeffrey L. Amestoy, Chief Justice
	

	_______________________________________
        James L. Morse, Associate Justice
	
	
	_______________________________________
        Denise R. Johnson, Associate Justice
	
	_______________________________________
	Marilyn S. Skoglund, Associate Justice