Reporter’s Notes—2018 Amendment: Rule 74(b) is amended to extend its 20-day time period to 21 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.
Reporter’s Notes—2005 Amendment: Rule 74(a) is amended for consistency with simultaneous amendments promulgating the Vermont Rules for Environmental Court Proceedings and abrogating Rule 76. As was true of Rule 76, the Vermont Rules for Environmental Court Proceedings are intended to be the sole means of appeal or review for matters within the exclusive jurisdiction of the Environmental Court. See Reporter’s Notes to Rule 76 as amended; V.R.E.C.P. 1.
Reporter’s Notes—2003 Amendment: Rule 74(b) is amended simultaneously with amendments of V.R.C.P. 72(a) and 76(e)(2) and V.R.A.P. 3(b)(1) to make clear that the appellant serves a copy of the notice of appeal on each party and the clerk of the appellate court. (A parallel amendment has been made to V.R.S.C.P. 10(a) for consistency of language.) The original of the notice remains with the lower court or agency and is transmitted to the appellate court only as part of the transmission of the record.
Reporter’s Notes—1996 Amendment: Rule 74(a) was amended effective March 15, 1995, for consistency with new Rule 76(e), promulgated simultaneously by emergency amendment to provide the exclusive procedure for appeals of certain municipal land use decisions to the Environmental Court. See Reporter’s Notes to those amendments. The amendment is now made permanent in conjunction with simultaneous amendments to Rule 76. Rule 74(b) is amended to reflect the decision of the Supreme Court in Mohr v. Village of Manchester, 161 Vt. 562, 641 A.2d 89 (1993), interpreting the rule as permitting a municipal zoning notice of appeal that had been erroneously filed in the superior court to be treated as though correctly filed with the clerk of the planning commission by analogy to V.R.A.P. 4. The added language is similar to the provision of V.R.A.P. 4 relied on in Mohr, with the addition of a requirement that the superior court clerk transmit the notice “promptly” to assure that there is notice of the appeal at the administrative level. The amendment also eliminates an obsolete reference to V.R.A.P. 3(e), abrogated in 1990, and changes the procedure for service of the notice on the parties and superior court so that it is consistent with the current procedure on appeal to the Supreme Court under V.R.A.P. 3(b). Under the amended rule, the clerk of the administrative body must give the appellant a list of the “interested parties” (i.e., those with standing to appeal) and instructions concerning the procedure for serving the notice under V.R.A.P. 3(b). This requirement is intended to assist pro se appellants, who may not know who all the “interested parties” are because individuals who did not participate in the local proceedings may be entitled to appeal. Once the list and instructions have been provided, the appellant, rather than the clerk, is responsible for making service in accordance with V.R.A.P. 3(b). The reference to that rule incorporates its provisions that service upon a represented party should be made upon that party’s counsel of record, that service is sufficient notwithstanding the death of a party or counsel, and that failure to make service or take other steps does not affect the validity of the appeal.
Reporter’s Notes—1995 Emergency Amendment: Rule 74(a) is amended for conformity with the simultaneous addition of Rule 76(e) by emergency amendment. Although 24 V.S.A. §§ 4471(a), 4472(a), as amended, provide for appeals to the Environmental Court from certain municipal land use decisions in accordance with the Administrative Procedure Act and Rule 74, Rule 76(e) is intended to be the sole route for such appeals and supersedes the statute to that extent. See Reporter’s Notes to Rule 76(e).
Reporter’s Notes—1981 Amendment: The amendment to Rule 74(a) is intended both to explain the proceedings covered by the rule and to expand them. The amendment, like the original rule, is not intended to expand the jurisdiction of the superior court or to specify venue. It does, however, provide for initiation of some actions for review or appeal by notice of appeal where, prior to the amendment, the person seeking review would have begun an independent civil action under Rule 75. The amendment applies in the District Court because D.C.C.R. 74 incorporates Civil Rule 74. The original intent behind Rule 74 was to provide a simple procedure for appeal from a state agency, board or commission where the Administrative Procedure Act applies. In such a case, there is an adequate hearing procedure and record so that judicial review can proceed along the lines specified in the Appellate Rules. Three series of events have frustrated the intent or at least confused its application. Each has to do with the Administrative Procedure Act [hereinafter APA], 3 V.S.A. §§ 801-820, or its interrelationship with the rule. The first is that the legislature began to use the APA appeal procedure by reference for proceedings not otherwise subject to the APA. An example of this usage is the related statutes on appeal to the superior court from zoning boards of adjustment and planning commissions. See 24 V.S.A. §§ 4471, 4475. The usage of the APA appeal provisions has led to confusion and spawned a number of decisions on whether the party appealing to the superior court has sufficiently complied with this rule so that the appeal is valid. See Vermont Division of State Buildings v. Town of Castleton Board of Adjustment, 138 Vt. 250, 415 A.2d 188 (1980) (copy of superior court complaint served on clerk of zoning board within time period for a notice of appeal gave sufficient notice so that appeal is valid); Harvey v. Town of Waitsfield, 137 Vt. 80, 401 A.2d 900 (1979) failure to use notice of appeal invalidated appeal; In re Appeal of Pfeiffer, 136 Vt. 52, 383 A.2d 633 (1978) (although appellant timely filed under Rue 75, the notice was sufficient to invoke jurisdiction under Rule 74 and superior court must allow amendment). The second is that the application of the APA has proved to be narrow because of its definition of “contested case,” a prerequisite to its applicability. See 3 V.S.A. §§ 801(2), 815(a). In Fitzpatrick v. Vermont State Retirement System, 136 Vt. 510, 394 A.2d 1138 (1978), the Court held that a proceeding is not a “contested case” unless the law requires a hearing in the agency. Subsequently, the Court applied Fitzpatrick where the agency actually held a hearing even though it was not statutorily required to do so in all cases. See In re Petition of Marble Savings Bank, 137 Vt. 123, 400 A.2d 1022 (1979). The notice of appeal procedure is usable whenever the agency develops a record for review, irrespective of whether a statutory hearing is required. The third is that the legislature has gradually eroded the APA or this rule by providing inconsistent procedure for specific proceedings. See, e.g., 10 V.S.A. § 6089(a) (appeal from district environmental proceeding); 23 V.S.A. § 2005 (appeal from act or omission of the commissioner of motor vehicles with respect to title to motor vehicles). The problem created by the statutory procedure is particularly acute because the rule nowhere specifies the effect of inconsistent procedure, even that inconsistent procedure that preexists the rule. For preexisting procedure one has to apply both the rule and the APA’s repealer of inconsistent procedure. See 3 V.S.A. § 801 note (all acts and parts of acts inconsistent with the APA “are repealed”). As a result, one must read the various provisions “in pari materia” to achieve a consistent scheme. See In re Preseault, 130 Vt. 343, 292 A.2d 832 (1972). The result of such a reading is unpredictable. The amendment to Rule 74(a) is intended to cover the effect of the former two events. The rule now applies whenever a statute creates an entitlement to seek review of, or appeal from, the decision in a proceeding determined by a state agency, and the review or appeal is to be decided in the superior court. 3 V.S.A. § 815—the judicial review provision of the APA—can be such a statute if the legislature has authorized review or appeal in the superior court. Others may exist where there is no “contested case.” The only exclusion would be where the legislature has specifically stated that the rule shall not apply or has designated Rule 75 as the method of review. See 23 V.S.A. § 802(i) (specifies that a finding of fault under the financial responsibility law shall be reviewed under Rule 75). The rule also specifically applies where legislation brings review of a proceeding under the APA or designates this rule as the method of appeal or review. This covers appeals from zoning boards of adjustment or planning commissions. Because the rule covers proceedings that are not under the APA, it is necessary to amend subdivision (d) (formerly subdivision (c)) covering the record on appeal to specify the content of the record where the APA does not apply. Thus, irrespective of whether the APA applies, the record must consist of all writings and exhibits in the agency proceedings and a transcript of any oral proceedings. Subdivision (h) has been added to clarify the effect of inconsistent statutory provisions. Because the essence of this rule is that review on appeal should proceed by notice of appeal, rather than independent action, where appropriate, the requirement of the rule that review or appeal be initiated by notice of appeal applies in all cases subject to this rule. Statutorily mandated procedure inconsistent with this basic requirement is superseded to that extent. See, e.g., 21 V.S.A. § 227(a) (statute providing for review by “filing a written petition”; under this rule, proper method is notice of appeal). In all other respects, the effect of inconsistent statutory procedure is determined by when the statutory procedure became effective. If it became effective before July 1, 1971, the effective date of the Vermont Rules of Civil Procedure, it is wholly superseded and the procedure specified in this rule governs. If it became effective thereafter, the statutory procedure controls to the extent of the inconsistency. Where the controlling statute is incomplete, the procedure in this rule applies to fill in the gaps. The amendment is not intended to affect the question of whether review shall be de novo or on the record. See State of Vermont Department of Taxes v. Tri-State Industrial Laundries, Inc., 138 Vt. 292, 415 A.2d 216 (1980).
Reporter’s Notes: This rule has no equivalent in the Federal Rules. It provides for an appeal to a county court from those state agencies whose proceedings in contested cases are controlled by the Administrative Procedure Act, 3 V.S.A. §§ 801-816, on filing a notice of appeal and a formal record. The procedure is generally similar to that for probate appeals contained in Rule 72. See also Appellate Rule 13. Proceedings of state agencies not regulated by the Administrative Procedure Act, as well as local governmental agencies, may be reviewed by complaint in accordance with Rule 75. (Pending legislation (1971-H. 326, § 193) would amend 24 V.S.A. § 4471 to bring appeals from local Zoning Boards of Adjustment under Rule 74 because of the formal nature of the proceedings before such boards.) Rule 74(a) leaves to the specific statutes dealing with particular agencies the questions of what decisions are appealable to a county court and in what county the appeal lies. An “agency” for purposes of the rule is a “state board, commission, department, or officer, other than the legislature or the courts, authorized by law to . . . determine contested cases.” 3 V.S.A. § 801(1). A “contested case” is “a proceeding, including but not restricted to rate-making, and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing.” 3 V.S.A. § 801(2). The procedure for filing and serving the notice of appeal and for appearance by the appellee is similar to that in probate appeals under Rule 72(a). See Reporter’s Notes to Rule 72(a). As in the former practice under 3 V.S.A. § 815 and 12 V.S.A. §§ 252, 2383, however, no extension of the time for appeal beyond that allowed by Appellate Rule 4 will be allowed. See Appellate Rule 26. Rule 74(b), consistent with 3 V.S.A. § 815(a), provides for a stay only if granted by the agency or by the court on motion. This procedure is in contrast to the automatic stay provision of Rule 62(e) for appeals from a county court to the Supreme Court, which governs probate appeals by virtue of Rule 72(b). See also Rule 73(d). Rule 74(c) provides that the record shall be those papers designated as such under the Administrative Procedure Act, 3 V.S.A. § 809(e), (f). See Appellate Rule 13(d). Where a specific statute requires it, a statement of questions such as that provided by Rule 72(c) for probate appeals is also part of the record. See, e.g., 21 V.S.A. §§ 670, 671. In other respects, the subdivision is similar to the provision of Rule 72(c) for probate appeals. See Reporter’s Notes to Rule 72(c). Rule 74(d) leaves the questions of jury trial and scope of review to specific statutory provisions or prior practice governing appeals from particular agencies. In other respects, the subdivision is similar to Rule 72(d). See Reporter’s Notes to Rule 72(d). Rule 74(e) adopts the procedure of Rule 72(e) for remand, except where specific contrary provision is made by statute for a particular agency. See Reporter’s Notes to Rule 72(e). Rule 74(f) is identical to Rule 72(f). See Reporter’s Notes to Rule 72(f). Annotations Applicability. Construction with other law. Jurisdiction. Jury trial. Notice of appeal. Applicability. Plaintiff coalition, which challenged the necessity determination in the context of a proceeding to lay out a highway, lacked standing to appeal. Because it lacked any legal interest of record in any of the properties affected by defendant city’s order, it had no statutory right to appeal and therefore could not invoke Rule 74, governing appeals from decisions of government agencies; furthermore, Rule 75, governing review of governmental action, did not apply because Rule 74 offered a review mechanism. Friends of Pine St. v. City of Burlington, 2020 VT 43, 212 Vt. 342, 236 A.3d 1241, 2020 Vt. LEXIS 51 (2020). Plain reading of the statute regarding petitions to superior court in cases involving laying out, altering, or resurveying highways reveals that the superior court’s review is not pursuant to the rule regarding appeals from decisions of government agencies in cases involving reclassification of a class 3 to class 4 road. There is no merit to the argument that “altered” in the statute includes reclassification. Ketchum v. Town of Dorset, 2011 VT 49, 190 Vt. 507, 22 A.3d 500, 2011 Vt. LEXIS 49 (2011) (mem.). Vermont Transportation Board had never made any decision or response to plaintiff’s application on the merits because the application had never been forwarded by the Vermont Agency of Transportation. There was no Board decision to appeal, and thus plaintiff was entitled to review by a superior court. Coutu v. Town of Cavendish, 2011 VT 27, 189 Vt. 336, 19 A.3d 160, 2011 Vt. LEXIS 24 (2011). Trial court correctly determined that a landlord’s appeal to the superior court from a decision forfeiting his right to retain security deposits was pursuant to the rule which governed appeals from governmental agencies when the right to appeal was given by statute, and therefore was on the record and not de novo. In re Soon Kwon, 2011 VT 26, 189 Vt. 598, 19 A.3d 139, 2011 Vt. LEXIS 26 (2011) (mem.). Wetlands reclassification was a rulemaking or legislative determination rather than an adjudication, and therefore was not subject to certiorari review. Lake Bomoseen Association v. Vermont Water Resources Board, 2005 VT 79, 178 Vt. 375, 886 A.2d 355, 2005 Vt. LEXIS 160 (2005). Procedural provisions of rules governing appeals from governmental agencies and authorizing extensions of time for filing notice of appeal apply to appellate proceedings under the statute governing appeals to valuation appeal board. In re Town of Killington, 2003 VT 87, 2003 VT 87A, 176 Vt. 60, 838 A.2d 98, 2003 Vt. LEXIS 282 (2003). The superior court’s rulings were accurate and important to the overall disposition of the air pollution issues: first, it correctly articulated that V.R.C.P. 74 was amended to extend its coverage to all cases when review of agency action is provided by law in the superior court, whether or not involving a contested case; and second, the review of the agency decision would occur based on the record of the Agency, with some deference given to the Agency’s determination. Conservation Law Foundation v. Burke, 162 Vt. 115, 645 A.2d 495, 1993 Vt. LEXIS 190 (1993). Where a petition for extraordinary relief was brought by a teacher against a school board for failure to renew her teaching contract, the jurisdictional basis for the petition, although not explicitly cited by the teacher, was Rule 75, governing review of governmental action, and this rule was inapplicable, both because review in the case was not provided for by statute, and the Administrative Procedure Act, sections 801–847 of Title 3, does not apply to school boards. Burroughs v. West Windsor Board of School Directors, 141 Vt. 234, 446 A.2d 377, 1982 Vt. LEXIS 505 (1982). Exclusive remedy of an interested person with respect to a decision of the board of adjustment not challenged on constitutional grounds is an appeal to the superior court which must be perfected pursuant to the terms of this rule. State Buildings Div. v. Town of Castleton Board of Adjustment, 138 Vt. 250, 415 A.2d 188, 1980 Vt. LEXIS 1198 (1980). This rule applies only to appeals from a state agency to the superior court, not to the supreme court. In re Green Mountain Power Corp., 138 Vt. 213, 414 A.2d 1159, 1980 Vt. LEXIS 1207 (1980). Where, though banking commissioner held public hearing on request to open branch bank, law did not require a hearing, case was not a contested one and competing bank had no right of appeal under this rule. In re Marble Sav. Bank, 137 Vt. 123, 400 A.2d 1022, 1979 Vt. LEXIS 950 (1979). Where statute governing retirement system made no provision for hearing upon any issue or determination under its terms, denial of request to add credit to an account was not a contested case within provision of section 815 of Title 3 for appeal to supreme court in a contested case and there could be no appeal to superior court under this rule. Fitzpatrick v. Vermont State Retirement System, 136 Vt. 510, 394 A.2d 1138, 1978 Vt. LEXIS 657 (1978). In action arising from revocation of licenses to hunt, fish, trap and buy furs after license holder’s conviction of a fish and game violation, where no hearing was provided for in statute, meaning the proceeding was not a contested case within provisions of Administrative Procedure Act, then action was not appealable under this rule. Byrd v. Kehoe, 136 Vt. 204, 388 A.2d 834, 1978 Vt. LEXIS 718 (1978). Appeals to superior court from local boards of adjustment are governed by this rule. In re Pfeiffer, 136 Vt. 52, 383 A.2d 633, 1978 Vt. LEXIS 685 (1978). Construction with other law. The rule governing appeals from governmental agencies applies not only to appeals to the superior court, but also to appeals to the valuation appeal board of redeterminations in regard to the Equal Educational Opportunity Act. In re Town of Killington, 2003 VT 87, 2003 VT 87A, 176 Vt. 60, 838 A.2d 98, 2003 Vt. LEXIS 282 (2003). Different language in subsections of the statute governing appeals to the valuation appeal board reflects the fact that administrative bodies require different, administrative-specific procedure beyond the provisions of rules governing appeals from governmental agencies; it does not support a legislative intent to exclude that rule and the appellate rule authorizing extensions of time for filing notice of appeal from controlling proceedings under the statute. In re Town of Killington, 2003 VT 87, 2003 VT 87A, 176 Vt. 60, 838 A.2d 98, 2003 Vt. LEXIS 282 (2003). Because the legislature knew of rules governing appeals from governmental agencies and authorizing extensions of time for filing notice of appeal, and the provisions in the Administrative Procedure Act (APA) when implementing the APA as procedure in the statute governing appeals to the valuation appeal board, it must be concluded that the legislature intended to allow extensions for excusable neglect in appeals under the statute. In re Town of Killington, 2003 VT 87, 2003 VT 87A, 176 Vt. 60, 838 A.2d 98, 2003 Vt. LEXIS 282 (2003). Provisions of 24 V.S.A. § 4471, that an “adequate record” be produced, 24 V.S.A. § 1205(c), that proceedings of village development review board “be recorded,” and subdivision (d) of this rule, that record on appeal shall consist of “a transcript of any oral proceedings,” all as required for on-the-record review on appeal to the environmental court, were not satisfied by the board’s simply keeping minutes of hearings; thus, the court did not err by conducting de novo hearing with regard to conditional use permit and variance applications. In re Dunnett, 172 Vt. 196, 776 A.2d 406, 2001 Vt. LEXIS 150 (2001). Trial court should not have relied on section 815 of state administrative procedure act (APA) as basis for remanding denial of subdivision and site plan approval back to planning commission; court’s application of section 815 by cross-reference from statute governing appeal to superior court was mistaken in that statute fell far short of incorporating the APA into appeals from decisions of other-than-state entities, and this rule nowhere provided for remand or incorporation of other APA procedure. In re Maple Tree Place, 156 Vt. 494, 594 A.2d 404, 1991 Vt. LEXIS 98 (1991). Abolition of the extraordinary writs by V.R.C.P. 81 is consistent with the provisions of this rule and V.R.C.P. 75, which provide exclusive remedies for review of governmental action. Chapin Hill Estates, Inc. v. Town of Stowe, 131 Vt. 10, 298 A.2d 815, 1972 Vt. LEXIS 222 (1972). Jurisdiction. Under this rule, requiring one appealing from board of adjustment to file with the board a notice of appeal within 30 days from the entry of the decision, jurisdiction of superior court was invoked upon service of superior court complaint upon secretary of the board of adjustment within the 30-day period. State Buildings Div. v. Town of Castleton Board of Adjustment, 138 Vt. 250, 415 A.2d 188, 1980 Vt. LEXIS 1198 (1980). Jury trial. Where there was no right in substantive law to de novo review or trial by jury on appeal to superior court from administrative tax decision, such right could not be created by provision of this rule relating to trial by jury. State Dept. of Taxes v. Tri-State Industrial Laundries, 138 Vt. 292, 415 A.2d 216, 1980 Vt. LEXIS 1213 (1980). Notice of appeal. There is no discernible difference, insofar as notice of appeal is concerned, between an appeal mistakenly filed in the supreme court and an appeal mistakenly filed in the superior court, and therefore V.R.C.P. 74(b), in requiring a notice of appeal in the manner provided in V.R.A.P. 3 and 4, contemplates the common error of mistakenly filing notice of appeal with a court instead of an agency. Mohr v. Village of Manchester, 161 Vt. 562, 641 A.2d 89, 1993 Vt. LEXIS 174 (1993) (mem.). That party appealing to superior court from decision of board of adjustment failed to furnish board with sufficient copies of the notice of appeal to enable the clerk to serve all persons pursuant to this rule was not fatal to validity of appeal. State Buildings Div. v. Town of Castleton Board of Adjustment, 138 Vt. 250, 415 A.2d 188, 1980 Vt. LEXIS 1198 (1980). Where notice of appeal was not filed as required by this rule, review was foreclosed. Harvey v. Town of Waitsfield, 137 Vt. 80, 401 A.2d 900, 1979 Vt. LEXIS 913 (1979), overruled in part, Mohr v. Village of Manchester, 161 Vt. 562, 641 A.2d 89, 1993 Vt. LEXIS 174 (1993).