In re Denio
In In re Denio, 158 Vt. 230, 608 A.2d 1166 (1992), landowners had submitted themselves to the permitting process under Act 250 and received a permit for their proposed subdivision but objected to conditions imposed by the Environmental Board.
On appeal, they raised for the first time the claim that the Board lacked subject-matter jurisdiction over them. Like the Department's sovereign immunity argument here, the Denios argued that subject-matter jurisdiction may be raised at any time.
The Court rejected that argument based on the strong legislative policy requiring preservation and held that the Denios were barred from raising subject-matter jurisdiction by their failure to preserve the issue below. See id. at 236, 608 A.2d at 1169-70.
The requirement of preservation stemmed from the strong legislative policy embodied in a statutory provision requiring preservation except in extraordinary circumstances. See id. at 234, 608 A.2d at 1168 (citing 10 V.S.A. 6089(c)).
The Court noted that we had previously applied the statute to other jurisdictional issues and that it comported with the law of exhaustion of administrative remedies. See id., 608 A.2d at 1169.
Further, the Court explained the policy reasons for enforcing a requirement of preservation in jurisdictional disputes. We noted that the statutory language did not except jurisdictional issues and that many disputes can be cleverly reframed as jurisdictional issues, thereby permitting applicants for Act 250 permits to avoid raising jurisdictional disputes before the Board. See id. at 235, 608 A.2d at 1169. "As a result, the most important decisions on the scope of Act 250 would be made without involvement of the Board or its expertise." Id.
Therefore, the Court held that the applicants had a duty to raise their jurisdictional objections and that their failure to do so foreclosed the later challenge. See id. at 236, 608 A.2d at 1169-70.