Thursday, September 8, 2011

Short Cuts

Nordlund v. Van Nostrand, 2011 VT 79.

Land use law—that is the law behind zoning, act 250, and most building permits—gets a bad rep.  For developers any regulation is a bad thing and the wails from a builder who is forced to attend multiple DRB hearings only to have his plans modified . . . well, it is enough to break your heart.  Environmentalists have the same complaint from the opposite end of the spectrum.  “They don’t enforce ‘em like they used to.”

But for those who argue that land use law has simply gotten too complicated and tangled, today’s case is a good example of how tricky it can be to navigate through regulations or find relief for what you believe is a zoning violation.

Let’s set the scene.  Nordlund owns property with road frontage.  Next to her on the road is Elizabeth Van Nostrand.  Behind both parcels is a third, land-locked parcel owned by Elizabeth’s children.  In 2006, the SCOV determined that an 18-foot wide easement ran across the Nordlund property to the benefit of the Van Nostrand kids and their parcel. 

In 2004, the Van Nostrand kids applied for a zoning permit to develop their property, but they ran into a problem.  The Town requires a fifty-foot right-of-way for any new development without adequate road frontage.  The Nordlund easement, as Nordlund pointed out to the DRB was 32 feet too small.  Kids sought a variance on the fifty feet requirement, Nordlund opposed, and the environmental court denied the variance.

Back to the drawing board for the kids, but it is hard to keep a good Van Nostrand down.  Mom soon granted kids the necessary fifty-foot easement across her property and helped get them across the permit finish line. 

As with most land use disputes the permit in this case was only a springboard to future litigation.  Shortly after the permit was issued and construction completed on the new house and fifty-foot easement, the kids and their guests resumed using the Nordlund easement.

Nordlund appears not to have been the least bit pleased by this turn of events and filed an enforcement action against the Van Nostrands under 24 V.S.A. § 4470(b) to have the easement blocked off and gated to enforce the earlier zoning permit, which put the right-of-way on Ms. Van Nostrands’ property. 

Nordlund faces two problems at the environmental court and in front of the SCOV that prove equally fatal to her efforts to get those kids off her lawn. 

The first problem that Nordlund faces is that there is no municipal permit for her to enforce.  On appeal to the SCOV, Nordlund relies upon the town’s 2005 denial of the applicants’ permit based on the under sized Nordlund easement and the environmental court’s 2009 denial of the Van Nostrands’ variance.  But as the SCOV points out in its decision, neither of these decisions forbids the Van Nostrands from using the Nordlund easement.  They just state that the kids cannot base their permit application on it for the required right-of-way.  This was a problem that was circumvented when mom gave them a fifty-foot easement.  In other words, the kids could not use the easement for the purposes of zoning, but that did not limit them from using it for anything else. 

The second problem for Nordlund is that, apart from the 2005 and 2009 decisions, there is nothing else prohibiting the Van Nostrands from using this secondary easement across her property to access theirs.  Nordlund tries to argue that the zoning regulations require any access to meet minimum width standards.  The SCOV dismisses this position quickly.  Only easements submitted for the purpose of development have to meet the state and local width provisions.  Secondary easements and access points can be of any width or character.

If you are scratching your head, you are not alone.  What the SCOV is saying is that when you have a zoning requirement, as most towns do, the driveway or right-of-way must meet a certain minimum width for development purposes, but once those purposes are meet you can develop and use all kinds of secondary right-of-ways, driveways, and easements of varying widths and use them as regularly as you see fit.  This would seem to encourage applicants, such as the Van Nostrands, who have an undersized right-of-way to obtain a new right-of-way for permit purposes and then go right back to the old one. 

But that is land use law, and the decision is perfectly consistent.  Development only requires each parcel to meet certain minimums.  If the owners do that and still want a casual, back-door road, then they can so long as they maintain the main access for the purposes of zoning—even if that access is strictly ornamental. 

So in the end, Nordlund appears to have won two battles only to lose to the larger war and will be hosting the Van Nostrands’ easement for the foreseeable future.  We expect given this turn of events that any future mention of the word easement will likely trigger a slowly-I-turn reaction from Nordlund.  

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