Friday, October 28, 2011

Deemed Denied

In re Appeal of Morrill House LLC and Smith Variance, 2011 VT 117 (mem.)

Today’s decision, if it had been issued by K-Tel could also be called Deemed Approved’s Greatest Hits.  It is a minor compendium, but an important summary for an area of law that confuses most practitioners and causes fear in citizen boards across the state.

Let’s start from the top.  The statutes controlling zoning board decision have a provision, which require the Board to issue a decision within 45 days from the close of evidence.  This statutory language on its face seems to require the Boards to not only make a decision, but type it up and mail it out within the 45 days.  If the Board does not comply with the 45-day deadline, then the application is deemed “approved.”  If this sounds too good to be true, that is because it is. 

The SCOV long ago decided that this “deemed approved” language was more limited than the statutory language seemed to indicate.  In particular the SCOV ruled that this provision had two substantial limitations.  First, an applicant cannot simply declare his or her application “deemed approved” on the 46th day.  Rather the applicant must appeal to the Environmental Division and assert the claim that the application was deemed approved.  Second, a board or town can defeat a claim of “deemed approved” by showing that the board made a final decision within the 45 days—even if the applicant never received word of this decision until much later. 

Today’s case offers only a slight gloss on this area of the law.  Applicants sought a permit for a proposed subdivision that would have created a non-conforming parcel.  The zoning administrator denied the application because it created rear and side yard setback issues, and the Applicants appealed to the Town’s Zoning Board of Adjustment for a variance.  The Board heard evidence on the application on November 9, 2009 and entered into an deliberative session where the Board voted to deny the project.  One of the Board members volunteered to write the decision, and the zoning administrator volunteered to notify the applicants by phone. 

On appeal, the Applicants deny that they were notified.  Meanwhile, the volunteer drafter did not complete his work until January 11, 2010.  The full Board did not consider and approve the decision until January 15, 2010 when it was sent to the Applicants. 

Doing simply math, Applicants’ sole argument on appeal to the trial court was that the application should be deemed approved because more than 45 days had elapsed between the close of evidence and the Board’s adoption of the decision.  To support this contention, the Applicants cite to the relevant statute (24 V.S.A. § 4464(d)), which says:

(1)        The panel shall adjourn the hearing and issue a decision within 45 days after the adjournment of the hearing, and failure of the panel to issue a decision within this period shall be deemed approval and shall be effective on the 46th day.

*          *          *

(3)        Any decision shall be sent by certified mail within the period set forth in subdivision (1) of this subsection to the applicant and the appellant in matters on appeal.

Slam dunk?  Well, not quite.  The SCOV has long interpreted this entire provision to only cover delays in a board’s deliberative process.  Basically, this statute, as interpreted, only prevents a board from closing the evidence and then sitting on the application with a series of continued deliberative sessions.

Under the SCOV’s analysis and prior rulings, these provisions do not do what they seem on their face to do: create a requirement that the final, written decision issue with 45 days under a penalty of negation. 

For the Applicants, this proves fatal at the trial court level and before the SCOV.  The Board is able to show that its members took the application under advisement on November 9th and made a final decision that night.  It simply does not matter that it then took the Board an additional 60 days to draft and issue a decision.  The decision was made within the 45 days, and everything else follows—regardless of what the statute seems to say. 

The only nuances offered by Applicants is an attempt to distinguish the present case from previous cases because the Applicants were never informed within the 45 days and the Board never finalized or reviewed the written decision until well after the deadline.  In both instances, the SCOV rejects these arguments as providing no substance to distinguish this case from the others.  No approval is deemed or forthcoming.

Because Applicants only raised the “deemed approved” arguments to the trial court, the SCOV also refuses to consider and substantive challenges to the Board’s denial.  The trial court, and by extension, the Zoning Board of Adjustment, is affirmed and applicant’s subdivision is rejected.

Applicants go home empty handed, but if we have learned anything about the law of zoning, it is that a beloved development plan never dies and can always rise again when circumstances shift into its favor.  So better luck next time.

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