Play Musty for Me

By Daniel Richardson

In re Musty Permit, 2012 VT 42.

Here is the big difference between zoning cases and just about every other case an attorney comes across on the docket. 

When a civil, criminal, or family case is resolved, it is done.  End of the civil cases means somebody does or does not get money.  End of the criminal case means defendant goes to jail or does not.  End of the family case means someone gets the kids, someone gets the money, and someone gets Fido. 

But when a zoning case is done, it is just beginning.  An applicant, if successful, basically has a license to go ahead and start the project.  What the project is may only be vaguely defined.  It may not even be obvious.  I may even incorporate the conditions of the DRB to modify things into an unrecognizable new project.  The point is if the green flag is waved, applicant goes forward, and the pre-project scramble is over. 

In this case, Applicant sought to subdivide her 14,000 square-foot lot into two lots of 8,000 square feet and 6,000 square feet.  The City’s DRB approved, but required Applicant to reconfigure the lots and file a revised final plat that met the City’s applicable setback regulations.  Applicant complied and modified her lots to meet the setbacks, which resulted in a modified plan with two lots of 7,000 and 7,000 square feet.  There was no other reason for the modification, and from the record here, it appears that the change was solely to satisfy the Board’s condition.  No one challenged or appealed the modification or final plan.

Flash forward a year, and now Applicant is ready to build on one of her lots.  She files an application for a zoning permit, and neighbors object.  Neighbors’ complaints go, primarily to the underlying subdivision, and they are rejected by the zoning administrator, the City’s Development Review Board, the Environmental Court, and finally the SCOV.

The problem is that the final plat with the two 7,000 square feet lots was never challenged or appealed.  Neighbors try to argue that this post-hearing modification was improper, but the SCOV rules that it was not.  Because Neighbors never challenged any part of the earlier subdivision, they cannot attack a construction permit now that conforms to the regulations for the established lot. 

This is but a variation on the old wisdom of zoning: keep your eye on the permit and do not rely on what an applicant proposed yesterday.  It has already changed.