Monday, April 7, 2014

Historical Hindrances

In re Bjerke Zoning Permit Denial, 2014 VT 13


So this guy wanted to fix up a house he owns.  He applied for a zoning permit and outlined what he planned to do: raise the roofline, replace some porticos with canopies, and replace some windows.  But it’s an old building. 

Five days after he applied, a city planner emailed him and said she didn’t think it was going to pass muster due to the building being on the National Register of Historic Places, but she could put it on the Design Advisory Board’s (DAB) agenda if he wants.  He wants.  So it goes on the DAB agenda; the DAB holds a meeting, which owner attends; and ultimately, the DAB tables the issue.  Apparently the windows and porticos were acceptable to the board, but the board asked for a new drawing that clearly showed the difference between the proposed roofline changes and the original structure.

Owner brought a new drawing to the city planner.  She told him she didn’t think it was what the DAB was looking for, so he didn’t submit it.  He didn’t say whether he wanted to go forward with his application or submit a revision.     

Some time passed.  Then owner met with the city zoning administrator.  At that point, because the DAB hadn’t acted on the permit application within thirty days, owner wanted the permit deemed approved.  The zoning administrator said, more or less, “Oh no, no—the DAB tabled that—it’s not approved.”


So owner appealed to the Development Review Board (DRB).  The DRB found that the zoning administrator had in fact acted on the application within the statutorily prescribed time and referred it to the DAB, which tabled it.  Owner didn’t appeal that decision, but met with the city twice to try to work out the issues.  Finally, owner just submitted his original application, without any changes, which the zoning administrator denied.  Go figure.   

Owner appealed to the DRB, which affirmed the denial.  Owner then appealed to the environmental court.  The environmental court denied owner’s motion for summary judgment on the 30-days-or-deemed-approved issue and held a merits hearing.  The environmental court ultimately “concluded that applicant’s permit application failed to comply with the historic preservation standards in § 5.4.8 of the City’s zoning ordinance.”

And with that, boys and girls, we end up at the SCOV. 

Owner’s first argument is that the permit should’ve been deemed approved when the zoning administrator failed to act upon it within thirty days.  Now, it’s important to note that the applicable statute has an “escape clause” that reads, in pertinent part: “whether by issuing a decision or by making a referral to the appropriate municipal panel.”  If neither of those things happens within thirty days, then there’s an automatic-approval provision in the statute. 

The SCOV’s review of summary judgment (or as one of my law-school buddies calls it sumjay) in the environmental court is de novo.  That just means the SCOV can go any way it wants. 

But the SCOV goes the same way as the environmental court.  There’s a somewhat lengthy discussion about the purpose of the statutory auto-approval provision at issue (to prevent indecision and delay) and a review of a somewhat similar case.  To make a long story short, the SCOV doesn’t see this as a situation where auto approval applies: owner was almost immediately informed that his application probably wouldn’t fly, people worked on it, and the DAB asked for revisions.  The SCOV concludes that sumjay was properly denied. 

Owner’s second argument is that a copy of the city’s zoning ordinance was improperly admitted at trial.  There’s a bit of a snafu here it seems, as one copy (missing a few pages) was admitted over owner’s objection at the trial; then the city followed up with a letter indicating the same.  So the court reopens the evidence for limited purposes and a complete copy gets admitted.

The SCOV essentially says “don’t be silly” regarding this argument.  Trial courts have wide discretion in evidentiary matters and the judge needed the ordinance to make a decision.   The SCOV has a similar reaction to the judge noting that he knew the city had a zoning ordinance.

Next owner argues that the environmental court improperly placed the burden on him to prove there was an ordinance and his compliance with it.  The SCOV notes that the city bears the burden of showing that there is an ordinance, but beyond that, as the person seeking to overturn the city’s determination of noncompliance, then owner indeed does bear the burden of showing compliance. 

Finally, owner argues that the environmental division’s application of the ordinance was mandatory and unreasonable.  The SCOV—despite the fact that the one bathroom in the residential apartment currently has such a low ceiling that a person cannot stand up fully in the shower area—concludes that the historical-preservation sections of the zoning ordinance are more directed toward external appearance than internal functionality.  In this sense, the environmental court’s application of the zoning provisions was not unreasonable. 


That’s a wrap, folks.  Speaking of “wrap”—what about that TYVEK wrap?  Is that historically compliant and zoning friendly?  What about as a standalone exterior . . . .  My neighbor’s had it as facing on his house for a historically substantial amount of time.  Maybe I should call the Department of the Interior.

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