Sunday, September 14, 2014

Where a Change in use Makes no Difference

In re Burlington Airport Permit, 2014 VT 72

By Jeffrey M. Messina

This appeal comes from a grant of summary judgment in favor of the Cities of Burlington and South Burlington by the Superior Court Environmental Division. The Environmental Court upheld the South Burlington Zoning Administrative office’s issuance of 54 zoning permits to the City of Burlington and Burlington international Airport (BTV) (together, Applicants) and concluded the Applicants were not required to submit a site plan for zoning board approval.

Each permit allowed BTV to demolish, remove, and fill in the cellar holes of the vacant structure on BTV-owned property. Neighbor contends the environmental court erred in concluding that site plan review of the applications was not required under the South Burlington (SoBu) Land Development Regulations (LDR). 

At its very core the controversy is about noise: airport-generated noise and its effects on immediate neighbors.

The Federal Aviation Administration (FAA) has regulations that require BTV to develop noise-compatibility programs (NCP) to help combat the impact of airport generated noise on BTV's neighbors. Of the 120 homes BTV purchased under the NCP, it removed 66 without site plan review or conditional use approval by the SoBu development review Board (DRB). As BTV acquired the homes under NCP, the homes were left vacant. The homes could no longer be occupied for residential purposes, so BTV advertised the vacant homes for sale with the caveat that the homes must be moved off-site. If no interested buyers, the homes are slated for deconstruction, salvage, and/or demolition.

BTV submitted zoning-permit applications to SoBu to remove the vacant homes located on each of the 54 properties. Each individual permit called for the demolition, deconstruction, or relocation of the vacant homes and the foundations razed to two feet below grade. The cellar holes were to be filled, sewer and water lines capped, and turf placed on the former home-sites. All the permits were issued by zoning officer, and the neighbor appealed the decision to the DRB. After the requisite notice and hearing, the DRB upheld the zoning officer's determination. The DRB held that removing the structures did not constitute a change in the use of the lots, nor did the LDR require site plan review of the proposed vacant lot.

Neighbor appealed the DRB decision to the environmental court and all parties sought The SumJay.

Ecourt granted SJ to the neighbor on one issue, finding that BTV's plan to remove the one and two-family residential dwellings constitute a "change in use" under the LDR. Of note, in the ruling the court neither acknowledged nor gave deference to the DRB's ruling that none of the 54 zoning applications proposed to change the use of the lot. The court granted SJ in favor of the Applicants on all other issues. The court's rationale for doing so was that despite BTV's proposed change of use, site-plan review was not triggered under the LDR because the activity on the properties falls under an exception for one- and two-family dwellings. Ecourt also held site plan review was not triggered by the proposed placement of fill because the activity was incidental to the removal of the structures on the lots and is accordingly exempt under the LDR. Neighbor appeals.

SCOV reviews grants of summary judgment de novo.

SCOV starts by discussing the matter of law at issue. As its job in this case is to interpret a municipal zoning ordinance, the Court applies a deferential standard of review to the environmental court's interpretation of the zoning ordinance and will overturn the interpretation "only on a finding of clear error." The Court first looks to determine whether the proposed removal of the structures constitute a change in use. SCOV does not agree with the Ecourt’s decision that termination of the residential use of all 54 dwellings constitutes a change in use from residential to nonuse.

The Court gives deference to the DRB’s conclusion that "none of the 54 applications proposes to change the use of the lot." The DRB is the administrative body responsible for executing the LDR, and the Court finds no clear error in its reasoning. As such, SCOV upholds the Board’s finding. Further, the Court contends that the 54 properties did not automatically change their useeven if BTV bought the properties specifically to later put them to a new use.

Neighbor argues that the zoning district is designed to encourage residential use and BTV's purpose in purchasing the lots is to prohibit residential use, such that the two uses are “diametrically opposed." Neighbor further argues that BTV's applications explicitly propose a change to an "airport use," and argues that the new use of the land is essentially a "Noise Lot" designed specifically to bring the airport in compliance with its federally mandated NCP. Neighbor argues, therefore, "the new use of the lots will serve aviation passengers and industry, and . . . constitutes ‘airport uses’ pursuant to the LDRs."

SCOV punts a bit here, saying it doesn't have to conduct a statutory analysis of "airport use" because the applicants have not proposed a new use.

With guidance from the enabling statute granting municipalities discretion to require site-plan approval, the DRB excluded one- and two-family dwellings from the site plan review. The DRB therefore interpreted the language "one and two-family dwellings" to mean the construction of one- and two-family dwellings. The Ecourt agreed with DRB's reasoning that the active construction includes the active removal, and concluded that "the LDR do not require site plan review of the removal of the structure, the construction and use of which was exempt from site plan review." SCOV agrees with the environmental court's conclusion, so no site plan review is required.

SCOV notes that because Applicants do not propose a change in use for the property, neighbor’s argument that site-plan review is required because the lots were converted to a "nonresidential use" and an "airport use" is premature. BTV has an "FAA-approved Airport Master Plan that envisions the future use of the land purchase by BTV under the NCP for purposes compatible with the airport"; however, the plan has not been formally developed. As such, the Applicants have not yet determined a use for the property. The Court reasons "[w]hen BTV does propose a new use for the subject properties, additional review, possibly including site plan review, will be required."

SCOV holds that because the BTV application never proposed changes in use and has not proposed conversion to nonresidential or airport use, site-plan review is not required under the LDR. SCOV continues that if there does indeed come a time when BTV wants to use the properties for something other than their current non-use, BTV will have to submit applications to DRB that will likely trigger site-plan review. So, in the black hole of municipal law, it seems it's better if you have no idea what you're going to do. If you're just doing stuff, nothing's controlling.

SCOV then moves on to whether the placement of fill in the cellar holes of the homes require site-plan review.

The Ecourt found placing the fill was "incidental" to the construction of the properties and therefore exempt from sit- plan review. Again, in the absence of plain error, SCOV defers to the lower court. In this case, the Court therefore agrees with the environmental court's interpretation of the zoning ordinancewhich exemptions were interpreted as having two elements: (1) the placement of fill must occur on a lot which there is also activity recognized by the LDR as "construction of the structure"; and, (2) the placement of fill must be "incidental to or in connection with" the construction of that structure. The Ecourt interpreted the phrase "construction of the structure" as including the removal of the structure since the LDR Definitions section reflects the Drafters’ intent that the term "broadly encompass such activities."

SCOV then embarks on a very Clinton-esque discussion of what the term “alter” means (see, generally, what the definition of “is” is) and ultimately concludes that the placement of fill is activity recognized by the LDR as "construction of the structure," and since all parties agree that BTV’s sole purpose in placing the fill in the lots is to fill in the cellar holes that were created by the demolition or removal of structures, the placement of fill on the lots is in connection with and incidental to the demolition or removal of the structures on each of the lots structurethereby satisfying the elements of the exemption.

SCOV holds that because BTV's proposal to demolish or remove the structures on each of the 54 lots does not constitute a change in use, it does not require site-plan review. Further, the proposal to place fill into the cellar holes of the structures is exempt from site-plan review under the LDR. Though SCOV concedes there may be legitimate concerns over noise increases without the buffer provided by the former structures, the Court makes clear it cannot require site-plan review when the LDR does not require it.

Not everyone on the Court agrees.

The dissenters on the Court (Justices Robinson and Morse (Ret.)) opine that acquiring and demolishing 54 homes in a residential district to maintain the underlying lots for expressly nonresidential purposes is actually a change of use. The dissent claims the majority’s decision is at odds with the plain language of the SoBu LDR, not to mention the purposes of the regulations.

The dissenting opinion rests primarily on the express language included in the LDR stating a change of use includes "the cessation of use," and that the majority decision requires ignoring this express statement. The minority also points out that it is clear that BTV's demolition of these homes is “part and parcel” of its plan to stop using the lots for residential purposes. That, it shows, is a change in use.

The dissenters note that one of the express and important goals of municipal planning is to ensure the availability of safe and affordable housing for all Vermonters, and a community's housing needs is a critical component of any municipal land-use plan and associated regulatory scheme. The dissenters continue that removing large parcels of existing housing units has substantial implications for SoBu's ability to meet its identified housing needs. Further, the quantity and placement of lots can have a significant impact on health, safety and general welfare of the community.

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