By Andrew Delaney
The Boves (father and son, I’m guessing from “Richard J. Bove, Sr.” and “Rick Bove”) own adjoining lots in Burlington and want to put a development on the combined lot. So what’s the problem?
Well, a zoning-district-boundary line runs right through the middle of things, and there’s supposed to be a fifteen-foot buffer between the zoning districts. The Boves applied for a permit to the Burlington development review board (DRB), which denied the application. The Boves appealed to the Superior Court, Environmental Division, which found that the merger of the lots eliminated the property line, but didn’t get rid of the zoning-district-boundary line.
As mentioned, the Boves own two adjoining parcels. One is fully within the downtown-transition district; one is fully within the residential-high-density district. This means that the zoning-district-boundary line is the same as the property line between the two parcels. The Boves propose to merge the parcels, eliminate the property line, demolish several existing buildings, and put in a single twenty-three-residential-units-and-one-commercial-unit development. There would be an edge of a building within the fifteen-foot-buffer zone.
After the DRB denied the application, the Boves appealed to the environmental division and moved for summary judgment on the basis that elimination of the property line and the merging of the parcels would eliminate the zoning-boundary-line-setback requirement for the. Ergo, the residential-high-density-district-zoning-boundary-line setback wouldn’t apply; the downtown-transition-district setback would, and therefore, only a 5.14-foot setback was necessary.
The City argued that the setback requirement applied regardless, and that the Boves’ path to getting approval would be (and had been traditionally in similar situations) a formal request to redraw the zoning district boundary to reflect the property-line change. Without that, the Boves needed to comply with the setback requirement.
The environmental division split the proverbial baby and held that the merger of the properties eliminated the property line and setback requirement within the newly created joined lot, but that “any new structures in the downtown districts must be at least 15 feet from the shared property line with a parcel in a residential district.” The Boves sought leave for an interlocutory appeal, and the environmental division, eventually certified a question to the SCOV, which was more or less, “Does the buffer zone apply to the newly created parcel where it’s getting up against the residential district?”
The standard of review is deferential to the environmental division. Unless it’s “clearly erroneous, arbitrary, or capricious” the environmental division’s interpretation of a zoning ordinance will stand. A zoning ordinance’s interpretation is very similar to statutory interpretation—look for the intent of the drafters in the plain language; if ambiguous root around ‘til we find something to help us figure it out—so on and so forth.
The majority first notes that the City’s interpretation is just plain silly. “Indeed, it would be strange to apply a setback in the middle of a property, as the City would do here.” But, the majority also isn’t buying the Boves’ change-the-line-change-the-setback pitch. On this point, the majority reasons that the difference between development allowed in each zone provides a very good reason for the buffer zone and that one can’t eliminate it entirely just by merging lots. And so, the majority concludes that the environmental division’s interpretation properly got the drafters’ intent.
The majority points out that this case supports the environmental division’s decision because it too dealt with “a similar multi-parcel setback issue.” The majority rejects both the Boves’ and the City’s arguments about what a 2008 amendment did or didn’t mean. It’s not like this is one of those nobody-knows-what-they-meant situations. The majority is comfortable with the merger-eliminates-the-old-property-line-but-the-buffer-applies-to-the-new-property-line reasoning.
Finally, the majority rejects the City’s what-if-a-developer-buys-a-bunch-of-property-straddling-development-zones-and-does-crazy-expanding-that-way argument. The majority basically says, “If that happens, we’ll deal with that absurdity then.”
The majority affirms.
Justice Robinson dissents. In her view, the majority’s decision places the property “subject to a more onerous setback requirement on its northern boundary than any other property in the City of Burlington located in the [residential-high-density] district.”
First, the dissent fully agrees with the rejection of the City’s middle-of-the-property-setback position. That’s just silly.
But the dissent can’t agree with the difference-in-zones-warrants-the-buffer reasoning. On this point, the dissent reasons that the portions of the lot that are in the residential zone are still subject to that zone’s requirements. Under the zoning, you don’t get to merge the properties that straddle the border and make a new big less-restrictive lot. In other words, merging a property doesn’t bring it into the less-restrictive zone.
And so, in the dissent’s view, the fifteen-foot buffer is not necessary. The residential-high-density district setback—not the buffer-zone setback—should apply.
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