Sunday, October 23, 2016

Disputing a Duplex

In re Burns Two-Unit Residential Building, 2016 VT 63

Then thing I find most curious about this opinion is how nineteen neighbors got involved in a renovations dispute and the first neighbor who complained isn't one of them. 

The Burnses own a two-unit residential building in Burlington. Nineteen of their neighbors appeal an Environmental Division decision that the neighbors’ the-Burnses-converted-their-home-to-a-duplex-without-a-permit claim was precluded by a previous decision. The neighbors argue that the earlier decision wasn’t made by the Burlington zoning administrator like the applicable statute requires. The neighbors further argue that they were entitled to notice and an opportunity to be heard on the prior decision and that they’re entitled to a determination by the Environmental Division about whether the Burnses’ other sans-permit modifications violated the zoning ordinance.

The Burnses bought the place in January 2014. The property-transfer tax return says “multi-family dwelling”; the purchase-and-sale agreement says “lot of land with a two unit apartment building,” and the former owner and the Burnses later executed an addendum saying that the property “had been continuously used as a ‘duplex/multi-family dwelling’ since 1967.”

In March 2014, a neighbor (not one of the appellants) put in a complaint with the City code-enforcement office. She stated that the Burnses were making modification to convert their single-family home into two apartments without any permit from the city. A code-enforcement employee with the title “zoning specialist” responded by letter saying that the office had looked into it and the building had been used as a duplex since at least 1969, and that the use predated the 1973 Burlington zoning ordinance. Affidavits as to use were attached and the letter said that it was appealable to the development review board (DRB) within 15 days. The decision was not made public and no notice was given to neighbors or any other potentially interested parties. Nobody appealed.

The Burnses and the prior owner then filed a certificate of “Non-Applicability of Zoning Permit Requirements” with the planning-and-zoning department, indicating that they were going to convert the first floor into one apartment and the second and third floors into another apartment. The form was approved that day and posted on the city’s website as an “application under review.” Neighbors appealed the non-applicability decision to the DRB and the DRB denied the appeal because it reasoned that no permit was needed for the proposed modifications.

So the neighbors went to the Environmental Division. They raised three issues: (1) whether the project requires a zoning permit under the city’s zoning ordinance; (2) whether the property met the duplex-use requirements; and (3) if not a duplex, could the Burnses continue using the property as duplex under the prior-nonconforming-use doctrine? The Burnses moved for summary judgment and the city filed a memo in support.

Relying on the zoning specialist’s letter, the Environmental Division granted summary judgment. It reasoned that the letter conclusively established the property’s use as a duplex. That decision wasn’t appealed, and under this statute, that means game over.

The Environmental Division found the neighbors’ due-process claim—that they didn’t have notice of that decision—“immaterial.” It reasoned that the statute doesn’t require zoning decisions to be served on neighboring landowners. Therefore, the Environmental Division held that the neighbors were collaterally estopped from challenging the letter decision. On the proposed-changes-are-development claims, the Environmental Division concluded that—because the changes didn’t “involve an increase or decrease in the number of units, an increase in living space, or any other interior renovations”—the changes were not “development” within the plain language of the ordinance. The Environmental Division also tossed the neighbors’ the-renovations-increased-living-space claims because those claims weren’t properly before the DRB.

Neighbors appeal.

The SCOV reviews the Environmental Division’s summary judgment decisions de novo, using the same standard as the trial court.

Say it with me folks:
Summary judgment is appropriate if there are no genuine issues of material fact, entitling the movant to judgment as a matter of law.
The SCOV starts with neighbors’ the-letter-shouldn’t-bar-our-appeal pitch. The neighbors offer two reasons: (1) the statute says “zoning administrator” and there was no “zoning administrator” decision; and (2) that collateral estoppel can’t be “constitutionally applied against nonparties, who had a right of review of the administrative decision, but had no notice of it to allow them to litigate it.”

The SCOV dodges the constitutional question by agreeing with the neighbors’ first argument. When a statute is unambiguous on its face, then its clear terms apply. The SCOV runs through the applicable statutes and notes that the “zoning specialist” is not the “zoning administrator” and—even though assistant administrators can be appointed under the statutes and the city’s ordinance—nobody’s arguing that she was acting as an “assistant zoning administrator.”

The SCOV acknowledges that there is merit to zoning decisions being given finality and that they “not be subject to relitigation or collateral attack.” And when the decision is made by the statutorily proper person, that’s the way it shakes out. But here, the neighbors had no way of knowing that a complaint was made or how it was addressed. Only when the Burnses “filed the certificate of nonapplicability of permit requirements was there public notice of applicants' plans and the zoning administrator's approval of those plans and by then it was too late to contest the approval under the decision of the Environmental Division.” Though the SCOV chooses to “leave to another day whether that deficiency equates to a due process violation,” it notes that this is a strong reason not to adopt a broad reading of the statute.

And so the SCOV concludes that the letter was not a zoning administrator’s decision and does not preclude neighbors’ claims. Accordingly, the Environmental Division screwed up when it concluded that the statute applied and the decision letter precluded review.

Neighbors’ final argument is that they should get a ruling on the merits on their the-Burnses’-plans-increase-the-floor-space claims. The SCOV agrees, noting that because the claims were not barred by the letter decision and that they were raised before the DRB, they’re properly in front of the Environmental Division.

And so the SCOV kicks it back to the Environmental Division—note that I have not abbreviated it “ED” or made a single ask-your-doctor joke this entire summary despite my juvenile sense of humor—for further consideration.

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