 |
| Definitely not the bridge in this case |
One opinion this past week, concerning what a de minimus—a lawyers'-job-security word for unimportant or insignificant—use is in the context of recreational trails, bridges, and triggering application of zoning regs.
I want to say something silly like "Buckle in for a wild ride!" but that would be false advertising. This opinion is relatively straightforward, though there is a dissent.
In May of 2021, two landowners in Underhill worked with a local mountain-biking club to replace an existing bridge on landowners' property. This was done to make a more secure crossing for bike-club members over a brook to access the club's trails. The old bridge was 2'x8' and rested on the brook bed; the new bridge was 4'x16' and spanned the brook at the top of the banks. The old bridge was repurposed as a boardwalk a few feet away. About 40 people used the new bridge over the course of a month.
In August 2021, the local development review board granted a retroactive conditional use permit to the bike club. Neighbors appealed that permit in the Environmental Division, arguing that the club lacked standing to seek a permit and the bridge violated the zoning regs. So, the Environmental Division did a site visit and held a hearing. It voided the permit, but concluded that the new bridge was a de minimis recreational use of private property and, therefore, not subject to zoning regulations.
Neighbors appeal, making the same arguments as they did below. The SCOV majority reasons that the new bridge is, in fact, "a de minimis recreational use of private property outside the scope of the zoning ordinance." The majority discusses two prior de-minimus-use cases involving home shooting ranges and motocross tracks.
The majority then turns to whether the zoning regs actually address the use at issue. Here, the majority concludes that the Underhill zoning regs kinda do cover this use, but—isn't there usually a 'but?'—SCOV has "cautioned against using an expansively broad interpretation of zoning ordinances divorced from the goals of zoning and common sense." With that kind of foreshadowing, we can all guess where this is going.
The majority continues through factors like land and water disturbance, footprint, the type of materials used, potential impact on health and safety, whether the use is recreational, and finally, whether the outcome aligns with the purpose of zoning. Weighing all the factors, the majority concludes that the new bridge doesn't require a permit as a de minimus recreational use.
Justice Eaton—joined by specially assigned retired Justice Johnson—dissents. The dissent reasons that this is too broad an application of the de minimus exception. The dissent points out that the use is in fact addressed by Underhill's zoning regs. As such, the dissent reasons that this case should go back to the Environmental Division to consider whether a permit is appropriate.
The dissent notes that the new bridge is built from wood brought onto the property; that it's much larger and added a large ramp; and that the old bridge was repurposed. The dissent explains that "de minimis uses are those that are so small and unregulated as to be outside of the scope of a town’s zoning regulations." This project, the dissent argues, is not.
The dissent reasons that the zoning "regulations include a section that specifically requires permitting for projects that involve stream crossings or affect waterways," and this project falls within that category. There are specific de minimus uses listed in the regs, and bridges ain't one of them.
"Look," says the dissent—naturally, I'm paraphrasing—"even the club thought it needed a permit until the Environmental Division went rogue and voided the thing." The project is covered by the regs and a determination of whether a permit should be issued is required. The dissent would reverse and remand. In re Brewster River Mountain Bike Club, Inc., 2025 VT 4.
Comments
Post a Comment