Posted by: Patricia Salkin | October 25, 2011

VT Supreme Court Strictly Construes Deemed Approve Language Reiterating its Intent Was to Remedy Indecision

Applicants’ request to subdivide their property was denied by the zoning administrator for failure to comply with side and rear yard setbacks and minimum lot width requirements.  The zoning board of adjustment held a hearing on Nov. 9, 2009 and after emerging from an executive session voted to deny the application’s request. One board member was tasked with writing the decision and the zoning administrator was instructed to inform the applicants of the board’s decision. The zoning administrator claimed he left a message about the outcome of the vote on Smith’s cell phone voicemail and Smith denies receiving it.  The board member tasked with drafting the decision did so on Jan. 11, 2010 and after review by board members, they signed it on Jan. 15, 2011, 67 days after the board hearing had adjourned.  The applicants then received a written copy of the decision and appealed to the environmental court asserting that the variance should be deemed approved due to the board’s failure to timely notify them of the decision as required under state and local law. The Environmental Court granted summary judgment to the Town, ruling that even if the Town failed to notify the applicants of its decision prior to Jan. 15, 2010, a deemed approved remedy was not warranted as a matter of law.

The Supreme Court noted that Section 4464(b)(1) of Title 24 of V.S.A. provides that a panel reviewing land development application must issue a decision within 45 days after the adjournment of the hearing and that failure to issue a decision within that time period shall deem the application approved on the 46th day. The next sentence in the statute requires that decision be made in writing and the statute further requires that the decisions be sent by certified mail within the 45-day time period. The Town ordinance has essentially the same language.  The applicant points out that neither the statute nor the ordinance provide for notification by phone.  The Supreme Court noted that the Environmental Court’s finding that the Board made its decision on Nov. 9, 2009 was undisputed.

The appeal boiled down to whether the applicants were entitled to deemed approval of their application where the board made a decision on or before the statutory deadline but did not notify them of the decision or provide them with a written decision within 45 days. The Court noted that prior precedent regarding the remedy of deemed approval statutory language is to remedy indecision and protracted deliberations on the part of zoning boards.  Since the board here made its decision within the required time period, the Court said it would follow prior precedent and strictly construe the deemed approval remedy to apply only when the decision was not made within the prescribed time period. Therefore, the decision of the Environmental Court was affirmed.

 In re Appeal of Morrill House LLC and Smith Variance, 2011 WL 4634242 (VT 9/30/2011)

The opinion can be accessed at:

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