Posted by: Patricia Salkin | August 4, 2014

VT Supreme Court Holds That Airport’s Demolition of Vacant Homes Did Not Require Site Plan Review

Airport neighbor, George Maille, appealled the Superior Court, Environmental Division’s grant of summary judgment in favor of appellees City of Burlington and City of South Burlington. The court upheld the South Burlington Zoning Administrative Officer’s issuance of fifty-four zoning permits to the City of Burlington and Burlington International Airport (BTV) (together, applicants) and concluded that applicants were not required to submit a site plan for zoning board approval. Each permit allows BTV to demolish, remove, and fill in the cellar hole of a vacant structure on BTV-owned property. The South Burlington Development Review Board (DRB) held that removing the structures did not constitute a change in the use of the lots, and that the LDR did not require site plan review of a proposed vacant lot. Maille contended that the environmental court erred in concluding that site plan review of the applications was not required under the South Burlington Land Development Regulations (LDR).

The DRB noted in its decision that “[e]ach of the applications for a zoning permit states that the residential use of the structure on the lot has ceased and that the proposal is to remove the vacant one-or two-family structure.” Because the enabling statute grants municipalities the discretion to require site plan approval, the DRB excluded one-and two-family dwellings from site plan review. That statute reads in pertinent part: “[a]s a prerequisite to the approval of any use other than one-and two-family dwellings, the approval of site plans by the appropriate municipal panel may be required.”24 V.S.A. § 4416. The DRB interpreted the language “one-and two-family dwellings” to mean the construction of one-and two-family dwellings. The DRB further reasoned, and the environmental court agreed, that the act of construction includes the act of removal, and concluded that “the [LDR] do not require site plan review of the removal of a structure, the construction and use of which was exempt from site plan review.” The DRB found “no other authority in § 14.03(A) of the [LDR] for the Administrative Officer to refer the applications for zoning permits to the [DRB] for site plan review and approval.”

Because BTV’s application proposed no change in use and thus has not proposed conversion to a non-residential use or airport use, the court concluded that site plan review was not required under the LDR. However, the court noted when or if BTV wishes to use the properties for anything other than their current non-use, they will have to submit applications to the DRB that will likely trigger site plan review. Additionally, BTV’s proposal to place fill into the cellar holes of those structures—an activity that is incidental to the removal of the structures—is exempt from site plan review under the LDR. Although there may be legitimate concern over noise increase without the buffer provided by the former structures, the court held it cannot require site plan review when the LDR do not require it. Accordingly, the court affirmed the dismissal of the plaintiff’s claims.

In re Burlington Airport Permit, 2014 WL 3700343 (VT 7/25/2014)

The opinion can be accessed at:

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