Posted by: Patricia Salkin | October 17, 2015

VT Supreme Court Finds Merger of Two Adjacent Lots Did Not Eliminate the Fifteen-Foot Buffer Required by the Zoning Ordinance

In this interlocutory appeal, applicants, Richard J. Bove, Sr. and Rick Bove, applied to the City of Burlington Development Review Board (DRB) to construct a development on their two adjacent lots. A zoning-district-boundary line ran through the middle of the proposed development, dividing the two parcels. The city’s zoning ordinance, City of Burlington Comprehensive Development Ordinance § 4.4.1(d)(6) (2012) (hereinafter CDO), required a fifteen-foot setback intended to be a buffer between the two districts: one downtown and the other residential. The DRB denied the application, and the applicants appealed to the Environmental Division. The Environmental Division concluded that, although the merger of the two adjacent lots eliminated the property line dividing the two parcels, the merger did not eliminate the fifteen-foot buffer required by the zoning ordinance. 

The court determined that the purpose of the fifteen-foot “Residential District Setback” in § 4.4.1(d)(6) was to provide a buffer between the denser downtown development and the less-dense residential communities. The Environmental Division’s interpretation of this district-boundary setback, that it should apply at the new northern border of applicants’ merged parcel, instead of along the former property line that divided the merged parcels, provided the buffer intended by the CDO drafters. Both parties claimed that changes made or not made during the 2008 redrafting of the CDO supported their respective interpretation of the DT–RH setback provision. Applicants implied that the drafters’ failure to address district-boundary setbacks specifically with respect to split lots indicated their intent that the setback requirements not apply in split lots. Conversely, the City argued that this omission meant the drafters intended the setback provisions to apply to split lots, even where the zoning district boundary line bisects a parcel. The court disagreed with both parties and found that the drafters’ failure to address this particular situation did not indicate their position on it. 

Thus, in this case of a two-lot merger, it was not clearly erroneous to interpret the district-boundary setback to apply at the property’s border with the next RH-district property in light of the plain language and purpose of the setback provision. The court did note, however, that while it held that the Environmental Division’s interpretation of the zoning provision in this case was a correct understanding of the law and effectuated the legislative intent, its holding would not purport to predict the outcome of all future cases addressing the scope of the same provision. 

In re Bove Demolition Construction Application, 2015 WL 5887739 (VT 10/9/2015)


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