Posted by: Patricia Salkin | June 6, 2016

VT Supreme Court Holds that Letter Sent by City “Zoning Specialist” to Citizen was Not a Decision of the Zoning Administrator within Meaning of Statute Governing Effect of Failure to Appeal

Applicants Cynthia and Charles Burns owned a two-unit residential building in Burlington. The property transfer tax return for the property’s purchase described the building as a “multi-family dwelling,” but the purchase and sale agreement entered into by applicants and the prior owner in January 2014 described the property as a “lot of land with a two unit apartment building,” though the prior owner later executed an addendum to the agreement stating the property had been continuously used as a “duplex/multi-family dwelling” since 1967. In March 2014, a neighborhood property owner, who was not one of the neighbors involved in this appeal, submitted a zoning enforcement complaint form to the City of Burlington Code Enforcement Office, in which she stated that applicants were conducting modifications and interior renovations to expand their living space to convert a single-family-home into two apartments, without any zoning permit from the city. An employee in the Burlington Code Enforcement Office with a title of “zoning specialist” responded by stating that the Code Enforcement Office had investigated the complaint and determined that the building had been used as a duplex from at least 1969 and that uses that preceded the adoption of the 1973 Burlington zoning ordinance were presumed valid because of the loss of records of that time. The letter further stated that the decision was appealable to the Burlington Development Review Board (DRB) within fifteen days of the decision, and neither the complainant nor any other interested party appealed the May 15, 2014 decision. The decision was not made available to the public, and no notice was provided to neighboring landowners or other potential interested parties.

In this case, a group of nineteen Burlington residents appealed from a decision from the Superior Court, Environmental Division, which declined to reach the merits of neighbors’ claim that applicants converted their home into a duplex without a zoning permit on the grounds that the challenge was precluded by a prior decision under 24 V.S.A. § 4472(d). Here, neighbors had no way of knowing that a complaint to the Burlington Code Enforcement Office had been made and similarly no way of knowing how the complaint was addressed. Only when applicants filed the certificate of non-applicability 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. Moreover, while the letter from the zoning specialist stated that the complainant could obtain review of the decision by an appeal to the DRB within fifteen days, the ordinance provides only for review of zoning administrator decisions in that way.

Accordingly, the court found that the letter sent to the initial complainant in response to her complaint was not a decision of the zoning administrator. Because it is not a decision of the zoning administrator, the complainant did not have to appeal it to the DRB to avoid the invocation of § 4472(d). As a result, it did not preclude neighbors from requesting the zoning administrator to enforce the zoning ordinance against applicants and from appealing to the DRB from the zoning administrator’s decision that a permit was not needed. The Superior Court’s holding was therefore reversed and remanded.

In re Burns Two-Unit Residential Building, 2016 WL 3031694 (VT 5/27/2016)

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