In re Burns Two–Unit Residential Bldg.

• Citation: 2016 VT 63,148 A.3d 568
• Decision Date: 27 May 2016
• Docket Number: No. 15–260.,15–260.
• Parties: In re BURNS TWO–UNIT RESIDENTIAL BUILDING (Michael Long, et al., Appellants).
• Court: Vermont Supreme Court

148 A.3d 568

2016 VT 63

In re BURNS TWO–UNIT RESIDENTIAL BUILDING (Michael Long, et al., Appellants).

No. 15–260.

Supreme Court of Vermont.

May 27, 2016.

Norman Williams and Petra A. Halsema of Gravel & Shea PC, Burlington, for Appellants.

Kimberlee J. Sturtevant, Assistant City Attorney, Burlington, for Appellee City of Burlington.

Brian P. Hehir, Burlington, for Appellees Charles and Cynthia Burns.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

DOOLEY, J.

¶ 1. This case is about modifications to a two-unit residential building owned by Cynthia and Charles Burns (applicants) in Burlington. A group of nineteen Burlington residents (neighbors) appeal a decision from the Superior Court, Environmental Division declining 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) or to consider whether a permit was required for applicants' other modifications. On appeal to this Court, neighbors argue: that their challenge is not precluded under § 4472(d) because the prior decision had not been rendered by the Burlington Zoning Administrator as the statute requires; that preventing an appeal without affording notice and opportunity to be heard violates their due process rights; and that they are entitled to a determination by the Environmental Division of whether applicants' other modifications violated the zoning ordinance because they were done without a permit. We agree and reverse.

¶ 2. The underlying facts of this case are not in dispute. Applicants own a two-unit residential building in Burlington, Vermont. While the property transfer tax return for the property's purchase describes the building as a “multi-family dwelling,” the purchase and sale agreement entered into by applicants and the prior owner in January 2014 describes 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.

¶ 3. In March 2014, a neighborhood property owner, who is 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 letter on May 15, 2014. The letter stated 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. In support of her decision, the zoning specialist referenced affidavits from a tenant living in a third floor apartment at the property, as well as from applicants' predecessor in interest, affirming the property had been used as a duplex since the 1960s. The letter stated that the decision was appealable to the Burlington Development Review Board (DRB) within fifteen days of the decision, and it is uncontested that 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.

¶ 4. On June 3, 2014, applicants and the prior owner filed a certificate of “Non–Applicability of Zoning Permit Requirements” with the City of Burlington Department of Planning and Zoning, indicating their intention to transform the first floor of the building into one unit and the second and third floors into one unit.¹ The form was approved the same day, applicants were informed that no zoning permit was required for the proposed work, and the decision was posted on the City's website under a section entitled “Applications Under Review.” Neighbors appealed the zoning nonapplicability determination to the DRB. On July 24, 2014, the DRB denied the appeal, stating that no zoning permit was required for the proposed alterations to the property. Neighbors then appealed that decision to the Environmental Division, and raised three issues: (1) Does the project require a zoning permit under § 3.1.2 of the Burlington Comprehensive Development Ordinance (CDO)?; (2) Does the property meet the requirements for use as a duplex under the CDO?; and (3) If not, may applicants continue using the property as a duplex under the doctrine of prior nonconforming use? Applicants moved for summary judgment on all three questions; the City of Burlington filed a memorandum in support of their motion.

¶ 5. In a June 23, 2015 decision, the Environmental Division granted applicants' motion for summary judgment. The trial court concluded that the use of the property as a duplex was “conclusively decided in [the] May 2014 letter,” a decision that became final and binding when it was not appealed under 24 V.S.A. § 4472(d), which states that:

Upon the failure of any interested person to appeal to an appropriate municipal panel under section 4465 of this title, or to appeal to the Environmental Division under section 4471 of this title, all interested persons affected shall be bound by that decision or act of that officer, the provisions, or the decisions of the panel, as the case may be, and shall not thereafter contest, either directly or indirectly, the decision or act, provision, or decision of the panel in any proceeding, including any proceeding brought to enforce this chapter.

In turn, § 4465(a) provides that:

An interested person may appeal any decision or act taken by the administrative officer in any municipality by filing a notice of appeal with the secretary of the board of adjustment or development review board of that municipality or with the clerk of that municipality if no such secretary has been elected. This notice of appeal must be filed within 15 days of the date of that decision or act, and a copy of the notice of appeal shall be filed with the administrative officer.

The trial court rejected neighbors' arguments that § 4472(d) applies only to decisions by the zoning administrator, rather than the Code Enforcement Office zoning specialist, and that precluding their appeal would deprive them of rights of due process. The court found that the letter itself made clear the decision pertained to the property's legal status and was attributable to the City and appealable to the DRB, that the zoning administrator had granted the zoning specialist the “power to issue such letters” and “personally reviewed and authorized this letter,” and that the text of § 4472(d) makes explicit the final and binding nature of these kinds of zoning decisions.

¶ 6. The court also found that neighbors' allegation that they had been deprived of their due process right to contest the determination because they did not have notice of the letter to the original complainant “immaterial” because § 4472(d) “does not require [that] notice of a decision in response to a zoning complaint be served on neighboring landowners.” Thus, it held that neighbors were precluded from collaterally challenging the May 2014 decision in any subsequent proceeding by arguing that the use of the property as a duplex violated the Burlington CDO. Finally, the court held that applicants' proposed changes to their property—which did not involve an increase or decrease in the number of units, an increase in living space, or any other interior renovations—did “not constitute development under the plain language of the CDO,”² such that no permit was required for those renovations. In reaching the latter decision, the court ruled that neighbors' claims that applicants had done work that increased interior space was not properly before it because these claims were not before the DRB. This appeal followed.

¶ 7. In their brief to this Court, neighbors raise the following arguments: (1) that their appeal from the DRB to the Environmental Division is not barred by 24 V.S.A. § 4472(d) because by its terms § 4472(d) applies only to decisions of a municipality's zoning administrator; (2) that barring their appeal would violate due process since neighbors had no notice or opportunity to be heard on the original complainant's zoning complaint to the Burlington Code Enforcement Office and; (3) that neighbors are entitled to a ruling on the merits with respect to their claim that interior modifications increasing the property's floor space required a zoning permit.

¶ 8. “Our review of the Environmental Division's decision on a motion for summary judgment is de novo.” In re Bjerke Zoning Permit Denial, 2014 VT 13, ¶ 10, 195 Vt. 586, 93 A.3d 82. We apply the same standard as the trial court. In re Request for Jurisdictional Op. re: Changes in Physical Structures & Use at Burlington Int'l Airport for F–35A, 2015 VT 41, ¶ 6, 198 Vt. 510, 117 A.3d 457. Summary judgment is appropriate if there are no genuine issues of material fact, entitling the movant to judgment as a matter of law. Id.

¶ 9. We begin with neighbors' assertion that their appeal from the Burlington DRB to the Environmental Division should not be barred. Neighbors cite two alternative rationales. First, they contend that § 4472(d) applies only to decisions of a municipality's zoning administrator—because the letter to the original complainant was authored by an employee of the Code Enforcement Office, § 4472(d)'s preclusive effects do not apply.

¶ 10. Second, they maintain that a refusal to entertain their appeal would violate due process guaranteed by the U.S. Constitution. They rely on Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71...