In re Denial

• Decision Date: 24 January 2014
• Docket Number: No. 13–108.,13–108.
• Court: Vermont Supreme Court
• Parties: In re BJERKE ZONING PERMIT DENIAL.

93 A.3d 82

2014 VT 13

In re BJERKE ZONING PERMIT DENIAL.

No. 13–108.

Supreme Court of Vermont.

Jan. 24, 2014.

Alan Bjerke, Burlington, Appellant.

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

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

CRAWFORD, J.

¶ 1. Applicant appeals the Environmental Division's affirmance of the Burlington Development Review Board's decision to deny his application for a zoning permit to alter the exterior of his house. Applicant argues that his zoning permit application was “deemed approved” because the municipal zoning administrator did not act upon it within thirty days. He further claims that the Environmental Division erred by admitting the municipal zoning ordinance into evidence after trial and putting the burden of proof of compliance with that ordinance on applicant. Finally, applicant challenges the Environmental Division's interpretation of the zoning ordinance. We affirm.

¶ 2. In July 2010, applicant applied for a zoning permit to modify a duplex house that he owns in the City of Burlington. The building is more than fifty years old and remains largely intact in its original form, although an addition and a deck have been added to the rear of the structure. Applicant proposed to raise a portion of the original roofline to match the roofline of the addition. Applicant also proposed to replace the hipped roof porticos at secondary entrances on the south side of the building with gable roof canopies, and to replace some of the original small, irregularly spaced windows with larger, more evenly spaced windows.

¶ 3. Applicant submitted his proposal to the City's Department of Planning and Zoning on July 7, 2010. City planner Mary O'Neil contacted applicant via email on July 12. She informed applicant that the building was listed on the Vermont State Register of Historic Places, and therefore his proposed changes would not comply with standards 2, 5, and 9 of § 5.4.8(b) of the City of Burlington Comprehensive Development Ordinance. She stated that “[a]s proposed, staff cannot support the proposed development. I can place this one on a Design Advisory Board agenda for their review, but expect that they will review the ordinance standards and find your application in conflict with the above sections.” On July 13, applicant responded that he had “decided to plow forward with this application as presented,” and asked when the next Design Advisory Board meeting would be.

¶ 4. The Design Advisory Board (DAB) is an independent board created by Comprehensive Development Ordinance § 2.5.1. Upon request of the Development Review Board or a zoning administrator, the DAB will review zoning permit applications and provide written advice and recommendations to the Development Review Board.

¶ 5. On July 21, the zoning administrator put applicant's project on the DAB agenda for its August 10, 2010 meeting. At that meeting, which applicant attended, the DAB reviewed applicant's permit application and ultimately voted to table the application. The notes from the meeting indicate that the proposed changes to the porticos and windows were acceptable to the DAB, but that the DAB asked applicant to submit a revised drawing for the roofline that would leave the original structure clearly differentiated from the proposed addition.

¶ 6. Applicant brought a revised drawing to City planner O'Neil on October 1 and showed it to her. Planner O'Neil informed applicant that she did not think that the revised drawing reflected the changes that the DAB had requested, but he could submit it and she would take it to the DAB for review. Applicant did not submit the drawing, nor did he indicate whether he preferred to proceed with the original application or that he would submit another revised plan. On December 3, applicant met with City zoning administrator Kenneth Lerner and requested that the permit be “deemed approved” under 24 V.S.A. § 4448(d). Mr. Lerner wrote to applicant on December 15 stating that the City had suspended permit review as of August 10 in order to allow applicant to submit revised plans to address the concerns of the DAB, and that the permit was not deemed approved.

¶ 7. Applicant appealed from the zoning administrator's determination to the Development Review Board. After conducting a hearing, the Board issued a decision on February 15, 2011. The Board concluded that the permit was referred to an appropriate municipal panel, the DAB, within thirty days of the date that the application was deemed complete (July 21), and therefore the deemed approval remedy was unavailable to applicant. Applicant did not appeal this decision.

¶ 8. After the Board's decision issued, applicant met with the City twice to attempt to resolve the design issue. On March 3, 2011, applicant informed the City that he did not intend to amend his original plan. The zoning administrator denied the permit application on March 4, 2011.

¶ 9. Applicant appealed to the Development Review Board, which affirmed the zoning administrator's denial of the permit. Applicant then appealed to the Environmental Division. The court denied applicant's motion for summary judgment on the issue of deemed approval, finding that the City had both issued a decision and referred the application to an appropriate municipal panel within thirty days of applicant's application. After a site visit and merits hearing, the court issued a decision on February 14, 2013 in which it concluded that applicant's permit application failed to comply with the historic preservation standards in § 5.4.8 of the City's zoning ordinance. That decision is the subject of the current appeal to this Court.

¶ 10. We first address applicant's argument that the Environmental Division erred in awarding summary judgment to the City on applicant's claim that his permit application was deemed approved. Our review of the Environmental Division's decision on a motion for summary judgment is de novo. In re Beliveau NOV, 2013 VT 41, ¶ 7, 194 Vt. 1, 72 A.3d 918. “Summary judgment is appropriate when, taking all allegations made by the nonmoving party as true, there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Ayer v. Hemingway, 2013 VT 37, ¶ 13, 193 Vt. 610, 73 A.3d 673 (quotation omitted); V.R.C.P. 56(a).

¶ 11. The deemed-approval rule is a statutory remedy that protects property owners from undue administrative delay. Section 4448(d) of Title 24 provides that “[i]f the [zoning administrator] fails to act with regard to a complete application for a permit within 30 days, whether by issuing a decision or by making a referral to the appropriate municipal panel, a permit shall be deemed issued on the 31st day.” Similarly, § 3.2.5 of the City's zoning ordinance provides:

The administrative officer shall take action with regard to a complete application within 30 days. Such action shall be to issue a decision on the application pursuant to the authority granted in Sec. 3.2.7 of this Article, or by making a referral to the [Development Review Board]. Should the administrative officer fail to take any such action, a permit shall be deemed issued on the 31st day pursuant to 24 V.S.A. § 4448(d). Modifications to a pending application by an applicant shall restart any applicable time limits, commencing upon the modification date.

The purpose of the deemed-approval remedy is “ ‘to curtail indecision and protracted deliberations in the zoning decision-making process and to constitute a final decision to provide a mechanism for any interested party to appeal the decision.’ ” In re Trahan NOV, 2008 VT 90, ¶ 12, 184 Vt. 262, 958 A.2d 665 (quoting Wesco, Inc. v. City of Montpelier, 169 Vt. 520, 526–27, 739 A.2d 1241, 1246 (1999) (interpreting predecessor statute to § 4448)). “Given the possible consequences of granting permits inconsistent with the zoning requirements, we must be careful to use [the deemed-approval remedy] only where its application is clearly consistent with statutory intent.” Id. (quotation omitted).

¶ 12. Applicant's claim in this case is similar to that advanced by the appellants in Trahan. In Trahan, landowners requested a permit for a pond that they had already built. Approximately two weeks later, the zoning administrator sent the landowners an opinion memorandum stating that the pond was in violation of the town's setback regulations. When the landowners failed to respond, the zoning administrator issued a notice of violation. The landowners appealed the notice of violation to the zoning board, which issued a decision affirming the notice of violation two months later. The zoning administrator then denied the permit. The landowners claimed on appeal that their permit request had been deemed approved when the zoning administrator failed to “act” upon their request within thirty days, and that the zoning administrator could not deny a permit that had been approved by operation of law.

¶ 13. We held that, to the contrary, the zoning administrator had promptly investigated the application and notified the landowners in a timely manner that the pond violated the town's regulations. We noted that the determination that the pond was in violation of the setback regulations necessarily meant that the administrator could not issue a permit without a variance. Trahan, 2008 VT 90, ¶ 14, 184 Vt. 262, 958 A.2d 665. The notice of violation was also a de facto notice that the permit was denied unless the zoning board ruled differently on appeal. Id. Accordingly, we held that the zoning administrator “ruled in a timely manner on the exact question that determined landowners' right to a permit, however she labeled that ruling.” Id.

¶ 14. Similarly, in this case a City planner notified applicant within five days of receiving his application that a permit could not issue because the proposed modifications would violate the historic preservation regulations of the City's...