Supreme Court Remands Zoning Case, Clarifying the Zoning Application and Appeals Process

In In re Burns Two-Unit Residential Building, 2016 VT 63 (May 27, 2016), the Vermont Supreme Court reversed and remanded the Environmental Division’s decision declining to hear the merits of appellants’ claim that Cynthia and Charles Burns (applicants) converted their home into a duplex without a zoning permit.

Issue: In March 2014, a neighbor not involved in this dispute filed a zoning enforcement complaint form, which a “zoning specialist” responded to via letter in May 2014. The letter stated that the building was already being used as a duplex, so the complaint was not enforced. While the decision in the letter was appealable within 15 days, it was not made available to the public, nor was it made available to neighboring landowners or other possibly interested parties. No one appealed within the 15-day window. In June 2014, applicants filed a certificate of “Non-Applicability of Zoning Permit Requirements” and their form was approved that day. The decision was posted on the City of Burlington’s website, and appellants appealed the zoning non-applicability determination. The Environmental Division found that the use of the building as a duplex had been conclusively decided in the May 2014 letter, which became binding after the 15-day appeal window.

Holding: The Court reversed and remanded the Environmental Division’s decision, finding that the May 2014 letter was not a decision made by the zoning administrator. As such, the complainant did not have to appeal it within the 15-day window, and the neighbors/appellants should not have been precluded from requesting that the zoning administrator enforce the zoning ordinance. Because appellants should not have been precluded by the May 2014 letter, the Court remanded to allow them to present evidence and argument in support of their claim that a zoning permit is required to expand living space in Burlington.