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Zoning Setbacks Can Move to New Property Boundaries When Lots Merge

In In re: Bove Demolition/Construction Application, 2015 VT 123 (October 9, 2015), the Vermont Supreme Court upheld a finding that, when two lots (one zoned for downtown development and the other zoned for residential housing) merged, that the zoning ordinance-required buffer zone between them could be moved to the boundary line between the unified lot and an adjoining residential lot (which had formerly been a boundary line between two residential lots).

Issue: Whether the Environmental Division erred in finding that a zoning buffer that existed at the boundary line between two separate lots had moved to the new boundary line when the lots merged.

Holding: The Court affirmed, finding that the Environmental Division committed no clear error. The Environmental Division had held that the merger of two lots did not extinguish the 15 foot buffer zone (mandated by the zoning ordinance) that had existed at the boundary line between them, but rather that the buffer zone would properly move to the new boundary line of the unified lot. The Court found that the purpose of the zoning ordinance was to provide a buffer between downtown development and residential communities, and that the Environmental Division’s holding in this specific case achieved the purpose of the ordinance.

Dissent: Justice Robinson dissented, arguing that the majority’s holding effectively calls for a buffer zone between two lots that are both subject to residential districting rules. This, in her view, goes against the plain language of the ordinance and against the majority’s rationale.

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