Bjerke Zoning Permit Denial

STATE OF VERMONT VERM<)NT

SUPERIOR CO_URT- ENVIRONMENTAL DIVISION SUPER'OR COURT
ENVIRONMENTAL D{V!SlON
{

In Re Bj erke Zoning Permit Denial { Docket No. 72-5-11 Vtec'
, { g
Decision on Motion for Summarv lude,ment

Alan A. Bjerke (Applicant) appeals the City of Burlington Development Review Board's
(the DRB) denial of his application for a zoning permit to make certain modifications to
property he owns in the City of Burlington, Vermont. The DRB's denial followed Applicant’ s v
appeal of a determination by the City of Burlington Zoni`ng Administrator (the ZA) also
denying his application ln support _of his appeal to this Court, _Applicant submitted a
Statement of Questions containing three Questions. Currently pending before the Court is '
Applicant’ s motion for summary judgment on Question 1 Question 1 asks Whether his permit
application was deemed approved under the City of Burlington Comprehensive Development
ordinance section 3.2.5 and 24 V.s.A. § 4448(d). '

ln this proceeding, Applicant represents himself The City of Burlington is represented
by Kimberlee]. Sturtevant, Esq.

Factual Backg_round

For the sole purpose of putting the pending motions into context, the Court recites the
following facts, which it understands to be undisputed unless otherwise noted:
1. _ On ]uly 7, 2010, Applicant submitted an application for a zoning permit to make certain
modifications to property he owns in the City of Burlington, Verrnont. Applicant sought to _
raise 15_.5 feet of roofline of his single-family home to match an existing adjacent roofline,
modify two porch roofs, and make alterations to the house’s windows ` n
2. - Mary O’ Neil, from the Burlington Planning and Zoni`ng Office, Was assigned as project
manager for Applicant’s zoning permit request On july 12, 2010, Ms O'Neil contacted
iApplicant Via email to advise him that the subject property Was listed on the Vermont State
Register of Historic Places, and therefore, his zoning permit request could not be granted as
proposed because it would violate Section 5.4. 8 of the City of Burlington Comprehensive
Development Ordinance (Oi'dinance). _ ` v
3. ln her email, Ms. O'Neil stated that Applica_nt could either revise his permit application '
l or choose to proceed with a hearing before the Design Advisory Board (the DAB).

4. The DAB is an independent board established by Ordinance Section 2.5 1. Upon the
request of the DRB or an administrative officer, the DAB will review certain applications
_ including those involving historic buildings or sites, and provide written advice and
recommendations to the DRB Ordinance § 2.5.1(b)

5. On ]uly 13, 2010, Applicant emailed Ms. O’Neil to inform her that he did not Wish to
revise his permit application and to inquire as to when the DAB next had space on its agenda.

6.¢ As a result of this email exchange, Ms. O'Neil put Applicant's project on the DAB
agenda for its August 10, 2010 meeting At that meeting, the DAB reviewed Applicant's zoning
permit application but ultimately tabled the application Notes from the hearing indicate that
Applicant’ s proposed modifications to the porch roofs, window placement, and proposed
materials Were acceptable to the DAB, but the DAB requested a revision to the proposed -
roofline changes

7 . The parties dispute the events that occurred in the months following the August 10, 2010
DAB hearing. lt is undisputed, however, that Applicant never formally submitted any
`modifications to the pending application1

8. ' The ZA ultimately denied Applicant's application on March 4, 2011. Applicant
appealed the ZA’s denial to the DRB, which also denied the application on l\/lay 3, 2011.

9'. Applicant then_filed a timely appeal of the DRB’s decision with this Court.

Discussion .

Applicant appeals the DRB's denial of his application for a zoning permit to` make
certain modifications to property he owns in the City of Burlington, Vermont (the City).-
._ Currently pending before the Court is Applicant’ s motion for summary judgment on Question 1
of his Statement of Questions. Question 1 asks whether Applicant s permit application was
deemed approved under Ordinance Section 3.2.5 and 24 V.S.A. § 4448(d).

For the reasons detailed below, We conclude that no material facts are in dispute. The
City took appropriate action on Applicant's application withme0 days of its submission as
required by Ordinance Sec_tion 3.2.5 and 24 V.S.A. -§ 4448(d), and therefore, as a matter of law, __

we cannot deem Applicant's application approved. _

I. . Summarv Iudgment Standard
A court may grant summary judgment Where ”the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, . . . show that there is

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no genuine issue as to any material fact and that any party is entitled to judgment as a matter of
law." VR..C P. 56(€)(3) (2011) (amended jan 23, 2012); see also V.R.E.C.P. 5(a)(2). We will

”accept as true the jfactual] allegations made in opposition to the motion for summary
judgment, so long as they are supported by affidavits or other evidentiary material, ” and we
will give the non-moving party the benefit of all reasonable doubts and inferences Robertson
v l\/lylan Labs. .: lnc. ,2004 VT 15, jj 15, 176 Vt 356 l

When appropriate, summary judgment may be rendered against the moving 'party,

V.R.C.P. 56(c)(3) (2011) (amended jan. 23, 2012). An updated version of V.R.C.P. 56 took effect
on january 23, 2012. Under the new version of that rule, we may grant summary judgment for a l
nonmovant only ”ja]fter giving notice and a reasonable time to respond.” `V.R.C.P. 56(f)(1) (jan.
»23, 2012).

Il. Deemed Approval
ln his motion for summary judgment Applicant contends that he submitted a

completed zoning permit application on july 7, 2010 and that the application was deemed
approved on August 7, 2010 because (1) the ZA did not act administratively on the application
Within 30 days as required by Ordi`nance Section 3 2 5 and 24 V. S. A. § 4448(d), and (2) the ZA’s
l referral of the matter to the DAB was not the equivalent of a referral to the DRB. ln response,
the City contends that Applicant’ s deemed approval argument is unavailing because it does not '
meet the standards for the deemed approval remedy as established _by the Vermont Supreme
Court.1 As discussed below, we conclude that the ZA acted Within 30 days of Applicant's filing
The Vermont Supreme _Court has routinely taken a conservative approach in analyzing
whether an applicant is entitled to the deemed approval remedy. See ln re Appeal of l\/lcEwing
Servs LLC 2004 VT 53, jj 21, 177 Vt 38 The purpose of deemed approval is to 'remedy
indecision and protracted deliberations on the part of zoning boards and to eliminate deliberate
or negligent inaction by public officials " ld. (quoting ln re Fish 150 Vt. 462, 464 (1988)), see `
also ln re Appeal of Morrill House, LLC, 2011 VT 117, jj 8 (mem..) The Vermont Supreme Court

has cautioned against extending the deemed approval remedy beyond this limited purpose, as

improper application ’can operate to grant permits wholly at odds with the zoning ordinance

1 The City also contends that Applicant’ s motion for summary judgment should be denied because he
did not appeal the DRB' s February 15, 2011 decision m Which the DRB concluded that the application Was
7 not deemed approved Thus, the City contends that the DRB’s decision Was final. See 24 V S. A

' § 4472(d). As discussed below, We deny Applicant’ s motion for summary judgment We therefore do not
need to determine whether the DRB’ s Pebruary 15, 2011 decision Was final or not.

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ln re Appeal of Ashline, 2003 VT 30, jj 13,- 175 Vt. 203 (quoting ln- re Appeal of Newton Enters.,
167 Vt. 459, 465 (1998)). Therefore, to avoid granting permits that are inconsistent with the
zoning regulations, the deemed approval remedy is strictly construed and applies only when it
is ”clearly consistent with the statutory purpose ” Appeal of Ashline, 2003 VT 30, jj 13; see also
Appeal of Morrill House, 2011 VT 117, jj 8; Appeal of Newton, 167 Vt at 465 (refusing to apply
the deemed approval remedy in a ”Wooden fashion")
The deemed approval remedy has its origin in 24 V S A., Chapter 117, and the City has
incorporated the provision into its Ordinance. We interpret a zoning ordinance using the
familiar rules.of statutory construction ln re App- eal of Trahan, 2008 VT 90, jj 19, 184 Vt.- 262_.
We Will ”construe Words according to their plain and ordinary meaning, giving effect to the
-whole and every part of the ordinance.” M. lf the plain language resolves the conflict, "there is
no need to go further, always bearing in mind that the paramount function of the court is to
_ give effect to the legislative intent.” Lubinskv v. Fair Haven Zoning Bd., 148 Vt. 47,v 49 (1986). 1
z v w Section 4448(d) of Title 24 of the Vermont Statutes Annotated provides that ”[ijf the
administrative officer 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, the Ordinance provides that:

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 jthe Ordinancej, or by making a

referral to the DRB. Should the administrative officer fail to take any such action,
n a permit shall be deemed issued on the 31st day pursuant to 24 VSA 4448(d). ”

' Ordinance § 3.2.5. rl`hus, under the plain language of the Ordinance, to avoid a complete
application being ”deemed issued” (i.e., deemed approved), the ZA must, Within.30 days of the
filing of a complete application, either issue a decision or refer the case to the DRB. _l_d_.

l Both 24 V.S.A. § 4448(d) and Section 3.2.5 of the Ordinance allow the administrative
officer to take action by ”issu[_ing] a decision” on the application A written decision is not
required,'however, _as long as the administrative officer notifies applicants of the decision
Within the prescribed time period.v See Appeal of Morrill House, 2011 V'l` 117,. jj 11 ; see also l_n

y re Appeal of Griffin, 2006 VT 75, jj 15, 180 \ft. 589 (mem.) (”[-A Zoning Board of Adjustrnentj . . .

will be determined to have acted Within the statutory time period so long as the decision is

finally made before the expiration of the ..period, regardless of when, or if, the decision is

I/I

reduced to writing or made in writing .

158 vt 561, 565 (1992)).

) (quoting Leo’s Motors, lnc. v. Town of Manchester,

The Vermont Supreme Court’s analysis in Appeal of Trahan NOV is particularly helpful
to our analysis here. ln Appeal of Trahan NOV, the Town of f"ayston informed the applicants
that they would need to obtain a permit for a pond that they had previously constructed on
their property. 2008 VT 90, jj 2. The applicants then submitted a permit application, and
shortly thereafter the zoning administrator requested further information about the pond’s
location l_d. Because the applicants Were unsure of the pond’s exact location, they granted the
zoning administrator permission to visit the property and measure the setback
distance l_d. After performing the measurement the zoning administrator sent the applicants
an opinion memorandum, informing them that the pond violated the setbaclc requirements of
the Town’s zoning regulations lc_l. jj 3. The zoning administrator then issued a notice of
violation to the applicants, Which the applicants appealed to the Zoning Board of Adjustment
(the ZBA), ljs The ZBA then denied the applicants’ application, also finding that the pond
encroached on the setback. l_d. The applicants appealed the ZBA’s decision to this Cour_t and
ultimately to the Vermont Supreme Court. l v

ln concluding that the applicants in Appeal of Trahan NOV were not entitled to the
deemed approval remedy, the Vermont Supreme Court found that the procedural history
presented in the case ”represent[edj the antithesis of indecision or protracted deliberation on
the part of zoning ‘authorities” because the zoning administrator immediately began her
_ investigationi diligently notified the applicants of her findings that the pond violated the zoning
7 regulations, and, when the applicants did not respond, issued a notice of violation which the

applicants then appealed to the ZBA. E. jj 13. The Court determined that because applicants’

pond violated the zoning regulations, the zoning administrator was required to deny the permit
` unless applicants successfully obtained a variance ld. jj 14. _Accordingly, the Court concluded v
that the notice of violation was ”de facto" notice that the permit was denied. lj__. Ultimately, the
Court concluded that it could not ”elevate form over substance"_ and deem the permit
application approved merely because of the ”procedural path [that] the zoning administrator
took to decide the issues before her ” l_d _ `

Here, the parties stipulated to facts relevant to our analysis of Whether Applicant is
entitled to the deemed approval remedy and, thus, summary judgment on Question 1. That
stipulation reveals that it is undisputed that the City tool< action Within 30 days of Applicant's

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filing of his application for a zoning permit by providing Applicant With its decision2
Applicant filed his application on july 7, 2010. The City acted within five days of the date of
' that-filing by notifying Applicant via email _on july 12, 2010 that his application could not be
administratively approved because his property was listed on the state Historic Register and
approval Would conflict with the Ordinance.' The City then referred Applicant's application to
the DAB Within the 30 day period after the application was filed. The DAB held a hearing on
August 10, 2010, only 33 days after the application Was received The DAB_ tabled a decision so
that Applicant could submit a revised application
l\lone of this evidence suggests any indecision or protracted deliberations on the part of 7
the City. Nor did the City engage in deliberate inaction or negligence Frorn the moment that
Applicant filed his application, the City was actively engaged in reviewing it. f The
interrelationship between the ZA and the DAB allowed the ZA to refer Applicant's application
to the DAB.- for further review. _See Ap- peal of 'l`rahan NC)V, 2008 VT 90, jj 14 (stating that the
argument that a permit request and a violation determination are wholly separate ”ignores the
interrelationship of the zoning administrator’s actions, all of which Were triggered by the permit
request”). The City routinely communicated With Applicant during the review process, and
Applicant was present at the DAB hearing rl"he City was awaiting further action by Applicant
in the form of a revised application that would conform his proposal to the historic preservation
` requirements of the Ordinance. Employing the deemed approval remedy here Would operated
to grant Applicant a permit Which is at odds with the Ordinance. .See Appeal of Ashline, 2003
VT 30, jj 13. ` `
Deemed approval isalso inconsistent with the statutory purpose. lf We were to follow
Applicant's logic, the City could not provide applicants With time to revise their projects
because the City Would always be at risk of projects that do not comply with the Ordinance

l being deemed approved We cannot "elevate form over substance” and deem Applicant's

2 In his reply brief, Applicant contends that the'Court cannot consider evidence on Which the City relied
in its motion in opposition because such evidence is inadmissible as offers to compromise and settlement
discussions See V.R.C.P. 56(e). Contrary to Applicant's argument, the evidence the City sets forth in its
memorandum and supporting affidavits can hardly be considered settlement discussions or offers to.
compromise because each party is simply attempting to consider a prdposal that Will comply With the
Ordinance. We need not decide whether the‘evidence referenced by the City is 'admissible, however,
because our l)ecision is based solely on the parties’ statement of stipulated facts and does not incorporate
any of the City's factual allegations relating to this additional evidence Applicant's argument that the
City.cannot rely on a july 3, 2008 unsigned memorandum is also unavailing because we do not rely on
that memorandum in rendering this Decision.

permit application approved merely because of the ”procedural path that the jCityj took to
decide the issues before jitj” Appeal of Trahan NOV, 2008 VT 90, _jj 14

Accordingly, although the City did not deny Applicant’ s permit request in writing until
l\/larch 4, 2011, the parties’ stipulated facts indicate that the City took action on the application
within 30 days of- its filing by providing Applicant with its decision. n Any delay was not due to
indecision, deliberate inaction, negligence, .or protracted deliberations on the part of the City.
Rather, the City Was waiting for Applicant's project modifications We therefore conclude, as a -
vmatter of law, that Applicant's application was not deemed approved under either 24 V.S.A. §
' 4448(<1) 01 ordinance section 3.2.5.

Although we conclude that the City took. action by ”issujingj a decision/7 thus
preventing Applicant's application from being deemed approved, we also consider whether the
ZA's actions constitute a referral to the DRB. Applicant argues that his application should be
deemed approved because the ZA’s referral of his application to the DAB is not the equivalent
of a referral to the DRB.1

As stated above, 24 V.S. A. § 4448(d) provides that an administrative officer' s timely
referral of an application to an appropriate municipal panel nullifies the need for the deemed
approval remedy. The definition of ”appropriate municipal panel” includes a ”legislative body
performing development review.” 24 V.S.A. § 4303(3). The DAB is an independent board
established in Ordinance Section 2.5.1 Which is advisory to the administrative and DRB permit
review tracks. (See Stipulation to Facts Regarding Question'1, #7,_ filed Dec. 12, 2011.) We
conclude that the ZA’s referral to the DAB was`~therefore a referral to an appropriate municipal `
panel and Was within 30 days, thereby satisfying the requirements of 24 V. S. A § 4448_(d) 7

The Ordinance, however, expressly states that to avoid the deemed approval remedy,
the administrative officer' s referral must be to the DRB. Ordinance § _3.2.5. Here, Applicant’ s
application required design review because it sought modifications to Applicant's historic
building Upon request from an administrative officer or the DRB, the DAB is tasked with
preparing Written advice and recommendations to the DRB regarding applications involving
historic buildings or sites. _Ordinance § 2.5.1(b). Thus, despite the Grdinance's language '
discussing the DRB, referral to the DAB comports with the practical workings of the Ordinan_ce.
To interpret the Ordinance to solely require referral to the DRB in this matter would render the
DAB meaningless, a result which we are careful to avoid See Lubin insky, 148 Vt. at 49 (stating
that ”the paramount function of the court is to give effectto the legislative intent’ ’); m

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Hartland Group North Ave. Permit, 2008 VT 92, jj 11, 184 Vt. 606 (citing _Bergeron v. Boyle, 2003
VT 89, jj 11, n.1, ~17 6 Vt. 78 for the proposition that courts will avoid a construction that leads to
absurd results) ;ln re Appeal of Pearl Street Mobile, No. 87~5-99 Vtec, slip op. at 3 (Vt. Envtl. Ct.
lieb. 23, 2000) (Wright,- j.) (”j'l`jhe zoning ordinance cannot be interpreted to yield an absurd
result.”). We therefore conclude, as a matter of law, that the ZA's timely referral of Applicant's
application to the DAB is further action preventing the application from being deemed
approved d 7 v

Accordingly, we conclude that the City ' took appropriate action on Applicants’
application within 30 days, The City notified Applicant that his application could not be
approved as proposed and waited for Applicant's modifications There was no indecision,
deliberate inaction, negligence, or protracted deliberations on the part of the City. l\/loreover,
the City timely referred Applicant's application to then DAB. Thus, we conclude that the
application is not deemed approved under 24 V.S.A. § 4448(d) or the Ordinance.

Conclusion

For the reasons detailed above, we conclude that the undisputed facts indicate that the
City took appropriate action on Applicant's application within 30 days of its submission Thus,
the application is not deemed approved under 24 V.S.A. § 4448(d) or the Ordinance. We
therefore DENY Applicant's motion for summary judgment on Question 1. We are also
inclined to conclude that the City is entitled to judgment as a matter of law on Question 1.
rHowever, before we grant summary judgment for the City, We wish to give Applicant notice
and a reasonable time to respond Although Applicant filed his motion for summary judgment
before the new version of V.R.C.F. 56 took effect, we adopt the philosophy and policy of that
new version. vAccordingly, 'Applicant has 15 calendar days from the date of this decision to

respond .

Done at Berlin, Vermont this 22 day‘of March, 2012.

Mr)%

/Thomas G Wal§h
Environmental judge