In re Burlington Airport Permit

Robinson, J.,

¶ 24. dissenting. I cannot join the majority’s holding that acquiring and demolishing fifty-four homes in a residential district to maintain the underlying lots for expressly nonresidential purposes is not a change of use. That conclusion is squarely at odds with the plain language of the South Burlington Land Development Regulations (LDR), as well as the purposes of the regulations, and could have unintended consequences for land use planning in South Burlington and beyond.

¶ 25. Section 2.02 of the South Burlington LDR defines “use” as “[t]he specific purpose or activity for which a structure, building, or land is or may be designed, arranged, designated, or intended or for which a structure, building, or land is or may be occupied and maintained.” There is no dispute that the buildings and land in question have been used for one- and two-family residences.

¶ 26. The LDR expressly define a change of use as:

[t]he modification of a use of a building or land, or the replacement of a use of a building or land with another use or uses, or the addition of a use or uses to a building or land, or the cessation of a use or uses of a building or land.

*213(Emphasis added.) Once BTV acquires and demolishes homes, the lots on which the homes previously were situated cannot be used for residential purposes. That BTV’s plans would effectuate a “cessation of a use of a building or land” — namely, cessation of its use for residential purposes — is plain on its face. See In re Casella Waste Mgmt., 2003 VT 49, ¶ 6, 175 Vt. 335, 830 A.2d 60 (stating that if the plain meaning of a zoning ordinance resolves the conflict, there is no need to go further, bearing in mind that the court’s role is to give effect to the legislative intent).

¶ 27. The majority suggests that because BTV had not proposed a specific defined new use for the lots other than holding the lots vacant as a sound buffer, the DRB could properly conclude that no change of use is proposed. See ante, ¶ 9. If the definition of “change of use” included only the modification, replacement, or addition of a use, this construction might be plausible, albeit dubious. But the definition of “change of use” here expressly includes “the cessation of a use” in addition to modification, replacement or addition of a use. Nobody, including the majority, denies that BTV’s demolition of these homes is part and parcel of its plan to cease residential uses on the affected lots. As the Environmental Division rightly concluded, we don’t need to know what future use BTV will make of these lots in order to conclude that BTV is ceasing the present use. The majority’s reasoning requires that we simply ignore the express statement in the LDR that the cessation of a use is a change of use. See In re Vt. Nat’l Bank, 157 Vt. 306, 312, 597 A.2d 317, 320 (1991) (stating that in construing a zoning ordinance, “[w]e consider the whole of the ordinance and try to give effect to every part.”).

¶ 28. Moreover, even setting aside that the “cessation of a use” is expressly defined as one type of change of use, the majority’s reasoning rests on the notion that open, undeveloped space in a residential district on which residential development is precluded is in a sort of indefinite limbo — a state of land use nothingness. BTV’s demolition of the homes and repurposing of the residential lots does not change their .use, the majority reasons, because the result of the transformation is no use at all. This reasoning also seems to underlie the majority’s affirmation of the Environmental Division’s conclusion that demolishing and removing the homes to maintain vacant, nonresidential lots is exempt from site plan review. Ante, ¶ 10 (suggesting that notwithstanding the demolition of the homes and the express prohibition of residential develop*214ment on the lots, BTV’s proposed use of the fifty-four properties “remained one- and two-family dwellings”). Holding property vacant to serve as a noise buffer is a use, and it’s a use that’s very different from family homes.

¶ 29. The fact that open, vacant undeveloped space does not easily fit into an existing classification in the City of South Burlington’s LDR does not mean that it is not a use. If that were true, one can easily imagine a host of unusual utilizations of property that would be exempt from any land use review because, being undefined in the LDR, their development would not constitute a bona fide change of use.

¶ 30. Nor does the possibility that BTV might at some point in the future seek to use the land for some other specified purpose render its current state a noncognizable limbo. It’s always the case that a party seeking to change a property’s use might at some point in the future seek to change it further or in another direction. The possibility of future plans and changes of use does not render the proposed immediate use — vacant, undeveloped lots serving as sound barriers between the airport and adjacent residences — mere “limbo” or “nothing.” BTV has been clear that that is, and will be indefinitely, the dedicated use of the properties.

¶ 31. If my reading of the plain meaning of the LDR were at odds with the purposes underlying those regulations, I might join the majority in giving the DRB the benefit of the doubt. But the majority’s approach squarely undermines the land use planning goals served by the LDR. “[The primary] purpose of zoning is to bring about the orderly physical development of the community.” Vt. Brick & Block, Inc. v. Vill. of Essex Junction, 135 Vt. 481, 483, 380 A.2d 67, 69 (1977). Demolishing homes and holding space in a residential zoning district for the purpose of preventing residential development can undermine a municipality’s land use planning in important ways.

¶ 32. First and foremost, one of the express and important goals of municipal planning is to ensure the availability of safe and affordable housing for all Vermonters. 24 V.S.A. § 4302(c)(ll). To that end, municipalities are encouraged to meet the housing needs of diverse social and income groups and to provide for new and rehabilitated housing located conveniently to employment and commercial centers. Id. In particular, the Legislature has directed that municipal land use plans “shall include a recommended *215program for addressing low and moderate income persons’ housing needs as identified by the regional planning commission.” Id. § 4S82(a)(10). The Legislature has further specified that municipal plans shall be based on data and analysis of current trends and the probable social and economic consequences of the proposed plan. Id. § 4382(c). These data may include “the existing and projected housing needs by amount, type, and location for all economic groups within the municipality and the region.” Id. In short, as the Legislature has recognized, focused attention to a community’s housing needs is a critical component of any municipal land use plan and associated regulatory scheme.

¶ 33. Consistent with this statutory guidance, the City of South Burlington has created a comprehensive land use regulatory scheme assigning various uses — including commercial, industrial, residential, and park and recreation uses — to a host of specific districts. The regulatory scheme includes more than a half-dozen residential districts dedicated exclusively, or primarily, to residential uses. According to the LDR, the Residential 4 District, in which the properties at issue in this case are located, was formed “to encourage residential use at moderate densities that are compatible with existing neighborhoods and undeveloped land adjacent to those neighborhoods.” Removing lots within a designated residential district from residential use, especially' on a large scale, has the potential to upset the careful balance among various priorities reflected in the City of South Burlington’s LDR.

¶ 34. I am not suggesting that BTV should not be allowed to proceed with its plans to, through demolition of existing residences, develop a noise buffer between the airport and nearby residences. The plan may well comport with the requirements of the LDR and may make a lot of sense. The question before us is only whether BTV’s plans — or any other party’s similar plans to transition property zoned for a particular use to indefinitely preserved vacant lots — give rise to the kind of change of use that is potentially subject to review. Given the purposes of the land use regulations, as well as their plain language, allowing such large-scale repurposing of lands zoned for residential use to proceed without any review associated with changes of use flies in the face of the purpose of the regulations effectuating the municipality’s land use plan.

¶ 35. Although the rule of law embraced by the majority could apply in a range of settings, the potentially disruptive effect of the *216DRB’s and majority’s reasoning is particularly acute in the context of a recognized serious housing shortage in Chittenden County. Pursuant to its authority to gather data concerning the need for housing and to make recommendations to municipalities concerning their plans for meeting housing needs, 24 V.S.A. §§ 4382(a)(10) and 4348a(a)(9), the Chittenden County Regional Planning Commission (CCRPC) has recognized a housing crisis in Chittenden County characterized by limited housing choice and rapidly increasing housing costs as a result of the failure of the supply of housing to keep pace with the housing demand resulting from Chittenden County’s expanding economy. See CCRPC, Housing Targets Task Force: Recommended Housing Targets (2004), http://www.ccrpcvt.org/library/housing/recommend_housing_ targets_CCRPC_20041122.pdf. In 2004, the CCRPC recommended the addition of 1444 housing units in South Burlington between 2000 and 2010 — requiring growth exceeding South Burlington’s historical rate. In this setting, removing a significant chunk of existing housing units from the mix is not nothing — it potentially has substantial implications for the City of South Burlington’s ability to meet the community’s identified pressing housing needs. And the implications of razing one- and two-family homes to prevent habitation are very different with respect to the City’s land use goals than of building those same structures.

¶ 36. The demolition of residential housing units and substitution of indefinitely vacant lots may impact the City of South Burlington’s land use planning in other ways. Depending on their quantity and placement, vacant lots can have a significant impact on health, safety and the general welfare of the community — all legitimate concerns of land use planning and regulation. A proliferation of vacant and undeveloped lots can change the character of a neighborhood and depress property values. See, e.g., A. Cooper, $1 Per Lot for Affordable Housing in Detroit: Non-Monetary Benefits Can Constitute Fair Value in the Sale of City-Owned Surplus Property to Community Development Corporations, 48 Wayne L. Rev. 1191, 1197 (2002). The rule of law adopted by the majority would allow the unreviewed conversion of properties scattered throughout this medium-density residential district to vacant lots on which residential development is precluded — potentially creating pockets of clustered housing amidst scattered vacant fields.

*217¶ 37. Again, I do not suggest that a person cannot convert homes in this district to vacant lots on which residential development is precluded; such conversion may be entirely appropriate and consistent with the City of South Burlington’s LDR. But the suggestions that this potentially significant conversion of a substantial number of lots in a residential district from residential to vacant does not trigger any sort of review ordinarily associated with changes of use, and that knocking down homes to create vacant lots is functionally the same as building those same homes, are at odds with the goals of the land use regulations.

¶ 38. Although the upshot of the DRB’s and majority’s analysis of this question may be expedient in this case, the potential ramifications for orderly land use planning in the City of South Burlington, as well as in other Vermont municipalities, are unfortunate. For the above reasons, I respectfully dissent.

¶ 39. I am authorized to state that Justice Morse (Ret.) joins this dissent.