Wednesday, May 12, 2010

Recent Vermont Environmental Court Zoning Decisions

The Environmental Court recently issued two decisions dealing with issues that are likely common Vermont zoning legal issues. The Court reversed zoning decisions made in the towns of Calais and Concord.

Myers 2-Lot Subdivision Final Plat121-6-09 Vtec04/28/2010WashingtonHon. Thomas Durkin

The issue in the Calais decision was whether the zoning board correctly issued a subdivision permit allowing a single three-acre lot, which was located partly in the town's Shoreland district and partly in its Village district, to be divided into two lots. The resulting lots would have been one 2.17-acre lot located in both the Shoreland and Village districts, and one 0.83-acre lot located solely in the Village district. Under the town's zoning ordinance, the minimum lot size for the Shoreland district is three acres, and there is no minimum lot size for the Village district. The appellant, a neighboring property owner, argued that the subdivision permit was invalid because it created a nonconforming lot in the Shoreland district. In the appeal, the applicant argued that the town's 2003 realignment of the zoning district caused his 3-acre lot to be nonconforming because the zoning realignment placed about half of his lot in the Village district, whereas it had previously been located wholly within the Shoreline district, and thus the zoning realignment caused the lot in the Shoreland district to be smaller than 3 acres. The applicant also argued that the subdivision should be allowed because he would not be further developing the larger lot.

The Court reversed the town's grant of the subdivision permit by applying the settled rule that "a subdivision must be denied if it creates a split lot that fails to comply with the dimensional requirements for either of the zoning districts in which it lies." In applying the rule, the Court clarified that the zoning realignment had not subdivided the Applicant's property and caused a nonconformity by placing part of the lot in the Village district. Instead, the Applicant's property remained a 3-acre lot, but occupied two zoning districts instead of one. Without the subdivision, the lot complied with the Shoreland district minimum lot size of three acres, but with the subdivision, the larger lot would violate the Shoreland district lot size requirements.

Rodriques Variance Application212-9-08 Vtec04/27/2010EssexHon. Thomas

In the zoning decision from the Town of Concord, the issue was whether the zoning board correctly denied a variance for a shed located on the Applicants' vacation property where the shed did not satisfy setback requirements. Variances, though granted by municipalities, are governed by statutory criteria. In this case, the town had found that the variance application satisfied several of the most strict criteria in the variance statute, namely, that "there is no possibility that the property can be developed in strict conformity with the [zoning bylaws]" and that the "variance is necessary to enable any development of the property"; that the Applicants had not created "the unnecessary hardship that now restricts the siting of a shed on their property"; and that the shed "would not substantially or permanently impair the appropriate use or development of adjacent property, reduce access to renewable energy resources or be detrimental to the pubic welfare." However, the town had also found that the shed did not satisfy two other statutory criteria. First, the town found that the shed would "alter the essential character of the neighborhood" because it was "significantly larger than is appropriate for this lot in this neighborhood," and second, the town found that the variance "does not represent the minimum variance that will afford relief and will not represent the least deviation possible." Based on those last two findings, the town denied the variance.

Making use of its de novo authority, and the fact that the town's positive findings on the variance criteria had not been challenged, the Court determined that a variance was appropriate. The Court stated that the town's positive findings had established that a variance was necessary for the reasonable use of the property, and that the evidence presented at trial showed that the variance was appropriate. Specifically, the Court found that the evidence showed that the shed would not alter the character of the neighborhood because most properties in the neighborhood also had sheds, and all of the sheds were of equal size or larger than the Applicants' shed. Further, the Court determined that the Applicants had proposed to align the shed on the property so as to deviate to the least possible extent from the setback requirements of the zoning ordinance.