Justia Zoning, Planning & Land Use Opinion Summaries

Appellants John and Margaret Toor appealed a decision of the Superior Court, Environmental Division, which upheld a notice of violation issued by the Town of Grand Isle Zoning Administrator for changing the use of their single-family home in Grand Isle without obtaining a zoning permit. On appeal, appellants argued that renting their home did not constitute a change in use under the Town's zoning ordinance, and accordingly they were not required to obtain a zoning permit prior to renting. Upon review of the applicable zoning ordinances and the parites' briefs on appeal, the Supreme Court agreed with Appellants and reversed the Zoning Administrator's decision. View "In re Toor & Toor Living Trust NOV" on Justia Law

In 1995, Petitioner John Rhodes, a resident of the Town of Georgia, petitioned his local governing body, the selectboard, to clarify several issues surrounding two roads that bordered his land.  While this case began as a suit over the existence and use of two ancient roads, "it grew over time into a test of constitutional guarantees and a saga about abuse of power."  After almost fifteen years of litigation, including two side trips to federal court, the trial court entered judgment against the Town of Georgia.  The court found that Petitioner's request to access his land over town roads had been repeatedly and maliciously frustrated by the Town selectboard in an ongoing attempt to protect the value of a neighbor's property, a violation of Chapter I, Article 7 of the Vermont Constitution, the Common Benefits Clause.  The court concluded that Article 7 was self-executing and awarded monetary damages for the constitutional violation.  In this consolidated appeal, the Town of Georgia sought to overturn the trial court decision.  Upon careful review, the Supreme Court affirmed the judgment of liability against the Town: the Court "underscore[d] the unique circumstances" of this case, finding that the "trial court's unchallenged findings describe a deliberate, decades-long course of discriminatory conduct by the Town so malicious and self-serving as to deny Rhodes his fundamental rights to due process and equal treatment under the Vermont Constitution.  Absent such egregious misconduct, and clear proof of the exacting elements necessary for relief, towns and local officials have no cause for concern about the myriad decisions made in the normal exercise of authority.  Failing to recognize a remedy in a case such as this, however, would undermine the constitutional principles that all Vermonters hold dear.  Vermont has consistently sustained its essence as one big small town by affirming and reinforcing the fundamental values that define it.  This decision affirms those values." View "In re Town Highway No. 20 Town of Georgia" on Justia Law

Plaintiff Craig Pease appealed the trial court’s summary judgment determination that Defendants the Windsor Development & Review Board (DRB) and the Town of Windsor had fully responded to his Public Records Act (PRA) request and had not violated his constitutional rights. On appeal, Plaintiff contended that Defendants’ responses to his PRA requests were improperly made through counsel and the custodian of records and thus did not comply with the statute. He also contended that the trial court erred in both its conclusion that his free speech claims against defendants based on their filing of a motion for protective order were barred by litigation immunity and its conclusion that the remainder of his alleged free speech violations were cured by subsequent hearings. Plaintiff's property abuts another lot that is the site of a proposed subdivision development, Morgan Meadows. The Windsor Development Review Board (DRB) approved the subdivision application; Plaintiff, through counsel, appealed this decision to the superior court. In connection with that appeal, Plaintiff made written pro se public records requests to the Town’s Zoning Administrator, and to the seven individual members of the DRB. One DRB member responded personally to Plaintiff’s requests by sending Plaintiff the records he requested. The remaining members responded through the Zoning Administrator. Following a dispute over whether the DRB fully cooperated with Plaintiff's requests, the Town ultimately filed a motion for protective order asking the superior court to enjoin Plaintiff from requesting additional records or contacting DRB members other than through counsel. The Town argued that his public records requests were actually nothing more than discovery requests in the pending appeal, and therefore, Plaintiff’s attorney of record should be the one seeking the records. Upon review of the superior court record and the applicable legal authority, the Supreme Court found the DRB complied with Plaintiff's requests, and that Plaintiff's constitutional rights were not violated by any of the DRB's actions. Accordingly, the Court affirmed the superior court's grant of summary judgment in favor of the DRB.

Applicants Howard Smith and Morrill House, LCC appealed a decision of the Superior Court’s Environmental Division that denied their request for a variance to subdivide property located in the Town of Fair Haven, Vermont. They contended on appeal that their application should have been deemed approved because the town zoning board of adjustment failed to issue its decision denying the application within the deadline prescribed by the relevant statute and local zoning ordinance. The Supreme Court found in its review of the applicable legal authority that "[it] held that a decision is rendered so as to avoid the deemed approval language as long as it is 'finally made before the expiration of the forty-five day period, regardless of when, or if, the decision is reduced to writing.' … The board here made a decision within the prescribed period but failed to notify Applicants within that period and the bases for the decision. Following our previous case law, we will strictly construe the deemed approval remedy to apply only when the decision was not made within the prescribed period, which was not the case here." Accordingly, the Court affirmed the Division's decision.

This appeal arose from a dispute over an administrative amendment to the master development plan for Killington Resort Village granted to its co-applicants, the current owners of Killington Resort Village and SP Land Company. The District One Environmental Commission originally granted this administrative amendment authorizing the creation of fifteen subdivided lots over approximately 368 acres of Killington Resort Village for transfer to SP Land Company for "future development purposes" pursuant to Act 250 Rule 34(D). Mountainside Properties, LLC, an adjoining property owner, appealed the Environmental Court's denial of its motion to alter and amend the grant of summary judgment in favor of SP Land. Mountainside argued that the Environmental Court erred because: (1) administrative amendments under Rule 34(D) require an underlying Act 250 land use permit, and (2) co-applicants' fifteen-lot subdivision cannot be approved without demonstrating compliance with all Act 250 criteria under 10 V.S.A. 6086(a), as required by 10 V.S.A. 6081(a). Upon review, the Supreme Court agreed with Mountainside's argument and reversed the Environmental Court's ruling and remanded the case for further proceedings.

This appeal represented "the latest skirmish" in a long-running dispute over plans to develop a Wal-Mart discount retail store on an undeveloped 100-acre parcel of land in the Town of St. Albans. Appellants were interested individuals and groups opposed to the project. They appealed an Environmental Court decision that granted the site plan, conditional use, subdivision, and Act 250 permits for the development. They contended the trial court erred in: (1) approving site plan and conditional use permits despite the alleged conflict of interest of several members of the Town's development review board; (2) finding that the subdivision was compatible with adjacent land uses; and (3) concluding that the developer could reapply for an Act 250 permit despite an earlier denial.  Upon review of the lower court's record and the applicable legal authority, the Supreme Court affirmed the lower court's decision.  

At issue in this appeal was whether a 180-foot telecommunications tower in the town of Hardwick would have an undue adverse effect on the aesthetics of the area in violation of Criterion 8 of Act 250.  Neighboring landowners appealed the issuance of an Act 250 land-use permit for the project.  Specifically, they contested (1) whether the project violated a clear, written community standard intended to preserve the aesthetics of the area, and (2) whether a reduction of the tower's height was a mitigating step that the developer should have taken to improve the harmony of the project with its surroundings.  Upon review of the briefs submitted by all interested parties and the applicable legal authority, the Supreme Court affirmed the decision of the Environmental Division of the Superior Court that determined that the tower would not have an undue adverse effect under Criterion 8.

Plaintiffs Lisa and Thomas Ketchum as trustees for the Saddlebrook Farm and North Farm Trusts appealed the Town of Dorset's decision to reclassify a town road from a class 3 to a class 4 highway.  Plaintiffs argued that the court erred in reviewing the selectboard's reclassification using a deferential standard instead of a de novo procedure involving appointment of a panel of commissioners.  In the alternative, Plaintiffs contended that, even under a deferential standard, the court's decision was erroneous because the findings were not supported by the evidence and they were denied an opportunity to supplement the record on appeal.  Plaintiffs own property that is serviced by a town highway known as Upper Kirby Hollow Road.  There is one residence on the road, and the remaining properties are undeveloped.  Some of the property is under a conservation easement and open to the public for recreational activities.  In October 2008, the Town provided notice that it intended to consider altering the classification of certain town highways, including a 0.55 mile section of Kirby Hollow Road.  The selectboard made a site visit to the property.  The Town also held a public meeting and heard from interested parties.  Plaintiffs attended and spoke against reclassification.  Other members of the public also opposed reclassification and questioned whether it would have an impact on the public's ability to use the conserved property.  The Town road foreman supported reclassification and testified that the road is dangerous to maintain and snow plow because it is narrow and steep.  In December 2008, the Town issued a written decision, finding, among other things, that: the road's width is too narrow to allow two vehicles to safely pass one another or for access for emergency vehicles; Town snow removal vehicles have slid off the road causing danger to the vehicles and impairing snow removal of other roads; and the cost to improve the road is prohibitive.  The Town also found that the road services only one seasonal residence with limited winter usage.  The Town concluded that continuing summer maintenance and winter plowing did not serve the public good of the Town and reclassified the road. The trial court concluded that there was no statutory authority providing for review of the reclassification and therefore the only jurisdiction for the appeal was pursuant to Rule 75 in the nature of certiorari.  Upon review, the Supreme Court found that while Plaintiffs argued that their opinions and evidence should have been weighed more heavily, the selectboard did not err in resolving the competing considerations in the manner that it did.  The decision was within the Town's authority and not erroneous. The Court affirmed the lower court's decisions.

Plaintiff Linda Nordlund appealed a grant of summary judgment by the Superior Court, Environmental Division (Environmental Court) in favor of Defendants Elizabeth Van Nostrand, and Mark and Nancy Van Nostrand for lack of subject matter jurisdiction. Plaintiff owned property that abuts the Van Nostrand property. The Van Nostrand property runs behind and is contiguous with both the Nordlund and front parcels. The back parcel does not border a public road. These parcels have been the subject of numerous proceedings. In a 2006 quiet title action, the superior court determined that the Nordlund parcel was burdened by an existing eighteen-foot right-of-way benefiting the back parcel. In 2004, Defendants applied for a zoning permit to build a house on the back parcel. The zoning administrator originally granted the permit, but Plaintiff appealed the decision to the local review board. The Board reversed, finding that the Nordlund right-of-way did not meet locality's rule that requires a fifty-foot-wide right-of-way in order to develop landlocked property. Defendants appealed that decision to the Environmental Court. In the course of the proceedings, Defendant Elizabeth Van Nostrand granted defendants Mark and Nancy Van Nostrand a fifty-foot-wide right-of-way across her property (the front parcel) that connected the back parcel to the closest road without crossing onto the Nordlund parcel. Defendants applied for a new zoning permit citing the Van Nostrand right-of-way as the means of complying. The Board approved the permit and Defendants subsequently constructed a house on the back parcel. This case stems from what Plaintiff claimed is a misuse of the Nordlund right-of-way to access the now completed home on the back parcel. On appeal, Plaintiff argued that this use violated the prior zoning decisions that originally disallowed the right-of-way as a basis for development of the back parcel. Upon review, the Supreme Court found that the Environmental Court had no jurisdiction because there was no violation of a zoning decision respecting Defendants' property or use of the rights-of-way in question. Accordingly, the Court affirmed the dismissal of Plaintiff's case.

A group neighbors (Neighbors-Appellants) in the Town of Dorset appealed an Environmental Court decision that granted Applicant Bradford Tyler’s application for a zoning permit for the construction of a self-storage facility in the Dorset Village Commercial District. Appellants contend that the court erred in determining the rental storage units to be an authorized land use within the applicable Dorset zoning district. Applicant Tyler owns and resides on a 5.6-acre property located in the Village Commercial District (VC District) of Dorset. He filed for a zoning permit to construct a self-storage facility on his property. The Town Planning Commission issued written approval of applicant’s site development plan. Following this, the Town Zoning Administrator issued a zoning permit. Interested neighbors appealed to the Dorset Zoning Board of Adjustment, contending that applicant’s proposed self-storage facility is not a “retail sales/rentals” use, as required by the town’s Zoning Bylaws for development in the VC District. Neighbors, in response to applicant questioning the validity of a decision rendered by less than a majority of the Board, appealed to the Environmental Court. They asserted that, regardless of the majority vote issue, the earlier approval by the Zoning Administrator was erroneous and should be voided. Applicant cross-appealed, arguing that the Board’s denial was invalid and that the proposed facility was a permitted use in the VC District. The parties filed cross-motions for summary judgment on the question of whether a storage facility was permitted. The Environmental Court granted applicant’s motion and denied Neighbors’, holding that the proposed use was permissible as a “retail rental.” Upon review of the lower court's record and the applicable zoning statutes, the Supreme Court acknowledged the conflict created by a plain reading of the definition of "retail" in the statute: "[d]efining “retail” in terms of sales arguably creates a conflict when used to define “retail rentals” . .. Using the common understanding of the words involved, and in the context of the overall scheme and purpose of the VC District, it is clear that the Bylaws’ drafters intended “retail sales/rentals” to include only residential and small-scale commercial establishments trading in services or in goods, for sale and for rent, as opposed to renting storage space as applicant proposes." Accordingly, the Court reversed the decision of the Environmental Court.