Appeal of Larkin ( 2000 )

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: Appeal of }
John Larkin } Docket No. 159-9-99 Vtec
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Decision and Order on Motion to Dismiss or Remand, or for Summary Judgment
Appellant appealed from a August 9, 1999 decision of the then-Zoning Board of
Adjustment (ZBA) of the City of South Burlington. Appellant is represented by Carl H.
Lisman, Esq.; the City is represented by Amanda S.E. Lafferty, Esq. The City has moved
to dismiss or remand, or in the alternative for Summary Judgment.
Appellant filed an application on April 14, 1997 for a zoning permit to build a house
at 6 Pinnacle Drive (Lot #49), in Zone A of the City=s Dorset Park View Protection zoning
district; the application was approved that day by Richard Ward for the City, and was not
appealed. A formula in '22.401 of the Zoning Regulations sets a maximum elevation for
the top of the building at 417.565 feet above mean sea level. The application form
contains standard language that all construction is Ato be completed in accordance with the
Zoning Laws and Building Regulations of the City of South Burlington.@ The application
shows the frontage of the lot as 105 feet and its depth as 150.42 feet, shows the footprint
of the proposed house, and shows the height of the proposed house as 28 feet. At some
time before June of 1999, the house was fully constructed.
Any writing in the Aremarks@ section of the application is illegible on the copy
provided to the Court attached to Appellant=s memorandum. If we were to reach the
summary judgment motion, material facts would be in dispute as to that writing, as to the
slope of the lot, and as to whether Appellant had represented on the application or any
accompanying materials that the maximum elevation for the house would not exceed
417.565 feet (see Minutes of July 26, 1999 ZBA meeting, page 3, fifth sentence). In
addition, material facts would be in dispute as to whether the view protection zoning had
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been newly adopted, whether there were any tables available for calculating the allowed
height or elevation, as to any calculations or other representations made by the City
representative who approved the permit, and as to the prior experience of Appellant with
the zoning regulations in general and with the elevation requirements of this district in
particular (see Minutes of July 26, 1999 ZBA meeting, last paragraph of page 1 and page
2, generally).
As constructed, the elevation of the top of the ridge vent of the house ranges from
419.20 feet above sea level at the east end to 419.21 feet at the west end. On June 30,
1999, the Zoning Administrator issued a Notice of Violation to Appellant and to Gerald Milot
for commencing land development without obtaining a permit, and specifically for
constructing a single family dwelling Awhich exceeds the 417.565 mean sea level elevation
maximum.@ The Notice of Violation gave them seven days to Areduce the height of this
structure@ so as not to exceed the maximum elevation, and advised them that they Amay
appeal this Notice of Violation to the Board of Adjustment by filing a written notice of
appeal (see enclosed)@ within fifteen days. In small print in the upper left corner, the form
is entitled AApplication to Board of Adjustment@ and contains the following three alternatives
under Atype of application,@ with directions to check one: appeal from decision of
Administrative Officer; request for a conditional use; or request for a variance. The form
does not offer Aappeal of a Notice of Violation@ as an option. Appellant checked Arequest
for a variance,@ and stated Asee 26" under Aprovision of zoning ordinance in question.@
Under Areason for appeal,@ Appellant stated: Aconfusion over interpretation of height
[requirements].@ (Emphasis added.) Appellant filed the form on July 6, 1999, which was
within the time allowed for an appeal of the Notice of Violation.
No enforcement action has been filed by the City based on the Notice of Violation.
The warning of the hearing to be held on July 26, 1999, was prepared by the Zoning
Administrator and was published in a newspaper at some time on or about July 10, 1999.
It stated that Appellant was seeking a Avariance@ and that Appellant=s request is for
permission to allow the house to Aproject 1.645 feet above the maximum elevation.@ On
July 23, 1999, before the scheduled hearing, Appellant=s attorney wrote to the ZBA setting
out Athe legal basis@ of Appellant=s claim and stating that A[t]his request is not a request for
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a variance in the usual sense. Rather, it is a request that the City honor the terms of the
permit, upon which our client and his contractor relied in good faith.@
At the hearing, Appellant reiterated that he was not asking for a variance, but
instead for the City to Ahonor the permit.@ The minutes of the hearing reflect that the ZBA
chair addressed twice during the hearing whether the problem was due to an error on the
part of the City (Minutes, p. 2, 2nd full paragraph and p.3, 4th full paragraph). The only
mention of the variance criteria during the hearing was a ZBA member=s statement that
Athe Zoning Administrator had reviewed the 5 criteria and said that the request should be
denied@ and the ZBA member=s comment that Ahe had heard nothing to override that.@
Appellant was given the opportunity to Awithdraw and research the issue further,@ but
declined to do so. The ZBA then voted to adopt the Zoning Administrator=s findings of fact,
which have not been provided to the Court.
The City has moved to dismiss the appeal on the basis that the June 30, 1999
Notice of Violation was never appealed, but that instead Appellant had applied for a
variance. The City argues that the variance was denied by the ZBA, yet Appellant has not
addressed any of the variance criteria in his statement of questions. In the alternative to
dismissal of the appeal, the City asks that this matter be remanded for the now-DRB to
consider the appeal from the Notice of Violation, arguing that the Court has no jurisdiction
to convert the proceedings to an appeal of the Notice of Violation without the DRB=s having
had an opportunity to consider and rule on the matter.
The City also asks, in the alternative to either dismissal or remand, that the Court
grant summary judgment in its favor that the permit=s specification of a 28-foot height did
not relieve Appellant of the responsibility of compliance with the elevation requirements of
the zoning regulations. As stated above, material facts are in dispute regarding the
circumstances of the approval of the application sufficient to deny the motion for summary
judgment.
Ambiguities in zoning regulations and procedures are to be construed in favor of the
landowner. In re Appeal of Weeks,167 Vt. 551, 555-56 (1998). The following aspects of
the appeals procedure are sufficiently ambiguous so that the landowner should be allowed
the opportunity to present his appeal of the Notice of Violation. First, the instructions in the
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last paragraph of the Notice of Violation, specifically combined with the enclosure of the
form, suggest that the filing of the form is sufficient to appeal the Notice of Violation,
without regard to which box may be checked on the form. This ambiguity is perhaps
inadvertently bolstered by the fact that the form provides a space for Areason for appeal,@
again not suggesting that the form might be read as an application for a variance (or a
conditional use permit) rather than as an appeal. During the hearing, the ZBA did not
advise Appellant that the only matter before the ZBA was his variance request and not an
appeal of the Notice of Violation, nor did the ZBA refer to Appellant=s attorney=s letter
explaining that it was not a request for a variance Ain the usual sense.@ Further, the ZBA
Chair did allude to the issue Appellant wished to raise, that is, whether the City bore any
responsibility for the existence of the problem, although that issue was not fully discussed
at the hearing. Finally, Appellant was not asked whether he wished to withdraw his request
for a variance, and to continue or come back on the appeal issue, but rather was asked,
again ambiguously, whether he wished Ato withdraw and research the issue further.@ From
the totality of the circumstances, we must conclude that Appellant raised or attempted to
raise an appeal from the Notice of Violation by filing the form enclosed with that notice, and
that the then-ZBA should have heard it as an appeal from the Notice of Violation or should
have re-warned it upon receipt of Appellant=s attorney=s July 23, 1999 letter.
However, the City is also correct that the then-ZBA did not vote or issue a decision
on the issues Appellant sought to raise, but only actually voted on the denial of a variance.
This Court should not address a matter on which the municipal body did not issue a
decision, even though the ZBA did peripherally discuss the issue.
Accordingly, based on the foregoing, the City=s Motion to Dismiss is DENIED and
the City=s Motion to Remand is GRANTED. The City=s Motion for Summary Judgment is
DENIED as material facts are in dispute, but without prejudice to filing further such motions
after the remand proceedings. The present appeal is hereby remanded to the DRB for it to
consider and rule on Appellant=s appeal of the Notice of Violation.
After a decision is rendered on that aspect of Appellant=s appeal, those issues as
well as the variance issues will be ripe for hearing in this Court. Accordingly, unless either
party files a further motion for summary judgment, or motion to continue, or requests more
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than a half-day of hearing time, the merits of the matter as a whole are scheduled to be
heard on August 31, 2000, beginning at 1 p.m. Any party appealing the DRB=s decision
after remand shall file a statement of questions not later than August 7, 2000, to allow the
parties to prepare for that hearing. The Court will be prepared to rule orally at that hearing
if the parties wish the Court to do so; in which case the parties shall file trial memoranda at
the hearing.
Done at Barre, Vermont, this 29th day of May, 2000.
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Merideth Wright
Environmental Judge
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