93 A.3d 82
Vt.2014Background
- Applicant Bjerke sought a Burlington zoning permit in July 2010 to alter a duplex’s exterior (roofline, porticos, windows) involving historic-building concerns.
- Planner informed him the building is on the Vermont State Register and the proposed changes likely violate standards §5.4.8(b) of the Burlington Comprehensive Development Ordinance; advised DAB review.
- DAB reviewed the proposal on August 10, 2010, recommended revisions to differentiate the original structure from the addition, and the applicant did not submit the requested revised plan.
- City suspended permit review August 10 to allow revisions; December 3, 2010, applicant requested deemed approval under 24 V.S.A. § 4448(d); city denied deemed approval on December 15; permit denial followed in March 2011.
- Environmental Division denied summary judgment on deemed approval; City’s referral to DAB within 30 days satisfied timely-response requirement; court later addressed ordinance interpretation and upheld the City’s denial.
- Court affirmatively held that the permit was not deemed approved and affirmed the Environmental Division’s decision denying the permit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the permit was deemed approved under 24 V.S.A. § 4448(d). | Bjerke contends deemed approved after 30 days. | Burlington argues timely decision/referral defeats deemed approval. | Deemed approval not triggered; summary judgment for City affirmed. |
| Whether admission and handling of the City ordinance at trial were proper; burden of proof. | Improper admission and misallocation of burden. | Court properly reopened evidence to supply a complete ordinance; burden on applicant. | Reopening proper; City proved existence of ordinance; burden appropriately placed. |
| Whether the Environmental Division properly interpreted § 5.4.8 regarding historic preservation and internal feasibility. | Should consider internal feasibility (e.g., bathroom height) under § 5.4.8. | Standards concern exterior changes; no obligation to assess internal feasibility absent use changes. | Interpretation reasonable; external features focus; no required internal feasibility analysis absent change of use. |
| Whether the court adequately deferred to the Environmental Division’s interpretation of the ordinance. | Deference insufficient to uphold challenged reading. | Deference appropriate; Environmental Division’s construction favored given statutory intent. | Reasonable interpretation; deferential standard applied. |
Key Cases Cited
- Trahan v. Town of __, 2008 VT 90, 2008 VT 90 (2008) (deemed-approval analysis and timely decision context)
- In re Beliveau NOV, 2013 VT 41, 2013 VT 41 (2013) (summary-judgment, deemed-approval and ordinance-admissibility principles)
- Town of Waterford v. Pike Indus., Inc., 135 Vt. 193, 135 Vt. 193, 373 A.2d 528 (1977) (1977) (burden of proving ordinance validity vs. compliance not at issue here)