Zoning. Failure to appeal decision of "zoning specialist" does not preclude review of later decision of zoning administrator.

In re Burns Two-Unit Residential Building, 2016 VT 63 (filed May 27, 2016)

DOOLEY, J. This case is about modifications to a two-unit residential building in Burlington. A group of Burlington residents (neighbors) appeal a decision of Environmental Division declining to reach the merits of neighbors’ claim that applicants converted their home into a duplex without a zoning permit on the grounds that the challenge was precluded by a prior decision under 24 V.S.A. § 4472(d). On appeal to this Court, neighbors argue that their challenge is not precluded under § 4472(d) because the prior decision had not been rendered by the zoning zdministrator as the statute requires. We agree and reverse.

A neighborhood property owner submitted a zoning enforcement complaint form to the city that stated applicants were conducting modifications to convert a single-family home into two apartments without any zoning permit from the city. A “zoning specialist” responded by letter dated May 15, 2014 that the Code Enforcement Office had determined that the use was presumed valid because the building had been used as a duplex since at least the time of adoption of the 1973 Burlington zoning ordinance. The letter stated that the decision was appealable to the Development Review Board, but neither the complainant nor any other interested party appealed.

On June 3, 2014, applicants obtained a separate “zoning “nonapplicability determination. Neighbors appealed this determination to the DRB and to the Environmental Division, which granted applicants’ motion for summary judgment. The court concluded that the use of the property as a duplex was “conclusively decided in [the] May 2014 letter,” a decision that became final and binding when it was not appealed under 24 V.S.A. § 4472(d).

Neighbors argue that their appeal from the DRB to the Environmental Division is not barred by 24 V.S.A. § 4472(d) because the letter to the original complainant was authored by an employee of the Code Enforcement and § 4472(d), by its terms, applies only to decisions of a zoning administrator.

Section 4472(d) provides that if any interested person fails to appeal to the appropriate municipal panel “under § 4465 of this title . . . all interested persons affected shall be bound by that decision or act of that officer.” Section 4465(a) states that an interested person “may appeal any decision or act taken by the administrative officer in any municipality” (emphasis added).

We are reluctant to apply a broad preclusion rule in this case. Neighbors had no way of knowing that a complaint to the Code Enforcement Office had been made and similarly no way of knowing how the complaint was addressed. Only when applicants filed the certificate of nonapplicability of permit requirements was there public notice of applicants’ plans and the zoning administrator’s approval of those plans and by then it was too late to contest the approval under the decision of the Environmental Division.

The Environmental Court erred in concluding that § 4472(d) applied and precluded review. The letter dated May 15, 2014 was not a decision of the zoning administrator. Because it is not a decision of the zoning administrator, the complainant did not have to appeal it to the DRB to avoid the invocation of § 4472(d). As a result, the letter did not preclude neighbors from requesting the zoning administrator to enforce the zoning ordinance against applicants and from appealing to the DRB from the zoning administrator’s decision that a permit was not needed.

Reversed