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In re Burlington Airport Permit

Supreme Court of Vermont

July 25, 2014

In re Burlington Airport Permit (George A. Maille, Appellant)

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Superior Court, Environmental Division. Thomas G. Walsh, J.

Pamela A. Moreau and Damien J. Leonard of Murphy Sullivan Kronk, Burlington, for Appellant.

William F. Ellis and Kevin J. Coyle of McNeil, Leddy & Sheahan, Burlington, for Appellee BTV.

Amanda S.E. Lafferty of Stitzel, Page & Fletcher, P.C., Burlington, for Appellee City of South Burlington.

Present: Reiber, C.J., Skoglund, Robinson and Crawford, JJ., and Morse, J. (Ret.), Specially Assigned


Page 154

Skoglund, J.

[¶1] Airport neighbor, George Maille, appeals the Superior Court, Environmental Division's grant of summary judgment in favor of appellees City of Burlington and City of South Burlington. The court upheld the South Burlington Zoning Administrative Office's issuance of fifty-four zoning permits to the City of Burlington and Burlington International Airport (BTV) (together, applicants)[1] and concluded that applicants were not required to submit a site plan for zoning board approval. Each permit allows BTV to demolish, remove, and fill in the cellar hole of a vacant structure on BTV-owned property. Neighbor contends that the environmental court erred in concluding that site plan review of the applications was not required under the South Burlington Land Development Regulations (LDR).[2] Although we disagree with part of the environmental court's reasoning, we ultimately affirm its holding that site plan review is not required for the removal of the structures and the placement of fill in the structures' respective cellar holes.

[¶2] At its heart, the present controversy is about noise -- specifically, airport-generated noise and its effects on immediate neighbors. Noise issues in areas surrounding

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urban airports are not uncommon. See generally L. G. Zambrano, Balancing the Rights of Landowners with the Needs of Airports: The Continuing Battle over Noise, 66 J. Air L. & Com. 445, 446-47 (2000). BTV -- located in the midst of residential neighborhoods -- generates noise.

[¶3] As part of its Airport Noise Compatibility Planning required by Federal Aviation Administration (FAA) regulations, BTV has developed Noise Compatibility Programs (NCP), the first of which the FAA approved in 1990. As part of that program, BTV began purchasing residential structures within a certain " noise contour" of the airport to help mitigate the impact of airport-generated noise on BTV's neighbors. Between 1992 and 2007, BTV purchased fifty-nine neighboring homes within a seventy " day-night average" (dnl) noise contour of the airport. In 2008, BTV revised the NCP's noise-level threshold and began acquiring about ten to twenty homes per year within an expanded sixty-five dnl noise contour of the airport. To date, BTV has purchased over 120 homes under the NCP, and has removed sixty-six of those homes without site plan review or conditional use approval by the South Burlington Development Review Board (DRB). Once BTV has acquired a home under the NCP and the sellers have relocated, the home is left vacant and cannot be permanently reoccupied on the current premises for residential purposes. BTV advertises the vacant homes for sale to be moved offsite, but if there are no interested buyers, BTV advertises the homes for deconstruction, salvage, or demolition.

[¶4] In February 2012, BTV submitted Zoning Permit Applications to the City of South Burlington for the removal of the vacant homes located on each of the fifty-four properties that are the subject of this appeal. Each permit calls for the demolition, deconstruction, or relocation of the vacant home, with foundations demolished to two feet below grade; cellar holes filled; sewer and water lines capped; and turf placed on the former home site. The zoning officer issued all of the permits, and neighbor subsequently appealed the decision to the DRB. After holding a public hearing on the appeal, the DRB upheld the zoning officer's determination in a decision issued in June 2012. The DRB held that removing the structures did not constitute a change in the use of the lots. It also held that the LDR did not require site plan review of a proposed vacant lot.

[¶5] Neighbor appealed the DRB's decision to the environmental court, and all parties filed motions for summary judgment. The court granted summary judgment to neighbor on one issue, finding that BTV's plan to remove the one- and two-family residential dwellings constituted a " change in use" under the LDR. In its ruling the court neither acknowledged nor gave deference to the DRB's ruling that none of the fifty-four zoning applications proposed to change the use of the lot. On all other issues, the court granted summary judgment in favor of applicants. The court held that despite BTV's proposed change of use, site plan review was not triggered under the LDR because the activity on the properties falls under an exception for one- and two-family dwellings. The court also held that site plan review was not triggered by the proposed placement of fill because the activity was incidental to the removal of the structures on those lots and therefore exempt under the LDR. Neighbor now appeals the environmental court's conclusion that no site plan review is required.

[¶6] This Court reviews the grant of summary judgment de novo, applying the same standard of review as the trial

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court. In re Curtis, 2006 VT 9, ¶ 2, 179 Vt. 620, 896 A.2d 742 (mem.). " Summary judgment is appropriate when, giving the benefit of all reasonable doubts and inferences to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Mooney v. Town of Stowe, 2008 VT 19, ¶ 5, 183 Vt. 600, 950 A.2d 1198 (mem.).

[¶7] While the facts in this case are undisputed, the matter of law at issue is the interpretation of a municipal zoning ordinance. When construing a zoning ordinance, we apply the same rules as when construing a statute. In re Vt. Nat'l Bank, 157 Vt. 306, 312, 597 A.2d 317, 320 (1991). Thus, " [w]e construe the words of a zoning ordinance according to their plain and ordinary meaning, and the whole of the ordinance is considered in order to try to give effect to every part." Curtis, 179 Vt. 620, 2006 VT 9, ¶ 2, 896 A.2d 742 (quotation omitted). We apply a deferential standard of review to the environmental court's interpretation of a zoning ordinance, and will overturn that court's interpretation " only on a finding of clear error." In re Toor, 2012 VT 63, ¶ 9, 192 Vt. 259, 59 A.3d 722.

[¶8] We first examine the court's determination that the proposed removal of the structures constitutes a change in use. The relevant provision in the LDR, § 14.03(A)(1), states in pertinent part that " [s]ite plan approval shall be required prior to issuance of a zoning permit in all districts, except as provided in subsection B, for: (1) [a]ny new use, change in use, or expansion of use ...

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