Removal of Houses Near Airport Does Not Require Site Plan Review

George Maille is a longtime resident of South Burlington, with a home located on Logwood Street in a neighborhood adjacent to Burlington International Airport. Since 1992, the City of Burlington (“BTV”), which owns the Airport, has been purchasing residential properties that are regularly subjected to a threshold level of jet engine noise established by FAA regulations.

In February, 2012, BTV applied to the City of South Burlington Zoning Administrative Officer for issuance of zoning permits to allow demolition and removal of fifty-four existing homes located on the lots purchased by BTV. The permits were issued and Mr. Maille appealed to the South Burlington Development Review Board (DRB), arguing that site plan review was required. The DRB held that the applications did not propose converting the formerly occupied single family structures, and removing the structures did not constitute a change in the use of the lots, such that site plan review was not required for the resulting vacant lots.

The Vermont Superior Court’s Environmental Division affirmed the DRB’s decision, and recently so too did the Vermont Supreme Court. The Supreme Court’s decision was a narrow 3-2 majority ruling issued on July 25, 2014, In re Burlington Airport Permit, 2014 VT 72 (click on case name to view decision). The Supreme Court also held that, even if removal of the residential structures could be deemed a change of use and thus “land development,” an exemption in the South Burlington Land Development Regulations required the same outcome. Section 14.03(B) provides: “[s]pecifically excluded from the provisions of this article are: (1) [o]ne-family dwelling on a single lot . . . [and] (2) [t]wo-family dwelling on a single lot.” The Supreme Court approved the rationale that BTV’s purchase of the fifty-four properties did not automatically change their use, even if BTV bought the properties intending to later put them to a new use. Because the use continued to be one- and two-family residential use, despite the demolition of the structures, the exemption from site plan review applied.

Amanda Lafferty of Stitzel Page & Fletcher represented the City of South Burlington in the case. For information on this case or assistance with a land use matter, please email Amanda or call 802.660.2555.