HomeMy WebLinkAboutAO-05-02 - Decision - 1041 Shelburne RoadCITY OF SOUTH BURLINGTON
DEPARTiv1ENT OF PLANNING AND ZONING
WESCO, INC. — 1041 SHELBURNE ROAD
APPEAL #AO-05-02
FINDINGS OF FACT AND DECISION
Wesco, Inc., hereinafter referred to as Appellant, appeals the determination of
the Administrative Officer dated July 8, 2005. The Development Review Board
held a public hearing on this appeal on August 16, 2005.
Based on testimony provided at the above -mentioned public hearing, supporting
materials contained in the document file for this appeal and the written argument
presented by Appellant, the Development Review Board finds, concludes and
decides the following:
FINDINGS OF FACT
1. Appellant appeals the determination contained in the letter of the
Administrative Officer dated July 8, 2005.
2. Appellant is the owner of record of the subject property.
3. The subject property is located in the Commercial 1 Zoning district.
4. There are currently three appeals before the Environmental Court in
connection with the subject property.
5. Beginning several weeks ago, Appellant started submitting materials to the
Planning and Zoning Department in support of applications for both preliminary
and final plat review. Said application was not complete.
6. Over the course of several weeks, Appellant, attempting to make the
application complete, submitted additional material to the Planning and Zoning
Department in support of the applications referenced above.
7. Once complete, the Administrative Officer reviewed the application and
compared it to the applications that are the subject of the appeals before the
Environmental Court. Based on this comparison, the Administrative Officer
determined that the applications for preliminary and final plat review proposed a
substantially different layout/site plan for the subject property than that which is
currently before the Environmental Court.
8. Based on this determination, the Administrative Officer concluded that it was
possible for Appellant to construct only one of the two plans and that it was
unclear as to which layout/site plan of the subject property was specific
development for which Appellant sought approval.
9. The Administrative Officer concluded that Appellant requested that the
Development Review Board render an advisory opinion and that the
Development Review Board lacks authority to render such an opinion.
Conclusions of Law
10. Appellant appeals the determination of the Administrative Officer pursuant to
24 V.S.A. section 4465(a) and Section 17.13 of the Land Development
Regulations.
11. Under Vermont law, the Development Review Board is a "quasi-judicial body"
because it performs "a quasi-judicial function in determining the applicability of a
valid city ordinance to the facts of a case, i.e., in applying the law to the facts."
See Chioffi v. Winooski Zoning Board, 151 Vt. 9, 11, 13 (1989); see also 1.
V.S.A. §310(5)(B).
12. The jurisdiction of Vermont courts is limited to actual cases or controversies.
See J.L. v. Miller, 174 Vt. 288, 292 (2002)(emphasis added); see also In re
Appeal of Bennington School, Inc., 176 Vt. 584, 588 (2004). "The existence of an
actual controversy turns on whether the [applicant] is suffering the threat of
actual injury to a protected legal interest, or is merely speculating about the
impact of some generalized grievance." Id. "An actual or justiciable controversy
requires the court to distinguish the 'probable' from that which is merely
'possible."' See Anderson v. State, 168 Vt. 641, 644 (1998). "Absent an actual
controversy, any decision of the judicial branch is merely an advisory opinion,
and is consequently beyond the authority vested in the judicial branch by the
Vermont State Constitution." J.L. v. Miller, 174 Vt. 288, 293 (2002)(emphasis
added).
13. With its most recent applications, Appellant asks the Development Review
Board to render an advisory opinion. Appellant has sought review by the
Environmental Court of this Board's denial of specific land development. While
that application remains under the jurisdiction of the Environmental Court,
Appellant seeks approval of a second proposed scenario for the same property.
14. As long as Appellant pursues the Environmental Court appeals, the most
recent application is merely a hypothetical alternative proposal that requires the
Board to speculate about the possible rather than the probable. The Vermont
Supreme Court has refused to render purely advisory opinions where the parties
failed to articulate an actual controversy with respect to a "hypothetical second
scenario" in an appeal from a zoning board of adjustment decision. See In re
Appeal of Bennington School, Inc., 176 Vt. 584, 588 (2004). Only if Wesco
withdraws the application in Environmental Court will the Development Review
Board have jurisdiction to review a different application for land development at
1041 Shelburne Road.
15. Appellant attempts to claim that the applications for preliminary and final plat
are deemed approved. Appellant alleges that the preliminary and final plat
applications were complete as of July 1, 2005. For the purposes of reviewing
Appellant's deemed approval claim, we will accept Appellant's date of completion
as true. The Administrative Officer's letter is dated July 8, 2005, and Appellant
submitted its appeal of said letter on July 13, 2005.
16. The purpose of the deemed approval remedy in 24 V.S.A. sections 4448(d)
and 4464(b)(1) is to "`remedy indecision and protracted deliberations on the part
of zoning boards and to eliminate deliberate or negligent inaction by public
officals."' See Hinsdale v. Village of Essex Junction, 153 Vt. 618, 623-624 (1990).
"This case involves neither indecision nor protracted deliberation." Id. at 624.
Appellant's applications are not deemed approved.
Decision
Based on the Findings of Fact and Conclusions of Law set forth above, the
Development Review Board approves Appellant's appeal of the Administrative
Officer's letter dated July 8, 2005.
Mark Behr — yea/nay/�not present
Matthew Birmingham — yea/nay/ bst of present
Chuck Bolton — yea/nay/abstain/rkt �
John Dinklage — yeq�abstain/not present
Roger Farley — yea/ramabstain/not present
Larry Kupferman — yea/4:R/abstain/not present
Gayle Quimby — yea/cO?abstain/not present
Signed this / day of September 2005, by
John Dinklage, hair
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Please note: You have the right to appeal this decision to the Vermont Environmental
Court, pursuant to 24 VSA 4471 and VRCP 76 in writing, within 30 days of the date this
decision is issued. The fee is $225.00. If you fail to appeal this decision, your right to
challenge this decision at some future time may be lost because you waited too long.
You will be bound by the decision, pursuant to 24 VSA 4472 (d) (exclusivity of remedy, -
finality).
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