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Vt. Rules Demolition Not ’Change in Use’

The Vermont Supreme Court ruled July 25 for the Burlington International Airport and its plan to demolish 54 nearby homes.

Wed August 13, 2014 - Northeast Edition
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MONTPELIER, Vt. (AP) The Vermont Supreme Court ruled July 25 for the Burlington International Airport and its plan to demolish 54 nearby homes so it doesn’t fall out of compliance with federal noise mitigation rules.

A 3-2 majority of the justices found tearing down the houses and filling in their cellar holes doesn’t constitute a change in use under zoning regulations.

A neighbor, George Maille, had appealed 54 zoning permits issued by the city of South Burlington to the airport and its owner, the city of Burlington. One of Maille’s lawyers, Damien Leonard, said they had argued that the permits needed more extensive review than they had received.

The 54 homes were among more than 120 the airport has purchased since the early 1990s in its effort to eliminate cases in which noise from the facility would be found in violation of the federal rules, the court said.

When Maille appealed the permits, the environmental division of the Superior Court agreed with him that the demolitions did constitute a change in use, but said the changes were allowed without review under an exemption in city zoning rules for single- and two-family homes.

The Supreme Court’s majority opinion was stronger for the airport, saying the residential exemption applied and that the demolitions did not constitute a change in use.

“We recognize that this conclusion places these properties in a sort of land-use limbo,” said the majority opinion, written by Justice Marilyn Skoglund. “Nonetheless, we cannot change the fact that these [currently vacant] structures lack any practical utility at present and that the underlying lots are used only as empty space. Because we hold that [the airport’s] application proposed no change in use and thus has not proposed conversion to a non-residential use or airport use, site plan review is not required.”

A dissent written by Associate Justice Beth Robinson and joined by retired Justice James Morse, who was specially assigned to the case, argued against the idea that demolishing homes was not a change in use.

Robinson wrote the notion that “this potentially significant conversion of a substantial number of lots in a residential district from residential to vacant does not trigger any sort of review” could have unfortunate effects on future land-use planning in Vermont.

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