### Burns Two-Unit Residential Building

ENTRY REGARDING MOTION

Count 1, Municipal DRB Other (120-8-14 Vtec)

Title: Motion for Summary Judgment (Motion 5) Filer: Michael Long Attorney: Norman C. Williams Filed Date: August 2, 2016

Response filed on 09/07/2016 by Attorney Kimberlee J. Sturtevant for Interested Person City of Burlington Agree w/rqst enlarge time Response filed on 09/21/2016 by Attorney Brian P. H ehir for Appellee Cynthia Burns Opposition Stmnt Undisputed Material Facts Affid M ark Gadue Exh 2-6 Cert Service Response filed on 10/03/2016 by Attorney Kimberlee J. Sturtevant for Interested Person City of Burlington Reply Response filed on 10/07/2016 by Attorney Norman C. Williams for Appellant Jesse Robbins Reply

The motion is DENIED.

Appellants Michael Long and 18 other neighbors (Ne ighbors) seek to impose zoning requirements on the residential property at 12 West on Street in Burlington, Vermont (Subject Property or Property). The Appellees are the prope rty owners, Charles and Cynthia Burns (the Burnses). This case returned to the Court on a rev ersal and remand from the Vermont Supreme Court. In re Burns Two-Unit Residential Building, 2016 VT 63 (May 27, 2016). The Neighbors have filed a motion for summary judgment asking the Court to find that the Property requires a zoning permit. Specifically, they are asking the C ourt to reverse the Burlington Development Review Board’s (DRB) decision that allows the Burns es to make interior alterations to the Property without a permit. In its June 23, 2015 decision, this Court granted s ummary judgment to the Burneses, and rejected the Neighbors’ claims. Burns Two-Unit Res idential Building, No. 120-8-14 Vtec, slip op. at 7 (Vt. Super. Ct. Envtl. Div. June 23, 2015) (Wa lsh, J.). The Court concluded the Neighbors could not appeal a City of Burlington zoning official’s d etermination that the use of the Subject Property as a duplex predated the adoption of relevant zonin g regulations and was therefore a permissible, nonconforming use. Because that deter mination was not timely appealed, this Court deemed it final and binding. The Court then affirmed the DRB’s decision that the Burnses 

## S TATE OF 

## V ERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Docket No. 120-8-14 Vtecdid not need a permit to reconfigure the interior o f the Subject Property. Our analysis hinged on

our view that the zoning official’s determination w as tantamount to an act or decision of the zoning administrator, which under 24 V.S.A. §§ 4472 (d) and 4465(a) binds all affected persons in any proceeding if not appealed. 1 Id. at 4. Additionally, this Court found that if the Burnses had, as the Neighbors’ alleged, increased the living spa ce of the duplex and triggered the need for a zoning permit, it was an enforcement matter for the city. The Supreme Court disagreed on both counts. The Su preme Court found first that the zoning official’s determination regarding the Prope rty was not a decision of the administrative officer for the purposes of 24 V.S.A. § 4472(d). I n re Burns, 2016 VT 63 at ¶ 16. Thus the Neighbors may appeal the determination that the use of the Property as a duplex is a permissible, nonconforming use. Second, the Supreme Court held that the Neighbors’ claim that the Burnses had increased the Property’s living space is also a ppealable. Id. at ¶ 17. The Supreme Court remanded the matter to this Court to allow the Neig hbors to present evidence and argument for

their claims. Id. In the present summary judgment motion, the Neighbo rs ask this Court to reverse the Burlington Development Review Board’s decision to u phold the Certificate of Non-Applicability issued by the city’s zoning administrator; find tha t a duplex is not a permissible use of the Property; and that the Property does not meet the r equirements for a duplex and cannot be zoned as such. The Neighbors are no longer asking this Court to determine whether the Burnses have increased the Property’s living space, explain ing that question is better handled in a zoning complaint filed with the city. Appellant’s Mot. For Summ. J. at 10. Summary judgment may only be granted when the movin g party shows “there is no genuine dispute as to any material fact and the mov ant is entitled to judgment as a matter of law.” V.R.C.P. 56(a) (applicable here through V.R. E.C.P. 5(a)(2)). In reviewing a motion for summary judgment, the Court: 1) accepts as true any factual allegations made in opposition to the motion by the non-moving party, as long as they are supported by affidavits or other evidentiary material; and 2) gives the non-moving p arty the benefit of all reasonable doubts and inferences. Robertson v. Mylan Labs., Inc., 2004 V T 15, ¶ 15, 176 Vt. 356 (internal citation omitted). This case cannot be decided on summary judgment. W hile many of the underlying facts are not in dispute, the most material one is: whet her or not the Subject Property may be used as a duplex. The Neighbors claim a duplex was neve r permitted by the City of Burlington, and that any permissible, nonconforming use expired whe n the property conformed to the zoning code starting in 2008. 2 That year, the city adopted the Comprehensive Dev elopment Ordinance, which created a new use for an owner-occupied, sing le-family home with an accessory dwelling unit. The Neighbors assert the Property met that d escription from 2008 to 2014, when the prior owners lived there and rented out a third floor apa rtment. They further argue that a permit is needed to reestablish the Property as a duplex. The Burnses counter that the Property has been used as a duplex continuously since 1977, and was a four-unit apartment building prior to tha t. 3 They argue that the Property did not lose

1 Integral to this Court’s analysis was that the Cit y of Burlington’s Zoning Administrator personally r eviewed and authorized the May 15, 2014 letter from the zon ing official in response to a neighbor’s complaint.

2 A legal, nonconforming use is an activity conducte d on a parcel of land or within a structure that wa s in existence prior to zoning regulations that would ot herwise prohibit the use. 62 Am. Jur. Trials 1 (ori ginally published in 1997).

3 From 1969 to 1977, the Property’s prior owners, th e Gadues, used the Property as an investment, renti ng out four apartments. The Gadues moved into the Pro perty in 1977 and lived in three of the four apartm ents. Appelles’ Statement of Undisputed Material Facts.its nonconforming status. The Burnses produce affi davits by the Property’s prior owner,

Elizabeth L. Gadue, her son, A. Mark Gadue, and Mon ika Busse, a long-time renter to support their contentions, which this Court accepts as true . See Robertson v. Mylan Labs., Inc., 2004 VT 15 at ¶ 15 (internal citation omitted). The Burnes es also provide the city zoning official’s May 15, 2014 letter and two Burlington Department of Public Works’ rental unit inspection reports from

1987 and 1991. Based on the facts before the Court, and giving the non-moving party the benefit of all reasonable doubts and inferences, we conclude that there is genuine dispute as to material fact and the Neighbors are not entitled to judgment as a matter of law. The Neighbors summary judgment is therefore DENIED

. See the enclosed notice of status conference. Par ties are directed to be prepared to discuss necessary pre-trial activities and provide a trial ready date.

So ordered.

Electronically signed on November 18, 2016 at 02:30 PM pursuant to V.R.E.F. 7(d).

_________________________________________ Thomas G. Walsh, Judge Superior Court, Environmental Division

Notifications: Norman C. Williams (ERN 2739), Attorney for Appella nt Michael Long Norman C. Williams (ERN 2739), Attorney for Appella nt Caryn Long Norman C. Williams (ERN 2739), Attorney for Appella nt Alex Friend Norman C. Williams (ERN 2739), Attorney for Appella nt Mary Moynihan Norman C. Williams (ERN 2739), Attorney for Appella nt Greg Hancock Norman C. Williams (ERN 2739), Attorney for Appella nt Kari Hancock Norman C. Williams (ERN 2739), Attorney for Appella nt Hamilton Davis Norman C. Williams (ERN 2739), Attorney for Appella nt Candace Page Norman C. Williams (ERN 2739), Attorney for Appella nt Matt Moore Norman C. Williams (ERN 2739), Attorney for Appella nt Susan Moakley Norman C. Williams (ERN 2739), Attorney for Appella nt Scott Richards Norman C. Williams (ERN 2739), Attorney for Appella nt Kathleen Donahue Norman C. Williams (ERN 2739), Attorney for Appella nt Peg Boyle Single Norman C. Williams (ERN 2739), Attorney for Appella nt Richard Single Norman C. Williams (ERN 2739), Attorney for Appella nt Paul Bierman Norman C. Williams (ERN 2739), Attorney for Appella nt Sandra Wynne Norman C. Williams (ERN 2739), Attorney for Appella nt Bret Findley Norman C. Williams (ERN 2739), Attorney for Appella nt Alexander Johnston Norman C. Williams (ERN 2739), Attorney for Appella nt Jesse Robbins Kimberlee J. Sturtevant (ERN 4778), Attorney for In terested Person City of Burlington Interested Person Judy P. Rosenstreich Brian P. Hehir (ERN 4252), Attorney for Appellee Ch arles Burns Brian P. Hehir (ERN 4252), Attorney for Appellee Cy nthia Burnssshelton